PEOPLE v. AMUNDSON (1995)

An information charged Wayne Amundson in count one with murder (Pen.Code,1 § 187) 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 again Amundson said he had to do it.   Fernandez bit Amundson and managed to escape.   Amundson did not go to work the next day.

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.

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 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

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

DISCUSSION

IADMISSIBILITY 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 also People v. Reilly (1987) 196 Cal.App.3d 1127, 1134, 242 Cal.Rptr. 496 (hereafter Reilly ).)   Appellate review of a trial court's finding a new scientific technique has been sufficiently established to have gained general acceptance in a particular field is a “mixed question of law and fact subject to limited de novo review․”  (Id. at pp. 1133–1134, 242 Cal.Rptr. 496.)   Thus, we must “review the trial court's determination with deference to any and all supportable findings of ‘historical’ fact or credibility, and then decide as a matter of law, based on those assumptions, whether there has been general acceptance.  [Citations.]”  (Id. at p. 1135, 242 Cal.Rptr. 496.)

Our limited de novo review does not require that we decide whether the new scientific technique “ ‘․ is reliable as a matter of “scientific fact,” but simply whether it is generally accepted as reliable by the relevant scientific community’․”  (Reilly, supra, 196 Cal.App.3d at p. 1152, 242 Cal.Rptr. 496.)   Simply stated, we must “conduct a ‘fair overview’ of the subject, sufficient to disclose whether ‘scientists significant either in number or expertise publicly oppose [a technique] as unreliable.’   [Citation.]”  (People v. Brown (1985) 40 Cal.3d 512, 533, 230 Cal.Rptr. 834, 726 P.2d 516, reversed on unrelated grounds in California v. Brown (1987) 479 U.S. 538, 107 S.Ct. 837, 93 L.Ed.2d 934;  see also People v. Wallace (1993) 14 Cal.App.4th 651, 658–659, 17 Cal.Rptr.2d 721.)   In this regard, we primarily examine the trial record which undoubtedly provides “the interpretive assistance of qualified live witnesses” to unravel the nature of the scientific consensus or dispute on technically complex subjects.  (Reilly, supra, 196 Cal.App.3d at pp. 1134–1135, 242 Cal.Rptr. 496.)   We may also consult relevant decisions from other jurisdictions as well as sources such as scientific literature to the extent they can provide us with useful information on the scientist consensus of the technique at issue.  (Ibid.)

 1. The trial record

 In finding there is “general acceptance” of the PCR technique of DNA testing, the court here relied on the rulings of several other judges in unrelated cases as well as the testimony of qualified expert witnesses introduced through transcripts of Kelly hearings in three of those cases.   According to the 1990 testimony of forensic serologist Dr. Edward Blake, PCR technology is reliable, it can produce accurate and reliable DNA typing when used with forensic samples and the forensic science community has generally accepted the reliability and validity of PCR technology on evidentiary material.  (People v. Mack (Super.Ct. Sacramento County, 1990, No. 86116).)   Two years later, Dr. Blake testified PCR is the most commonly used technology in biomedical research and has to a large extent replaced the RFLP procedure.   The number of laboratories using PCR for forensic testing increased from three in 1990 to at least nine in 1992.  (People v. Jones (Muni.Ct. San Diego County, 1995, No. F140133/P14504).)

Dr. Henry Erlich, a research geneticist, testified forensic PCR technology, including DNA extraction, amplification and typing, is accepted in the biomedical community.  (People v. Mack, supra, No. 86116.)   Pathologist Raymond Teplitz testified the use of PCR technology with evidentiary material from crime scenes of unknown sources with unknown contamination is a “useful technique.”  (Id.)  Dr. Stephen Daiger testified PCR technology is widely accepted in the scientific community if used appropriately and is a reliable and useful technique in forensics with appropriate controls, properly trained personnel and appropriate facilities.  (Id.)  According to forensic biology researcher Dr. George Sensabaugh, PCR technology for genetic typing is generally accepted in the scientific community.  (Id.)  Dr. Norman Arnheim, professor of molecular biology, testified PCR methodology, properly used by trained individuals, produces reliable results and is accepted by scientists as valid and reliable.  (Id.)

