P. v. Stevey
Filed 9/18/12 P. v.
Stevey CA3
NOT
TO BE PUBLISHED
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
COPY
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE
DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
EDDIE DUANE STEVEY,
Defendant and Appellant.
C062760
(Super.
Ct. No. 09F03011)
Defendant Eddie
Duane Stevey, convicted of various sex crimes against his 16-year-old victim,
contends the interpretation of the mixed DNA samples and the methodology used
to project the probability of a DNA match constitute “new scientific
techniques” requiring an evidentiary
hearing to demonstrate they are generally accepted in the scientific
community. (People v. Kelly (1976) 17 Cal.3d 24, 30 (Kelly).) In fact, it has
been over 20 years since the first California
appellate court concluded that the use of DNA for forensic purposes was
generally accepted within the scientific community, and there has been a steady
stream of cases finding general acceptance of an ever-increasing number of kits
and improved methodologies in collecting and analyzing DNA evidence. (E.g., People
v. Axell (1991) 235 Cal.App.3d 836, 842 (Axell); People v. Hill
(2001) 89 Cal.App.4th 48, 56 (Hill);
313, 325 (Jackson).)
Here, the
prosecution offered no new science, no breakthrough technology, and no untested
kits or tests. No defense expert
disputed the efficacy of the interpretive methodologies used at trial; no
studies exposed any flaws in the analytical methods used by the county
criminalists; and no cases were cited in which the methodologies were
discredited within the scientific community.
We affirm the trial court’s determination that the prosecution did not
offer the type of new scientific technique that necessitates a
FACTS
In May 2007 K.E.,
a 16-year-old junior in high school, lived with her mother, who was in and out
of prison for various drug offenses.
K.E. was a decent student, played a musical instrument in the school
orchestra, was a member of the California Cadet Corps, and tried hard to please
her mother. Yet she also stole from her
godmother, was afraid of her mother, smoked cigarettes and marijuana, had
sexual intercourse with a neighbor boy, Michael, shortly before the crimes
alleged here, and lied that she had never had sex with anyone before defendant.
Defendant had
lived with K.E. and her mother in 2005 and 2006. K.E. confided in defendant as a good friend,
sharing information with him about smoking, drugs, and sex that she would never
discuss with her mother. She told
defendant she had sex with Michael.
Since defendant then lived just down the street, he continued to visit regularly
even after moving out of K.E.’s house.
On the evening of
Sunday, May 6, defendant was out with his girlfriend and was drinking. His girlfriend complained about his sexual
performance. On their way home,
defendant got out of the car and began socializing with K.E.’s mother and her
friends. Eventually, he and K.E.’s
mother shared “a line” of methamphetamine in her bedroom. Defendant left the house when K.E.’s mother decided
to visit another friend.
K.E. testified
that defendant knocked on her bedroom window sometime between 10:30 and 11:30
p.m. and asked her to let him in. When
she went to the door to the patio, she found him already in the living
room. She asked defendant where her
mother was and told him he should not be in the house when her mother was
not. He followed her into her bedroom
and told her, “this is a golden opportunity.”
He engaged in multiple sex acts over several hours in an apparently
futile attempt to get an erection and ejaculate.
According to K.E.,
he began by pulling down her pajama bottoms and panties and orally copulating
her on her bed. He asked her to suck his
penis, but she refused. He sucked and
licked her breasts before pulling her to the floor. There, he digitally penetrated her vagina
while masturbating. He held a candle
near her vagina and told her how “good [it] tasted” and how beautiful her
“pussy” was. Sporadically, he would
penetrate her vagina with his penis, but because he could not achieve an
erection, he would return to masturbation.
At some point, he asked K.E. to get him some lotion.
By then K.E. had
heard her mother return home, but she was too embarrassed and ashamed to tell
her mother what was happening in her bedroom.
She retrieved cocoa butter lotion from the living room, may have gone into
the bathroom, and returned to her bedroom where, she told the jury, defendant
continued to masturbate with the lotion.
Although defendant would not allow her to dress or go to bed for several
hours, eventually she got into bed and fell asleep. He woke her up to let him crawl through her
window. There was a spa with a cover
under her window. The police found that
the spa cover had disturbed dust on it as if someone had climbed over it.
K.E. went to
school the next day without taking a shower or changing her panties. She told two friends at school what had
happened. That evening, she told her
brother’s girlfriend, who immediately told K.E.’s mother; her mother called the
police. K.E. went across the street to
visit Michael until the police arrived.
