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Court of Appeal, First District, Division 2, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Raymond Luis PULUTI, Defendant and Appellant.

Cr. 20435.

Decided: June 15, 1981

Howard J. Berman, Berman & Glenn, San Francisco (Court-appointed), for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., Herbert F. Wilkinson, Michael I. Mintz, Deputy Attys. Gen., for plaintiff and respondent.

Defendant, Raymond Luis Puluti, appeals from a judgment entered on a jury verdict finding him guilty of second degree murder (Pen.Code, § 187) of his wife as charged.   He contends that:  1) the court erroneously admitted expert evidence of a new scientific theory, foot impression or Cinderella analysis;  2) the evidence seized in the execution of a search warrant for his apartment was inadmissible, as the warrant and its supporting affidavits were defective;  and 3) as a matter of law, the evidence was insufficient to support the judgment.   For the reasons set forth below, we have concluded that the judgment must be affirmed.

On March 4, 1979, the San Benito County Sheriff's Department was contacted by Anthony Trebino.   Trebino, while hunting on his property adjoining Fremont Peak Park, found a partially buried sleeping bag that appeared to contain bones.

Investigator Dennis Stafford proceeded down a steep hill to a site about 170-180 feet below a campsite and approximately 40 yards from an access road.   There, he and other officers unearthed a “gravesite.”   Under 10-14 inches of dirt, Stafford uncovered a badly decomposed body which had been placed in a sleeping bag.   Also neatly arranged in the gravesite were two bloodied king size pillows, a washrag and a pink blanket, a piece of folded clear plastic, a woman's white purse, a pair of men's shoes with tied laces, and a pair of rolled socks stuffed inside the toe of one of the shoes.   The purse contained numerous items of identification for a Margery Puluti, including a driver's license, social security card, marriage certificate and address book, several pieces of jewelry and a small quantity of change.   Subsequent examination of the dental work conclusively established the body as that of defendant's wife of less than two months, Mrs. Margery Puluti, formerly Margery Shelton.

Dr. Knovick, a licensed pathologist, performed an autopsy on March 4, 1979, and recorded his findings in a report on March 5, 1979.   Because of the badly decomposed condition of the body, Knovick could not determine the cause of death.   He found broken ribs, the sternum split in half and fractures in the facial area, but found no evidence of a penetrating wound.   Knovick characterized the injuries as indicia of a significant blunt trauma.   He was not able to determine whether the injuries occurred before or after death.   He estimated the minimum time of death at about one year prior to his examination, but indicated that the body could have been in the ground for at least 18–24 months.

Dr. Rodger Heglar, an anthropologist, also examined the remains of the body.   He noted the injuries to the skull and the sternum.   He opined that a sharp instrument was used to sever the sternum.   He was unable to determine whether the injuries occurred before or after the time of death.

Dr. Boyd Stephens, the Chief Medical Examiner and Coroner of the City and County of San Francisco, also examined the remains.   Stephens concluded that the cause of death was multiple traumatic injuries at the hands of another but did not prepare a report.   A deputy sheriff filed a report listing the cause of death as unknown.

The victim had been defendant's wife for less than two months on Tuesday August 23, 1977, when she was last seen by Mr. and Mrs. James Johansen at the American Legion Hall in Salinas.   Mrs. Johansen testified that she and her husband had met the Pulutis for the first time that evening and had a few drinks together.   As the evening progressed, the men played pool together while the women chatted.   During the course of the conversation, which lasted less than an hour, the victim talked about how much she enjoyed her job at the social security office.   Throughout the evening, the victim was “cold” and “aloof” towards defendant.   The victim picked up her purse and left alone without saying goodbye.   About an hour later, around midnight, the Johansens decided that defendant was too drunk to drive.   They drove him home and dropped him off in the driveway in front of his residence at 1633 Cadiz Circle.

A clerk at Mrs. Puluti's place of employment testified that at 7:15 a. m. on August 24, 1977, he received a telephone call from defendant indicating that his wife was not feeling well and would not be in to work that day.   The victim was never seen or heard from after August 23, 1977.   The victim's best friend at the social security office testified that although they talked on Tuesday, August 23, the victim did not mention any plans for a trip or that she was going away.   The victim failed to pick up a paycheck dated September 6, 1977;  her banking activity ceased in August 1977.   The victim knew that she was due for a promotion and corresponding salary increase in September 1977.   Also, the victim was serving as chairperson of a committee to plan an office picnic on Saturday, August 27, 1977.

