PEOPLE v.CUA





Filed 1/3/11




CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, v. JOSEPH CUA Defendant and Appellant.

A123756 (San Mateo County Super. Ct. No. SC064228)

Story Continued From Part I………….

Our Supreme Court has recently recognized that a genetic profile can be sufficiently unique to be a constitutionally sufficient description of a suspect in support of an arrest warrant. (People v. Robinson (2010) 47 Cal.4th 1104 (Robinson).) The court agreed that “ ‘a DNA profile is arguably the most discrete, exclusive means of personal identification possible[]’ . . . [and that] ‘ “[a] genetic code describes a person with far greater precision than a physical description or a name.” [Citation.]’ [Citation.]” (Id. at p. 1134.) In Robinson, there was a DNA match at 13 loci, and the prosecution expert testified that there had been no reported cases of two people who are not identical twins matching at all 13 loci. (Id. at p. 1115.) The court further observed that “[w]hile a DNA profile match does not guarantee that the individual matched is guilty of the charged offense, studies have shown that the chance a positive match does not belong to the same person may be less than one in 500 million.” (Id. at p. 1142, citing inter alia Moyer & Anway, Biotechnology and the Bar: A Response to the Growing Divide Between Science and the Legal Environment (2007) 22 Berkeley Tech L.J. 671, 684, fn. 64.) The United States Supreme Court has said that “[m]odern DNA testing can provide powerful new evidence unlike anything known before. Since its first use in criminal investigations in the mid-1980s, there have been several major advances in DNA technology, culminating in STR technology. It is now often possible to determine whether a biological tissue matches a suspect with near certainty.” (DA’s Office v. Osborne, supra, 129 S. Ct. at p. 2316.) Our growing experience with use of DNA databases containing genetic samples from known offenders to provide “cold hit” matches of crime scene samples with DNA profiles of criminal suspects belies Cua’s argument, unsupported by any expert opinion, that criminalist Ten’s testimony was “scientifically invalid.” (See e.g., Nelson, supra, 43 Cal.4th 1242.)
The cases cited by Cua do not support his position. In Nelson the criminalist, as here, compared 15 loci and found a match at each one. (Nelson, supra, 43 Cal.4th at p. 1259.) “The prosecution presented evidence that the odds that a random person unrelated to defendant from the population group that produced odds most favorable to him could have fit the profile of some of the crime scene evidence [were] one in 930 sextillion (93 followed by 22 zeros).” (Id. at p. 1247.) Because of these “astronomical odds” and the fact that world’s total population is only about 7 billion, the court recognized that “this evidence is tantamount to saying that defendant left the evidence at the crime scene.” (Id. at p. 1247, 1259.) As the 1996 NRC Report noted, the difference between a vanishingly small probability and an opinion of uniqueness is “slight.” (1996 NRC Rep., supra, p. 195.)
Cua’s brief relies heavily on Brown v. Farwell (9th Cir. 2008) 525 F.3d 787, a federal habeas corpus case reversing a state court conviction for sexual assault. The Ninth Circuit panel found, with one judge dissenting, due process violations in admission of “unreliable” testimony of a criminalist of a DNA match between the defendant and semen from the victim’s underwear. (Id. at p. 795–796.) Among other things, the court found error in permitting the criminalist to testify that there was a “99.99967 percent chance” that the defendant was the assailant. (Ibid.) The court found that this testimony mischaracterized the random match probability. The court also questioned the criminalist’s conclusions regarding the significance of genetic similarities with the defendant’s siblings, finding that the admission of “unreliable and misleading testimony” violated the defendant’s due process rights. (Id. at pp. 796–797.)
Cua acknowledged in his opening brief that the Supreme Court had granted certiorari in this case (McDaniel v. Brown (2009) 557 U.S.___ [129 S.Ct. 1038]), but contended that the Ninth Circuit discussion of the “scientific error” was still good law. In his reply brief, Cua also acknowledged that the Supreme Court thereafter reversed the Ninth Circuit in McDaniel v. Brown (2010) 558 U.S.___ [130 S.Ct. 665] (Brown), but contends that the Supreme Court decision only “focused on procedural details of federal habeas corpus practice” and has nothing to do with his claims of scientific error. He is incorrect.