She gave a lengthy statement to the officers and denied she had ever had
sexual intercourse with anyone before defendant penetrated her.
The police took
K.E. to the U.C. Davis Medical Center for a sexual assault examination. A nurse practitioner collected blond hairs
from K.E.’s vagina and cervix, four swabs from her vagina, blood and urine
samples, and potential saliva from her breasts.
Pubic hairs and a buccal swab reference sample were collected from
defendant and Michael.
K.E.’s mother
testified that she never saw defendant in the house after she returned from
visiting her friend, and she did not hear any noises in K.E.’s room.
Defendant’s Testimony
Defendant
testified, though his testimony was not entirely beneficial to his case. His account is peppered with vulgarities we
have no reason to repeat. Nor was he
much of an historian since he does not wear a watch and admitted that he has no
sense of time. And while insisting that
he is no snitch and did not tell the police that K.E.’s brother and his friends
had beaten and seriously injured him, he volunteered to the police that his son
used and sold drugs. Realizing his
testimony and behavior were not helpful, he apologized to the judge for his
behavior in court.
Nevertheless,
defendant insisted that he did not, and would not, have any sexual contact with
a minor. He admitted he was under the
influence of drugs and alcohol and could not remember everything, but he knew
he would never have sex with a minor because he had been molested by a babysitter
when he was a boy.
Defendant denied
going back to K.E.’s house at all. He
claimed she fabricated the allegations because he had discovered her with
Michael in the carport near a “1900 fire stove, wood stove,” and he had
threatened to tell her mother. Defendant
had overheard K.E. telling defendant’s son that she had lost her virginity to
Michael, someone defendant did not like.
He testified that after talking to K.E., he went home and did not go out
again that evening.
DNA Evidence
DNA testing results
in a genetic profile of a person, and when the DNA profile of a crime suspect
matches the DNA profile derived from the crime scene, criminalists calculate
the probability that anyone else’s DNA profile would have matched the DNA
profile from the crime scene sample.
Several criminalists employed by the Sacramento County District
Attorney’s crime laboratory (county crime lab) testified for the prosecution
about the collection, methodology, and interpretation of the DNA testing done
on the samples collected from K.E., Michael, and defendant. Some of the results of the testing benefitted
the defense; others corroborated K.E.’s account of what defendant had done to
her.
The DNA testing of
the sperm fraction taken from K.E.’s panties excluded defendant and was
consistent with K.E.’s sexual partner, Michael.
The DNA results from the labia swab showed a full profile consistent
only with K.E. Yet the results of the
DNA testing of the pubic hairs corroborate K.E.’s testimony that defendant had
penetrated her vagina as alleged in count one of the information. The results of the DNA testing of the breast
swab corroborate her testimony that defendant had sucked her breasts as alleged
in count four. Defendant contends that
neither the criminalist’s probability analysis of the pubic hair testing nor
another criminalist’s interpretation of the mixed DNA samples taken from the
victim’s breasts was generally accepted in the scientific community.
Pubic Hairs
We begin with the
testimony regarding the pubic hairs.
Preliminarily we note that it did not take sophisticated DNA testing to
confirm that the pubic hairs were blond.
Defendant’s pubic hairs were blond; neither Michael’s nor K.E.’s were.
Prosecution criminalist Angelynn Shaw performed STR
and Y-STR DNA analysis on the pubic hairs.
Y-STR’s are found only on the Y chromosome; thus, they only appear in
males. Because the Y-STR testing ignores
the female DNA that often overwhelms the male DNA, it is a helpful method when
the sample contains a mixture of both male and female DNA. Unlike other kinds of DNA testing, however,
it is not possible to identify a particular individual because a male inherits
the DNA type from his father and shares the same type with male siblings,
uncles, and cousins. According to Shaw,
Y-STR testing is generally accepted in the scientific community and is commonly
done in labs in the United States and internationally. Y-STR analysis involves the same instruments,
the same software, and the same methodology as STR DNA analysis, including
isolation (also called extraction), quantitation, amplification, and typing.
While the
scientific testing is the same in STR and Y-STR analyses, the interpretation of
the value of the results based on the probability of a match differs. Experts employ various statistical methods,
depending in part on whether the individual alleles within each locus are
statistically independent from one another.
