California Court of Appeals, Fourth District, First Division
ORIGINAL PROCEEDING in mandate. John M. Thompson, Judge. San
Diego County Super. Ct. No. SCD178329 Petition granted in
part and denied in part.
K. McComb, State Public Defender, and AJ Kutchins, Deputy
State Public Defender, for Petitioner.
appearance for Respondent.
Stephan, District Attorney, Mark A. Amador, Linh Lam, and
Karl Husoe, Deputy District Attorneys, for Real Party in
Manuel Bracamontes was sentenced to death in 2005 for the
kidnapping and murder of nine-year-old Laura Arroyo. His
automatic appeal is currently pending in the California
Supreme Court. (People v. Bracamontes (S139702, app.
pending).) In anticipation of a future petition for writ of
habeas corpus, Bracamontes filed a motion in the San Diego
County Superior Court to preserve evidence that may be
relevant to such a petition. His motion sought a preservation
order covering relevant physical and documentary evidence in
the hands of the prosecution, various government entities,
and four private individuals or entities that are the subject
of this proceeding: Norman Sperber, a forensic dentist and
tool mark expert; Rod Englert, a retired police officer and
crime scene reconstructionist; and Orchid Cellmark, Inc.
(Cellmark) and Serological Research Institute, Inc. (SERI),
two forensic laboratories that conduct DNA testing and
analysis. Bracamontes relied on People v. Superior
Court (Morales) (2017) 2 Cal.5th 523
(Morales), which held that a court has jurisdiction
to order preservation of evidence potentially subject to
postconviction discovery under Penal Code section
superior court granted Bracamontes's motion in large
part, but it declined to issue preservation orders to
Sperber, Englert, Cellmark, or SERI. It reasoned that
evidence in the possession of these private parties would not
be subject to postconviction discovery under section 1054.9
and therefore the court had no jurisdiction to order its
challenged the superior court's determination by petition
for writ of mandate. He argued that Sperber, Englert,
Cellmark, and SERI were acting on behalf of the prosecution
and evidence in their possession was therefore subject to
discovery under section 1054.9.
summarily denied the petition. The California Supreme Court
granted review and transferred the matter back to this court
with directions "to vacate [our] order denying the
petition for writ of mandate and to issue an order to show
cause... why the relief sought in the petition should not be
granted on the ground that private individuals and entities
working on criminal cases at the behest and under the
direction of law enforcement are subject to the discovery
provisions of Penal Code section 1054.9 and the preservation
obligations described in [Morales]." We issued
the order to show cause as directed, and these proceedings
conclude that the superior court erred by denying the
preservation order directed at Cellmark and SERI. These
entities participated in the investigation of Arroyo's
murder at the behest and under the direction of law
enforcement. Although few law enforcement organizations had
the capacity to conduct DNA testing at the time of the
murder, it is now seen as a core law enforcement function.
Cellmark and SERI are therefore properly viewed as members of
the prosecution team for purposes of discovery. Sperber and
Englert, by contrast, were retained solely for their
testimony at trial as independent expert witnesses. They did
not participate in the investigation of the murder. They were
not part of the prosecution team as the concept has been
defined. We therefore grant the petition in part and deny it
in part, as described further below.
AND PROCEDURAL BACKGROUND
Arroyo disappeared on June 19, 1991, and her body was found
the next morning. The Chula Vista Police Department (CVPD)
led the investigation into her murder. Rodrigo Viesca, a CVPD
evidence technician, took photographs and collected evidence
from the crime scene, including a number of hair strands. The
next day, Viesca attended Arroyo's autopsy. He took
photographs of Arroyo's body, her clothing, and each
stage of the autopsy. Viesca collected a number of biological
samples during the autopsy, including additional hair
strands, oral and vaginal swabs, a neck swab, and fingernail
clippings. The medical examiner removed portions of
Arroyo's jaw bone and shoulder blade, which showed signs
of injury, and Viesca collected those samples as well. Viesca
stored the biological evidence in the CVPD crime laboratory.
after Arroyo's murder, CVPD detectives identified
Bracamontes as a suspect. In August 1991, police obtained
search warrants for Bracamontes's person, residence, and
car. Viesca collected hair, blood, and saliva samples from
Bracamontes. From his car, investigators obtained a white
towel with an apparent blood stain.
