Opinion
C063997 Super. Ct. No. CR-F-09-3988
01-04-2012
THE PEOPLE, Plaintiff and Respondent, v. FELIPE CRUZ HERNANDEZ, Defendant and Appellant.
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 appeals following a conviction of second degree murder of his wife, whose body was never found. (Pen. Code, § 187.) Defendant contends the trial court erred in allowing evidence of a blood volume experiment to show that blood stains under the couple's carpet indicated a fatal amount of blood loss. Defendant argues the experiment constituted a new scientific technique not shown to have gained general acceptance in the scientific community as required under People v. Kelly (1976) 17 Cal.3d 24 (Kelly). We conclude: (1) defendant forfeited the issue by failing to raise it in the trial court, (2) the experiment did not use a new scientific technique subject to Kelly, and (3) even assuming error, it was harmless. We affirm the judgment.
Undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
An information filed on September 17, 2009, charged defendant with the premeditated murder (§§ 187, 189) of his wife, Leticia Barrales Ramos, on or about April 12, 2009.
The victim disappeared on Easter Sunday, April 12, 2009, leaving behind her 10-year-old daughter Lisa, her identification, and a significant amount of money.
The victim was a Mexican national and in this country illegally. She previously had a worker's permit or visa that had expired. Her application for renewal was denied, and she was ordered to return to Mexico in September 2007. She and her daughter moved to Mexico and lived there for a number of months, but in May 2008 they returned to the Winters, California, apartment they shared with defendant. The victim reentered the United States illegally.
On March 20, 2009, the victim filed for divorce and custody of her child. She was dating another man. Defendant suspected the victim was cheating on him. Claiming concern that the victim's lover might hurt him, defendant borrowed a gun from his brother, Ciro Cruz. According to Ciro, defendant returned the gun and some ammunition he had not borrowed approximately two weeks before the victim's disappearance. Defendant told Ciro the gun did not work properly. Thereafter, Ciro buried the gun and ammunition on his own initiative. He later dug up the gun and gave it to police. Ciro told the police about the gun because he did not want it at his house. A forensic firearms examiner from the FBI tested the gun and determined that it actually functioned properly.
On the evening of Saturday, April 11, 2009, the victim attended a birthday party with defendant's niece, Maricela Cruz. One of the children at the party removed the victim's wallet out of her bag. Maricela held the victim's wallet for safekeeping, but then forgot to return the wallet to the victim. The wallet contained the victim's identification and approximately $1,050 in cash.
After the party, Maricela and the victim returned to their respective homes. Sometime between 11:30 p.m. and 1:30 a.m., the victim's neighbor heard someone crying and movement on the stairs.
Around 9:00 a.m. on Sunday, April 12, 2009, Maricela went to the victim's apartment, as planned, to help the victim make some cakes. No one answered the doorbell. The victim's car was still in its parking space. Maricela saw defendant in the parking lot. He told her that the victim had gone to "Carolina" on an emergency basis to visit a relative. Because she still had the victim's wallet and money, Maricela did not believe defendant.
Defendant told others that the victim had gone to North Carolina because her brother had been in an accident. The victim's brother, Jose Reyes Barrales Ramos, testified he had not been in an accident or had any type of emergency and had not talked to the victim since she had returned to the United States from Mexico in May 2008.
Also on Sunday, April 12, defendant's brother, Alberto Cruz, saw 15 to 20 dried blood droplets and a blood smear on the passenger door frame of defendant's truck. When Alberto asked defendant where the blood had come from, defendant cleaned it off and said a friend had hurt himself. Later, a forensic DNA examiner in the Nuclear DNA Analysis Unit at the FBI laboratory tested blood recovered from the rear floor mat of defendant's truck and determined that it was the victim's blood.
On Monday, April 13, 2009, Maricela used her key to enter the victim's home. No one was there and nothing looked unusual, although some furniture had been moved.
The victim worked on a farm and had a second job at a bakery. Her employers and coworkers knew her to be reliable and became concerned when she missed work for two days without calling. On April 14, 2009, the victim's supervisor at the farm called the police.
A police officer conducted a welfare check at the apartment on April 14, 2009, after the call from the victim's employer, and interviewed defendant there. Defendant told the officer the victim had gone to Mexico to help a sick relative. He did not mention anything about a brother in North Carolina. He told the officer that no divorce proceedings were pending and that everything was fine between him and the victim. In fact, the victim had filed for divorce on March 20, and had served defendant with the petition on March 23. The officer saw no sign of a crime in the apartment.
Defendant also told others that the victim had gone to Mexico for a family emergency. The victim's sister, who lives in Mexico, testified there was no family emergency and she had not been contacted by the victim.
Defendant told people he had received a phone call from a woman named Hortensia, who said the victim was in Ciudad Juarez, Mexico, and was having trouble getting a visa but would call him later. Defendant said that contacting the police and putting up fliers, as the victim's coworkers had done, would cause trouble for the victim, who was trying to obtain fake documents so she could cross the border. Defendant later requested help from the Mexican Consulate in locating the victim and telephoned a Spanish radio matchmaking show to ask listeners for help in locating the victim.
About two weeks after the victim's disappearance, Maricela received a call from a man named Rogelio. He said he saw the victim in the desert trying to cross the border to get to Las Vegas to honeymoon with her boyfriend, but the immigration officials detained and deported them.
On April 20, 2009, the victim's cousin, Isidro Cobos, filed a missing person report with authorities. He then received a phone call from Rogelio repeating the tale about seeing the victim at the border.
With the help of a counselor and a paralegal, defendant filed his response to the victim's divorce petition on April 30. Defendant sought custody of daughter Lisa and a court order ostensibly to prevent the victim from taking Lisa.