The victim's daughter by a previous marriage, Michele Shelton Quinones, in the summer of 1977, was pregnant and with the victim's first grandchild.   She kept in touch with her mother regularly by telephone.   She also never heard from her mother again after August 23, 1977.   When she called her mother's residence during the first week of September 1977, a recording recited that the telephone had been disconnected.

On Monday, August 29, 1977, the victim's brother-in-law, Charles Wold, went to the Puluti residence accompanied by his wife (the victim's sister) and mother-in-law (the victim's mother).   Although defendant originally had consented to the visit, he subsequently cancelled the appointment.   Nevertheless, the Wolds decided to go;  after they found no one at home, they entered through the back door.   Mr. Wold's investigation of the residence revealed:  1) a strong odor similar to bleach or a cleaning fluid;  2) spots on the carpet of the master bedroom which were still damp to the touch and appeared to have been recently bleached;  3) no pillows or bedding on the bed;  4) the victim's closet full of her clothes without “gaps” or “spaces” apparent;  5) several of her suitcases were still in the closet area;  and 6) the cement floor of the garage was damp and covered with puddles of damp discolored water.   Mr. Wold also noted that the house “was just super clean ․ like a showroom.”   The following day, (Aug. 30), the Wolds reported their observations to the police.

On that same Monday, defendant filed a report with the Salinas Police Department indicating that his wife had been missing since August 23.

On September 1, 1977, a 13-year-old neighbor, Ann Gleason, saw defendant put something into the trunk of his car and drive away.   He did not appear to be acting surreptitiously.   About five minutes later, a fire started in defendant's home.   Mary Gleason, Ann's aunt, testified that she recalled smelling smoke two or three minutes after she saw defendant drive off.

Otis Gleason, Ann's father, testified that he entered the Puluti home in an attempt to extinguish the fire.   The smoke was so thick that he had to crawl on his stomach close to the floor in order to breathe.   He reached the master bedroom and was able to put out the flames.   After he left the home, he and an arriving firefighter saw that about a third of the front of Mr. Gleason's shirt was covered with blood.   Mr. Gleason suffered no cuts or injuries of any sort.

The firefighters testified as follows about the fire and resulting damage:  1) a gas can marked “flammable” was discovered next to the bed in the master bedroom;  2) the fire appeared to have been started on a section of carpet next to the bed, which smelled as if it had been soaked with gasoline;  3) a rolled up strip of bedspread had been used as a wick to ignite the fire;  4) burned matches were discovered on the carpet next to the “burn pattern” where the fire had been started;  5) a smoke alarm had been ripped from a hallway ceiling and thrown into the bathroom; and 6) the lock and door jamb of a second bedroom were splintered and appeared to have been kicked in.

Officer Porter Wells testified that on September 1, 1977, at approximately 7:45 p. m., he was dispatched to a location where defendant had run his 1974 Cougar off the road.   Wells recalled that the inside of the damaged vehicle was unusually clean, “very neat, such as a car that was fresh off the car lot or something.”   Defendant was arrested for drunk driving.   About 1:30 a. m. on September 2, 1977, his friend, William Johnson, posted bail for defendant.

Subsequently, defendant was convicted by a jury of attempted arson (Pen.Code, § 455) 1 of the Puluti residence on September 1, 1977.   Johnson testified that on August 30, 1977, defendant had asked him to provide an alibi for the evening of August 29, 1977, in case defendant was questioned by the police.   Johnson further testified that in the early summer of 1977, defendant said:  “Bill, that woman [referring to the victim] has embarrassed me for the last time․  I've got to get rid of her.”

In November 1977, approximately 90 days after the victim's disappearance, her former husband, James Shelton, contacted an attorney as Shelton wanted to be the trustee of the victim's personal effects and belongings.   In February, 1978, Marie Shelton, then James Shelton's wife, went to defendant's new apartment to discuss an inventory of the victim's personal property.   Mrs. Shelton testified that she asked defendant:  “Ray, did you kill Margie?”   Defendant replied:  “My God, Marie, I would do anything to change what happened.   They're even trying to nail me with arson.” 2  Immediately after she left defendant's apartment, Mrs. Shelton wrote down her question and defendant's response.

