People v. Davis

75 Cal.App.5th 694

290 Cal.Rptr.3d 661

The PEOPLE, Plaintiff and Respondent,

v.Alvin Larry DAVIS, Defendant and Appellant.

C089567

Court of Appeal, Third District, California.

Filed February 28, 2022

Certified for Partial Publication.^*

Byron Charles Lichstein, Auburn, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez, Enid A. Camps and Kelly E. LeBel, Deputy Attorneys General, for Plaintiff and Respondent.

Duarte, J.

This case arises out of the violent sexual assault and killing of an 84-year-old woman inside her home and during a burglary. After the first trial ended in a mistrial because the jury could not reach a unanimous verdict, a second jury found defendant Alvin Larry Davis guilty of first degree murder ( Pen. Code, § 187, subd. (a) )¹ and forcible sexual penetration with a foreign object, a cane (§ 289, subd. (a)(1)(A)). The jury also found true the enhancement allegations, including that he tied or bound the victim (§ 667.61, subd. (e)(5)), personally inflicted great bodily injury on the victim (id. , subd. (d)(6)), sexually penetrated the victim during the commission of a burglary (id. , subd. (d)(4)), and knew or reasonably should have known that the victim was 65 years of age or older (§ 667.9, subd. (a)). The jury also found true the special circumstance allegation that the murder occurred while defendant was engaged in the commission of rape by a foreign object (§ 190.2, subd. (a)(17)(k)). In a bifurcated proceeding, the trial court found defendant had two prior convictions that qualified as strikes under the three strikes law. (§§ 667, 1170.12.) The court sentenced him to life in prison without the possibility of parole. This timely appeal followed; the case was fully briefed on June 28, 2021, and assigned to this panel thereafter.

On appeal, defendant contends the judgment must be reversed due to prejudicial evidentiary errors and prosecutorial misconduct during closing argument. His primary contention is that the trial court improperly admitted expert testimony based upon the application of the STRmix™ methodology,² which is a method of deoxyribonucleic acid (DNA) analysis that we describe in detail post . Defendant argues that the STRmix evidence should have been excluded under the test for the admission of new scientific evidence established by our Supreme Court in People v. Kelly (1976) 17 Cal.3d 24, 130 Cal.Rptr. 144, 549 P.2d 1240 ( Kelly ), abrogated by statute on another point as explained in People v. Wilkinson (2004) 33 Cal.4th 821, 845-848, 16 Cal.Rptr.3d 420, 94 P.3d 551. He makes additional claims of error and, recognizing that some of the claims may have been forfeited, he alternatively argues that his trial counsel rendered ineffective assistance. Finally, he argues cumulative error.

In the published portion of our opinion, we conclude the trial court did not err in determining that the STRmix method of DNA analysis is generally accepted as reliable by the relevant scientific community, such that expert testimony relying on the method satisfied the first requirement of the Kelly test. In the unpublished portion of our opinion, we reject or decline to consider the remaining claims of error and affirm the judgment.

BACKGROUND

The victim, Hazel Dingman, was 84 years old when she was found dead in her home on July 5, 2012. She had been tied up, sexually assaulted, and brutally attacked. Her home was in disarray and items were missing.

The facts underlying defendant's convictions are largely undisputed. The critical issue at trial was identity. The defense theory was that defendant was not the person who murdered Dingman. The People relied on a variety of evidence connecting defendant to the murder, including STRmix evidence, which linked defendant to a bloody shoelace found next to Dingman's body. We next summarize the pertinent facts surrounding the murder and subsequent investigation; we add more information as necessary later in the Discussion.

The Property and Relevant Events Prior to The Murder

Dingman lived on an approximately five-acre property on Downing Avenue in Stockton (the property). The property had multiple structures on it, including a house, a four-car garage with an attached shed, and an auto body shop. The property was just west of Interstate 5 and abutted a slough, which bordered the entire western portion of the property. The house was located in the southwestern portion of the property, near the slough. At the time of the murder, homeless people lived in an encampment underneath a bridge on Downing Avenue, which bordered the northern portion of the property. The homeless encampment was located near the slough, close to the northwestern portion of the property.

