People v. Dungo12/12/12 SC

Filed 12/12/12
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE, )
)
Plaintiff and Respondent, )
) S176886
v. )
) Ct.App. 3 C055923
REYNALDO SANTOS DUNGO, )
) San Joaquin County
Defendant and Appellant. ) Super. Ct. No. SF100023A
___________________________________ )
ORDER MODIFYING OPINION AND
DENYING PETITION FOR REHEARING
THE COURT:
The opinion in this case, filed October 15, 2012, and appearing at 55 Cal.4th 608,
is modified as follows:
1. The third full paragraph of text on page 613 of 55 Cal.4th is modified to
read:
The police arrested defendant, and he eventually admitted killing Pina. He
said: After he and Pina left the Torres‘s home the night of April 14, 2006,
they argued at Pina‘s home. Pina told him to leave and began throwing
some of his belongings in a box. She punched defendant lightly on the
chin, pushed him, and threw some children‘s toys at him. He grabbed her
by the throat and strangled her. He then wrapped her body in a blanket, put
it in her SUV, and drove around aimlessly, eventually abandoning the SUV
on the Stockton street where the police later found it.
2. Footnote 5, at page 620 of 55 Cal.4th, is modified to read:
Defendant contends that even if the statements in nontestifying Dr.
Bolduc‘s autopsy report lacked the requisite formality, the Sixth
Amendment‘s confrontation right also applies to what Justice Thomas
called ― ‗technically informal statements‘ ‖ if those statements were ― ‗used
to evade the formalized process.‘ ‖ (Williams, supra, 567 U.S. at p. ___,
fn. 5 [132 S.Ct. at p. 2260, fn. 5] (conc. opn. of Thomas, J.).) Defendant
argues that this exception applies here. We need not decide the issue,
however. Justice Thomas has made clear, in the language quoted above,
that any such exception applies only to the formality requirement for
testimonial out-of-court statements. But formality is not enough to make an
extrajudicial statement testimonial; the statement must also have a primary
purpose pertaining to the investigation and prosecution of a crime.
(People v. Lopez, supra, 55 Cal.4th 569, 582 [―all nine high court justices
agree that an out-of-court statement is testimonial only if its primary
purpose pertains in some fashion to a criminal prosecution‖ (italics
added)].) As we will explain (see text discussion, post), the autopsy
statements upon which Dr. Lawrence relied for his opinions had no such
primary purpose.
These modifications do not affect the judgment.
The petition for rehearing is denied.
Corrigan, J., is of the opinion the petition should be granted.
Filed 10/15/12 (unmodified version) (see lead case, S177046, and companion case, S176213, also filed 10/15/12)
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE, )
)
Plaintiff and Respondent, )
) S176886
v. )
) Ct.App. 3 C055923
REYNALDO SANTOS DUNGO, )
) San Joaquin County
Defendant and Appellant. ) Super. Ct. No. SF100023A
___________________________________ )
The Sixth Amendment to the United States Constitution grants a criminal
defendant the right to confront adverse witnesses. This is the second in a trio of cases
before us involving that right. The two companion cases are People v. Lopez (Oct. 15,
2012, S177046) ___ Cal.4th ___, and People v. Rutterschmidt (Oct. 15, 2012, S176213)
___ Cal.4th ___.
At defendant Reynaldo Santos Dungo‘s murder trial, a forensic pathologist
testifying for the prosecution described to the jury objective facts about the condition of
the victim‘s body as recorded in the autopsy report and accompanying photographs.
Based on those facts, the expert gave his independent opinion that the victim had died of
strangulation. Neither the autopsy report, which was prepared by another pathologist
who did not testify, nor the photographs were introduced into evidence. Unlike the Court
of Appeal, we conclude that the expert‘s testimony did not give rise to a right by
defendant to question the preparer of the autopsy report.
1
I
A. Facts
Defendant and Lucinda Correia Pina became romantically involved in 2005. Pina
lived in Stockton, San Joaquin County, and was in the process of divorcing her husband.
Defendant and his daughter also lived in Stockton, but his wife and son were staying with
his wife‘s grandparents in Seaside, Monterey County. Defendant‘s wife viewed this as a
temporary separation, and she talked regularly to defendant, but defendant told Pina that
he and his wife were divorced.
In April 2006, defendant‘s friends noticed that he was exhibiting ―controlling
behavior‖ towards Pina. Pina told friends and relatives that defendant was ―smothering
her‖ and she wanted to end their relationship. That same month, defendant, while at
Pina‘s house, answered a telephone call to Pina from Isaac Zuniga, who had a prior
sexual relationship with Pina; defendant threatened to kill Zuniga if he continued to call
Pina. Later, on April 14, Zuniga told Pina about the call. That evening, defendant and
Pina went to visit Felipe and Angelique Torres. Pina complained to Angelique that
defendant had told Zuniga to stop calling her, and Pina said she was considering raising
the issue with defendant.
The next morning, defendant went to see Pina‘s mother and asked if she knew
where Pina was. Defendant said that while he was at Pina‘s house the previous night,
Pina received a telephone call from Zuniga and then left to meet Zuniga. Pina‘s sport
utility vehicle (SUV) was not at her house. Pina‘s mother then tried repeatedly to reach
Pina on her cellphone, without success. That afternoon, the mother called the police.
Local news media reported Pina‘s disappearance, and they described Pina and her
SUV. Thereafter, a Stockton resident told the police that an SUV matching the
description was parked on her street. Police officers found Pina‘s body in the vehicle.
The police arrested defendant, and he eventually admitted killing Pina. He said:
After he and Pina left the Torres‘s home the night of April 14, 2006, they argued at
2
Pina‘s home. Pina punched defendant lightly on the chin, pushed him, and threw some
children‘s toys at him. She told him to leave and began throwing some of his belongings
in a box. He grabbed her by the throat and strangled her. He then wrapped her body in a
blanket, put it in her SUV, and drove around aimlessly, eventually abandoning the SUV
on the Stockton street where the police later found it.
B. Trial Court Proceedings
Defendant was charged with Pina‘s murder. Before trial, the prosecution informed
the trial court that pathologist George Bolduc, who had performed the autopsy of Pina‘s
body, would not be called as an expert witness. Instead, the prosecution‘s witness would
be forensic pathologist Robert Lawrence, who at the time of trial was Dr. Bolduc‘s
employer.1 The prosecution did not indicate that Dr. Bolduc was unavailable to testify.
Defendant objected to the prosecution‘s proposed substitution of its expert witness and
asked for an evidentiary hearing on the matter. (See Evid. Code, § 402, subd. (b).) The
trial court granted the request.
At the pretrial evidentiary hearing, Dr. Lawrence testified on cross-examination by
the defense that Dr. Bolduc had at one point been a coroner in Kern County but ―was
fired,‖ a fact not disclosed in Bolduc‘s résumé. Also, in his previous employment as a
coroner for Orange County, Dr. Bolduc had resigned ―under a cloud.‖2 As a result of
these incidents, Dr. Lawrence said, some newspaper articles asserted that Dr. Bolduc was
1 At trial, Dr. Lawrence testified to being a pathologist for the San Joaquin County
coroner‘s office and owning Forensic Consultants Medical Group, which provides
pathologists, including Dr. Bolduc, to act as coroners in several counties and also offers
private consultation.
2 In People v. Beeler (1995) 9 Cal.4th 953, an Orange County capital murder case,
Dr. Bolduc performed an autopsy of the murder victim but did not testify at trial. Our
opinion affirming the judgment of death mentioned that the trial court in that case ―was
aware that Dr. Bolduc had apparently left the [Orange County] coroner‘s office under
unfavorable conditions‖ (id. at p. 979), and we noted testimony by a pathologist that Dr.
Bolduc had caused ― ‗quite a bit of consternation‘ in a prior murder case by basing his
conclusion regarding the cause of death on a police report rather than on medical
evidence.‖ (Ibid.)
3
incompetent, and prosecutors in several counties in California refused to use him as an
expert witness in homicide cases. Dr. Lawrence had seen ―no evidence that [Dr. Bolduc]
ever did anything incompetent.‖ He said the allegations against Dr. Bolduc were
―generated by people who don‘t know what they‘re talking about,‖ and he described
much of the criticism of Dr. Bolduc as ―ridiculous‖ and ―patently absurd.‖ Dr. Lawrence
agreed with the conclusion in Dr. Bolduc‘s autopsy report that Pina died from ―asphyxia
due to neck compression.‖
The trial court ruled that at trial the prosecution could have Dr. Lawrence testify
about the cause of Pina‘s death, but that the defense could cross-examine Dr. Lawrence
about Dr. Bolduc‘s qualifications as a pathologist, as this was relevant to the
trustworthiness of the facts stated in Dr. Bolduc‘s autopsy report.
At the jury trial, Dr. Lawrence testified that after reviewing Dr. Bolduc‘s autopsy
report and the accompanying autopsy photographs, he concluded that Pina had died from
asphyxia caused by strangulation. He pointed out that Pina had ―hemorrhages in the neck
organs consistent with fingertips during strangulation‖ and that she had ―pinpoint
hemorrhages in her eyes,‖ indicating a lack of oxygen. Also supporting strangulation as
the cause of Pina‘s death, Dr. Lawrence testified, were ―the purple color of her face,‖ the
―absence of any natural disease that can cause death,‖ and the fact that Pina had bitten her
tongue shortly before death. Dr. Lawrence stated that because Pina‘s hyoid bone was not
fractured, Pina was strangled for ―more than two minutes.‖ Had a fracture occurred,
Dr. Lawrence explained, death could have occurred sooner.
Dr. Lawrence did not describe to the jury Dr. Bolduc‘s opinion about the cause of
Pina‘s death; instead, he only gave his own independent opinion as a forensic pathologist.
Dr. Lawrence did not say whether his description of Pina‘s body at the time of the
autopsy (the hemorrhages in Pina‘s face and eyes, the purplish color of the face, the bite
marks on the tongue, and the absence of a fracture of the hyoid bone) was based solely on
the autopsy photographs, solely on Dr. Bolduc‘s autopsy report, or on a combination of
4
them. Neither the autopsy photographs nor Dr. Bolduc‘s autopsy report was admitted
into evidence.3 On cross-examination, defense counsel questioned Dr. Lawrence
regarding his views about the cause of Pina‘s death, but not about Dr. Bolduc‘s
qualifications.
Testifying on his own behalf, defendant said that on the night he killed Pina, he
told her of his suspicion that she might be resuming her relationship with Isaac Zuniga.
