IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE OF THE STATE Court of Appeal No.F071640

OF CALIFORNIA,
Superior Court No. BF 151825A
Plaintiff-Respondent,

v.

BILLY RAY JOHNSON,

Defendant-Appellant.

Appeal From the Superior Court of Kern County

Honorable Gary T. Friedman, Judge

APPELLANT'S REPLY BRIEF

LAURA SCHAEFER
State Bar No. 138801
BOYCE & SCHAEFER
934 23rd Street
San Diego, CA 92102-1914
(619) 232-3320
Email: ls@boyce-schaefer.com

Attorney for Defendant-Appellant

BILLY RAY JOHNSON

By Appointment of the Fifth District

Court of Appeal under the Central
California Appellate Program
Independent Case System

I
 Table of Contents
Page

Table of authorities ......................................... 4-6

Argument ................................................... 7
I. Precluding the defense from examining the TrueAllele software's
source code to expose errors and cross-examine the prosecution's
expert about the code violated appellant's Fifth, Sixth and
Fourteenth Amendment rights, requiring reversal .............. 7

A. California's statutory scheme provides trial courts with the

means to protect trade secrets without violating the accused's
Fifth and Sixth Amendment rights to confrontation and due
process .......................................... 8

B. Application of the trade secret privilege to deny access to

evidence in criminal cases jeopardizes the accused's right to a
fair trial ......................................... 9

C. The defense made an adequate showing to warrant disclosure

of the trade secret, subject to the statutory protections of
Evidence Code sections 1061 and 1062 ............... 12

D. Appellant has a Fifth, Sixth and Fourteenth Amendment

right to pretrial access to the source code . . . . . . . . . . . . . . 15

E. Denying appellant access to the code at trial deprived

appellant of his Fifth, Sixth and Fourteenth Amendment rights
to confrontation, compulsory process and due process . . . . 18

F. The state has not met its burden of establishing the error is
harmless beyond a reasonable doubt .................. 20

II. The trial court prejudicially erred in refusing to allow Ms. Ryan to
testify regarding the assumptions made by the humans who input the
data into the TrueA!lele program, how those assumptions would
affect the results, and Dr. Perlin's selective reporting of
incriminating likelihood ratios reflected in Dr. Perlin's notes .... 24

2
 Table of Contents (continued)

A. Expertise in TrueAllele was not required for Ms. Ryan to

testifY to Dr. Perlin's notes, indicating he selectively reported
higher, more incriminating likelihood ratios ............ 24

B. Ms. Ryan was not permitted to testifY that the assumptions

made by Dr. Perlin and Mr. Sugimoto when they input the
data dramatically affected the results. This was apparent from
Dr. Perlin's own notes. This testimony did not require
expertise in TrueAllele and its exclusion misled the jury about
the reliability of the TrueAllele evidence .............. 25

C. Exclusion of this favorable defense evidence violated

appellants Fifth, Sixth and Fourteenth Amendment rights and
was not harmless beyond a reasonable doubt ........... 27

III. The trial court violated appellant's statutory right and his federal
constitutional right to a jury of his choice when the court discharged
a regular juror leaving only 11 jurors remaining .............. 29

A. The Legislature imposed a mandatory duty on the trial court

to discharge the jury after the regular juror was discharged for
cause, and no alternates were sworn. Respondent fails to
present persuasive evidence that the Legislature intended the
statute to be construed contrary to its plain language ..... 30

B. Appellant is not estopped from raising this claim ........ 32

C. The trial court's error deprived appellant of his federal

constitutional right to retain a chosen jury, requiring reversal
per se .......................................... 33

IV. The court erred in denying appellant's Batson-Wheeler motion .. 34

V. Conclusion ........................................... 36

Certificate of Word Count

Proof of Service

3
 Table of Authorities
D~ hp00
Ake v. Oklahoma (1985) 470 U.S. 68 ............................ 16
Batson v. Kentucky (1986) 476 U.S. 79 ........................ 34, 35
Bridgestone/Firestone, Incorporated v. Superior Court
(1992) 7 Cal.App.4th 1384 .......................... 9, 10, 14
California Teachers Assn. v. Governing Board of
Rialto Unified School District (1997) 14 Ca1.4th 627 .......... 30
Chambers v. Mississippi (1973) 410 U.S. 284 ...................... 28
Chapman v. California (1967) 386 U.S. 18 ........................ 20
Crist v. Bretz (1978) 437 U.S. 28
[57 L.Ed.2d 24, 32-33, 98 S.Ct. 2156] ................... 33, 34
Davis v. Alaska (1974) 415 U.S. 308 ............................. 18
Downum v. United States (1963) 372 U.S. 734 .................. 33, 34
In re Dupper (1976) 57 Cal.App.3d 118 .......................... 32
In re Winship (1970) 397 U.S. 358 .............................. 28
Jarrow Formulas, Incorporated v. LaMarche (2003) 31 Cal. 4th 728 .... 31
Kyles v. Whitley (1995) 514 U.S. 419 ............................ 17
Nolan v. City ofAnaheim (2004) 33 Cal.4th 335 ................. 30, 31
Pennsylvania v. Ritchie (1987) 480 U.S. 39 .................... 15, 17
People v. Armendariz (1984) 37 Cal.3d 573 ........................ 34
People v. Avila (2006) 38 Ca1.4th 491 ......................... 35, 36
People v. Cottle (2006) 39 Cal. 4th 246 ........................... 34
People v. Cree (1981) 123 Cal.App.3d 1013 ....................... 32
People v. Hammon (1997) 15 Ca1.4th 1117 .................. 15, 16, 17
People v. Hovarter (2008) 44 Cal. 4th 983 ......................... 18
People v. Lopez (2012) 54 Cal.4th 569 ........................... 13

4
 Table of Authorities (continued)
People v. Pizzaro (2003) 110 Cal.App.4th 530 ..................... 24
People v. Riggs (2008) 44 Ca1.4th 248 ........................... 34
People v. Venegas (1998) 18 Cal.4th 47 .......................... 23
People v. Wheeler (1978) 22 Cal.3d 258 ....................... 34, 35
People v. Whitaker (2013) 213 Cal.App.4th 999 ................. 33, 34
People v. Wilson (2006) 38 Ca1.4th 1237 ......................... 24
Solberg v. Superior Court (1977) 19 Cal.3d 182 .................... 31
Sturges v. Crowninshield (1819) 17 U.S. 122 ...................... 31
Taylor v. Illinois (1988) 484 U.S. 400 ............................ 28
Trope v. Katz (1995) 11 Ca1.4th 274 ............................. 30
United States v. Budziak (9th Cir. 2012) 697 F.3d 1105 .............. 13
United States v. Dioguardi (2d Cir. 1970) 428 F.2d 1033 .............. 7
United States v. Liebert (3d Cir. 1975) 519 F.2d 542 ................ 13
United States v. Nixon (1974) 418 U.S. 683.) ................... 17, 28
Unzueta v. Ocean View School Dist. (1992) 6 Cal.App.4th 1689 ....... 31
Statutes
Code of Civil Procedure 191 ................................. 32
Code of Civil Procedure 233 ........................ 29, 30, 31, 32
Evidence Code 402 ........................................ 26
Evidence Code 1060 ........................................ 7
Evidence Code 1061 .................................... 7, 8, 11
Evidence Code 1062. . .................................. 7, 8, 11
Evidence Code 1101 ........................................ 18

5
 Table of Authorities (continued)
Periodicals and Treatises
Rosenblatt, Kenneth, Criminal Law and the Information Age: Protecting
Trade Secrets from Disclosure in Criminal Cases,
8 The Computer Lawyer 15 ( 1991) ........................... 9
Wexler, Rebecca, Life, Liberty and Trade Secrets: Intellectual Property
in the Criminal Justice System, 70 Stan. L. Rev._
(forthcoming 2018) .................................. 10, 12
https:!/papers.ssrn.corn/sol3/papers.cfm?abstract id=2920883.