On May 12, 2009, defendant gave a statement at the police station. He said he awoke in the early morning of April 12, 2009, to find the victim crying. She said her brother needed her, and friends would give her a ride to the airport. Defendant said he did not realize until later that he never heard the phone ring. He concluded she had lied to him.
The FBI assisted in the investigation at the request of the county district attorney's office. Agents attempted to locate the victim in Mexico, but were unsuccessful.
On May 28, 2009, the FBI executed a search warrant at defendant's apartment, which led to defendant's arrest on that same day.
Defendant's sister visited him at the jail and talked to him on the telephone. During one visit, defendant told his sister that, if blood was found in his apartment, he wanted her to call his lawyer and falsely state she saw defendant's wife have a miscarriage or an abortion in the apartment. During another visit, defendant asked his sister to phone the victim's family in Mexico, pose as the victim, and say she was fine. He also wanted her to tell the victim's family to call the police and report that the victim was fine. He told her to make the call from a public phone in Vacaville or Winters. The sister did not make the calls.
In the search of the couple's apartment, blood stains were found on four pieces of living room furniture and on an altar of saints in the hallway. Some blood on the furniture had soaked through to the foam padding. A "piece of hair" with the root intact was found lodged in the wood of the entertainment center. A forensic examination revealed that the hair had been forcibly removed. There were several areas of blood spatter on the entertainment center. Based on DNA testing on the hair and blood and the blood spatter patterns on the furniture, the FBI determined that the blood and hair were the victim's.
The investigators initially saw no blood on the carpet but later concluded the furnishings had been moved to conceal stains. The living room carpet tested positive for blood, and the investigators found a receipt showing defendant rented a Rug Doctor® steam cleaner and upholstery tool on Monday, April 13, 2009, at 4:51 p.m. Defendant got off work that day at 3:40 p.m. The Rug Doctor® and upholstery tool were returned the following day at 4:50 p.m.
Investigators obtained the exact Rug Doctor® and upholstery tool rented by defendant and found blood on the upholstery tool but not enough to produce a DNA profile.
The FBI agents pulled back the carpet and saw what appeared to be three enormous bloodstains that had soaked through the carpet and the carpet pad onto the concrete floor. DNA tests revealed the blood on the carpet matched the victim's. There was also a small amount of DNA present from an unknown source in one of the stains on the carpet. However, the predominant DNA in that stain matched the victim's blood.
Two FBI agents testified they had seen less blood at crime scenes that were known to be homicide scenes because the body was still present.
FBI agent Christopher Hopkins testified he had one other case with bloodstains of this magnitude. In that case, three children were decapitated, and their father was hacked with a machete. Hopkins observed that, in this case, the stains in the couple's apartment were longer than they were wide, which would indicate that multiple injuries had been inflicted on a body. These elongated stains were "smaller as you move towards the door," giving the "impression that the body was bleeding, someone moved it, it is bleeding less, and then someone moved it a third time . . . all in the direction of the door."
FBI agent John Cauthen testified he could not estimate the volume of blood in this case, but "based on my experience in crime scenes where someone has been stabbed to death many, many times and bled out on a concrete surface, there was less blood than what I saw on that carpet. [¶] I've seen shooting scenes where people have been shot and died, and there is far less blood, almost no blood on the carpet. [¶] So my training and experience would lead me to believe that there was a tremendous quantity of blood in that carpet." He said the amount of blood was most comparable to the bloodstains he had seen at beheadings.
Defendant's own criminalistics expert, Peter Barnett, testified that "a cleaning operation" would account for bloodstains on a chair, a loveseat and an altar. He opined that blood was spattered onto the furniture and then an effort was made to clean it up later. Some of the stains were on the underside of the furniture trim. Some of the stains on the furniture appeared diluted with a cleaning fluid. The stains under the trim could have resulted from the carpet cleaner scrubbing and spraying blood off the carpet.
As we will discuss in more detail post, FBI Agent Christopher Hopkins testified that he conducted a blood volume experiment relative to the blood stains found in the apartment. Based on that experiment, he estimated the amount of blood loss at 4.16 liters -- 70 percent of the amount of blood in a person the victim's size.
During the execution of the search warrant, the FBI agents found credit cards in the name of the victim, along with her Mexican passport.
Defendant testified at trial. He is five feet six inches tall and weighs 175 pounds, compared to the victim's 180 pounds.On the night in question, he awoke to find his wife crying. She said her brother had been in an accident, and she had to go to him. Defendant wanted to go with her, but she declined. She packed some clothes, reminded him to clean the carpet where she had spilled garbage a week earlier, and left. He later received a phone call from a woman who said his wife was in Mexico. He became upset and stopped cleaning the rug. He denied cleaning the area where the blood stains from the victim were found and denied using the upholstery tool in which blood was found. He tried to find his wife but was unsuccessful.
There was conflicting testimony concerning the victim's weight. Her driver's license indicated she weighed 170 pounds. However, the prosecutor pointed out testimony had been introduced that the victim actually weighed 180 pounds.
The couple's 10-year-old daughter Lisa testified she heard nothing on the night her mother disappeared and did not remember any blood or wetness on the floor the next morning. Lisa was afraid that her mother, who no longer liked her father, would kidnap her and make her live in Mexico.
The jury found defendant not guilty of first degree murder but guilty of second degree murder. The trial court sentenced defendant to a term of 15 years to life in prison.