Raymond Jensen, a criminologist with expertise in the field of blood and hair comparison, examined the gravesite items and the victim's possessions that were then stored in James Shelton's garage.   Jensen found human blood “in a spray or splatter pattern” on a dresser, nightstand and several bookshelves.   Only the blood on the bookshelves was of a sufficient quantity for purposes of determining blood type.   Type 0 was the victim's blood type.   Jensen opined that the blood stains had occurred prior to the removal of the furniture from the Puluti residence.   He based his finding on the following:  first, that the blood was found on those surfaces of the bookshelves that had been taped together in a stack and therefore not exposed prior to the move;  and second, the blood spots on the master bedroom dresser and nightstand had effectively protected the underlying veneer or surface from fire damage.   Jensen also examined the floor of the master bedroom on March 9, 1979, and observed several blood stains under the carpet.   These tested “positive” for human blood but could not be “typed.”

Jensen's examination of the gravesite articles indicated traces of blood on the washrag, pillows, blanket, shoes (both inner and outer surfaces) and socks.   He also concluded that the human hair found in the gravesite socks was consistent with that of the victim.

The gravesite pillows and blanket were the same king size as the bed and pillows the victim had shared with defendant in the master bedroom.

James Shelton testified that he had purchased the green sleeping bag in which the victim's remains were discovered.   After their divorce, the victim retained possession of the sleeping bag.   The victim's 15-year-old daughter testified that she had slept in the same sleeping bag in July 1977, when she visited her mother and defendant at 1633 Cadiz Circle.

On April 9, 1979, Officer Richard Boomer of the San Benito Sheriff's Department and Investigator Claude Sparks executed a search warrant for defendant's apartment.   The items retrieved included one pair of laced shoes, a pair of bowling shoes, a pair of loafers, and a pair of “thongs.”   The shoelaces of the laced shoes were tied when first seen in defendant's closet;  a pair of rolled socks was found stuffed inside the toe of one of these shoes.   Defendant's inked foot impressions were also obtained.

After a lengthy in-chambers foundational hearing,3 Dr. Louise Robbins, a physical anthropologist, was qualified as an expert on Cinderella analysis and permitted to testify, over a defense objection, as to her qualifications and expertise.   On the basis of her analysis and measurements,4 she testified that the same person who wore defendant's shoes wore the gravesite shoes.   She opined that “it was highly improbable that anybody else would have worn [the gravesite] shoes․  The probability of another person being in that location at that time, and the person having those particular combination of features in the foot, would be an astronomical order.”

At the conclusion of Dr. Robbins' testimony, the People rested their case in chief.   The court then denied a defense motion for a directed verdict on grounds of insufficiency of the evidence.

Defendant offered the testimony of Dr. Frank Fields, a podiatrist.   Fields routinely examined inner wear patterns of shoes usually for the purpose of determining a patient's complaint.   Without taking any measurements, Dr. Fields (on the basis of his “hands on” examination of defendant's feet and his observation of the gravesite shoes and defendant's other shoes), opined that defendant's feet patterns were unique to about 60 percent of the population.   Dr. Fields further opined that the wear patterns on the gravesite shoes were “completely different” from defendant's shoes.   Dr. Fields noted that his examination of defendant's feet revealed no calluses.   Dr. Fields had never testified as an expert on footprint analysis or inner shoe patterns and knew of only one expert in that field:  Dr. Louise Robbins.

Defendant's main witness was Ms. Juanita Reyna with whom he had lived for a period of four years and had a child.   While they were still living together, defendant began to date the victim.   On one occasion after Ms. Reyna saw defendant and the victim together in the car that defendant and Ms. Reyna had purchased together, Ms. Reyna got into her brother's car and rammed into the car containing defendant and the victim.   When the victim got out of the car, Ms. Reyna drove toward her.   When asked whether she had ever tried to “run [the victim] down,” she replied “Maybe I did.”   Ms. Reyna also testified:  “She got out of the car, and I tried to scare her, I don't think they were scared of me at all.”

On another occasion, when defendant and the victim went to Ms. Reyna's house to talk, Ms. Reyna wielded a knife and “chased her out, but she didn't go.   She just stood there, and then ․ [defendant] was the one who told her to go, and that's when she left.”