 2. Judicial decisions

Although no published appellate court opinion has addressed the admissibility of PCR analysis in California under Kelly, courts in several other jurisdictions have concluded the technique is generally accepted as being scientifically reliable and thus admissible in a criminal case.   In this regard, the Supreme Court of Virginia noted:

“The Commonwealth introduced the testimony of two witnesses with respect to the reliability of PCR DNA amplification.   Dr. Edward T. Blake, a forensic serologist from California, had conducted the tests and described the process.   Dr. Haig Kazazian, a pediatrician and board-certified geneticist from the Johns Hopkins University School of Medicine also described the technique.   Both were qualified as experts by the court, and both testified that the PCR DNA technique was scientifically reliable.   The theory was conceived about ten years ago and has become one of the most widely-used technical procedures in molecular biology since 1985, being used in many diagnostic applications having ‘life or death’ implications.”  (Spencer v. Com., supra, 393 S.E.2d at p. 620.)

(See also State v. Gentry (1995) 125 Wash.2d 570, 888 P.2d 1105 [PCR technique generally accepted in relevant scientific community];  State v. Russell (1994) 125 Wash.2d 24, 882 P.2d 747 [PCR admissible in murder prosecution under Frye standard];  State v. Moore (Mont.1994) 885 P.2d 457 [PCR results sufficiently reliable for forensic use];  State v. Grayson (Minn.Dist.1994) 1994 W.L. 670312 [PCR test generally accepted by forensic community];  Clarke v. State (Tex.App.1991) 813 S.W.2d 654 [PCR test admissible under relevancy standard consistent with Frye ];  Seritt v. State (Ala.Crim.App.1994) 647 So.2d 1 [PCR generally accepted by scientific community and found to be reliable];  State v. Williams (1991) 252 N.J.Super. 369, 599 A.2d 960 [PCR accepted by scientific community and sufficiently reliable to be admissible in murder prosecution];  State v. Lyons (1993) 124 Or.App. 598, 863 P.2d 1303 [no dispute PCR method is generally accepted by scientific community and appropriate for forensic use];  People v. Groves (Colo.Ct.App.1992) 854 P.2d 1310;  Trimboli v. State (Tex.Crim.App.1992) 826 S.W.2d 953.)

 3. Scientific literature

In reviewing the scientific literature, our “goal is not to decide the actual reliability of the new technique, but simply to determine whether the technique is generally accepted in the relevant scientific community․”  (People v. Barney (1992) 8 Cal.App.4th 798, 810, 10 Cal.Rptr.2d 731 (hereafter Barney ).)   We “view such writings as ‘evidence,’ not of the actual reliability of the new scientific technique, but of its acceptance vel non in the scientific community․”  (People v. Shirley (1982) 31 Cal.3d 18, 55–56, 181 Cal.Rptr. 243, 723 P.2d 1354.)   The People have cited 45 scientific articles addressing the use of PCR analysis to show the technique is generally accepted as reliable.   Those articles, many of which are published in peer-review journals, describe forensic applications of PCR testing, its successful performance and its reliability in forensic identification.  (See, e.g., Blake et al., Polymerase Chain Reaction (PCR) Amplification and Human Leukocyte Antigen (HLA)–DQa Oligonucleotide Typing on Biological Evidence Samples:  Casework Experience (1992) 37 J. Forensic Sciences 700 [summarizing 198 cases involving PCR testing of bloodstains, semen stains, individual hairs, bone fragments and tissue sections] );  Reynolds and Sensabaugh, Analysis of Genetic Markers in Forensic DNA Samples Using Polymerase Chain Reaction (1991) 63 Analytical Chem. 2 [addressing potential problems of mixed, degraded and contaminated samples and concluding these do not undermine use of PCR in forensic testing].)

 4. The National Research Council (NRC) and Office of Technology Assessment (OTA) reports

Amundson asserts the 1992 NRC report,⁸ representing the view of a true cross-section of scientists, concludes PCR testing as applied to forensic identification is not generally accepted as reliable by the relevant scientific community.  (NRC rep. at pp. 2–21.)   That report discusses “technical issues in PCR-based methods” such as potential contamination problems and recognizes the potential for introduction of new “unreliable kits and the misuse of kits.”  (Id. at pp. 68–69.)   In a “summary” statement, the report observes, in part, “PCR analysis is extremely powerful in medical technology, but it has not yet achieved full acceptance in the forensic setting․”  (Id. at p. 70.)

