People v. Pizarro (110 Cal. App. 4th 530, 2003)

Opinion

ARDAIZ, P. J.

In 1990, defendant and appellant Michael A. Pizarro was convicted of murder, forcible lewd or lascivious act on a child under age 14, and forcible rape. The case, now on appeal for the second time, presents an unusual procedural posture. In the first appeal, Pizarro contended that the DNA (deoxyribonucleic acid) evidence against him was inadmissible because the prosecution had failed to demonstrate that the DNA restriction fragment length polymorphism (RFLP) testing conducted by the FBI was generally accepted in the scientific community. At that time, the admissibility of DNA evidence was still being debated, evaluated, and addressed by the appellate courts. We remanded the case for a thorough evidentiary (Kelly) hearing. (People v. Pizarro (1992) 10 Cal.App.4th 57 [12 Cal.Rptr.2d 436] (Pizarro I).) At that Kelly hearing in 1998, several new issues concerning the reliability and relevance of the DNA evidence presented to the jury were revealed for the first time. The trial court again ruled that the evidence was admissible and reentered the judgment.

After trial, the body of case law on DNA evidence developed further. (See People v. Axell (1991) 235 Cal.App.3d 836 [1 Cal.Rptr.2d 411]; People v. Barney (1992) 8 Cal.App.4th 798 [10 Cal.Rptr.2d 731].) And, after the trial court’s 1998 Kelly ruling in this case, the Supreme Court published People v. Venegas (1998) 18 Cal.4th 47 [74 Cal.Rptr.2d 262, 954 P.2d 525], and People v. Soto (1999) 21 Cal.4th 512 [88 Cal.Rptr.2d 34, 981 P.2d 958].

It is in this procedural context that defendant brings this second appeal. He contends, again, that the DNA evidence was inadmissible for various reasons. In 2002, after publication of our first opinion, we granted the People’s petition for rehearing to ensure that the complex issues in this case were thoroughly examined and briefed by both parties. We now reverse the judgment of conviction.

INTRODUCTION

Reduced to its simplest, this is a case of insufficient evidentiary foundation. The admission of DNA evidence to prove Pizarro’s identity as the perpetrator raises foundational issues under both Kelly and the Evidence Code. Under Kelly and section 405, the analysis is one of reliability and trustworthiness. Under section 403, it is one of preliminary fact and relevance. The DNA evidence in this case is foundationally inadequate under both analyses. In addition, recurring thematically throughout the issues in this case are evidentiary violations founded on the improper assumption that defendant was in fact the perpetrator and that defendant’s traits therefore could be relied upon to provide or clarify those traits of the perpetrator forming the basis of the DNA evidence.

This case demonstrates how DNA evidence brings to the fore the distinction between science and law. In the criminal legal setting, theoretical conclusions inherent to scientific discourse have different consequences. What may be an intellectual discussion in the scientific setting becomes the basis for the deprivation of a person’s liberty in the legal setting. For this reason, evidentiary rules limit the ad mission of scientific evidence to what is reliable, trustworthy, and relevant.

I. DNA EVIDENCE

Generally, as in this case, DNA evidence consists of two distinct elements: the match evidence—evidence that the defendant could be the perpetrator; and the statistical evidence—evidence that a certain number of people in the population could be the perpetrator. These differ in both purpose and effect.

The purpose of the match evidence is to establish that the defendant’s genetic profile resembles or “matches” the perpetrator’s genetic profile. The effect of the match evidence is to directly incriminate the defendant by establishing that he genetically matches the perpetrator and therefore could be the perpetrator. Using a physical profile as an analogy, the match evidence might be that the defendant, like the perpetrator, has black hair, blue eyes, and a 5-foot 8-inch stature. Because the defendant shares the same physical profile and therefore resembles the perpetrator, the defendant could be the perpetrator. Thus, the match evidence deems the defendant a possible perpetrator, but does not establish his identity as the perpetrator.

The statistical evidence gives the match evidence its weight. It is an expression of the rarity of the perpetrator’s profile, the size of the pool of possible perpetrators, and the likelihood of a random match with the perpetrator’s profile. Specifically, the purpose of the statistical evidence is to establish how few people in the relevant population genetically match the perpetrator. The relevant population is the population of possible perpetrators—the perpetrators’ population. Thus, the statistical evidence informs the jury of the frequency with which the perpetrator’s genetic profile occurs in the perpetrators’ population (i.e., the number of people in that population whose profiles are considered to be the same as the perpetrator’s profile.) The effect of the statistical evidence is to indirectly incriminate the defendant by allowing the jury to infer that because the defendant is one of the few people who genetically match the perpetrator, he is likely to be the actual perpetrator. Unlike the match evidence, the statistical evidence itself does not consider or rely upon the defendant; it is a statement regarding the perpetrator (his profile and his population) and it is the same regardless of who the defendant is. Continuing the physical profile analogy, the evidence might be that 1 in 10,000 Hispanics have black hair, blue eyes, and 5-foot 8-inch stature. From this statistical evidence, the jury may infer that because the defendant is one of the few Hispanics who possess these traits, he is likely to be the actual perpetrator.

As we will explain, we consider here questions such as what criteria can be used to identify the perpetrator’s characteristics, whether the perpetrator can be assumed to possess a certain trait if there is insufficient evidence that he possesses that trait, and whether the rarity of that trait can then be used to establish the statistical evidence of probability.

II. PRELIMINARY FACT

In Pizarro’s case, some of the issues arising from the match evidence and the statistical evidence involve preliminary foundational facts upon which the relevance of the proffered evidence rested. Under section 403, subdivision (a), the proponent of such evidence has the burden of producing evidence of the preliminary fact sufficient for a trier of fact to reasonably find by a preponderance of the evidence that the fact exists. (§ 403; People v. Herrera (2000) 83 Cal.App.4th 46, 61 [98 Cal.Rptr.2d 911].) Unless the preliminary fact is established, the proffered evidence depending on it is neither relevant nor admissible. (§§ 403, 210 [“ ‘Relevant evidence’ means evidence ... having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action”], 350 [only relevant evidence is admissible]; People v. Lucas, (1995) 12 Cal.4th 415, 466-468 [48 Cal.Rptr.2d 525, 907 P.2d 373].)