In the latter part of August 1977, Ms. Reyna had several conversations with defendant.   He told her that the victim “was gone” and that he wanted to start all over again;  he asked Ms. Reyna to be ready to go when he contacted her.   On cross-examination, Ms. Reyna recalled that one evening in late August 1977 when she met defendant, he appeared to have blisters on his hands.   Ms. Reyna denied killing the victim.

Defendant took the stand and testified that the last time he saw the victim was at the American Legion Hall in the early morning hours of August 24, 1977.   He denied having had an argument or fight with her at that time.5  He recalled getting drunk and being driven home alone by the Johansens.   Defendant indicated that the last time he spoke with the victim was about 6 a. m. on August 24, when she called and asked him to relay to her employer that she was not feeling well and would not be in for work.   The following day, August 25, defendant met Ms. Reyna and told her that his wife was missing.

On August 29, 1977, defendant reported to the police that his wife was missing.   Defendant had asked Mr. Johnson for an alibi for the evening of August 29, 1977, because he had spent the evening with Ms. Reyna and did not want his wife to find out.   He made numerous unsuccessful attempts to locate his wife.   He contacted hotels, went to her office, her friends, and to his in-laws.

On September 1, 1977, after his wife had been missing for a week and he feared she had left with another man, he began to drink heavily.   He also contemplated suicide.   He purchased gasoline for the purpose of self-incineration 6 inside his home.   However, after more drinking, he changed his mind.   Instead, he set off for a house in Watsonville that was owned and rented out by the victim.   Enroute, he demolished his car and was arrested.

Defendant indicated that although he might have vacuumed the residence, he had not used any solvents or disinfectants before the entry by his in-laws on August 29, 1977.   Defendant recalled that in July or early August of that year, his dog chased a cat, knocked over some shoe dye in the master bedroom, and stained the carpet.   He and the victim then attempted to remove the stains with paint remover but not with bleach.

On cross-examination, defendant denied that Mrs. Shelton had asked him if he had killed the victim.   He also denied asking Ms. Reyna to start over or that he had blisters on his hands.   He denied setting a fire in his bedroom on September 1, 1977.   He had some “suspicions” that Ms. Reyna killed his wife and that she had set the fire.   The victim did not use any blankets on their bed.   However, they did use king size pillows.   Defendant did not recall ever putting his shoes away with tied laces or with socks inside them.   He also denied that the gravesite shoes were his.

 Defendant first contends that the court erroneously admitted the testimony of Dr. Robbins' “Cinderella analysis.”   He maintains that there was no foundation for Dr. Robbins' expertise and that the court failed to follow the standards established by People v. Kelly, 17 Cal.3d 24, 30, 130 Cal.Rptr. 144, 549 P.2d 1240;  for evidence of a new scientific theory.   The People argue that Cinderella analysis is not a new scientific technique and, therefore, not subject to Kelly.   We agree.

The record indicates that Dr. Robbins, a physical anthropologist, was on the faculty of the University of North Carolina;  she also had served as a professor at three other major universities and taught courses in, inter alia, human evolution, human variation and human identification.   She was a member of the American Academy of Forensic Sciences, Physical Anthropology Section.   For 15 years, she had been a fellow in the American Association of Physical Anthropologists, and published over 20 papers in her field.   In 1978 and 1979, she presented papers to the academy on the topic of “individuality of human footprints,” published an article on the subject in the “Forensic Journal” and had finished a book on the topic, due to be published shortly after the trial.   She had qualified as an expert on Cinderella analysis and identification in criminal proceedings in the courts of Pennsylvania, Oklahoma and California.   However, she had never before been qualified as an expert to testify about foot imprints left inside of shoes for purposes of identification ;  none of her published works dealt with this particular subject.

Dr. Robbins explained that:  1) her method was no more than “the accumulation of precise measurements for the individuality of that footprint”;  2) all of the equipment she used was used by physical anthropologists in their routine work;  and 3) the transparent grids she uses were used by archeologists.

Her research techniques were drawn from the military and other clinical studies (including Dr. Randall's World War II Fort Knox study on soldiers' feet and wear patterns of their shoes).   Her work was “a form of applied anthropology.”   The two physical anthropologists who testified at the foundational hearing in support of Dr. Robbins' qualifications agreed that since 1890 (the date of Dudley Morton's pioneering work in human foot morphology), orthopedic textbooks have been written about the measurement and grouping of foot types, and that Dr. Robbins merely “built on these works.”   Dr. Robbins used the measurement “landmarks” in a more sophisticated way and was the first to apply them “forensically” for purposes of identification.