The NRC report does not undermine a finding of general acceptance of PCR analysis.   Since that report was written, the reliability of PCR testing for forensic use has consistently been proven by the testimony of experts, hundreds of authoritative scientific articles and other literature supporting this testing technique, and by the overwhelming acceptance of PCR testing in dozens of judicial decisions.   Further, the potential for contamination and misuse of testing kits “is present in the collection, identification and retention of most forms of forensic-type evidence.   The potential for contamination [or misuse of kits] presents an ‘open field’ for cross-examination at trial, but does not indicate that the PCR method is inappropriate for forensic use.”  (State v. Lyons, supra, 863 P.2d at p. 1309.)

 Moreover, the report's observation that PCR analysis has not yet achieved “full acceptance” for forensic use is not a valid criticism under the admissibility standards of Kelly.   A new scientific technique need only have gained “general acceptance” in the relevant scientific field.  (Kelly, supra, 17 Cal.3d at p. 30, 130 Cal.Rptr. 144, 549 P.2d 1240;  People v. Shirley, supra, 31 Cal.3d at pp. 55–56, 181 Cal.Rptr. 243, 723 P.2d 1354.)   “Indeed, if scientific unanimity of opinion were necessary, very little scientific evidence, old or new, could be used.”  (Spencer v. Com., supra, 393 S.E.2d at p. 621.)

Amundson claims the 1990 OTA report ⁹ shows scientists' enthusiasm for the forensic use of PCR testing is “tempered” and recognized disagreement within the scientific community about the general utility of PCR in forensic application.   However, as we noted with respect to the NRC report, the reliability of PCR testing for forensic use has consistently been proven since the OTA report was written.   Moreover, the report itself notes “PCR has been successfully applied to a variety of forensic samples.”   It sets forth at its beginning the consensus conclusion that forensic application of DNA technology is reliable and describes “questions about the validity of DNA typing” as “red herrings that do the courts and the public a disservice.”  (OTA rep. at pp. 7–8, 59.)   Thus, the OTA report does not show scientist consensus opposes PCR technology as unreliable.

 5. Protocol followed by SERI in this case

 For the first time in his reply brief, Amundson argues the People failed to show the protocol followed by SERI in utilizing the PCR technique for forensic identification has been generally accepted as reliable by the scientific community.   In support of this argument, Amundson cites Pizarro, supra, 10 Cal.App.4th at pages 75–77, 12 Cal.Rptr.2d 436.

In Axell, the court held proof that correct scientific procedures were used in a particular case must be established as part of the admissibility test under Kelly.   The Axell court concluded the procedures used by Cellmark in its RFLP analysis were the ones generally accepted as reliable in the scientific community.  (Axell, supra, 235 Cal.App.3d at p. 862, 1 Cal.Rptr.2d 411.)

In Pizarro, an expert from the Federal Bureau of Investigation (FBI) testified about its RFLP tests and the statistical significance of the results.   On appeal, the appellant argued the prosecution had failed to show such forensic analysis is generally accepted in the relevant scientific community as required by Kelly.  (Pizarro, supra, 10 Cal.App.4th at p. 66, 12 Cal.Rptr.2d 436.)

The court discussed admissibility of new scientific techniques under Kelly and held the “correctness” of the technique is one of the requirements because that factor is “implicit in the determination of the reliability of the method.”  (Pizarro, supra, 10 Cal.App.4th at p. 75, 12 Cal.Rptr.2d 436.)   While acknowledging the version of RFLP analysis undertaken by Cellmark in Axell was reliable under Kelly, the Pizarro court concluded there was no adequate showing the testing procedures and population data base used by the FBI were essentially the same methodology as Cellmark's or that the FBI's methodology was considered reliable.  (Pizarro, supra, 10 Cal.App.4th at p. 77, 12 Cal.Rptr.2d 436.)   Thus, the court remanded the case to allow the trial court to conduct a “ ‘full blown’ ” Kelly hearing as to whether there is general acceptance in the scientific community of the DNA testing method and the data base used by the FBI.  (Pizarro, supra, 10 Cal.App.4th at p. 95, 12 Cal.Rptr.2d 436.) ¹⁰