Defendant and Pina began swearing at each other, and Pina told defendant: ―I‘ll fuck
whoever I want. . . . [i]f I want to fuck Isaac, if I want to fuck Anul [Pina‘s husband], I
will do whatever I want.‖ Defendant grabbed Pina‘s arm, after which Pina punched him
on the chin and bit his arm, saying: ―You‘re not even a good father. You‘re a lousy
fucking father . . . you‘re a worthless piece of shit.‖ Defendant ―snapped.‖ He grabbed
Pina‘s neck and strangled her, saying: ―Fuck you, Lucinda. I‘m a good dad. I‘m a good
dad. I‘m not a bad father. Fuck you.‖
In closing argument, defense counsel conceded defendant‘s killing of Pina but
argued that the murder was without malice as it occurred in a sudden quarrel or heat of
passion, and that therefore defendant was guilty only of voluntary manslaughter, not
murder.4 The prosecutor, citing Dr. Lawrence‘s testimony that Pina was strangled for
―more than two minutes,‖ argued that defendant could not have been acting in the heat of
passion for that length of time, and that therefore the killing was murder rather than
manslaughter.
3 We grant the district attorney‘s motion, which defendant does not oppose, that we
take judicial notice of the autopsy report. (See People v. Castillo (2010) 49 Cal.4th 145,
157 [a court may take judicial notice of a public record when it does not consider the
record for the truth of matters stated therein]; Dixon v. Superior Court (2010) 170
Cal.App.4th 1271, 1278 [an autopsy report is a public record].)
4 ―Murder is the unlawful killing of a human being . . . with malice aforethought.‖
(Pen. Code, § 187, subd. (a).) When an unlawful killing occurs ―upon a sudden quarrel
or heat of passion‖ (Pen. Code, § 192, subd. (a)) the killer lacks malice, and the crime is
voluntary manslaughter, a lesser offense necessarily included within the crime of murder.
(See People v. Moye (2009) 47 Cal.4th 537, 549.)
5
C. Verdict and Appeal
The jury convicted defendant of second degree murder, and the trial court
sentenced him to a prison term of 15 years to life.
The Court of Appeal reversed the judgment. It concluded that Dr. Lawrence‘s
trial testimony about the cause of Pina‘s death violated defendant‘s federal Sixth
Amendment right to confront and cross-examine Dr. Bolduc, and that the error was
prejudicial. We granted the district attorney‘s petition for review.
II
Like the two companion cases, this case presents a Sixth Amendment
confrontation right issue with complexities that are far from easy to resolve in light of the
widely divergent views expressed by the justices of the United States Supreme Court in a
recent quartet of cases we must consider here. Those cases are: (1) Crawford v.
Washington (2004) 541 U.S. 36 (Crawford), a seven-to-two decision; (2) Melendez-Diaz
v. Massachusetts (2009) 557 U.S. 305 (Melendez-Diaz), a five-to-four decision; (3)
Bullcoming v. New Mexico (2011) 564 U.S. ___ [131 S.Ct. 2705] (Bullcoming), a five-to-
four decision; and (4) Williams v. Illinois (2012) 567 U.S. ___ [132 S.Ct. 2221]
(Williams), a four-one-four decision.
Well before Crawford, the high court had, in Ohio v. Roberts (1980) 448 U.S. 56,
66, construed the federal Constitution‘s confrontation right as allowing the use at trial of
any out-of-court statements that were within a ―firmly rooted hearsay exception‖ or had
―particularized guarantees of trustworthiness.‖ But some 25 years later, in Crawford, the
high court abandoned that approach and adopted this general rule: The prosecution may
not use ―[t]estimonial statements‖ of a witness who does not appear at trial, unless the
witness is unavailable to testify and the defendant had a prior opportunity for cross-
examination. (Crawford, supra, 541 U.S. at p. 59.)
The Crawford majority explained that the Sixth Amendment‘s confrontation right
pertains to those who give ―testimony,‖ defined as ― ‗[a] solemn declaration or
6
affirmation made for the purpose of establishing or proving some fact.‘ ‖ (Crawford,
supra, 541 U.S. at p. 51.) Crawford mentioned several possible definitions, by several
sources, of statements that are testimonial in nature, including ― ‗extrajudicial statements
. . . contained in formalized testimonial materials, such as affidavits, depositions, prior
testimony, or confessions,‘ [citation]; [and] ‗statements that were made under
circumstances which would lead an objective witness reasonably to believe that the
statement would be available for use at a later trial . . .‘ [citation].‖ (Id. at pp. 51-52.)
But Crawford did not adopt a particular definition, noting only that ―some statements
qualify under any definition.‖ (Id. at p. 52.)
Five years later, in 2009, came the high court‘s decision in Melendez-Diaz, which
extended Crawford‘s holding to forensic reports. There, at the defendant‘s trial for
cocaine distribution and trafficking, the prosecution introduced into evidence a
laboratory‘s ―certificates of analysis‖: sworn statements that a substance found in plastic
bags in the defendant‘s car was determined to be cocaine. (Melendez-Diaz, supra, 557
U.S. at p. 308.) The high court held that the laboratory certificates were ―within the ‗core
class of testimonial statements,‘ ‖ making them inadmissible under the reasoning of
Crawford, supra, 541 U.S. 36. (Melendez-Diaz, supra, at p. 310.) The Melendez-Diaz
majority explained: Each certificate was (1) ―a ‗ ―solemn declaration or affirmation
made for the purpose of establishing or proving some fact‖ ‘ ‖ (ibid.), (2) ―functionally
identical to live, in-court testimony‖ (id. at pp. 310-311), (3) ― ‗made under
circumstances which would lead an objective witness reasonably to believe that [it]
would be available for use at a later trial‘ ‖ (id. at p. 311), and (4) created ―to provide
‗prima facie evidence of the composition, quality, and the net weight‘ ‖ (ibid.) of the
substance found in the plastic bags seized from the defendant‘s car.
Two years later, in 2011, the high court decided Bullcoming, which involved a
charge of driving while intoxicated. At trial, the prosecution introduced into evidence a
report by laboratory analyst Curtis Caylor. The report included Caylor‘s ―certificate of
7
analyst‖ (Bullcoming, supra, 564 U.S. at p. ___ [131 S.Ct. at p. 2710]) stating the
correctness of his report‘s conclusion that a blood sample taken at the defendant‘s arrest
had an illegally high level of alcohol. Caylor did not testify. Instead, the prosecution
called as a witness a colleague of Caylor‘s — an analyst who, although familiar with the
laboratory‘s testing procedures, had neither participated in nor observed the testing by
Caylor. The high court held that the admission at trial of Caylor‘s laboratory report
violated the defendant‘s right to confront and cross-examine Caylor. The court noted that
unlike the laboratory certificates in Melendez-Diaz, supra, 557 U.S. 305, which were
statements sworn before a notary public attesting to the truth of the reported test results,
Caylor‘s certificate was not a sworn declaration. Nevertheless, the high court pointed
out, ―Caylor‘s certificate [was] ‗formalized‘ in a signed document‖ (Bullcoming, supra,564 U.S. at p. ___ [131 S.Ct. at p. 2717]) — the laboratory report — and the report made
reference to New Mexico court rules that ―provide for the admission of certified blood-
alcohol analyses‖ (ibid.). These ―formalities‖ (ibid.) the high court concluded, were
―more than adequate‖ (ibid.) to qualify Caylor‘s laboratory report as testimonial in
nature.
In June of this year, 12 days after we heard oral argument in this matter and while
it was pending before us, the high court decided Williams, supra, 567 U.S. ___ [132 S.Ct.
2221]. At issue in Williams was testimony by Illinois State Police forensic biologist
Sandra Lambatos that a DNA profile (derived from semen on vaginal swabs taken from a
rape victim) produced by a Maryland laboratory matched a DNA profile (derived from a
sample of the defendant‘s blood) produced by the Illinois State Police Laboratory.
The plurality opinion in Williams, authored by Justice Alito, was signed by the
Chief Justice as well as Justices Kennedy and Breyer; in a separate concurring opinion
Justice Breyer explained why he joined Justice Alito‘s opinion ―in full‖ (Williams, supra,
567 U.S. at p. ___ [132 U.S. 2221, 2252] (conc. opn. of Breyer, J.)). The plurality
concluded on two alternative grounds that Lambatos‘s expert testimony did not violate
8
the federal Constitution‘s confrontation right. First, the plurality reasoned that
Lambatos‘s testimony was constitutionally permissible because it was admitted not for its
truth but only for the limited purpose of explaining the basis of Lambatos‘s independent
conclusion, based on her expertise, that the defendant‘s DNA matched the DNA in the
semen found on the vaginal swabs. (Id. at p. ___ [132 S.Ct. at p. 2228] (plur. opn. of
Alito, J.).) Alternatively, the Williams plurality reasoned, there was no confrontation
right violation because the Maryland laboratory‘s report was prepared for the primary
purpose of finding a dangerous rapist who was still at large, not ―for the primary purpose
of accusing a targeted individual.‖ (Id. at p. ___ [132 S.Ct. at p. 2243] (plur. opn. of
Alito, J.).) In a separate concurring opinion, Justice Thomas agreed with the plurality‘s
conclusion that Lambatos‘s expert testimony did not offend the Sixth Amendment‘s
confrontation right, but for a completely different reason: The Maryland laboratory
report on which Lambatos relied ―lack[ed] the solemnity of an affidavit or deposition‖
and was therefore not ―testimonial.‖ (Id. at p. ___ [132 S.Ct. at p. 2260] (conc. opn. of
Thomas, J.).) A dissenting opinion by Justice Kagan, and signed by Justices Scalia,
Ginsburg, and Sotomayor, disagreed with the reasoning of both the plurality and Justice
Thomas, and concluded that Lambatos‘s testimony violated the defendant‘s confrontation
right. These widely divergent views, none of which was able to garner majority support
— as reflected in the four-one-four decision — highlight the complexity of the issue.
III
We noted earlier that at defendant‘s murder trial, Dr. Lawrence gave his
independent opinion as to the cause of Pina‘s death. Dr. Lawrence reached that opinion
after reviewing an autopsy report (with accompanying photographs) prepared by
Dr. Bolduc, who did not testify and thus could not be confronted by defendant. The
Court of Appeal concluded that Dr. Lawrence‘s testimony violated defendant‘s right to
confront and cross-examine Dr. Bolduc.
