TRIAL JUDGE: Honorable Brenda Harbin-Forte TRIAL COURT: Alameda County Superior Court (Alameda County Super. Ct. No. H43770)
The opinion of the court was delivered by: Marchiano, P.J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Defendant James Dwayne Smith raped and sodomized a 13-year-old girl, inflicting serious vaginal and anal injuries requiring reconstructive surgery. The jury convicted him of torture (Pen. Code, § 206) and the trial court sentenced him to life in prison with the possibility of parole. His primary contentions are: (1) the results of DNA testing were admitted in violation of his United States Constitution Sixth Amendment right of confrontation, as interpreted by Melendez-Diaz v. Massachusetts (2009) 557 U.S. ___, 129 S.Ct. 2527 (Melendez-Diaz); and (2) the district attorney committed prosecutorial misconduct. We find no prejudicial error and affirm.
Under applicable standards of appellate review, we must view the facts in the light most favorable to the judgment of conviction, and presume in support of the judgment the existence of every fact which the jury could reasonably find from the evidence. (People v. Barnes (1986) 42 Cal.3d 284, 303; People v. Neufer (1994) 30 Cal.App.4th 244, 247.)
The facts of this case involve three sexual assaults which occurred in the East Bay between New Year's Eve 1990 and mid-March 1991. The sexual assaults were characterized by similar behavior of the assailant, including blindfolding the victims and committing both rape and sodomy. One of the victims is the victim in the present case, 13-year-old Jane Doe 1. The others are two adult women, Jane Doe 2 and Jane Doe 3. After 15 years, and the expiration of the statute of limitations for rape and sodomy, DNA matches connected defendant to the three sexual assaults. The People prosecuted defendant for the torture of Jane Doe 1. Jane Doe 2 and Jane Doe 3 testified at defendant's trial pursuant to Evidence Code section 1101.
On March 18, 1991, Jane Doe 1 was in the seventh grade and had just turned 13. She was 5' 2" tall and weighed 86 or 87 pounds.
Jane Doe 1 got out of school early that day and spent some time at a friend's house. At approximately 3:00 or 3:30 p.m., she was walking home along East Avenue in Hayward. She noticed a man, whom DNA would establish was defendant, walk towards her and pass her on her left side. She kept walking. Suddenly she was grabbed from behind above both elbows and lifted off the ground. She screamed and struggled, but could not escape defendant's grasp. Defendant put his hand over Jane Doe 1's mouth to stop her screams. When his hand slipped, Jane Doe 1 asked him, "Are you going to kill me?" Defendant replied, "I will if you don't shut up." Jane Doe 1 stopped screaming because she did not want to be killed.
Defendant threw Jane Doe 1 into a silver-blue van and got in after her. The van had only a driver's and a passenger's seat. The back of the van was empty except for boxes and some clothes. Defendant placed Jane Doe 1 face down on the floor of the van, blindfolded her from behind, and dragged her forward to where her head was between the driver's and the passenger's seats. He drove off holding her down by the base of the neck.
Defendant asked Jane Doe 1 her name and age. She "knew he wanted a child, and . . . didn't know how old he wanted [her] to be," so she replied, "9, 10, 11, 12." From this point on, Jane Doe 1 thought defendant was going to kill her.
Defendant drove for 10−15 minutes. He then stopped the van, removed his hand from Jane Doe 1's neck, and told her, "I'm going to fuck you real bad." Defendant roughly flipped Jane Doe 1 over, removed her shoes, pants, and underwear, and pushed her shirt up around her neck. He took off his clothes, put his finger inside Jane Doe 1's vagina, and sucked on his finger. He then ordered Jane Doe 1 to do the same with her own finger.
Defendant forced open Jane Doe 1's legs and forcefully raped her in the vagina for three to four minutes. He then flipped her over onto her knees, put his penis into her mouth, and forced her head and face onto his penis. Jane Doe 1 was about to vomit and pulled back. She thought defendant would kill her if she threw up, so she swallowed her vomit. Defendant continued to force her to orally copulate him.
Defendant then forced Jane Doe 1 onto her hands and knees and sodomized her. Jane Doe 1 screamed in pain. Defendant said, "Good."
When defendant finished the sexual assault, he lay down with Jane Doe 1, caressed her, and had her put her arms around him and say, "I love you." He kissed her and told her to kiss him back, using her tongue. He asked her personal questions and made a comment about her parents that made her think he was going to kill them. He gave Jane Doe 1 what she thought was false information about where he lived, in case she went to the police.