Here, the prosecution made the following offer of proof that the correct scientific procedures were used in performing the PCR analysis:  Gary Harmor from SERI performed the testing;  Harmor works with Brian Wraxall, the director of SERI, who testified in People v. Roybal (Super.Ct. San Diego County, 1992, No. CRN20596), in which PCR evidence was admitted following a Kelly hearing;  Harmor used the identical testing procedures used by Wraxall as described in Roybal;  these testing procedures were also identical to those used by Dr. Blake in his laboratory, Forensic Science Associates (FSA), as described by his testimony in People v. Mack, supra, No. 86116, and People v. Jones, supra, No. F140133/P14504;  the particular form of PCR testing using the genetic marker DQ alpha is done with a kit by both SERI and FSA;  and the kit is identical as to how it is used in both laboratories such that the procedures used by Dr. Blake are the same as those used by Harmor and Wraxall.   The court accepted the offer of proof subject to any later objection if the evidence did not show the protocols were proper or the correct scientific procedures were used.

At trial, Harmor testified SERI primarily does PCR testing and has done so since 1990.¹¹  He described the procedures of PCR analysis he used as well as the quality control measures taken as part of engaging in each step of the analysis.   Having performed the PCR test in this case, he concluded the same genetic markers in White's vaginal swab occurred in Amundson's blood.   The data he used to calculate the frequency of this occurrence came from published studies used by SERI.   Amundson did not challenge the actual testing procedures followed.   Rather, on cross-examination, defense counsel questioned Harmor about particular aspects of the test and other points unrelated to the Kelly inquiry.  (See People v. Fierro (1991) 1 Cal.4th 173, 215, fn. 12, 3 Cal.Rptr.2d 426, 821 P.2d 1302 [defendant waived objection on appeal by failing to challenge serological testing procedures used by People's expert].)

We conclude the prosecution established correct scientific procedures were used in this case.   Harmor's testimony on the particular method followed in his PCR analysis, coupled with evidence that same method was deemed reliable after having undergone its own Kelly scrutiny in other cases, show the procedures were the ones generally accepted in the scientific community.   (Axell, supra, 235 Cal.App.3d at p. 862, 1 Cal.Rptr.2d 411;  cf.   Pizarro, supra, 10 Cal.App.4th at pp. 76–78, 12 Cal.Rptr.2d 436.)

 6. Conclusion

Our limited de novo review leads us to conclude the court properly admitted evidence of PCR testing.   Based on the trial record, relevant caselaw from other jurisdictions and the scientific literature, we hold PCR analysis for forensic purposes is sufficiently established to have gained general acceptance in its field, the testimony with respect to the technique and its application was offered by properly qualified experts and correct scientific procedures have been used in this particular case.

II

ADMISSIBILITY OF RFLP ANALYSIS

Amundson contends the court erred in admitting evidence of RFLP testing.   He asserts the statistical portion of the test,¹² as performed by Cellmark, has not gained general acceptance in the relevant scientific community and should have been excluded for failing to meet the Kelly test of admissibility.   Thus, he argues, without this step in the analysis, the remainder of the RFLP evidence was irrelevant and likewise inadmissible.

 1. Statistical calculation step 13

 The third and final step in RFLP analysis is the determination of the statistical significance of a “match” of DNA banding patterns.   In performing this step, Cellmark attempts to show how likely, or unlikely, it would be that the crime scene samples came from a third party who had the same DNA banding pattern as the suspect.   In so doing, Cellmark calculates how frequently each pair of bands produced by one probe is found in a target population.   This is accomplished by assigning each band to a category comprising a defined range of base pair lengths (a bin) and then determining how often bands within that bin appear in a data base composed of persons of a given race.   (Barney, supra, 8 Cal.App.4th at p. 809, 10 Cal.Rptr.2d 731.)

