Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ORIGINAL PROCEEDINGS in mandate, Robert J. Perry, Judge, Los Angeles County Super. Ct. No. BA134487
Diane E. Berley, under appointment by the Court of Appeal, for Petitioner.
No appearance for Respondent.
Edmund G. Brown Jr., Attorney General, Dane R. Gillete, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Mary Sanchez, Deputy Attorneys General, for Real Party in Interest.
ALDRICH, J.
INTRODUCTION
At petitioner Anthony L. Tarkington’s 1998 trial for murder, DNA evidence was introduced. A jury convicted him of second degree murder. In 2004, about six years after his conviction, Tarkington asked to have counsel appointed to prepare a motion for further DNA testing, under Penal Code section 1405. Counsel was appointed for Tarkington, and he filed a declaration concerning further DNA testing. Based on that declaration, the motion was denied. Then, in 2008, Tarkington filed renewed requests for appointment of counsel and for DNA testing under section 1405, which the trial court denied. He therefore filed this petition. We issued an order to show cause. We now discharge the order to show cause and deny the petition.
All further undesignated statutory references are to the Penal Code.
BACKGROUND
The facts are from this court’s opinion affirming the judgment of conviction (People v. Tarkington (Aug. 19, 1998, B117520) [nonpub. opn.]).
On the morning of June 22, 1996, people were lined up in a downtown Los Angeles alley for free donuts and coffee. Eric Black and Fidencio Chavez saw two men arguing. The men left the line and crossed the street. One of the men, Tarkington, attacked the other man, Donald Fitzpatrick. The men fought. Tarkington stabbed Fitzpatrick’s shoulder and stomach. Fitzpatrick died.
Tarkington left the scene. Chavez followed Tarkington, but lost sight of him at Sixth Street. The only open door in that area was that of the Hayward Hotel. A review of the hotel’s surveillance tape from that morning showed a man who fit the suspect’s general physical description. Officers searched Tarkington’s hotel room. They found a pair of shoes; one shoe had a small fleck of blood on it.
Cellmark Diagnostic Laboratory analyzed the blood on the shoe and a hair sample from the victim. The blood was not Tarkington’s. The victim, however, could not be excluded as a source of the blood. But it was also found that the frequency of the combination of DNA was one in 35,000 in the African-American population; in other words, the probability that the blood on the shoe was the victim’s was one in thirty five thousand. The parties stipulated that an expert witness in the area of serology would testify that there was no useable sample of the blood taken from the shoe left to test.
At trial, Black, Chavez and Palmer identified Tarkington as the man who stabbed the victim.
Palmer was apparently a third eyewitness.
II. Procedural background.
In 1997, a jury convicted defendant of second degree murder with personal use of a deadly weapon. It was found that he had three prior strike convictions and one prior felony conviction. The trial court, Judge Robert Perry presiding, sentenced Tarkington to 46 years to life. In 1998, we affirmed the judgment on appeal.
In 2004, Tarkington petitioned in the trial court for appointment of counsel and for further DNA testing under section 1405. The trial court (Judge David Wesley) appointed counsel under that section. Counsel investigated the matter and submitted a declaration detailing the results of the investigation, which concluded that no useable DNA sample remained. After reviewing the materials, the court denied the motion for further testing in September 2004.
About four years later, in June 2008, Tarkington filed another request for appointment of counsel to file a motion for DNA testing under section 1405. Tarkington represented that he had not previously had counsel appointed under section 1405. Judge Perry, who had presided over Tarkington’s trial, denied the motion, stating that the petition failed to provide support for the request and to comply with section 1405, subdivision (c)(1), in that Tarkington failed to provide a verified statement under penalty of perjury regarding the need for further DNA testing.
Tarkington then petitioned for a writ of mandamus in this court in July 2008. We denied the petition on July 30.
In September 2008, Tarkington filed a second motion in superior court for DNA testing under section 1405. On September 15, the trial court denied it. In its order denying the motion, the court said, “Defendant asserts additional DNA testing is appropriate and would raise a ‘reasonable probability’ of a more favorable verdict. A drop of blood on a shoe found in defendant’s hotel room was subject to DNA testing and compared to a hair from the murder victim. The DNA expert testified that the victim could not be excluded as the source of the blood on the shoe, but that the frequency of occurrence of the DNA in the African American population was fairly high, i.e., one in thirty-five thousand. In other words, while there were similarities in the DNA from the blood and the hair, . . . the expert could not, and did not, state that the victim’s blood was on the shoe. [¶] Defendant asserts that additional DNA testing of additional hairs from the victim . . . would provide a more favorable result. In the court’s view, this is nothing more than speculation.” Saying it “remains unconvinced,” the court denied the motion.