In Brown, the State conceded that the criminalist had overstated the probative value of the DNA match of the defendant with the crime scene evidence by failing to dispel the prosecutor’s fallacy. (Brown, supra, 130 S.Ct. at p. 673.) The Supreme Court, in reversing the grant of habeas corpus, first stated that “the two inaccuracies upon which this case turns are testimony equating random match probability with source probability, and an underestimate of the likelihood that one of [the defendant’s] brothers would also match the DNA left at the scene.” (Id. at p. 671.) The Supreme Court noted that the defense, and a defense expert report, did not contest that the DNA evidence matched the defendant (the criminalist’s opinion was that only 1 in 3,000,000 people would have the same DNA profile as the rapist) and the evidence remained “powerful inculpatory evidence.” (Id. at pp. 668, 672–673.) Despite the admittedly erroneous statistical characterization, the high court found that “ample DNA and non-DNA evidence in the record adduced at trial supported the jury’s guilty verdict . . . .” (Id. at p. 675.)
We know of no categorical prohibition, at least in this state,[1] on source attribution—expression by an otherwise qualified expert of an opinion that the quantitative and qualitative correspondence between an evidentiary sample and a known sample from a defendant establishes identity to a reasonable scientific certainty. The reported cases and the scientific literature suggest otherwise. Although the same evidence, and the reports of prosecution experts, were available to Cua for his own examination and analysis, Cua offers no expert opinion that the conclusion reached by the criminalist lacked factual support and was “scientifically invalid.”[2] Here a match was made between Cua and the single-source sample from the vehicle by a qualified DNA expert, as in Nelson, at 15 separate loci. While the criminalist was not asked to calculate the rarity statistic of such a match using the product rule, we can readily infer that the odds would also be here, as in Nelson, “astronomical” and “tantamount to saying that defendant left the evidence at the crime scene.” (Nelson, supra, 43 Cal.4th at pp. 1247, 1259.)
If Cua had any factual or legal basis to challenge the expert’s testimony, it was his obligation to “fairly inform the trial court, as well as the party offering the evidence, of the specific reason or reasons the objecting party believes the evidence should be excluded, so the party offering the evidence can respond appropriately and the court can make a fully informed ruling.” (People v. Partida, supra, 37 Cal.4th at p. 435.) Had he made such an objection, the prosecution could have elicited the statistical support for the opinion, and the trial court would have had the opportunity to make a fully informed ruling. (See Geier, supra, 41 Cal.4th at pp. 609–610.) There are readily apparent tactical reasons why he may have chosen not to do so.
We emphasize that we do not attempt here to establish criteria for circumstances under which an expert can testify to unqualified uniqueness or “identity” of a defendant’s DNA profile with that contained in an evidentiary sample, nor could we do so on this record. We hold only that the expert is not necessarily precluded from doing so—and that the defendant here has failed to meet his burden to show that the court erred in not excluding the evidence sua sponte.
b. The Evidence from Suzanne Wagner’s Panties
Criminalist Janet Patel was also a criminalist in the forensic biology unit of the San Mateo County Sheriff’s forensic laboratory. She was accepted, without objection, as an expert in DNA analysis and comparison. Patel testified that a bloodstain on Suzanne Wagner’s panties contained a mixture of genetic material with DNA from three possible contributors: Fernand Wagner, Suzanne Wagner, and Cua. She testified, without objection, to a random probability match of someone with Cua’s profile to that in the stain of one in 49 million African-Americans, one in 1 million Caucasians, and one in 1.6 million Hispanics. Cua contends, again without any expert support, that the testimony was “scientifically unreliable, because it failed to take into account any Asian population databases.”
We first observe that there is absolutely no evidence in the trial record before us as to Cua’s ethnicity. Cua says that he is “Asian,” but he cites only to statements in the posttrial sentencing report claiming that his mother is Japanese and that his father lived in Hawaii. He also asserts that the jury could see that Cua “looked Asian” and refers us to a trial exhibit photograph of Cua that is not part of the appellate record. We would seriously question the “scientific validity” of an attempt by any trier of fact to assess an individual’s ethnic heritage, or what population group (or subgroup) they might belong to, based solely on stereotypical views of appearance, particularly in our multi-cultural and multi-ethnic society.[3] However, whatever credence we might give to the dubious assumption urged by Cua, it matters not at all.