With STR results, an analyst uses the “product rule,” whereby the frequencies
with which each measured allele appears at each tested locus are multiplied
together “‘to generate a probability statistic reflecting the overall frequency
of the complete multilocus profile.’” (
43 Cal.4th 1242, 1259 (Nelson),
quoting People v. Soto (1999)
21 Cal.4th 512, 525 (Soto).) The product rule cannot be used to calculate
the probability of a match with the results of a Y-STR analysis, however,
because the traits are not inherited independently. Thus, Shaw testified that she used a simple
and well-accepted counting method to determine the frequency of the profile.
With Y-STR
results, analysts simply count the number of times the profile appears in a
database of males to come up with a frequency.
This method has been used for years.
Shaw used the US Y-STR database managed by the National Center for
Forensic Science. Because the database
was not large, she applied a statistical calculation referred to as a
“confidence interval” as a “conservative way of giving an estimate of how often
you’ll see that haplotype in a population, given how many males are actually in
the database, since we can’t test the entire population and may have a small
sample.”
Shaw performed STR
analysis using the Identifiler kit and Y-STR analysis using the Y-Filer kit on
three pubic hairs. She was able to
obtain a complete profile using the Y-Filer but was only able to obtain allele
calls at a few locations using the Identifiler because there was more female
DNA present than male. Applying the
product rule to the STR analysis, the random match probability was one in 562
for Caucasians. The profile produced
from the Y-Filer was the same as defendant’s sample Y profile. Using the counting method and applying the
confidence interval, the probability increased to one in 539 individuals.
Breast Swab
Jeffrey Herbert, a
criminalist from the county crime lab, explained the DNA testing and results
obtained from the right breast swab. He
provided a basic primer on DNA testing for the jury, noting the four steps in
the DNA analysis process: extraction,
quantitation, amplification, and typing.
In the first step, DNA is extracted from cells. In cases where female and male DNA are mixed
in the sample, chemicals are used to separate the two. Once the quantity of DNA is determined,
select regions of the DNA, referred to as genetic markers, are amplified to
make more copies of the DNA for analysis.
The markers targeted for forensic analysis are called short tandem
repeats (STRs). These are locations
(loci) where a short segment of the genetic code repeats itself. The number of repeats at specified locations
varies among individuals and becomes the basis for distinguishing between them. Each person’s DNA contains two copies of
these markers -- one copy inherited from the father and one from the
mother. Variations between them in the
number of repeats are referred to as alleles.
Thus, for example, an STR marker inherited from the mother might have 10
repeats while the marker inherited from the father has 15; each marker is an
allele. Fifteen locations are targeted
for amplification.
Following
amplification, the last phase of DNA testing -- typing -- takes place. Fluorescent tags are added to the DNA. The sample is run through an instrument that produces
an electropherogram. An electropherogram
produces a graphical representation of the DNA, including the number of repeats
in STR alleles. Electropherograms,
produced during typing, display peaks.
The higher the peak, the more DNA is present at a specific
location. The height of the peaks is
measured as relative fluorescent units (RFU).
If the peak reaches a certain height, the criminalist identifies it as
an allele with a numerical designation indicating the number of repeats. The peaks on the electropherogram represent
an allele. There are two alleles at each
locus. The allele is classified by the
number of repeats.
Labs set protocols
to insure the integrity of the DNA profile.
Herbert explained that in a sample there are real peaks representing
alleles, but there may also be noise from the electricity used in producing the
electropherogram and artifacts, that is, miscellaneous matter that is not
DNA. If, therefore, the height of a peak
is below 75 RFU, the protocol of the county crime lab is to not identify the
peak as an allele. The peaks below 75
RFU might represent a very low amount of DNA, or they might represent noise or
artifacts.
The swab taken
from K.E.’s right breast was from a single source, but it did not produce a
complete profile because there were a number of markers below the 75 RFU
threshold. The sample may have degraded
or some of the markers may have been inhibited by external factors. As a consequence, Herbert testified the
partial profile was of 10 out of 15 loci.
All 10 of the alleles were the same as those of defendant. Some of the 10 were also shared by K.E. or
Michael or both.
Herbert determined
that the partial profile occurred at random among unrelated people at the
probability of one in 100 billion in the Caucasian population, one in 6
trillion in the African American population, and one in 450 billion in the
Hispanic population. The prosecutor
asked Herbert to recalculate the probability by subtracting the alleles that
defendant shared with K.E. and/or Michael.
By excluding the shared alleles, the probability that anyone but
defendant contributed the DNA was one in 12,000 in the Caucasian population,
one in 7,200 in the African American population, and one in 23,000 in the
Hispanic population.