9
Limiting our inquiry are two significant points. First, here (unlike in the
companion case of People v. Lopez, supra, __ Cal.4th ___), Dr. Bolduc‘s autopsy report
was not introduced into evidence. Thus, we need not decide whether that entire report is
testimonial in nature. Second, Dr. Lawrence‘s testimony never described the conclusions
in Dr. Bolduc‘s autopsy report as to the cause of Pina‘s death. Thus, we need not
determine whether such testimony, if it had been given, would have violated defendant‘s
right to confront Dr. Bolduc.
Dr. Lawrence did, however, describe to the jury the condition of Pina‘s body at the
time of the autopsy: the hemorrhages in Pina‘s eyes and neck organs, the purple color of
her face, the absence of any natural disease causing death, the fact that she had bitten her
tongue shortly before death, and the absence of any fracture of the hyoid bone. This
description was based on Dr. Lawrence‘s review of Dr. Bolduc‘s autopsy report and its
accompanying photographs. (As we have noted earlier (see p. 5, ante), the record before
us does not indicate whether Dr. Lawrence based his description solely on the autopsy
photographs, solely on Dr. Bolduc‘s autopsy report, or on a combination of the two.) The
issue before us is whether Dr. Lawrence‘s testimony about these objective facts entitled
defendant to confront and cross-examine Dr. Bolduc.
As we discussed in the companion case of People v. Lopez, supra, __ Cal.4th at
page ___ [p. 13], the prosecution‘s use of testimonial out-of-court statements ―ordinarily
violates the defendant‘s right to confront the maker of the statements unless the declarant
is unavailable to testify and the defendant had a prior opportunity for cross-examination.‖
Although the high court has not agreed on a definition of ―testimonial,‖ testimonial out-
of-court statements have two critical components. First, to be testimonial the statement
must be made with some degree of formality or solemnity. Second, the statement is
testimonial only if its primary purpose pertains in some fashion to a criminal prosecution.
The high court justices have not, however, agreed on what the statement‘s primary
purpose must be.
10
We begin with the issue of formality. An autopsy report typically contains two
types of statements: (1) statements describing the pathologist‘s anatomical and
physiological observations about the condition of the body, and (2) statements setting
forth the pathologist‘s conclusions as to the cause of the victim‘s death. The out-of-court
statements at issue here — pathologist Bolduc‘s observations about the condition of
victim Pina‘s body — all fall into the first of the two categories. These statements, which
merely record objective facts, are less formal than statements setting forth a pathologist‘s
expert conclusions. They are comparable to observations of objective fact in a report by
a physician who, after examining a patient, diagnoses a particular injury or ailment and
determines the appropriate treatment. Such observations are not testimonial in nature.
(Melendez-Diaz, supra, 557 U.S. at p. 312, fn. 2 [―medical reports created for treatment
purposes . . . would not be testimonial under our decision today‖].)5
Defendant argues that the statements in nontestifying Dr. Bolduc‘s autopsy report
were sufficiently ―formal‖ because: (1) a detective was present when the autopsy of Pina
was performed, (2) the autopsy was statutorily mandated, (3) Dr. Bolduc was required by
statute to report his findings, (4) Detective Fain disclosed defendant‘s confession to
Dr. Bolduc before the autopsy report was written, and (5) Dr. Bolduc was statutorily
required to notify law enforcement if he determined that there were reasonable grounds to
suspect that the death was a homicide. But those circumstances have little to do with the
formality and solemnity of the statements. Rather, they pertain to the second of the two
categories mentioned above: the primary purpose of the statements in the report.
5 Defendant contends that even if the statements in nontestifying Dr. Bolduc‘s
autopsy report lacked the requisite formality, the Sixth Amendment‘s confrontation right
also applies to what Justice Thomas called ― ‗technically informal statements‘ ‖ if those
statements were ― ‗used to evade the formalized process.‘ ‖ (Williams, supra, 567 U.S. at
p. ___, fn. 5 [132 S.Ct. at p. 2260, fn. 5] (conc. opn. of Thomas, J.).) Defendant argues
that this exception applies here. But he did not raise this argument at trial, and therefore
the trial court did not determine whether the statements at issue here were ― ‗used to
evade the formalized process.‘ ‖ (Ibid.) Thus, this argument can only be made, if at all,
in a habeas corpus petition.
11
For example, the presence of a detective at the autopsy and the fact that the
detective told the pathologist about defendant‘s confession do not make the statements of
objective fact in the autopsy report into formal and solemn testimony; but those
circumstances do support defendant‘s argument that the primary purpose of the autopsy
was the investigation of a crime. Similarly, the fact that the autopsy was mandated by a
statute that required public findings and notification of law enforcement does not imply
that the statements of objective fact in the report are formal and solemn testimony, but it
does imply that the primary purpose of the autopsy was forensic. Therefore, we turn now
to the question of primary purpose.
The preparation of an autopsy report is governed by California‘s Government
Code section 27491, which requires a county coroner to ―inquire into and determine the
circumstances, manner, and cause‖ of certain types of death. Some of these deaths (such
as deaths from alcoholism, ―sudden infant death syndrome,‖ and ―contagious disease‖)
result from causes unrelated to criminal activities, while other deaths (such as deaths
resulting from ―criminal abortion,‖ deaths by ―known or suspected homicide,‖ and
―deaths associated with a known or alleged rape‖) result from the commission of a crime.
(Ibid.) With respect to all of the statutorily specified categories of death, however, the
scope of the coroner‘s statutory duty to investigate is the same, regardless of whether the
death resulted from criminal activity.
The usefulness of autopsy reports, including the one at issue here, is not limited to
criminal investigation and prosecution; such reports serve many other equally important
purposes. For example, the decedent‘s relatives may use an autopsy report in
determining whether to file an action for wrongful death. And an insurance company
may use an autopsy report in determining whether a particular death is covered by one of
its policies. (See, e.g., People v. Rutterschmidt, supra, ___ Cal.4th ___.) Also, in certain
cases an autopsy report may satisfy the public‘s interest in knowing the cause of death,
12
particularly when (as here) the death was reported in the local media. In addition, an
autopsy report may provide answers to grieving family members.
In short, criminal investigation was not the primary purpose for the autopsy
report‘s description of the condition of Pina‘s body; it was only one of several purposes.
The presence of a detective at the autopsy and the statutory requirement that suspicious
findings be reported to law enforcement do not change that conclusion. The autopsy
continued to serve several purposes, only one of which was criminal investigation. The
autopsy report itself was simply an official explanation of an unusual death, and such
official records are ordinarily not testimonial. (Melendez-Diaz, supra, 554 U.S. at
p. 324.)
In summary, Dr. Lawrence‘s description to the jury of objective facts about the
condition of victim Pina‘s body, facts he derived from Dr. Bolduc‘s autopsy report and its
accompanying photographs, did not give defendant a right to confront and cross-examine
Dr. Bolduc. The facts that Dr. Lawrence related to the jury were not so formal and
solemn as to be considered testimonial for purposes of the Sixth Amendment‘s
confrontation right, and criminal investigation was not the primary purpose for recording
the facts in question. In holding that defendant‘s confrontation right was violated here,
the Court of Appeal erred.
13
Disposition
The judgment of the Court of Appeal is reversed, and the matter is remanded for
further proceedings consistent with this opinion.
KENNARD, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
14
CONCURRING OPINION BY WERDEGAR, J.
I concur in the reasoning and result of the majority opinion, which I have
signed. I write separately to explain in more detail why the anatomical and
physiological observations recorded by a forensic pathologist in an autopsy report
should not be considered testimonial, as that term has been used in Crawford v.
Washington (2004) 541 U.S. 36 (Crawford) and its progeny.
As the majority explains (maj. opn., ante, at p. 11), the autopsy report by
Dr. George Bolduc, who conducted the autopsy but did not testify at trial, was not
admitted into evidence; the question of whether the autopsy report itself was
testimonial is thus not before us. In addition, the testifying pathologist, Dr. Robert
Lawrence, gave his own expert opinions as to the cause and manner of death
rather than relaying those reached by Dr. Bolduc; hence, the question of whether
such recorded conclusions are testimonial is also not before us. Like the majority,
therefore, I focus exclusively on Dr. Lawrence‘s repetition to the jury of
anatomical and physiological observations Dr. Bolduc recorded in his report, upon
which Dr. Lawrence based his conclusions. Of these, the most significant was Dr.
Bolduc‘s recorded observation that the victim‘s larynx and hyoid bone were both
unbroken, from which Dr. Lawrence concluded the victim was strangled for ―a
period of minutes . . . certainly more than two minutes.‖1 Dr. Lawrence‘s opinion
1 Dr. Lawrence‘s reasoning was that in the absence of a fracture that might
have blocked the victim‘s airway, it was ―unlikely that she was just briefly
1
became, in turn, the basis for prosecutorial argument to the jury that the killing
was intentional and premeditated.
The question of what out-of-court statements are and are not testimonial
has divided the justices of the United States Supreme Court, whose decisions have
not yet yielded a clear definition or test. But the justices have consistently
considered two factors in deciding whether a given statement sufficiently
resembles the English court abuses that gave rise to the confrontation clause,
primarily the use at trial of witness statements obtained through ex parte
examination: (1) the degree of formality or solemnity with which the statement
was made and (2) the degree to which it was produced for use at trial. The more a
statement resembles the ― ‗solemn declaration or affirmation‘ ‖ that is testimony,
commonly understood, and the more it was expected, when made, ― ‗to be used
prosecutorially‘ . . . ‗at a later trial,‘ ‖ the more centrally it is located within the
―core class of ‗testimonial‘ statements.‖ (Crawford, supra, 541 U.S. at pp. 51-52.)
Throughout the high court‘s exploration of the issue, Justice Thomas has
maintained that solemnity or formality is the sine qua non of the testimonial
statement. This focus is demonstrated in his separate opinions in Davis v.
Washington (2006) 547 U.S. 813, 838 (Davis) and Michigan v. Bryant (2011) 562
U.S. ___, ___ [131 S.Ct. 1143, 1167] (Bryant), both asserting that statements
resulting from a witness‘s informal conversation with police officers are not
testimonial, in Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305, 330
(Melendez-Diaz), where Justice Thomas concurred with the majority that
certificates of chemical content were affidavits and hence testimonial, and in
Williams v. Illinois (2012) 567 U.S. ___, ___, ___ [132 S.Ct. 2221, 2255]
(Williams), where he argued a DNA profile report was not testimonial because it
squeezed and then let go and went on to die. I think there was pressure applied for
a longer period.‖
2
lacked solemnity and formality (id. at p. 2260). Other opinions, primarily majority
opinions, have relied on this factor as well. (See Crawford, supra, 541 U.S. at
p. 53, fn. 4 [witness‘s ―recorded statement, knowingly given in response to
structured police questioning, qualifies under any conceivable definition‖ of
interrogation, and was hence testimonial]; Davis, supra, 547 U.S. at p. 830
[though not so formal as in Crawford, police questioning was ―formal enough‖];
Melendez-Diaz, supra, 557 U.S. at p. 310 [certificates of chemical content ―are
incontrovertibly a ‗ ―solemn declaration or affirmation made for the purpose of
establishing or proving some fact‖ ‘ ‖]; Bullcoming v. New Mexico (2011) 564
U.S. ___, ___ [131 S.Ct. 2705, 2717] (Bullcoming) [though not sworn before a
notary public, certificates were ―[l]ike the Melendez-Diaz certificates . . .
