Opinion
D0039428.
11-14-2003
THE PEOPLE, Plaintiff and Respondent, v. MARTIN ACEVEDO PEREZ, Defendant and Appellant.
A jury convicted Martin Acevedo Perez (Perez) of burglary (Pen. Code, § 459; count 1), and two counts of misdemeanor hit and run driving (Veh. Code, § 20002, subd. (a); counts 2 and 4). In a bifurcated proceeding, the court found Perez had two prison prior convictions. (Veh. Code, §§ 23153, subd. (a), 23182; Pen. Code, § 459.) The trial court sentenced Perez to prison for the middle term of four years for the burglary. The court also imposed two consecutive one-year terms for the two prison priors. The court ordered the six-year sentence to run concurrently with Perezs prison term imposed on a separate felony conviction for driving under the influence (DUI).
Perez appeals, contending: (1) the court erred in denying his request to dismiss the action based on multiple proceedings; (2) the court erred in denying the request for a Kelly hearing; (3) there was insufficient evidence of entry into a residence to establish a burglary conviction; (4) the court prejudicially erred in instructing the jury with CALJIC Nos. 2.01 (sufficiency of circumstantial evidence—generally), 2.03(consciousness of guilt—falsehood), 2.52 (flight after crime), and 17.41.1 (juror misconduct); and (5) the court improperly denied credit for presentence custody credit. We affirm the judgment.
STATEMENT OF FACTS
Around 12:15 p.m. on June 15, 2001, Henry Vachioni was in the backyard of his La Mesa home when he heard a loud bang coming from his neighbors house. He walked to his property line in the direction from where the loud noise came. Vachioni then heard a house alarm go off in the same direction. A minute later, he heard a mans voice and then the sound of a car engine revving up and driving away. At that time, Vachioni went back to his house and called 911.
Deputy Sheriff James ONeill arrived at the neighbors house and noted the alarm was activated. He found the front door had been kicked in and was open. Although the door was still on the frame, it was falling down. Evan Goldstein, a resident of the home, arrived home to find his front door on its hinges. The deadbolt components had been shoved into the wall and the doorjamb was lying on the floor. ONeill noticed one shoe print on the surface of the door. Additionally, he found scrape marks along the side of a retaining wall adjacent to the driveway. ONeill also collected pieces of orange-colored plastic reflectors, a gray piece of plastic, and a blue piece of plastic, all from a vehicle.
On the same day between 12:15 p.m. and 12:30 p.m., Goldsteins neighbor Michael Bircumshaw heard noises outside his home. The motion sensor in his driveway that is connected to his doorbell was triggered. Shortly after hearing his doorbell, Bircumshaw heard the latch on his backyard garden door open and within seconds, he heard a car crashing into one of the walls outside. He went outside and discovered his garden door was open and that his dog had run out to the driveway. Bircumshaw then saw a Hispanic male in his mid-to-late 30s wearing a blue shirt in a blue car trying to back down his driveway. The blue car hit the driveway wall about four times before driving away. Bircumshaw memorized the license plate number, wrote it down, and gave it to the police. When California Highway Patrolman Stephen Griffin arrived at the residence, he discovered blue paint on the driveway wall along with pieces from a car including two rubber trim pieces and a grille with the word "Hyundai" on it.
Approximately 10 hours later at about 10:45 p.m., police officers Mark Bevan and Terrel Gore arrested Perez in a blue Hyundai in the city of El Cajon for driving under the influence. They took Perez to the police station for processing. During an inventory of Perezs property, the officers found a blue sweatshirt and black tennis shoes. The officers had Perezs car towed into custody. At the time the officers took Perez into custody, they were unaware that a blue Hyundai may have been connected to other criminal activity. Perez later pleaded guilty to felony DUI and was sentenced to prison for two years.
Officer Griffin and Detective Duncan went to the tow yard to look at the blue Hyundai. Having received training in accident reconstruction, Griffin determined the car parts retrieved from the Goldstein and Bircumshaw residences belonged to the blue Hyundai. Duncan also went to the detention facility where Perez was being held for the DUI offense. While there, she took a statement from Perez in which he described lending his car to his friend Felippi on the day of the burglary. Upon further investigation, Duncan was unable to locate Felippi.
