PEOPLE v. McSHERRY

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Court of Appeal, Second District, Division 5, California.

The PEOPLE, Plaintiff and Respondent, v. Leonard J. McSHERRY, Defendant and Appellant. IN RE: Leonard J. McSHERRY, on Habeas Corpus.

Nos. B048607, B066689.

Decided: December 17, 1992

Dennis A. Fischer, Santa Monica, under appointment by the Court of Appeal, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Acting, r. Asst. Atty. Gen., William T. Harter and Robert M. Snider, Deputy Attys. Gen., for plaintiff and respondent.

Appellant Leonard J. McSherry kidnapped a six-year-old girl and committed sexual offenses against her.   By jury trial appellant was convicted on four counts involving rape, oral copulation, penetration of the victim's genital opening with appellant's finger, and kidnapping.  (Pen.Code, §§ 261, former subd. (2), 288a, subd. (c), 289, 207, subd. (b).)  Numerous sentencing enhancements were also found true.

On appeal, appellant contends:  (1) the evidence is insufficient to show oral copulation, (2) the trial court erred in denying appellant's motion for new trial based on newly discovered evidence, and (3) the trial court committed several sentencing errors.   We modify the sentence and affirm.   In a petition for writ of habeas corpus filed while the appeal was pending, appellant also seeks a new trial based on newly discovered evidence.   We deny the petition.

FACTS

On the evening of March 11, 1988, appellant kidnapped six-year-old Candice B. (Candy) from a park in front of her home in Long Beach.   Appellant drove Candy to the home of appellant's grandparents on 113th Street in Los Angeles and there committed the sexual offenses against her.   At 2:30 a.m. appellant dropped Candy off in front of the home of a stranger in Carson.   Candy was taken to a hospital where examination showed extreme swelling in her genital area and fresh bleeding of the hymen, indicating penetration.

Testimony and other evidence at trial overwhelmingly identified appellant as the perpetrator:

Identifications of Appellant

Candy positively identified appellant at trial.   Candy had no doubt in twice picking appellant's photograph from photo showups.   Candy recognized appellant at a live lineup;  although she wrote down a different member of the lineup on her lineup card, she told witnesses immediately thereafter that she identified appellant but wrote another number because she was scared.

Shortly before the kidnapping, one of Candy's adult neighbors, Robin Davis, observed appellant in the park from which Candy was kidnapped.   She identified appellant at trial and at a live lineup, and positively picked appellant's photo from a photo showup.

Candy's four-year-old brother Matthew saw Candy get into a vehicle with a stranger.   Matthew positively identified appellant's photo in a photo showup;  Matthew did not identify appellant at the live lineup.

Identifications of Vehicle

Appellant's father, Ralph McSherry, owned a small yellow Mazda stationwagon, which appellant had occasionally been seen to drive.   When shown a group of photos of cars, Candy immediately picked this car as the one in which she was kidnapped;  Matthew identified the same photo as the car appellant used in driving Candy away.

Identification of Appellant's Grandparents' House as the Scene of the Sexual Offenses

When Candy was shown a group of photographs of houses, including appellant's grandparents' house and appellant's father's house, she identified appellant's grandparents' house as the one where the sex offenses occurred.

Candy described to investigating Officer Turley the interior of the home and bedroom where the sex offenses occurred.   Officer Turley used Candy's description in applying for a search warrant.   When Officer Turley served the search warrant and appellant's grandmother read it, appellant's grandmother was so startled by the accuracy of the description that she exclaimed, “ ‘How did somebody know what's in my house?   I have never let anybody in.’  ․ ‘How did somebody know we had blue sheets, a T.V. on the dresser, and a round mirror, and a picture on the wall?’ ”

Candy had described that on the wall was a round picture of “the stranger” (the perpetrator) with a girl.   When Officer Turley served the warrant he discovered a round picture on the wall, of a woman with appellant's grandfather at a time when the grandfather was approximately appellant's age.   Candy's description of the dresser with the T.V., mirror, pictures, and blue sheets with white blankets on the bed also proved accurate.

