People v. Amundson

• Decision Date: 09 May 1995
• Docket Number: No. D019139,D019139
• Citation: 34 Cal.App.4th 1151,41 Cal.Rptr.2d 127
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 34 Cal.App.4th 1151, 39 Cal.App.4th 468, 43 Cal.App.4th 1503, 48 Cal.App.4th 788 34 Cal.App.4th 1151, 39 Cal.App.4th 468, 43 Cal.App.4th 1503, 48 Cal.App.4th 788 The PEOPLE, Plaintiff and Respondent, v. Wayne AMUNDSON, Defendant and Appellant.

Page 127

41 Cal.Rptr.2d 127

Previously published at 34 Cal.App.4th 1151, 39 Cal.App.4th 468, 43 Cal.App.4th 1503, 48 Cal.App.4th 788

34 Cal.App.4th 1151, 39 Cal.App.4th 468, 43 Cal.App.4th 1503,

48 Cal.App.4th 788

The PEOPLE, Plaintiff and Respondent, v. Wayne AMUNDSON, Defendant and Appellant.

No. D019139.

Court of Appeal, Fourth District, Division 1, California.

May 9, 1995.

As Modified May 16, 1995.

Review Granted Aug. 10, 1995.

[34 Cal.App.4th 792] Kimberly J. Grove, under appointment by the Court of Appeal, El Cajon, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Gary W. Schons, Asst. Atty. Gen., Frederick R. Millar, Jr. and Raquel M. Gonzalez, Deputy Attys. Gen., for plaintiff and respondent.

MIDLAM, Associate Justice Assigned. ^*

An information charged Wayne Amundson in count one with murder (PEN.CODE, § 187)¹ with an allegation he personally used a deadly weapon to commit the crime (§ 12022, subd. (b)) and two special circumstances allegations: the murder was committed during a rape (§ 190.2, subd. (a)(17)) and the murder was committed by means of lying in wait (§ 190.2, subd. (a)(15)). ² In count two, the information charged Amundson with attempted murder (§§ 187, subd. (a), 664). Amundson pleaded not guilty and denied the allegations.

A jury convicted Amundson of second degree murder in count one and found he personally used a deadly weapon but acquitted him of attempted murder in count two. The court sentenced him to prison for 16 years to life. On appeal, Amundson challenges the admissibility of expert testimony on DNA profile evidence. We affirm.

FACTS

In December 1986, Amundson lived on the Pala Indian Reservation with Jose Antonio Suarez and his family. From May 18, 1981, until March 13, 1987, Amundson was employed by a cable company on South Hill Street in Oceanside.

Melissa White worked as a prostitute in a three block area of South Hill Street in Oceanside which included the location of the cable company. Another prostitute, Anita McLain, often saw Amundson driving a blue MG and once saw him in a light colored pickup truck. McLain saw Amundson driving up and down the street looking at the prostitutes and stopping to talk to them. On four different occasions, she saw Amundson talking to White. On three of these occasions, White got into Amundson's car and was gone for no more than 30 minutes. McLain last saw White the day after Thanksgiving in a donut shop in Leucadia. White said she was working and was waiting for someone.

On December 31, 1986, White's nude body was found next to a cement culvert under Highway 76 in a sparsely populated area east of the Pala Indian Reservation. A cloth gag in White's mouth extended around the back of her neck and was tied in front of her neck in a square knot. Her body was also bound by a yellow rope, loosely tied in a slip knot around her neck. The medical examiner determined the primary cause of death was ligature strangulation associated with morphine intoxication. There was evidence of semen which could have been deposited in White's body within one or two days of her death. The condition of the body was consistent with White having been murdered on December 17, 18 or 19. Amundson was absent from work on December 17 and 18.

Another section of yellow rope was found on the road above the culvert. A leather glove and a cloth glove, both for the right hand, were found near White's body. These gloves were later identified as being similar to gloves used by employees of the cable company for which Amundson worked.

At about 9 p.m. on December 29, 1986, Amundson picked up prostitute Dolores Fernandez at 8th and Hill Streets. Amundson drove to the parking lot of a nearby bowling alley and agreed to pay Fernandez $50 for oral sex. After Fernandez began the sex act, Amundson started choking her with his hands. Fernandez struggled and asked why he was doing this. Amundson said he had to do it. Fernandez could not breathe and Sometime after Amundson moved out of the Suarez home in 1988, some handcuffs and an object resembling a leather wrist restraint were found in a shed Amundson had left on the property. He also left behind some yellow rope which he used to pull cable through conduit and which he carried on a spindle in his truck or van.

again Amundson said he had to do it. Fernandez bit Amundson and managed to escape. Amundson did not go to work the next day.