DISCUSSION
Defendant's sole contention on appeal is that the trial court erred in allowing evidence of the blood volume experiment, because it was a new scientific technique that did not qualify for acceptance in the scientific community as required by Kelly, supra, 17 Cal.3d 24. Defendant does not contend on appeal, and did not assert in the trial court, that the experiment should have been excluded on the basis of unreliability under Evidence Code section 803. We will explain (1) defendant forfeited the Kelly contention by failing to raise it in the trial court, (2) the blood volume experiment was not subject to Kelly, and (3) any error was harmless.
Evidence Code section 803 states that the trial court, upon objection, shall exclude expert opinion based "on matter that is not a proper basis for such an opinion. . . ."
Essentially, the blood volume experiment can be described as follows. Agent Hopkins, a forensic specialist, determined the total area of the bloodstain found on and under defendant's of carpet. He poured known quantities of horse blood onto the same of type of carpet and pad on top of a concrete surface. He determined that when those stains dried, the application of water and cleaner did not spread those stains. Knowing the area of the stains he created and the amount of blood needed to create those stains and using mathematics, he calculated the amount of blood that would be needed to leave bloodstains that equaled the total area of bloodstain on defendant's apartment floor. Hopkins later confirmed this finding using water instead of blood. We shall now discuss the procedural history concerning the blood volume experiment and the experiment itself in more detail.
I. The Blood Volume Experiment
During cross-examination of FBI Agent Cauthen on November 24, 2009, defense counsel asked if the FBI had done any tests to determine the quantity of blood reflected by the bloodstains found in the apartment. Specifically, counsel asked, "So did you do any tests to see the quantity of this blood? [¶] In other words, did your lab go and drop a pool of blood through some carpet, flip it over, and take measurements? Like, oh, there it is. It is that amount. [¶] We have a quarter cup here, or no, oh, it is a liter." Counsel was surprised when Cauthen answered yes; another agent had performed such a test.
Later on November 24, outside the jury's presence, defense counsel said the prosecution had just handed her new discovery of a test conducted on November 11 and dictated on November 16. Defense counsel said, "my objection was this is late discovery and it shouldn't come in." The prosecutor explained that he had only just received the report that afternoon and that the report referenced only "the initial phase" of the experiment, which was ongoing. He further asserted that defendant's insistence on a speedy trial necessitated that the investigation continue during the trial.
Defense counsel also objected about other new discovery. "I am just objecting to the fact that witnesses are still being interviewed by officers and we get daily discovery given to me from witnesses that for the now fifth time they are being questioned by officers or phone numbers [sic], according to one witness who testified today, are being finally called by police officers and investigators from the District Attorney's office."
The trial court declined to exclude the experiment on late discovery grounds, but noted he would hear argument when the trial resumed after the Thanksgiving weekend "if there's something else you wish to provide the Court that . . . might give the court further insight as to why this information should be excluded."
On November 30, 2009, defense counsel argued there was "no good cause for this last-minute experiment. . . . The question was posed at the preliminary hearing as to how much blood was there, and at that point it was guesswork on behalf of the investigator who testified that it was a lot of blood, and he would estimate it was, you know, a couple [of] liters or something like that. They waited until two days after the trial started to do this experiment. . . . [¶] . . . [¶] Plus, the reliability of this experiment, because it hasn't even concluded, the time frame hasn't even concluded yet, they're drawing conclusions from it. So it is unreliable. It is without good cause and forcing my client to have to ask for a continuance . . . to give us time to review the how-to of this experiment because we haven't been provided with that. Goes against his right to have a speedy trial. [¶] I would ask the Court to exclude this evidence since it is too late in the game for them to be coming in with this without any warning that they were going to do this."
The prosecutor stated that there is no good cause requirement for the production of evidence discovered during a pending investigation. He noted that "[t]he reliability of the experiment is a completely different issue that we can handle separately . . . ."
The trial court observed the trial had commenced with dispatch, before completion of forensic tests, because defendant declined to waive his right to a speedy trial. The court said, "now, whether or not this information is reliable or what the testing shows, of course, I have no information on that at this point, and we'll have to take that one step at a time, but with regard to the late discovery, I will not, at this point, exclude. I will give defense more time if they need it . . . ."
The trial court further emphasized that defendant's invocation of his speedy trial right did not stop the prosecution from continuing its investigation. "I don't think [defendant's invocation of his speedy trial right] precludes the prosecution from doing what it needs to do, investigate the case, . . . even during the course of this trial with the obvious downside to [the] defense being they're going to be getting information late."
Thereafter, there was continued discussion about providing defense counsel and the defense expert an opportunity to interview Agent Hopkins, the person who conducted the blood volume experiment, providing the defense with Agent Hopkins's notes, the timing of his trial testimony concerning his experiment and the schedule for other testimony in the case. The court suggested that they continue with testimony on other matters and indicated that there was the potential for "additional 402 type of evidence," depending on whether the defense expert was satisfied after interviewing Hopkins and reviewing his notes and report. The court suggested they have further discussion at the end of the day on "what the testing protocols were, availability of notes, that sort of thing."
We, of course, recognize this as a reference to Evidence Code section 402. That section provides in pertinent part:
"(a) When the existence of a preliminary fact is disputed, its existence or nonexistence shall be determined as provided in this article.
"(b) The court may hear and determine the question of the admissibility of evidence out of the presence or hearing of the jury . . . .
"(c) A ruling on the admissibility of evidence implies whatever finding of fact is prerequisite thereto; a separate or formal finding is unnecessary unless required by statute."
Later that day, in a hearing outside the presence of the jury, the defense questioned Agent Hopkins about his notes and who assisted in the blood volume experiment. Near the end of the hearing, the trial court asked the defense twice whether there was "anything else?" The defense did not raise the issue of reliability; nor did the defense object on Kelly grounds.