Defendant dressed Jane Doe 1 and used her sweatshirt as a blindfold. He put her face down between the driver's and passenger's seat and drove for a few minutes. Defendant stopped the van, opened the door, and threw the blindfolded Jane Doe 1 onto the pavement.
A passerby called police and Jane Doe 1 was taken in an ambulance to Children's Hospital in Oakland. Dr. Jeanne Mowry, a pediatric nephrologist, performed a sexual assault examination of Jane Doe 1. She had cuts and bruises, and a tear on the vaginal wall with oozing blood. Dr. Mowry collected vaginal and rectal swabs.
Dr. James Betts, chief of surgery at the hospital and director of trauma services, was qualified as an expert on pediatric surgery and pediatric urology. He performed reconstructive surgery on Jane Doe 1. Dr. Betts gave his expert opinion that Jane Doe 1 had suffered a "particularly brutal, violent assault, rape, and torture." She had bruising on her hands, mouth, elbows, and back, as well as around her windpipe, suggesting blunt force trauma.
Dr. Betts testified that Jane Doe 1 needed reconstructive surgery because she had "suffered severe, violent injury." She had a "very large, jagged tear in the fourchette of her vagina [which] went down through into the musculature of that area and had two areas of significant laceration within the vaginal canal." The reconstruction of her vaginal canal was "extensive . . . the equivalent of a very major episiotomy . . . that required multiple layers of suture and repair, as well as the repair of the laceration inside her vaginal canal which required multiple suturing[,]" 50 to 80 sutures. Jane Doe 1 also had a torn vaginal wall and a "fairly large fissuring type of laceration in her anus."
Of the thousands of surgeries Dr. Betts had performed on children, "[t]his was one of the worst injuries, most brutal signs of injury, that [he had] seen in a child of this age."
Jane Doe 1 never got a good look at defendant and could not identify him in court. But she testified that when she attended his arraignment and heard him speak, she reacted strongly to his voice: "my teeth started chattering. My whole body started chattering, sort of shaking."
On December 31, 1990, 24-year-old Jane Doe 2 was living in an apartment in Castro Valley. She was the same height as Jane Doe 1, 5' 2", and weighed 115 pounds.
Sometime after 4:30 p.m., Jane Doe 2 left her apartment to walk to a corner store to buy cheese for a New Year's Eve party. She saw defendant standing next to the open door of a grayish-blue van, rummaging inside. As she passed by, she looked at defendant and said, "Hello." Defendant seemed surprised, but responded, "Hi."
Defendant then ran up behind Jane Doe 2 and slammed into her, hitting her in the face and chest. She lost her balance because she had an arm in a sling. He silenced her screams by pulling her shirt and jacket over her head and slamming her head and face into the ground. Her mouth filled with blood and she had difficulty breathing. Defendant dragged her into the back of the van, which was cluttered with tools, a toolbox, and a roll of carpet. She passed out.
When she came to, defendant was pulling off her sweatpants. He had pulled her shirt and jacket over her head so she couldn't see. He started jamming his fingers into her anus "really hard," causing her pain. She tried to get away, but defendant grabbed her and flipped her onto her back. She thought defendant was going to kill her.
Defendant asked Jane Doe 2, "How do you want it first? In the ass or the pussy?" He ordered her to open her legs, but she refused. He forced her legs open and vaginally raped her, saying, "Fuck me. Fuck me," and asking personal questions. He told Jane Doe 2 to say, "Fuck me. Fuck me" to him and to put her arms around him. He groped her breasts very hard and bit her nipples so hard she thought he was going to bite them off. He forcibly kissed her and ejaculated.
Defendant tried to sodomize Jane Doe 2, but had difficulty penetrating her anus. He became angry, forced his fingers into her anus and began to hit her. He vaginally raped her again and ejaculated again.
Defendant told Jane Doe 2 he might let her go if she did one more thing. He then flipped her on her stomach and forced her face and head onto his penis. She gagged, but swallowed her vomit so as not to anger defendant by throwing up. He hit her hard in the back of the head to force it down harder on his penis, and eventually ejaculated into her mouth.
Defendant then forced Jane Doe 2 to her knees between the driver's and passenger seat, and forced her head down as he drove. He talked to himself about having to find a way to get rid of Jane Doe 2, who thought that meant defendant was going to kill her. He made a comment to Jane Doe 2 that made her think defendant believed she would go to the police.