In September 1989, Amundson and a friend were at a bar in LaCrosse, Wisconsin, where they met Carla Hastings. Amundson agreed to drive Hastings home. Once inside Amundson's truck, he told Hastings he wanted to have sex with her and started kissing her face and neck. Hastings told him to stop and said she would walk home. When she tried to unlock the door, Amundson grabbed her arm. As they struggled, Hastings managed to unlock the door and they fell out of the truck. Amundson covered her mouth and nose with his hands, applying pressure so she could not breathe. Whenever Hastings tried to move, Amundson again tried to suffocate her. Hastings asked him why he was doing this and whether he had done this before. Amundson replied, "Yes."

In 1990, Amundson worked at a Holiday Inn in LaCrosse. He told his coworker Leonard Hasz he had lived in California, he used to have parties and was involved with prostitutes occasionally. He told Hasz "it was easier to be with a prostitute than a regular woman because you are paying for it so ... you can pretty much get what you want." Amundson told Hasz that by paying a prostitute, a person can do anything, including use whips, chains and ropes. He said he liked to get tied up and tie others up.

In November 1991, San Diego sheriff's investigators interviewed Amundson in Wisconsin. Amundson denied assaulting Fernandez or murdering White. When shown a photograph of White, Amundson said he never saw her. He also said he was not aware of any bodies being dumped at the Pala Indian Reservation and had never spoken about the subject to anyone. ³

Amundson was later arrested for White's murder. After his arrest, he telephoned John West, a friend and former coworker. West asked Amundson if he knew anything about the prostitute's death. Amundson said no, but "[i]f they ask me the right questions, I can probably give them some answers. But they have to ask the right questions."

KELLY HEARING

Before trial, a hearing was held to determine whether the DNA evidence sought to be introduced by the prosecution was admissible under People v. Kelly (1976) 17 Cal.3d 24, 130 Cal.Rptr. 144, 549 P.2d 1240 (hereafter Kelly ) and Frye v. United States (D.C.Cir.1923) 293 Fed. 1013 (hereafter Frye ). ⁴ After reviewing Amundson's motion to exclude DNA evidence and the People's opposition and exhibits, the court found the reliability of the method of DNA profiling had been established.

THE DNA EVIDENCE

A blood sample taken from Amundson and vaginal swabs taken from White were subjected to DNA restriction fragment length polymorphism (RFLP) testing at Cellmark Diagnostics (Cellmark). The DNA banding pattern from the vaginal swab matched the DNA banding pattern from the blood. The statistical significance of the match was then calculated. The two banding patterns were found to have an approximate frequency of 1 The blood and semen samples were also subjected to DNA polymerase chain reaction (PCR) testing at the Serological Research Institute (SERI). The source of the semen on the vaginal swab had the same genetic markers as Amundson's blood sample. Those markers are found in 3.9 percent of the Caucasian population, 6.9 percent of the African-American population and .3 percent of the Hispanic population. ⁶

in 340 million based on the Caucasian population sample, 1 in 100 million based on the African-American population sample and 1 in 270 million based on the Western Hispanic population sample. ⁵

DISCUSSION

I ADMISSIBILITY OF PCR ANALYSIS

Amundson contends the court erred in admitting evidence of PCR analysis. He asserts although PCR analysis is generally accepted in the relevant scientific community for use in medical research, it has not been established as reliable as applied to forensics. In his reply brief, Amundson changes course and asserts the People failed to show the particular protocol followed by SERI in using the PCR technique for purposes of forensic identification is generally accepted as reliable by the scientific community.

The proponent of expert testimony based on new scientific techniques must show "(1) the technique or method is sufficiently established to have gained general acceptance in its field; (2) testimony with respect to the technique and its application is offered by a properly qualified expert; and (3) correct scientific procedures have been used in the particular case...." (People v. Morris (1991) 53 Cal.3d 152, 206, 279 Cal.Rptr. 720, 807 P.2d 949, citing Kelly, supra, 17 Cal.3d at p. 30, 130 Cal.Rptr. 144, 549 P.2d 1240.) ⁷ "General acceptance" under Kelly does not require "absolute unanimity of views in the scientific community," (People v. Guerra (1984) 37 Cal.3d 385, 418, 208 Cal.Rptr. 162, 690 P.2d 635), but rather a "consensus drawn from a typical cross-section of the relevant, qualified scientific community." (People v. Leahy, supra, 8 Cal.4th at p. 612, 34 Cal.Rptr.2d 663, 882 P.2d 321.) In determining the general acceptance issue, trial courts "must consider the quality, as well as quantity, of the evidence supporting or opposing a new scientific technique. Mere numerical majority support or opposition by persons minimally qualified to state an authoritative opinion is of little value...." (Ibid.)

"Whether a particular technique has gained general acceptance in the scientific community can be ascertained by reference both to legal and scientific publications or journals and to judicial decisions. [Citations.]" (People v. Palmer (1978) 80 Cal.App.3d 239, 252, 145 Cal.Rptr. 466; see...