On October 6, 2008, Tarkington filed a petition for writ of mandamus/prohibition in this court. We issued an order to show cause and ordered counsel to be appointed.
DISCUSSION
I. The trial court did not abuse its discretion by denying Tarkington’s request for appointment of counsel under section 1405.
Section 1405 provides that a person convicted of a felony and serving a term of imprisonment may make a motion for DNA testing. (§ 1405, subd. (a).) If an indigent person provides information specified in subdivision (b)(1) of that section, “and counsel has not previously been appointed pursuant to this subdivision, the court shall appoint counsel to investigate and, if appropriate, to file a motion for DNA testing under this section and to represent the person solely for the purpose of obtaining DNA testing under this section.” (§ 1405, subd. (b)(3)(A), italics added.) But if counsel has been previously appointed for an indigent person, then the trial court “may, in its discretion, appoint counsel to investigate and, if appropriate, to file a motion for DNA testing.” (§ 1405, subd. (b)(3)(B), italics added; see also In re Kinnamon (2005) 133 Cal.App.4th 316, 321.)
Because counsel has been previously appointed for Tarkington in 2004 under section 1405, the trial court had discretion whether to appoint counsel for Tarkington a second time. “ ‘Although mandamus does not generally lie to control the exercise of judicial discretion, the writ will issue “where, under the facts, that discretion can be exercised in only one way.” [Citations.]’ (Robbins v. Superior Court (1985) 38 Cal.3d 199, 205.) ‘Mandate lies to control judicial discretion when that discretion has been abused. [Citations.]’ (State Farm etc. Ins. Co. v. Superior Court (1956) 47 Cal.2d 428, 432.) ‘A trial court will be found to have abused its discretion only when it has “ ‘exceeded the bounds of reason or contravened the uncontradicted evidence.’ ” [Citations.]’ (IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 69.) Moreover, in a mandamus proceeding, in assessing whether the trial court abused its discretion the ‘judgment or order of the lower court is presumed correct . . . .’ [Citation.]” (Richardson v. Superior Court (2008) 43 Cal.4th 1040, 1047-1048.)
The parties do not dispute that abuse of discretion is the proper standard of review.
We here find no abuse of the trial court’s discretion. The trial court appointed counsel in 2004 to investigate any need for further DNA testing on Tarkington’s behalf. Appointed counsel in 2004 submitted a declaration stating that the “prosecution DNA evidence was obtained using technologies including DQ-alpha, and Polymarker (PM) DNA testing.” To determine whether any items of evidence capable of DNA testing existed, counsel contacted the Los Angeles Police Department (LAPD) property division, the LAPD’s crime laboratory, and the Los Angeles Superior Court Clerk’s Office. Counsel determined “that all evidence has been disposed of as of August 23, 2000.” (Italics added.) The trial court therefore did not abuse its discretion because it had already been established that further DNA testing was not possible.
Tarkington counters that the counsel appointed for him in 2004 failed, first, to contact Cellmark, the laboratory that conducted the DNA testing, to ascertain whether it has a blood sample, and, second, to ascertain whether any sample would be amenable to new methods of testing DNA. As to the first contention, it is unclear why Cellmark, as opposed to the LAPD, would retain evidence. Also, although counsel’s 2004 declaration omits a specific statement he contacted Cellmark, the declaration does not rule out that counsel ascertained from the entities he contacted that no entity retained evidence. Indeed, this is a reasonable inference from counsel’s statement that “all evidence” had been disposed of.
In fact, appellate counsel for Tarkington conceded at oral argument that it appears that no evidence remains to be tested.
Second, Tarkington suggests that current DNA technology can produce a “discriminating probability calculation” that could eliminate the victim as a donor of the blood from the shoe. According to former appointed counsel the “prosecution DNA evidence was obtained using technologies including DQ-alpha, and Polymarker (PM) DNA testing.” Such testing, Tarkington suggests, is outmoded; he implies that the testing introduced at his trial is similar to or the same as restriction fragment length polymorphism (RFLP), which is now “obsolete.” (People v. Nelson (2008) 43 Cal.4th 1242, 1258.) Polymerase chain reaction testing using short tandem repeats (PCR-STR) is the newer method of DNA testing, having “many advantages over RFLP testing. It can test a far smaller sample than RFLP testing requires. It is less susceptible to sample degradation. It is simpler and less time consuming. Additionally, . . . ‘[w]ith the ability to compare numerous loci, the discrimination power of PCR-STR testing is extremely high.’ ” (Ibid.)
