ON THE VALIDITY OF DNA TESTING

• DOI: http://doi.org/10.1111/j.174-1617.1993.tb00286.x
• Date: 01 January 1993
• Published date: 01 January 1993

OPINION

ON

THE VALIDITY

OF

DNA TESTING

The

People

v.

Lynda

Axell

CERTIFIED FOR PUBLICATION

IN

THE

COURT

OF

APPEAL OF

THE

STATE

OF

CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE

PEOPLE,

)

2d Crim. No. B046327

Super. Ct. No. CR 2391

I

)

V.

1

LYNDA PATRICIA AXELL,

)

1

Defendant and Appellant.

)

)

Plaintiff and Respondent,

)

(Ventura County)

The issue presented is one of first impression in this state: does DNA

typing evidence meet the legal requirements for admissibility of novel

scientific evidence and, if

so,

whether the basis for the calculation of

statistical probability employed by the testing laboratory, Cellmark in this

case, satisfied the foundation requirements

of

People v. Collins. We answer

both questions in the affirmative.

Lynda Axell appeals from a judgment of conviction of first degree murder

(Pen. Code, 187, subd. (a)) and attempted robbery (Pen. Code, 664/211) after

court trial. She challenges the court’s ruling on admissibility of DNA testing

results, alleges she was deprived

of

due process by admission of this evi-

dence, and attacks her conviction as lacking substantial evidentiary support.

Following a preliminary hearing at which appellant was held to answer,

the Ventura County Superior Court held lengthy hearings between March and

August of 1989, to determine the admissibility of DNA testing results. The

court ruled that the results

of

the DNA testing procedures, as well as statistics

of probability concerning those results, were admissible.

The parties stipulated to a court trial on the basis

of

the preliminary hearing

transcript, a tape recording of an interview between appellant’s father and

FAMILY

AND CONCILIATION COURTS

REVIEW,

Vol.

31

No.

1,

January

1993

108-135

108

OPINION

ON

VALIDITY

OF

DNA

TESTING

109

Ventura Police Department officers,

the

transcript of all

the

proceedings in

the superior court, and all exhibits introduced and stipulations entered into

during those proceedings. The court found appellant not guilty of burglary,

but guilty of first degree murder and attempted robbery.

FACTS

The Offense

February

24,

1988,

at approximately

8

a.m., Christine Kilho, a cook at

Top Hat Burger in Ventura, saw a person with dark hair three or four inches

below the shoulder walk away from the Top Hat with head down, wearing a

wide brimmed hat and carrying an object under the

arm.

Upon entering the

restaurant, she saw the body of George White, who customarily opened the

restaurant in the morning, lying among boxes in a

pool

of

blood.

Blood was

smeared and spattered in virtually every area of the building. Long hair was

found throughout the premises including in the blood on the wall near the

victim’s head. More unknown hairs were found on the victim’s

trousers

and

on his body during autopsy.

Several days later, the owner of the Top Hat, Charlotte Bell, discovered a

few items missing from the restaurant. Although

White

usually

carried

a

wallet, no wallet was found in his pockets at the murder scene, at

his

home,

or in his truck.

Appellant, who had waist-length dark hair, worked in a business, The

Party Place, near the Top Hat and was seen driving away from that area early

on the morning

of

the murder. When interviewed by the police, she said she

had gone to work at The Party Place about

4

a.m., worked until about

8

a.m.,

drove to her mother’s house, showered, went home, changed clothes, took a

nap, awoke late, and finally returned to work around

9:30

a.m. She gave

contradictory statements about whether her roommate Rhonda accompanied

her back to work and whether she had ever been in the Top Hat. She denied

involvement in the crime.

M.,

nine-years-old, caught the bus to school in front of the Top Hat each

day at approximately

7:40

a.m. and would talk to George White. On the

morning of February

24,1988,

M. looked through the window of the Top Hat

to

see

if George was inside and saw a person with grey hair and brownish

skin, wearing a blue and white hat with

“L.A.”

on it, bending down, away

from him. The person shooed

M.

away with a white rag. Several minutes

later,

M.

looked in again but the person was gone.

Although he never saw the full face of the individual,

M.

thought the

person he saw was a man in his forties. During cross-examination, he was

shown a photograph of appellant but did not identify her

as

the person inside.

He had previously picked another person’s photograph from a photographic

lineup.