THE SUPERIOR COURT OF THE STATE, COUNTY OF SAN DIEGO F CALIFORNIA IN THE MATTER OF THE PETITION HC 22238 OF FLORENCIO JOSE DOMINGUEZ, SCD 230596 1060019 Petitioner, ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS, INTRODUCTION Petitioner’s first trial for murder ended in a deadlocked jury. On retrial, the jury found him guilty. The Court of Appeal affirmed and the Supreme Court denied review. The instant petition for writ of habeas corpus contends that DNA evidence introduced at petitioner’s second trial should not have been admitted. Petitioner asserts that significant DNA testimony offered at the second trial was based on DNA mixture interpretation protocols that—though they were valid at the time of the first trial—were thereafter repudiated both by the relevant scientific community and by the San Diego Police Department Crime Laboratory itself, Petitioner further asserts that this evidence prejudicially affected the jury's verdict. For the reasons that follow, this writer concludes the petition is meritorious and grants the requested relief.BACKGROUND ‘On November 13, 2008, fifteen-year-old Moises Lopez! was beaten and then shot to death at Mountain View Park in San Diego. Petitioner, Florencio Dominguez, was charged with the murder, Penal Code,? section 187, and with firearm-related and gang, allegations, (SCD225579.) ‘The matter was tried to a jury, and on November 1, 2010, the jurors announced they were unable to reach a unanimous decision, with nine jurors voting “not guilty” and three voting to convict. The trial judge, Jeffrey Fraser, dismissed the case pursuant to section 1385. ‘The District Attorney re-filed the case and added a count of conspiracy to commit murder. (SCD 230596.) Petitioner's demurrer was denied, and he entered pleas of once in jeopardy and not guilty. On January 10, 2011, he sought review of the denial by a writ filed in the Court of Appeal. (D058906.) After requesting an informal response from the District Attorney, the Court of Appeal denied the writ. ‘The re-trial was conducted before the undersigned judge, Charles Rogers. On April 28, 2011, the jurors found petitioner guilty of first degree murder (§ 187, subd. (a); count 1) and conspiracy to commit murder (§§ 182, subd. (a)(1), 187; count 2). The jury also made true findings that Dominguez or a principal discharged a firearm causing the death of another person (§ 1202.53, subds. (4) & (¢)(1)), and that he committed counts 1 and 2 for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). Dominguez was 1 For clarity, first names are used for people who have the same surname. No disrespect is intended. 2 Statutory references are to the Penal Code unless stated otherwise. 2sentenced to a term of 25 years to life on count 1 plus a consecutive term of 25-years-to- life for the firearm allegation. Sentences on the remaining count and allegations were stayed. ‘The Court of Appeal affirmed the convictions and sentence in an unpublished opinion filed July 5, 2013. (D060019.) ‘The Supreme Court denied review on October 2, 20142 ($212163.) “The prosecution presented DNA evidence at both trials. In part, that evidence was derived from a pair of bloody gloves found in an alley near the park where Lopez was killed. ‘The substance of the testimony was that the DNA profile on the blood found on the outside of the gloves was consistent with that of the victim, Lopez, and that petitioner was a possible minor contributor (one of four possible minor contributors) to the DNA found inside the gloves. The expert testified at both trials to statistical probabilities that a person chosen at random would have the same DNA profile as that which he identified from the mixture matched petitioner's reference sample. These probabilities were far less than those normally associated with DNA evidence. Afier the deadlocked jury and before the second trial, the analyst cut open the gloves and conducted more intensive swabbing of the interior surfaces of the leather than 3 The petition for review also raised the former jeopardy claims previously raised after the charges were re-filed, That issue is now pending in a habeas petition filed in the United States District Court, Dominguez v. Beard, no. 14-cv-2890-BAS (RBB). 4 For example, one of the results was I in 450, rather than frequencies such as one in a sextillion or quintillion, as frequently seen in DNA expert testimony. ahe had done previously. This process yielded stronger DNA evidence against petitioner in the second trial than the evidence that was introduced at the first trial. On August 25, 2015, trial counsel filed a “motion for new trial,” purportedly brought pursuant to section 1181(8). The motion alleged that after petitioner's first trial, the San Diego Police Department Crime Lab changed the guidelines for interpretation of DNA results obtained from mixture samples, and that under the new guidelines the expert could not give the opinions to which he testified. The motion further alleged that the DNA evidence tipped the scales from a deadlocked jury significantly favoring acquittal to one that returned guilty verdicts. By ex parte minute order dated September 28, 2015, the undersigned judicial officer concluded that section 1181(8) did not vest the court with jurisdiction to hear a post-judgment, post-appeal new trial motion, and denied the motion without prejudice. On September 29, 2015, petitioner re-stated his claims in the instant petition for wtit of habeas corpus. (HC22238.) The Criminal Supervising Judge assigned the matter to another judge of this court. Following an informal response and a reply, that judge issued a minute order in which she opined that the matter should be heard by the judicial officer who presided over the trial because that judge would be in a better position to address whether the revised results affected the outcome of the second trial, On May 17, 2016, the Criminal Supervising Judge reassigned the matter to the undersigned judicial officer.Following issuance of an order to show cause and receipt of the District ‘Attorney’s return and petitioner’s traverse, four days of evidentiary hearings were conducted, ‘The matter was argued and supplemental briefing provided. The petition is granted for the reasons that follow. ‘THE DNA EVIDENCE AT THE TWO TRIALS Shawn Montpetit was the DNA expert who testified for the prosecution at both trials and at the evidentiary hearing. (RT 30.) Montpetit is the DNA technical manager of the forensic biology unit of the San Diego Police Department crime lab, a position he has officially held since 2008. (RT 18-19.) Montpetit conducted the forensic analyses on the questioned gloves for both trials. (RT 21, 30.) The right and left gloves were designated items 16 and 17, respectively. (RT 23,) Before the first trial, Montpetit tested swabs from the outside surfaces of the gloves. The victim, Moises, was determined to be the predominant contributor of the DNA found on the outsides of both gloves, items 16-1 and 17-1. (RT 22, 63-64.) Swabs from the inside of the right glove were designated item 16-2, (RT 23.) At the first