CVPD sent hair strands collected at the crime scene to
Cellmark and SERI for DNA testing. Cellmark did not find any
DNA material; the results of SERI's testing is unclear
from the record. The CVPD provided the bloodstained towel to
the San Diego Sheriff's Department for analysis, which in
turn sent it to SERI for DNA testing. SERI concluded that the
blood on the towel did not come from Arroyo. Arroyo's
fingernail clippings were sent to the Sheriff's
Department and the Federal Bureau of Investigation (FBI)
crime laboratory, but the testing they conducted and any
results are also unclear. Despite identifying Bracamontes as
a suspect, police made no arrests at the time.
years later, in 2003, CVPD cold case investigators identified
Arroyo's murder as a candidate for possible
reexamination. They met with the former lead detective
responsible for the investigation, as well as representatives
of the San Diego County District Attorney's Office. They
went over the physical evidence and asked the supervisor of
the SDPD crime laboratory for advice. The supervisor
suggested looking at certain biological evidence again.
Viesca and a cold case investigator delivered the swabs from
Arroyo's body and her fingernail clippings to the SDPD
crime laboratory for testing.
SDPD crime laboratory detected sperm cells on the oral swabs.
Laboratory personnel requested and received the biological
samples previously obtained from Bracamontes for comparison.
Based on DNA analysis, the laboratory concluded that
Bracamontes was very likely the source of sperm on the oral
swabs. Additional examination revealed sperm cells underneath
both sets of fingernail clippings and on the neck swab. DNA
testing showed that Bracamontes was very likely the source of
these sperm cells as well.
officers arrested Bracamontes. Viesca again collected hair,
blood, and saliva samples from him.
deputy district attorney asked the SDPD crime laboratory to
send various samples to Cellmark for confirmatory testing.
The laboratory sent Cellmark the oral swabs, a vaginal swab,
and a reference saliva sample obtained from Bracamontes.
Cellmark also found sperm cells on an oral swab. It
concluded, to a reasonable degree of scientific certainty,
that Bracamontes contributed to the DNA sample on the oral
Diego County Superior Court held a multi-week jury trial in
August 2005. At trial, as relevant here, CVPD detectives and
cold case investigators testified about their investigation
into Arroyo's murder. Viesca testified about collecting
evidence and sending it to various laboratories for testing.
Employees of the SDPD and Sheriff's Department crime
laboratories testified about their experience with DNA
testing and the results of their testing efforts in this
prosecution presented testimony from a DNA analyst employed
by Cellmark. He testified that his main responsibility was to
receive and analyze evidence from government agencies
throughout the United States. Cellmark charges fees for the
DNA testing it performs and any resulting testimony. The
analyst understood that the District Attorney's Office
was paying his fees to testify in this case. Substantively,
he described his process for analyzing the biological samples
provided by the SDPD crime laboratory, as well as the
conclusions summarized above.
prosecution also presented testimony from two retained expert
witnesses. The first, Norman Sperber, was a general licensed
dentist, a forensic dentist (or "odontologist"),
and tool mark expert. He received a degree in dentistry in
1954. He began doing forensic dentistry in 1964. Forensic
dentistry covers several major areas, including identifying a
deceased individual by dental records, determining the age of
an individual, and analyzing injuries caused by teeth (e.g.,
"bite mark" evidence). Sperber had testified in
approximately 225 cases, including over 30 non-teeth cases.
For this case, Sperber analyzed the jaw bone and shoulder
blade collected during Arroyo's autopsy. He also looked
at photographs of her injuries, read reports from CVPD
detectives and investigators, and visited the scene of the
crime in May 2004 with Viesca and a cold case investigator.
Sperber was asked to opine whether a gardening tool,
specifically a pick mattock, could have inflicted the
injuries seen on Arroyo's body. He concluded that the
injuries to Arroyo's jaw bone and shoulder blade were
very consistent with a pick mattock, as were divots found in
the cement underneath Arroyo's body.
prosecution's second retained expert was Rod Englert, a
retired police officer and private crime scene
reconstructionist. Englert testified that crime scene
reconstruction is an effort to "determine what happened
in the case" by reviewing case files, viewing the scene
of the crime, and building on the expertise of other
investigators and experts. As a police officer, Englert
participated in over 1, 000 death investigations over 31
years. In the 10 years since his retirement, Englert had
consulted on more than 380 cases. In this case, Englert was
tasked with determining where Arroyo was killed, how she got
to the location where her body was found, and whether her
nonfatal injuries were inflicted at that location or
elsewhere. He reviewed investigation and laboratory reports,
as well as several hundred photographs. He went to the
Sheriff's Department and viewed Arroyo's clothing. He
also went twice to the location where Arroyo's body was
found, at least once with Viesca. These visits also occurred
in May 2004. After assuming certain facts about the condition
of Arroyo's body and the location where it was ...