6
 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE OF THE STATE Court of Appeal No. F071640

OF CALIFORNIA,
Superior Court No.BF151825A
Plaintiff-Respondent,

V.

BILLY RAY JOHNSON,

Defendant-Appellant.

Argument

I. Precluding the defense from examining the TrueAIIele software's

source code to expose errors and cross-examine the
prosecution's expert about the code violated appellant's Fifth,
Sixth and Fourteenth Amendment rights, requiring reversal.

As Justice Friendly observed nearly 50 years ago: "It is quite

incomprehensible that the prosecution should tender a witness to state the
results of a computer's operations without having the program available for
defense scrutiny and use on cross-examination if desired." (United States v.
Dioguardi (2d Cir. 1970) 428 F.2d 1033, 1038.) In its reply brief,
respondent asks this Court to sanction the "incomprehensible." Respondent
asserts that the court did not err in denying the defense access to the
TrueAllele software code to evaluate it for errors and cross-examine the
prosecution's witness about the computer-generated results. (RB 1 74-81.)

"RB" refers to Respondent's Brief.

7
Precluding the defense from challenging the results of the TrueAllele
software violated appellant's Fifth, Sixth and Fourteenth Amendment rights
of due process, confrontation, and compulsory process, and requires
reversal.
A. California's statutory scheme provides trial courts with
the means to protect trade secrets without violating the
accused's Fifth and Sixth Amendment rights to
confrontation and due process.

Respondent argues that the TrueAllele software source code was

protected from disclosure to the defense by the trade secret privilege
codified in Evidence Code section 1060, but fails to address Evidence Code
sections 1061 and 1062, which adequately protects the disclosure of trade
secrets in criminal cases.
As argued in the Opening Brief, the California Legislature has
enacted a statutory scheme that recognizes the need for disclosure of trade
secrets in criminal cases, while minimizing the likelihood of harm to the
holder ofthe secret. (See AOB, pp. 53-55.) Evidence Code sections 1061
and 1062 authorize the trial court to issue protective orders and even close
the courtroom to the public to substantially reduce the risk of harmful
disclosure, while ensuring the defense is not impaired in its ability to
challenge the prosecution's evidence. Respondent has not addressed the
procedural mechanisms the Legislature has deemed adequate to protect
trade secrets in criminal cases, while ensuring the accused receives a fair
trial. The trial court also did not consider these alternatives to denying the
defense access to the code.
The drafter of the text of Evidence Code sections I 061, 1062 and
1063 assumed that trade secrets would be disclosed in criminal cases to

8
ensure the accused received a fair trial, but sought means to provide some
protection for them. The author of Evidence Code section 1061 and 1062,
Kenneth Rosenblatt of the Santa Clara's District Attorney's office,
described the statutes as "addressing one of the thorniest problems: how to
protect confidential information from disclosure during a criminal
prosecution without violating the defendant's Sixth Amendment right to a
fair trial and the public's First Amendment right to view criminal justice
proceedings." (Kenneth Rosenblatt, Criminal Law and the Information Age:
Protecting Trade Secrets from Disclosure in Criminal Cases, 8 The
Computer Lawyer 15 (1991).) Mr. Rosenblatt discusses the effect of the
statutes on the Sixth and First Amendment rights to a public trial, but
assumes the accused in criminal cases will have access to the trade secret
evidence.
The statutes authorize the trial court to implement procedures
designed to minimize the risk of harm to the trade secret's owner, without
depriving the accused of a fair trial. (Evid. Code 1061, 1062.) The trial
court constitutionally erred by denying the defense access to the code
without employing these legislatively authorized means of protecting the
trade secret.
B. Application of the trade secret privilege to deny access to
evidence in criminal cases jeopardizes the accused's right
to a fair trial.

Respondent argues appellant failed to meet the burden of proving

that "the information sought is relevant and necessary to the proof of, or
defense against, a material element of one or more causes of action
presented in the case," citing Bridgestone/Firestone, Inc. v. Superior Court
(1992) 7 Cal.App.4th 1384, 1393 (Bridgestone). This standard, however,

9
was applied in the context of civil litigation, and should not apply in a
criminal prosecution.
As one commentator has noted, "applying the rules governing the
trade secrets privilege wholesale from civil to criminal proceedings will
almost certainly lead to systemic over-claiming [of the privilege] and
wrongful exclusion of evidence; place an unreasonable burden on criminal
defendants; and undermine the legitimacy of criminal proceedings by
privileging intellectual property interests over those of due process."
(Rebecca Wexler, Life, Liberty and Trade Secrets: Intellectual Property in
the Criminal Justice System, 70 Stan. L. Rev._ (forthcoming 2018),
available at: https://papers.ssrn.com/sol3/papers.cfin?abstract id=2920883.)
Civil litigation of trade secrets is difficult, expensive, and risky, especially
among business competitors. (Ibid.) This deters borderline and fraudulent
claims in the civil arena.
Very few criminal defendants, however, will have the resources to
challenge the existence of a trade secret. This may lead to over-assertion of
the privilege where no trade secret can be validly asserted. (Ibid.)
The "need" for disclosure of the information in a criminal case is
also different than in a civil case. In the civil context, once a party has
established the existence of a trade secret, the burden shifts to the adversary
to est11blish that "the information sought is relevant and necessary to the
proof of, or defense against, a material element of one or more causes of
action presented in the case." (Bridgestone, supra, 7 Cal.App.4th at 1393
This standard assumes that a plaintiff or defendant may have some
alternative means to prove their civil claim or assert an affirmative defense
against it.
This works in a civil case, but not in a criminal case, where the