trial, Montpetit testified that petitioner was a possible minor contributor to the swab from the inside of the right glove, item 16-2. (RT 24.) Montpetit assigned statistical probabilities to his findings regarding the DNA he opined was consistent with petitioner’s DNA. Regarding the left glove, item 17, Montpetit testified at the first trial that the DNA evidence from the inside, item 17-2, was insufficient to reach any conclusions about whether petitioner was a contributor. (RT27.) Regarding the right glove, he opined at the first trial that the probabilities that a person selected at random would have a DNA profile that is consistent with the DNA profile from the inside that he concluded matched petitioner were as follows (RT 25-26): * 1 in 200 for the Caucasian population; * 1 in 570 for the African American population; and © Lin 110 for the Hispanic population, The upshot was that at the first trial, the forensic testimony—based on a protocol that allowed Montpetit to ignore genetic markers that he did not believe were sufficiently shown to be present—linked appellant to the DNA in the right glove to the probabi just quoted, but no such link was established with respect to the left glove. (RT 28.) Before the second trial, Montpetit re-examined items 16 and 17. He did so by cutting the gloves open and making a more thorough swabbing of the inside surfaces of the gloves. (RT 31.) He labeled these swabs items 16-3 (right glove) and 17-3 (left glove.) (RT 31.) He then conducted DNA testing on those two new swabs. ‘The results of the second round of testing yielded stronger evidence that petitioner ‘was included as a minor contributor to the DNA found inside the gloves. Based on the testing of those swabs, Montpetit assigned statistical probabilities to the swabs fiom the inside of the right glove as follows (RT 34-35): ‘© Lin 1,700 in the Caucasian population; © Lin 100,000 in the African American population; and © 1 in 450 in the Hispanic population.With respect to the new swabs from the inside of the left glove, item 17-3, Montpetit testified at the second trial that the analysis did show petitioner as a possible minor contributor, contrary to his testimony at the first trial (which was based on 17-2.) (RT 35.) He testified that the probability of a person chosen at random as having the same DNA profile as the one he identified as petitioner's as follows (RT 35): © 1in 210 in the Caucasian population; * Lin 1,300 in the African American population; and © Lin 65 in the Hispanic population, ‘The net effect is that, based on the second round of testing, the DNA evidence against petitioner became stronger in two significant ways: * At the second trial petitioner was identified as a possible minor contributor to the DNA found on the interior of both gloves rather than only one; © Atthe second trial, the odds that a Hispanic person chosen at random would have a matching profile to the DNA in the right glove got longer, from | in 110 to Lin 450, Montpetit agreed that this finding was “more compelling” and was “four to five times stronger” than the evidence at the first trial, making the possibility that it was somebody other than petitioner who deposited the DNA on the interior of the gloves “more rare." (RT 36.) At the evidentiary hearing, Montpetit testified that in the forensic DNA analysis World, these figures are “low” and “not particularly compelling,” especially when compared to such single-source DNA statistics as “one in 3.2 sextillion.” (RT 198-199.)However, he also acknowledged that a statistical probability of 1 in 100 that a person chosen at random would have the same profile as that attributed to the defendant in the questioned mixture sample is likely to be understood by jurors as meaning a 99% probability that it was the defendant who was the contributor. (RT 220-221.) TECHNIQUES USED FOR MIXTURE INTERPRETATION The interpretation of mixture DNA specimens presents challenges that do not exist with respect to single source DNA analysis. At the evidentiary hearing, Montpetit acknowledged that he did not use all the genetic markers that were detected in the mixture specimens in reaching his conclusions. (RT 27.) Instead, he omitted some of the markers that he did not believe were validly demonstrated to be present even if the testing indicated the possible presence of a marker that would exclude petitioner. (RT 27, 38, 52.) He explained that he would examine any missing DNA markers and then decide whether he could “still scientifically have it justified that [the subject] contributed DNA to the sample.” (RT 40.) This justification concerns a phenomenon known as “allelic drop-out.” (RT 32-34.) Normally, if the DNA markers ata given locus in the mixture sample are not consistent with the markers in the suspect’s known reference sample, the suspect is categorically excluded as a possible contributor. (RT 50.) If, however, the expert concludes that the discrepancy is caused by allelic drop-out, the expert may ignore the inconsistency and conclude that the profile of the donor of the known sample was infact consistent with the questioned mixture, even if the known DNA profile is inconsistent with the mixture sample at one or more loci. (RT 38, 40.) ‘The upshot is that, assuming he believed it was scientifically justified, Montpetit could (and did) ignore inconsistencies between certain markers in the known reference sample of the suspect and the corresponding markers in the questioned item, (RT 40, 50.) Moreover, in comparing the DNA found in a mixture to the known DNA profiles of multiple persons, the analyst is not required to ignore the same markers in making each comparison. Instead, the analyst may choose different DNA markers from the mixture sample to compare to one person’s known DNA profile than the analyst uses to compare to another person’s profile. (RT 46-47.) And, in fact, in petitioner’s trial, the analyst used different markers from the questioned mixture in making comparison to multiple possible contributors. (RT 47.) Montpetit acknowledged that two different analytical approaches exist to assess such evidence. Method one involves first extracting possible DNA profiles from the mixture sample; next, extracting the DNA profile from each of the known reference samples of possible suspects; and third, comparing the profiles thus generated in order to determine if the person was excluded or was a possible contributor, and—if the latter—to generate a statistical analysis to determine the chances of a person chosen at random also fitting that profile of the questioned mixture. (RT 46-47.) This approach is a “clean” one that reduces the possibility of interpretative bias in the analysis.Under this approach, if the suspect’s DNA markers are inconsistent with the markers at one locus or at multiple loci in the questioned mixture, the inquiry ends. That person would be excluded as a possible contributor; and no statistical probability analysis would be conducted. (RT 46-47, 50.) Also, under this apptoach the same DNA profiles from the mixture would be compared with each possible