Criminalist Michael Macceca of the San Diego Sheriffs Department analyzed the shoe print found on Goldsteins door. Macceca made an initial shoe print comparison using the photograph taken by Detective Duncan and the tennis shoes recovered from Perez. Macceca testified at trial that he was unable to make the determination that the shoe print was from the actual bottom of Perezs tennis shoe. Macceca then used Adobe Photoshop to digitally enhance the image of the shoe print. Macceca did not alter the image in any way. The image enhancement enabled Macceca to see unique characteristics of the shoe print and determined the shoe print on the door came from Perezs tennis shoe to the exclusion of all other shoes.
DISCUSSION
I
MOTION TO DISMISS BASED ON MULTIPLE PROCEEDINGS
Perez contends the court erred in denying his motion to dismiss the burglary charges against him under Penal Code section 654 and Kellett v. Superior Court (1966) 63 Cal.2d 822 (Kellett), arguing the burglary prosecution arose from the same course of conduct as his prosecution for felony DUI and that double jeopardy principles thus applied.
Under Penal Code section 654, "an act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."
Where the prosecution knows or should know of more than one offense in which the same act or course or conduct plays a significant part, the separate offenses must be prosecuted in a single proceeding. (Kellett, supra, 63 Cal.2d at p. 827.) "Failure to unite all such offenses will result in a bar to subsequent prosecution of any offense omitted if the initial proceedings culminate in either acquittal or conviction and sentence." (Ibid.) This procedural rule is designed to prevent harassment and to save both the state and defendants time and resources. (Id. at p. 826.) However, "Kellett does not require, nor do the cases construing it, that offenses committed at different times and at different places must be prosecuted in a single proceeding." (People v. Cuevas (1996) 51 Cal.App.4th 620, 624.)
Perez contends the DUI offense and the offenses in this case should have been tried together because (1) they were based on the same course of conduct occurring on the same day and involving the same vehicle and (2) the prosecutors knew that the two transactions were related. We disagree. Although Perez was driving the same car on the same day when arrested for DUI and committing the offenses in this case, the link between the cases ends there.
There was no act or course of conduct that provided a significant connection between the felony DUI and the burglary. Although the offenses occurred on the same date, a significant amount of time separated the two incidents. The burglary and the two hit and run offenses occurred between 12:15 p.m. and 12:30 p.m. while the DUI offense did not occur until about 10:45 p.m. Moreover, the two offenses occurred in different locations. The burglary incidents occurred in La Mesa. When Perez was arrested for the DUI offense, he was in El Cajon. This case has identifiable victims, Goldstein and Bircumshaw, but the DUI offense does not. Because of the differences in time, place and victims between the transactions, the separate violations were not the same "course of conduct" within the meaning of Kelletts prohibition against multiple prosecutions.
Perez argues the prosecution knew or should have been aware that the felony drunk driving offense and the current offenses arose out of the same act or course of conduct. We disagree. The offenses occurred within different jurisdictions resulting in different agencies investigating these cases. The El Cajon Police Department conducted the DUI investigation while the San Diego Sheriffs Office conducted the investigation into the burglary. The California Highway Patrol investigated the hit and run. The El Cajon Police Department is independent from the above mentioned agencies. The DUI offense was not within the same jurisdiction as the burglary and hit and run offenses. Finally, as the trial court noted Perez had not been identified as the perpetrator in the present case In contrast, the El Cajon Police Department knew Perez was the perpetrator of the DUI case and was able to go forward with its DUI investigation and related prosecution of Perez. The delay in identifying the perpetrator of the current offenses prevented the prosecution from linking the two cases together. Hence, the trial court properly denied Perezs motion to dismiss under Penal Code section 654 and Kellett, supra, 63 Cal.2d 822.
II
KELLY-FRYE
Perez contends the court erred in denying his motion for a Kelly-Frye (People v. Kelly (1976) 17 Cal.3d 24 (Kelly), Frye v. United States (1923) 293 F. 1013 (Frye))[] hearing and in admitting the criminalists opinion concerning the shoe print found at the burglary scene.
The admissibility of evidence at trial is a matter subject to review for abuse of discretion. (People v. Alvarez (1996) 14 Cal.4th 155, 201.) Where abuse of discretion is shown, a judgment will not be reversed unless it appears there is a reasonable probability that had the evidence not been admitted the jury would have reached a verdict in the defendants favor. (People v. Watson (1956) 46 Cal. 2d 818, 837.)