“ ‘One strangely persistent fallacy in the interpretation of DNA evidence is that the relevant ethnic or racial population in which to estimate a DNA profile frequency necessarily is that of the defendant. The issue has been cogently analyzed, and it should be clear that the relevant population is the entire class of plausible perpetrators.’ ” (People v. Wilson, supra, 38 Cal.4th at p. 1243, quoting Kaye, Logical Relevance, supra, 3 Law, Probability & Risk at p. 211, fn. omitted.) As Professor Kaye notes, “it is critical to understand the limited role that the defendant’s ethnic or racial status plays in evaluating the evidence of a match. . . . The relevant population consists of all people who might have been the source of the evidence sample. In most cases, this will not be people with a defendant’s peculiar ancestry, but people of many ethnic groups.” (Kaye, DNA Evidence, supra, 7 Harv. J.L. & Tech. at pp. 137–138, fn. omitted.)
As the Supreme Court emphasized in People v. Wilson, “ ‘[t]he random-match probability is meant to measure the rarity of the genetic profile detected in the evidence sample and in the defendant by estimating the frequency with which it occurs in the population of possible suspects. As explained in the 1996 NRC Report: [¶] “Suppose that a DNA sample from a crime scene and one from a suspect are compared, and the two profiles match at every locus tested. Either the suspect left the DNA or someone else did. We want to evaluate the probability of finding this profile in the ‘someone else’ case. That person is assumed to be a random member of the population of possible suspects. So we calculate the frequency of the profile in the most relevant population or populations. The frequency can be called the random-match probability, and it can be regarded as an estimate of the answer to the question: What is the probability that a person other than the suspect, randomly selected from the population, will have this profile‌ The smaller that probability, the greater the likelihood that the two DNA samples came from the same person.” (1996 NRC Rep., supra, p. 127, italics added.)’ ” (People v. Wilson, supra, 38 Cal.4th 1244–1245.)
Therefore, “[i]t is relevant for the jury to know that most persons of at least major portions of the general population could not have left the evidence samples. This conclusion is consistent with the recommendations of the 1996 NRC Report.” (People v. Wilson, supra, 38 Cal.4th at p. 1245, citing 1996 NRC Rep., supra, p. 122, rec. 4.1 [“[i]f the race of the person who left the evidence-sample DNA is known, the database for the person’s race should be used; if the race is not known, calculations for all racial groups to which possible suspects belong should be made”].) The Supreme Court also agreed, however, that “ ‘as the science underlying DNA comparisons continues to improve, the practical significance of the different racial frequencies diminishes.’ ” (People v. Wilson, at p. 1248.)
Criminalist Patel testified that she used “major population groups” within the United States to “get an overall estimate of what—how often I would expect this combination to occur or how many other individuals could also occur—could also contribute the DNA that I see in this mixture, so we used major population groups in the U.S. to answer that question.” She was also asked by the prosecution if there were also “numbers within the science to reflect the Asian population.” She responded, without objection, that her lab did not have access to statistics for such population groups, but that she would expect calculations for an Asian population “would be in the same range of one in one million to one in tens of millions.” Cua now objects that this testimony was speculation, and that because her opinion failed to take into account any Asian population databases, it was “scientifically unreliable.”
What is without foundation, expert or otherwise, is that Asian population databases had any special relevance, or more significantly, that they would have provided any assistance to Cua had they been used. He argues that use of an Asian database would have shown that some DNA profiles are much more common among Asians than among other population groups, and that use of those statistics would have “decreased the odds that it was [Cua] who was the donor.” Thus, Cua asserts, he was prejudiced by the failure to include evidence of the prevalence of the genotype in the Asian population. The “evidence” he cites to support this conclusion is the reference in Soto to the comparison calculations done by a criminalist of the DNA profile of the Hispanic defendant to four local Orange County databases: Hispanics (1 in 189 million); Caucasians (1 in 38 million); Blacks (1 in 807 million); and Vietnamese (1 in 177 million). (Soto, supra, 21 Cal.4th at 532.) Cua then, however, contends that the evidence in that case was that the Caucasian ratios were one in 3 billion, demonstrating that “the odds of a Vietnamese person’s DNA matching the crime scene DNA” was “13 times more likely” than a U.S. Caucasian. This is a gross distortion and mischaracterization of the data from Soto. In Soto, the criminalist did comparisons with information from separate data sets. The second set of data used came from published