Here, the relevance of the DNA evidence relied upon the perpetrator’s genetic profile and the perpetrators’ population as preliminary facts. First, the relevance of the match evidence depended on the preliminary fact of the perpetrator’s profile. The match evidence was not relevant to prove defendant’s profile resembled the perpetrator’s profile unless the match was based on the perpetrator’s profile. More specifically, defendant’s traits were not relevant to prove a match unless the perpetrator’s traits were sufficiently established. In the physical profile analogy, if evidence that the defendant has black hair, blue eyes, and 5-foot 8-inch stature is offered to prove he looks like the perpetrator, then the preliminary fact that the perpetrator has black hair, blue eyes, and 5-foot 8-inch stature must be established. This simple evidentiary requirement echoes the rule of logic stating; all possible perpetrators have black hair, blue eyes, and 5-foot 8-inch stature; the defendant has black hair, blue eyes, and 5-foot 8-inch stature; therefore, the defendant is a possible perpetrator. If the foundation of the perpetrator’s profile is not laid, there is an insufficient basis to conclude the defendant possesses the same profile as the perpetrator.

Second, the relevance of the statistical evidence (the profile frequency) depended on the preliminary facts of the perpetrator’s profile and the perpetrators’ population. The profile frequency was not relevant to prove the rarity of the perpetrator’s profile in the perpetrators’ population unless the frequency was based on the perpetrator’s profile and the perpetrators’ population. In the physical profile analogy, if evidence of the number of people in the Hispanic population who have black hair, blue eyes, and 5-foot 8-inch stature is offered to prove the rarity of the perpetrator’s profile in the perpetrators’ population, then the preliminary facts that the perpetrator has black hair, blue eyes, and 5-foot 8-inch stature and that the perpetrator is Hispanic must be established. Logically, this evidentiary requirement is stated as follows: all possible perpetrators have black hair, blue eyes, and 5-foot 8-inch stature and are Hispanic; a certain (small) number of people in the Hispanic population have black hair, blue eyes, and 5-foot 8-inch stature; therefore, this profile is rare in the Hispanic population. If the foundation of the perpetrator’s profile and the perpetrators’ population is not laid, there is an insufficient basis to conclude the perpetrator’s profile is rare in the perpetrators’ population.

These foundational preliminary facts regarding the perpetrator’s traits must be established by independent proof. In other words, the description of the perpetrator—whether genetic or physical—must be based on evidence of the perpetrator’s traits. A sketch artist creates an artistic representation of the perpetrator from an eyewitness’s description of the perpetrator’s physical features. Then the defendant is held up to that sketch to determine whether he possesses the perpetrator’s traits. If the defendant happens to match the sketch of the perpetrator, the match provides evidence against him.

If the description of the perpetrator is instead based on evidence of the defendant’s traits—which are simply assumed to be the same as the perpetrator’s—the defendant no longer enjoys the presumption of innocence. It is as though the sketch artist sits with the defendant, sketches him as the perpetrator, and the prosecution introduces the sketch at trial as evidence that the defendant looks exactly like the perpetrator. The defendant’s traits fill out the perpetrator’s description with facts that are not in evidence, and the perpetrator’s traits are “proved” by what is in effect a presumption that because the defendant possesses certain traits, the perpetrator also possesses those traits. Such a presumption operates as a substitute for proper evidence of the perpetrator’s traits, thereby lightening the prosecution’s burden of affirmatively proving the defendant’s identity as the perpetrator and undermining the defendant’s presumption of innocence. The logic is this: the defendant is the perpetrator; the defendant possesses certain traits; therefore, the perpetrator also possesses those traits. The defendant’s guilt is the premise rather than the ultimate conclusion sought by the prosecution.

The prosecution’s use of such an implicit presumption establishes for the jury, without presentation of any evidence on the topic, that the perpetrator possesses certain traits. The jurors may be either unwitting recipients or active participants in the implementation of the presumption. If the jury is unaware of the presumption (i.e., if the jury is simply informed that the perpetrator possesses certain traits), then the prosecution both creates the presumption and implements it for the jury. If, instead, the jury is informed of the presumption (i.e., if the jury is informed that the perpetrator possesses certain traits because the defendant possesses those traits), the presumption functions as a silent instruction to the jury: “If you find that the defendant possesses certain traits, you must also find that the perpetrator possesses those traits.” Implicit is the subtle message that the defendant is the perpetrator. This message to the jury even further lightens the prosecution’s burden of proving the required facts.

The effect of these evidentiary infractions is severe. For example, since it is presumed that the perpetrator has black hair, blue eyes, and 5-foot 8-inch stature, the jurors willingly infer that because the defendant also possesses those traits, the defendant resembles the perpetrator and probably is the perpetrator. This ostensibly logical but entirely circular inference allows the defendant’s traits to be used as incriminating evidence without any basis in proof whatsoever. The defendant necessarily possesses those traits—to his prejudice—because it is his traits that have been added to the perpetrator’s description. The jury’s conclusion that the defendant resembles the perpetrator is based only on the fact that the defendant possesses his own traits. Ironically, the defendant becomes the link between the perpetrator and the defendant—the defendant’s own traits establish the perpetrator’s traits, and the defendant’s inescapable possession of those traits incriminates him.

In this case, the FBI and the prosecution committed this fundamental violation by relying on defendant’s traits, rather than on independent proof of the perpetrator’s traits, to establish the preliminary facts necessary to render the DNA evidence relevant. Specifically, the FBI relied on proof of defendant’s genetic profile to establish the preliminary fact of the perpetrator’s genetic profile, and the prosecution relied on proof of defendant’s ethnicity to establish the preliminary fact of the perpetrator’s ethnicity. This improper reliance on defendant was founded on and legitimized by the underlying assumption that defendant was in fact the perpetrator and thus could be substituted for the perpetrator for the purpose of demonstrating relevance and admissibility. In sum, reliance on defendant’s traits added unproved traits to the perpetrator’s profile and provided an illegitimate foundation for the admission of the DNA evidence.