10
 accused has the constitutional right to present evidence and cross-examine
the witnesses against him. A defendant in a criminal case should not have
to choose among alternative means of defending against a wrongful
conviction. He should be given the full measure of every legal means to
maintain his innocence; the Sixth Amendment guarantees this right. If
these incriminating computer-generated results are erroneous, appellant
should have been allowed in every reasonable way to show it.
Here, the prosecution chose to prove its case with the results of
software that uses a code the developer desires to keep secret. The defense
had no alternative means of challenging this aspect of the software results
without access to the code.
For this reason, respondent's argument that the defense could have
tried to attack the reliability of the results by the alternative means of cross-
examining the expert about his validation studies or the underlying Markov
Chain Monte Carlo mathematical model fails. Appellant should not be
forced to forego an attack on the reliability of the machine-generated result
simply because there may be other grounds for attacking the reliability of
the TrueAIIele results. It is the deprivation of the opportunity of producing
evidence which might cast doubt on the prosecution's case that is
jeopardized by the trial court ruling. And there is no way of knowing
whether errors in this undisclosed evidence might have been sufficient to
cast a reasonable doubt in the minds of appellant's jurors without defense
access to the code.
This constitutional right to challenge the evidence must be balanced
against the likelihood of harmful disclosure of the trade secret, which, with
the protections afforded by sections I 061 and I 062, is virtually non-existent
in a case such as this, not involving business competitors. "Courts presume

11
the risk of harm to be higher [from disclosure of trade secrets] if the parties
are business competitors." (Wexler, Life, Liberty and Trade Secrets:
Intellectual Property in the Criminal Justice System, 70 Stan. L. Rev._.)
Appellant (and his lawyer's) only interest in the source code is to challenge
the reliability of the evidence to avoid a wrongful conviction, not obtain a
competitive business advantage. Criminal contempt and a civil lawsuit are
adequate deterrence for the unlawful disclosure of a trade secret by defense
counsel or his expert.
A balancing of the important interests at stake should weigh in favor
of the constitutional right to a fair trial, allowing disclosure to defense
counsel and his experts, with issuance of a protective order and courtroom
closure to minimize any risk of harm to the developer.
C. The defense made an adequate showing to warrant
disclosure of the trade secret, subject to the statutory
protections of Evidence Code sections 1061 and 1062.

Respondent asserts, without discussion, that appellant failed "to

make a particularized showing why the source code was relevant and
necessary to his defense." (RB, p. 75-76.) Assuming without conceding
that the defense is required to make such a showing, the defense established
the relevance and necessity for disclosure of the source code, and the state
failed to establish appellant had alternative means for obtaining the code.
The source code is undoubtedly relevant. The prosecution, through
expert testimony, sought to show that the software provided reliable and
accurate information, and appellant wanted to show, through errors in the
instructions that tells the software how to analyze the data, that the software
is not reliable and failed to provide reliable results in this case particularly.
If the prosecution seeks to introduce computer-generated results, the

12
defense must have access to the data to challenge those results. (People v.
Lopez (2012) 54 Ca!.4th 569, 587 (cone. Opn. Werdegar, J.); United States
v. Budziak (9 1h Cir. 2012) 697 F.3d 1105.) Appellant discussed Lopez in the

Opening Brief at pages 58-59; respondent has not addressed it.

In Budziak, the FBI used a computer program called "EP2P" to
locate child pornography files on the defendant's computer. (!d. at 1107.)
Budziak argued access to the EP2P software was critical to Budziak's
ability to assess the program and the testimony of the FBI agents who used
it to build the case against him. Because the pornography distribution
charge against Budziak was premised on the FBI's use of the EP2P program
to download files from him, the court concluded that the functions of the
program were relevant to his defense. (!d. at 1112.) The Budziak court
reasoned, "'A party seeking to impeach the reliability of computer evidence
should have sufficient opportunity to ascertain by pretrial discovery whether
both the machine and those who supply it with data input and information
have performed their tasks accurately.'" (!d., quoting, United States v.
Liebert (3d Cir. 1975) 519 F.2d 542, 547-48.)
The government argued, as the state does here, that the defense
would derive no useful information from the software. (!d. at 113.) The
Budziak court rejected this argument: "[C]riminal defendants should not
have to rely solely on the government's word that further discovery is
unnecessary. This is especially so where, as here, a charge against the
defendant is predicated largely on computer software functioning in the
manner described by the government, and the government is the only party
with access to that software." (Ibid.)
Appellant's request was specific: he asked for the source code for the
TrueAllele software program used by Dr. Perlin and the Kern County crime

13
 laboratory to generate the likelihood ratios suggesting appellant's was
found at the various crime scenes. (See, e.g., 4 CT 902, 4 RT 432-33, 447,
451,23 RT 4103-4105.)
Revealing the source code was necessary. The only means of
obtaining the code was from Dr. Perlin. The court in Bridgestone, supra, 7
Cal.App.4th at 1393 placed the burden on "the trade secret claimant to
demonstrate that an alternative to disclosure will not be unduly burdensome
to the opposing side and that it will maintain the same fair balance in the
litigation that would have been achieved by disclosure." Dr. Perlin, through
the State, failed to establish any alternative to disclosure of the source code.
Respondent claims appellant's access to validation studies and the
underlying mathematical model of the program was sufficient. Although
the validation studies are relevant to establish the admissibility of the
evidence by showing the science has been accepted by the scientific
community, scientific testing admitted at trial is still subject to independent
expert review, to expose errors in the results generated. Appellant
established that the Kern County Laboratory and Cybergenetics reached
different likelihood ratios based on the same data. (4 RT 447-451.) These
differences cannot be explained away by peer-reviewed validation studies.
Adversarial review of the code- the instructions that tell the computer how
to analyze the data - might expose the flaws that caused this error. These
flaws could then be presented to the jury to cast doubt on Dr. Perlin's
claims that the software accurately determined that the DNA found at the
crime scenes belonged to appellant.
Appellant established that his access to the code was critical to
defending the charges against him, which the state proved by presenting the
jury with this DNA evidence linking him to the various crime scenes. The

14
trial court did not consider whether other means of protecting the trade
secret short of wholesale exclusion would be adequate in this case. The
trial court abused its discretion in denying appellant access to the code,
which would allow him to effectively cross-examine the experts regarding
the reliability of the software-generated results.
D. Appellant has a Fifth, Sixth and Fourteenth Amendment
right to pretrial access to the source code.

Respondent contends appellant has no pretrial right to access the

source code, citing People v. Hammon ( 1997) 15 Cal. 4th 1117 (Hammon).
Interpreted broadly, Hammon deprives appellant of the ability to effectively
challenge the forensic evidence presented against him at trial and
meaningfully cross-examine the state's expert witness in violation of his
Sixth Amendment right of confrontation? In reaching its decision, the
California Supreme Court in Hammon discussed the splintered plurality
opinion in Pennsylvania v. Ritchie (1987) 480 U.S. 39. (Hammon, supra, 15
Cal. 4th at 1126.) The Hammon court acknowledged that, in Ritchie, five
justices could not agree regarding whether the failure to disclose privileged
mental health records pretrial violated the defendant's right of
confrontation. (Hammon, supra, 15 Cal. 4th at 1126 [ "[I]t is not at all clear
"whether or to what extent the confrontation or compulsory process clauses

2
The California Supreme Court is revisiting its Hammon decision in
Facebook, Inc. v. Superior Court (2015) 240 Cal.App.4th, review granted
December 16, 2015, S230051, and will decide two issues that are relevant
to this case: (1) Does an order barring pretrial access to the requested
records violate defendants' right to compulsory process and confrontation
under the Sixth Amendment or their due process right to a fair trial? (2)
Should this court limit or overrule People v. Hammon (1997) 15 Ca1.4th
1117?