While serving the warrant, Officer Turley noticed a folding door.   When he later asked Candy what type of doors were in the house, Candy accurately described three doors:  the folding door, a door that swung open, and a closet door with a mirror.

Defense

Appellant presented an alibi defense through testimony by his father and his grandmother.   Appellant's father testified that on the date of the offenses appellant was at the father's residence in Lakewood painting the father's house.   Appellant's father was gone to work between 2 p.m. and 12:30 a.m., but testified (1) he spoke to appellant by phone about 9:45 p.m., (2) appellant was at the house when the father returned about 12:30 a.m., and (3) much painting had been completed in the meantime.   Appellant normally drives a red Isuzu truck which is also owned by his father;  appellant's father does not allow appellant to drive the Mazda;  appellant's father normally drives the Mazda to work.

Appellant's grandmother, Dorothy Smith, testified she is normally home every night;  appellant did not come to her house with a little girl.

SUFFICIENCY OF EVIDENCE OF ORAL COPULATION

 Appellant contends Candy's testimony that appellant touched “his mouth down there” was insufficient to show that appellant put his mouth on her sexual organs.  (Pen.Code, § 288a, subd. (a).)

This testimony, however, came following the court's statement for the record that Candy was pointing to her vagina and Candy answered three questions that appellant touched her “there” with his finger.   Furthermore, afterward followed a series of questions in which the victim again pointed to her vagina and testified appellant put his “dingo” (her word for penis) inside her body.   In light of the surrounding context the jury could reasonably infer, not as a matter of mere speculation as claimed by appellant, that “down there” included her sexual organs.  (See People v. Hesslink (1985) 167 Cal.App.3d 781, 791, 213 Cal.Rptr. 465;  People v. Gonzalez (1983) 141 Cal.App.3d 786, 790, 190 Cal.Rptr. 554.)

MOTION FOR NEW TRIAL

After verdict but before sentencing, appellant moved for new trial on the ground of newly discovered evidence.   The People opposed the motion on both procedural and substantive grounds.   The trial court denied the motion on the ground that a different result was not probable upon a retrial.  (People v. Martinez (1984) 36 Cal.3d 816, 821, 205 Cal.Rptr. 852, 685 P.2d 1203.)

 The newly discovered evidence consisted of the results of a scientific test on the victim's panties by Dr. Edward T. Blake of Forensic Science Associates, which allegedly eliminated appellant as a source of fragments of sperm DNA on the panties.   Dr. Blake's test did not involve the RFLP (Restriction Fragment Length Polymorphism) analysis of DNA typing which was recently approved by a California appellate court as admissible evidence under Kelly–Frye Standards.  (People v. Axell (1991) 235 Cal.App.3d 836, 1 Cal.Rptr.2d 411;  People v. Kelly (1976) 17 Cal.3d 24, 130 Cal.Rptr. 144, 549 P.2d 1240;  Frye v. United States (D.C.Cir.1923) 293 Fed. 1013.) 1  The material on the victim's panties in this case was too small or fragmentary to permit RFLP analysis.   Dr. Blake's test involved a more recently established technique, PCR (Polymerase Chain Reaction) amplification, which involves laboratory multiplication of very small quantities of DNA for genetic analysis.  (See generally Annot. (1991) Admissibility of DNA Identification Evidence, 84 A.L.R.4th 313.)   PCR analysis has not yet been approved by an appellate court as admissible in California under Kelly–Frye.2

In opposition to a new trial, the People submitted declarations from counter-experts criticizing Dr. Blake's conclusion that his test eliminated appellant as a possible contributor of semen DNA fragments on the victim's panties.   The trial court also took judicial notice of conflicting expert testimony in a Kelly–Frye hearing in a Riverside superior court.