With this brief background, we summarize the two issues in this case:

(1) A genetic profile is a compilation of several genotypes (here, three). In this case, the evidence established that one of the perpetrator’s genotypes (D2S44; hereafter D2) was not discernible from a mixed perpetrator/victim DNA sample by the standard method of autoradiograph (autorad) interpretation, and that the two alternative methods to discern the genotype were improper. The first alternative method, reference to defendant’s genotype, was not permissible to establish the perpetrator’s genotype because the perpetrator’s genotype should have been determined independently of the defendant’s genotype. The second alternative method, band-intensity analysis, was not permissible to discern the perpetrator’s genotype because that method was subject to appropriate Kelly scrutiny, which it had not yet undergone. Therefore, the perpetrator’s D2 genotype was discerned by an improper scientific procedure and the improperly discerned genotype was unreliable and inadmissible under Kelly and section 405. Furthermore, the FBI’s subsequent use of the improperly discerned D2 genotype to declare defendant a match and to calculate the statistical profile frequency also amounted to improper procedure. In simple terms, if the FBI’s determination of the perpetrator’s D2 genotype was wrong, there was potentially no match and there was conceivably exoneration.

Moreover, the perpetrator’s genotype was a preliminary fact required for the relevance of both the match evidence and the statistical evidence. Without adequate proof of that preliminary fact, there was insufficient foundation under section 403 to admit the DNA evidence.

The trial court abused its discretion by failing to find the FBI’s procedure improper, by implicitly finding sufficient evidence of the preliminary fact of the perpetrator’s genotype based on defendant’s genotype, and by admitting the DNA evidence, which was irrelevant without that foundation.

(2) The frequency of each allele making up a genetic profile is calculated from a database containing allele frequencies collected from the perpetrators’ population. In this case, the allele frequencies were calculated from a Hispanic database. Thus, the statistical evidence presented to the jury was the frequency of the genetic profile in the Hispanic population (1 in 250,000 Hispanics). This Hispanic profile frequency was not relevant to prove the rarity of the perpetrator’s profile in the perpetrators’ population unless there was sufficient evidence to establish the preliminary fact that the perpetrator was Hispanic. (§ 403.)

Although we do not decide whether there was in fact sufficient evidence to establish that the perpetrator was Hispanic, the record clearly demonstrates that the prosecution relied on defendant’s ethnicity, rather than the perpetrator’s, to establish that preliminary fact. Reference to defendant’s ethnicity was not permissible to establish the perpetrator’s ethnicity, which should have been determined independently.

Due to these foundational errors, the jury received potentially unreliable and irrelevant evidence regarding both the match between the perpetrator’s and defendant’s genetic profiles and the rarity of the perpetrator’s profile in the population.

STATEMENT OF THE CASE

The following statement of the case is taken from our opinion in Pizarro I:

“On August 11, 1989, an information was filed alleging [defendant] Michael A. Pizarro had committed the following crimes: count I, murder of [the victim] (Pen. Code, § 187) with the special circumstances that the murder was committed while [defendant] was engaged in the crime of rape (Pen. Code, § 190.2, subd. (a)(17)), and that the murder was committed while [defendant] was engaged in the crime of a lewd or lascivious act upon a child under age 14 (Pen. Code, § 190.2, subd. (a)(17)); count II, forcible lewd or lascivious act on a child under age 14 (Pen. Code, § 288, subd. (b)); and count III, forcible rape (Pen. Code, § 261, subd. (a)(2)).

“On August 17, 1989, [defendant] was arraigned and pleaded not guilty.

“On May 22, 1990, jury selection commenced. On May 31, 1990, during trial, a Kelly/Frye[] hearing was held to determine the admissibility of the results of DNA identification evidence and the trial court ruled the results were admissible.

“On June 6, 1990, the jury returned verdicts finding [defendant] guilty of all counts and also finding the charged special circumstances to be true.

“On July 3, 1990, [defendant] was sentenced to life in prison without the possibility of parole on count I, to be served consecutively to the upper term of eight years on count II. The sentence on the rape count was stayed pursuant to Penal Code section 654.

“On July 6, 1990, [defendant] filed his notice of appeal.” (Pizarro I, supra, 10 Cal.App.4th at pp. 60-61.)

On appeal, we remanded the case to the trial court for a full-blown evidentiary hearing to determine the general scientific acceptance of the FBI’s DNA profiling procedure and the FBI’s Hispanic database. (Pizarro I, supra, 10 Cal.App.4th at pp. 95-96.) On March 19, 1998, after a hearing conducted in 1994 and 1995, the trial court found the procedure and the database generally accepted and the evidence admissible. Defendant filed a timely notice of appeal. After publishing our opinion, we granted the People’s petition for rehearing.

STATEMENT OF FACTS

The following statement of facts is also taken from Pizarro I:

“On June 10, 1989, [defendant], along with his wife, Sandy, and his five-month-old son, drove from Clovis to North Fork, California, to visit his family. They arrived around noon and, soon thereafter, [defendant] went to a schoolyard to play basketball with a friend. Following the basketball game, [defendant] visited the home of his friend and also spent time at Manzanita Lake. [Defendant] then returned to his mother’s house and, later that evening (about 8 p.m.), he and his wife went to a party at a mobilehome park in town. [Defendant]’s 13-year-old half sister, [the victim], was also at the party.

“[Defendant] had consumed beer throughout the afternoon and he continued to drink at the party. Because Sandy wanted to leave before [defendant] was ready to go, she and [defendant] argued and Sandy left without him— then returned to try to persuade [defendant] to join her. Eventually, [defendant] began walking toward his mother’s house. Sandy followed in their truck and repeatedly asked [defendant] to get inside with her. [Defendant] ignored the requests and behaved erratically, crisscrossing the road, lying in front of the truck and, occasionally, hiding from Sandy. After approximately a half hour, Sandy left [defendant] in the road and drove to the home of her mother-in-law, Chris Conston.

“Sandy arrived at the Conston house about 1 a.m. [The victim], who had returned from the party earlier, agreed to accompany Sandy back to the area where she had left [defendant]. [The victim]’s mother gave her a flashlight before she left with Sandy and the Pizarros’ baby in their truck.

“Thereafter, Sandy and [the victim] saw [defendant] walking towards town but when they approached him, [defendant] ran. When Sandy turned around to follow, [defendant] ran up an embankment and Sandy shined the flashlight on him. [Defendant] then came down from the embankment and, again, began running for town. Sandy stopped the truck and [the victim], who had been holding the baby, put the child down on the seat and got out, taking the flashlight with her. Sandy watched [the victim] cross the street towards the area where [defendant] had gone. Sandy picked up her baby and closed the passenger door. When she looked up, [the victim] was gone.