15
of the Sixth Amendment grant pretrial discovery rights to the accused."].)
In the absence of any definitive Supreme Court authority, the
Hammon court declined to extend a defendant's Sixth Amendment rights of
confrontation and cross-examination to authorize pretrial disclosure of
privileged information, but only because the court did not believe such an
extension was justified under the facts of that particular case. (/d. at 1127.)
The Hammon court reasoned that the trial court will "typically" not have
sufficient information pretrial to balance the defendant's need to challenge
the evidence at trial against the policy the privilege intends to serve. The
court expressed concern that if pretrial disclosure was permitted, it would
risk the unnecessary disclosure of privileged material. (Ibid.)
Those concerns are not present in this case involving the technology
relied upon by the prosecution's expert witnesses. Unlike the situation in
Hammon, where it was not clear whether the defense would need the
records to impeach the witness, the DNA evidence was the prosecution's
only evidence linking appellant to each of the various violent crime scenes;
there was no doubt it would be the lynchpin of the case.
More important, software-generated results are not the same as
mental health records. Determining whether source code contains errors is
complex and requires expert evaluation. To be adequately prepared, lawyers
have to consult with programming experts to review the data before trial
and take time to understand it. Counsel cannot effectively represent his
client without this expert assistance. (Ake v. Oklahoma (1985) 470 U.S. 68.)
The defense must have pretrial access to the technology that makes the
software work to be able to meaningfully challenge its reliability and
admissibility before trial.
A lawyer should not have to go to trial lacking critical expert

16
 evidence that can make or break a case. Counsel representing an indigent
client needs to obtain funding from the court for the expert. All of this takes
time. Requiring the defense to wait until the middle of trial to consult with
experts on complex programming issues is unworkable and deprives the
defendant of the ability to effectively challenge the prosecution's expert and
present his own expert evidence to counter the prosecution's evidence. For
these reasons, the Hammon holding should not apply to this kind of
evidence.
Appellant also has a due process right to the pre-trial disclosure of
the evidence. Although the source code is not in the physical possession of
the prosecutor, it is in the possession of a private corporation working with
the prosecution and the Kern County crime laboratory. The court in Kyles v.
Whitley (1995) 514 U.S. 419, 437-438 extended the prosecution's
obligations to disclose favorable evidence to the defense to entities acting
on the prosecution's behalf, like Dr. Perlin. (See, also Pennsylvania v.
Ritchie, supra, 480 U.S. 39 [Defendant has a due process right to relevant
confidential records maintained by county child protection agency].)
Finally, appellant has a right to obtain the source code under the
Sixth Amendment's Compulsory Process Clause. (United States v. Nixon
(1974) 418 U.S. 683.) In Nixon, the court required President Nixon to turn
over personal tapes to the defendants involved in Watergate. "The Sixth
Amendment explicitly confers upon every defendant in a criminal trial the
right "to be confronted with the witnesses against him" and "to have
compulsory process for obtaining witnesses in his favor." (Id. at 712.) The
court held the presidential privilege must yield to the defendant's right to a
fair trial. (!d. at 713.)

17
 E. Denying appellant access to the code at trial deprived
appellant of his Fifth, Sixth and Fourteenth Amendment
rights to confrontation, compulsory process and due
process.

Assuming appellant did not have a pretrial right of access to the

source code, appellant had a constitutional right to access the code at trial
to be able to effectively challenge the computer-generated results. Citing
People v. Hovarter (2008) 44 Ca1.4th 983, 2008, respondent summarily
argues that this is a "routine application of state evidentiary law" that does
not implicate appellant's constitutional rights. (RB, p. 78.) Respondent
also distinguishes Davis v. Alaska (1974) 415 U.S. 308, on its facts.
First, Hovarter has no application here. It involved a claim that the
court erroneously admitted the defendant's statements in violation of
Evidence Code sections 1101 and 352, and the state's hearsay rule.
(Hovarter, supra, 44 Cal.4th at 1006-1010.) The defendant did not make
any substantive constitutional arguments, and the court rejected the
defendant's constitutional claims on this basis. (!d. at 1010.)
Here, appellant has argued that the application of the state law
privilege violated his federal constitutional rights. (AOB, 50-51, 55-60, 64.)
Appellant argued the case of Davis v. Alaska, supra, 415 U.S. 308, for the
proposition that state evidentiary privileges must yield to the defendant's
Sixth Amendment right to confront the evidence the State presents against
him.
Respondent also makes the argument that appellant's Fifth and Sixth
Amendment rights to challenge the software-generated results at trial were
satisfied because appellant had access to the validation studies and the
"underlying mathematical model," which appellant assumes is the Markov

18
Chain Monte Carlo sampling. (RB, p. 79.) But, as argued above, appellant
should not be limited in his ability to challenge the reliability of the
prosecution evidence presented against him. If the source code contains
errors, appellant should be permitted to present this evidence to the jury to
cast doubt on the reliability of the software-generated results. The defense is
not limited to cross-examining the expert about his validation studies or the
Markov Chain Monte Carlo method. The defense is not required to blindly
trust Dr. Perlin's claim that the TrueAllele source code is error free and did
not affect the reliability of the results reached in this case.
There is good reason to be skeptical of this claim; appellant
explained in the Opening Brief that source codes are subject to human error
and bias. (AOB, pp. 60-62.) Respondent argues this is "irrelevant," because
appellant made no showing regarding how the defense would establish that
obtaining the source code would be beneficial to his case. Appellant's
defense counsel informed the court that the only way for the lawyers to
determine if there was an error in the source code was to have an
independent computer programmer review the code. (4 RT 432-433.)
Without access to the evidence, it was impossible for the defense lawyers to
establish that the evidence would be beneficial to the defense.
Respondent also argues that the TrueAllele software has been used
in other criminal cases and has been subjected to validation studies.
Respondent cites a Pennsylvania case, Commonwealth v. Foley (20 12) 3 8
A.3d 882, which found the TrueAllele software-generated results
admissible over a Kelly-Frye objection. While Foley and the existence of
validation studies may be relevant to the issue of admissibility, it is not
relevant to the issue here: whether the court's denial of the defense access
to the software code deprived appellant of his rights of confrontation,

19
compulsory process and due process. Appellant has a right to subject the
evidence used against him to adversarial testing no matter how many times
the software has been validated or held to be admissible in other cases.
F. The state has not met its burden of establishing the error
is harmless beyond a reasonable doubt.