It is not clear that Tarkington’s implication that RFLP was used to test the blood sample from the shoe is correct. Instead, it appears that a form of PCR testing was used. “PCR, which takes small pieces of DNA and copies or amplifies them, is used when the DNA sample is too small or degraded to perform the RFLP method. ‘PCR forensic analysis involves three steps. First, DNA is extracted from cells in the sample. Second, select regions of the DNA are amplified. Scientists have identified these regions, also referred to as genes or genetic markers, as areas that exhibit great genetic variation among the population. One widely used marker is the DQ-alpha gene. [Citation.] On average, only about 7 percent of the population shares the same DQ-alpha type. [Citation.] Like DQ-alpha, the D1S80 locus is used in PCR testing because it contains several alleles and exhibits great variation. [Citation.] Polymarker analysis, which amplifies several loci simultaneously, has also been validated for use in PCR testing. [Citation.] After amplification, in the third and final step of PCR analysis the amplified gene is “typed,” through the use of DNA probes, to identify the specific alleles it contains. [Citation.] If the DNA profile thus constructed differs in any way between the suspect and the sample, the suspect is excluded. But if the profiles match, the analyst must next determine how common the profile is in the population.’ ” (People v. Henderson (2003) 107 Cal.App.4th 769, 778, fns. omitted, italics added.)
Based on this, Tarkington’s comparison of DQ-alpha and polymarker testing done of the blood sample to the outmoded RFLP testing appears to be misleading. It appears that a form of PCR testing was done, albeit not PCR-STR (polymerase chain reaction using short tandem repeats). In any event, as we have said, the trial court was within its discretion to conclude that there is no sample to test. Therefore, what test could be used is really a moot point.
Moreover, although what is at issue before us is whether the trial court abused its discretion by denying appointment of counsel, the trial court also found that Tarkington failed to show a reasonable probability of a more favorable verdict if DNA testing were allowed. “Subdivision (f)(5) [of section 1405] requires the moving party to establish that ‘[t]he requested DNA testing results would raise a reasonable probability that, in light of all the evidence, the convicted person’s verdict or sentence would have been more favorable if the results of DNA testing had been available at the time of conviction.’ ” (Richardson v. Superior Court, supra, 43 Cal.4th at p. 1046.) The DNA evidence introduced at trial was that the blood on Tarkington’s shoe was compared to a DNA sample from the victim. The blood was not Tarkington’s. Although the victim could not be excluded as a source of the blood, the frequency of occurrence of the DNA in the African-American population was fairly high, 1 in 35,000. As the court said, “In other words, while there were similarities in the DNA from the blood and the [victim’s] hair, . . . the expert could not, and did not, state that the victim’s blood was on the shoe.”
Where DNA evidence is but one piece of evidence tending to show guilt, and there is other strong evidence that the petitioner perpetrated the crime, a trial court will not be found to have abused its discretion in determining that petitioner failed to show a reasonable probability “that, had the DNA testing been available, in light of all of the evidence, there is a reasonable probability—that is, a reasonable chance and not merely an abstract possibility—that the defendant would have obtained a more favorable result.” (Richardson v. Superior Court, supra, 43 Cal.4th at p. 1051.) There was other evidence here—namely, eyewitness testimony—that Tarkington killed the victim. Three eyewitnesses (Black, Chavez and Palmer) identified Tarkington as the assailant. Indeed, Black followed the assailant and deduced that he must have entered the Hayward Hotel. Based on hotel surveillance footage from the time of the crime, the police were led to Tarkington’s hotel room, where they found a shoe with blood on it. The trial court therefore could have considered the absence of a reasonable probability of a more favorable result in its determination that a second counsel should not be appointed for Tarkington under section 1405.
We therefore conclude that the trial court did not abuse its discretion by denying Tarkington’s motion under section 1405.
DISPOSITION
The order to show cause is discharged. The petition for writ of mandamus/prohibition is denied.
We concur: KLEIN, P. J., CROSKEY, J.