Later in the trial, the jury heard testimony from FBI Agent Christopher Hopkins about the blood volume experiment.Hopkins described the purpose of the experiment as an effort "to determine if we could make, through a scientific process, an educated estimate of the blood volume that we found on the carpet removed from the defendant's residence."
Direct examination by the prosecution of Agent Hopkins concerning the blood volume experiment was not conducted until December 7, 2009. The defense was permitted to postpone cross-examination. Cross-examination and redirect examination was conducted on December 3 and 4. Later, Hopkins testified as a rebuttal witness on December 17.
Hopkins holds three science degrees -- a bachelor's degree in biology, a bachelor's degree in chemistry and a master's degree in pharmacology. He worked as a research scientist in pulmonary diseases at the University of Tennessee School of Medicine. His work was subjected to peer review and published. He has conducted many forensic DNA experiments subjected to peer review, but not blood volume experiments.
Hopkins testified that an attempt was made to find a bloodstain pattern expert who could estimate the stains based on photographs and measurements, but there was reluctance because it is very hard to estimate blood volume. Estimates by doctors, nurses, and first responders are often inaccurate.
Hopkins designed the blood volume experiment to get a ratio of volume to square area. He had never previously conducted this particular experiment, but stated, "it is very common in bloodstain pattern analysis to conduct experiments for any particular kind of case that you run into." He consulted a textbook on bloodstain pattern analysis and several articles concerning blood volume. He also reviewed his plan with Bob Spalding, a retired FBI bloodstain pattern analysis expert, who thought it was "a great idea."
James, Kish and Sutton, The Principles of Bloodstain Pattern Analysis: Theory and Practice (2005).
The articles included two articles by Dr. Henry Lee on bloodstain volume.
Hopkins obtained a new carpet and carpet pad identical to those in defendant's apartment and placed them on a similar concrete surface. He created five stains on the test carpet, underlying pad and concrete using horse blood treated with an anticoagulant. His research indicated the horse blood would make no appreciable difference as compared to untreated human blood. The fact that the blood was treated with an anticoagulant would not make a difference either. He created three stains using 2.5 liters each of blood. That amount represents a loss of 40 percent of the blood of a person weighing 170 pounds, which would be fatal without immediate medical intervention. He created two stains using 1.3 liters each of blood. That amount represents a 20 percent blood loss and would cause weakness and lead to unconsciousness.
Hopkins testified that the fact defendant's carpet was two years old did not affect his results. Based on his FBI experience examining carpet fibers as trace evidence, he noted that the carpet consisted of synthetic nylon fibers that would not change.
Hopkins allowed four of the stains to stand for one or two hours to replicate a homicide scene, based on his assumption that a killer would dispose of the body before cleaning the carpet. He and his team then blotted and scrubbed four of the stains with paper towels. One stain was left untouched as a control sample. All stains were still visible on the carpet.
Hopkins then used the Rug Doctor® on all five of the stains. Because approximately 44 hours had elapsed between the time the victim disappeared and the time when the Rug Doctor® was rented, Hopkins allowed the same amount of time to elapse before he used the Rug Doctor® on his test stains.
Hopkins used the Rug Doctor® water and Rug Doctor® cleaning solution on three of the stains. On one of the other two test stains the Rug Doctor® device was used with cold water only. On the other, the Rug Doctor® was used with hot water. Hot water in combination with the Rug Doctor® carpet cleaner was the most effective at removing the blood. However, even weeks later (time afforded by the duration of the trial), the test stains were still more visible on the test carpet than the stains on defendant's carpet weeks after the victim's disappearance. The stains on the carpet from the apartment were "much, much lighter" than on the experiment carpet. Hopkins attributed this to "an excellent cleaning. Someone spent a significant amount of time cleaning [defendant's apartment]." The evidence also revealed that defendant had worked as a janitor and after he was arrested, an apartment maintenance man found a bottle of concentrated soil remover in a closet in defendant's apartment.
Before Hopkins made computations based on the size of the test stains, he sought to determine whether the application of water to the stains would increase the total area of staining. The application of 32 ounces of water on one stain (two hours after the stain was made) and 16 ounces of water on a stain (one hour after the stain was made) during the blotting process did not cause the stains to spread significantly. He further noted the Rug Doctor® did not expand the size of the stains once they dried 44 hours after the initial blotting was done. He illustrated this by before and after photographs that were introduced into evidence. He noted that blood tends to dry quickly because it is "primarily made up of water." He explained that the blood actually stains the fibers when it dries. "Adding . . . water does not carry that stain out further. It had no effect."
To estimate the amount of blood loss, Hopkins explained, "we mapped out the [three] stains that were on [defendant's] carpet. . . . [¶] After we mapped out these stains, we then transferred these stains to graph paper, which is going to allow me to figure out the square area of each stain. [¶] . . . [¶] Because the square area -- I know the square area of the stains that I created and the exact volumes, I was able to, then, take math, and being able to extrapolate what the combination of a two-point-five-liter stain made this square foot area that is known, and . . . I know the square area of this one, then that would allow me to calculate the volume. And so I did that for all three stains. [¶] So after doing the math, it was estimated that this stain represents a one-point-zero-five-liter stain, this stain represents a one-point-three-three-liter stain, and stain three represents a one-point-seven-eight-liter stain." Hopkins testified, "The total . . . estimated volume loss with these three stains is four point one six liters."
Thus, using mathematics, Hopkins estimated that the victim's total blood loss reflected by the three bloodstainson the apartment floor, which covered a total of 16.6 square feet, equaled 4.16 liters. That amount would be about 70 percent of the blood in a human of the victim's size (180 pounds). Hopkins had no doubt the amount of blood loss was fatal. He also stated, "there's no doubt in my mind that due to all the blood on the carpet, all over the five pieces of furniture, this, without a doubt, is a homicide crime scene."