Many of the criticisms by the People's experts were specific to this case.   Both the victim and appellant were of the same “DQ Alpha” type known as 1.2, 4.   Dr. Blake's conclusion that the sperm DNA on the panties was type 4,4 was based on the failure to detect the 1.2 allele.   The counter-experts indicated the failure to detect the 1.2 allele could result from difficulties with the test.   Furthermore, degradation or contamination of the sample by bacteria or by cells of whoever handled it is exaggerated by PCR analysis, which involves multiplying from extremely small samples;  here there was a probability of contamination of the panties, which were already soiled and contained fecal matter even when received by the sheriff's laboratory and before being subjected to multiple tests.

In ruling on the motion for new trial, the trial court went directly to the issue whether a different result was probable if a new trial were conducted.   The trial court in effect assumed that the evidence was newly discovered, that appellant had exercised reasonable diligence in attempting to obtain it,3 and that PCR analysis would be held admissible evidence after a proper Kelly–Frye hearing.4  The court held that after all the conflicting expert opinions were admitted, the PCR evidence would be of little weight.   The court relied upon the unusually strong pieces of evidence in this case which identified and linked appellant to the crime.5  The court commented:  “to me the essential question is:  would there have been a difference in the jury's verdict?  [¶] I remember that little girl's testimony, and that bedspread stands out in my mind.   I don't think this was an I.D. case.   Her testimony weighed very heavily in how I felt of the rightness of the jury's verdict.”

 A motion for new trial on the ground of newly discovered evidence is addressed to the discretion of the trial court, whose decision will not be disturbed except for manifest abuse of discretion.  (People v. Martinez, supra, 36 Cal.3d at p. 821, 205 Cal.Rptr. 852, 685 P.2d 1203.)  “The consideration of [the likelihood of a different result] on a motion for new trial in essence asks both the trial and appellate courts to determine whether the inability of the defendant to present the evidence in question prejudiced the outcome of the trial.   In viewing such an issue, we justifiably accord considerable deference to the trial judge,” because of the trial judge's observation of the witnesses and superior opportunity to get “ ‘the feel’ ” of the case.  (People v. Hayes (1985) 172 Cal.App.3d 517, 524–525, 218 Cal.Rptr. 362.)

Giving this deference, we conclude the trial court did not abuse its discretion in denying appellant's motion for new trial.   In light of the entire factual background, the evidence of appellant's guilt was very strong and the newly discovered evidence inconclusive.  (People v. Dyer (1988) 45 Cal.3d 26, 52, 246 Cal.Rptr. 209, 753 P.2d 1.)

 Appellant contends the trial court erred by applying an improper standard as to whether a different result was probable.   Appellant cites the trial court's statement that “[one of the experts, Dr. King] just throws so much dust, fairy dust on the PCR test at this point that I don't think a jury would be convinced beyond a reasonable doubt as to the test of the PCR and would exonerate.”   As appellant points out, in order to lead to a different result, new evidence need only raise a reasonable doubt of the defendant's guilt, it need not convince a jury beyond a reasonable doubt of the defendant's innocence.  (People v. Martinez, supra, 36 Cal.3d at pp. 823–824, 205 Cal.Rptr. 852, 685 P.2d 1203.)

The trial court's remark should not be taken literally to imply that the court was unfamiliar with the law or applied an improper standard.   The trial court complimented both parties on their very well-written motions for and opposition to new trial.   Both parties' written papers discussed the proper standards for granting a new trial, citing People v. Martinez, supra, People v. Dyer, supra, and People v. Hayes, supra.   Both parties argued those cases again at the hearing on the motion for new trial.   This record as a whole supports the presumption that the trial court correctly applied the law, notwithstanding the inaccurate wording in the court's oral remarks quoted by appellant.   (People v. Risenhoover (1968) 70 Cal.2d 39, 57, 73 Cal.Rptr. 533, 447 P.2d 925.)