The statistical significance of a match, or the frequency with which an entire pattern of bands occurs in a target population, is determined by Cellmark using a series of calculations.   When four sets of bands have been produced, the two frequencies for each set of bands (as calculated using the bin method) are multiplied together and the result is multiplied by two using a version of a standard population genetics equation referred to as the “Hardy–Weinberg” equation.   The resulting four numbers are then multiplied together using the “product rule” to reflect the total frequency with which the entire DNA pattern appears in the target population.  (Barney, supra, 8 Cal.App.4th at p. 809, 10 Cal.Rptr.2d 731.)

 2. The debate

Amundson asserts a dispute exists among experts as to whether the Hardy–Weinberg equation may be used due to the potential for “genetic substructuring” ¹⁴ and whether the product rule may be used in light of questions regarding linkage equilibrium.   In support of this assertion, he cites a 1991 scientific journal and the NRC report.   He also cites Barney, supra, 8 Cal.App.4th at pages 820–821, 10 Cal.Rptr.2d 731, for the proposition the statistical portion of RFLP analysis has not been generally accepted in the relevant scientific community and thus does not meet the Kelly standard of admissibility.

In Axell, decided in October 1991, the court heard testimony that overcame defense fears about the possibility of substructuring in RFLP analysis and held Cellmark's methodology of calculating the statistical probability of a coincidental match was generally accepted in the scientific community.   (Axell, supra, 235 Cal.App.3d at pp. 867–868, 1 Cal.Rptr.2d 411.)   Accordingly, the court concluded, “[a]ny question or criticism of the size of the data base or the ratio pertains to weight of the evidence and not to its admissibility.”  (Id. at p. 868, 1 Cal.Rptr.2d 411.)

The December 1991 edition of the journal Science contained an article by Professors Richard C. Lewontin and Daniel L. Hartl attacking the failure of DNA statistical calculation analysis to account for substructuring.   (Lewontin & Hartl, Population Genetics in Forensic DNA Typing (Dec. 20, 1991) Science, at p. 1745.)   That same issue of Science contained another article by Professor Ranajit Chakraborty and Dr. Kenneth Kidd defending the practice of performing statistical calculations of probability estimates without regard to substructuring.  (Chakraborty & Kidd, The Utility of DNA Typing in Forensic Work (Dec. 20, 1991) Science, at p. 1735.)   The 1992 NRC report, while acknowledging substructuring was controversial, made no attempt to resolve that controversy.   Instead, the report assumed “for the sake of discussion” substructuring existed and suggested ways to ensure probability estimates made as part of the statistical calculation step would be sufficiently conservative to account for it.  (NRC rep., supra, at pp. 12–15, 79–85.)

Eight months after the Science articles appeared, the court in Barney, supra, 8 Cal.App.4th 798, 10 Cal.Rptr.2d 731, concluded the mere existence of debate rendered the entire subject of RFLP analysis inadmissible under Kelly.   Citing the Science articles and the NRC report, the Barney court said:  “Whatever the merits of the prior decisions on the statistical calculation process—including Axell—the debate that erupted in Science in December 1991 changes the scientific landscape considerably, and demonstrates indisputably that there is no general acceptance of the current process․  Simply put, Axell has been eclipsed on this point by subsequent scientific developments․”  (Barney, supra, 8 Cal.App.4th at pp. 820–821, 10 Cal.Rptr.2d 731.)

 3. Barney eclipsed

Since Barney was decided, the scientific landscape has once again changed.   The editor of Science has clarified that “peer reviewers” and “several geneticists at the October 1991 International Congress of Human Genetics” have pointed out “some of Lewontin's and Hartl's more theoretical arguments were not adequately supported by data.”  (Koshland, Letters, (Feb. 28, 1992) Science, p. 1053.)   This lack of data, and the fact Lewontin and Hartl refused Science's suggestion to publish their article as an “opinion piece,” led to Science's decision to publish a peer-reviewed article pointing out the flaws.  (Ibid.)

The possibility of substructuring raised by Lewontin and Hartl in their article has been recognized and rejected by a well-informed consensus of the scientific community in prior cases.   Indeed, several courts that heard Lewontin's and Hartl's testimony on the subject have concluded the statistical calculations using the product rule were admissible and that Lewontin's and Hartl's theory did not represent a consensus viewpoint of the scientific community.  (See U.S. v. Yee (N.D.Ohio 1991) 134 F.R.D. 161, 205–206;   U.S. v. Jakobetz (2d Cir.1992) 955 F.2d 786, 799–800;  U.S. v. Bonds (6th Cir.1993) 12 F.3d 540, 565.)