‗formalized‘ in a signed document‖]; Williams, supra, 567 U.S. at p. ___ [132
S.Ct. at p. 2242] (plur. opn. of Alito, J.) [testimonial hearsay typically consists of
―formalized statements such as affidavits, depositions, prior testimony, or
confessions‖].)
The critical hearsay statement in this case—Dr. Bolduc‘s recorded
observation that the victim‘s larynx and hyoid bone were unbroken—lacked the
solemnity and formality that characterize statements the high court deems
testimonial. Although Dr. Bolduc signed and dated his autopsy report, it was not
sworn or certified in a manner comparable to the chemical analyses in Melendez-
Diaz and Bullcoming. The report contrasts in this respect with the coroner‘s or
attending physician‘s ―[c]ertification and signature‖ on a death certificate, by
which the declarant ―attest[s] to [the] accuracy‖ of ―the portion of the certificate
setting forth the cause of death.‖ (Health & Saf. Code, § 102875, subd. (a)(7).)
Though the cause of death declared on a death certificate is to be ―in conformity
with‖ the ―facts ascertained‖ by autopsy or other investigation (Gov. Code,
§ 27491.5), the two documents, autopsy report and death certificate, are distinct,
3
and only the latter bears a formal certification mandated by statute. Certainly, no
certification or solemn attestation accompanied the portions of Dr. Bolduc‘s
autopsy report containing his observations as to the unbroken state of the
decedent‘s larynx and hyoid bone.
In cases involving the declarations of percipient witnesses rather than
laboratory reports, the high court has looked to the degree of formality and
structure of the circumstances in which the statement was made, using this
analysis to help determine whether the statement is akin to the products of ex parte
examinations. (See Crawford, supra, 541 U.S. at pp. 50-53 & fn. 4 [contrasting
nontestimonial ―off-hand, overheard‖ remarks with the testimonial products of
―structured‖ police interrogation]; Davis, supra, 547 U.S. at p. 830 [as in
Crawford, formal police interrogation of witness bore a ― ‗striking resemblance‘ ‖
to ex parte examinations]; Bryant, supra, 562 U.S. at p. ___ [131 S.Ct. at p. 1155]
[where ―state actors are involved in formal, out-of-court interrogation of a witness
to obtain evidence for trial,‖ resulting statements are considered testimonial].)
Looking beyond the question of certification to the formality or lack thereof in the
circumstances in which Dr. Bolduc‘s anatomical observations were made and
recorded, the statements again appear to lack the requisite formality.
As the majority observes, autopsy reports typically (and in this case) have
two parts: ―(1) the objective forensic autopsy with its findings including
toxicological tests, special tests, microscopic examination, etc., and (2) the
interpretations of the forensic pathologist including cause and manner of death.‖
(Nat. Assn. of Medical Examiners, Forensic Autopsy Performance Standards
(2005, as amended, Aug. 11, 2011) std. H31, p. 25 (hereafter NAME Standards);
see maj. opn., ante, at p. 12.) Whatever one might say of the latter portion (again,
that issue is not before us here because Dr. Lawrence testified to his own
conclusions as to cause and manner of death, not to Dr. Bolduc‘s), the former does
4
not resemble the ex parte examinations of historical example or the structured
police interrogations of Crawford and Davis. Though there is a structure to the
autopsy examination process, it is largely that of a medical examination, not an
interrogation. ―Performance of a forensic autopsy is the practice of medicine.‖
(NAME Standards, supra, std. B4, p. 10.) A professionally prepared autopsy
report should record the pathologist‘s observations of the external examination
and, where performed, the internal examination of the decedent‘s body, with a
description of all internal and external injuries observed ―in sufficient detail to
support diagnoses, opinions, and conclusions.‖ (Id., std. H31.8, p. 25.) The
process of systematically examining the decedent‘s body and recording the
resulting observations is thus one governed primarily by medical standards rather
than by legal requirements of formality or solemnity.
On the second factor going to a statement‘s testimonial character, the
primary purpose behind the statement‘s production, a consensus appears to exist
that a statement is more testimonial to the extent it was produced under
circumstances making it likely to be used in place of live testimony at a future
criminal trial. (See Williams, supra, 567 U.S. at p. ___ [132 S.Ct. at p. 2243]
(plur. opn. of Alito, J.) [―the primary purpose of the Cellmark report, viewed
objectively, was not to accuse petitioner or to create evidence for use at trial‖]; id.at p. ___ [132 S.Ct. at p. 2273] (dis. opn. of Kagan, J.) [court has asked ―whether a
statement was made for the primary purpose of establishing ‗past events
potentially relevant to later criminal prosecution‘—in other words, for the purpose
of providing evidence‖]; Bullcoming, supra, 564 U.S. at p. ___ [131 S.Ct. at
p. 2717] [―A document created solely for an ‗evidentiary purpose‘ . . . made in aid
of a police investigation, ranks as testimonial.‖]; Bryant, supra, 562 U.S. at p. ___
[131 S.Ct. at p. 1155] [confrontation clause not implicated when ―a statement is
not procured with a primary purpose of creating an out-of-court substitute for trial
5
testimony‖]; Melendez-Diaz, supra, 557 U.S. at p. 311 [observing that ―under
Massachusetts law the sole purpose of the affidavits was to provide ‗prima facie
evidence of the composition, quality, and the net weight‘ of the analyzed
substance‖]; Davis, supra, 547 U.S. at p. 830 [statements made under formal
police interrogation are ―an obvious substitute for live testimony‖].)
Assessing the degree to which Dr. Bolduc‘s observations on the state of the
victim‘s larynx and hyoid bone were produced for use at trial, I conclude the
nontestimonial aspects of these anatomical observations predominate over the
testimonial. A California coroner or medical examiner2 has, by statute, the duty of
investigating certain categories of deaths, regardless of whether the death is also
the subject of a criminal investigation. (Gov. Code, § 27491; see maj. opn., ante,
at p. 13.) Speaking generally, the coroner or medical examiner investigates a
death ―cooperatively with, but independent from, law enforcement and
prosecutors‖ with the goal of producing a ―neutral and objective medical
assessment of the cause and manner of death.‖ (NAME Standards, supra, std. A1,
p. 7.) The investigation of deaths through autopsies in appropriate cases ―protects
the public interest and provides the information necessary to address legal, public
health, and public safety issues in each case.‖ (Id., std. B3, p. 9.)
To be sure, an autopsy physician documents his or her observations of the
decedent‘s injuries partly ―to provide evidence for court,‖ but detailed
documentation of the pathologist‘s observations is also important ―to support or
refute interpretations‖ and ―to serve as a record.‖ (NAME Standards, supra, std.
E13, p. 15.) A competent autopsy physician describes the decedent‘s observed
injuries and condition as a matter of course; an autopsy report that lacked such
2 A California county may choose to employ an appointed medical examiner
in place of a coroner. In such a county, the medical examiner exercises the
statutory powers and duties of the coroner. (Gov. Code, § 24010.)
6
documentation would not meet minimum professional standards. (Id., §§ D-F,
pp. 13-21.) That Dr. Bolduc reported his findings concerning the condition of the
victim‘s larynx and hyoid bone primarily for use as trial evidence is doubtful.
A statement should also be deemed more testimonial to the extent it was
produced through the agency of government officers engaged in a prosecutorial
effort, and less testimonial to the extent it was produced for purposes other than
prosecution or without the involvement of police or prosecutors. ―Involvement of
government officers in the production of testimony with an eye toward trial
presents unique potential for prosecutorial abuse—a fact borne out time and again
throughout a history with which the Framers were keenly familiar.‖ (Crawford,
supra, 541 U.S. at p. 56, fn. 7.) The high court has made clear a witness‘s
statement may be testimonial even if it does not by itself inculpate the defendant
(Melendez-Diaz, supra, 557 U.S. at pp. 313-314), and a majority of the justices
have rejected a very narrow definition of testimonial statements as limited to those
―prepared for the primary purpose of accusing a targeted individual‖ (Williams,
supra, 567 U.S. at p. ___ [132 S.Ct. at p. 2243] (plur. opn. of Alito, J.); see id. at
p. ___ [132 S.Ct. at p. 2262] (conc. opn. of Thomas, J.); id. at pp. ___-___ [132
S.Ct. at pp. 2273-2274 (dis. opn. of Kagan, J.)). Nonetheless, the court‘s
Crawford jurisprudence suggests that testimonial character depends, to some
extent, on the degree to which the statement was produced by or at the behest of
government agents for use in a criminal prosecution.
As the court explained in Bryant, certain types of hearsay are considered
nontestimonial because, having been produced primarily for purposes other than
use in a criminal trial, they pose a significantly reduced ―prospect of fabrication.‖
(Bryant, supra, 562 U.S. at p. ___ [131 S.Ct. at p. 1157].) Among these are
business and public records ― ‗created for the administration of an entity‘s
affairs.‘ ‖ (Id. at p. ___, fn. 9 [131 S.Ct. at p. 1157, fn. 9].) In contrast, when law
7
enforcement agents solicit statements from witnesses for the purpose of using
those statements against a person, the prospect for fabrication is at its greatest.
Even without telling a witness what to say, government agents intent on building a
criminal case against a suspect may consciously or unconsciously bias a witness‘s
responses by verbal and nonverbal cues. It is the accusatory context that makes
the production of such out-of-court testimony especially dangerous and demands
the resulting statements be considered ―testimonial under even a narrow standard.‖
(Crawford, supra, 541 U.S. at p. 52; see also id. at p. 53 [―The involvement of
government officers in the production of testimonial evidence presents the same
risk, whether the officers are police or justices of the peace.‖].) A process in
which government agents may prompt a witness to make inherently inculpatory
statements is more dangerous, and should more readily lead to classification of the
statements as testimonial, than one in which a witness acts independently to record
observations made as a regular part of the witness‘s business or profession, even if
those observations turn out to be helpful to the prosecution in a particular case.