Defendant moved to
exclude any testimony involving the interpretation of peak heights produced by
the Identifiler kit and the interpretation of mixtures by subtracting genetic
profiles based on peak height. After
hearing, the trial court denied the defense motion. Defendant enlarges the scope of his
challenges to the admissibility of the DNA evidence on appeal. He contends the trial court erred by failing
to have an evidentiary hearing to establish that the interpretations of the DNA
test results are generally accepted in the scientific community. (Kelly,
supra, 17 Cal.3d 24.) But he overlooks something much more basic --
Kelly only applies to new scientific
techniques. We conclude the
interpretation of the test results does not constitute a new scientific technique
within the meaning of Kelly and did
not require an evidentiary hearing.
DISCUSSION
Introduction -- Scientific Evidence
and the Kelly Test
“In
. , [the California Supreme Court] held that evidence obtained through a new
scientific technique may be admitted only after its reliability has been
established under a three-pronged test.
The first prong requires proof that the technique is generally accepted
as reliable in the relevant scientific community. (Id.
at p. 30.) The second prong requires
proof that the witness testifying about the technique and its application is a
properly qualified expert on the subject.
(Ibid.) The third prong requires proof that the
person performing the test in the particular case used correct scientific
procedures. (Ibid.)” (
544-545 (Bolden).) The first and third prongs can be confused;
the Kelly first-prong analysis
applies only to a new technique or procedure, whereas the third prong is case
specific. (People v. Henderson (2003) 107 Cal.App.4th 769, 786-787 (
Defendant contends
the trial court erred by denying his request for a full evidentiary hearing, under the first
Y-STR testing and the methodology used to interpret the results of the DNA
testing on mixed samples were generally accepted in the scientific
community. Although the science of
mathematics may be complicated, “our function is mercifully simple.” (People
v. Reilly (1987) 196 Cal.App.3d 1127, 1148 (Reilly).) “With respect to
the first prong of this test, ‘reliability’ means that the technique ‘“must be
sufficiently established to have gained general acceptance in the particular
field in which it belongs.”’ (
at p. 30, italics omitted.) In
determining whether there has been ‘general acceptance,’ ‘[t]he goal is not to
decide the actual reliability of the new technique, but simply to determine
whether the technique is generally accepted in the relevant scientific
community.’ [Citation.]” (People
v. Morganti (1996) 43 Cal.App.4th 643, 656 (Morganti).)
A finding of
“general acceptance” presents a mixed question of law and fact. “‘[W]e review the trial court’s determination
with deference to any and all supportable findings of “historical” fact or
credibility, and then decide as a matter of law, based on those assumptions,
whether there has been general acceptance.’
[Citation.]” (
It has now been
over 20 years since DNA evidence was first approved by a California appellate
court to prove identity in a criminal case.
(Axell, supra, 235 Cal.App.3d 836.)
“Since then, the scientific methodology, while fundamentally the same,
has become more refined and sophisticated.”
(Hill, supra, 89 Cal.App.4th at p. 51.) “California courts have recognized that two
methodologies are widely used in forensic DNA testing: restriction fragment length polymorphism (RFLP)
and PCR [polymerase chain reaction]. (
47, 57-58 & fn. 6 [(Venegas)].) There are three subtypes of PCR testing: DQ-Alpha, which tests a single genetic
marker; Polymarker, which tests five genetic markers; and the STR, which tests
three or more genetic markers. (
[1093,] 1097 [(Allen)].) The RFLP and PCR methodologies, including the
PCR subtypes, have acquired general acceptance in the scientific
community.” (Hill, at p. 57.)
Neither the use of PCR nor STR technology to analyze mixed-source
forensic samples is a new scientific technique.
(People v. Smith (2003) 107
Cal.App.4th 646, 665 (Smith).) Nor are new kits as they come on the
market. (Jackson, supra,
163 Cal.App.4th at p. 325; Hill,
supra, 89 Cal.App.4th at
pp. 57-58.) What was once
considered revolutionary has now become rather mundane, and the question
becomes whether the improvement or refinement in DNA methodology qualifies as
another breakthrough innovation within the meaning of Kelly, or whether the change represents a mere evolution of a
generally accepted scientific technique.
Here we focus on the methodology used to determine probabilities.
DNA is processed
to determine if there is a match between a sample derived from the crime scene
and a sample taken from the defendant.