In a Kelly hearing, evidence resulting from a scientific test will not be admitted unless the reliability of the method from which the expert testimony is made has been sufficiently established to have gained general acceptance in the particular field in which it belongs. (Kelly, supra, 17 Cal.3d 24, 30.) However, the Kelly standards do not apply where the evidence set forth at trial does not involve a new scientific technique or principle. (Leahy, supra, 8 Cal.4th 587, 605.) In determining whether a scientific test is "new," the long term use of the test by police officers is an insignificant factor. Rather, the repeated use, study, testing and confirmation by scientists or trained technicians qualifies the test as being generally accepted within the field. (Ibid.) Further, once a trial court has admitted evidence based upon a new scientific technique and that decision is affirmed on appeal by a published appellate decision, the precedent so established may control subsequent trials at least until new evidence is presented reflecting a change in the attitude of the scientific community. (Id. at p. 595).
Perez contends the Adobe Photoshop program, used to digitally enhance the shoe print, is a new scientific technique that is subject to the Kelly test. We disagree.
The program here was utilized by a scientist upon suggestion by a latent print examiner. Latent print examiners frequently utilize Adobe Photoshop. The FBI also commonly instructs the use of Adobe Photoshop to latent print examiners. Such extensive reliability of this program by scientists on the federal and state level by trained scientists shows that it is not a new or novel technique.
Further, although there are no cases in California or other jurisdictions which show the scientific community accepts Adobe Photoshop as a reliable method for examining evidence, the scientific community does accept expert testimony regarding digitally enhanced evidence. As the trial court correctly stated: "Adobe Photoshop is not a scientific technique . . . . Photoshop is just an easier way of developing film, developing a picture. And it does it by means of digital imaging of pixels. Digital imaging is not a new scientific technique. . . . It is accepted scientifically and has been for decades." Here, Macceca simply scanned the sponge lifts into the computer and then used the program to enhance the image. Adobe Photoshop did not alter or modify the shoe print in any way. A similar program was used in State v. Hayden (1998) 950 P.2d 1024. In that case, the court allowed the admissibility of digitally enhanced fingerprint evidence utilizing the Frye standard. (Id. at p. 1027.) The Hayden court found the process to be "generally accepted in the relevant scientific community." (Id. at p. 1028.) This decision has since been relied upon by the court in State v. Hartman (2001) 754 N.E.2d 1150. Although the propriety of using Adobe Photoshop has not been specifically addressed, the program here was used only to digitally enhance the shoe print. Thus the evidence is reliable.
Even assuming the trial court erred in admitting the criminalists opinion, Perez cannot show prejudice on this record. Bircumshaw saw a blue car hitting his driveway wall. He also wrote down the license plate number that identified Perezs car. In addition, the police discovered blue scrapes on Goldsteins driveway wall along with pieces of the car. These pieces included plastic reflectors and a grille with the word "Hyundai" on it. Perezs car is a blue Hyundai. The grille and the plastic pieces found by the police matched Perezs car. In light of this evidence, it is not probable that a different result would have been reached in the absence of the shoe print evidence.
III
SUFFICIENCY OF THE EVIDENCE
Perez challenges the sufficiency of the evidence to support his conviction of burglary arguing the prosecution failed to prove beyond a reasonable doubt that Perez entered the Goldstein residence.
In determining the sufficiency of the evidence to support a conviction, we "must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence — that is, evidence which is reasonable, credible, and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.) We do not re-examine the facts of the case but instead we determine whether the evidence presented at trial sufficiently supports the conviction. (Id. at p. 576). In assessing the sufficiency of evidence to support a criminal conviction, "we need not determine that the evidence was strong, and indeed it may be viewed as not strong." (People v. Hughes (2002) 27 Cal.4th 287, 365.) Unless the record on appeal shows sufficient evidence fails to support the jurys findings on any hypothesis, we will not reverse. (People v. Hicks (1982) 128 Cal.App.3d 423, 429.)