contributor as to whom there is a known reference sample. (RT 50.) Method two uses a different chronology that allows the analyst to postpone detern ing the DNA profiles in the mixture sample until after he or she has looked at a suspect’s known reference sample. Knowing the profile of the known reference sample before looking at the mixture sample allows the analyst to consider ignoring inconsistencies in the DNA profiles where the analyst concludes that the inconsistent markers in the mixture are not, in fact, valid readings. Under this protocol, the first step for the expert to examine the questioned mixture sample and compare it with the profile found in the known sample of each possible contributor. If there are inconsistencies between the markers at any loci, rather than excluding that suspect as a possible donor, the analyst would consider whether — using protocols developed by the laboratory—it could scientifically be “justified that they [sic] contributed DNA to the sample,”$ notwithstanding (he inconsistency between the two samples at one or more loci. (RT 40.) This approach allows the analyst to ignore 5 In the words of Montpetit. 10profile discrepancies if he or she concludes that the “quality of the information at each of the genetic markers” is deficient. (RT 43.) Under this approach, then, the analyst does not even identify the exact DNA profiles to assign to the mixture until affer he or she has examined the known samples of possible contributors. If the analyst sees inconsistent markers between the mixture profile and the profiles of other possible contributors, he or she then considers whether the inconsistency may properly be disregarded in the analysis, If the conclusion is yes, then the analyst disregards one or more markers in the mixture even if they ate inconsistent with the corresponding markers in the known reference sample. (RT 40, 46- 47, 50.) ‘Thus, the analyst may decide simply to ignore the discrepancy rather than exclude the provider of the questioned sample as a possible contributor. EVOLVING MIXTURE INTERPRETATION STANDARDS For several years leading up to petitioner’s second trial in 2011, concern arose witl the forensic scientific community regarding some of the techniques used by DNA laboratories in the interpretation of mixture samples. On Jenuary 14, 2010, the Scientific Working Group for DNA Analysis (“SWGDAM”) promulgated recommendations that the group concluded were necessary to the accuracy of mixture interpretation methods. (RT 99-100.) SWGDAM is a working group overseen by the FBI and composed of forensic scientists from local, state, and federal agencies who promulgate guidelines and standards for forensic DNA testing. (RT 99-100.) SWGDAM’s roster of members lists Montpetitas a member. (Exhibit 17, p. 3.) Following study of the issues, in January, 2010, the group issued its “Interpretation Guidelines for Autosomal STR Typing by Forensic DNA ‘Testing Laboratories.” (Exhibit 15; RT 99-100.) Among the concerns were that existing interpretation protocols created a situation that is too subjective and that raises the possibility of interpretation bias on the part of the analyst. Two of the group’s concerns related to procedures used by Montpetit in his analysis of petitioner’s DNA. ‘The first addresses the propriety of examining the DNA profiles from the known reference samples before determining the DNA profiles in the mixture (method two, above.) The second concern addresses the related practice of permitting the analyst to disregard apparent inconsistencies between the DNA profiles found in the mixture from those found in a suspect’s known reference sample ( determine inclusion or exclusion and to determine the weight of the data, Addressing the first issue, the newly promulgated (2s of January, 2010) SWGDAM protocols included guideline 3.6.1. This guideline provides: “The laboratory must establish guidelines to ensure that, to the extent possible, DNA typing results from e identiary samples are interpreted before comparison with any known samples other than those of assumed contributors.” (Exhibit 15, p. 11; RT 101.) Guideline 3.6.1, then, states that agencies should adopt guidelines that would preclude analysts from using “method two,” above, the method used by Montpetit in analyzing the evidence in petitioner’s case. 12‘The concern is that not making the decision which loci are, to use the vernacular, “good enough” to be part of the profiles present in the mixture until after looking at the known reference sample creates a real possibility of bias in making the determination, (RT 43-44.) When the analyst knows that a reference sample belongs to a person whom, the detectives regard as a suspect, there exists a natural tendency for that knowledge to color the interpretation of data in the reference sample that do not clearly establish the presence or absence of a marker at a given locus. Montpetit acknowledged this possibility but believed the lab’s protocols for doing so were sufficient to eliminate this concern, (RT 43-44.) (As discussed elsewhere, method two also allows the analyst to use different DNA profiles from the same mixture in making the comparisons with different known reference samples.) Suzanna Ryan testified at the evidentiary hearings as a defense expert, (RT 251.) Ryan is a forensic DNA consultant who, for the preceding eight years, has maintained a private practice consulting with counsel on forensic DNA issues. She holds a Bachelor of Science degree in biology with a minor in chemistry and a Master of Science degree of Forensic Science. She worked for six years for police department crime labs in Florida and North Carolina and has testified as an expert in approximately 100 criminal matters. (RT 250-256.) In addition to her testimony, Ryan provided a 13-page declaration. Ryan's declaration is exhibit 17 to the evidentiary hearing, In it, she explained that the purpose of guideline 3.6.1 is to “help reduce any potential unintentional bias from ‘occurring during the interpretation of the mixed DNA profile.” (Exhibit 17, p. 5.) She 13testified that the practice of “determin[ing] which loci are going to be used for inclusions and statistical calculations after you look at a suspect profile as opposed to before” is not now a generally accepted procedure in the DNA forensic scientific community due to the possibility of unintentional bias that could result in including “somebody that shouldn’t be included.” (RT 327-328.) Ryan cited a 2011 study by LE, Dror and G. Hampikian entitled “Subjectivity and Bias in Forensic DNA Mixture Interpretation,” published in the journal, Science and Justice, in 2011 that expressed similar concerns of subjectivity in the analysis when “contextual information ... was introduced” into the determination, (Ibid.) Another consequence of “method two” is that the analyst can use different DNA profiles from the mixture sample in making comparisons to different known reference samples of possible contributors. (RT 46-47, 103.) In other words, the analyst may conclude that allelic drop-out has occurred at one or more