If so, the probative value of the match depends on its statistical
significance. (Venegas, supra, 18
Cal.4th at p. 82.) “A determination
that the DNA profile of an evidentiary sample matches the profile of a suspect
establishes that the two profiles are consistent, but the determination would
be of little significance if the evidentiary profile also matched that of many
or most other human beings.” (
“The question properly addressed by the DNA analysis is therefore
this: Given that the suspect’s known
sample has satisfied the ‘match criteria,’ what is the probability that a
person chosen at random from the relevant population would likewise have a DNA profile
matching that of the evidentiary sample”
(Soto, supra, 21 Cal.4th at p. 523.)
The methods used to compute the probabilities also fall under the
whether the methodology used is generally accepted in the scientific
community. (Venegas, supra, 18 Cal.4th
at pp. 83-84.)
Once a scientific
technique, including probability calculations, is generally accepted, a
defendant challenging the technique must offer new evidence. (Bolden,
supra, 29 Cal.4th at p. 546.) For example, the utilization of the product
rule in a cold hit case has been generally accepted by the scientific community
and has withstood challenges as a “new scientific technique” when applied in
different circumstances. (
begin with defendant’s challenge to the DNA evidence extracted from the pubic
hairs inside the victim’s vagina.
I
Pubic Hairs
DNA testing is
tricky when the criminalist, as here, discovers mixed sources in the
sample. The DNA evidence extracted from
the pubic hairs from inside K.E.’s vagina was introduced as evidence to
corroborate her testimony that defendant had sexual intercourse with her as
alleged in count one.
To address the
challenges presented by mixed sources where the female DNA overwhelms the male
DNA in the sample taken from the victim, scientists have further refined the
PCR/STR testing methodologies to allow for typing of just the male Y
chromosome. The specialized typing of
the Y chromosome is referred to as Y-STR testing. Although Y-STR testing and its female
counterpart, mtDNA testing, have been generally accepted by the scientific
community as reported by courts across the country, defendant contends the
trial court erred by refusing to hold an evidentiary hearing to establish that
Y-STR testing is generally accepted.
(See, e.g., State v. Calleia
(2010) 414 N.J. Super. 125, 148-149 [997 A.2d 1051] (Calleia), reversed on other grounds in State v. Calleia (2011) 206 N.J. 274 [20 A.3d 402];
660-661 (Curtis);
285 Kan. 503, 512-514 [174 P.3d 407]; State
v. Lee (2007) 964 So.2d 967, 983; Wagner
v. State (2005) 160 Md.App. 531, 547-548 [864 A.2d 1037] (
823] (Klinger).) He is mistaken. Y-STR testing does not embrace new scientific
techniques. (Hill, supra, 89
Cal.App.4th at p. 60.)
“[T]he use of
polymerase chain reaction and short tandem repeats technology to analyze a
mixed-source forensic sample is neither a new or novel technique or
methodology.” (Smith, supra, 107
Cal.App.4th at p. 665; see Hill,
Cal.App.4th at p. 1097; People v. Wright
(1998) 62 Cal.App.4th 31, 34.) In the
absence of California authority directly on point, it is appropriate for us to
turn to relevant decisions from other jurisdictions to determine whether Y-STR
has achieved consensus within the scientific community as a reliable type of
generally accepted PCR/STR testing. (
Cal.App.3d at p. 1135.)
Recent cases in
New Jersey and Washington are particularly helpful in understanding the basic
science, the similarity between PCR/STR and Y-STR testing, and the scientific
response to Y-STR testing. In
DNA testing is identical to that followed in autosomal STR DNA testing. The sample is extracted in the same manner,
amplified by the PCR method, tagged with a primer, and detected in the genetic
analyzer. The data is collected and
represented in exactly the same way. The
only procedural distinction is that the primer included in the test kit for
Y--STR DNA analysis contains markers for the Y--STR loci specified by SWGDAM [a
scientific advisory board]; the primer included in the test kit for autosomal
STR DNA analysis contains markers for loci on all twenty-three chromosome pairs. The major difference between autosomal STR
DNA analysis and Y--STR DNA analysis is in the interpretation and application
of the test results.” (
The similarity
between PCR/STR testing and Y-STR testing was also observed in
[208 P.3d 1242] (Bander). “ReliaGene used a PCR-based process known as
YSTR testing to type the DNA samples it tested.
YSTR amplification is essentially the same as the PCR-STR process that
Frank used, except that it permits the analysis of only male DNA in a
mixed-source sample that also contains DNA from a female contributor.” (Id.
at p. 1246.)