Because the error implicates appellant's federal constitutional rights,

it should be reviewed under the standard of error in Chapman v. California
(1967) 386 U.S. 18. Respondent points to a number of"suspicious
circumstances" that supported the prosecution's case. None of these facts
link appellant to the actual crime scenes, as did the DNA evidence. Each
could apply to any number of males in the community in which the crimes
occurred, as set forth below:
Witnesses placed appellant "at or near" the victim's apartment
complexes during the summer of2013. (RB, p. 82.) Appellant
lived at 900 Quantico Avenue, within an approximate .5 mile
radius of the Kristine Apartments, located at 2901 Virginia
Avenue. (18 RT 3080-3081; 5 ACT 1281.) He would walk his
dog in the area. (18 RT 3064-3066; 29 RT 5147.) Therefore,
his being seen in the area a half a mile from the victims'
apartment complexes is of little probative value.
Appellant's physical appearance: The assailant was described
as light skinned, Hispanic male, five foot, ten with hazel eyes
(Karen- 10 RT 1493, 1545); six foot, black, hazel/brown eyes
(Adria- 9 RT 1345, 1348-1350); black male, five foot eleven,
with slim legs (Lauren- I 0 RT 1596, 1607); a black tall
masked man (Antonia- 13 RT 2155-2156); masked man, 5
foot, nine inches tall with light brown green or hazel eyes

20
 (Karina- 14 RT 2312, 15 RT 2459), black male, unknown
height (Miriam- 15 RT 2507, 2566); black man with tiny
curly hair (Gabrielle- 16 RT 2623, 2628). With the exception
of the possibly Hispanic assailant in the Adria/Karen assault,
the assailant appeared to be a black male, under six feet tall
with hazel/brown eyes. Appellant was a black man, six foot
one, and had lighter brown eyes. (18 RT 3112, 3114;29 RT
5144.) The various descriptions of the assailant do not match
appellant and could apply to any number of black men. And
one of the assailants may have been "a light skinned"
Hispanic, not black, which suggests that the first assault may
have been perpetrated by a different assailant.
Assailant(s) used a similar modus operandi: This simply
shows that it is more likely that a single assailant perpetrated
the offenses, not that appellant committed the offenses.
Appellant owned a black hooded sweatshirt, black backpack
and plaid shorts: Again, this evidence could apply to any
number of young black men, greatly diminishing the
probative value of this evidence.
Appellant owned a gun: Many people own guns.
Appellant had zip ties at his house: Again, the possession of
zip ties, while probative, does not place appellant at the scene;
zip ties are common household items used for non-criminal
purposes.
Appellant smelled bad and smoked: This too is a fairly
common trait shared by many individuals, including any
number of transients or criminal-types.

21
 o Appellant opened windows to commit residential burglaries:
Appellant had a prior burglary conviction. (26 RT 4500.)
During this and another burglary appellant gained access by
opening a window. (26 RT 4523, 4528.) Typically, people
lock their doors, so the only way a residential burglar can gain
access to a house is by opening a window.
o Shoe track evidence: Although a criminalist testified three
shoe prints found at crime scenes were "similar" to the tread
on shoes found at appellant's home, the criminalist admitted
all three were inconclusive, meaning they had little or no
evidentiary value. (25 RT 4487.) Eleven pairs of shoes found
at appellant's house were eliminated. (25 RT 4451-4452.)
o Cell tower evidence: The same is true for the cell tower
evidence. Because appellant lived in close proximity to the
crime scenes, towers near those scenes shared coverage with
appellant's house. Therefore, the cell tower analyst could not
exclude appellant's residence as the location of the phone
when calls were made near the time of the assaults. (28 RT
4846, 4850.)
o The automobile purchase: Evidence that appellant's girlfriend
paid $2250 in cash for a car the day after Miriam was robbed
of $5000 in case is slightly probative, but there was no
evidence regarding how appellant's girlfriend obtained this
cash. This evidence is susceptible to multiple innocent
interpretations, diminishing the probative value of the
evidence.

22
 All these circumstances raise suspicion, but they are hardly
sufficient to sustain a conviction. The DNA evidence was critical to the
prosecution's case; without it, the prosecution's case was based on
appellant's traits shared by many individuals, and inconclusive forensic
evidence of little, if any, probative value.
Respondent asserts that the defense expert Ms. Ryan testified
appellant's DNA "matched" the mixture of DNA found in the stains on
Antonia's shirt and pants. (RB, p. 90.) Ms. Ryan, however, only testified
that her manual interpretation of the mixture DNA from these two stains
"could not exclude" appellant as a possible contributor. (29 RT 5101.)
Saying that appellant "could not be excluded as a contributor" is not
significant without additional evidence of the statistical probability that a
randomly chosen unrelated individual would be included as a possible
contributor to the DNA mixture. (People v. Venegas (1998) 18 Ca1.4th 47,
82 [Determination that a person's profile is consistent with another profile
obtained from DNA evidence is of little significance without determining
the statistical probability of a similar match with the profile of a person
drawn at random].) The fact that appellant could not be excluded as a
possible contributor simply placed him within a class of persons from
whom the sample could have originated. And Mr. Sugimoto's manual
interpretation of these stains was inconclusive. (22 RT 3808.) Because Mr.
Sugimoto could not derive any information of evidentiary value from this
low copy mixture DNA, he had to send it to Dr, Perlin's company for
analysis.
Also, the mixtures contained alleles beyond those present in the
known profiles, including appellant. This means that unknown persons
contributed to the DNA mixture, further diminishing the probative value of

23
this evidence, as there was only a single perpetrator and it could have been
this unknown person. (29 RT 515-5106.)
The same holds true for the ziptie found in the roadway. Although
Mr. Sugimoto testified alleles in appellant's profile were "consistent with"
the alleles in the mixture DNA on the roadway ziptie (22 RT 3841), there
was no evidence of the statistical probability of a similar match with the
profile of a person drawn at random. The calculation of statistical
probability is an essential part of the process used in determining the
significance of a DNA match; without it, the evidence has little, if any,
probative value.
The TrueAIIele evidence was extremely powerful. Even when a case
presents strong circumstantial evidence against a defendant, the courts will
usually find its erroneous admission is not harmless. (See, e.g People v.
Pizzaro (2003) 110 Cai.App.4th 530, 634, over-ruled on other grounds in
People v. Wilson (2006) 38 Ca1.4th 1237, 1247 [Despite "strong
circumstantial" prosecution evidence, "DNA identification evidence clearly
'sealed appellant's fate.'"].) The error cannot be deemed harmless beyond a
reasonable doubt and reversal is required.
II. The trial court prejudicially erred in refusing to allow Ms. Ryan
to testify regarding the assumptions made by the humans who
input the data into the TrueAIIele program, how those
assumptions would affect the results, and Dr. Perlin's selective
reporting of incriminating likelihood ratios reflected in Dr.
Perlin's notes.

A. Expertise in TrueAIIele was not required for Ms. Ryan to

testify to Dr. Perlin's notes, indicating he selectively
reported higher, more incriminating likelihood ratios.