Under Penal Code section 459, the crime of burglary is committed when a person "enters any . . . building . . .with intent to commit . . . petit larceny or any felony . . . ." The Supreme Court has found that penetration into the area behind a window screen without penetrating the window itself amounts to an entry of a building within the meaning of the burglary statute. (People v. Valencia (2002) 28 Cal.4th 1, 6.) Although the entry behind a window screen is a minimal one, this entry is of the type Penal Code section 459 was intended to prevent. (Id. at pp. 12-13.)
The facts presented to trial, taken together, show the jury could reasonably infer that Perez entered the Goldstein residence. Upon arrival, the police found Goldsteins door open. The door was kicked into the boundary of the house. Although the door was still attached to the door hinges, it was falling down. Further, the molding on the inside of the door was lying on the floor. The deadbolt latch that sits on the inside of the doorframe had been shoved into the wall. Finally, Perez hit the door with enough strength to leave his shoe print on the door. The damage done to the door shows that the force used in kicking it open would likely result in at least a portion of Perezs foot crossing over the threshold of the door into the Goldsteins home. Although there was no evidence showing anything was taken from the residence, a jury could legitimately infer from the evidence presented at trial that Perez sufficiently entered the residence. Substantial evidence supports Perezs burglary conviction.
IV
INSTRUCTIONAL ERRORS
Perez claims the trial court prejudicially erred in instructing the jury with CALJIC Nos. 2.01, 2.03, 2.52, and 17.41.1 and the cumulative effect of the errors resulted in prejudice. We conclude the jury instructions did not result in any error on an individual basis, thereby negating the possibility of any cumulative error.
A. CALJIC No. 2.01
Perez contends the court should not have instructed the jury with CALJIC No. 2.01 regarding circumstantial evidence because it is misleading as it incorrectly communicates to the jury that it must decide between guilt and innocence rather than determining whether the state has proven its case beyond a reasonable doubt.
CALJIC No. 2.01 provides, in part: "[i]f the circumstantial evidence as to any particular count permits two reasonable interpretations one of which points to the defendants guilt and the other to his innocence, you must adopt that interpretation which points to the defendants innocence, and reject that interpretation which points to his guilt."
When viewed in conjunction with other jury instructions correctly stating the prosecutions burden to prove defendants guilt beyond a reasonable doubt, CALJIC No. 2.01 does not "reduce or weaken the prosecutions constitutionally mandated burden of proof or amount to an improper mandatory presumption of guilt." (People v. Kipp (1998) 18 Cal.4th 349, 375.) Although the instruction has been described as potentially misleading, this was only the case when CALJIC No. 2.01 was read standing alone. There is no harm in giving this instruction because the other instructions make the law on the point of guilt versus innocence sufficiently clear especially when read with CALJIC No. 2.90. (People v. Han (2000) 78 Cal.App.4th 797, 809.)
The trial court gave CALJIC No. 2.01 along with CALJIC No. 2.00 (direct and circumstantial evidence—inferences) and CALJIC No. 2.90 (presumption of innocence—reasonable doubt-burden of proof). Also, the court read CALJIC No. 1.01 which states that the instructions are to be considered "as a whole and each in light of all others." These instructions read in conjunction with one another eliminate any possibility of error.
Further, CALJIC No. 2.01 does not change the burden of proof. The instruction states that "each fact or circumstance upon which the inference necessarily rests must be proved beyond a reasonable doubt." The burden of proof is thus clearly stated in the instruction. No juror made any inquiries into the instruction. In the absence of such evidence, we presume the jury abided by the instruction. Thus, there is no error when considering CALJIC No. 2.01 in its entirety.
B. CALJIC No. 2.03
Perez contends the trial court erroneously instructed the jury, over his objections, with CALJIC No. 2.03 because Perezs pretrial statement was not independently supported by the evidence. We disagree.
CALJIC No. 2.03 (consciousness of guilt) provides:
"If you find that before this trial the defendant made a willfully false or deliberately misleading statement concerning the crimes for which he is now being tried, you may consider that statement as a circumstance tending to prove a consciousness of guilt, and its weight and significance, if any, are for you to decide."
Pretrial false statements by a defendant may be admitted to support an inference of consciousness of guilt by the defendant. (People v. Showers (1968) 68 Cal.2d 639, 643.) "When testimony is properly admitted from which an inference of a consciousness of guilt may be drawn, the court has a duty to instruct [the jury with CALJIC No. 2.03] on the proper method to analyze the testimony." (People v. Edwards (1992) 8 Cal.App.4th 1092, 1104.)