Defendant stopped the van and demanded the money that Jane Doe 2 had taken with her on her walk to the store. He got out of the van and pulled Jane Doe 2 out after him. Defendant pinned Jane Doe 2 against him and started walking. Jane Doe 2 asked him if she could go home. Defendant said, "Yeah, I think so" and "Thank you, and have a Happy New Year." He then walked off and left her alone, still with her shirt and jacket over her head.
Jane Doe 2 was treated for sexual assault at Eden Hospital. Emergency room physician Joanne Nelson examined Jane Doe 2, who had bruises under her breasts, injuries to her back, a head contusion, and red hand marks on her legs. There were lacerations in three areas around her genitalia. Dr. Nelson collected vaginal and rectal swabs.
Jane Doe 2 identified defendant in court as her assailant.
On January 23, 1991, 29-year-old Jane Doe 3 lived alone in a stand-alone apartment on Allston Way in Berkeley. She returned home about 10:30 that evening, after working a 16-hour shift as a nurse at Alta Bates Hospital.
As she walked into her apartment door, defendant grabbed her from behind and put his hand over her mouth. He said, "I was about to give up on you. I didn't think you were coming home tonight." She started to scream and struggle. Defendant forced her arm high up behind her back, and told her, "Shut up. If you don't shut up, I'll break it." She stopped struggling.
Defendant forced her to the floor on her stomach and started to remove her pantyhose. She told him to leave her alone. He responded, "Shut up. Just shut up."
Defendant fondled Jane Doe 3's anus and vagina with his fingers. He then flipped her on her back, ripped off her shirt, pushed her legs up in the air and vaginally raped her. He said, "That's so good. I'll do it again," and raped and sodomized her many times. During the sexual assault he asked her personal questions.
The assault lasted one and one-half hours. When defendant finished he placed foreign objects in Jane Doe 3's anus. He asked Jane Doe 3 to masturbate him.
Defendant hog-tied Jane Doe 3 with the telephone cord and her pantyhose, urinated onto her, and left by jumping off the side balcony.
Jane Doe 3 had a sexual assault examination, including the taking of vaginal swabs, at Alta Bates.
Jane Doe 3 identified defendant's picture in a photo lineup and identified him in court as her assailant.
Defendant did not testify and presented no witnesses. Defense counsel argued the DNA testing was unreliable and flawed. Counsel's principal argument was that defendant may have committed the sexual assault of Jane Doe 1, but did not act with the specific sadistic intent required for the crime of torture. Defense counsel conceded the element of great bodily injury.
The jury convicted defendant of the torture of Jane Doe 1. The trial court sentenced him to life in prison with the possibility of parole.
A. The Sixth Amendment Right of Confrontation and Melendez-Diaz
Defendant contends that expert DNA testimony, linking him to all three victims, was admitted in violation of his United States Constitution Sixth Amendment (Sixth Amendment) right to confrontation because the testifying experts did not personally perform all of the DNA testing. We disagree because of the holding of People v. Geier (2007) 41 Cal.4th 555 (Geier), which we believe survives the narrow ruling of the United States Supreme Court majority in Melendez-Diaz.
The DNA analysis evidence linking defendant to the sexual assaults of Jane Doe 1 and Jane Doe 2 came from the testimony of Eleanor Salmon, a forensic scientist at Forensic Analytical Sciences (FAS) in Hayward, where she had worked for seven and one-half years. She was the DNA technical leader and section supervisor for the DNA unit, and both performed DNA analysis herself and supervised the case work of other analysts. She holds a B.S. in biology and an M.S. in forensic science. She had previously testified as an expert witness in DNA analysis on 23 occasions. The trial court in this case found she was qualified as an expert on forensic DNA analysis.
Salmon testified in detail about the DNA analysis procedures at FAS, including the use of PCR-based STR analysis, a common forensic DNA tool; measures in place to ensure accuracy of an analysis; DNA comparison techniques; storage procedures; and chain of custody of evidence.
Salmon testified the Alameda County Sheriff's Office requested a DNA analysis of the evidence in Jane Doe 1's sexual assault kit in October 1997. FAS forensic scientist Lisa Calandro performed the testing and prepared a laboratory report. Salmon testified in detail about the procedures Calandro followed in conducting the analysis. She testified she would have done nothing differently from Calandro. She personally reviewed Calandro's laboratory report that was prepared in the ...