The defense sought to elicit Ms. Ryan's testimony that Dr. Perlin's
notes showed that he only reported results that included appellant as a

24
contributor, he did not report the lower likelihood ratios reached with
different assumptions, and he only reported the higher (more incriminating)
likelihood ratios. (29 RT 5027-5029.) Respondent asserts that Ms. Ryan
was not qualified to inform the jury that Dr. Perlin's notes indicated he was
being selective in reporting results, because she had not operated the
TrueAllele program and did not know why he selectively reported only the
more incriminating higher likelihood ratios. (RB, p. 101.)
Ms. Ryan's proposed testimony regarding Dr. Perlin's selective
reporting of higher incriminating likelihood ratios does not require expertise
in operating the TrueAllele software. She did not have to supply the jury
with the reasons for his selective reporting: the evidence speaks for itself.
The inference raised by this evidence is that Dr. Perlin is biased, and only
reported those results that incriminate appellant. Ifthe prosecution wanted
to have Dr. Perlin explain that the reasons for his selective reporting had
something to do with the operation of the software (though doubtful), they
could recall him as a witness. But to completely exclude this evidence was
error of constitutional magnitude, since the jury was presented with only
half the truth.
B. Ms. Ryan was not permitted to testify that the
assumptions made by Dr. Perlin and Mr. Sugimoto when
they input the data dramatically affected the results. This
was apparent from Dr. Perlin's own notes. This testimony
did not require expertise in TrueAllele and its exclusion
misled the jury about the reliability of the TrueAilele
evidence.

Ms. Ryan testified generally- without objection- that assumptions

made by the TrueAllele operator when inputting data could affect the
results. (29 RT 4962, 5008, 5009.) But when the defense sought to have
Ms. Ryan testifY about whether and how the assumptions made by Mr.

25
Sugimoto and Dr. Perlin would affect the results, the trial court repeatedly
sustained the prosecution's foundation objections, and then ruled that
appellant could not elicit this kind of testimony- or anything having to do
with the TrueA!lele results reached by Dr. Perlin or Mr. Sugimoto in this
case. (29 RT 5010, 5013, 5015, 5017, 5019, 5036.) This included her
proposed testimony that, when certain assumptions were made, it resulted in
higher likelihood ratios as reflected in Dr. Perlin's notes. (29 RT 5025.)
During the Evidence Code section 402 hearing, she provided an example of
the results Dr. Perlin received with respect to the semen stain on Antonia's
shirt. She would testify for the jury that Dr. Perlin's notes indicated that
when he did not make assumptions about the identity of contributors, the
software results were a negative likelihood ratio of minus 22.27 on the first
run, 2.74 on the second and 3.48 on the third run. She would testify that,
under Kern County protocols, these results would be deemed inconclusive.
(29 RT 5026-5027.)
In his testimony at trial, Dr. Perlin reported this likelihood ratio for
the sperm faction on Antonia's shirt as to appellant: 740 million times more
probable than coincident. (24 RT 4158-4159.) The jury never learned about
the other result excluding appellant as a contributor, but instead was left
with this huge number that would cause the jury to infer that appellant was
the assailant.
Respondent argues that appellant's "concerns" about the exclusion
of this evidence are "unfounded" because the defense was able to elicit Ms.
Ryan's general opinion that assumptions made when inputting data into the
software could affect the results, and this was sufficient for the jury to
determine that these assumptions could affect the results. (RB, 99-1 00.)
Appellant's "concerns" are not unfounded. The trial court excluded relevant

26
defense evidence undermining the weight to be given to the prosecution's
DNA evidence.
The trial court shut down the defense inquiry into this area, at one
point stating that the prosecution's objections were sustained "if she hasn't
performed TrueAIIele." (29 5041.) It would be very apparent to this jury
that any of Ms. Ryan's opinions regarding anything having to do with the
TrueAIIele results should not be credited. In fact, the prosecutor argued that
the court found she was not qualified to render opinions regarding the
TrueAIIele results reported by the prosecution experts: "[Defense counsel's]
expert wasn't qualified to do any type of criticism on TrueAIIele because
she wasn't sufficiently trained." (35 RT 6113.)
C. Exclusion of this favorable defense evidence violated
appellants Fifth, Sixth and Fourteenth Amendment rights
and was not harmless beyond a reasonable doubt.

It is difficult to imagine how the jury could have reached other than
a guilty verdict when presented with the unchallenged evidence that the
probability that appellant was a contributor to the DNA profile found on a
semen stain at a serial rape scene was 740 million times more likely than
coincident. If the jury had known that this same DNA evidence yielded an
exclusion of appellant as a likely contributor when it was input into the
software, and that Dr. Perlin neglected to report this result, the verdict
would have been different. Respondent certainly cannot establish that the
exclusion of this and other testimony from Ms. Ryan was harmless beyond a
reasonable doubt.
Respondent's argument that appellant forfeited his Fifth and
Fourteenth Amendments argument by not citing to authority is not
supported. In the Opening Brief, appellant cited a passage in Taylor v.

27
Illinois (1988) 484 U.S. 400, 409 in support of his argument that the error
violated appellant's Fifth, Sixth and Fourteenth Amendment rights. This
passage explains that the exclusion of favorable defense evidence violates
the Sixth Amendment's Compulsory Process Clause and the Due Process
Clause. Appellant also cited Chambers v. Mississippi (1973) 410 U.S. 284,
which held that the exclusion of favorable defense denied the defendant a
fair trial, in violation of the Due Process Clause of the Fourteenth
Amendment. (AOB, p. 76.) Multiple case citations and extensive "analysis"
of this very basic due process argument is not required; no one can seriously
argue that the unwarranted exclusion of favorable defense evidence does
not implicate due process. This is a concept fundamental to American
constitutional jurisprudence.
Nevertheless, the complete passage from Taylor at page 409 (cited
and quoted in part in the opening brief) explains how the Due Process
Clause was violated in this case:
"The Compulsory Process and Due Process Clauses thus
require courts to conduct a searching substantive inquiry
whenever the government seeks to exclude criminal defense
evidence. After all, ' [flew rights are more fundamental than
that of an accused to present witnesses in his own defense.'
Chambers, supra, at 302. The exclusion of criminal defense
evidence undermines the central truthseeking aim of our
criminal justice system, see United States v. Nixon, 418 U.S.
683, 709 (1974), because it deliberately distorts the record at
the risk of misleading the jury into convicting an innocent
person. Surely the paramount value our criminal justice
system places on acquitting the innocent, see, e. g., In re
Winship, 397 U.S. 358 (1970), demands close scrutiny of any
law preventing the jury from hearing evidence favorable to
the defendant."

The exclusion of favorable defense evidence casting very serious

28
doubt on the TrueAllele results distorted the facts presented to the jury.
This DNA evidence was devastating to appellant's case, and the exclusion
of Ms. Ryan's testimony establishing Dr. Perlin's selective reporting of
higher likelihood ratios results was extremely prejudicial because it
demonstrated his bias and cast doubt on the TrueAllele results, the critical
evidence in this case. The exclusion of this evidence violated appellant's
Fifth, Sixth and Fourteenth Amendment rights. Reversal is required.
III. The trial court violated appellant's statutory right and his
federal constitutional right to a jury of his choice when the court
discharged a regular juror leaving only 11 jurors remaining.