Focusing once more on Dr. Bolduc‘s recorded observations on the
decedent‘s injuries, in particular the observation that her larynx and hyoid bone
were unbroken, it does not appear Dr. Bolduc‘s record of that observation was
produced through a prosecutorial effort to obtain evidence against defendant, or
anyone else, for use at trial. As previously discussed, a medical examiner‘s duty
to investigate the victim‘s death is independent of any police inquiry or
prosecutorial effort. (See U.S. v. Feliz (2d Cir. 2006) 467 F.3d 227, 237 [relying
on medical examiner‘s independent statutory duty ―to conduct autopsies in various
situations‖ to show autopsy report was nontestimonial public record].) While a
police detective was apparently present at the autopsy, there is no evidence he
asked Dr. Bolduc to investigate possible breaks in the victim‘s larynx or hyoid
bone, or to answer any other particular question about the condition of the
8
decedent‘s body. As a matter of standard practice, a competent autopsy physician
will describe and document possible blunt force injuries to skeletal and other
structures. (NAME Standards, supra, std. F24, p. 21.) The record does not show
or suggest that Dr. Bolduc was prompted by prosecutorial agents to make any of
the statements at issue, or indeed that he was guided in his conduct and
documentation of the autopsy by anything other than professional medical
practices and standards.
For the above reasons as well as those given by the majority, I conclude the
trial court did not err in admitting Dr. Lawrence‘s testimony over a confrontation
clause objection. Dr. Lawrence relayed to the jury certain physical observations
recorded by Dr. Bolduc in his report of the autopsy, using those observations to
support Dr. Lawrence‘s own expert opinions as to the cause and manner of death.
Dr. Bolduc‘s observations were introduced for their truth, and since Dr. Bolduc
was not shown to be unavailable and had not been subject to prior cross-
examination on this matter by defendant, his statements, were they testimonial,
would have been inadmissible under Crawford. But because they neither bore
sufficient indicia of formality or solemnity nor were produced primarily for use
instead of live evidence at a criminal trial, they were not testimonial, and the
confrontation clause did not bar their use. We need not decide here—and the
majority does not decide—whether an autopsy report itself, or the examining
pathologist‘s conclusions as to cause and manner of death, would be similarly
admissible without the testimony of the examining pathologist.
WERDEGAR, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
BAXTER, J.
CHIN, J.
9
CONCURRING OPINION BY CHIN, J.
I concur fully in the majority opinion, which I have signed. I write
separately to explain why Dr. Lawrence‘s testimony did not violate defendant‘s
federal confrontation rights under the United States Supreme Court‘s recent
decision in Williams v. Illinois (2012) 567 U.S. __ [132 S.Ct. 2221] (Williams).
Unfortunately, as the majority opinion explains (maj. opn., ante, at pp. 9-
10), the high court had a majority for its result in Williams, but there was no
majority explanation for this result. It took a combination of two opinions — each
containing quite different reasoning — to achieve the majority result: (1) the
plurality opinion authored by Justice Alito and joined by Chief Justice Roberts and
Justices Kennedy and Breyer, and (2) Justice Thomas‘s opinion concurring in the
judgment. Neither the plurality‘s nor Justice Thomas‘s reasoning gained majority
support. Indeed, a majority of the court (Justice Thomas and the four dissenters)
disagreed with the plurality‘s reasoning. (See People v. Lopez (Oct. 15, 2012,
S177046) __ Cal.4th __ [maj. opn., pp. 9-12].) This situation makes it difficult to
determine what to make of that decision.
―When a fragmented Court decides a case and no single rationale
explaining the result enjoys the assent of five Justices, ‗the holding of the Court
may be viewed as that position taken by those Members who concurred in the
judgments on the narrowest grounds. . . .‘ ‖ (Marks v. United States (1977) 430
U.S. 188, 193.) This rule does not work particularly well, if at all, unless ―one
opinion can be meaningfully regarded as ‗narrower‘ than another,‖ that is, unless
1
―one opinion is a logical subset of other, broader opinions.‖ (King v. Palmer
(D.C. Cir. 1991) 950 F.2d 771, 781 (in bank).) Here, neither the plurality opinion
nor Justice Thomas‘s concurring opinion can be viewed as a logical subset of the
other. Indeed, to some extent they are contradictory. One court has said that
―[w]hen it is not possible to discover a single standard that legitimately constitutes
the narrowest ground for a decision on that issue, there is then no law of the land
because no one standard commands the support of a majority of the Supreme
Court.‖ (U.S. v. Alcan Aluminum Corp. (2d Cir. 2003) 315 F.3d 179, 189.) Is that
the situation here? Are we to discern no law of the land from the Williams case? I
do not believe so. We can discover the narrowest ground for a decision. We can
discover a standard that commands majority support.
We know what the result was in Williams, supra, 567 U.S. __ [132 S.Ct.
2221]: The testimony at issue did not violate the confrontation clause. This is
because a majority of the court so concluded. Four justices (the plurality) found
no violation for their reasons. One justice (Justice Thomas) found no violation for
his different reasons. This means that a majority of the Williams court would find
no violation of the confrontation clause whenever there was no violation under the
plurality‘s and under Justice Thomas‘s reasoning. This is exactly what happened
in Williams itself. ―We need not find a legal opinion which a majority joined, but
merely ‗a legal standard which, when applied, will necessarily produce results
with which a majority of the Court from that case would agree.‘ ‖ (U.S. v.
Williams (9th Cir. 2006) 435 F.3d 1148, 1157 [unrelated opn.].) If there is no
confrontation clause violation under both the plurality and Justice Thomas‘s
opinion, a majority of the high court‘s Williams case would agree with the
result — no confrontation clause violation. To adapt the Ninth Circuit‘s analysis
to this case, ―we must identify and apply a test which satisfies the requirements of
2
both Justice [Alito‘s] plurality opinion and Justice [Thomas‘s] concurrence.‖
(U.S. v. Williams, supra, 567 U.S. at p. __ [132 S.Ct. at p. 1157.)
Accordingly, we must determine whether there was a confrontation clause
violation under Justice Thomas‘s opinion and whether there was a confrontation
clause violation under the plurality‘s opinion. If there was no violation under both
opinions, then the result (finding no confrontation clause violation) would
command the support of a majority from the high court‘s Williams case. Such a
test satisfies the requirements of both the plurality opinion and Justice Thomas‘s
concurrence.
Justice Thomas would find no violation if the out-of-court statements lack
the necessary formality and solemnity to be testimonial. (Williams, supra, 567
U.S. at p. __ [132 S.Ct. at p. 2255] (conc. opn. of Thomas J.).) As the majority in
this case explains, the statements here are not sufficiently formal to meet this test.
(Maj. opn., ante, at pp. 12-13.)
The Williams plurality opinion stated two reasons for its finding of no
confrontation clause violation. The second reason applies here. In the
introductory portion of its opinion, the plurality summarized this second reason:
―The Cellmark report is very different from the sort of extrajudicial statements,
such as affidavits, depositions, prior testimony, and confessions, that the
Confrontation Clause was originally understood to reach. The report was
produced before any suspect was identified. The report was sought not for the
purpose of obtaining evidence to be used against petitioner, who was not even
under suspicion at the time, but for the purpose of finding a rapist who was on the
loose. And the profile that Cellmark provided was not inherently inculpatory.‖
(Williams, supra, 567 U.S. at p. __ [132 S.Ct. at p. 2228] (plur. opn. of Alito, J.).)
(All further citations to Williams will be to the plurality opinion unless otherwise
indicated.)
3
Later, the plurality explained its reasoning in greater detail. It said that the
―abuses that the Court has identified as prompting the adoption of the
Confrontation Clause shared the following two characteristics: (a) they involved
out-of-court statements having the primary purpose of accusing a targeted
individual of engaging in criminal conduct and (b) they involved formalized
statements such as affidavits, depositions, prior testimony, or confessions.‖
(Williams, supra, 567 U.S. at p. __ [132 S.Ct. at p. 2242], italics added.)
The Williams plurality cites cases involving reports that did have the
purpose of accusing a targeted person of a crime, such as a report having the
purpose of showing the ―defendant‘s blood-alcohol level exceeded legal limit‖ or
that a ―substance connected to [the] defendant contained cocaine.‖ (Williams,
supra, 567 U.S. at p. __ [132 S.Ct. at p. 2242].) But, the plurality said, the report
in its case ―is very different. It plainly was not prepared for the primary purpose
of accusing a targeted individual. In identifying the primary purpose of an out-of-
court statement, we apply an objective test. [Citation.] We look for the primary
purpose that a reasonable person would have ascribed to the statement, taking into
account all of the surrounding circumstances. [Citation.]
―Here, the primary purpose of the Cellmark report, viewed objectively, was
not to accuse petitioner or to create evidence for use at trial. When the [Illinois
State Police] lab sent the sample to Cellmark, its primary purpose was to catch a
dangerous rapist who was still at large, not to obtain evidence for use against
petitioner, who was neither in custody nor under suspicion at that time. Similarly,
no one at Cellmark could have possibly known that the profile that it produced
would turn out to inculpate petitioner — or for that matter, anyone else whose
DNA profile was in a law enforcement database. Under these circumstances, there
was no ‗prospect of fabrication‘ and no incentive to produce anything other than a
4
scientifically sound and reliable profile. [Citation.]‖ (Williams, supra, 567 U.S. at
p. __ [132 S.Ct. at pp. 2243-2244], italics added.)
The plurality continued: ―When lab technicians are asked to work on the
production of a DNA profile, they often have no idea what the consequences of
their work will be. In some cases, a DNA profile may provide powerful
incriminating evidence against a person who is identified either before or after the
profile is completed. But in others, the primary effect of the profile is to exonerate
a suspect who has been charged or is under investigation. The technicians who
prepare a DNA profile generally have no way of knowing whether it will turn out
to be incriminating or exonerating — or both.‖ (Williams, supra, 567 U.S. at p. __
[132 S.Ct. at p. 2244].)
The out-of-court statements in the autopsy report that Dr. Lawrence relied
on to form his opinion are not testimonial under this test. They did not have the
primary purpose of accusing defendant or any other targeted individual of
engaging in criminal conduct. The primary purpose of the portions of the report
that Dr. Lawrence relied on was to describe the condition of the body. (See also
maj. opn., ante, at pp. 13-14; conc. opn. of Werdegar, J., ante, at pp. 4-5.) In
describing the condition of the body, there was no prospect of fabrication or
incentive to produce anything other than a scientifically reliable report. The
purpose of this part of the autopsy report is ―simply to perform [the pathologist‘s]
task in accordance with accepted procedures.‖ (Williams, supra, 567 U.S. at p. __
[132 S.Ct. at p. 2244].)
