Superior Court of San Mateo County, No. SC64228, Norman J. Gatzert, Judge.
The opinion of the court was delivered by: Bruiniers, J.
CERTIFIED FOR PUBLICATION
(San Mateo County Super. Ct. No. SC064228)
Joseph Cua was convicted by jury of the murders of Fernand and Suzanne Wagner. He was connected to the commission of the offenses in part by genetic trace evidence. He challenges the scientific validity of that evidence, and contends that his trial attorneys were ineffective in failing to object to its admission. We affirm.
I. BACKGROUND AND PROCEDURAL HISTORY
Cua was employed by the Wagners as a property manager, and lived rent free at a building which the Wagners owned in Burlingame. In 2004 and 2005, the Wagners had received gross rental income of approximately $820,000 from the three rental properties they owned. In early June 2006, Fernand learned from his bank, Wells Fargo, that the cash balance in the Wagners' business account was lower than anticipated, and insufficient to be able to make quarterly tax payments coming due. On Saturday, June 10, 2006, Fernand met with the Millbrae Wells Fargo branch manager, Asha Kumar. He showed Kumar faxed copies of deposit receipts that did not match with the bank's records of deposits to his account. The facsimile copies cut off the bottom portion of the deposit receipts, which would have identified the teller receiving the deposits, the time of the transaction, and other "key" information. These deposits had purportedly been made by Cua, who had faxed the copies of the deposit receipts to the Wagners. Kumar asked Fernand to obtain the original deposit receipts so that she could investigate, and she asked Fernand to return on Tuesday (June 13). Kumar saw Fernand at the bank on Monday or Tuesday (June 12 or June 13), as Fernand was making another deposit. She reminded him that she still needed the original deposit slips, and Fernand said he would get them from his manager.
On June 13, 2006, Edith Edmonds telephoned the Wagners' home at about 9:25 a.m. She first spoke to Suzanne, who informed her that "Joe's here." Edmonds knew Cua from working with him as a real estate agent in the past, and she asked to speak with Cua to congratulate him on the recent birth of a child. She also spoke briefly with Fernand, but ended the call because she felt that she was interrupting a business meeting.*fn1
On June 14, 2006, worried co-workers called Millbrae police when Suzanne Wagner failed to come to work. Officer Robert Raw went to the Wagner's home at about 12:30 p.m. No one responded to knocks on the door or to the doorbell. Raw found the mailbox full of mail, and newspapers on the front porch from both June 13 and June 14. Looking into a side window, he saw the body of a white female, clothed only in a bra, with blood pooled around her head. A white male was lying face down nearby, also with apparent head trauma and blood pooling around the body.
On entry to the house, Raw and other officers identified the bodies of Fernand and Suzanne. The den where the bodies were found was "messy," with blood splatters, pooled blood, and articles of clothing in the room. Suzanne died of multiple blunt injuries associated with strangulation. She sustained multiple other blunt trauma injuries, with 27 separate areas of trauma to her head and neck, as well as bruising, scrapes and other injuries to her torso. She also suffered nine broken ribs. In addition, there was an incised wound to the opening of her vagina caused by a sharp cutting instrument. The strangulation wounds were consistent with manual strangulation. Fernand received multiple blunt injuries associated with a six-inch-long incised wound to the neck, extending from the area of the mouth on his left side to the back outside of the neck. The wound partially cut the jugular vein. Fernand sustained 21 discrete blunt injuries to the head and neck area, fractured ribs, and lacerations to both arms and hands.
Other than the den, the home appeared "tidy." Family members examining the other areas of the house noticed nothing that appeared unusual, other than a rug "bunched up" in an upstairs area. Drawers were open in an upstairs office area. A purse was found lying on the kitchen floor, and a bloody footprint could be seen on one of the lower stair steps. Police later determined that a knife was missing from a knife block in the kitchen that could not be located in the house. Fernand's watch, which had a gold coin face, was missing. The Wagners' Cadillac Deville also was missing.
Apparent blood stains were found on the downstairs bathroom floor, on the bathroom door jamb, on the sink and on the toilet seat cover. They appeared diluted, as if someone had been washing their hands. Suzanne's clothing was strewn about the den, and her pantyhose and underwear were intertwined, as if they had been taken off together. There were bloodstains confirmed on the underwear, but no semen. Shoe prints with red-brown staining were observed on the floor.
The Wagners' Cadillac was located in Daly City using the vehicle's GPS system. A woman's pearl ring was found under the right side of the front passenger seat. There was blood on the ring. A blood stain was observed on the passenger seat cushion near the ring. DNA swabs were taken from the vehicle, including from the steering wheel.
On Friday, June 16, 2006, Millbrae police received a call from a family friend of Cua's estranged wife, Joy, who had purportedly told her parents that she recently had seen Cua and that he had evident injuries. Joy Cua was interviewed by investigating officers on June 18. She told them that she had seen Cua on that Thursday and Friday (June 15 and June 16), and that Cua's right hand was swollen, with a red or purple discoloration on the back and webbing of the hand. He also had cuts on the webbing of his right hand and one of his fingers. His right foot was swollen, and he had a reddish or purple discoloration or bruise to his shin.