PETITION FOR WRIT OF HABEAS CORPUS

After the trial court's denial of appellant's motion for new trial, while this appeal was pending, appellant obtained additional DNA tests on the victim's panties using the PCR method.   He has petitioned this court for a writ of habeas corpus based on newly discovered evidence, contending that the new tests use improved technology unavailable at the time of the motion for new trial, satisfy some of the criticisms of the prior tests by the People's experts on the motion for new trial, and establish that semen stains on the victim's panties did not come from appellant.6

Like the trial court, we need not decide the diligence and admissibility issues raised by the People.   Assuming that the newly conducted tests show appellant is not the source of semen stains on the victim's panties, does the petition for writ of habeas corpus state grounds for vacating the judgment of conviction?   We conclude it does not.

 In order to obtain habeas corpus relief vacating a conviction on the basis of newly discovered evidence, the new evidence must completely undermine the entire structure of the prosecution case.  (In re Weber (1974) 11 Cal.3d 703, 724, 114 Cal.Rptr. 429, 523 P.2d 229;  In re Hall (1981) 30 Cal.3d 408, 423, 179 Cal.Rptr. 223, 637 P.2d 690.)   The new evidence must be conclusive and must “point[ ] unerringly to innocence.”  (In re Weber, supra;  In re Hall, supra;  see also People v. Gonzalez (1990) 51 Cal.3d 1179, 1246, 275 Cal.Rptr. 729, 800 P.2d 1159 [new evidence must “cast[ ] fundamental doubt on the accuracy and reliability of the proceedings”].)

 In the unusual circumstances in this case, overwhelmingly identifying appellant as the perpetrator, the newly discovered evidence does not meet this standard.

As the prosecutor argued at the time of the motion for new trial, the prosecution case was not based merely upon an identification of appellant by the victim, but upon multiple identifications by eyewitnesses of appellant and of the vehicle in which the kidnapping occurred, which was owned by appellant's father and known to have been driven by appellant.   The victim identified the house where the sex crimes occurred;  it was appellant's grandparent's house and the victim described its interior with such vivid particularity as to impress the jury, the trial judge, and even appellant's grandmother with its accuracy.

In these circumstances, the fact that a scientific test establishes appellant was not the source of semen stains on the victim's panties does not undermine the entire structure of the prosecution case, point unerringly to innocence or show that appellant did not commit the charged crimes.

The panties were already heavily soiled or contaminated even when received by the sheriff's crime laboratory and before any of the scientific testing.7  The panties were not received from the sheriff's department by Dr. Blake for the initial PCR test until March 22, 1989, more than a year after the crime.   The new test by Dr. Erlich was not conducted until over four years after the crime.

This case does not involve semen recovered from the victim's body.   Although vaginal and rectal swabs and slides were taken, there was no specific evidence any of these contained semen.   The only semen analyzed was on the panties.   There was no specific evidence of semen on the body of the victim.8

This case contrasts to an arguably analogous case cited by appellant, State v. Hammond (1992) 221 Conn. 264, 604 A.2d 793.   There the victim was sexually assaulted in a car.   Her description of highly unusual features of the car's interior matched the defendant's car interior;  the victim positively identified the defendant;  and numerous actions by the defendant indicated consciousness of guilt.   At trial, the defendant introduced DNA (RFLP) tests excluding him as the source of semen stains on the victim's underwear and jeans.   The jury nevertheless convicted the defendant, and the main argument on appeal was whether the trial court abused its discretion by failing to grant the defendant's motion for new trial on the ground the verdict was manifestly against the weight of the evidence or based on physically impossible facts.

The Connecticut Supreme Court did not hold that the trial court abused its discretion but instead remanded to the trial court for reconsideration, on the narrower ground that the trial court had not been fully informed and might have exercised its discretion in favor of granting the motion had it been fully informed.  (Id. 604 A.2d at pp. 804–805.)   On the record before it, the Supreme Court of Connecticut criticized the possibility that the stains on the victim's clothing came from other than the perpetrator or were contaminated.   The court noted uncontradicted evidence that semen was found in the victim's vagina (although not tested for DNA) and that the clothing was clean before the assault.  (Id. at pp. 799, fn. 6, 800, fn. 7, 801.)