Hopkins testified that the secondary source of DNA on one of the stains on the carpet was "background DNA." He explained that "DNA procedures now are so good at the extraction and amplification of DNA that it is common to get background DNA . . . ." The level of this background DNA was so small that it meant nothing.
Defendant's expert, Peter Barnett, agreed. He testified that the other DNA found on the carpet was "background DNA," which is the result of "biological material on the carpet from just normal occupancy of the premises."
The defense attacked the validity of the experiment by cross-examining Hopkins and by presenting a defense expert, Dr. Michael Oda. Dr. Oda is not a forensic specialist. He is employed at Oakland Children's Hospital as a research scientist. He studies HDL or "good cholesterol," which requires knowledge of how to "treat" blood properly. He obtained a Ph.D. in biochemistry from the University of California, Davis, in 1996. He served as the cochair of the American Heart Association review panel, reviewing experiments and research proposals for grant funding.
Dr. Oda criticized Hopkins's blood volume experiment as a "fairly uninformed approach about the nature of blood" that failed to prove the minimum amount needed to make stains of this size. Dr. Oda's primary concern was that Hopkins used blood treated with an anticoagulant, which has a different density than normal blood and would spread much more slowly than normal blood, requiring a larger amount of blood to create the same size stain. When blood leaves the body, it begins to coagulate, separating into blood clot and plasma fraction. Also, Hopkins poured the blood rapidly which, according to Dr. Oda, would produce a "different geometry" than blood seeping from a human body. Dr. Oda also criticized Hopkins's failure to repeat the experiment to determine the margin of error, because good science requires repetition to determine the accuracy of results. Whereas Hopkins said the application of water to the dried bloodstains did not influence the size of those stains under the rug during his experiment, Dr. Oda opined that applying water to clean up blood would cause a bigger stain. Dr. Oda raised other concerns, e.g., that one of Hopkins's assistants had accidentally stepped on one of the test bloodstains, and that unknown factors, such as room temperature and position of a body, may have affected the results.
Dr. Oda testified, "if I were to do [this experiment], I would try to prove what is the minimum amount of material I would need to use to make a stain of this size. [Hopkins] just simply made a stain of that size and said this is how much [blood] I needed.
"To properly do this experiment, I would say -- and even then it wouldn't be proper. I don't think it would be definitive. It wouldn't be proof of anything, really. I would simply take the plasma fraction from the blood, which is the fastest moving aspect of blood, and say how much plasma would I require to make a stain of that size. And that would say, you know, if this person had a very low hematocrit or a very low amount of blood cells in their blood, say they were anemic and so forth, that would account for that. Then I would calculate back how much in that plasma, how much blood would I require to make that much plasma.
"But even so, that is a very hard thing to do because in that calculation you have to assume what that person's hematocrit is. And the alleged victim is a female, and we don't know what part of her menstrual cycle she may be on. That has a huge impact on hematocrit as women in menses can actually be quite anemic. So that experiment in and of itself is almost impossible to do appropriately to get a really good measure."
Dr. Oda testified Hopkins used an algebra equation. Dr. Oda said Hopkins, to come up with his number of 4.16 liters, "just simply added up the area of the different spots and correlated it back to the -- and the amount of blood that was required to make those spots, and correlated it back to the area of the spot of the crime scene, and then added those up and did, essentially, a correlation of the two as I interpreted his approach."
Dr. Oda acknowledged the bloodstains in defendant's apartment could have been caused by four liters of blood, but he also opined that the stains could also have been caused by as little as half a liter of blood.
The defense criminalistics consultant, Peter Barnett, testified there were too many unknowns for the Hopkins experiment to be fruitful, and it would be very difficult to do an accurate experiment.
Agent Hopkins, as a prosecution rebuttal witness, testified he duplicated the experiment using water instead of blood. The purpose of this experiment was to address Dr. Oda's concerns that the horse blood treated with anticoagulant contained plasma that was not able to release as much as untreated blood and therefore the bloodstains at the apartment could have been made with less blood. Based on the fact that blood is "mostly water" and weighs the same as water, Hopkins poured 4.16 liters of water onto the same carpet, and it produced a stain that was approximately 16.6 square feet, the same total area of the bloodstains found at defendant's apartment. The water test validated his initial experiment.
The defense later asked for a jury instruction on untimely disclosure of evidence with respect to the blood volume experiment. The trial court denied the requested instruction. The defense never revisited the issue of reliability and never made a Kelly objection to the blood volume experiment as a new scientific technique requiring proof of general acceptance in the scientific community.
II. Forfeiture
Because defendant did not request exclusion of the blood volume experiment on Kelly grounds, he has forfeited the issue. (Evid. Code, § 353, subd. (a) [judgment shall not be reversed for erroneous admission of evidence unless "[t]here appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion"].) The California Supreme Court has repeatedly held in death penalty cases that a "defendant's failure at trial to challenge the testimony of the prosecution experts on Kelly/Frye grounds bars him from . . . raising the issue [on appeal]. [Citation.]" (People v. Diaz (1992) 3 Cal.4th 495, 528, fn. added; People v. Clark (1993) 5 Cal.4th 950, 1017-1018 (Clark); disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People v. Kaurish (1990) 52 Cal.3d 648, 688.)
Frye v. United States (D.C.Cir. 1923) 293 F. 1013, was the federal counterpart to Kelly. (Kelly, supra, 17 Cal.3d 24.) The United States Supreme Court overruled Frye in Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579 , holding the Federal Rules of Evidence abrogated Frye. However, the California Supreme Court held Kelly survives Daubert in California cases. (People v. Leahy (1994) 8 Cal.4th 587, 604 (Leahy).)
