PEOPLE v. NELSON

Filed 8/31/06

CERTIFIED FOR PARTIAL PUBLICATION^*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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APPEAL from a judgment of the Superior Court of Sacramento County, Gary S. Mullen, Judge. Affirmed.

Cara DeVito, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Senior Assistant Attorney General, J. Robert Jibson and Judy Kaida, Deputy Attorneys General, for Plaintiff and Respondent.

In this case, we confront issues arising from the use of the state's convicted offender deoxyribonucleic acid (DNA) databank to solve a murder that occurred many years earlier. The victim was abducted, raped, and murdered in 1976. In 2002, a DNA profile derived from crime scene evidence was searched through the DNA databank. Defendant Dennis Louis Nelson was identified as a potential candidate. In further testing, it was determined that his DNA profile matched that of the evidentiary samples. Convicted of first degree felony murder, defendant appeals.

In the published parts of this opinion, we reject defendant's claims that (1) the delay between the date of the crime and the filing of a complaint charging him with the murder violated his right to due process of law, and (2) in light of the holding in People v. Kelly (1976) 17 Cal.3d 24 (hereafter Kelly), the DNA evidence should not have been presented to the jury because there is no general scientific acceptance of a statistical means of explaining the results of a DNA comparison when a DNA databank is used to identify a potential candidate. As we will explain, those claims of error lack merit.

The 26-year delay in prosecuting defendant was not the result of negligence, and it was not for the purpose of gaining an advantage over him. It occurred solely due to the limits of forensic technology at the time of the initial investigation, which resulted in insufficient evidence to identify defendant as a suspect. When forensic technology in the form of the DNA databank became available to identify him as a candidate for further investigation and testing, the prosecution proceeded with promptness. The justification for the delay outweighed defendant's minimal showing of prejudice.

Like the use of a fingerprint database search to identify potential candidates as suspects, a DNA databank search does not implicate the concerns addressed in Kelly. The DNA databank search merely identified defendant as a possible candidate as the murderer; it was not the basis for declaring that his DNA matched DNA on the evidentiary samples. The latter determination was made based upon further, complete testing utilizing scientific techniques found to be reliable and admissible under the Kelly test.

In the unpublished parts of this opinion, we conclude that defendant's other contentions lack merit. Thus, we shall affirm the judgment.

FACTS

In 1976, Ollie George was a 19-year old college student who lived with her parents. On the late afternoon of February 23, 1976, she borrowed a car from her brother, Delbert, in order to go to the store to buy some nylons.^[1] Ollie went to a shopping center where there were a Safeway, a Pay 'n Save, and a nearby McDonald's restaurant. At about 5:30 p.m., Ollie telephoned her mother and reported that the car would not start. Delbert's car, a Pontiac GTO, would often flood; the remedy was to wait for a while and try again, although it was unclear whether Ollie knew that. Ollie's mother asked her to pick up some grocery items while she waited. Dan Kemp worked at the nearby McDonald's and recognized Ollie from prior visits to the restaurant. He reported that Ollie visited the restaurant at some time after he started his shift at 5:00 p.m.

Delbert's girlfriend, Beata Garner, went to the George home at about 5:30 p.m. Ollie's sister, Laurenda, wanted to go to the shopping center to meet Ollie, so Garner drove her there. They located Delbert's car. The door was unlocked and the keys were in the ignition. The car contained grocery items, nylons, Ollie's purse, and a partially eaten McDonald's hamburger. Ollie was missing. When Ollie could not be located, the family notified the city police department.

Ollie's disappearance was reported in the newspaper and on television. Upon learning of the disappearance, Ardis Hayes contacted the police department. He reported that he had been at the shopping center at the time it was just beginning to get dark. As he was on his way into the store, he saw Ollie in a faded blue or gray Oldsmobile F85. The hood was open and an African-American man appeared to be working on the engine.

Ruth Jones, who was acquainted with Ollie, also reported seeing her at the shopping center. Jones said that she and her children went to the shopping center in the evening, around 5:00 or 6:00 p.m., and as they were leaving they saw Ollie in the driver's seat of a blue car. The hood was open and a man appeared to be working on the engine. Jones first thought the man was Caucasian, but when he stood up she saw that he was an African-American. The man was wearing a â€