FBI databases: “(1) Southwest Hispanic (Texas): 1 in 55 million; (2) Southeast Hispanic (Florida): 1 in 2.3 billion; (3) U.S. Black: 1 in 2.4 billion; and (4) U.S. Caucasian: 1 in 3 billion.” (Ibid., fn. omitted.) No comparable regional or national Asian database was used. What the evidence in Soto actually shows is that within the local Orange County population genotypes (the area where the crime was committed), the Vietnamese (a subpopulation of Asians) genotype frequency was roughly equivalent to the Hispanic group, and more than four times more rare than in the Caucasian population. This result is also entirely consistent with what Cua contends is the “speculative” opinion expressed by Patel that she would expect that variations using an Asian database “would be in the same range of one in one million to one in tens of millions.”
The opinion expressed by the criminalist gave the jury relevant information as to the relative rarity in the general population of the genotype found in the crime scene sample. Again, even had Cua not waived this issue by failure to make timely objection, he has failed to demonstrate any error in admission of Patel’s opinion.
c. The Bathroom Door Frame Sample
Criminalist Patel testified that she collected the evidentiary samples from the Wagners’ residence, including a swab of a red-brown stain from the door jamb of the downstairs bathroom. The presumptive test for blood was positive. She extracted the DNA from this sample and compared it with the known samples from the victims and Cua. The sample contained a mixture of DNA, and both Fernand Wagner and Cua were identified as possible contributors. She provided genotype frequencies for possible contributors as one in 660 million in the African-American population, one in 110 million individuals in the Caucasian population, and one in 72 million individuals in the Hispanic population.[4] The evidence was received without objection.
Cua again argues that there was “insufficient foundation” for the prosecution DNA statistics because Cua’s “racial group” was not included. Cua contends that statistics were required for “racial groups, or sub-groups, of which [Cua] might be considered a member, including Asian, or Japanese, or Filipino, or native Hawaiian.” He asserts that such information is a “requirement” of the 1996 NRC Report. As we have already noted, no evidence was presented that Cua was a member of any of these groups (and not even a suggestion made that Cua was “Filipino” or “native Hawaiian”. And as we have already discussed, there is no such “requirement” in either the cases he cites or in the 1996 NRC Report. Likewise his assertion that inclusion of Asian populations would have resulted in genotype frequencies more favorable to Cua is again based only on his mischaracterization of the discussion in Soto.[5]
B. Prosecutorial Misconduct
Cua contends that it was prosecutorial misconduct for the district attorney to present “scientifically invalid” DNA evidence. In order to make out a federal constitutional violation based on the conduct of the prosecution, a defendant must establish that the challenged conduct “ ‘comprises a pattern of conduct “so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.” [Citations.]’ ” (People v. Gionis (1995) 9 Cal.4th 1196, 1214; see also Donnelly v. DeChristoforo (1974) 416 U.S. 637, 642–643].) Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of “ ‘ “ ‘ “deceptive or reprehensible methods to attempt to persuade either the court or the jury.” ’ ” [Citation.]’ [Citation.]” (People v. Hill (1998) 17 Cal.4th 800, 819.)
Cua fails to show how the proffer by the prosecution of opinions rendered by qualified experts using scientifically accepted methods of analysis constitutes a pattern of “egregious” misconduct, or an attempt to use “deceptive or reprehensible methods” to persuade the jury. His claim is in any event forfeited by his failure to object at trial. “ ‘To preserve for appeal a claim of prosecutorial misconduct, the defense must make a timely objection at trial and request an admonition; otherwise, the point is reviewable only if an admonition would not have cured the harm caused by the misconduct.’ [Citations].” (People v. Gionis, supra, 9 Cal.4th at p. 1215.)
C. Ineffective Assistance of Counsel
To establish a claim of incompetence of counsel, a defendant must establish both that counsel’s representation fell below an objective standard of reasonableness and that it is reasonably probable that, but for counsel’s error, the result of the proceeding would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 686–688, 694–695 (Strickland); People v. Benavides (2005) 35 Cal.4th 69, 92–93; People v. Ledesma (1987) 43 Cal.3d 171, 215–218.) An ineffective assistance of counsel claim fails on an insufficient showing of either element. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1126, cert. den. sub nom. Rodrigues v. California (1995) 516 U.S. 851.)