Here the possibility of contamination is much stronger since the panties were heavily soiled when first received by the sheriff's department.   There was no specific evidence of semen on or inside the victim's body.   In the circumstances of this case the exclusion of appellant as the source of stains on the victim's panties does not undermine the entire prosecution case and point unerringly to appellant's innocence as the perpetrator of the charged crimes.

SENTENCE

Pursuant to Penal Code section 667.6, subdivision (c), appellant was sentenced to fully consecutive upper terms of eight years each on the three sexual offenses, counts I through III.   Sentence on count IV, kidnapping, was stayed pursuant to Penal Code section 654, because the court imposed an additional consecutive nine years for the enhancement under Penal Code section 667.8, subdivision (b) (kidnapping a victim under age 14 for the purpose of committing sexual offenses).   The court imposed additional enhancements of five years pursuant to Penal Code section 12022.8 (infliction of great bodily injury), five years pursuant to Penal Code section 667, subdivision (a) (one prior serious felony conviction) and two years pursuant to Penal Code section 667.10 (violation of Penal Code section 289 against designated vulnerable victims, after prior conviction of section 289).   The determinate term was 45 years.   Finally the court imposed an additional term of 15 years to life pursuant to Penal Code section 667.51, subdivision (d) (violation of Penal Code section 288 by a person who has two or more previous convictions of designated sex offenses).

Appellant alleges numerous sentencing errors and requests remand for resentencing.   Some of appellant's contentions have merit, but we conclude the errors can be remedied by modification without remanding for a new sentencing hearing.9

Section 667.51, Subdivision (d)

Under section 667.51, subdivision (d) as it existed in 1988, “a violation of Section 288 by a person who has been previously convicted two or more times of an offense listed in subdivision (c) is punishable as a felony by imprisonment in the state prison for 15 years to life.”  (Stats.1986, ch. 1426, § 1, p. 5119.)

The Attorney General concedes that this provision has no application to appellant's case, because none of the four current counts is for violation of section 288.   The indeterminate term of 15 years to life shall be stricken.   Appellant is subject only to a determinate term.10

Section 667.10

 Section 667.10, subdivision (a) provides that “[a]ny person who has a prior conviction of the offense set forth in Section 289 and who commits that crime” against certain designated vulnerable victims shall suffer a two-year enhancement.  Section 289 prohibits penetration of the genital or anal opening with a foreign object.

Appellant correctly contends that this provision does not apply to appellant, because none of appellant's previous convictions was under section 289.

The Attorney General points out that the probation officer's report describes appellant's 1974 conviction of violating section 288 (lewd conduct) as follows:  “The defendant rubbed the victim's legs, stuck his finger into her vagina, and made her orally copulate him.   He then attempted sexual intercourse, causing the victim to bleed.”  (Emphasis added.)   The Attorney General contends that if in the course of violating section 288 in 1974, appellant committed conduct which also constituted “the offense set forth in section 289,” then the section 667.10 enhancement properly applies.

This argument is not persuasive.   In determining legislative intent the court turns first to the words themselves, giving them their ordinary and generally accepted meaning.  (People v. Craft (1986) 41 Cal.3d 554, 560, 224 Cal.Rptr. 626, 715 P.2d 585.)   In our opinion the ordinary meaning of a person “who has a prior conviction of the offense set forth in section 289” is a person with a prior conviction of violating section 289.

The two-year enhancement under section 667.10 shall be stricken.

Section 667.8, Subdivision (b)

 In 1988 section 667.8, subdivision (b) provided, “[a]ny person convicted of a felony violation of subdivision (c) of Section 286, Section 288, or subdivision (c) of Section 288a who, for the purpose of committing that sexual offense, kidnapped the victim, who was under the age of 14 years at the time of the offense, in violation of Section 207, shall be punished by an additional term of nine years.”  (Stats.1986, ch. 249, § 8, p. 1316.)