Code of Civil Procedure section 233 states that "the jury shall be
discharged" and a new jury impaneled if a regular juror is discharged and
there are no alternate jurors "selected as provided by law" to take the
discharged juror's place. Respondent agrees that "the plain language" of
the statute would require the trial court here to have discharged the jury
after it dismissed a sworn juror, with no alternates sworn to replace him.
(RB, p. 111.) Respondent contends that interpreting the statute in
accordance with its plain language would lead to an "absurd" result.
Respondent also claims appellant should be estopped from raising
the issue on appeal because trial counsel engaged in gamesmanship by
requesting that the court follow the plain language of the statute and grant a
mistrial.
Finally, respondent argues appellant's federal constitutional right to
a jury of his choice was not violated by the procedure employed by the court
in this case. Appellant's jury was sworn. United States Supreme Court
precedence provides that, once the jury is sworn, jeopardy attaches and
appellant had a right to be tried by his chosen jury. The court violated his

29
 federal constitutional rights when it tried him with a new jury.
Respondent's arguments have no merit.
A. The Legislature imposed a mandatory duty on the trial
court to discharge the jury after the regular juror was
discharged for cause, and no alternates were sworn.
Respondent fails to present persuasive evidence that the
Legislature intended the statute to be construed contrary
to its plain language.

Respondent argues that the Legislature did not mean what it said in
the statute: if a juror is discharged, and there are no alternate jurors sworn to
replace him, then the jury must be discharged. But respondent does not
propose an alternate interpretation of the statute. Respondent only argues
that the plain language of the statute should not be followed in this
particular instance, because it would lead to "inefficiency," and an "absurd"
result.
The premise of respondent's argument is that the literal effect of
Code of Civil Procedure section 233 will require a court to discharge a jury
and empanel another jury even if there are no alternates to replace the juror
because they have not yet been selected - an inefficient consequence which
courts can and should avert by refusing effect to the plain statutory
language. The court cannot ignore the plain unambiguous language of the
statute.
Under the plain language doctrine, a court's first step in determining
legislative intent when construing a statute is to review the words used in
the statute, giving the terms their plain and ordinary meaning. (California
Teachers Assn. v. Governing Bd. ofRialto Unified School Dist. (1997) 14
Ca1.4th 627, 633.) If the statutory language is clear, no further statutory
construction is necessary. (Nolan v. City ofAnaheim (2004) 33 Cal.4th 335,

30
340; Trope v. Katz (1995) II Ca1.4th 274, 280.) Only when a statute's terms
are subject to more than one reasonable interpretation, may a court consider
"extrinsic aids" (Nolan v. City ofAnaheim, supra, 33 Cal. 4th at p. 340) in
construing the statute. (Ibid.; see also Jarrow Formulas, Inc. v. LaMarche
(2003) 31 Ca1.4th 728, 735; Solberg v. Superior Court (1977) 19 Cal.3d
182, 198 ["When statutory language is thus clear and unambiguous there is
no need for construction, and courts should not indulge in it."].) This rule is
deeply rooted in our jurisprudence. (Sturges v. Crowninshield (1819) 17
u.s. 122, 202.)
Here, the most reliable evidence of intent-the language lawmakers
adopted as the objective manifestation of their will-clearly and
unambiguously directs the court to discharge the jury if a regular juror has
been removed and there are no sworn alternates to replace him. (Cod. Civ.
Proc. 233.) Because respondent concedes the language is plain and
unambiguous, the court cannot resort to extrinsic evidence to construe the
statute.
Respondent invokes a rarely used "absurdity" exception of statutory
construction in urging this court to avoid the plain language of the statute.
(Unzueta v. Ocean View School Dist. (1992) 6 Cal.App.4th 1689, 1698.)"
'The literal meaning of the words of a statute may be disregarded to avoid
absurd results .. .. '"(Ibid.) As the court in Unzueta observed, however,
"This exception should be used most sparingly by the judiciary and only in
extreme cases else we violate the separation of powers principle of
government. (Cal. Const., art. III, 3.) We do not sit as a
'super-legislature."' (Ibid.)
Respondent's main argument for invoking this rarely used exception
is that discharging a jury before alternates are sworn is inefficient. But it

31
cannot be said as a matter of law that the Legislature intended any other
result than the one directed by the clear language of the statute. "Absurdity,
like beauty, is in the eye of the beholder." (Ibid.)
And the only evidence respondent cites to support the efficiency
argument is Code of Civil Procedure section 19l's pronouncement that "it is
the responsibility of the jury commissioner to manage all jury systems in an
efficient, equitable and cost-effective manner, in accordance with this
chapter." (Italics added.) (RB, p. 110.) This statement regarding the
obligation of the jury commissioner to efficiently manage the jury system
does not support this Court's disregard of the plain meaning of the statute
requiring the trial court to discharge the jury ifthere are no alternates sworn
to replace a regular juror.
B. Appellant is not estopped from raising this claim.

Respondent contends that appellant should be estopped from

claiming error on appeal, citing People v. Cree (1981) 123 Cal.App.3d
1013. In Cree, the court stated, '"A litigant who has stipulated to a
procedure in excess of jurisdiction may be estopped to question it when 'To
hold otherwise would permit the parties to trifle with the courts.'
[Citation.]" (Id., at 1016, quoting In re Dupper (1976) 57 Cal.App.3d 118,
123.) Appellant did not agree to the procedure the court followed. Appellant
objected to the court's failure to discharge the jury and the court's
empaneling of a new jury. (11 ART 2095.) For this reason alone, he is not
estopped from making this claim on appeal.
Respondent claims appellant's trial counsel engaged in
"gamesmanship" by requesting that the court rule on his request to grant a
mistrial and discharge the jury. Appellant requested that the court follow the
mandate of section 233. Respondent concedes the plain words of the statute

32
 dictated the relief defense counsel requested. (RB, Ill.) If appellant had
failed to make such a request, there is no doubt respondent would be
arguing forfeiture of the issue on appeal. Appellant did not engage in
gamesmanship by requesting the court discharge its obligation under the
statute. Appellant should not be estopped from making this claim on appeal.
C. The trial court's error deprived appellant of his federal
constitutional right to retain a chosen jury, requiring
reversal per se.

