P. v. Ornelas

Filed 6/8/06 P. v. Ornelas CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Michael G. Bush, Judge.

Marcia C. Levine, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, John G. McLean and Peter W. Thompson, Deputy Attorneys General, for Plaintiff and Respondent.

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On August 19, 2003, an information was filed in Kern County Superior Court, charging appellant Juan Marcos Ornelas with murder involving the personal use of a deadly weapon and committed during the commission or attempted commission of robbery and burglary (Pen. Code,^[1] §§ 187, subd. (a), 190.2, subds. (a)(17)(a) & (a)(17)(g), 12022, subd. (b)(1); count 1); robbery (§ 212.5, subd. (c); count 2); and residential burglary (§ 460, subd. (a); count 3). Count 3 and the burglary-murder special circumstance were subsequently dismissed pursuant to section 995. The jury in appellant's first trial deadlocked and a mistrial was declared.^[2]

At the outset of the second trial, count 2 was dismissed as barred by the statute of limitations. A jury subsequently convicted appellant of first degree murder and found true the robbery-murder special circumstance, but not true the weapon use allegation. Appellant was sentenced to life in prison without the possibility of parole and ordered to pay various fines and restitution, but his sentence was recalled in order to permit the trial court to exercise its discretion, pursuant to section 190.5, subdivision (b), to sentence appellant to 25 years to life in prison based on the fact he was 16 years old at the time of the offense. Appellant was again sentenced to life in prison without the possibility of parole, and this timely appeal followed.

Appellant now challenges admission of certain DNA evidence. For the reasons that follow, we will affirm.

FACTS

In October of 1996, Jose Rogelio Muralles and his family lived on Myrtle Avenue in Lamont. Muralles did housekeeping and general maintenance work at Memorial Hospital in Bakersfield.

At 6:00 a.m. on October 15, 1996, Muralles's body was found in his carport. It appeared there had been a violent struggle. Muralles had been severely beaten about the head and face, and stabbed numerous times. He died from exsanguination due to multiple stab wounds of the neck, torso, and hands. His wallet, which he habitually carried in his front pants pocket, was missing. According to his wife, it should have contained approximately $300.

Supervising criminalist Greg Laskowski seized samples from a large area of blood in, as well as other locations in and around, the carport. In addition, he noticed apparent shoe prints on Muralles's face and in the blood surrounding the body. He followed those prints to a park about half a block away. He collected blood samples from stains on the driveway, at the curb, and from a drinking fountain and playground area in the park.

A pen was found near Muralles's left foot. Various items, including a possible fingertip from a latex glove, were found underneath Muralles's body. No latex gloves were found in the area.

Kern County Sheriff's Sergeant Christopherson had contact with appellant on the evening of the homicide. Appellant had a gaping laceration, which appeared to be a knife wound, on the outside of his left forearm; small puncture wounds, of the type seen on Muralles's body and possibly caused by a stun gun, on his upper back; an abrasion on the back of his right arm; and scrapes on his left wrist. Christopherson also had contact with Alberto Madrigal, who lived near Muralles's residence. Madrigal had deep lacerations – possibly to the bone – on several fingers of his right hand. He also had a cut on the outside of the middle finger of his left hand.

Brenda Smith, a supervising criminalist at the Kern County Regional Crime Laboratory, performed DNA analysis on multiple samples in this case, using the short tandem repeat (STR) method. In STR typing, locations on the DNA molecule that differ from person to person are examined. The DNA nucleotides repeat in a particular sequence a certain number of times, and the number of repeats differs from individual to individual. Thus, one person's DNA will differ from that of another person in that there will be different numbers of short tandem repeats at different locations. Equipment is then used which basically allows the analyst to â€