The property had a long driveway that generally ran north to south. At the time of the murder, there were three gates (that locked) along the driveway.

The first gate was located at the north end of the property near Downing Avenue. The second gate was approximately 40 feet south of the first gate. The house was farther down the driveway past a third gate.

In July 2012, Dingman was living alone on the property. Her 91-year-old brother, Bernard Froeliger, had moved out several months earlier due to health problems. He used a cane while he was living at the property. Froeliger's stepson, Edward Taylor Wingate (also known as Taylor), worked on the property almost every day, repairing cars in the auto body shop. Wingate frequently invited friends to the property to fish and hang out. He and a few of his friends were using methamphetamine at the property around the time of the murder.

Between 2005 and 2011, defendant and others sold various goods from an area of the property near Downing Avenue. Between March and mid-May 2012, Wingate and his friend Ericson Sanguir worked on defendant's Cadillac Escalade at the property. At trial, Sanguir acknowledged that he had been inside Dingman's house before and had smoked cigarettes in the four-car garage.

Defendant stopped by the property around 10-12 times while his Escalade was being worked on, but he never went inside Dingman's house or fished with Wingate. There were various items inside the Escalade, including a hat, socks, and other clothing. After the work on the Escalade was completed, defendant called Wingate and complained that he was still having problems with it and threatened to "mess [Wingate] up." Wingate did not see or speak to defendant after this conversation, which occurred prior to Dingman's death.

Less than two months before the murder (i.e., around May 2012), an outer gate was installed to prevent people from using the property to sell goods. Defendant told Wingate that the gate "pissed off a lot of people," and that "something might be done about that." Defendant was approximately 72 years old at the time of the murder and his hair and beard were partially gray. He was known to ride a bicycle, and once rode to the property while Wingate was working on his car.

The Murder

In the late afternoon of July 5, 2012, Dingman was found dead inside her home. Dingman was five feet one inch tall and weighed 128 pounds. She was last seen by her son around 12:15 p.m.; he had put a small amount of cash in her gold purse before he left the property.

At approximately 2:15 p.m., a woman driving on Downing Avenue saw a "tiny" elderly woman standing near an open gate on the property. But Dingman was not in her yard when the mail was delivered between 2:30 and 2:45 p.m., which was unusual.

When Dingman's daughter arrived at the property around 4:00 p.m., all three gates were closed but only the second gate was locked. She parked near the third gate and walked to the house, which was locked. She called out to Dingman from the front porch but received no response. She heard noise coming from the back of the house that sounded like someone was walking on leaves and twigs. She went to her car and retrieved her keys. On her way back to the house, she heard the same noise coming from the back of the house. When the noise stopped, she used her key to enter through the front door.

The house was in disarray and items were missing. Dingman's body was on the floor in the living room near the front door. Her head was covered by a pillowcase and her arms were bound behind her back with pantyhose. She was nude from the waist down and had welts on the back of her legs. A torn and knotted bra was near her leg. There was a shoelace by her head that had blood stains on it. The shoelace consisted of two pieces that were tied together in the middle. It was near a white (unlaced) shoe that belonged to Dingman. A cane and broken pieces of electrical cord were on the floor beside her body. There was a blue and white Food 4 Less grocery bag in the entryway of the house, which contained Dingman's gold purse, a DVD player, and a variety of other items, including multiple pieces of jewelry. It also contained an empty orange soda can. When the daughter heard a noise toward the back of the house, she ran out front and called 911. It was 4:19 p.m.

The Investigation

Police officers arrived at the scene at 4:24 p.m. They searched the property but did not find an intruder. Inside the house, the bathroom window was open and the screen was on the floor. There was dirt on the floor below the window and a second screen was on the ground outside the house. This was unusual because Dingman never opened her windows. A closed window near the open bathroom window had what appeared to be a handprint on the glass.

Paramedics arrived shortly after the officers. Dingman was lying face down, not breathing, and had lividity in several parts of her body. There was dried blood near her head and she had rigor mortis in the joints of one of her legs. She was pronounced dead at 4:37 p.m. Around the same time as they heard police sirens, two homeless men living...