A forensic accounting examination of Cua's checking accounts and the Wagners' accounts revealed that Cua had been "skimming" rents from the Wagners' properties, embezzling about $238,000 between January 2004, and June 2006.*fn2 Cua's salary as the Wagners' property manager was about $14,000 per year. He reported no taxable income other than his salary. He used the money embezzled from the Wagners to pay his personal expenses, including the mortgage on a southern California home, car loans for three cars, boat docking fees at two marinas, and payments to various individuals.
Cua had an ongoing intimate relationship with Tracey Story. He told Story that he was a property manager and investment advisor, and claimed that he was the trustee and co-owner, along with Fernand Wagner, of the Burlingame building where he lived. Cua said that his annual income was around $600,000, and told Story at various times that he was worth $11 million or $23 million. Cua claimed that he had once been in a fight in Mexico with several "gang-type" men, and that he had fatally injured three or four of the men with his hands and feet, and had left the others in "bad shape." He did not tell Story that he was married to Joy Cua.
On June 13, 2006, Cua called Story on her cellular telephone and sounded upset. She also spoke to him by telephone on the evening of June 17, talking about the breakup of their relationship, and that Cua sounded "in very bad shape."
Cua had made an airline reservation for a flight on the evening of June 13, 2006, from Oakland to Ontario, California. He did not make the flight, instead driving to San Luis Obispo, where he checked into a motel at about 1:00 a.m. on the morning of June 14.
Following the Wagners' deaths, Cua made several telephone calls to members of the Wagners' family, including calls on June 14 and June 16, 2006, claiming that Fernand and Suzanne had placed him in charge of their business affairs and had made him executor of their estate. He asked Marc Wagner, Fernand's nephew, for his help "to go to the bank," although he did not explain what help he needed or why he needed to go to the bank. On June 17, Cua called Dan Doherty, one of the Wagners' commercial tenants in the San Jose building, and told Doherty that the Wagner family wanted to sell that building within two or three weeks. He offered to sell the building to Doherty and his partners if they could raise the money for a "quick sale." He said that Cua sounded nervous and upset.
Cua had been named by the Wagners as trustee in an earlier 1993 version of a trust instrument. Under the terms of that instrument, Cua had authority to sell the Wagners' assets if both were deceased, with the right to receive a fee of .75 percent of the value of the estate. Cua had been replaced as trustee in subsequent versions of the trust, although he had still been designated as the broker for sale of the Wagners' three commercial properties--but only in the event that both Fernand and Suzanne were deceased. A broker's commission based on the value of the properties at the time of the Wagners' deaths would have been about $300,000.
A warrant was issued for Cua's arrest, and he was taken into custody on June 18, 2006, in Oxnard, California. At the time of his arrest, Cua was driving a pickup truck with a stolen license plate registered in Coalinga, California. When asked if he knew why he was being arrested, Cua said, "I have an idea."
When Cua was interviewed by Detective Frank Taylor on Monday, June 19, 2006, Taylor observed healing injuries to Cua's right hand and right foot, including swelling, discoloration, and a scabbed wound on Cua's right ring finger about three-fourths of an inch long. Tracey Story testified that she was with Cua on the evening of June 12, both at dinner and later in a bedroom when he was unclothed, she observed no injuries to his hands or anywhere on his body.
In a letter from Cua to his wife found by Taylor in the truck, Cua said that he had discovered the Wagners dead in their home on Tuesday afternoon, and that he did not call police because he "got scared that [he] would be the prime suspect" because he "was known to be there at the house" (referring in the letter to Edith Edmonds's telephone call). Cua said that he was afraid "the police suspect me for what I found out." The letter also stated that it was Cua's "last will and testament."
DNA analysis was performed on the blood stains from the Wagners' residence and on the bloodstains and DNA swabs from the Wagners' Cadillac. The sample taken from the bathroom door jamb showed contributions of genetic material from at least two individuals. Both Fernand and Cua were identified as possible contributors. Statistically, the odds of another contributor with this DNA pattern were one in 660 million for African-Americans, one in 110 million for Caucasians, and one in 72 million for Hispanics.*fn3 The bloodstain on Suzanne's underwear showed a DNA mixture from at least three individuals. Fernand and Cua could not be excluded as contributors. Suzanne could not be excluded as a "minor DNA contributor." The odds of another contributor with this DNA pattern was one in 49 million for African-Americans, one in 1 million for Caucasians, and one in 1.6 million for Hispanics. The forensic examiner concluded that Cua was the single source of the bloodstain on the passenger seat of the Wagners' Cadillac.*fn4 Cua also could not be excluded as a source of DNA found on the steering wheel of the Cadillac. Other trace evidence was found at the scene of the homicides that could not be attributed to Cua.*fn5
Cua was charged by information with two counts of murder with the use of a "sharp edge cutting instrument." (Pen. Code, §§ 187; 12022, subd. (b).) The special circumstance of multiple murder was alleged. (Pen. Code, § 190.2, subd. (a)(3).) The district attorney elected not to seek the death penalty.
The evidentiary phase of the trial commenced on June 12, 2008, and concluded on June 25. On June 27, the jury convicted Cua of both murders, finding them to be in the first degree, and found all enhancement allegations to be true.
Cua motioned for new trial on the ground of the newly discovered DNA statistical evidence. The motion was denied on December 18, 2008, and Cua was sentenced to consecutive terms of life imprisonment without the possibility of parole.
Cua filed a timely notice ...