markers in comparing the mixture to the profile of one possible contributor, and may also conclude that drop-out has occurred at different markers in comparing the mixture of another possible contributor. (RT 47.) In fact, Montpetit did just that in petitioner’s case. (RT 38, 46-47, 50-51.) This vice of method two was repudiated by another of the SWGDAM recommendations, guideline 4.6.3 ‘Asked during the evidentiary hearing about a paper entitled “Inclusion Probabilities and Dropout,” by Drs. James Curran and John Buckleton, published in the September, 2010, in the Journal of Forensic Sciences, Montpetit agreed that the Journal was recognized in the field as a reputable publication. (RT 52.) The article (exhibit 30) 14expresses the authors’ criticism of “an unpublished practice involving calculations of an inclusion probability only for those loci at which the profile of interest, hereafter the suspect, is fully included among the alleles present in the crime sample -- crime scene sample and to omit those loci at which the suspect has alleles that are not fully represented among the alleles in the mixture.” (RT 54.) Montpetit agreed that the Journal was one of the primary publications relied upon in the field of forensic DNA analysis and that the authors were recognized experts, (RT 52.) He also agreed that the article addressed the practice that he employed, namely, “eliminating loci from the calculations.” (RT 55.) ‘The authors created 1000 hypothetical two-person mixture samples to test this possibility, They concluded that where the method used by Montpetit (method two, above) was employed, “[i]n 87% of simulated cases, evidence was produced that had some tendency to inculpate fa] random third profile that was in fact not in any way a contributor to the mixture.” (Exhibit 30, p. 1172; RT 55.) The authors opined that, while in some of the cases, the allelic discrepancies “may have been correctly disregarded,” “the risk of producing apparently strong evidence against an innocent suspect by this approach was not negligible.” (Exhibit 30, p. 1172.) The authors concluded that “the policy of calculating an inclusion statistic for mixed DNA profiles where dropout is possible by a policy of ignoring loci where the suspect is not fully represented cannot be supported.” (Exhibit 30, p. 1172; RT 56 [italics added].) 15Montpetit acknowledged the article and its conclusions, but maintained that it was misleading and “hastily written” (RT 60; see also, 140, 143) because it did not attempt to assess the reasons for concluding that drop-out had occurred, and the practice is proper i done correctly. (RT $7-59.) Acknowledging that the practice could result in inflating the inclusion statistics, Montpetit maintained that his procedures for determining whether allelic drop-out had occurred served to “mitigate” that possibility. (RT 71-72, 146.) Montpetit opined that ignoring some of the apparent inconsistencies between the mixture and petitioner's DNA profile was “scientifically justified.” (RT 73, 141.) Acknowledging that different analysts might reach different conclusions on whether drop-out oc red, Montpetit maintained that good laboratory procedures can minimize that concern, (RT 76.) Montpetit was also examined at the evidentiary hearings regarding another change promulgated in the SWGDAM guidelines, this one addressing the related issue of the use of alleles as to which the peaks that identify the possible presence of an allele are below the “stochastic threshold.” The revised guideline repudiates the use of loci where the detected alleles do not reach that threshold. The stochastic threshold refers to the peak height value “above which it is reasonable to assume that, at a given locus, allelic dropout of a sister allele has not occurred.” (Exhibit 15, p. 28.) Readings that fall below the stochastic threshold are said to be in the “stochastic range.” Montpetit explained that this term refers to the “range in our analytical spectrum” in which the peaks on the test results would indicate the possible 16presence of an allele, but the reading is “below the stochastic threshold.” (RT 64.) Where this is the case, “we don’t have confidence that any peak it pairs with has been detected.” (RT 64-65.) However, the former SDPD laboratory protocols allowed analysts to conclude otherwise, if they believed it was scientifically justified, and Montpetit did so in analyzing the evidence in petitioner’s case. (RT 105-106, 206.) ‘The SWGDAM guidelines, however, reject the practice. Guideline 4.6.3 provides: “When using CPE or CPI with no assumption of number of contributors to calculate the probability that a randomly selected person would be excluded or included as a contributor to the mixture, /oci with alleles below the stochastic threshold may not be used for statistical purposes to support a conclusion. In these instances, the potential for allelic dropout raises the pos 'y of contributors having genotypes not encompassed by the interpreted alleles.” (Exhibit 15, p. 14; RT 104 [italics added].) Montpetit acknowledged that a “s reading” of this guideline is that where the test results show possible alleles where the test results (peaks) are in the stochastic range (and thus below the stochastic threshold), the locus or loci represented by those alleles may not be used for calculating statistical probabilities. (RT 105.) Montpetit further admitted that in conducting his analysis of the swabs taken from the insides of the gloves both before and after cutting them open (items 16-2, 17-2, 16-3, and 17-3), he did in fact use loci where the alleles were in the stochastic range in deriving the statistical probabilities to which he testified. (RT 105. 209-210.) Doing so was permissible under the existing SDPD Laboratory protocols when he conducted his 17analyses and testified at the first trial. (RT 106.) It is not permissible, however, under guideline 4.6.3 and under the SDPD Laboratory policies at the time of the second trial. (RT 209.) On April 1, 2011, days before he testified at petitioner's second trial, Montpetit— as the technical manager of the forensic biology unit of the SDPD C1 e Lab—changed the lab’s procedures to conform with the SWGDAM guidelines. (RT 106, 108--110, 111- 112, 208; Exhibit 45 [SDPD Guidelines, revised effective 4/1/I1].) In so doing, the SDPD lab specifically adopted the two quoted SWGDAM guidelines, 3.6.1 and 4.6.3. (RT 109.) Other crime labs around the state were also revising theit mixture interpretation protocols in the wake of the SWGDAM publication. (RT 106.) These revisions remained the controlling SDPD protocols until October, 2015, when further revisions were made. (RT 125.) It is not disputable that Montpetit’s testimony at the second trial was based on analyses that were then invalid under his own agency's new protocols. Asked if he was aware that when he gave his testimony, the new guidelines would compel a different result than those he was testifying to, Montpetit said that he was “not too sure” that he ever thought about the matter. (RT 112.) As shown post, application of the new guidelines would eliminate all of the inculpatory DNA evidence from the gloves that Montpetit provided at the second trial. Moreover, at no time during his direct and cross-exan nation at the second trial did Montpetit disclose that the changes in policy had occurred, (RT 110-111, 112.) 