In February 1993, the FBI published the results of a worldwide study of population data prepared by its laboratory division.   The study acknowledges the concerns about hypothetical problems raised by Lewontin and Hartl in 1991 and the NRC report in 1992.   Nevertheless, it rebuts their assumption that population subgroups affect DNA probability estimates to a defendant's disadvantage.   Based on empirical evidence, the study concludes, in part, ethnic or geographic subdivisions do not substantially affect forensic estimates of the likelihood occurrence of a DNA profile.   Further, those estimates derived by the current practice of employing the multiplication rule and using general population databases are reliable, valid, meaningful and without forensically significant consequences.  (See IA U.S. Dept. Justice FBI Rep. VNTR Population Data;  A Worldwide Study (1993) p. 2.)

In the October 27, 1994, edition of Nature magazine, Eric Lander, a prominent early critic of DNA profiling, and Bruce Budowle, one of the principal architects of the FBI's DNA program, declared the DNA controversy to be over and proposed to correct the “lingering impression to the contrary.”  (Lander & Budowle, DNA Fingerprinting Dispute Laid to Rest (Oct. 27, 1994) Nature, at p. 735.)   The article concludes:

“Most of all, the public needs to understand that the DNA fingerprinting controversy has been resolved.   There is no scientific reason to doubt the accuracy of forensic DNA typing results, provided that the testing laboratory and the specific tests are on a par with currently practiced standards in the field.   The scientific debates served a salutary purpose:  standards were professionalized and research stimulated.   But now it is time to move on.”  (Id. at p. 738.)

 4. Judicial decisions

Courts from numerous other jurisdictions have, under varying standards of admissibility, upheld the admissibility of the statistical portion of DNA testing.  (See, e.g., Prater v. State (1991) 307 Ark. 180, 820 S.W.2d 429;  State v. Montalbo (1992) 73 Haw. 130, 828 P.2d 1274;  People v. Johnson (1994) 262 Ill.App.3d 565, 199 Ill.Dec. 931, 634 N.E.2d 1285;  People v. Stremmel (1994) 258 Ill.App.3d 93, 197 Ill.Dec. 177, 630 N.E.2d 1301;  Woodcox v. State (Ind.1992) 591 N.E.2d 1019;  State v. Brown (Iowa 1991) 470 N.W.2d 30;  State v. Dykes (1993) 252 Kan. 556, 847 P.2d 1214;  People v. Adams (1992) 195 Mich.App. 267, 489 N.W.2d 192;  People v. Wesley (1994) 83 N.Y.2d 417, 611 N.Y.S.2d 97, 633 N.E.2d 451;  State v. Futrell (1993) 112 N.C.App. 651, 436 S.E.2d 884;  State v. Pierce (1992) 64 Ohio St.3d 490, 597 N.E.2d 107;  Kelly v. State (Tex.1992) 824 S.W.2d 568;  and Satcher v. Com. (1992) 244 Va. 220, 421 S.E.2d 821.)

 5. Conclusion

In light of the FBI study, the recent scientific literature and judicial decisions from other jurisdictions, we have come full circle to conclude, like the court in Axell, “the method used by Cellmark ․ to arrive at its data base and statistical probabilities [is] generally accepted in the scientific community.” ¹⁵  (Axell, supra, 235 Cal.App.3d at p. 868, 1 Cal.Rptr.2d 411.)   Because this evidence satisfies Kelly, the court properly admitted it at trial.

III

EVIDENCE CODE SECTION 352

Amundson contends the court erred in admitting DNA evidence because its probative value was outweighed by its prejudicial effect.   He asserts the skepticism voiced by eminently qualified experts in the relevant scientific community as to both PCR and RFLP procedures and the continuing debate as to proper protocols to be used show DNA testing is not reliable in a forensic setting and thus the inferences to be drawn from this evidence are speculative and the probative value of the evidence is weak and has a unique potential for prejudice due to its “aura of infallibility.”

