(Super. Ct. No. CR-F-09-3988)
The opinion of the court was delivered by: Murray , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.)*fn1 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.
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 co-workers 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 co-workers 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 ...