Both the strength
and the weakness of the Y-STR testing is the fact that only males have the Y
chromosome. (Calleia, supra, 997 A.2d
at p. 1063.) As a result, the Y-STR
testing can be used to resolve difficult mixed-source samples by examining the
DNA of only the male. The court in
limitations. “Because only males possess
Y chromosomes, a mother does not contribute to the genetic code of her son’s Y
chromosome. The DNA sequence on the Y
chromosome is passed in complete form from grandfather, to father, to son and
on down the male lineage. The Y
chromosome loci are not independent of one another and there is no
recombination of DNA. It is strictly a
male marker and there is no randomness on the chromosomes. Consequently, the product rule used to
generate probabilities for autosomal STR DNA analysis is inapplicable to Y--STR
DNA analysis. In other words, barring
random mutations, all men in a paternal lineage will possess the same Y--STR
DNA profile. Thus fathers, sons,
brothers, uncles, and paternal cousins cannot be distinguished from one another
through a Y--STR DNA profile. [¶] For this reason, Y--STR DNA testing has
limited usefulness in positively identifying an individual. The testing is extremely useful, however, in
excluding someone since an individual cannot be the source of the DNA if the
profiles do not match. If the Y--STR DNA
profiles do match, then all that can be said is that the individual
donor.” (Calleia, supra, 997 A.2d
at pp. 1063-1064.)
The fact that
Y-STR DNA testing cannot positively identify an individual does not mean the test
is a new technique, that it is unreliable, or that the results are not
probative. The Calleia court analogized the results of Y-STR testing to
conventional forms of evidence routinely admitted in criminal trials, such as shoe imprint evidence. Evidence of shoe imprints found at a crime
scene is routinely admitted, the court observed, to connect a criminal
defendant with shoes found in his possession, “despite the fact that any number
of persons might own identical pairs of shoes.”
(Calleia, supra, 997 A.2d at p. 1066.)
The prosecution was not required to prove that the defendant’s shoes
were the only ones that could have made the impressions; rather, the jury was
provided the opportunity to weigh their probative value. In the same way, the probative value of the
Y-STR is a question of the weight of the evidence, not its admissibility. (Id.
at pp. 1066-1067.)
Most importantly
for our purposes, it was “established that Y--STR DNA analysis is a
‘non-experimental, demonstrable technique’ that is widely accepted by forensic
scientists.” (Calleia, supra, 997 A.2d
at p. 1064.) The court concluded that
“there is a general acceptance of Y--STR DNA analysis in the scientific
community.” (Ibid.) Similarly, in
court’s finding that “the YSTR methodology had been validated ‘internally and
externally’ and subjected to peer review, that it was generally accepted in the
scientific community, and that the YSTR evidence was reliable and
relevant.” (Id. at p. 661.)
Defendant cites to
no cases in which the reliability of Y-STR testing has been challenged or
questioned by members of the scientific community. Nor has he cited any scientific study that
questions the validity or the reliability of Y-STR analysis. Belatedly pointing to National Research
Council, The Evaluation of Forensic DNA Evidence (1996), he argues that each
new PCR system must be individually validated.
We will not address his argument in depth for two reasons. First, he forfeited the argument by failing
to raise it in the trial court. (
448 (Doolin).) Second, he has not demonstrated that Y-STR is
a new PCR system.
The Y-STR DNA
testing has a female counterpart in mtDNA evidence, which has also gained
general acceptance within the scientific community. Nuclear DNA and mtDNA are found in human
cells, but mtDNA is found outside the nucleus in the mitochondria. Because 8 to 10 chromosomes reside in each
mitochondrion, there is a greater quantity of DNA to work with and it is much
heartier. (Klinger, supra,
185 Misc.2d at p. 577.)
However, all mtDNA is inherited from the mother. (Ibid.) Unlike nuclear DNA, therefore, all the
markers are not independent of each other.
Like Y-STR, mtDNA testing is more a test of exclusion than of
identification. (Wagner, supra,
864 A.2d at p. 1045.) “Because
mtDNA is maternally inherited and because all matrilineal decedents will share
the same mtDNA, the traditional random match probability used in nuclear DNA
analysis cannot be calculated.
[Citation.] Instead, the counting
method is used, and a ninety-five percent confidence interval is applied.” (Id.
at p. 1045, fn. 9.) The experts in
methodology. (Id. at p. 829.) Thus, “the
analyses and interpretations of mtDNA have gained general acceptance in the
community of scientists that work in this field.” (Id.
at p. 831.) The principles of mtDNA
analysis and the statistical methods, including the counting method and the
confidence factor, are generally accepted as reliable in the scientific
community. (Id. at p. 829.)