18IMPACT OF THE NEW PROTOCOLS ON THE DNA FINDINGS Well after the second trial, petitioner’s counsel learned of the change in the mixture interpretation guidelines and discussed it with Montpetit. (RT 115.) The trial prosecutor, Kristian Trocha, was present, (RT 115.) Asked if his testimony would have been different had he analyzed the evidence under the revised procedures, Montpetit, conceded that it would have been. (RT 115-116, 210.) Thereafter, on May 8, 2015, he prepared Supplemental Report 8 (exhibit 9) that stated the results of re-analyzing the evidence under the new guidelines. (RT 115.) In that report, Montpetit addressed the opinions he would give for item 16-3, the swab from the interior of the right glove after cutting the glove open. He opined that under the new guidelines, “[d]Juc to the low level and unknown number of contributors no statistical calculations or comparisons can be made regarding potential minor DNA contributors.” (Exhibit 9; RT 116.) He rendered the same conclusion for the swab taken from the left glove, item 17-3. (Exhibit 9; RT 116-118.) Significantly, in a memorandum dated May 4, 2011, to Sophia Roach, then the Assistant Chief of the Appellate Division of the District Attorney's Office, Montpetit advised that the changes in the guidelines would likely lead to precisely that result: “The main changes concern how comparisons are made to the evidence and which markers can be used for statistics in samples with low level data when no assumptions can be made. ‘The effect of these changes will be to alter how minor DNA contributors are interpreted and which DNA markers will be used for statistical calculations on inclusions. 11 is likely 19the new SDPD guidelines will result in more samples that cannot be interpreted due to their complexity and/or low level.” (Exhibit 14, p. 3; RT 109 [italics added].) Consistent with this statement, it is clear that, had Montpetit used the revised guidelines his testimony would have provided far weaker evidence for the prosecution: © His trial testimony was that petitioner was a possible minor contributor to the DNA inside both gloves. * Applying the revised guidelines, his testimony would have been it was impossible to determine if petitioner was even a minor contributor to the DNA inside either glove. © His trial testimony included the opinion that, for the left glove, the chances ofa person chosen at random also matching the profile he attributed to petitioner were | in 1, 700 for the Caucasian population, 1 in 100,000 thousand for the African American population, and | in 450 for the Hispanic population. «Applying the revised guidelines, his testimony would have been that the Jow levels of DNA and the unknown number of contributors made it impossible to offer a statistical probability of any kind. Had the testimony at petitioner’s second trial been based on analyses conducted pursuant to the SWGDAM guidelines petitioner would not have been included even as a minor contributor to any of the DNA swabs from inside of the gloves. Montpetit could 20not and would not have opined that petitioner was a possible minor contributor. And, a fortiori, none of the statistics would have been presented. In sum, there would have been no inculpatory DNA evidence presented from the gloves had Montpetit’s testimony been based on the SWGDAM recommendations, which were the controlling SDPD interpretation protocols at the time of the second trial. Montpetit signed a declaration to this effect (exhibit 11.) (RT 119-120, 125.) In his declaration (exhibit 11), Montpetit affirmed that the SDPD Crime Lab guidelines were changed in response to the SWGDAM recommendations; that the change oceurred “in April 2011”; that under the new guidelines “many samples cannot be interpreted due to their complexity and/or low level”; that his testimony would be different than it was at the second (rial; and that “[s]pecifically, I would testify that due to the low level and unknown number of contributors to each sample (a) No comparisons can be made regarding potential minor DNA contributors and (b) No statistical calculations can be made regarding potential minor DNA contributors." (Exhibit 11, p. 3,; sec also RT 116-117.) In testimony at the evidentiary hearing, Montpetit confirmed that this declaration was “accurate.” (RT 125.) MW wl Wy uw Ww 21| | | ANALYSIS The Failure to Reveal that the DNA Evidence Provided at the Second Trial was Based on Procedures that the Scientific Community and the Crime Lab Repudiated Violates the Brady Doctrine. A. Background. As filed, the petition alleged that the change in the crime lab’s mixture interpretation guidelines caused Montpetit’s testimony at the second trial to be “false evidence” and “new evidence” within the meaning of section 1473. Following the revelation during the evidentiary hearing that the guidelines had changed before petitioner’s trial and Montpetit’s admissions that he did not disclose this fact during his testimony or to the prosecutor or trial counsel (RT 110-114, 214-215), petitioner's counsel requested leave to expand the scope of the hearing to include addressing whether the evidence showed a possible violation of the government's constitutional duty to disclose to the defense material exculpatory evidence. (Brady v. Maryland (1963) 373 U.S. 83.) (RT 224-230.) The District Attorney objected unless petitioner filed “proper noticed pleadings with a request for leave to amend the pleading.” (RT 225.) Stating that both parties would be given an opportunity to explore the issue both factually and legally, this writer granted petitioner’s request. (RT 228-230.) B. The Non-disclosure Violated the Brady Doctrine. “[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” (Brady v. &Maryland (1963) 373 U.S. 83, 87.) “The Brady rule is based on the requirement of due process. Its purpose is not to displace the adversary system as the primary means by which truth is uncovered, but to ensure that a miscarriage of justice does not occur.” (United States v. Bagley (1985) 473 U.S. 667, 675.) It makes no difference that the evidence was in the possession of the investigating police ageney but the prosecutor did not have it. (Kyles v. Whitley (1995) 514 U.S. 419, 437-438; see In re Brown (1998) 17 Cal.4th 873, 879 [the disclosure obligation is with the “prosecution team,” which includes crime lab personnel].) If the exculpatory evidence is in the hands of the police, nondisclosure is a due process violation even though the prosecutor may be unaware of the evidence. (Ibid.) Brady requires that the evidence be both favorable and material. (Brady, supra, 373 U.S. at p. 87; In re Sassounian (1998) 9 Cal.Ath 535, 543.) “Evidence is ‘favorable’ if it... helps the defendant or hurts the prosecution, as by impeaching one of the prosecution's