“Sandy called out for [defendant] and [the victim] but there was no response. She circled her truck around and yelled for them to turn on the flashlight or say something to let her know they were all right. She then saw a flash of light coming from the area where she had last seen [the victim]. She then heard a scream and, immediately following the scream, a slight muffled sound. Frightened, she returned to the Consten house and told her mother-in-law what had happened. It was then almost 2:30 a.m.

“Chris Consten called 911 and Sandy arranged to meet sheriff’s deputies at Sierra Automotive which she believed was near the area where [defendant] and [the victim] had last been seen. At 2:51 a.m., within 20 minutes after the 911 call, Madera County Sheriff’s Deputy Weisert met Sandy and was directed to the place where Sandy thought [defendant] and [the victim] had gone.[] Another deputy and Chris Consten also went to the area and they drove up and down the road calling for [the victim] over a public address system. There was no response and, soon after 4 a.m., the officers left the area. After waiting for Sandy’s parents to come for Sandy, Chris Consten also went home.

“About 5:50 a.m., [defendant] showed up alone at his mother’s house. He was dirty, sleepy and appeared to his mother to be drunk. [Defendant] told his mother that, on his way home, a man had confronted him and accused him of kidnapping his sister.[] Mrs. Consten then left to search for [the victim] at a friend’s house and [defendant] went to sleep.

“Shortly after 7 a.m., officers again began searching the area which Sandy Pizarro had pointed out. When they were unable to find [the victim], Deputy Lidfors went to the Consten home at about 8 a.m. to talk to [defendant]. [Defendant] was awakened and he told the officer to look at another location approximately one-tenth of a mile farther west from the area where they had been searching. During this conversation, [defendant] did not appear intoxicated or ‘hung over’ to the officer.

“Deputy Lidfors, along with Deputy Nelson, went to the area described by [defendant] and there they found [the victim]’s body. [The victim]’s pants had been removed and her underpants were down around her right foot; her T-shirt and bra were pushed up above her breasts. Deputy Lidfors noticed bruises on [the victim]’s face and blood smears on her stomach and leg. Her flashlight was lying by her feet.

“An autopsy was performed and the pathologist, Dr. Gerald Dalgleish, determined that suffocation was the cause of death. He also noted the presence of bruises on the right side of the victim’s face as well as swelling and discoloration around her lips and a mark on her nose. [The victim] had been alive when the injuries to her face were inflicted and the pathologist believed that the flashlight could have been the instrument which caused some of the injuries. Semen was present in [the victim]’s vagina.

“On the morning [the victim]’s body was found, [defendant] was taken to the sheriff’s substation and interviewed by Sergeant Gauthier. [Defendant] told Gauthier that, after [the victim] had followed him into the brush, he told her he was mad at his wife and did not want to return to the truck. He said he then started to walk up the hill but [the victim] was mad because he had taken her flashlight. He said he was several paces away from her so he turned to toss the flashlight back to her and then left. According to [defendant], that was the last time he had seen [the victim]. At the time of the interview, Sergeant Gauthier examined [defendant]’s hands and found that the knuckles on one of [defendant’s hands were red and swollen. Gauthier collected the clothes [defendant] was wearing and arranged to have samples of [defendant’s blood drawn.

“[Defendant] was also interviewed 10 days later by Madera County District Attorney investigator Fred Flores. [Defendant] told Flores that, after he had thrown the flashlight back to [the victim], he continued running up the hill and passed out about 100 yards later. [Defendant] claimed he did not know what occurred from that point until the time he awoke and walked to his mother’s house. When Flores asked [defendant] how he would feel about being arrested, [defendant] told Flores, ‘it would be a big mistake because [Flores] did not have enough proof.’ [Defendant] did not specifically deny having killed his sister in that conversation. He did deny that he had undressed.[]

“Forensic tests determined that [the victim]’s blood type was O and she was a nonsecretor. [Defendant]’s blood is type B and he is a secretor. Approximately 8 percent of the population is comprised of type B secretors. The semen which was present in the victim’s vagina was from a type B secretor. Additional vaginal swabs and reference blood samples from [defendant] and victim were sent to the Federal Bureau of Investigation^ (FBI) laboratory in Washington D.C. for deoxyribonucleic acid (DNA) genetic analysis.

“Dr. Dwight Adams, a special agent assigned to the FBI laboratory, performed DNA analysis on the evidence [in 1989].[] Dr. Adams concluded the DNA from the semen on the vaginal swabs matched the known blood sample of [defendant]. Using a data base from a Hispanic population, Dr. Adams noted that the likelihood of finding another unrelated Hispanic individual with a similar profile would be approximately 1 in 250,000.[]”

“Defense

“[Defendant] testified at trial. He said that he had consumed beer throughout the afternoon and evening and, by the time he arrived at the party at the mobilehome park, he was fairly intoxicated. While there, he continued to drink beer and mixed drinks. He testified that he remembered his argument with Sandy and leaving the party with the intention of walking to his mother’s house. He also recalled crisscrossing the road and lying down in front of the truck.

“When Sandy returned with [the victim], he attempted to hide and ran into the brush. He testified that [the victim] followed him but he told her that he and Sandy were having problems and that she should go home. According to [defendant], he took [the victim]’s flashlight and started walking away. He said that when [the victim] asked for the light, he turned and tossed it to her.

“Throughout his testimony, [defendant] maintained he remembered nothing from the time he threw the flashlight until he woke up in the brush. [Defendant] said that, when he awoke, he did not walk back to North Fork along the dirt road but instead cut through an area of brush and trees. [Defendant] claimed to have met a man in tan pants and a white shirt who he assumed was a law enforcement officer and who accused him of kidnapping his sister. He also said that he saw a full-size pickup on the road when it was fairly light out.[]

“[Defendant] testified that the injury to his hand had occurred at work. [Defendant] denied telling investigating officers that he had not removed his underwear or clothes, and claimed that he had actually told them he did not ‘believe’ he had undressed. He also said investigator Flores had mischaracterized his response to the question of how he would feel about being arrested. Rather than stating to Flores that it would be a mistake because there ‘wasn’t enough proof,’ [defendant] testified that he told Flores that Flores would be making a mistake ‘because [he] didn’t kill [the victim].’

“[Defendant] also testified that he had, in the past, suffered blackouts and loss of consciousness after drinking excessively and that such episodes began to occur more frequently after he suffered a head injury in 1985. He also admitted that he told an investigator that alcohol made him violent.