These cases
demonstrate that Y-STR testing, like its female counterpart, mtDNA testing, is
not a new scientific technique. It is a
further refinement of STR analysis in the continuing evolution of DNA testing
for forensic purposes. “Once an
appellate court has affirmed in a published opinion a trial court ruling
admitting evidence based on a new scientific technique, the precedent may
control future trials, at least until new evidence is presented that reflects a
change in the scientific community’s attitude.
(People v. Venegas,
76.)” (People v. Nelson (2008) 43 Cal.4th 1242, 1257.) The out-of-state cases cited above amply
demonstrate that Y-STR testing is generally accepted in the scientific
community as a valuable tool in evaluating DNA in mixed-source cases. Moreover, use of the counting method and the
confidence factor as a conservative adjustment to the statistical probability
of a match is also generally accepted within the scientific community, and in
the absence of any case or scientific authority to the contrary, we find no
judicial error in allowing the jury to determine the weight of the probability
calculations used in this case.
Defendant also
belatedly claims the trial court erred by failing to establish that the
criminalist used the proper procedures in selecting too small a database in
calculating the probability of a match.
He forfeited this particular argument by failing to raise it in the
trial court. (Doolin, supra,
45 Cal.4th at p. 448; People v.
Coleman (1988) 46 Cal.3d 749, 776-777.)
Moreover, we find the trial court did not abuse its discretion by
relying on Shaw’s testimony that she followed correct scientific procedures,
that is, that she counted the number of matches within the US Y-STR database
and applied the confidence factor, a generally accepted method within the
scientific community and reported in the out-of-state cases cited above.
II
The Breast Swab
The court allowed
a second criminalist to testify about the results of the DNA testing of the
sample of saliva taken from K.E.’s breast to corroborate K.E.’s testimony that defendant
had licked her breast as alleged in count four.
Defendant does not contend that the PCR/STR test procedure is a new
scientific technique, as that methodology has met the Kelly threshold in this state for years. What he does argue is that the interpretation
of those results, relying on RFU levels that are not standardized throughout
the country, is a new scientific technique that should have been subjected to a
Kelly prong-one hearing. We disagree and will explain in three
steps: presenting the scientific
context, debunking the assumption there must be national standards, and
illustrating how the methodology used in this case is not a new scientific
technique but an application of a widely used and accepted model.
shown on an electropherogram, the more DNA is present. Although the criminalist determined that the
breast swab was from a single source, he could only ascertain a partial profile
because there was insufficient DNA present at five loci to be identified as
alleles. The criminalist opined that the
DNA could have been inhibited by external factors (such as dirt, lotion, or a
bra rubbing) or the sample may have been degraded. Nevertheless, defendant’s DNA matched all 10
of the alleles the criminalist was able to measure.
Defendant,
however, challenges the manner in which the criminalist interpreted the
results. The county crime lab, as
pointed out in the statement of facts, has a protocol requiring a peak height
measuring at least 75 RFU’s to be identified as an allele and thereby to be
used to construct a DNA profile. Thus,
the peaks below 75 RFU’s were not considered even though, defendant argues,
they may have represented DNA matching either Michael or K.E. In essence, defendant contends the lab’s
artificially high RFU threshold established by the lab’s protocol may have
excluded exonerating evidence from the jury’s consideration. But in any event, defendant maintains the court
should have held an evidentiary hearing whereby the prosecution would have had
to prove that the criminalist’s methodology was generally accepted because his
reading of the peaks represents a new scientific technique subject to a
Defendant also
argues that the interpretation of the results was flawed by the criminalist’s
use of a second calculation whereby he excluded all of the alleles defendant
shares with either K.E. or Michael or both.
He characterizes the exclusion of the shared alleles as a “subtraction”
technique that is new to science and again subject to scrutiny in a
the calculation increased the probability of a match and thereby inured to his
benefit.
the county crime lab fell within generally accepted scientific guidelines or
standards. He points out that in
reported cases the protocols vary from as low as 40 to as high as 150 RFU’s,
and in his view, such a swing offends basic principles of due process and equal
protection. (Commonwealth v. Gaynor (2005) 443 Mass. 245, 266-267 [820 N.E.2d
233]; Bander, supra, 208 P.3d 1242; State
v. Whittey (2003) 149 N.H. 463, 472-473 [821 A.2d 1086].) Defendant offers no authority for his
underlying assumption that a lack of national standards for interpreting how
high a peak must be on an electropherogram to be sufficient for identification
as an allele threatens the basic constitutional rights of a criminal defendant. Any possible constitutional challenge is
premature here. The threshold question,
preserved below and raised on appeal, is whether the methodology is new and
generally accepted.
