Expert testimony that cell phone tower data could be used to establish caller’s approximate location did not rely on a new scientific methodology and was therefore not subject to the standard set forth in People v. Kelly (1976) 17 Cal.3d 24. At Garlinger’s robbery trial, the prosecution established his identity as the perpetrator in part with expert testimony by a detective that his cell phone records showed that he was in the vicinity of the robbery when it occurred. The jury convicted Garlinger. He appealed, arguing that his trial counsel rendered ineffective assistance by failing to object to the detective’s testimony on Kelly grounds. Held: Affirmed. Counsel was not ineffective because a Kelly objection would have been futile. Kelly sets forth a standard for admitting expert testimony that relies on new scientific techniques. However, the scientific technique employed here is not new. It is akin to a technique that has been used for over a century to evaluate radio waves: “Cell phones operate like ‘sophisticated radios’ by sending and receiving a radio signal to and from a cell tower and base station in their general vicinity.” The Court of Appeal rejected Garlinger’s reliance on United States v. Evans (N.D. Ill. 2012) 892 F.Supp.2d 949, which held that expert testimony that cell phone records could be used to establish a precise location was not generally accepted by the scientific community. The expert here, unlike the one in Evans, opined that cell phone records could be used to establish a caller’s approximate location, not the caller’s precise location.

Evidence Code sections 801 and 802 did not bar the expert’s testimony. Garlinger also argued that his trial counsel was ineffective for failing to object to the expert testimony on the basis that it was barred by Evidence Code sections 801 and 802. The Court of Appeal disagreed. Section 801 provides that expert testimony must be related to a subject that is sufficiently beyond common experience so that the expert’s opinion would assist the trier of fact. Section 802 requires that expert opinion testimony must be based on matters that experts would reasonably rely upon to form an opinion. Garlinger’s assertion that the cell phone records were not the type of matter than an expert could reasonably rely on in formulating an opinion about the location of a particular cell phone is incorrect. Although it would have been improper for an expert to claim that cell phone records could precisely establish the location of a cell phone, the expert here relied on the cell phone records to establish an approximate location (i.e., being in a general area of a particular cell tower and on a particular side of the tower). There was nothing improper about that opinion.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/C074480.PDF