The plurality opinion in Williams indicates that practical considerations
helped inform its conclusion. ―If DNA profiles could not be introduced without
calling the technicians who participated in the preparation of the profile, economic
pressures would encourage prosecutors to forgo DNA testing and rely instead on
older forms of evidence, such as eyewitness identification, that are less reliable.
5
[Citation.] The Confrontation Clause does not mandate such an undesirable
development.‖ (Williams, supra, 567 U.S. at p. __ [132 S.Ct. at p. 2228].)
Similar practical considerations support finding that autopsy reports, or at
least the objective, factual observations included in those reports, are not
testimonial for these purposes. A holding that everything in autopsy reports is
testimonial — and, accordingly, that only the pathologist who prepared the report
may testify about it — would have serious adverse consequences. ―Years may
pass between the performance of the autopsy and the apprehension of the
perpetrator. This passage of time can easily lead to the unavailability of the
examiner who prepared the autopsy report. Moreover, medical examiners who
regularly perform hundreds of autopsies are unlikely to have any independent
recollection of the autopsy at issue in a particular case and in testifying invariably
rely entirely on the autopsy report. Unlike other forensic tests, an autopsy cannot
be replicated by another pathologist. Certainly it would be against society's
interests to permit the unavailability of the medical examiner who prepared the
report to preclude the prosecution of a homicide case.‖ (People v. Durio
(N.Y.Sup.Ct. 2005) 794 N.Y.S.2d 863, 869.) Much harm would be done to the
criminal justice system, with little accompanying benefit to criminal defendants, if
all reliance on autopsy reports were banned.
Justice Breyer discussed the practical considerations concerning autopsy
reports in a separate concurring opinion in Williams. ―[T]o bar admission of the
out-of-court records at issue here could undermine, not fortify, the accuracy of
factfinding at a criminal trial. Such a precedent could bar the admission of other
reliable case-specific technical information such as, say, autopsy reports.
Autopsies, like the DNA report in this case, are often conducted when it is not yet
clear whether there is a particular suspect or whether the facts found in the autopsy
will ultimately prove relevant in a criminal trial. Autopsies are typically
6
conducted soon after death. And when, say, a victim‘s body has decomposed,
repetition of the autopsy may not be possible. What is to happen if the medical
examiner dies before trial? [Citations.] Is the Confrontation Clause
‗ ―effectively‖ ‘ to function ‗ ―as a statute of limitations for murder‖ ‘?
[Citation.]‖ (Williams, supra, 567 U.S. at p. __ [132 S.Ct. at p. 2251] (conc. opn.
of Breyer, J.).) Justice Breyer spoke only for himself, but his observations are
entirely consistent with the plurality opinion that he joined.
Some of the attendant circumstances in this case support the argument that
the autopsy report was prepared with the primary purpose of accusing defendant of
a crime. Unlike the situation in Williams, defendant was a suspect at the time the
autopsy report was prepared. An investigator was present during the autopsy, and
the pathologist had been told of defendant‘s confession before the autopsy report
was written. Although the plurality in Williams stated that the defendant in that
case happened not to be a suspect or in custody at the time the report was
prepared, nothing in its opinion suggests this is a requirement rather than merely
one of the ―surrounding circumstances‖ of which the court must take account.
(Williams, supra, 567 U.S. at p. __ [132 at p. 2243].) Because of these
circumstances, a statement in the autopsy report expressing the opinion, for
example, that the victim had been strangled for two minutes might have been
prepared with the primary purpose of accusing a targeted individual. But here, Dr.
Lawrence, the testifying witness, offered that opinion. Defendant had full
opportunity to confront and cross-examine Dr. Lawrence regarding that opinion.
The autopsy report itself was not introduced into evidence. Rather, in
forming his opinion, Dr. Lawrence merely relied on information regarding the
condition of the body that was detailed in that report, such as that the victim‘s
larynx and hyoid bone had not been fractured. But these statements are objective
observations of the type routinely placed into autopsy reports, whether or not a
7
specific suspect exists. They are not statements with a primary purpose of
accusing defendant, or anyone else, of criminal conduct. The fact that the larynx
and hyoid bone were not broken, like most of the other observations memorialized
in the report, ―was not inherently inculpatory.‖ (Williams, supra, 567 U.S. at p. __
[132 S.Ct. at p. 2228].) There was no prospect of fabrication or incentive to
produce anything other than an accurate description of the state of the body. (Id.
at p.__ [132 S.Ct. at p. 2244].)
The trial court did not have to allow defendant to confront Dr. Bolduc, the
pathologist who prepared the autopsy report, regarding his observations, including
that the larynx and hyoid bone were not broken. Indeed, such confrontation would
undoubtedly have been futile. It seems unlikely a pathologist who conducts many
autopsies would specifically remember a detail such as that. If called to testify,
Dr. Bolduc, like Dr. Lawrence, would undoubtedly have had to rely on the report,
rather than his memory, in this regard. (See People v. Durio, supra, 794 N.Y.S.2d
at p. 869, quoted ante.) That is one of the purposes for preparing and preserving
written autopsy reports.
For these reasons, I conclude the Williams plurality would find no
confrontation clause violation in this case. Because Justice Thomas would also
find no confrontation clause violation, albeit for different reasons, we may not do
so either. Dr. Lawrence‘s reliance on portions of someone else‘s autopsy report in
forming his opinions did not violate defendant‘s right to confront the witnesses
against him.
CHIN, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
BAXTER, J.
WERDEGAR, J.
8
DISSENTING OPINION BY CORRIGAN, J.
I respectfully dissent. I would hold that Dr. George Bolduc‘s autopsy
report was sufficiently formal and primarily made for an evidentiary purpose, as
the United States Supreme Court has explicated those terms to date. Dr. Bolduc‘s
report contained anatomical observations about which another forensic pathologist
testified. High court authority compels the conclusion that admitting this
testimony violated defendant‘s confrontation rights.
Dr. Bolduc performed an autopsy on Lucinda Pina and prepared an autopsy
report with accompanying photographs. We have taken judicial notice of that
report, which is not certified. The prosecution did not call Dr. Bolduc as a
witness, presenting instead Dr. Robert Lawrence. The prosecution did not indicate
that Dr. Bolduc was unavailable, and defendant objected to the witness
substitution. Defense counsel‘s hearsay objection to Dr. Lawrence‘s testimony
was overruled.
Dr. Lawrence told the jury that he relied on Dr. Bolduc‘s autopsy report
and accompanying photographs as a basis for his testimony. Neither the report nor
photographs were admitted in evidence. Although he had not been present during
the procedure, Dr. Lawrence testified about the condition of Pina‘s body at the
time of the autopsy. These statements about the body‘s condition were presented
as facts, about which Dr. Lawrence had no personal knowledge.
1
Whether Dr. Lawrence‘s testimony violated defendant‘s Sixth Amendment
right to confrontation turns on whether Dr. Lawrence related testimonial hearsay.
In Crawford v. Washington (2004) 541 U.S. 36 (Crawford), the Supreme Court
established that it is the ―testimonial‖ nature of a statement that gives rise to Sixth
Amendment protections.1 The Supreme Court has yet to clearly define just what
the term ―testimonial‖ means.
Nevertheless, I agree with the majority that the Supreme Court‘s Crawford
jurisprudence reflects the importance of two factors in determining whether a
statement is testimonial: (1) the degree of formality or solemnity of the statement
and (2) the primary purpose for which the statement is made.
Applying those two factors, I conclude the anatomical observations
contained in Dr. Bolduc‘s autopsy report were testimonial statements. The
prosecution asked Dr. Lawrence to relate facts about the condition of Pina‘s body.
To the extent those facts were drawn from Dr. Bolduc‘s report, as opposed to
observations based on the autopsy photographs, Dr. Lawrence related testimonial
hearsay in violation of defendant‘s federal constitutional right to confront and
cross-examine Dr. Bolduc.
Although the majority notes that Dr. Lawrence also relied on autopsy
photographs for his testimony, the record is insufficient to establish that the
photographs provided an independent basis for Dr. Lawrence‘s testimony.
A. Dr. Bolduc’s Recorded Observations Were Sufficiently Formal
In Crawford, the Supreme Court made clear that ―not all hearsay implicates
the Sixth Amendment‘s core concerns.‖ (Crawford, supra, 541 U.S. at p. 51.)
The court observed that core testimonial statements covered by the confrontation
1 The circumstances surrounding the prosecution‘s decision to call Dr.
Lawrence, rather than presenting Dr. Bolduc and subjecting him to cross-
examination, certainly raise concerns.
2
clause include ― ‗ex parte in-court testimony or its functional equivalent,‘ ‖ using
an affidavit as an example. (Crawford, at p. 51.)
Applying the Crawford analysis to forensic evidence, the United States
Supreme Court has determined that affidavits reporting results of forensic analysis
are sufficiently formal (Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305,
310-311) (Melendez-Diaz), as are unsworn certificates (Bullcoming v. New Mexico
(2011) 564 U.S. __, __ [131 S.Ct. 2705, 2717]) (Bullcoming). In Melendez-Diaz,
a Massachusetts statute allowed state crime laboratory technicians to record their
test results in a sworn affidavit. Under the statute, these affidavits were admitted
to prove the test results. The technicians did not testify and thus were not subject
to cross-examination. (See Melendez-Diaz, at pp. 308-309.) Similarly in
Bullcoming, New Mexico applied municipal and magistrate court rules that
allowed certified reports into evidence without a technician‘s testimony. (See
Bullcoming, supra, at p. __ [131 S.Ct. at p. 2717].) These state-created procedures
were quite similar, in some respects, to the ex parte procedure of the Marian
statutes, which the Crawford court observed was the ―principal evil at which the
Confrontation Clause was directed.‖ (Crawford, supra, 541 U.S. at p. 50.)