“[Defendant]’s mother also testified for the defense. She said [defendant] and [the victim] had been close. Although [defendant] had scratches on him when he appeared at her home in the morning, the scratches did not appear to her to have been made by a person; she assumed he had been scratched by bushes. Mrs. Consten recalled that, when [defendant] learned his sister was dead, he put his head in her lap and cried.

“Guy Clements was the final defense witness at trial. Mr. Clements was working as a newspaper delivery person on June 11, 1989. He testified that he was driving near the area where [the victim]’s body was found, about 1:30 a.m., when he saw a red Datsun pickup stopped in the middle of the road. It appeared to him that there was a man inside the truck.[]” (Pizarro I, supra, 10 Cal.App.4th at pp. 61-66.)

DISCUSSION

Defendant contends proper scientific methods were not followed in this particular case. He raises his contentions under the third prong of Kelly, in which the Supreme Court articulated this three-step test for the admission of evidence generated by a new scientific procedure: (1) the reliability of the procedure must be sufficiently established to have gained general acceptance in the relevant scientific community; (2) the witness providing the evidence must be properly qualified as an expert; and (3) the evidence must establish that, in the particular case, the correct and accepted scientific procedure was actually followed. (People v. Kelly, supra, 17 Cal.3d at p. 30.)

Specifically, defendant argues that proper scientific procedures were not followed in this case because (1) all possible genotypes in a mixed sample were improperly unaccounted for; (2) evidence of the Hispanic profile frequency was improperly admitted without sufficient evidence that the perpetrator was Hispanic; (3) the statistical window was too small; (4) the statistical window was improperly centered on the average of the perpetrator’ s and defendant’s allele measurements; (5) the H2 Hispanic database was defective; (6) evidence of the possibility of laboratory error should have been presented in addition to the profile frequency; and (7) evidence of a confidence interval should have been presented in addition to the profile frequency Defendant also argues that, in the event we find the evidence admissible, he should receive a new trial so his evidentiary challenges can be heard by the jury that determines his guilt, and, lastly, that his counsel was ineffective for failing to properly contest the DNA evidence.

I. KELLY

In Kelly, the Supreme Court spoke to the dangers of scientific evidence and its power to mystify and impress a jury. The court formulated a test composed of three prongs, the first and third of which specifically address the scientific procedures used to generate the scientific evidence against the defendant. The first prong requires that the scientific procedures be reliable, as shown by their general acceptance by scientists in the relevant field. The third prong requires that the reliable, generally accepted procedures were actually followed or complied with in the particular case before the court. (People v. Kelly, supra, 17 Cal.3d at p. 30.) The party offering the evidence has the burden of proving its admissibility by a preponderance of the evidence. (People v. Ashmus (1991) 54 Cal.3d 932, 970 [2 Cal.Rptr.2d 112, 820 P.2d 214].)

The Kelly test is an evidence-screening device that targets highly sophisticated scientific evidence that to the average juror would be not only incomprehensible in process but also irresistibly convincing in result. The test requires that such evidence pass the court’s scrutiny before it is submitted to the jury—it “is intended to forestall the jury’s uncritical acceptance of scientific evidence or technology that is so foreign to everyday experience as to be unusually difficult for laypersons to evaluate. [Citation.] In most other instances, the jurors are permitted to rely on their own common sense and good judgment in evaluating the weight of the evidence presented to them. [Citations.] [f] DNA evidence is different.” (People v. Venegas, supra, 18 Cal.4th at p. 80.) “Lay jurors tend to give considerable weight to ‘scientific’ evidence when presented by ‘experts’ with impressive credentials.” (People v. Kelly, supra, 17 Cal.3d at p. 31.) “ ‘[Scientific proof may in some instances assume a posture of mystic infallibility in the eyes of a jury ....’ [Citation.]” (Id. at p. 32.) “Unlike fingerprint, shoe track, bite mark, or ballistic comparisons, which jurors essentially can see for themselves,” questions concerning sophisticated scientific concepts, procedures, and laboratory compliance require educated expert testimony. (People v. Venegas, supra, 18 Cal.4th at p. 81.)

“ ‘It is our duty ..., where the life or liberty of a defendant is at stake, to be particularly careful that there is not only substantial evidence to support the implied finding of [defendant’s] identity but that the finding is based upon admissible and nonprejudicial evidence.’ ” (People v. Kelly, supra, 17 Cal.3d. at p. 36.) Because of the immense power of scientific evidence, the Kelly test goes to the admissibility, not the weight, of the evidence. (Id. at pp. 30-32.)

A. KELLY’S FIRST PRONG

In the Kelly review process, the trial judge serves as gatekeeper, allowing only evidence that is sufficiently reliable and trustworthy to reach the jurors. In performing this function in the context of scientific evidence, the judge must rely on the educated testimony of scientific experts. Thus, the first prong of the Kelly test—the general acceptance of the procedure by the relevant scientific community—is intended to confirm the reliability of a procedure too sophisticated or technical for the average lay person to readily understand. (See People v. Kelly, supra, 17 Cal.3d at pp. 30-32; Frye v. United States, supra, 293 F. 1013.) The first prong “assures that those most qualified to assess the general validity of a scientific method will have the determinative voice.” (People v. Kelly, supra, 17 Cal.3d at p. 31.) It is “intended to interpose a substantial obstacle to the unrestrained admission of evidence based upon new scientific principles .... [A] ‘... misleading aura of certainty ... often envelops a new scientific process, obscuring its currently experimental nature.’ [Citations.] ... [][] Exercise of restraint is especially warranted when the identification technique is offered to identify the perpetrator of a crime. “ ‘When identification is chiefly founded upon an opinion, which is derived from utilization of an unproven process or technique, the court must be particularly careful to scrutinize the general acceptance of the technique.” ’ [Citation.]” (Id. at pp. 31-32.)

The question of general scientific acceptance may be answered by prior case law: “[Q]nce a trial court has admitted evidence based upon a new scientific technique, and that decision is affirmed on appeal by a published appellate decision, the precedent so established may control subsequent trials, at least until new evidence is presented reflecting a change in the attitude of the scientific community.” (People v. Kelly, supra, 17 Cal.3d. at p. 32; People v. Venegas, supra, 18 Cal.4th at p. 54 [trial court could properly rely on a published appellate decision as establishing general scientific acceptance].) However, the published decision does not serve as precedent when there is proof of a “material scientific distinction” between the methodology approved by the published case and that used in the case before the court; materially distinct procedures must pass first-prong scrutiny independently. (People v. Venegas, supra, 18 Cal.4th at p. 54.)