witnesses.” (Sassounian, supra, at p. $44.) Evidence is material “if there is a reasonable probability that, had it been disclosed to the defense, the result ... would have been different. [Citation.] Such a probability exists when the undisclosed evidence reasonably could be taken to put the whole case in such a different light as to undermine confidence in the verdict. [Citations.]” (In re Miranda (2008) 43 Cal.4th $41, 575, quoting Kyles, supra, 514 U.S. at pp. 433-434.) Materiality docs not, however, require a showing that the non-disclosed material would have resulted in an acquittal, “Although the constitutional duty is triggered by the 23potential impact of favorable but undisclosed evidence, a showing of materiality does not require demonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant's acquittal ...” (Kyles, supra, 514 U.S. at p. 434.) Instead, “the question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A ‘reasonable probability’ of a different result is accordingly shown when the government's evidentiary suppression ‘undermines confidence in the outcome of the trial.’” (Ibid) ‘The fact that Montpetit’s testimony was based on an analysis that was conducted using methods that were thereafter rejected by both the relevant scientific community and the SDPD Crime Lab was “favorable” evidence that should have been disclosed to petitioner, In his trial testimony on April 5 and 6, 2013, Montpetit—as a highly qui forensic scientist, presenting “CSI-like” expert testimony—testified to opinions and conclusions that, when he gave them, were invalid under the procedures then in place, ‘Those opinions were invalid because, had the analysis been conducted in accordance with guidelines 3.6.1 and 4.6.3, Montpetit could not and would not have opined that petitioner was a minor or any kind of contributor to any of the DNA on the inside of the gloves. And, he could not have testified to the statist | probabilities that a person chosen at random might have been the donor of that DNA to a probability of 1 in 450 for the Hispanic population, a statistic that, properly or not, lay jurors are likely to conclude means a 99,998 per cent chance that the DNA came from appellant. 24As petitioner’s counsel stated during argument, had he been provided with this, information, he would have moved pursuant to Evidence Code, section 402, to address the preliminary fact whether the proffered results were admissible. Ryan testified that, with the adoption of guideline 3.6.1, the “method two” analysis no longer is accepted by the scientific forensic community. (RT 327-328.) The court finds that assertion to be accurate given the SWGDAM guidelines, their adoption by most crime labs, and the fact that the SDPD Crime Lab, under the supervision of Monpetit, adopted them and applied them until Octob« 015 ‘This writer is satisfied that had the change in interpretation guidelines been provided to defense counsel, it is virtually certain that no trial court would have allowed the testimony that Montpetit gave at the second trial, Under the protocols in place when he testified at the second trial, Montpetit could have given no inculpatory DNA evidence based on the bloody gloves. In briefing filed after the hearings, the District Attomey does not dispute that the evidence was in possession of the prosecution team, that it was favorable, and that it was not disclosed; however, she maintains the evidence was not material within the meaning of Brady. (Respondent's Points and Authorities Relating to Materiality and Prejudice of Pre-Trial Discovery Violation, p. 2.) She argues that the other evidence of guilt was “overwhelming” and that Montpetit’s testimony regarding the DNA evidence on the gloves was “insignificant to the outcome of the retrial.” (Id. at pp. 5-16.) vitC. The evidence was Material. Itis appropriate to begin the prejudice analysis with the gloves themselves and their role in the prosecution’s case. The unpublished opinion of the Court of Appeal recites that the police “found the pair of bloody gloves in the yard of a residence near the park.” (Slip Op., D060019 [unpublished], p. 6.) Two eyewitnesses, Magdalena Lopez and her daughter, Jessica Lopez saw a fight that involved “a man in dark clothing” and two other men beating the victim, Moises Lopez, in the park. As the Court of Appeal described the setting: Magdalena Lopez and her daughter Jessica were driving home sometime after 8:00 p.m. that night when Magdalena saw a group of young men gathered in the park. Magdalena's home faced the park. Magdalena testified a little while later she went outside after she heard screams coming from the park. She next heard and saw two people arguing in the park. The argument turned physical. Magdalena saw a man in dark clothing repeatedly strike a "young man" laying [sic] on the ground. ‘The man in dark clothing left and walked up a hill. Magdalena next saw two other men approach the victim, and they too began beating him. After a few minutes, the men picked up the victim and dragged him up the hill where the man in dark clothing waited. ‘The three men huddled around the victim. Shortly thereafter, the two men moved away, leaving the man in the dark clothing closest to the victim, Magdalena testified initially she thought the three men were going to leave the victim alone. However, she saw the man in dark clothing "raisef] his hand [and then] lower[] it... like he was pointing" at the victim Magdalena then thought, "Oh, my God" as she heard a gunshot and saw "fire" coming from the gun as it was discharged. Magdalena heard at least two more gunshots as she ran inside the house. Jessica testified around 9:00 p.m. on the night of the shooting she heard screaming coming from the park. Jessica looked out the kitchen window and saw a man in the park in dark clothing hitting another man, Jessica 26estimated the beating lasted about two or three minutes. When interviewed by police, Jessica reported hearing the man in dark clothing say to the victim in English, "I'm going to kill you." Jessica also saw two other men beat the victim. A few minutes later, she saw the two men drag the victim up ahill. Jessica saw the man in dark clothes standing near the victim and gesture as if he was pointing a gun at the victim. Next, she testified she heard five gunshots. Jessica saw some of the shots being fired and heard the others as she was calling police a second time, (Slip Op., D060019 [unpublished], pp. 3-4.) In the context of this case, the probative value of the DNA evidence from the gloves is high. As the prosecutor pointed out in argument, the evidence established that Moises” face was bloody from the beating that he sustained. (18 RT 2674 [prosecution argument in second trial].) ‘The fact that Moises was the predominant contributor of the DNA on the outside of the gloves creates a strong (approaching irrefutable) inference that these were the gloves used in the beating, Montpetit closed the circle when he testified (a) that petitioner was a contributor to the DNA mixture inside the gloves and (b) that the statistical probability that another person of Hispanic origin would have the same DNA profile as that which Montpetit attributed to petitioner from the mixture was 1 in 450, a figure likely to be understood by jurors as creating a .002 probability (1 divided by 450) that anybody other than petitioner was the source of that DNA. While it is of course appropriate for counsel to argue to the jurors the evidence that supports his theory, the degree to which the prosecutor relied on this evidence is an appropriate factor to consider in assessing prejudice. “A prosecutor's reference to evidence that should not have been presented o the jury increases the potential for prejudice flowing from the error.” (People v. Diaz (2014) 227 Cal.App.4th 362, 384.) 