The Kelly standards apply only to genuinely new experimental techniques, such as the voice prints involved in Kelly or the lie detector involved in its ancestor, Frye v. United States, (D.C. Cir. 1923) 293 F. 1013–1014.   Cinderella analysis, therefore, involves the application of “scientifically and professionally established techniques ․ to the solution of a particular problem which, though novel, was well within the capability of those techniques” (People v. Marx, 54 Cal.App.3d 100, at p. 111, 126 Cal.Rptr. 350).7  The court in Marx, at page 110, 126 Cal.Rptr. 350, articulated the distinction and admitted testimony of bite mark identification where the trier of fact was shown models, photographs, x-rays and dozens of slides and could use “common sense in evaluating it” (p. 111, 126 Cal.Rptr. 350).   In contrast, Justice Kaus in Marx, supra, pointed out that the Frye test, quoted above, “finds its rational basis in the degree to which the trier of fact must accept, on faith, scientific hypotheses not capable of proof or disproof in court and not even generally accepted outside the courtroom” (Marx, supra, at p. 110, 126 Cal.Rptr. 350).  (Emphasis added.)

Cinderella analysis falls into the category of accepted techniques;  observations, simple measurements and deductive reasoning, all within the comprehension of the jury, applied to solve a new dimension on an old problem.

The process is one of finding “a sufficient number of similar identifying characteristics to afford a basis for a reliable comparison” (State v. Mark (Iowa 1979) 286 N.W.2d 396, 409).   The person making the comparison typically looks for a number of distinctive features that permit such a comparison.   Measurements are the most obvious feature (see People v. McCurdy (1886) 68 Cal. 576, 582–583, 10 P. 207;  People v. Martinez (1916) 31 Cal.App. 413, 417, 160 P. 868).   Wear patterns are similarly distinctive (see State v. Kelly (1974) 111 Ariz. 181, 526 P.2d 720, 726–727;  People v. Wynkoop (1958) 165 Cal.App.2d 540, 544, 331 P.2d 1040;  People v. Houser (1948) 85 Cal.App.2d 686, 691, 193 P.2d 937).   Thus, footprint identification has been uniformly accepted by courts (see e. g., Anno. Footprints as Evidence, 31 A.L.R. 204, § II(a), and cases cited;  2 Wigmore, Evid. (Chadbourne rev. 1979) § 415) in this state for almost a century (People v. Taylor (1935) 4 Cal.2d 495, 496–497, 50 P.2d 796;  People v. Rowell (1901) 133 Cal. 39, 40, 65 P. 127;  People v. Searcey (1898) 121 Cal. 1, 5–6, 53 P. 359;  People v. McCurdy, supra, 68 Cal. pp. 582–583, 10 P. 207;  People v. Wynkoop, supra, 165 Cal.App.2d p. 546, 331 P.2d 1040;  People v. Houser, supra, 85 Cal.App.2d p. 691, 193 P.2d 937;  People v. Hatfield (1933) 129 Cal.App. 162, 165, 168, 18 P.2d 366;  People v. Martinez, supra, 31 Cal.App. pp. 417, 160 P. 868).

Here, the expert who made the Cinderella analysis detailed her research and methods of comparison used.   She testified about her studies, her sources and methodology.   She was cross-examined thoroughly.   Her credentials and methods were before the jury in great detail.   Further, the jury was furnished with the physical evidence used by the expert;  the gravesite shoes, the shoes obtained from defendant, duroplastic casts, measurement-transparencies, inked impressions of defendant's feet, and instructive slides on human foot morphology.   These exhibits were subject to independent verification by the jury.   The jury did not have to accept Dr. Robbins' opinion.   Although Dr. Robbins testified in the instant case for the first time on an inner shoeprint analysis, we conclude that this fact is unimportant in light of her experience in comparison techniques.

We conclude that Dr. Robbins' testimony was properly admitted.   In classic Cinderella fashion, defendant could have been required to put his feet into the gravesite shoes (see People v. Rucker, 26 Cal.3d 368, 380, 162 Cal.Rptr. 13, 605 P.2d 843).   The shoes themselves were simply demonstrative evidence to show that defendant's feet could fit into the gravesite shoes.