Appellant's jury was sworn and there were no alternates to replace

the discharged jury. Appellant objected to a new jury, argued the procedure
violated his Fifth and Sixth Amendment rights to his chosen jury and
requested that the court grant a mistrial. (II ART 2095, 5 CT 1286-1291.)
Respondent contends that appellant was not deprived of his chosen jury
because jeopardy had not attached, since the court had not selected
alternates. Respondent is mistaken.
"The United States and California high courts apply a bright-line
rule: In a jury trial, jeopardy attaches when the jury is sworn. (Crist v. Bretz
(1978) 437 U.S. 28, 37-38 [57 L.Ed.2d 24, 32-33, 98 S. Ct. 2156] (Crist);
People v. Riggs (2008) 44 Ca1.4th 248, 278, fn. 12 [79 Cal.Rptr.3d 648, 187
P.3d 363] (Riggs) ['once a jury has been sworn, jeopardy has attached ... '
for state and federal double jeopardy]." (People v. Whitaker (20 13) 213
Cal.App.4th 999, 1008.)
The court in Crist held that any doubt about when jeopardy attaches
was settled in Downum v. United States (1963) 372 U.S. 734: "Although it
has thus long been established that jeopardy may attach in a criminal trial
that ends inconclusively, the precise point at which jeopardy does attach in
a jury trial might have been open to argument before this Court's decision in

33
Downum v. United States, 372 U.S. 734. There the Court held that the
Double Jeopardy Clause prevented a second prosecution of a defendant
whose first trial had ended just after the jury had been sworn and before any
testimony had been taken. The Court thus necessarily pinpointed the stage
in a jury trial when jeopardy attaches, and the Downum case has since been
understood as explicit authority for the proposition that jeopardy attaches
when the jury is empaneled and sworn." (Crist, supra, 437 U.S. at 35.)
The pronouncement in Whitaker, supra, 213 Cal.App.4th at p. 1011,
that jeopardy does not attach until the alternates are sworn no longer
applies. Under prior California law, the jury was comprised of not only the
12 regular jurors but also the alternates. Thus, the jury was not complete
until the alternates were selected and sworn. (See, People v. Armendariz
(1984) 37 Cal.3d 573.) People v. Cottle (2006) 39 Ca1.4th 246,255, held
the reasoning of Armendariz was superseded by statute, and the jury is
complete once the 12 regular jurors were sworn. (Cottle, supra, 39 Cal.4'h at
255.) "[T]hese statutes establish that a trial jury consists of 12 jurors sworn
to reach a verdict on questions offact. '[T]he jury is sworn' when those 12
trial jurors have been sworn." (Ibid.) Thus, under the new statutes,
appellant's jury was complete once the 12 regular jurors were sworn, and
jeopardy attached.
Appellant had retained his chosen jury, they had been sworn and the
jury was complete. The trial court proceeded to empanel a new jury in
violation of appellant's Fifth and Sixth Amendment rights. His convictions
are constitutionally invalid and must be reversed.
IV. The court erred in denying appellant's Batson-Wheeler motion
The trial court committed reversible error when it failed to require
that the prosecution provide a justification for the challenges of six

34
prospective female jurors. After the prosecutor challenged six of the first
eight female jurors, appellant made a Batson-Wheeler3 motion. (I 0 ART
1841-1842.) The court found no prima facie case. (10 ART 1847.) After the
prosecutor used a seventh peremptory challenge to excuse another female
juror, the defense made another Batson-Wheeler motion, and renewed its
motion to the other female prospective jurors challenged. (1 0 ART 1860-
1861, 1864-1865, 1867, 1869.) The court did not elicit the prosecutor's
reasons for excusing the six prospective female jurors, only the seventh. (1 0
ART 1870.)
Respondent cites People v. Avila (2006) 38 Ca1.4th 491 (Avila) for
the proposition that the court was not required to make the prosecutor
provide reasons for her challenge of the first six jurors. (RB, p. 120.) But, as
explained in the Opening Brief, under Avila, if the defense renews the
earlier Batson-Wheeler motion made as to the same protected class, then the
court is required to make the prosecutor justify the earlier challenges.
(Avila, supra, 38 Cal 4th at 552.) The Avila court stated at page 552,
"Although we hold that the court has no sua sponte duty to revisit earlier
Batson/Wheeler challenges that it had previously denied, upon request it
may appropriately do so when the prosecutor's subsequent challenge to a
juror of a protected class casts the prosecutor's earlier challenges of the
jurors of that same protected class in a new light, such that it gives rise to a
prima facie showing of group bias as to those earlier jurors. But the burden
is on the party making the later motion to so clarifY, for that party
ultimately has the burden of proof."
Here, appellant expressly requested that the court revisit the earlier

3
Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler
(1978) 22 Cal.3d 258 (Wheeler).)

35
challenges. (10 1860-1861, 1864-1865, 1867, 1869.) The court was of the
opinion that the defense had made a prima facie showing that the challenge
of female prospective juror L.W. was gender based. The prosecution's use
of its challenges to strike a disproportionate number of females established
a prima facie case and appellant renewed his request for the court to revisit
his earlier challenges of female jurors. Although, under Avila, the court was
not required to sua sponte seek justifications for the earlier challenges to the
other female jurors, appellant's request triggered the court's obligation to
elicit the prosecutor's reasons for these challenges.
V. Conclusion
For these reasons and the reasons set forth in Appellant's Opening
Brief, appellant requests his convictions be reversed.
Respectfully submitted,

Dated: August 30, 2017

~~a- Attorney for Appellant
BILLY RAY JOHNSON

36
 Certificate of Word Count

I, Laura Schaefer, counsel for appellant certifY pursuant to the

California Rules of Court, that the word count for this document is 8212
words, excluding the tables, this certificate, and any attachment permitted
under rule 8.360(b)(l). This document was prepared in Word Perfect with
l3 point Times New Roman font, and this is the word count generated by
the program for this document.
I declare under penalty of perjury under the laws of the State of
California that the foregoing is true and correct. Executed on August 30,
2017, at San Diego, California.

A orney for Appellant

BILLY RAY JOHNSON

37
People v. Johnson
Case No. F071640
Declaration of Service
I, the undersigned declare that: I am over the age of 18 years and not
a party to the case; I am a resident of the County of San Diego, State of
California, where the mailing occurs; and my business address is 934 23rd
Street, San Diego, California 92102.
I further declare that I am readily familiar with the business practice
for collection and processing of correspondence for mailing with the United
States Postal Service; and that the correspondence shall be deposited with
the United States Postal Service this same day in the ordinary course of
business.
On August 30, 2017, I caused to be served the following document:
APPELLANT'S REPLY BRIEF, by placing a copy of the document in an
envelope addressed to each addressee, respectively, as follows:
Clerk of the Court Paul D. Cadman
Hon. Gary T. Friedman T. J. Brewer
1415 TruxtunAve Kern County Public Defender's Office
Bakersfield, CA 93301 1315 Truxtun Avenue
Bakersfield, CA 93301
Cynthia J. Zimer
District Attorney's Office Billy Ray Johnson
1215 Truxtun A venue CDCR#AW7702
Bakersfield, CA 93301 SATF-CSP
P.O. Box 5248
Corcoran, CA 93212

I then sealed each envelope and, with postage thereon fully prepaid, I
placed each for deposit in the United States Postal Service, this same day, at
my business address shown above, following ordinary business practices.
Ill

38
 PROOF OF SERVICE BY ELECTRONIC SERVICE
Furthermore, I declare that I electronically served from my electronic
service address ofmj@boyce-schaefer.com on August 30, 2017, to the
following entities:
Office of the Attorney General: SacA WTTrueFiling@doj .ca.gov
and Caely.Fallini@doj.ca.gov
Central California Appellate Program eservice@capcentral.org
I declare under penalty of perjury under the laws of the State of
California that the foregoing is true and correct. Executed on August 30,
2017, at San Diego, California.

39