27Here, the prosecutor argued: “Which brings us to the gloves. The gloves are found in the house two over from the park ... We know there is a mixture of a least four people on these gloves from the DNA on the inside. ‘The outside is all Moises Lopez from the beating, from the blood.” (18 RT 2674-2675.) The prosecutor further cited Montpetit’s testimony to bolster the strength of that evidence. Referring to the DNA mixture on the inside of the gloves, he argued: “The inside is also a major contributor from Moises Lopez, [Petitioner] is also one of the minor contributors. I believe it’s on the right glove he’s 16 of 16 of DNA markers and the left glove is 14 of 16, and the reason he is 14 of 16 is because on two of those markers he is there for one of the allele numbers but not for the other. (18 RT 2675.) ‘The prosecutor thus urged Montpetit’s testimony in two important ways. First, he used it to link petitioner to the actual beating and thus the shooting—whether as the actual shooter or as a conspirator, Second, he used it to reinforce the weight that jurors should give to the evidence. The prosecutor’s reliance on this evidence increases its prejudicial effect. ‘The prosecutor returned to this theme later in his argument: “That's what [petitioner] did. It’s not what Tomas Lopez or some fictional character from this charade. It’s what the DNA tells you. The glove-wearing [petitioner] bashed in Moises Lopez's face, and then he ran, drop, ng the gloves a block away.” (19 RT 2697,) The prosecutor’s argument was powerful and nothing about it is inappropriate, except that it now appears that the evidentiary basis for it was invalid, As the Supreme Court long ago 28observed, “[tJhere is no reason why we should treat this evidence as any Jess ‘crucial’ than the prosecutor-and so presumably the jury-treated it.” (People v. Cruz (1964) 61 Cal.2d 861, 868.) Respondent correctly points out that at the second trial, the prosecutor presented testimony of witness who were not called at the first trial, ¢., Josue Gutierrez, Glennys Berumen, and Carol Martinez. However, this fact does not mean that three additional witnesses individually provided evidence that linked petitioner to the killing, Instead, all three witnesses were inter-related: The prosecution called Josue, who was believed to have made statements to the effet that he saw petitioner beat up and shoot Moises. (Slip Op., D060019. p. 8.) Josue, when called, categorically denied that this was true or that he made such statements, Beruman and Martinez. were then called to testify to Josue’s alleged prior statements. (/a. at pp. 9, 35.) If accepted by the jurors, those statements could be used as substantive evidence as well as impeachment, (California v. Green (1970) 399 U.S. 149; Evid. Code, § 1235.) Thus, though petitioner is correct that these three persons did not testify at the first trial, the inculpatory evidence adduced by the new testimony ultimately came from one witness, not all three. This writer does not believe that this new evidence is so compelling as to prechide the likelihood that one or more jurors was influenced by the improperly admitted DNA evidence. (People v. Soojian (2010) 190 Cal. App.4th 491, 521 [accused “has met his burden of establishing that a different result is probable on retrial of the case 29if he has established that it is probable that at least one juror would have voted to find him not guilty ....”].) Respondent further points out that petitioner's DNA was also found on a beer bottle close by the scene of the beating. This evidence did not suffer from the infirmit of the DNA analysis of the gloves. It formed the basis of the prosecutor's claim in argument that petitioner “was by Moises Lopez. when he was murdered, sipping a half full, ice-cold Budweiser that he gently placed down ... and went about his business bashing Moises Lopez face in, and then stepping away with his two homies, discussing what they should do with him, and walking over and finishing him off with five bullets. ‘That's what [petitioner] did. ... The glove-wearing [petitioner] bashed in Moises Lopez’s face, and then he ran, dropping the gloves a block away.” (18 RT 2696-2697.) Respondent is correct that this evidence creates a strong inference that petitioner ‘was in the park near the scene of the killing that night. However, it is not sufficient, by itself o1 conjunction with the other properly admitted evidence, to establish petitioner's criminal liability, whether as a perpetrator, an aider and abettor, ot a co-conspirator. “Mere presence at the scene of a crime is not sufficient to constitute aiding and abetting, nor is the failure to take action to prevent a crime, although these are factors the jury may consider in assessing a defendants criminal responsibility. [Citation.] Likewise, knowledge of another's criminal purpose is not sufficient for aiding and abetting; the defendant must also share that purpose or intend to commit, encourage, ot facilitate the commission of the crime.” (People v. Lara (2017) 9 Cal.App.Sth 296, 322, and cases 30cited.) It was the DNA on the gloves that confirmed appellant's knowing involvement in the crime, ‘Too, while the weight to which the fact of prior hung juries is to be accorded is debatable (People v. Richards (2016) 63 Cal.4th 291, 315 [cone. opn, of Corrigan, J.], 319-320 [cone. opn. of Liu, J.)), it elearly has some relevance to the question of prejudice. Here, in the first trial, the jurors deadlocked with nine jurors voting to acquit and three jurors voting to convict. The DNA evidence from the gloves that was adduced at the first trial—which was not improper because the SDPD guidelines then in place approved the testing procedures Montpetit employed—was stronger than what the glove DNA evidence should have been at the second trial, which is none. In other respects, the trials, were similar but for the testimony derived pursuant to Evidence Code, section 1235, with respect to Josue’s alleged statements. “The fact that the jury was unable to reach a verdict at the conclusion of the first trial provides strong reason to believe the significant errors that occurred in the second trial were prejudicial.” (Kyles, supra, 514 U.S. at p. 455 [cone. opn. of Stevens, J., quoted in In re Richards, supra, 63 Cal.Ath 291, 320 [eone. opn, of Liu, J.].) Moreover, in the second trial the jurors deliberated for