However, whether uncertified reports are sufficiently formal to be
considered testimonial remains an open question. In Williams v. Illinois (2012)
567 U.S. __ [132 S.Ct. 2221] (Williams), the high court considered statements
made in an uncertified Cellmark laboratory report, relied upon by an expert
witness for her testimony. The report was not introduced into evidence. (Id. at
p. __ [132 S.Ct. at p. 2235].) Before considering whether the Cellmark report
amounted to testimonial hearsay, the plurality opined that the report was not
hearsay at all because its contents were not admitted for their truth. (Williams,
3
supra, at p. __ [132 S.Ct. at p. 2228] (plur. opn. of Alito, J.).)2 This conclusion
did not garner a majority. Five justices explicitly repudiated that analysis. (See
Williams, at pp. __-__ [132 S.Ct. at pp. 2256-2259] (conc. opn. of Thomas, J.); id.
at pp. __-__ [132 S.Ct. at pp. 2268-2272] (dis. opn. of Kagan, J.).)3
The Williams plurality offered an alternative analysis as well. Even if the
Cellmark report had been introduced for its truth, the report failed to satisfy the
plurality‘s formulation of primary purpose. (Williams, supra, 567 U.S. at p. __
[132 S.Ct. at p. 2243] (plur. opn. of Alito, J.).) The primary purpose test is
discussed below. What is important to note here is that, in offering its alternative
analysis, the plurality did not discuss whether the Cellmark report was sufficiently
formal.
Justice Thomas provided the dispositive fifth vote in Williams. He did so
only because the Cellmark report ―lacked the requisite ‗formality and solemnity‘
to be considered ‗ ―testimonial.‖ ‘ ‖ (Williams, supra, 567 U.S. at p. __ [132 S.Ct.
at p. 2255] (conc. opn. of Thomas, J.).) In joining the plurality‘s outcome, Justice
2 See Evidence Code section 1200, subdivision (a), which provides that
― ‗[h]earsay evidence‘ is evidence of a statement that was made other than by a
witness while testifying at the hearing and that is offered to prove the truth of the
matter stated.‖
3 Two points are important here. There are, of course, many instances in
which out-of-court statements are not offered for their truth. The longstanding
rule that unless a statement is admitted for its truth it is not hearsay remains
unchanged. The question is whether a statement is admitted for its truth. When an
expert witness treats as factual the contents of an out-of-court statement, and
relates as true the contents of that statement to the jury, a majority of the high
court in Williams, supra, 567 U.S. __ [132 S.Ct. 2221], rejects the premise that the
out-of-court statement is not admitted for its truth.
Second, it should be noted that Crawford and its progeny are grounded
squarely in the Sixth Amendment, which provides that ―[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him . . . .‖ Thus, the Crawford limitations do not apply in civil
cases nor do they apply when evidence is not offered against a criminal defendant.
4
Thomas emphasized his strict position ―that the Confrontation Clause reaches
‗ ―formalized testimonial materials,‖ ‘ such as depositions, affidavits, and prior
testimony, or statements resulting from ‗ ―formalized dialogue,‖ ‘ such as
custodial interrogation.‖ (Id. at p. __ [132 S.Ct. at p. 2260].) Justice Thomas has
articulated this position in Davis v. Washington (2006) 547 U.S. 813, 836-837
(dis. opn. of Thomas, J.) (Davis); Melendez-Diaz, supra, 557 U.S. at page 329;
and Michigan v. Bryant (2011) 562 U.S. __, __ [131 S.Ct. 1143, 1165] (conc. opn.
of Thomas, J.) (Bryant). Under Justice Thomas‘s interpretation, ―although the
[Cellmark] report was produced at the request of law enforcement, it was not the
product of any sort of formalized dialogue resembling custodial interrogation.‖
(Williams, supra, at p. __ [132 S.Ct. at p. 2260] (conc. opn. of Thomas, J.).)
Justice Kagan, writing for the dissenters, expressly rejected Justice
Thomas‘s formality analysis. Comparing the Cellmark report to the unsworn
report in Bullcoming, supra, 564 U.S. __ [131 S.Ct. 2705], Justice Kagan stated:
the differences ―amount[] to (maybe) a nickel‘s worth of difference: The
similarities in form, function, and purpose dwarf the distinctions. [Citation.] Each
report is an official and signed record of laboratory test results, meant to establish
a certain set of facts in legal proceedings. Neither looks any more ‗formal‘ than
the other; neither is any more formal than the other. . . . The difference in labeling
—a ‗certificate‘ in one case, a ‗report of laboratory examination‘ in the other—is
not of constitutional dimension.‖ (Williams, supra, 567 U.S. at p. __ [132 S.Ct. at
p. 2276] (dis. opn. of Kagan, J.).)
So the question remains: For purposes of the Sixth Amendment
confrontation clause, can a statement in an uncertified document be formal enough
to qualify as testimonial? In the absence of any Supreme Court majority
definitively answering this question, we must do so. We answer it in light of the
entire Crawford jurisprudence and our own application of it.
5
The Crawford court explained that testimony ―is typically ‗[a] solemn
declaration or affirmation made for the purpose of establishing or proving some
fact.‘ ‖ (Crawford, supra, 541 U.S. at p. 51, italics added.) ―Various formulations
of this core class of ‗testimonial‘ statements exist: ex parte in-court testimony or
its functional equivalent — that is, material such as affidavits, custodial
examinations, prior testimony that the defendant was unable to cross-examine, or
similar pretrial statements that declarants would reasonably expect to be used
prosecutorially,‘ [citation]; ‗extrajudicial statements . . . contained in formalized
testimonial materials, such as affidavits, depositions, prior testimony, or
confessions,‘ [citation]; ‗statements that were made under circumstances which
would lead an objective witness reasonably to believe that the statement would be
available for use at a later trial,‘ [citation].‖ (Crawford, supra, 541 U.S. at pp. 51–
52.)
But the high court emphasized that ―[s]tatements taken by police officers in
the course of interrogations are also testimonial under even a narrow standard.‖
(Crawford, supra, 541 U.S. at p. 52, italics added.) ―The statements are not sworn
testimony, but the absence of oath was not dispositive.‖ (Ibid.)
In Davis, supra, 547 U.S. 813, the court again emphasized that testimonial
hearsay is not limited to ―the most formal sort — sworn testimony in prior judicial
proceedings or formal depositions under oath . . . .‖ (Id. at p. 826.) ―[W]e do not
think it conceivable that the protections of the Confrontation Clause can readily be
evaded by having a note-taking policeman recite the unsworn hearsay testimony
of the declarant, instead of having the declarant sign a deposition.‖ (Davis, at
p. 826.) ―The product of [police] interrogation, whether reduced to a writing
signed by the declarant or embedded in the memory (and perhaps notes) of the
interrogating officer, is testimonial.‖ (Ibid.) The court noted that ―[t]he solemnity
of even an oral declaration of relevant past fact to an investigating officer is well
6
enough established by the severe consequences that can attend a deliberate
falsehood. [Citations.]‖ (Ibid.)
Davis, supra, 547 U.S. 813, involved two consolidated cases in which
domestic violence victims made statements to government authorities. In one of
those cases, Hammon v. Indiana, police responded to a domestic violence report
and came upon the defendant‘s wife standing outside her house. Although
frightened, she told the officers that ― ‗ ―nothing was the matter.‖ ‘ ‖ (Davis, at
p. 819.) The officers eventually interviewed her inside the home, keeping her
separated from her husband in another room. She wrote and signed a ― ‗battery
affidavit,‘ ‖ summarizing an assault. (Id. at p. 820.) When the wife failed to
appear at her husband‘s trial, her oral and written statements were admitted
through the police officer who had questioned her. (Davis, at pp. 820-821.)
The Supreme Court concluded the statements were ―formal enough‖ to
qualify as testimonial because of the circumstances surrounding the interrogation.
(Davis, supra, 547 U.S. at p. 830.) The statements were made during organized
and structured questioning in a separate room; inquiry focused on past events that
were potentially criminal; and the officer received the wife‘s replies for use in the
investigation. (Ibid.) ―Such statements under official interrogation are an obvious
substitute for live testimony, because they do precisely what a witness does on
direct examination; they are inherently testimonial.‖ (Ibid.)
The other case decided in Davis concerned statements made by a domestic
violence victim to a 911 operator. In concluding that these statements were not
sufficiently formal, the court contrasted them with Crawford‘s police station
interrogation: ―Crawford was responding calmly, at the station house, to a series
7
of questions, with the officer-interrogator taping and making notes of her
answers; [the Davis victim‘s] frantic answers were provided over the phone, in an
environment that was not tranquil, or even (as far as any reasonable 911 operator
could make out) safe.‖ (Davis, supra, 547 U.S. at p. 827.)
In People v. Cage (2007) 40 Cal.4th 965, this court applied Davis to
determine whether a victim‘s hearsay statements to a sheriff‘s deputy were
testimonial. We explained that Davis demonstrates that ―though a statement need
not be sworn under oath to be testimonial, it must have occurred under
circumstances that imparted, to some degree, the formality and solemnity
characteristic of testimony.‖ (Cage, at p. 984, italics added.) In Cage, a sheriff‘s
deputy interviewed an assault victim at a hospital emergency room, more than an
hour after the assault. (Id. at p. 985.) The circumstances of the interview ―were
relatively informal, but they were no less formal or structured than the residential
interview of Amy Hammon in Davis. Here, as there, the requisite solemnity was
imparted by the potentially criminal consequences of lying to a peace officer.‖
(Cage, at p. 986, fn. omitted.)
In Bryant, supra, 562 U.S. __ [131 S.Ct. 1143], police came upon a man
lying in a parking lot, bleeding from gunshot wounds. The Supreme Court
majority concluded his statements identifying his shooter were not testimonial
because their primary purpose was to enable police to respond to an ongoing
emergency. (Id. at pp. __-__ [131 S.Ct. at pp. 1163-1167].) Addressing the issue
of formality, the court noted that questioning occurred in an exposed, public area,
in a disorganized fashion, before emergency medical services arrived. Thus, the
circumstances were factually distinguishable from a formal station house
interrogation. The court cautioned that ―informality does not necessarily indicate
the presence of an emergency or the lack of testimonial intent.‖ The Bryant
majority referred to Davis‘s explanation that attempting to keep a written
8
interrogation ―informal‖ by not asking the declarant to sign it will not serve to
evade confrontation clause protections. (Bryant, supra, at p. __ [131 S.Ct. at
p. 1160], citing Davis, supra, 547 U.S. at p. 826.)
In Bullcoming, supra, 564 U.S. __ [131 S.Ct. 2705], the high court refused
to distinguish between the unsworn laboratory certificate before it and the
affidavits offered in Melendez-Diaz. The court noted Crawford‘s observation that
the absence of an oath is not controlling when determining whether a statement is
testimonial. (Bullcoming, supra, at p. __ [131 S.Ct. at p. 2717].) The court
pointed out that the analyst‘s certificate was ― ‗formalized‘ in a signed document,
[citation], headed a ‗report.‘ ‖ The report form contained a legend referring to the
applicable court rules permitting admission of certified blood-alcohol analyses.