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Defendant argues he did raise Kelly in the trial court by raising the issue of reliability, though he did not request exclusion on the ground of Kelly or reliability. He argues the trial court's response shows it perceived reliability as a threshold issue for admissibility. Defendant thinks this should be good enough to preserve a Kelly objection. We disagree.
Defendant objected to the blood volume experiment on the ground that it was conducted during trial, too late for pretrial discovery. Defense counsel added: "Plus, the reliability of this experiment, because it hasn't even concluded, the time frame hasn't even concluded yet, they're drawing conclusions from it. So it is unreliable."
The prosecutor noted "[t]he reliability of the experiment is a completely different issue that we can handle separately . . . . "
The trial court rejected defendant's clearly articulated delayed discovery objection. The trial court added, "now, whether or not this information is reliable or what the testing shows, of course, I have no information on that at this point, and we'll have to take that one step at a time, but with regard to the late discovery, I will not, at this point, exclude." Thereafter, the trial court noted that, depending on the defense expert's review of newly discovered materials, there was the potential for "additional 402[-]type evidence" and suggested that they have further discussion later that day concerning the testimony. The court specifically mentioned "what the testing protocols were" as a potential topic of discussion.
Indeed, Hopkins testified later that day under examination by the defense about the timing of the experiment and his notes. Before the hearing was concluded, the trial court twice asked the defense if it had "anything else?" The defense did not object to the experiment on reliability grounds or on Kelly grounds. Nor did the defense indicate it wanted a hearing on those subjects. Nor did the defense register any such objections at any point in the trial.
The failure to renew the objection on the ground of reliability after the trial court ruled it premature constitutes a forfeiture of the matter. (People v. Mills (2010) 48 Cal.4th 158, 170 [where trial court denied without prejudice defendant's request for jury instruction, defendant's failure to renew the request forfeited the matter].)
Defendant cites People v. Morris (1991) 53 Cal.3d 152 (Morris), which held a motion in limine preserves an objection for appeal where the trial court, at the time it denied the motion, had sufficient information to determine the evidentiary question in its appropriate context. (Morris, supra, at pp. 189-190, overruled on other grounds in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.) Defendant misperceives Morris .
In Morris, our high court reiterated the general rule requiring that an in limine objection be renewed at the time the evidence is offered. "'Generally when an in limine ruling that evidence is admissible has been made, the party seeking exclusion must object at such time as the evidence is actually offered to preserve the issue for appeal.'" (Morris, supra, 53 Cal.3d at p. 189.) But the court held that there is an exception to the general rule. "[W]e hold that a motion in limine to exclude evidence is a sufficient manifestation of objection to protect the record on appeal when it satisfies the basic requirements of Evidence Code section 353, i.e.: (1) a specific legal ground for exclusion is advanced and subsequently raised on appeal; (2) the motion is directed to a particular, identifiable body of evidence; and (3) the motion is made at a time before or during trial when the trial judge can determine the evidentiary question in its appropriate context. When such a motion is made and denied, the issue is preserved for appeal. On the other hand, if a motion in limine does not satisfy each of these requirements, a proper objection satisfying Evidence Code section 353 must be made to preserve the evidentiary issue for appeal." (Morris, supra, 53 Cal.3d at p. 190, italics added.)
Morris is clearly inapposite here, where the trial court expressly stated that any question of reliability was premature at the time the court ruled to admit the evidence over the defense objection of untimely discovery. Unlike in Morris, where the court was presented with the evidence in the in limine proceedings, the court here specifically noted it had no information about the evidence, saying, "whether or not this information is reliable or what the testing shows, of course, I have no information on that at this point." The defense never requested a separate hearing on reliability or Kelly and never made a specific Kelly objection. Thus, the trial court never ruled on any such objection. Morris does not save defendant from forfeiture.
Defendant argues that the forfeiture was attributable to ineffective assistance of counsel. As we will explain, a Kelly objection would not have resulted in exclusion of the blood volume experiment. Further, any error in admitting that evidence is harmless.
III. Kelly Does Not Apply
"Kelly held that the admissibility of expert testimony based on a new scientific technique requires proof of its reliability. (Kelly, supra, 17 Cal.3d at p. 30; accord, [ ] Leahy, supra, 8 Cal.4th at pp. 594, 604 . . . .) The proponent of the testimony must show: that (1) the technique has gained general acceptance in the particular field to which it belongs, (2) any witness testifying on general acceptance is properly qualified as an expert on the subject, and (3) correct scientific procedures were used in the particular case." (People v. Bui (2001) 86 Cal.App.4th 1187, 1194 (Bui).)
Kelly applies only to a "limited class" of expert testimony based on a scientific technique or methodology which is "'new to science'" (Leahy, supra, 8 Cal.4th at p. 605, italics omitted; see id. at pp. 605-606 [horizontal gaze nystagmus test, which observes involuntary jerking of eyeball induced by alcohol ingestion, was new to science]) and that produces an aura of infallibility, such as the use of a spectograph machine measuring voiceprints (Kelly, supra, 17 Cal.3d at pp. 31-32).