This enhancement thus properly applies to count II, appellant's conviction of oral copulation in violation of section 288a, subdivision (c).

Appellant points out that the trial court selected count I, rape (section 261, former subdivision (2)), as the base term and described the section 667.8 enhancement in connection with count I.   Appellant contends, as the Attorney General concedes, that section 667.8, subdivision (b) does not apply to rape.

Since the enhancement does properly apply to a different count, for which appellant was sentenced to fully consecutive terms pursuant to section 667.6, subdivision (c), appellant suffers no prejudice from the fact this enhancement does not apply to the rape count.  (See People v. McElrath (1985) 175 Cal.App.3d 178, 186, 220 Cal.Rptr. 698.)

Sentence for Kidnapping (Count IV)

In pronouncing sentence on count IV, the court stated that it sentenced appellant to an upper term of nine years;  however, the court stayed execution of sentence on this count pursuant to section 654, in light of the court's imposition of a kidnapping enhancement under section 667.8, subdivision (b).

The parties agree that the description of the upper term as nine years is technically incorrect.   At the time of commission of these crimes the maximum term for simple kidnapping was 11 years.  (Pen.Code, §§ 207, subd. (a), 208, subd. (b);  Stats.1982, ch. 1404, § 1, p. 5358;  Stats.1986, ch. 249, § 7, p. 1316.)

Since execution of sentence on count IV was stayed anyway, pursuant to section 654, technical correction of the record can be made without practically affecting appellant's sentence.11

Reasons for Sentence Choices

The probation officer's report showed appellant had numerous felony and misdemeanor convictions for child molestation, beginning in 1969.12  The probation officer aptly summarized:  “Defendant's current involvement is consistent with a behavior pattern which he has displayed at least since 1969.   The defendant has previously been on probation and parole supervision, and further, has received in-patient and out-patient therapy with no benefit being derived in altering the defendant's propensity to molest children.   The compulsion of the defendant towards such activity is overwhelming and unchanging and it is felt the defendant will never be able to suppress this desire.   Given the age and vulnerability of the victim, as well as the defendant's activities in the present offense, as well as his previous activities, it is felt that he should receive the maximum time in state prison as punishment in order to protect the community.”   The probation officer listed six factors in aggravation and found none in mitigation.

After commenting that appellant had committed a heinous offense and continues to plague the community, the court mentioned the following aggravating factors in support of its sentence choices:  high degree of cruelty;  sophistication, planning and premeditation in stalking a child and kidnapping her;  criminal history of the defendant;  the crimes involved separate acts of violence;  lack of remorse;  and the defendant is a serious danger to society.

Appellant contends that the trial court did not sufficiently differentiate reasons for sentencing consecutively versus sentencing fully consecutively pursuant to section 667.6, subdivision (c);  that the court confused or did not sufficiently differentiate reasons for imposing the upper term from reasons supporting consecutive sentences, making it hard to tell whether the court improperly used the same fact for dual purposes;  and that lack of remorse was an improper factor.

 The court explicitly stated it was imposing fully consecutive sentences under section 667.6, subdivision (c) “in lieu of sentencing under 1170.1.”   The court was thus very aware of its discretion as to the types of consecutive sentences.  (See People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8, 193 Cal.Rptr. 882, 667 P.2d 686;  People v. McElrath, supra, 175 Cal.App.3d at p. 187, 220 Cal.Rptr. 698.)   Only one factor need be cited to support a section 667.6, subdivision (c) sentence choice.   (People v. Bishop (1984) 158 Cal.App.3d 373, 382–383, 204 Cal.Rptr. 502.)   The same fact or facts may be used to support fully consecutive sentences as support consecutive sentences.  (People v. Huber (1986) 181 Cal.App.3d 601, 628, 227 Cal.Rptr. 113.)   The same fact may support consecutive sentences on more than one count.  (People v. Bejarano (1981) 114 Cal.App.3d 693, 705, 173 Cal.Rptr. 71.)   The trial court did not err in its statement of reasons for imposing fully consecutive sentences.