Generally, prejudice must be affirmatively proved. (Strickland, supra, 466 U.S. at p. 693.) “Judicial scrutiny of counsel’s performance must be highly deferential.” (Id. at p. 689.) There is a strong presumption that counsel “rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” (Id. at p. 690.) To establish a claim of ineffective assistance of counsel, a “ ‘defendant must affirmatively show that the [alleged] omissions of defense counsel involved a critical issue, and that the omissions cannot be explained on the basis of any knowledgeable choice of tactics.’ [Citations.]” (People v. Lanphear (1980) 26 Cal.3d 814, 828–829.)
Cua asserts that his counsel[6] were incompetent in failing to object to the introduction of the DNA evidence (and in failing to assert erroneous admission of evidence as a basis for his new trial motion). As we have concluded, there was no error in the admission of the DNA evidence. Cua’s claim that his counsel were ineffective therefore necessarily fails, since he is unable to demonstrate any prejudice. (People v. Rodrigues, supra, 8 Cal.4th at p. 1126.)
Moreover, the trial record amply demonstrates counsels’ tactical decision not to directly challenge the DNA evidence, but instead to attempt to minimize its significance as to Cua, while emphasizing that other DNA evidence at the scene raised the possibility of an unidentified third party being responsible. In opening statement, counsel admitted that Cua had been at the Wagners’ home earlier in the day of June 13th, returning later in the day to find the “gruesome scene” and that Cua then “panicked” after finding the bodies and left. He could scarcely have denied that Cua had been in the house in light of the testimony of Edith Edmonds, and Cua’s own statements in the letter found in his truck. He told the jury that it would not be unusual to find Cua’s DNA in the Wagners’ Cadillac, since he would often drive with Fernand Wagner to Wagner’s medical appointments. In closing argument, counsel emphasized again the presence of DNA of others at the scene, that Cua was admittedly at the home, and that his DNA was only found in two locations. In acknowledging that Cua’s DNA was on two pieces of evidence at the home, he said “[c]ertainly Joe Cua’s DNA is on two pieces of evidence. Never denied that. Never tried to hide it, but there was all kinds of DNA evidence.”
As further evidenced in the motion for new trial, counsel were aware of the statistical significance of the matches made between Cua’s DNA profile and that found in the evidence samples and made a professional judgment not to contest that evidence before the jury.[7] We find nothing to show that this judgment was unreasonable, or that counsel’s performance was deficient.
D. The New Trial Motion
Following the jury verdict, on September 3, 2008, criminalist Patel issued an amended evidence examination report concerning the DNA analysis of the stain found on the downstairs bathroom door jamb. The amended report recited that its purpose was “to re-evaluate the statistical calculations of the low-level DNA samples in this case and to ensure that the statistics reported properly reflect the weight of the evidence. Due to recent changes in the interpretation of low-level mixtures and the statistical calculations associated with those mixtures, a re-evaluation was conducted on the samples in this case. Of these samples, the DNA profile from the swab of the bathroom door frame was found to contain some information at low levels of DNA; therefore the statistic reported in Conclusion 1 has been revised.” Conclusion 1 was revised to read: “The DNA profile from the swab of the bathroom door frame (0610269A) is a mixture of a minimum of two people. Fernand Wagner and Joseph Cua are included as possible contributors to this mixture. . . . One in 8.1 million individuals in the African American population, 520 thousand individuals in the Caucasian population, and one in 620 thousand individuals in the Hispanic population are included as possible contributors to this mixture. Suzanne Wagner and Marc Wagner are excluded as possible contributors to this mixture.”
Cua moved for a new trial based on this new evidence. (Pen. Code, § 1181, subd. (8).) Cua argued that, based on the original analysis, he had been “forced to concede that the DNA on the doorframe belonged to Mr. Cua,” and that revised statistics would have supported a claim of third party culpability. The trial court denied the motion, finding that there was “overwhelming evidence of guilt,” and that any change in the statistical values used for the DNA sample would not reasonably affect the jury’s decision, and would not cause a different result.
