Metropolitan News-Enterprise


Tuesday, July 2, 2013


Page 1


C.A. Orders DNA Testing in Challenge to Robbery Conviction


By a MetNews Staff Writer


An Orange Superior Court judge abused his discretion when he denied a motion for post-conviction DNA testing, brought by a man serving 34 years to life in prison for robbery, the Fourth District Court of Appeal ruled yesterday.

Justice Raymond Ikola, writing for Div. Three, said Michael Jointer, convicted in 1998, should get the DNA test in order to determine whether fingerprints found on a water bottle at the scene are actually his. The testing is appropriate, the justice explained, because the bottle is the only physical evidence connecting Jointer to the crime, and a favorable result would cast doubt on the testimony of two eyewitnesses who identified Jointer at his trial.

Jointer was convicted of a 1997 grocery store robbery. Analysis of fingerprints lifted from a water bottle—which the robber had purchased and drank from before walking over to the customer service desk, revealing a handgun, and telling an employee to fill the bag with money—showed that four prints belonged to the defendant.

Of three employees who viewed a photo array that included the defendant’s, one of them identified the defendant, another picked out someone else but said the defendant “looks similar,” and the third could not make an identification. The first two witnesses identified the defendant in court.

Last year, the defendant moved for DNA testing of the water bottle under Penal Code Sec. 1405. The law sets forth requirements to obtain a court order for such testing, including that identity of the perpetrator “was, or should have been, a significant issue in the case”; that there be a “prima facie showing that the evidence sought to be tested is material to the issue of the convicted person’s identity as the perpetrator”; and that “[t]he requested DNA testing results would raise a reasonable probability that, in light of all the evidence, the convicted person’s verdict or sentence would have been more favorable if the results of DNA testing had been available at the time of conviction.”

Judge Craig E. Robison denied the motion on the ground that there was sufficient independent evidence to sustain the conviction.

Ikola, however, noted that “the question is whether there is a reasonable probability of a more favorable verdict assuming the DNA test came back favorable to defendant,” not whether a favorable test result would establish the defendant’s innocence.

The justice distinguished Richardson v. Superior Court (2008) 43 Cal.4th 1040, where the court upheld a denial of a motion to test a hair sample, saying the impact of a favorable test result would have been minimal, because the question of whether the hair belonged to the defendant was fiercely contested at trial, and the defendant would likely have been convicted even if the hair wasn’t his because the evidence “may well have had little significance in the jury’s determination of guilt or sentence.”

Ikola wrote:

“We cannot say the same of the water bottle in this case. Both parties recognized the central importance of the finger prints on the water bottle. And given the prosecution’s inability to prove when the fingerprints were put on the bottle, it is reasonably probable a favorable DNA test would undermine the prosecution’s most important piece of evidence. There were no confessions, as in Richardson. Instead, the remaining evidence was fallible eyewitness identifications and relatively weak circumstantial evidence. Taken together, there is a reasonable probability a favorable DNA test for defendant would impact the outcome.”

The case is Jointer v. Superior Court (People), 13 S.O.S. 3367.


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