B. KELLY’S THIRD PRONG

The third Kelly prong is a case-specific inquiry that asks: Were the proper scientific procedures (those that have been deemed generally accepted under the first prong) followed in this easel (People v. Venegas, supra, 18 Cal.4th at p. 78.) Or, here, did the FBI scientists follow correct scientific procedures when they performed the DNA testing in Pizarro’s case?

The Venegas court comprehensively explained Kelly’s third prong:

“The Kelly test’s third prong ... assumes the methodology and technique in question has already met [the general acceptance] requirement. Instead, it inquires into the matter of whether the procedures actually utilized in the case were in compliance with that methodology and technique, as generally accepted by the scientific community. [Citation.] The third-prong inquiry is thus case specific; ‘it cannot be satisfied by relying on a published appellate decision.’ [Citation.]

“...‘Due to the complexity of the DNA multisystem identification tests and the powerful impact that this evidence may have on a jury, satisfying Frye [i.e., satisfying Kelly’s first prong] alone is insufficient to place this type of evidence before a jury without a preliminary critical examination of the actual testing procedures performed ....’ [Citation.] [f] ... [][]

“[Questions concerning whether a laboratory has adopted correct, scientifically accepted procedures for [DNA testing] or determining a [profile] match depend almost entirely on the technical interpretations of experts. [Citation.] Consideration and affirmative resolution of those questions constitutes a prerequisite to admissibility under the third prong of Kelly.

“The Kelly test’s third prong does not, of course, cover all derelictions in following the prescribed scientific procedures. Shortcomings such as mislabeling, mixing the wrong ingredients, or failing to follow routine precautions against contamination may well be amenable to evaluation by jurors without the assistance of expert testimony. Such readily apparent missteps involve ‘the degree of professionalism’ with which otherwise scientifically accepted methodologies are applied in a given case, and so amount only to ‘[cjareless testing affect[ing] the weight of the evidence and not its admissibility’ [citation].

“The Kelly third-prong inquiry involves further scrutiny of a methodology or technique that has already passed muster under the central first prong of the Kelly test, in that general acceptance of its validity by the relevant scientific community has been established. The issue of the inquiry is whether the procedures utilized in the case at hand complied with that technique. Proof of that compliance does not necessitate expert testimony anew from a member of the relevant scientific community directed at evaluating the technique’s validity or acceptance in that community. It does, however, require that the testifying expert understand the technique and its underlying theory, and be thoroughly familiar with the procedures that were in fact used in the case at bar to implement the technique. [Citations.]” (People v. Venegas, supra, 18 Cal.4th at pp. 78-81.)

“The third-prong hearing ‘will not approach the “complexity of a full-blown” Kelly hearing. [Citation.] “All that is necessary in the limited third-prong hearing is a foundational showing that correct scientific procedures were used.” [Citation.]’ [Citation.] Where the prosecution shows that the correct procedures were followed, criticisms of the techniques go to the weight of the evidence, not its admissibility. [Citations.]” (People v. Brown (2001) 91 Cal.App.4th 623, 647 [110 Cal.Rptr.2d 750].) Similarly, where there is substantial evidence showing both that the procedures were followed and that they were not followed, the question is one for the jury to resolve. (People v. Venegas, supra, 18 Cal.4th at p. 91.) But where defense evidence establishes a failure in procedure, and that failure is not contradicted by substantial evidence, then the scientific evidence produced as a result of that incorrect procedure is inadmissible. (See id. at pp. 91-92.)

C. STANDARDS OF REVIEW

1. First Prong: De Novo

When the trial court relies on a published appellate decision finding general scientific acceptance of a scientific procedure, the appellate court upholds the trial court’s ruling unless there is proof of a material scientific distinction between the accepted procedure and that used in the particular case. (People v. Venegas, supra, 18 Cal.4th at pp. 53-54.) But when the trial court independently concludes that a new scientific technique has been generally accepted, the appellate court independently reviews that conclusion. (Id. at p. 85.) “The preliminary showing of general acceptance of the new technique in the relevant scientific community is a mixed question of law and fact. [Citations.]” (People v. Axell, supra, 235 Cal.App.3d at p. 854.) “[I]n reviewing the scientific acceptance of [a methodology] de novo under Kelly, we are not required to decide whether such methodology is ‘reliable as a matter of “scientific fact,” but simply whether it is generally accepted as reliable by the relevant scientific community.’ [Citation.] ‘ “General acceptance” under Kelly means a consensus drawn from a typical cross-section of the relevant, qualified scientific community.’ [Citation.] The Kelly test does not demand ‘absolute unanimity of views in the scientific community .... Rather, the test is met if use of the technique is supported by a clear majority of the members of that community.’ [Citation.]” (People v. Venegas, supra, 18 Cal.4th at p. 85.) Conversely, the test fails if “ ‘ “scientists significant either in number or expertise publicly oppose [a technique] as unreliable.” ’ [Citations.]” (People v. Axell, supra, 235 Cal.App.3d at p. 854.) “In determining the question of general acceptance, courts ‘must consider the quality, as well as quantity, of the evidence supporting or opposing a new scientific technique. Mere numerical majority support or opposition by persons minimally qualified to state an authoritative opinion is of little value ....’ [Citation.]” (People v. Venegas, supra, 18 Cal.4th at p. 85.)

“Because the technical complexity of many new scientific procedures may prevent lay judges from determining the existence, degree, or nature of a scientific consensus without the testimony and interpretation of qualified experts in the field, Kelly/Frye properly emphasizes the record made at trial. [Citation.]” (People v. Axell, supra, 235 Cal.App.3d at p. 854.) In addition to reviewing the trial court record, the appellate court may also independently survey the scientific literature and case law to determine whether acceptance of the procedure does indeed exist. (Ibid.)

2. Third Prong: Abuse of Discretion

In contrast to first-prong issues, the trial court’s third-prong conclusions that proper procedures were followed in the particular case are reviewed for abuse of discretion. (People v. Venegas, supra, 18 Cal.4th at p. 91.) The appellate court is “required to accept the trial court’s resolutions of credibility, choices of reasonable inferences, and factual determinations from conflicting substantial evidence. [Citation.]” (Ibid.) We thus consider whether there is substantial evidence in the record to support the conclusion that the procedures were in fact performed in a manner fully consistent with the underlying science such that they produced reliable results. (Id. at pp. 91-92.)