 Under Evidence Code section 352, “[t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, or confusing the issues, or of misleading the jury.”   Whether to exclude or admit evidence under this section is addressed to the discretion of the trial court whose decision will not be disturbed on appeal absent a clear showing of abuse of that discretion.  (People v. Cudjo (1993) 6 Cal.4th 585, 609, 25 Cal.Rptr.2d 390, 863 P.2d 635.)

Following Amundson's objection to DNA evidence under Evidence Code section 352, the trial court was required to, and did, weigh prejudice against probative value.  (People v. Wright (1985) 39 Cal.3d 576, 582, 217 Cal.Rptr. 212, 703 P.2d 1106;  People v. Edelbacher (1989) 47 Cal.3d 983, 1016, 254 Cal.Rptr. 586, 766 P.2d 1.)   The court found the probative value of the DNA evidence was great and the evidence was not unduly prejudicial or time consuming.

 1. Probative value

 As we previously concluded, both PCR and RFLP testing and their results were the product of generally accepted scientific theory and technique and thus were properly admitted under Kelly.   Contrary to Amundson's assertion, the inferences to be drawn from the DNA evidence were neither unreliable nor speculative.   Indeed, the DNA evidence had substantial probative value because it tended to show Amundson could not be excluded as White's killer.  (See People v. Farmer (1989) 47 Cal.3d 888, 912, 254 Cal.Rptr. 508, 765 P.2d 940 [probative value of expert testimony that footprint impressions were made by defendant's boots was substantial].)   As the trial court noted, “the most fanciful of notions” are routinely presented to jurors under the guise of psychotherapy, psychological, psychiatric and eyewitness identification testimony.

 2. Prejudicial effect

 Evidence Code section 352 uses the word “prejudice” in its etymological sense of prejudging a person or cause on the basis of extraneous factors.  (People v. Farmer, supra, 47 Cal.3d at p. 912, 254 Cal.Rptr. 508, 765 P.2d 940.)  “ ‘[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant's case.   The stronger the evidence, the more it is “prejudicial.”   The “prejudice” referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.   In applying [Evidence Code] section 352, “prejudicial” is not synonymous with “damaging.” ’  [Citation.]”  (People v. Karis (1988) 46 Cal.3d 612, 638, 250 Cal.Rptr. 659, 758 P.2d 1189.)

 The DNA evidence, while damaging to Amundson's case, did not tend to evoke an emotional bias against him as an individual and manifestly, had a significant effect on the issue of identification of the perpetrator.   Moreover, although Amundson fears “ ‘[s]cientific proof may in some instances assume a posture of mystic infallibility in the eyes of a jury,’ ” (Kelly, supra, 17 Cal.3d at p. 31, 130 Cal.Rptr. 144, 549 P.2d 1240), Kelly scrutiny was intended to address this precise point in the first instance and to assure the reliability of new scientific methods before they may be admitted into evidence.   Nor, as Amundson claims, does the complex nature of the evidence make it inherently prejudicial, especially where the results of the testing methods are expressed to the jury in easily understood terms.   The court properly found the probative value of the DNA evidence was not outweighed by its potentially prejudicial effect.

DISPOSITION

The judgment is affirmed.

FOOTNOTES

FOOTNOTE.  

FN1. All statutory references are to the Penal Code unless otherwise specified..  FN1. All statutory references are to the Penal Code unless otherwise specified.

2.   The court later dismissed the lying in wait special circumstance.

3.   While Amundson lived with the Suarez family on the Pala Indian Reservation, he told Mrs. Suarez the reservation was a dumping site for bodies after crimes were committed.

4.   The test in California for the admissibility of evidence based on the application of a new scientific technique has traditionally been referred to as “Kelly /Frye. ”   However, the United States Supreme Court has recognized Frye was abrogated by the Federal Rules of Evidence.  (Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469.)   Although the California Supreme Court declined to revise the Kelly /Frye test, it suggested that test now be referred to simply as the “Kelly ” formulation.  (People v. Leahy (1994) 8 Cal.4th 587, 591, 34 Cal.Rptr.2d 663, 882 P.2d 321.)   We follow that suggestion in this opinion.

5.   For a general explanation of DNA and more specifically RFLP analysis, see People v. Axell (1991) 235 Cal.App.3d 836, 845–848, 1 Cal.Rptr.2d 411 (hereafter Axell ).