 Even assuming, without conceding, that the Kelly standards apply to a Cinderella analysis, they were met as:  1) the reliability of Dr. Robbins' methodology was established;  2) Dr. Robbins was properly qualified as an expert; 8 and 3) the People demonstrated that correct scientific procedures were used.   We note that the other experts testified that based on Dr. Robbins' underlying scientifically accepted methodology, other forensic anthropologists could duplicate Dr. Robbins' comparisons with the same results (cf. People v. Marx, supra, at p. 111, 126 Cal.Rptr. 350.9 ).

 Even if we were to conclude that Dr. Robbins' testimony was improperly admitted, it was harmless.   As discussed below, the record contained overwhelming circumstantial evidence that defendant had killed his wife in their bedroom with the requisite intent.   There is no reasonable probability that a jury would have reached a result more favorable to defendant in the absence of Dr. Robbins' testimony (People v. Watson, 46 Cal.2d 818, 299 P.2d 243;  People v. Basset, 69 Cal.2d 122, 139, 70 Cal.Rptr. 193, 443 P.2d 777;  People v. Johnson, 26 Cal.3d 557, 558, 162 Cal.Rptr. 431, 606, P.2d 738).

We turn next to defendant's challenge that certain evidence was unlawfully seized from his apartment in the execution of a search warrant, as both the warrant and its supporting affidavits were defective in several respects.   Relying on People v. Cook, 22 Cal.3d 67, 93, 148 Cal.Rptr. 605, 583 P.2d 130, defendant asserts that the warrant must be quashed as the omissions and defects were intentional and reckless or at a minimum, certain items should be exercised.   We do not agree.

Defendant first points to six alleged omissions or misstatements in the affidavit executed by Inspector Sparks.   Defendant complains of the following:  1) the description of Wold's entry and observation of the master bedroom did not indicate that Wold took a sample of the carpet after the fire and sent it to the police crime lab;  2) the recital of his conviction for attempted arson did not indicate also that he was acquitted of arson;  3) the description of Jensen's examination of the blood spots in the master bedroom erroneously assumed that all three spots were human blood;  4) the statement that Jensen also found blood on the night stand and dresser omitted the material fact that these items had been in the possession of Mr. and Mrs. Shelton and that the blood stains were in a spray pattern and thus indicated a violent struggle;  5) the statement that the cause of death was an “undetermined traumatic experience” was false since the affiant knew that the cause of death was unknown;  and 6) the affidavit omitted the fact that Ms. Reyna had threatened to kill the victim, although this fact was known to the affiant.

We note that the first three matters were not raised below and, therefore, are not properly before us on appeal (People v. Williams, 16 Cal.3d 663, fn. 4 at p. 667, 128 Cal.Rptr. 888, 547 P.2d 1000).   Even assuming otherwise, each is a hypertechnical assertion of a minor and immaterial matter.   The same is true of defendant's contention concerning the furniture in the possession of the Sheltons, the pattern of the bloodstains, and cause of death.   We agree with the People's assertion that “a supporting affidavit is no place to try a murder case.”

As to Ms. Reyna's threats to kill the victim, under the circumstances these could easily be interpreted as mere jealous confrontations.   Facts in affidavits are to be interpreted in a “common sense” fashion (People v. Superior Court (Brown) 49 Cal.App.3d 160, 165, 122 Cal.Rptr. 459).

The affidavit was complete, detailed and contained sufficient factual content to lead a “prudent person” of “ordinary caution” to entertain a strong suspicion of defendant's guilt based on:  1) the discovery of the victim's body and other gravesite items as described;  2) the discovery of the gravesite shoes was noted, as well as the district attorney's intention to rely on expert testimony in comparing these shoes for purposes of identification with those to be seized from defendant pursuant to the warrant;  3) the full facts surrounding the victim's disappearance on August 24, 1977;  4) the detailed description of the autopsy of the body and resultant findings of injury and cause of death;  5) the circumstances surrounding Wold's visit to the Puluti residence and his discovery of fresh bleach spots on the bedroom carpet;  6) the police reports, fire reports, and records regarding the September 1, 1977, fire and defendant's subsequent conviction for attempted arson were noted in the affidavit;  and 7) criminalist Raymond Jensen's discovery of human blood stains on the victim's furniture and on the cement floor of the bedroom.