Here, there was evidence that Perez gave pretrial statements that a jury could find false or misleading. As part of her investigation regarding the burglary offense, Detective Duncan went to meet Perez while he was in custody. Duncan took a statement from Perez at that time. In his pretrial statement, Perez told Duncan that on the day of the burglaries, he had met his friend Felippi at a park. Perez said he loaned his car to Felippi around 11:00 a.m. He did not regain possession of the car until about four hours later. Duncan inquired further about Felippi including his last name, address, and telephone number. Perez did not have this information. Perez then told Duncan he had worked with Felippi at the Tom Cruz Roofing Company. When she asked Perez how she could get a hold of Cruz to verify this information, Perez told her Cruz was deceased and the business was no longer operating. Duncan searched the telephone directories, the Better Business Bureau, the Internet, and the various licensing bureaus but was unable to verify any information that Perez had told her regarding the Tom Cruz Roofing Company. If the jury believed the testimony of Duncan, it could reasonably have found defendants pretrial statements were willfully false and deliberately misleading. From this, the jury could have inferred a consciousness of guilt. As a result, the court read the instruction as a safeguard. Once the jury finds that the defendant made such pretrial statements, the instruction provides guidance as to how the pretrial statements are to be viewed. Thus, the court properly instructed the jury with CALJIC No. 2.03.
C. CALJIC No. 2.52
Perez also contends the trial court erred in giving CALJIC No. 2.52, the standard flight instruction, thereby violating his due process rights. He asserts the giving of the instruction was unjustified because there was an insufficient showing that it was he who fled from the scene or that he intended to avoid observation or arrest by fleeing.
CALJIC No. 2.52 provides:
"The flight of a person immediately after the commission of a crime, or after he is accused of a crime, is not sufficient in itself to establish his guilt, but is a fact which, if proved, may be considered by you in light of all other proved facts in deciding whether a defendant is guilty or not guilty. The weight to which this circumstance is entitled is a matter for you to decide."
In addressing the validity of this assertion, we note the Supreme Court has rejected similar arguments. A flight instruction is proper whenever there is circumstantial evidence of defendants departure from the crime scene which "`logically permits an inference that his movement was motivated by guilty knowledge. [Citation.]" (People v. Lucas (1995) 12 Cal.4th 415, 470.) The jury instruction ensures that the jury does not perceive a defendants behavior as being sufficient evidence alone to prove his guilt. Indeed the instruction cautions jurors not to interpret the behavior as definitive evidence of guilt. (People v. Jackson (1996) 13 Cal.4th 1164, 1226.)
Here, the record supports the inference that Perezs departure from the Goldstein and Bircumshaw residences were motivated by guilt. In both instances, Perez drove his car in an erratic manner. Goldsteins neighbor Vachioni heard a vehicle rev up its engine and then speed away from the scene. In both incidents, as Perez drove away, he left evidence behind from which the jury could logically infer that he was fleeing. At the Goldstein residence, scrape marks were left behind on a retaining wall adjacent to the driveway. In addition, there were pieces of plastic reflectors from a tail light or front light of a car and a gray piece of plastic. At the Bircumshaw residence, additional evidence of flight was left behind. Mr. Bircumshaw heard a car crashing into a wall. Upon reaching his driveway, Bircumshaw saw a blue car. He saw one person in the car, the driver. He described the driver as a male Hispanic in his late 30s to 40s with dark hair wearing a blue shirt. These observations match Perezs description and the sweatshirt Perez was found wearing later that day. The driver continued to hit the wall against Bircumshaws pleas to stop. Pieces of the car were left behind in addition to damage to the wall. The jury could reasonably infer that Perezs hasty actions were a result of fleeing a burglary scene. Further, a jury could legitimately infer the person driving away from Bircumshaws house was Perez. Thus, there was sufficient evidence from which a jury could infer that Perez fled the crime scene under circumstances suggesting his movements were motivated by a consciousness of guilt. The court properly gave the flight instruction under CALJIC No. 2.52.
D. CALJIC No. 17.41.1
Perez argues giving instruction CALJIC No. 17.41.1 to the jury is improper because it infringes on the secrecy of jury deliberations and on a defendants rights of due process and a unanimous verdict.