more than three and a half full days, and sent out three notes with questions, before reaching verdicts. The length of deliberations and the jury notes show that this was a close case, even with the DNA evidence that, in the prosecutor’s words, identified petitioner as the “glove wearing” 31assailant who “bashed in Moises Lopez's face, and then he ran, dropping the gloves a block away.” (18 RT 2696-2697.) ‘This writer is satisfied that the trial prosecutor was not aware that the mixture interpretation guidelines had changed, either within the forensic community or within the SDPD Crime Lab, when he presented Montpetit’s evidence af the second trial. Even if the May 4, 2011, memorandum from Montpetit to the District Atorney's Office (exhibit 14), provided constructive notice to all the prosecutors in that office of the change, that memorandum was issued after Montpetit testified. Too, Montpetit testified that he did not inform either the prosecutor or defense counsel of the changes. (RT 113.) However, it is undisputed the “prosecution team” includes crime lab personnel. (mre Brown, supra, 17 Cal.Ath at p. 879; Kyles, supra, 514 U.S. at pp. 437-438.) This fact means that lack of actual knowledge by the prosecutor of the exculpatory evidence does not preclude application of the Brady doctrine. ‘Too, accepting that Montpetit believed that he was permitted—scientifically and otherwise—to simply recite his prior findings even though the procedures he used to ‘obtain them were no longer valid, that fact does not avoid Brady because bad faith is not required and good faith is irrelevant. (Brady, supra, 373 U.S. at p. 87.) The Brady rule is designed not for “punishment of society for misdeeds of a prosecutor but avoidance of an unfair trial to the accused.” (Jbid.) No less is true when the failure to disclose is by another member of the prosecution team. 32Respondent also argues that the record contains substantial evidence that, if accepted by the jurors, would be sufficient to support the verdict. Respondent conflates the concept of prejudice with that of sufficiency-of-the-evidence review. The two are not the same. “(I]t is not a sufficiency of evidence test. A defendant need not demonstrate that after discounting the inculpatory evidence in light of the undisclosed evidence, there would not have been enough left to convict.” (In re Brown, supra, 17 Cal.4th at pp. 886- 887, quoting Kyles, supra, 514 U.S. at pp. 434-435.) The presence of sufficient evidence to support the conviction, then, is not the controlling issue. Instead, the question goes to the right to a fair trial, namely, whether the undisclosed material “could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” (Kyles, supra, 514 U.S. at pp. 434-435.) This trial would have been a different case without the DNA evidence linking petitioner to the bloody gloves—evidence that was admitted (though in a weaker form) in the first trial, In this writer’s opinion, there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. In view of the foregoing analysis, it is unnecessary to address petitioner’s claims under section 1473. Its similarly unnecessary to address respondent’s contentions that further testing of the gloves, conducted in 2015 under the modification of mixture interpretation standards adopted by the SDPD lab that year, showed inculpatory results that were stronger than the evidence that was admitted at the trial. 33‘The reasons for the latter conclusion are two. First, as noted ante, had Montpetit disclosed the changes before his testimony in the second trial, itis virtually certain that no DNA evidence linking petitioner (o the gloves would have been admitted at the trial ‘This fact, in turn, would have meant that the DNA evidence linking petitioner to the beating would have been significantly weaker even than it was in the first trial, in which the jurors deadlocked three-to-one in favor of acquittal. It is doubtful that the prior- inconsistent-statement evidence adduced in the second trial from Josue Gutierrez, Glennys Berumen, and Carol Martinez would have overcome the lack of “CSI evidence” that put petitioner’s hands inside the gloves that administered the beating. There is a reasonable probability that the result at the second trial would have been an acquittal or another deadlocked jury. ‘The second reason is more esoteric but equally compelling. Having found that the glove DNA evidence was improperly admitted due to the nondisclosure of the changes in the mixture interpretation guidelines and that the error likely affected the outcome of the trial, it would not be proper for the court to resolve the issue by saying, in effect, that now—years later—there is another test that would provide even stronger evidence. Petitioner is entitled under the Fifth, Sixth, and Fourteenth Amendments to have the evidence on which his conviction is based presented to and considered by a jury. It is no substitute that, after the fact, a judge might conclude that the stronger evidence derived under the latest guidelines would be admissible and that the jurors would therefore have returned a guilty verdict anyway. “As Chief Justice Traynor explained, “It 34is one thing for an appellate court to determine that a verdict was or was not affected by error. It is quite another for an appellate court to become in effect a second jury to determine whether the defendant is guilty.’ ” (People v, Jackson (2014) 58 Cal.4th 724, 790 [cone. and diss. opn. by Liu, J.].) The same principle applies to this writer’s role in this proceeding. CONCLUSION ‘This writer expresses no opinion as to petitioner’s guilt or innocence. Such is not the purpose of a habeas proceeding. Instead, the focus is on whether the trial was a ible vehicle for the determination of guilt or innocence. For the reasons stated, it was not. Nor does this writer minimize the seriousness of the case and of his decision. In an opinion affirming the grant of a habeas petition and the grant of a new trial on IAC grounds, Ninth Circuit Judge Stephen Trott wrote: “We are mindful from experience how difficult it is to resolve in court the mayhem caused in our cities by gangs. Also, we do not overlook [petitioner’s] prior record for violence, a record that explains the severity of his sentence. Nevertheless, gang members, like everyone else, are entitled under our Constitution to effective representation of counsel.” (Griffin v. Harrington (9th Cir. 2013) 727 F.3d 940, 949.) Equally, every defendant—ineluding gang members—is entitled to a trial in which the scales were not weighted on one side by invalid scientific evidence. 35For the foregoing reasons, the petition is granted. ‘The judgment is vacated and, absent appellate review, either respondent may re-try petitioner within the statutory time limits or petitioner is to be released, Copies of this order are to be served upon petitioner, through his counsel, Mr. Matthew Speredelozzi, and to respondent, through its counsel, the San Diego District Attorney, attn, Christine Bannon. Dated: October 6, 2017 Charles G. Rogers Judge, San Diego Styerior Court 36