6.   For a detailed explanation of the PCR process, see Spencer v. Com. (1990) 240 Va. 78, 393 S.E.2d 609, 620 and State v. Williams (1991) 252 N.J.Super. 369, 599 A.2d 960, 966.

7.   The Kelly rule tests only the fundamental validity of a new scientific method rather than the degree of professionalism with which it is applied.   Accordingly, careless testing “ ‘affects the weight of the evidence and not its admissibility, which must be attacked on cross-examination or by other expert testimony.’  [Citation.]”  (People v. Cooper (1991) 53 Cal.3d 771, 814, 281 Cal.Rptr. 90, 809 P.2d 865.)   Similarly, criticism of any “specific methodology” goes to the weight, not the admissibility, of the evidence.  (Id. at pp. 812–813, 281 Cal.Rptr. 90, 809 P.2d 865.)   Amundson does not challenge the degree of professionalism or the specific methodology used in this case.   Rather, he claims the particular method followed was never shown to be reliable.   (See People v. Pizarro (1992) 10 Cal.App.4th 57, 77, 12 Cal.Rptr.2d 436 (hereafter Pizarro).)

8.   NRC, DNA Technology in Forensic Science (1992) (hereafter NRC report).

9.   United States Congress, OTA, Genetic Witness:  Forensic Uses of DNA Tests (July 1990) (hereafter OTA report).

10.   In contrast to the court in Pizarro, the court in Barney noted a hearing on whether correct scientific procedures were used, the so-called third prong of the Kelly inquiry, should “not approach the level of complexity of a full-blown Kelly[ ] hearing in which the question of general acceptance is litigated.   All that is necessary in the limited third-prong hearing is a foundational showing that correct scientific procedures were used.”  (Barney, supra, 8 Cal.App.4th at p. 825, 10 Cal.Rptr.2d 731; fn. omitted).

11.   The court found Harmor was qualified to testify as an expert, particularly in PCR analysis of DNA.

12.   The RFLP method of DNA testing consists of three steps:  processing, matching and statistical calculation.  (See generally, Axell, supra, 235 Cal.App.3d at pp. 844–848, 1 Cal.Rptr.2d 411;  Barney, supra, 8 Cal.App.4th at pp. 805–810, 10 Cal.Rptr.2d 731.)   Amundson does not take issue with the first two steps of the RFLP analysis.

13.   Preliminarily, we note the trial court ruled this step was not subject to Kelly scrutiny because it implicates only statistical probability, not scientific technology.   This point was rejected in Axell, supra, 235 Cal.App.3d at page 867, 1 Cal.Rptr.2d 411, and Barney, supra, 8 Cal.App.4th at pages 817–818, 10 Cal.Rptr.2d 731.   For the reasons expressed in those cases, we agree that the general acceptance requirement of Kelly applies to the statistical calculation step of DNA analysis.   Nevertheless, as we shall conclude, the determination of a match's statistical significance has received general scientific acceptance and thus that evidence was properly admitted here.

14.   Simply stated, genetic substructuring occurs when “ethnic subgroups within each data base ․ mate endogamously (i.e., within a specific subgroup) with persons of like religion or ethnicity or who live within close geographical distance.   Such endogamous mating tends to maintain genetic differences between subgroups․  As a result, the subgroups may have substantial differences in the frequency of a given DNA fragment—or VNTR allele—identified in the processing step of DNA analysis.   A given VNTR allele may be relatively common in some subgroups but not in the broader data base.  [Citation.]”  (Barney, supra, 8 Cal.App.4th at p. 815, 10 Cal.Rptr.2d 731.)

15.   The California Supreme Court recently granted review on this issue in three cases:  People v. Venegas (1995) 31 Cal.App.4th 234, 36 Cal.Rptr.2d 856;  People v. Wilds (1995) 31 Cal.App.4th 636, 37 Cal.Rptr.2d 351;  and People v. Soto (1994) 30 Cal.App.4th 340, 35 Cal.Rptr.2d 846.

MIDLAM, Associate Justice Assigned.* FN* Assigned by the Chairperson of the Judicial Council.

WORK, Acting P.J., and BENKE, J., concur.