“ ‘This standard is deferential. [Citations.] But it is not empty. Although variously phrased in various decisions [citation], it asks in substance whether the ruling in question “falls outside the bounds of reason” under the applicable law and the relevant facts [citations].’ ” (People v. Garcia (1999) 20 Cal.4th 490, 503 [85 Cal.Rptr.2d 280, 976 P.2d 831].) “Abuse may be found if the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner, but reversal of the ensuing judgment is appropriate only if the error has resulted in a manifest miscarriage of justice. [Citations.]” (People v. Coddington (2000) 23 Cal.4th 529, 587-588 [97 Cal.Rptr.2d 528, 2 P.3d 1081], overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13 [108 Cal.Rptr.2d 409, 25 P.3d 618].) “The governing canons are well established: ‘This discretion ... is an impartial discretion, guided and controlled by fixed legal principles, to be exercised in conformity with the spirit of the law, and in a manner to subserve and not to impede or defeat the ends of substantial justice. [Citations.]’ [Citation.] ‘Obviously the term is a broad and elastic one [citation] which we have equated with “the sound judgment of the court, to be exercised according to the rules of law.” [Citation.]’ [Citation.] Thus, ‘[t]he courts have never ascribed to judicial discretion a potential without restraint.’ (Ibid.) ... ‘[A]ll exercises of legal discretion must be grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue.’ [Citation.]” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977 [60 Cal.Rptr.2d 93, 928 P.2d 1171].)

“A trial court abuses its discretion when the factual findings critical to its decision find no support in the evidence .... ‘[I]t would seem obvious that, if there were no evidence to support the decision, there would be an abuse of discretion.’ ” (People v. Cluff (2001) 87 Cal.App.4th 991, 998 [105 Cal.Rptr.2d 80].) Thus, when the defense establishes that proper scientific procedures were not followed, and the prosecution fails to present “substantial evidence upon which to base a contrary conclusion,” the prosecution has failed to carry its burden and the trial court’s admission of the evidence constitutes an abuse of discretion. (People v. Venegas, supra, 18 Cal.4th at p. 93.)

II. RELEVANT HISTORY

In People v. Axell, supra, 235 Cal.App.3d 836, filed in October 1991, the court ruled that the general RFLP methodology used by Cellmark had gained general scientific acceptance. (Id. at pp. 853-863.) In August 1992, the court in People v. Barney, supra, 8 Cal.App.4th 798, relying primarily on Axell, rejected challenges to the general acceptance of the preparatory RFLP procedures (up to the statistical analysis) conducted by both Cellmark and the FBI. (People v. Barney, supra, 8 Cal.App.4th at pp. 811-814; see also People v. Venegas, supra, 18 Cal.4th at p. 77.)

In October 1992, we filed our first opinion in the present case (Pizarro I, supra, 10 Cal.App.4th 57), in which defendant claimed the FBI’s RFLP methodology had not been deemed generally accepted. Concerned by the differences between the protocols used by Cellmark in Axell and by the FBI in this case, and by the lack of evidence that the protocols were the same, we held the evidence insufficient to establish general scientific acceptance of the FBI’s technique (Pizarro I, supra, at pp. 79-80), and remanded the case for a complete Kelly hearing. That hearing took place in 1994 and 1995. In its 1998 ruling, the trial court stated that we remanded the matter for a Kelly hearing to determine (1) whether the DNA testing method used by the FBI in this case was generally accepted by the scientific community, and (2) whether the database used by the FBI in this case was generally accepted by the scientific community. The trial court found the evidence admissible, ruling as follows: “There is general acceptance in the scientific community of the DNA testing method used by the FBI” and “The data base used by the FBI to calculate statistical probability estimates was, and is, accepted in the scientific community.” The court did not directly mention third-prong issues regarding whether the FBI followed correct scientific procedures. The court denied the motion to exclude the DNA evidence and confirmed the conviction.

Two months after the trial court’s ruling, the Supreme Court published Venegas, which concluded that “the Axell and Barney opinions clearly established the general scientific acceptance, under Kelly's first prong, of the basic RFLP methodology utilized by the FBI....” (People v. Venegas, supra, 18 Cal.4th at p. 79.) Unless there was proof the FBI’s procedure was materially distinct from the basic RFLP procedure deemed approved by Axell and Barney, these opinions served as precedent for a first-prong challenge. (Venegas at pp. 53, 78-79.) In effect, Venegas determined that once the basic procedure was deemed accepted, the burden fell on the opponent of the evidence to show that the procedure in the case before the court differed materially from the accepted basic procedure. If the opponent could not do so, then the first prong remained satisfied by precedent.

We review this case in light of these developments.

III. SCIENCE

A. INTRODUCTION

As we have stated, forensic DNA profiling is intended to demonstrate two facts: first, that the defendant could be the perpetrator because his genetic profile matches the perpetrator’s; and second, that a certain number of people in the population could be the perpetrator because their genetic profiles match the perpetrator’s. The first fact allows the prosecution of the defendant to continue (a profile nonmatch would exonerate him); the second allows the jury to weigh the value of the first. (See Nat. Research Council, DNA Technology in Forensic Science (1992) p. 51 (hereafter NRCI).)

A genetic profile is much like a physical profile or composite sketch—it is a compilation of traits to describe the perpetrator. The profiler or sketch artist attempts to include as many of the perpetrator’s traits as possible because the more traits described, the more specific the sketch of the perpetrator and the more limited the pool of possible perpetrators. A physical profile that describes a perpetrator as having black hair, blue eyes, and 5-foot 8-inch stature limits the pool of possible perpetrators to people with these three traits. If a fourth trait — prominent ears, for example—is added to the profile, the description becomes more specific and the pool of possible perpetrators decreases further. In the same way, a genetic profile that describes a perpetrator as having certain genetic characteristics at three DNA loci limits the pool of possible perpetrators to people with those three traits. Again, if more loci are added to the profile, the description’s specificity increases and the pool of possible perpetrators decreases.

There are three basic theoretical steps or inquiries in RFLP genetic profiling. (1) What is the perpetrator’s profile? (2) Does the defendant match that profile? (3) How rare is that profile in the population? (NRCI, supra, at p. 51.)