A defendant may seek a new trial “When new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial. . . .” (Pen. Code, § 1181, subd. (8).) “The standard of review of an order denying a motion for a new trial based on newly discovered evidence was established by this court in 1887: ‘To entitle a party to a new trial on the ground of newly discovered evidence, it must appear,—“1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on a retrial of the cause; 4. That the party could not with reasonable diligence have discovered and produced it at the trial; and 5. That these facts be shown by the best evidence of which the case admits.” . . . [¶] “Applications on this ground are addressed to the discretion of the court below, and the action of the court below will not be disturbed except for an abuse of discretion . . . .” ’ [Citations.]” (People v. Martinez (1984) 36 Cal.3d 816, 821.) “ ‘[I]n determining whether there has been a proper exercise of discretion on such [a] motion, each case must be judged from its own factual background. [Citation.]’ [Citation.]” (People v. Dyer (1988) 45 Cal.3d 26, 52.)
The trial court here denied the motion on the third criteria—that the evidence was not such as to render a different result probable on retrial. In considering the likelihood of a different result on a motion for new trial, both the trial and appellate courts are asked “to determine whether the inability of the defendant to present the evidence in question prejudiced the outcome of the trial. In viewing such an issue, we justifiably accord considerable deference to the trial judge, ‘because of “his observation of the witnesses, [and] his superior opportunity to get ‘the feel of the case.’ ” [Citation.]’ [Citation.]” (People v. Hayes (1985) 172 Cal.App.3d 517, 524–525.)
In ruling on the motion, the court reviewed the weight of the other trial evidence against Cua. He considered the other evidence placing Cua at the crime scene, the other DNA evidence (including the sample from Suzanne Wagner’s panties, and the single source blood sample from the Cadillac), the evidence of motive from Cua’s embezzlement, his physical injuries after the killings, and his “suicide letter.” He concluded that the “numbers are still overwhelming that it was Mr. Cua” and that “the change in the statistical numbers for one mixture of DNA stain would not reasonably affect the jury’s decision.” We find no abuse of discretion.
The case which Cua cites as “particularly applicable,” People v. Drake (1992) 6 Cal.App.4th 92, is not. In Drake, the reviewing court upheld the trial court’s exercise of discretion in granting a motion for new trial, where the prosecution had failed to disclose to the defense an expert opinion in its possession which was contrary to its trial position. The trial court found that the failure deprived the defendant of a fair trial. (Id. at p. 97.) Affirming, the Court of Appeal noted that “[t]he grant of a new trial is a discretionary decision and will not be set aside unless a manifest and unmistakable abuse of discretion clearly appears. [Citation.]” (Id. at pp. 97–98.) The prosecution withheld no exculpatory information here, and as the Court of Appeal also observed in Drake, “[t]he trial court’s factual findings, express or implied, made on a motion for new trial will be upheld if supported by substantial evidence. [Citation.]” (Id. at p. 97.)
Cua argues that the “evidence as to identity turned almost solely on the DNA statistics” and that revised statistics for the particular sample showed that, when compared with California’s population of 35 million people, four African-Americans, 70 Caucasians and 60 Hispanics might match. Cua’s argument ignores that the purpose of the statistical comparisons is to provide the jury only with a gauge of the relative rarity of the DNA profile found in a sample, not to identify a universe of potential suspects, and falls victim to what is known as the “defendant’s fallacy.” (1996 NRC Rep., supra, p. 133; Thompson & Schumann, supra, 11 Law & Hum. Behav. at p. 171.) “The ‘defendant’s fallacy’ is to assume that in a given population, anyone with the same profile as the evidence sample is as likely to have left the evidence sample as the suspect.” (1996 NRC Rep., supra, p. 133.) It ignores the other associative evidence which drastically narrows the group of people who are or could have been suspects. (Ibid.; Thompson & Schumann, supra, 11 Law & Hum. Behav. at p. 171.)
As the trial court correctly observed, more than ample non-DNA evidence (evidence which Cua does not challenge here), connected Cua to the commission of these offenses. Further, Cua did not contest in the trial court, and does not contest here, the test results identifying him as a contributor to the evidentiary DNA samples. The trial court properly considered the totality of the evidence in denying the motion.
III. Disposition
The judgment is affirmed.
_________________________
Bruiniers, J.


We concur:


_________________________
Jones, P. J.


_________________________
Simons, J.



Superior Court of San Mateo County, No. SC64228, Norman J. Gatzert, Judge.

Stephen B. Bedrick, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Seth K. Schalit, Supervising Deputy Attorney General, Schott Mather, Deputy Attorney General, for Plaintiff and Respondent.





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