People v. Reeves (2001)

THE PEOPLE, Plaintiff and Respondent, v. LAWRENCE ADAM REEVES, Defendant and Appellant.

[Modification fn. * of opinion (91 Cal. App. 4th 14; 109 Cal.Rptr.2d 728) on denial of petition for rehearing.]

CORRIGAN, Acting P. J.-

It is ordered that the opinion filed herein on July 30, 2001, be modified as follows:

1. On page 28 [91 Cal. App. 4th 40, advance report], delete footnote number 13 in its entirety. This change will require renumbering of all subsequent footnotes.

2. On page 39 [91 Cal. App. 4th 49, advance report], in the second sentence in the first paragraph, replace the words "fixed bin" with "statistical," so that the sentence reads:

Gary Sims testified the DOJ performed its statistical calculations according to the method currently recommended by the NRC.

3. On page 39 [91 Cal. App. 4th 49, advance report], footnote number 22 is modified to read as follows:

21 A simple example demonstrates this point. Gary Sims testified that DOJ uses a match window of plus or minus 1.8 percent. Assume the DOJ declares a match at the VNTR locus D2S44, and the evidence band measures 1500 bp. A match window of plus or minus 1.8 percent runs from 1473 bp to 1527 bp (since 1.8 percent of 1500 is 27). This range happens to overlap bins 8 and 9 in the FBI's fixed bin system. Bin 8 encompasses bands sized 1,353-1,507 bp, and bin 9 includes bands sized 1,508-1,637 bp. (1996 NRC Rep., supra, at p. 20 [bin tables for United States Caucasians]; Fung, supra, at p. 114 [bin table for Hong Kong Chinese].) According to the only scientific article appellant cites on this issue, FBI's fixed bins 8 and 9 are both larger than 7.2 percent (the minimum size Mueller claims is necessary). (Fung, supra, at p. 114 [bin 8 is 10.8 percent; [91 Cal. App. 4th 1119c] bin 9 is 8.2 percent].) Even though both fixed bins are theoretically large enough under appellant's view, the match window still overlaps multiple bins because the evidence band happens to fall very close to the boundary between the two fixed bins. Thus, even if all fixed bins were made substantially wider than an agency's match window, the problem of overlapping would still arise at the boundaries between fixed bins. This aspect of fixed bins marks a fundamental difference from the floating bins discussed in Venegas.

There is no change in judgment.

Respondent's petition for rehearing is denied.

FN *. This modification requires movement of text affecting pages 40-57 of the bound volume report.