B. THEORETICAL SUMMARY

Returning to the physical description scenario, we summarize these three theoretical steps, mindful that the genetic loci used for the genetic profiling have nothing to do with physical features; the comparison is strictly illustrative.

(1) Profiles—What is the perpetrator’s profile?

Metaphorically: The perpetrator has black hair, blue eyes, and 5-foot 8-inch stature.

Genetically: The perpetrator possesses certain alleles at three particular DNA loci.

(2) Matching—Does the defendant match that profile?

Metaphorically: Does the defendant also have black hair, blue eyes, and 5-foot 8-inch stature?

Genetically: Does the defendant’s genetic profile match the perpetrator’s at each allele of the three loci?

If so, the defendant resembles the perpetrator and cannot be excluded as a possible perpetrator; the case against the defendant may proceed.

If not, the defendant does not resemble the perpetrator and is excluded as a possible perpetrator; the defendant is exonerated.

(3) Statistical Probability—How many people in the relevant population match the perpetrator’s profile?

Metaphorically: How many people have black hair, blue eyes, and 5-foot 8-inch stature? (Or, how often would we expect to find a person with black hair, blue eyes, and 5-foot-8-inch stature?)

Genetically: How many people have alleles that match the perpetrators’ alleles? (Or, how often would we expect to find a person whose alleles match the perpetrators’ alleles?)

If the perpetrator’s traits commonly occur together commonly, the profile is common and the pool of possible perpetrators is fairly large. A common profile such as this benefits the defendant (who shares this profile). He will say, “A lot of people look like the perpetrator. The fact that I look like him too is nearly meaningless.”

If the perpetrator’s traits rarely occur together the profile is rare and the pool of possible perpetrators is very small. A rare profile such as this incriminates the defendant. The prosecutor will say, “Almost no one looks like the perpetrator. The fact that you look like him means you probably are him.”

C. PROCEDURAL SUMMARY

In RFLP, these three theoretical steps are implemented with three procedural steps: a molecular biology protocol to process the DNA and produce the genetic profiles; a matching protocol to determine whether, accounting for measurement imprecision, the perpetrator’s and defendant’s profiles match; and a statistical protocol to determine the rarity of the profile and the probability of a match. (NRCI, supra, at p. 51.)

(1) Profiles

1. Extraction and isolation of the DNA samples (perpetrator, victim, and defendant)

2. Cutting (digestion) of the DNA with a site-specific enzyme to create an enormous number of fragments

3. Separation of the DNA fragments according to size by gel electrophoresis

4. Transfer (blotting) of the separated DNA fragments from the gel onto a nylon membrane for convenience

5. Sequential probing (hybridization) of the separated DNA fragments attached to the membrane with various radioactive probes that attach to only two VNTR regions on the fragments (one region from each parent)

6. Autoradiography of each hybridization to memorialize the results on X-ray film

When this procedure is completed, the autorads are analyzed to determine whether the defendant’s profile matches the perpetrator’s.

(2) Matching

1. Preliminary visual examination of the autorads to determine whether each of the defendant’s alleles appears to be the same size as each of the perpetrator’s alleles (to eliminate obvious mismatches)

2. Computerized examination to measure the size of each allele

3. Calculation of “uncertainty windows” around each allele measurement (to account for measurement imprecision)

4. Determination of whether, for each allele, the defendant’s uncertainty window overlaps the perpetrator’s uncertainty window (so that the alleles could actually be the same size)

5. Declaration of a matching profile if overlap of uncertainty windows is found to occur at each allele

Last, the frequency or statistical probability of the perpetrator’s profile in the population is calculated.

(3) Statistical Probability

1. Calculation of a “statistical window” for each of the perpetrator’s alleles

2. Reference to database frequencies (using the statistical window) to assign a frequency to each of the perpetrator’s alleles

3. Calculation of the overall frequency of the perpetrator’s complete DNA profile in the database population (also called the random match probability)

We now address in more detail these three steps—profiles, matching, and statistical probability—discussing both theory and procedure.

D. PROFILES AND MATCHING 1. Theory

a. Profiles

Determination of a person’s genetic profile using RFLP relies on the differences in length of certain DNA regions, or alleles. (NRCII, supra, at p. 65.) In People v. Brown, supra, 91 Cal.App.4th 623, this court summarized the basis of variation between alleles and its utility to forensic DNA profiling. There, we analogized DNA to text:

“The genetics of a human cell can be compared to a library, the genome, composed of 46 ‘books,’ each a single chromosome. The ‘text’ contained in the books is written in DNA, the chemical language of genetics. The ‘library’ is compiled by the owner’s parents, each of whom contributes 23 books, which are then matched up and arranged together in 23 paired sets inside the sacrosanct edifice of the nucleus. During embryonic development, the original library is copied millions of times so that each cell in the human body contains a copy of the entire library.[]

“Twenty-two of the twenty-three paired sets of books are entitled ‘Chromosome 1’ through ‘Chromosome 22’; externally, the two paired books of each set appear to be identical in size and shape. However, the 23d set, which contains information on gender, consists of one book entitled ‘Chromosome X’ (given by the mother) and one book entitled either ‘Chromosome X’ or ‘Chromosome Y’ (given by the father and determining the sex of the library’s owner). The 22 sets comprising ‘Chromosome 1’ through ‘Chromosome 22’ address an enormous variety of topics describing the composition, appearance, and function of the owner’s body. In addition, they include a considerable amount of what appears to be nonsense. The two paired books of each set, one book from each parent, address identical topics, but may contain slightly different information on those topics. Thus, two paired books opened to the same page contain corresponding ‘paragraphs,’ but the text within those corresponding paragraphs may vary between the two books. For example, within the paragraph addressing eye color, one book may describe blue eyes while the other book of the set may describe brown eyes.[]

“The two corresponding, but potentially variant, paragraphs in the two paired books are called alleles. If, for a particular topic (i.e., at a particular region or locus on the DNA), the allele from the mother is A and the corresponding allele from the father is B, the genotype at that locus is designated AB. The text of two corresponding alleles at any locus may be identical (a homozygous genotype, e.g., AA) or different (a heterozygous genotype, e.g., AB). Regardless, one person’s genetic text is, in general, extremely similar to another person’s; indeed, viewed in its vast entirety, the genetic text of one human library is 99.9 percent identical to all others. A