(Super. Ct. No. 09F03011)
The opinion of the court was delivered by: Raye , P. J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
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); People v. Jackson (2008) 163 Cal.App.4th 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 Kelly prong-one evidentiary hearing.
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 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. ...