Filed 8/28/15 In re V.Y. CA4/3

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


In re V.Y., a Person Coming Under the
Juvenile Court Law.


THE PEOPLE,
                                                                       G050861
     Plaintiff and Respondent,
                                                                       (Super. Ct. No. DL036834)
         v.
                                                                       OPINION
V.Y.,

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Lewis W.
Clapp, Judge. Affirmed.
                   Richard Schwartzberg, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and
Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
                                          INTRODUCTION
               The sole issue in this appeal is whether a DNA match calculated at one in a
trillion is evidence substantial enough to support a conviction beyond a reasonable doubt
in a case of auto theft. The DNA in question was collected from the driver’s side air bag
after the vehicle was found crashed into a guardrail.
               Appellant V.Y., who was a minor at the time of trial, appeals from his
conviction for auto theft, based on this DNA evidence that he was the driver of the stolen
vehicle. His conviction rests on substantial evidence, and we affirm it.
                                                  FACTS
               In July 2011, Heidi Cooper’s Toyota truck was stolen from the driveway of
her San Clemente home during the night. Cooper’s upstairs neighbor testified that he
saw someone drive the truck away at about one in the morning, but because of the
darkness and his angle of vision, he could not see faces. He testified there were two
people in the truck. It was found soon afterward crashed into a guardrail on the Pacific
Coast Highway about two miles from Cooper’s residence. The truck was a total loss.
               When the truck was discovered by police, the air bags had deployed. The
driver’s side air bags were swabbed and tested for DNA. DNA collected from the front
air bag matched appellant’s DNA. More precisely, appellant’s DNA “was not excluded”
as the DNA found on the air bag. The State’s expert testified that there was a one-in-a-
trillion chance that the DNA belonged to someone other than appellant. The world’s
current human population is estimated to be seven billion.
               The trial court was persuaded by the DNA evidence and found appellant
guilty of violating Penal Code section 10851, subdivision (a), unlawful taking of a
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vehicle.


       1
               Because appellant was a minor, the case was tried to the court.


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                                                 DISCUSSION
                  The ultimate issue before the juvenile court was whether appellant was the
person who stole Cooper’s truck. Appellant challenges the sufficiency of the evidence
supporting the court’s conclusion that he was.
                                                                           2
                  Appellant’s argument on appeal is twofold. First, he asserts that odds of
another person having the same DNA profile as his – one in a trillion – make identifying
him as the driver of the truck too close to call, even though there are not yet a trillion
people on the planet. He does not contest the procedure used to arrive at this figure or
any of the steps used to collect or process the DNA found at the scene of the crash.
                  We do not reweigh evidence on appeal. Instead we review “‘“the entire
record in the light most favorable to the prosecution to determine whether in contains
evidence that is reasonable, credible, and of solid value, from which a rational trier of fact
could find [the elements of the crime] beyond a reasonable doubt.”’ [CitationS.]” (In re
George T. (2004) 33 Cal.4th 620, 630.) “[A]n appellate court can only reject evidence
accepted by the trier of fact when the evidence is inherently improbable and impossible
of belief.” (People v. Xiong (2013) 215 Cal.App.4th 1259, 1268.)
                  A one-in-a-trillion chance that somebody else’s DNA came off the stolen
truck’s air bag strikes us as well within the sphere of “evidence that is reasonable,
credible, and of solid value” supporting the juvenile court’s conclusion that the DNA was
the appellant’s. (See People v. Banks (2014) 59 Cal.4th 1113, 1166 [1 in 17 million],
overruled on other grounds, People v. Scott (2015) 61 Cal.4th 363; People v. Brents
(2012) 53 Cal.4th 599, 604 [1 in 3,400]; People v. Soto (1999) 21 Cal.4th 512, 517 (Soto)



         2
                   In his reply brief, appellant makes an additional argument about the reliability of “cold-hit” DNA
matches. There was no testimony at appellant’s trial about a cold hit. His DNA was collected by means of a swab
of the inside of his cheek. The DNA laboratory used this sample to determine the probability that someone other
than appellant was the major contributor of the DNA on the air bag.


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[1 in 189 million].) It certainly is not evidence that is “inherently improbable and
impossible of belief.”
              Appellant’s second argument is that the DNA evidence is the sole piece of
evidence tying him to the theft, and we cannot affirm a conviction based on DNA
evidence alone, even if the DNA taken from the air bag was his. He bases this argument
on two California Supreme Court cases, People v. Venegas (1998) 18 Cal.4th 47
(Venegas) and Soto, supra, 21 Cal.4th 512. Both Venegas and Soto dealt with the
procedure used to determine a DNA match and specifically whether this procedure
enjoyed general scientific acceptance. (Venegas, supra, 18 Cal.4th at pp. 57-90; Soto,
supra, 21 Cal.4th at pp. 519-541.)
              Appellant cites a quotation from Venegas, repeated verbatim in Soto, that if
the testing does not eliminate the suspect as the source of the DNA, “[t]he fact finder’s
determination of guilt may then turn on the degree of probability that the suspect was
indeed the source of the sample. That probability, however, will usually depend, not on
the DNA findings alone, but on a combination of those findings together with other, non-
DNA incriminating evidence.” (Venegas, supra, 18 Cal.4th at p. 63; Soto, supra, 21
Cal.4th at p. 523.) From these two dicta, appellant derives a rule that DNA evidence
standing alone can never support a conviction.
              Appellant’s argument suffers from at least three deficiencies. First, the
statements in both Venegas and Soto are dicta. Neither case addressed what evidence, if
any, would be required to supplement DNA evidence to secure a conviction. Both were
concerned with the process of creating this evidence, a process combining biochemistry
and statistics, and its scientific underpinnings. A case does not stand for a proposition it
does not address. (See People v. Alvarez (2002) 27 Cal.4th 1161, 1176.)
              Second, neither Venegas nor Soto supports appellant’s categorical
conclusion. Neither case said that the fact finder always had to have evidence other than
DNA or that a conviction could never be based solely on DNA.

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              Finally, in this case, DNA was not the only evidence tying appellant to the
vehicle theft. There was also the short period, less than two hours, between the time the
truck was stolen (around 1 a.m.) and the time of the crash (sometime before 3 a.m., when
police notified Cooper that the truck had been found on PCH). This short time period, in
addition to the time of day, makes it quite unlikely that thieves handed the vehicle off to
appellant between the theft and the crash. It is more reasonable to conclude that appellant
was involved in the theft. Either the air bag deployed when the crash occurred or,
possibly, it deployed because of a defect while the truck was being driven and caused the
crash. Either way, DNA found on the air bag would have to come from the person who
was driving when it deployed. Until something sets it off, an air bag is inaccessible once
it has been installed, and there was no evidence appellant was ever employed in the
manufacture of airbags or automobiles.
              DNA evidence placed appellant in the truck, where he had no reason to be
unless he had stolen it, shortly after it was stolen and shortly before it was found wrecked
on the highway. The conviction rests on substantial evidence.
                                      DISPOSITION
              The judgment is affirmed.




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                     BEDSWORTH, J.

WE CONCUR:



O’LEARY, P. J.



RYLAARSDAM, J.




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