A similar
contention was raised in Reilly,
least within the context of the expert testimony by a detractor of
electrophoretic typing of dried blood stain evidence. He, like defendant here, lamented the absence
of uniform guidelines “to promote ‘confidence’” and hence general acceptance
among scientists. (Id. at p. 1150.) The court
rejected the need for uniform guidelines and explained: “The only conflict is that [the detractor]
intractably demands guidelines as quality assurance while his colleagues do
not. Thus, the technique is generally,
even overwhelmingly, accepted in the scientific community without the guidelines. As
[the detractor] concedes, guidelines cannot remove the risk of error
altogether. We see no reason to
judicially impose a ‘guidelines’ requirement when the general scientific community clearly does not.” (Ibid.) Similarly, in Axell, supra, 235
Cal.App.3d 836, DNA typing using RFLP was also generally accepted despite the
lack of standards and regulations for forensic laboratories. (Id.
at p. 857.)
authority that the protocol adopted by the county crime lab constitutes a new
scientific technique and, if so, is questioned by the scientific community, we
reject defendant’s challenge to the criminalist’s interpretation of the peak
heights reflected on the electropherogram.
The cases he cites from across the country suggest that the county crime
lab’s protocol of identifying only peaks above 75 RFU’s as alleles appears to
be within the range of protocols used throughout the country. Moreover, the fact that some laboratories
interpret results more conservatively than others does not indicate the absence
of general acceptance of a scientific technique. (See, e.g., United States v. Chischilly (9th Cir. 1994) 30 F.3d 1144, 1154.)
There appears to
be nothing new or innovative about the criminalist’s interpretation of a
well-accepted methodology in DNA testing.
As our Supreme Court admonished in People
v. Cooper (1991) 53 Cal.3d 771, once a new scientific technique becomes
generally accepted, a Kelly prong-one
hearing is not necessary to establish whether each specific methodology
employing the technique is also generally accepted. (Id.
at pp. 812-813.) Rather than
quibble over the components of the process or the interpretation of the
results, challenges are directed to the weight of the evidence to be determined
by the jury and not to its admissibility.
As the Attorney
General points out, California courts have found that the use of PCR and STR
technology has been generally accepted by the scientific community. (Smith,
supra, 107 Cal.App.4th at p.
665; Henderson, supra, 107 Cal.App.4th at pp. 786-787.) In both cases the court refused to undertake
a Kelly prong-one hearing to
determine whether use of the technology in mixed-source cases specifically had
been accepted by the scientific community.
And in both cases, the courts recognized the additional complications
arising from mixed-source samples that might impact on the results’
reliability, but concluded that the weaknesses or potential flaws were
considerations for the jury in weighing the evidence and determining the
accuracy of the results. (
107 Cal.App.4th at p. 788.) These
complications did not trigger the need for a Kelly evidentiary hearing. (
The same is true
here. The criminalist testified to no
new revolution in science or in probability analysis. Defendant fails, therefore, to meet the very
threshold showing that the prosecution is relying on a new scientific
technique. Appropriately, the defense
seized on the opportunity to vigorously cross-examine the criminalist’s
methodology and the interpretation of the results. As a result, the jury heard all the evidence
and argument as to why dropping peaks below 75 RFU unfairly disfavored
defendant and why excluding shared alleles cast doubt on the strength of the
resulting profile. Thus, the jurors
found themselves in the same shoes worn by jurors in all technical and
scientific cases wherein they are asked to determine the weight of the expert
testimony in light of its inherent weaknesses or flaws and the specific
methodology utilized by the expert in the case before them.
We conclude there
was no danger here that the jury naively embraced the efficacy of an untested
and innovative scientific advance.
Because there is no new scientific technique involved, but a mere
disagreement as to how well-accepted DNA testing is applied and interpreted,
the court did not err by refusing a Kelly
prong-one hearing. In the absence of a
new technique, and not a mere tweaking of existing testing methodologies and
calculations, the concerns embodied by the Kelly
principle are not implicated and the hypothetical constitutional challenges
belatedly asserted do not arise.
DISPOSITION
The judgment is
affirmed.
RAYE , P. J.
We concur:
NICHOLSON , J.
HULL , J.