As defendant notes, Kelly applies not only to scientific machines or devices, but also to procedures which analyze physical data and purport to provide an objective, definitive result. In discussing the definition of "'new scientific technique,'" People v. Stoll discerned two themes: "First, Kelly/Frye only applies to that limited class of expert testimony which is based, in whole or part, on a technique, process, or theory which is new to science and, even more so, the law. The courts are willing to forego admission of such techniques completely until reasonably certain that the pertinent scientific community no longer views them as experimental or of dubious validity. . . . [¶] The second theme . . . is that the unproven technique or procedure appears in both name and description to provide some definitive truth which the expert need only accurately recognize and relay to the jury. The most obvious examples are machines or procedures which analyze physical data. Lay minds might easily, but erroneously, assume that such procedures are objective and infallible. . . . [¶] Kelly/Frye also has been applied to less tangible new procedures which carry an equally undeserved aura of certainty. . . ." (People v. Stoll (1989) 49 Cal.3d 1136, at pp. 1155-1156, original italics.) "However, absent some special feature which effectively blindsides the jury, expert opinion testimony is not subject to Kelly/Frye." (Id. at p. 1157.)
The California Supreme Court has also held that blood spatter analysis is not subject to Kelly because it is common knowledge that inferences can be drawn from spatter patterns of blood expelled from the human body. (Clark, supra, 5 Cal.4th at pp. 1017-1019.) People v. Cowan (2010) 50 Cal.4th 401, found Kelly did not apply where an expert combined two existing techniques, ballistics comparisons and identifying tool marks using elastic molds, to compare a pistol barrel with bullets removed from the victim. (Cowan, supra, 50 Cal.4th at pp. 469, 470-471.) The techniques were not "new to science." (Id. at p. 470, italics omitted.)
In Bui, this court said:
"In applying the Kelly standard, it is important to distinguish between expert testimony and scientific evidence; the former is not subject to the special admissibility rule of Kelly, which applies to cases involving novel devices or processes. [Citations.]
"This distinction is based on the fact that "[w]hen a witness gives his personal opinion on the stand--even if he qualifies as an expert--the jurors may temper their acceptance of his testimony with a healthy skepticism born of their knowledge that all human beings are fallible. But the opposite may be true when the evidence is produced by a machine: like many laypersons, jurors tend to ascribe an inordinately high degree of certainty to proof derived from an apparently "scientific" mechanism, instrument, or procedure. Yet the aura of infallibility that often surrounds such evidence may well conceal the fact that it remains experimental and tentative. [Citation.] . . . . [Citation.]"
"'The Kelly test is intended to forestall the jury's uncritical acceptance of scientific evidence or technology that is so foreign to everyday experience as to be unusually difficult for laypersons to evaluate. . . . In most other instances, the jurors are permitted to rely on their own common sense and good judgment in evaluating the weight of the evidence presented to them.' [Citation.]" (Bui, supra, 86 Cal.App.4th at pp. 1195-1196.)
Here, defendant argues it is undisputed that Hopkins's experiment involved a new technique, because Hopkins himself conceded this was the first time he conducted the experiment, and he was unaware of anyone else ever conducting it. However, the fact the experiment was new does not mean it used a new technique that was new to science.
We agree with the People that Hopkins's experiment did not use a scientific technique new to science, and it had no misleading aura of scientific infallibility. Hopkins poured measured amounts of liquids onto carpeting, measured the stains, and used algebra. Pouring, measuring, and algebra do not involve anything new to science and do not create an aura of scientific infallibility. Defendant's own expert, Dr. Oda, testified Hopkins used algebra and "just simply added up the area of the different spots and correlated it back to the -- and the amount of blood that was required to make those spots, and correlated it back to the area of the spot of the crime scene, and then added those up and did, essentially, a correlation of the two as I interpreted his approach."
Defendant argues Kelly applies because the expert's algebraic formula was beyond the understanding of laypersons. We simply disagree.
Defendant contends Hopkins presented the experiment as a "definitive truth," subject to Kelly, but points to no specific evidence supporting this argument. (Cf. Leahy, supra, 8 Cal.4th at pp. 606-607 [officers testified horizontal gaze nystagmus test was a "big indicator" of intoxication and was always right when compared to blood-alcohol tests].) In fact, Hopkins characterized the experiment as an attempt to make an "educated estimate" of the amount of blood loss. Nor were the results presented as a "definitive truth" by the prosecutor. In his closing argument, the prosecutor argued, "regardless of the final amount of blood volume, you find as finders of fact or whether you believe how close that blood volume experiment comes, the bottom line is [the victim] is not going to create that kind of blood and then disappear into the night without a trip to the hospital." Given the manner in which the experiment was conducted, even the preciseness of the result -- 4.16 liters -- had no aura of scientific infallibility, because the number came from math and clearly depended upon the validity of assumptions underlying the experiment.
Defendant points out Hopkins admitted at the preliminary hearing that he could not estimate the volume of blood, other than to say it was at least a liter, and there was no test to determine how much blood was in the carpet or how much blood had been removed. However, this does not render his subsequent experiment a new scientific technique for Kelly purposes.
To the extent defendant criticizes the assumptions made by Hopkins in conducting his experiment, such criticisms go to the weight of the evidence, not its admissibility. (People v. Venegas (1998) 18 Cal.4th 47, 80 (Venegas) ["Careless testing affects the weight of the evidence and not its admissibility, and must be attacked on cross-examination or by other expert testimony"].) Defense counsel appropriately attacked the evidence by cross-examination and by introducing expert testimony as a counterweight.
Defendant's other cited cases do not come close to requiring Kelly analysis for the experiment at issue here. People v. Coleman (1988) 46 Cal.3d 749, 774-775 (questioned on another ground in People v. Medina (1990) 51 Cal.3d 870, 889), held Kelly applied to a hemostick method of presumptive testing for the presence of blood, where it was not shown that the test used was one of the generally accepted presumptive tests for blood. People v. Brown (1985) 40 Cal.3d 512, 528-535, held Kelly applied to electrophoretic testing of body fluid and aged blood stains to identify the donor. People v. Shirley (1982) 31 Cal.3d 18, 51-52 (superseded by statute as stated in People v. Alexander (2010) 49 Cal.4th 846, 880-884), held hypnosis to restore memory of potential witness was not generally accepted by the scientific community and listed cases applying Kelly to polygraph testing, truth serum, human bite marks, and microscopic identification of gunshot residue.