Any possibly improper dual use of the same fact, or error if lack of remorse was not a proper aggravating circumstance in this case, is harmless in light of the numerous aggravating factors, the absence of mitigating factors, and the trial court's evident intent to impose the maximum possible sentence in order to isolate this dangerous defendant from society.  (People v. Levingston (1982) 136 Cal.App.3d 724, 731–732, 186 Cal.Rptr. 417.)

DISPOSITION

The judgment is modified by deleting therefrom the two-year enhancement pursuant to Penal Code section 667.10 and deleting the term of 15 years to life pursuant to Penal Code section 667.51, subdivision (d).   The judgment is further modified by adding a second enhancement of 5 years pursuant to Penal Code section 667, subdivision (a).   The judgment is further modified by providing the sentence on count IV, kidnapping, is 11 years, execution of service of which is stayed pursuant to Penal Code section 654.   These modifications result in a total determinate term of 48 years.   As so modified the judgment is affirmed.   The trial court is directed to send a corrected abstract of judgment to the Department of Corrections.   The petition for writ of habeas corpus is denied.

FOOTNOTES

FOOTNOTE.  

1.   But see People v. Barney (1992) 8 Cal.App.4th 798, 814–822, 10 Cal.Rptr.2d 731 and People v. Pizarro (1992) 10 Cal.App.4th 57, 80–95, 12 Cal.Rptr.2d 436, questioning whether the statistical significance of a DNA match has been generally accepted by the scientific community.

2.   In Prince v. Superior Court (1992) 8 Cal.App.4th 1176, 1179, 10 Cal.Rptr.2d 855, a trial court pretrial discovery order requiring defense disclosure to the prosecution of the result of a PCR test was reversed and the defense was permitted to conduct an independent test.   The issue of admissibility was not before the appellate court.PCR evidence has been admitted in Virginia and Texas, but under a more lenient relevance standard than the Kelly–Frye rule followed in California.  (Spencer v. Com. (1990) 240 Va. 78, 393 S.E.2d 609, 621;  Clarke v. State (Tex.App.1991) 813 S.W.2d 654, 655.)

3.   The People had argued appellant made a binding strategic decision to go to trial without waiting for the results of the test.   (Compare State v. Thomas (Fla.App.1990) 570 So.2d 1023, 1026 with State v. Thomas (1991) 245 N.J.Super. 428, 586 A.2d 250, 252–253.)   On August 12, 1988, appellant personally refused to waive time for the commencement of trial.   Appellant's trial counsel informed the trial court appellant's refusal to waive time was against counsel's advice in that the results of the PCR test were not yet available.   Appellant insisted on going to trial without waiting for the results of the PCR test.

4.   The People had argued it was unnecessary to hold a Kelly–Frye hearing because the evidence would not probably lead to a different result.

5.   Just before the trial court ruled, the prosecutor argued that this case was not “what most people consider an I.D. case ․ when you have one witness who makes an identification of somebody, and that's all you have [¶] In this case, we have a series of ․ coincidences that just becomes astronomical when you add them up.  [¶] We have not only that she I.D.'s the defendant, but we have that she I.D.'s the house from a photo line up.   We have that she I.D.'s the car.   We have that the neighbor I.D.'s the defendant.   We have that her description prior to the search warrant was a description of a bedroom in which she describes the ․ bedspread, describes the table, describes the TV, describes enough that [appellant's] grandmother ․ is so impressed by the identification that she's convinced that someone has been in her house.  [¶] Regardless of how many experts you put up there in front of that jury and have them say, Well, it could be, it couldn't be, and have ․ Dr. Blake, say how foolproof his system is and everyone else saying how it isn't, it's not effective, the bottom line is that jury is going to go back in that jury room, and they're going to say the only way that girl could have given that description of that house prior to the search warrant was because she in fact had been in there.”