The court gave CALJIC No. 17.41.1 (juror misconduct) which provides:
"The integrity of a trial requires that jurors, at all times during their deliberations, conduct themselves as required by these instructions. Accordingly, should it occur that any juror refuses to deliberate or expresses an intention to disregard the law or to decide the case based on penalty or punishment, or any other improper bases, it is the obligation of the other jurors to immediately advise the court of the situation."
The Supreme Court determined in People v. Engleman (2002) 28 Cal.4th 436 that CALJIC No. 17.41.1 does not infringe upon a defendants right to a trial by an impartial jury under either the California or federal constitutions. Although the court cautioned against further use of the instruction, absent evidence showing the jury was impacted by the instruction, reversal of the conviction is not warranted.
The record here does not suggest CALJIC No. 17.41.1 had any prejudicial effect on the jurors deliberative process or the right to a unanimous jury. No single juror raised any question about the instruction. Thus, there is no showing of prejudice to Perez as a result of giving the instruction.
V
PRESENTENCE CREDITS
Perez contends he is entitled to presentence credits from the time of the pronouncement of judgment in the felony drunk driving case until the date he was sentenced in the present case because the presentence time was attributable to both cases.
Penal Code section 2900.5, subdivision (b) states presentence credits "shall be given only where the custody to be credited is attributable to proceedings related to the same conduct for which the defendant has been convicted." The rationale for providing such credits is to eliminate unequal treatment between indigent defendants and those defendants that have the ability to post bail and lessen their time spent in custody. (In re Joyner (1989) 48 Cal.3d 487, 494.)
In In re Joyner, supra, 48 Cal.3d 487, the Supreme Court acknowledged that the determination of presentence credits for concurrent terms imposed in multiple proceedings may be troubling. (Id. at p. 495.) However under the clear language of Penal Code section 2900.5, the defendant is not to be given credit for time spent in custody if during the same period of time the defendant is already serving a term of incarceration. Further, "[w]hen multiple, unrelated acts of misconduct all contributed to a period of presentence restraint, and are later resolved in multiple proceedings, it should generally make no difference how the conduct is distributed among the proceedings. The mere happenstance that separate proceedings addressing unrelated conduct also concern one or more common acts should not trigger full duplicate credit against all resulting terms." (People v. Bruner (1995) 9 Cal.4th 1178, 1192 (Bruner)).
Here, the court sentenced Perez to two years in prison after he pleaded guilty to felony DUI on August 28, 2001. Perez now seeks presentence credits from the date of his arrest in the DUI case on June 15, 2001 to the time of his sentencing for the burglary and hit and run convictions on January 14, 2002. The trial court did grant presentence credits to Perez from the time of his arrest for the DUI until he was sentenced in that case. The court noted that even though the two transactions were related in some fashion, additional credits could not be awarded under In re Joyner, supra, 48 Cal.3d 487. The two periods of custody here are not attributable to the same conduct. In the DUI case, Perezs custody resulted from his actions while driving under the influence of alcohol. In the present case, custody arose from conduct related to burglary and hit and run charges. Although the same car was used in both transactions, the victims, the time the crimes occurred, and the locations of the crimes substantially differentiated the two incidents from one another. The fact that the same car was used in both sets of offenses is not enough to show the transactions are related.
The strict causation test of In re Joyner, supra, 48 Cal.3d 487, is used to determine whether presentence credits are to be given in unrelated proceedings. The defendant must show that but for the offense leading to his current sentence he would have been free or able to post bond during the presentence period. (Bruner, supra, 9 Cal.4th at p. 1180.) From this, it necessarily follows that if a defendant is already incarcerated for an unrelated proceeding, additional presentence credits may not be awarded.
Perez was already serving his sentence on the felony DUI charge when the burglary prosecution was brought against him. He cannot receive presentence credits from the time this case was filed to its sentencing date because he was not free from incarceration or even able to post bond at the time the present case was filed.
DISPOSITION
The judgment is affirmed.
WE CONCUR, NARES, J. and AARON, J. --------------- Notes: Although the federal Frye analysis has been superceded by Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579, the Kelly-Frye formulation continues to apply in California and is generally referred to now as the Kelly standard. (People v. Leahy (1994) 8 Cal.4th 587, 611-612 (Leahy).)