IV. Harmless Error
Even assuming for the sake of argument that the Hopkins experiment was subject to Kelly, and further assuming the evidence did not satisfy the Kelly test, any error in admitting the evidence was harmless, because it is not reasonably probable that defendant would have obtained a better result had the evidence been excluded. (Venegas, supra, 18 Cal.4th at p. 93; People v. Watson (1956) 46 Cal.2d 818, 836.) "'"'Probability' in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility."'" (Richardson v. Superior Court (2008) 43 Cal.4th 1040, 1050, italics omitted.)
Defendant focuses on what he perceives as weaknesses in the prosecution's proof that his wife was a homicide victim and he, the perpetrator. However, the purpose of the blood volume experiment was not to show identity of the victim or perpetrator, but rather to show someone suffered a fatal loss of blood which, together with other evidence, showed that person was killed. Even disregarding the blood volume experiment, there was more than ample evidence that a homicide occurred in defendant's apartment.
The FBI agents testified the quantity of blood remaining at the scene, under the carpet, was more than the quantity of blood the agents had seen at other crime scenes known to be homicides where the decedent was still present. Agent Hopkins testified he had one other case with bloodstains of this magnitude, where three children were decapitated, and their father was hacked with a machete. Agent John Cauthen testified he had seen less blood evidence at past crime scenes where the victim was stabbed to death and bled out on a concrete surface. Agent Hopkins testified, "based on seeing" what he saw in defendant's apartment, "it is significant to have bloodstains found on five pieces of furniture that are all spread out in the apartment, and then the significance of the size of the stains on the carpets themselves in conjunction with the forcibly-removed hair on the entertainment center. So just with -- by nature of that, that's a homicide scene." An additional factor was that the furniture had been rearranged to conceal the bloodstains that remained on top of the carpet.
Defendant's own brother observed drops of blood and a blood smear on the doorframe of defendant's truck the day after the victim's disappearance. The victim's blood was found on the rear floor mat.
Thus, there was ample evidence of a homicide even without the blood volume experiment, and there is no reasonable chance the jury would have found no homicide had the experiment been excluded.
There was also ample evidence that defendant's wife was a murder victim and defendant was the perpetrator. DNA tests revealed the blood on the carpet pad matched that of defendant's wife. The DNA analyst testified the match to defendant's wife was one in 17,000, which was significant despite not reaching the "one in six trillion" threshold.
The victim disappeared, leaving behind her 10-year-old child and her wallet containing her identification and over $1,000. She left her credit cards and her Mexican passport at the apartment. Though known to be reliable at her two jobs, she gave no notice she was leaving.
There was compelling evidence of motive. Defendant suspected his wife was cheating on him. She filed for divorce on March 20, 2009, and served defendant on March 23. Two days after the victim's disappearance, defendant lied to police about the pending divorce and claimed that everything was fine between him and the victim.
Defendant, claiming concern that the victim's lover might hurt him, borrowed a gun from his brother. Though his brother testified the gun was returned before the victim's disappearance, defendant lied about the reason he returned the gun to his brother. Contrary to defendant's claim the gun did not work, testing revealed it functioned properly.
Defendant attempted to cover up what had happened to his wife, and this conduct reflects a consciousness of guilt. Defendant did not report his wife missing and tried to dissuade others from involving the police. He gave conflicting false stories about her whereabouts, inventing for some a family emergency in North Carolina, and telling others she went to Mexico. Family members testified there was no family emergency in North Carolina or Mexico and no contact from the victim. The FBI's attempts to locate the victim in Mexico were unsuccessful.
Defendant rented a carpet cleaner the day after his wife disappeared and cleaned the carpet. Blood was found in the upholstery tool. Defendant denied he used the tool; yet the furniture was the subject of an extensive "cleaning operation." The furniture was repositioned in such a way as to hide the remnants of bloodstains on the carpet. When asked on cross- examination about the enormous bloodstains on and underneath the two-year-old carpet, defendant had no explanation for how the stains got there.
After being jailed, defendant told his sister to call his lawyer and falsely state she saw defendant's wife have a miscarriage in the apartment if blood were found in the apartment. He asked his sister to phone the victim's family in Mexico, pose as the victim, and say she was fine.
Defendant cobbles together a theory that the victim may have disappeared voluntarily, because she was a Mexican national, in this country illegally, with a source of income but no bank accounts, and unhappy in her marriage. The couple's daughter Lisa testified that on her last trip to Mexico with her mother, the victim wanted to stay in Mexico and let Lisa return to the United States. However, Lisa also testified her mother wanted for both of them to stay in Mexico, but Lisa wanted to return to California. Both mother and daughter returned.
Defendant asks how he could have killed his wife and cleaned up so well that law enforcement officers did not see anything amiss initially? However, law enforcement eventually saw something amiss, because defendant ended up on trial for murder. That it took a while is explained by the fact that the furnishings were rearranged to conceal the carpet bloodstains.
Defendant also asks how he could have disposed of the body, which weighed as much as he did, without his daughter or any neighbor hearing anything. However, a neighbor did testify about hearing crying and movement on the stairs that night.
We conclude any error in admitting evidence of the blood volume experiment was harmless.
We conclude defendant fails to show grounds for reversal of the judgment.
DISPOSITION
The judgment is affirmed.
MURRAY, J.
We concur:
NICHOLSON, Acting P. J.
HULL, J.