 We can only conclude that defendant has failed to show that there were either negligent misstatements or omissions that would require the excising of portions of the affidavit (Theodor v. Superior Court, 8 Cal.3d 77, 101, 104 Cal.Rptr. 226, 501 P.2d 234) or intentional errors that would require quashing the entire warrant (People v. Cook, supra, 22 Cal.3d 67, 85–86, 148 Cal.Rptr. 605, 583 P.2d 130).

 We turn next to defendant's claim that the affidavit was “insufficient on its face” because it failed to specifically state that “60 Stephanie Drive” was his apartment.   This contention is equally without merit.   The pertinent part of the affidavit stated:  “The affiant has, and there is, just, probable and reasonable cause to believe, and he does believe, that there are now in possession of Raymond Luis Puluti, aka Raymond Luci Puluti, DOB:  4/25/30, American—Samoan male, 5'11”, 180 lbs, black hair, brown eyes and in and upon the premises and building known and designated as and commonly called 60 Stephanie Dr., Building A, Apartment 105 A, Salinas California” (emphasis added).   Thus, defendant was named as the person in possession of listed items in the same paragraph as the detailed description of the apartment to be searched.

This statement is one of fact and not one of belief and thus furnished sufficient grounds for a search of defendant's premises.   Thus, we conclude that the allegation of residence was a direct averment under oath of the fact asserted and was properly considered by the magistrate who issued the warrant (People v. Superior Court (Brown), supra, 49 Cal.App.3d 166).

Finally, we turn briefly to defendant's contention concerning the sufficiency of the evidence to support the verdict finding him guilty of second degree murder.   Accordingly, we must review the entire record in the light most favorable to the judgment below to determine if it contains substantial 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, supra, 26 Cal.3d 557, 578, 162 Cal.Rptr. 431, 606 P.2d 738;  Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560;  People v. Lassell, 108 Cal.App.3d 720, 731, 166 Cal.Rptr. 678;  People v. Colver, 107 Cal.App.3d 277, 288, 165 Cal.Rptr. 614).

 Defendant argues that the circumstantial evidence adduced by the People was not “substantial” as he rebutted each of the following circumstances:  1) the blood on the bedroom floor and on the furniture was found almost two years after the victim's disappearance and neither had been in his possession since late 1977;  2) the fire was a result of his attempted suicide;  3) the testimony of Dr. Robbins about the gravesite shoes, the only link between him and the gravesite, was of questionable reliability at best and, in any event, was refuted by his expert.

We do not deem it necessary to detail the evidence set forth in the statement of facts above.   We merely note that the record does not support his contentions.   As to the blood stains, it was clear that as a result of the manner in which the blood stained shelves had been stacked prior to their removal from 1633 Cadiz Circle, the blood stains protected the underlying surface of the other furniture from fire damage.   Thus, there was no basis for defendant's theory of an alternative source for the blood stains.   The jury could reasonably infer that the victim died a violent death at the hands of one who harbored requisite malice aforethought.

There was ample evidence, also from which the jury could reasonably infer that the victim was murdered in the bedroom of her home:  1) many of the gravesite items came from the Puluti residence, including the green sleeping bag, king size pillows and blanket);  2) the large quantity of blood found on each of these items and the furniture;  3) the victim was buried unclothed;  4) defendant testified that he stayed at home waiting for her from the early morning hours of August 24 throughout the day.   He did not testify that any other persons were in the home during that period.

As we have already indicated above, apart from Dr. Robbins' testimony, the gravesite shoes when discovered had the laces tied and socks stuffed inside them, just like the shoes seized from defendant, a former military man.

Further, the evidence of defendant's attempted cover-up, strongly suggesting consciousness of guilt, was overwhelming:  1) his attempt to burn the blood stained bedroom carpet;  2) observations by Wold that “the place was just super clean ․ like a showroom,” the bleached out portion of the bedroom carpet still damp to the touch on September 1;  3) only the bedding was missing while all of the victim's clothes and luggage were present and intact;  4) the officer who examined the trunk of defendant's car one week after the victim was last seen, noted that it was unusually neat and clean “such as a car ․ fresh off the car lot or something.”   None of these incriminating facts were credibly refuted by the defense.   It was for the jury to determine whether defendant set the fire to commit suicide or to destroy evidence.

