APPEAL from the Superior Court of Riverside County. Elisabeth Sichel, Judge. Reversed. (Super.Ct.No. RIF145937).
The opinion of the court was delivered by: Ramirez, P.J.
CERTIFIED FOR PUBLICATION
A jury convicted Edward Miller, Jr., defendant, of sexual penetration of a minor (Pen. Code, § 288.7, subd. (b)).*fn1 Defendant's motion for a new trial was granted by the trial court. The People appeal, claiming the trial court abused its discretion in granting the new trial motion. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 127.) We conclude that the trial court erred in two respects in granting the new trial motion and, therefore, reverse its order.
EVIDENCE ADDUCED AT TRIAL
Sometime well before September 18, 2008, the victim and her four sisters and her brother, along with their mother, moved into the home of the mother's aunt and the aunt's husband, who was defendant. The mother's aunt and defendant slept in one bedroom of the home and the mother slept in another. The children slept in the living room. The children got along well with defendant before September 18, 2008 and they had daily contact with him.
The victim, who was six years old at the time of the crime, testified that she and her brother were lying on the living room floor next to each other the night of September 18 when defendant entered the dark room, picked up the victim and carried her into his bedroom. Once they were in his room, defendant removed the victim's pajama bottoms and underpants and used his finger to touch her genitals. He moved his finger around on her genitals and put his fingers inside her vagina. He put his penis on her genitals. It hurt a little bit. He put her pants and pajama bottoms back on, but did so incorrectly, and returned her to the living room. The next morning, she told her 15-year-old sister about the incident, when her sister noticed the victim trying to adjust her underwear (the victim had one leg through both leg openings of her underwear). Then, the victim told her mother, who took the underwear.
During a Riverside Child Assessment Team (RCAT) interview, a DVD of which was played for the jury, the victim said that defendant had taken her from the living room, where she was lying next to her brother, who saw what was happening,*fn2 carried her into his room and put her on his bed on her back. In defendant's room, he removed the victim's pants and underpants, licked his fingers and rubbed her vagina with them. Then he lay on her stomach and put his penis on her genitals. He moved his penis up and down and it hurt. A light or lights were on in defendant's room and the victim saw his face. Defendant stopped when the victim's mother came out of her bedroom to use the bathroom. Defendant put the victim's underpants and pajama bottoms back on her. He carried her back into the living room, while her brother watched. When she awoke the next morning, the victim noticed that her underwear and pajama pants were twisted because defendant had put them back on her too fast. She told her sister what had happened, then her mother.
The victim's 15-year-old sister testified that defendant's wife was not at the home, but was at work, the night of the crime. The sister noticed that the victim's pants were tangled when she saw her in the bathroom the morning after the crime. The victim told her sister that defendant had touched her. The sister saw a reddish brown stain on the victim's underwear. She called her mother into the bathroom, and the mother examined the victim's genitals and put the victim's underwear into a purse. That morning, the mother told the sister that she and her siblings should stay away from defendant.
The victim's brother was 10 or 11 years old at the time of the crime. He testified that the night of the crime, defendant entered the living room where he and the victim were lying next to each other and picked up the victim and carried her to his room. Although the living room was dark, he was 100 percent sure it was defendant. Defendant's wife testified that she had been away from the home for eight days and nights preceding the crime, working as an around-the-clock healthcare provider to the elderly.*fn3 She testified that the victim, her sister and her brother did not lie and she had not coached them in what to say about the crimes.
A male senior criminalist from the Department of Justice with 19-20 years of experience testified that a female senior criminalist at the lab in Richmond, California, that does DNA analysis, authored a report in which the latter concluded that sperm found on the victim's genitals matched defendant's and the likelihood that another person would have defendant's DNA profile is one in 35 quadrillion for African-Americans, one in 5.5 quadrillion for Caucasians and one in 200 quadrillion for Hispanics, which greatly exceeds the number of people who inhabit the earth.*fn4 He said the report also concluded that sperm found on the victim's underpants could not be excluded as having DNA matching the defendant's, which was not as strong an indicator as the sperm found on her genitals. He said the report had been made in the normal course of business and at or near a time when the testing was completed. The male criminalist testified about the guidelines and checklists required for performing the procedures and authoring the report the female criminalist had written. Additionally, he said, the report author's notes and the report are reviewed by a second DNA analyst, who has checklists to follow and who "recrunch[es] all the data on the computer and make[s] sure the results that [he/she] sees [are] the same as what the [author of the report] sees" and checks off the checklist which the author used. Then, a third review is done, which is administrative. During it, the work of the second DNA analyst is reviewed, as are the notes of the report author and the report, itself, and, once again, the checklist the author used is reviewed. Both of these reviews were done in this case and the people that did them signed the report. The male criminalist, who, in the regular course of business, had both authored and reviewed reports such as the one authored by the female criminalist, testified that he had spoken with the female criminalist on the phone and he had made sure that everything was okay and that "multiple procedures [were done] in order to guarantee the reliability of th[e] report." He did not examine any of the specimens in the case or stand over the female criminalist as she did her work, but he testified that he would be surprised if she had not followed the required checklists, and that would be unlikely, due to the two reviews described above.
Additionally, the male criminalist testified that he can independently look at the DNA typing information that is in reports and make a conclusion as to whether or not the DNA matches. He said he did this in this case and came independently to the same conclusions the female criminalist had made--in fact, he concluded that the likelihood of someone else having defendant's DNA was one in a number greater than the number of people who had ever lived. He did not review the author's notes, or the electronic data from the genetic analyzer, but he relied on the accuracy of the report and reviewed it.
The male criminalist testified that he was unable to say when the sperm was deposited on the victim's genitals and her panties. He said that, if not disturbed, a sperm cell can last for years on a pair of panties.
The defendant testified as the only substantive witness for the defense. He denied that he had molested the victim. He claimed that for one month preceding the crime, the victim's mother was prostituting herself and using drugs in his home and because he was on parole, he needed to distance himself from her illegal activities. Consequently, he spent the night of Tuesday, September 16 and Wednesday, September 17 at the home of what he described as "a ho and a crackhead," not returning home until 5:00 or 6:00 a.m. He did not explain how spending time with this woman was different, in terms of the continuation of his parole, from being in a house with the victim's mother, who, according to him, was doing the same things his friend was doing. He also testified that despite his disapproval of what the victim's mother was doing, he had sex with her on Monday, September 15 and, thereafter, told her that if she did not stop her illegal actions or take them elsewhere, he would kick her out of the house as she was jeopardizing his parole. He also did not explain how his admitted use of marijuana during this time did not jeopardize his parole, while the victim's mother's alleged activities did. He said the victim's mother responded to his threat by telling him that she was going to get him out of the house, which belonged to her aunt, and not to him. Defendant asserted that the victim's mother conspired with his wife and her children to frame him for the molestation in order to get him out of the ...