6.   The new tests were conducted by Roche Molecular Systems (formerly Cetus Corporation) according to the declaration of Henry A. Erlich, PhD., attached to the petition.   His laboratory developed the HLA–DQ Alpha Amplitype Forensic Kit, which became commercially available in February 1990 (after denial of appellant's new trial motion).   In the opinion of Dr. Erlich, the HLA–DQ Alpha Amplitype test is more sensitive than the test conducted by Dr. Blake which was the subject of the motion for new trial;  has been the subject of extensive validation studies and has been widely accepted;  and techniques have been developed to combat the possibility of “allelic dropout” and contamination of the sample within the laboratory.The tests conducted by Dr. Erlich's laboratory confirmed the results obtained earlier by Dr. Blake;  the “sperm fraction” of the semen stain on the victim's panties “was HLA–DQ Alpha typed as 4,4 while Mr. McSherry's reference sample was typed as 1.2, 4.”   In Dr. Erlich's opinion, the tests exclude appellant as a source of the semen stain on the victim's panties.In his brief in opposition to the petition for writ of habeas corpus, the Attorney General concedes that after reviewing Dr. Erlich's findings, the People's experts revised their earlier criticisms of Dr. Blake's test results as inconclusive, and now agreed that the tests show appellant is not the source of sperm in the semen stains on the victim's panties.

7.   The sheriff's criminalist testified “[T]he pair of panties were very soiled;  not only in just in [sic ] the crotch area, but throughout the panties.   There was even possible fecal material in the crotch of the panties, and just the odor of the pair of panties led me to believe they were fairly soiled.”

8.   The examining doctor testified:  “There was woodslamp material on the external genitalia, also.“Q. Tell us what that means.“A. Woodslamp material is a special ultraviolet light which is used to scan the patient's body to see if anything fluoreses [sic ], and it is used in this context for the detection of semen or semen-like material.“Q. Did you find the presence of semen?“A. No, just woodslamp positive material.”

9.   All section references hereafter are to the Penal Code.

10.   Of the two prior convictions utilized by the trial court in erroneously imposing the 15 years to life term under section 667.51, subdivision (d), one, appellant's prior conviction of section 288 in 1975 in superior court number A015314, was also charged and found true as a prior serious felony under section 667, subdivision (a).   The trial court did not sentence appellant under section 667 for this prior, apparently because the court used this prior under section 667.51.   (§§ 667, subds. (a), (b), (d), 1192.7, subd. (c)(6).)   Although the indeterminate term of 15 years to life under section 667.51 must be stricken, the mandatory five-year enhancement under section 667, subdivision (a) should now be imposed.  (§§ 667, subd. (a), 1385, subd. (b).)  We modify the judgment accordingly.

11.   Appellant contends the proper upper term is 8 years under section 208, subdivision (a), because the 11–year upper term in section 208, subdivision (b) is triggered by the fact the victim was under the age of 14.   Appellant contends that otherwise there is a section 654 problem in light of the separate section 667.8, subdivision (b) enhancement on the same ground.   Since execution of the kidnapping sentence is already explicitly stayed pursuant to section 654, there is no violation of section 654.

12.   1969, disturbing the peace;  1969, indecent exposure;  1970, lewd conduct with child;  1970, indecent exposure;  1972, indecent exposure, arrested for masturbating in front of four-year-old children, returned for further treatment as a mentally-disordered sex offender;  1974, shortly after release from Atascadero State Hospital, lewd conduct with child, sentenced to state prison;  1979, shortly after parole from prison, kidnapping, sentenced to state prison;  1985, five counts of loitering about public schools, consecutive county jail terms;  committed instant offenses shortly after release from county jail.

ASHBY, Associate Justice *. FN* Assigned by the Chairperson of the Judicial Counsel.

TURNER, P.J., and GRIGNON, J., concur.