Defendant also relies on his own testimony and that of Ms. Reyna to rebut the People's case.   The jury impliedly rejected those facts in exercising its duty to arrive at the facts by resolving conflicts in the evidence or inconsistencies in the testimony of witnesses (People v. Ozene, 27 Cal.App.3d 905, 910, 104 Cal.Rptr. 170).   In any event, Ms. Reyna also testified that defendant had informed her in late August 1977, that his wife was “gone” and advised her to be ready to leave with him.   Moreover, defendant's theory does not offer any reasonable explanation for the shoes and other items from the Puluti residence found in the grave.

Defendant's argument also ignores the following uncontroverted testimony from several witnesses:  1) Johnson testified that earlier in the summer of 1977, defendant had said, with reference to the victim, “Bill, that woman has embarrassed me for the last time․ I've got to get rid of her”;  2) Mr. and Mrs. Johansen both testified that defendant and the victim had fought or argued on the night of the latter's disappearance;  3) the testimony of Marie Shelton that when she talked to defendant early in 1978 and asked him:  “Ray, did you kill Margie?” defendant replied, “My God, Marie, I would do anything to change what happened.   They're even trying to nail me with arson.”

On these facts, a reasonable jury could find that the prosecution had sustained its burden of proof, and, therefore, find defendant guilty of second degree murder.

The judgment is affirmed.


1.   At the same time, defendant was acquitted of arson (Pen.Code, § 447a.)

2.   In No. 22281, defendant also has filed a writ of habeas corpus predicated on the declaration from Mrs. Shelton alleging that certain information was withheld by the prosecution.   The writ is discussed in a separate opinion.

3.   At the in limine hearing held to establish the admissibility of Dr. Robbins' testimony, Drs. Graham and Kerley, both of whom had known Dr. Robbins since 1963 and 1965, respectively, testified.   Dr. Graham is a forensic anthropologist at the University of North Carolina whose primary interest is in the area of prehistoric remains.   Dr. Kerley is a Professor of Anthropology at the University of Maryland whose primary interest is in the area of identification of remains.   Both testified that to their knowledge, Dr. Robbins was the only person doing work on human footprint analysis and identification.

4.   Dr. Robbins conducted a battery of tests and performed extensive comparative analysis between the gravesite shoes and three pairs of shoes, one pair of thongs, and several inked footprint impressions obtained from defendant.   She used a grid system consisting of points of measurement devised to analyze the pressure points of the feet.   She explained that she examined 68 “points of shape” within 13 major categories (e. g., toe, ball of foot, heel, arch), took 46 points of measurement and “7 rations” of measurement (e. g., length to width), and made duroplastic casts of the insides of the shoes and clear plastic “transparencies” or “maps” of the inner wear patterns of the shoes.

5.   Officer Terry Jaegers, on rebuttal, testified that upon filing said report, defendant informed him that while at the American Legion Hall on August 23–24, he had a fight or argument with the victim.

6.   He had witnessed this type of suicide during his tour of duty in Vietnam.

7.   The general rules for the admission of a new scientific technique, as stated in Frye, supra, at page 1014, is:  “Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define.   Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.” (Emphasis added.)In Kelly, supra, our Supreme Court reaffirmed its adherence to Frye and set forth the following standards for the admission of testimony based on a new scientific technique:  1) the reliability of the method must be established, usually by expert testimony, and 2) the witness furnishing such testimony must be properly qualified as an expert to give an opinion on the subject;  3) the proponent of the evidence demonstrate that correct scientific procedures were used in the particular case (p. 30, 130 Cal.Rptr. 144, 549 P.2d 1240).As stated in People v. Slone, 76 Cal.App.3d 611, footnote 9, page 624, 143 Cal.Rptr. 61:  “There is no reference to Marx in Kelly in the latter's discussion of the test for admitting scientific evidence.  Marx was decided on December 29, 1975;  no petition was filed for a hearing before the Supreme Court.  Kelly was decided by an opinion filed May 28, 1976.”

8.   As indicated above, even defendant's expert acknowledged Dr. Robbins' pre-eminence in the field of Cinderella analysis.

9.   We caution, however, that our holding is not an endorsement of Cinderella analysis as a scientific method of certain identification, such as finger or voice prints.

TAYLOR, Presiding Justice.

ROUSE and SMITH, JJ., concur.