―In sum, the formalities attending the ‗report of blood alcohol analysis‘ are more
than adequate to qualify [the analyst‘s] assertions as testimonial.‖ (Ibid., italics
added.)
With this background in mind, we turn to the autopsy report prepared by
Dr. Bolduc. During the autopsy, he examined Pina‘s body and ultimately included
his observations as to her physical condition in his written report. At trial, Dr.
Lawrence gave his opinion that Pina died by strangulation. In explaining that
conclusion, he related, as matters of fact, Dr. Bolduc‘s observations of Pina‘s body
as they were set out in the autopsy report. In particular, Dr. Lawrence mentioned
the hemorrhages in Pina‘s eyes and neck, the purple color of her face, the absence
of any natural disease causing death, the fact that she had bitten her tongue shortly
before death, and the absence of any fractures in the larynx and hyoid bone. As to
the latter, Dr. Bolduc wrote: ―There are no fractures of the hyoid bone, thyroid or
cricoid cartilages.‖
The majority states: ―An autopsy report typically contains two types of
statements: (1) statements describing the pathologist‘s anatomical and
9
physiological observations about the condition of the body, and (2) statements
setting forth the pathologist‘s conclusions as to the cause of the victim‘s death.
The out-of-court statements at issue here — pathologist Bolduc‘s observations
about the condition of victim Pina‘s body — all fall into the first of the two
categories. These statements, which merely record objective facts, are less formal
than statements setting forth a pathologist‘s expert conclusions. They are
comparable to observations of objective fact in a report by a physician who, after
examining a patient, diagnoses a particular injury or ailment and determines the
appropriate treatment. Such notations are not testimonial in nature.‖ (Maj. opn.,
ante, at p. 12.)4
The majority creates a distinction between two kinds of statements in the
autopsy report: observations and conclusions. The majority appears to suggest
that while conclusions may be formal, observations are not. There are several
problems with this analysis. First, it conflates the two prongs of the testimonial
determination: formality and primary purpose. The formality prong looks to the
circumstances under which the statement is made and any efforts to enhance the
statement‘s formality by having it sworn (Melendez-Diaz, supra, 557 U.S. 305),
certified (Bullcoming, supra, 564 U.S. __ [131 S.Ct. 2705]), or signed (Davis,
supra, 547 U.S. 813). The formality prong turns on the circumstances of the
statement‘s production and preservation rather than its content.5
4 Of course there are several ways in which the statements are not
comparable. An autopsy report reflects the examination of a dead body rather than
a live patient. The autopsy surgeon is conducting an official inquiry, while a
physician is treating his or her patient, not assisting in a governmental
investigation.
5 The high court made clear that the content of a statement may be quite
important in determining the primary purpose for which it is made. (See, e.g.,
Bryant, supra, 562 U.S. at pp. __-__ [131 S.Ct. at pp. 1160-1161, 1165-1166].)
10
Second, the distinction the majority offers here was rejected in Bullcoming,
supra, 564 U.S. __ [131 S.Ct. 2705]. Justice Ginsburg, joined by four other
justices on this point, wrote: ―Most witnesses, after all, testify to their
observations of factual conditions or events, e.g., ‗the light was green,‘ ‗the hour
was noon.‘ Such witnesses may record, on the spot, what they observed. Suppose
a police report recorded an objective fact—Bullcoming‘s counsel posited the
address above the front door of a house or the read-out of a radar gun. [Citation.]
Could an officer other than the one who saw the number on the house or gun
present the information in court—so long as that officer was equipped to testify
about any technology the observing officer deployed and the police department‘s
standard operating procedures? As our precedent makes plain, the answer is
emphatically ‗No.‘ ‖ (Id. at pp. __-__ [131 S.Ct. at pp. 2714-2715].)
Further, the Bullcoming majority noted that while ―[t]he New Mexico
Supreme Court stated that the number registered by the gas chromatograph
machine called for no interpretation or exercise of independent judgment on [the
analyst‘s] part,‖ the ―analysts who write reports that the prosecution introduces
must be made available for confrontation even if they possess ‗the scientific
acumen of Mme. Curie and the veracity of Mother Teresa.‘ ‖ (Bullcoming, supra,
564 U.S. at p. __ [131 S.Ct. at p. 2715].)
We are not called upon in this matter to determine whether every aspect of
the autopsy report was testimonial. The question here is whether anatomical
observations Dr. Bolduc made are sufficiently formal in light of the circumstances
in which they were made and the document in which they were recorded. In many
cases, Government Code section 27491.4, subdivision (a) gives a coroner
discretion whether to conduct an autopsy. Once that discretion is exercised, the
statute requires: ―The detailed medical findings resulting from an inspection of the
body or autopsy by an examining physician shall be either reduced to writing or
11
permanently preserved on recording discs or other similar recording media, shall
include all positive and negative findings pertinent to establishing the cause of
death in accordance with medicolegal practice and this, along with the written
opinions and conclusions of the examining physician, shall be included in the
coroner‘s record of the death.‖ (Gov. Code, § 27491.4, subd. (a).)
Dr. Bolduc performed this autopsy and prepared a report in compliance
with Government Code section 27491.4, subdivision (a). He was working for the
Sheriff-Coroner of San Joaquin County, and the report is identified as a document
filed with the San Joaquin County Sheriff-Coroner‘s Office. An autopsy report is
a public record. (See Dixon v. Superior Court (2009) 170 Cal.App.4th 1271,
1278.)
Dr. Bolduc‘s autopsy report consists of seven pages. The top of the first
page bears the preprinted notation ―Office of Sheriff-Coroner, County of San
Joaquin.‖ That same page contains a reproduction of the badge of the San Joaquin
County Sheriff, below which is the name ―Robert Heidelbach, Sheriff-Coroner,
Public Administrator.‖
Additionally, the first page of the autopsy report identifies the document as
―Coroner‘s Autopsy Report.‖ In the upper right-hand corner of each subsequent
page is the identification ―Coroner‘s Autopsy Report.‖ Dr. Bolduc‘s name is
printed on the bottom of each page.
The report provides a detailed summary of the external examination of the
victim, concluding with ―Findings Consistent With Neck Compression.‖ The
report then provides a detailed summary of the internal examination, including the
description of the injuries to the neck and the absences of fractures ―of the hyoid
bone, thyroid or cricoid cartilages.‖
The report concludes with nine ―Autopsy Findings.‖ The first ―finding‖
states: ―The autopsy findings are consistent with neck compression for the
12
following reasons,‖ and list six reasons. The report states, ―Cause of Death:
Asphyxia (minutes) [sic]; Due to: Neck compression.‖ The report is signed by
―George E. Bolduc, M.D.,‖ and dated June 8, 2006.
In terms of formality, Dr. Bolduc‘s autopsy report comports closely with
the court‘s description of ―testimonial‖ in Bullcoming, supra, 564 U.S. __ [131
S.Ct. 2705]. There, the analyst‘s certificate, although unsworn, was ― ‗formalized‘
in a signed document, [citation], headed a ‗report,‘ ‖ and these attendant
formalities were found ―more than adequate to qualify [the analyst‘s] assertions as
testimonial.‖ (Id. at p. __ [131 S.Ct. at p. 2717].) Although Dr. Bolduc‘s
―Coroner‘s Autopsy Report,‖ is not certified, it is signed and dated. It is
manifestly an official report, prepared by Dr. Bolduc as an agent of the Sheriff-
Coroner and in compliance with the Government Code. I believe the document
and the circumstances of its preparation reveal that the statements at issue here are
sufficiently formal to satisfy that prong of the Supreme Court‘s testimonial test.
B. Dr. Bolduc’s Recorded Observations Satisfy the Primary Purpose Test
In Williams, supra, 567 U.S. __ [132 S.Ct. 2221], all members of the
Supreme Court agreed that the primary purpose for which a statement is made is
an important prong of the testimonial test. Beginning with Crawford, supra, 541
U.S. 36, the high court has declined to provide a firm definition of ―testimonial.‖
In Williams, three different formulations were given.
Justice Alito, for the plurality, wrote that even if the Cellmark report had
been introduced for its truth, it was not testimonial because it was not prepared for
―the primary purpose of accusing a targeted individual.‖ (Williams, supra, 567
U.S. at p. __ [132 S.Ct. at p. 2243] (plur. opn. of Alito, J.).) This formulation
garnered a total of four votes, as Justice Alito was joined by Chief Justice Roberts
and Justices Kennedy and Breyer. (Id. at p. __ [132 S.Ct. at p. 2227].). Under the
13
plurality‘s definition, a statement is not testimonial unless it was made to accuse a
specific person.
Justice Thomas rejected that definition. He agreed that for a statement to
qualify as testimonial, it must be made with a requisite primary purpose, which he
described thusly: ―[F]or a statement to be testimonial within the meaning of the
Confrontation Clause, the declarant must primarily intend to establish some fact
with the understanding that his statement may be used in a criminal prosecution.‖
(Williams, supra, 567 U.S. at p. __ [132 S.Ct. at p. 2261] (conc. opn. of Thomas,
J.).)6 He criticized the accusatory statement concept newly formulated by the
plurality because it ―lacks any grounding in constitutional text, in history, or in
logic.‖ (Williams, at p. __ [132 S.Ct. at p. 2262].)
Justice Kagan, in a dissent joined by Justices Scalia, Ginsburg, and
Sotomayor, also rejected the plurality‘s definition of the primary purpose test.
Justice Kagan wrote, ―Where that test comes from is anyone‘s guess. Justice
Thomas rightly shows that it derives neither from the text nor from the history of
the Confrontation Clause. [Citation.] And it has no basis in our precedents. We
have previously asked whether a statement was made for the primary purpose of
establishing ‗past events potentially relevant to later criminal prosecution‘—in
other words, for the purpose of providing evidence. Davis, 547 U.S., at 822, 126
S.Ct. 2266; see also Bullcoming, 564 U.S., at __, 131 S.Ct., at 2705; Bryant, 562
U.S., at ___,___, 131 S.Ct. 1143, at p. 1157; Melendez-Diaz, 557 U.S., at 310-311,
129 S.Ct. 2527; Crawford, 541 U.S., at 51-52, 124 S.Ct. 1354. None of our cases
has ever suggested that, in addition, the statement must be meant to accuse a
6 Justice Thomas cautioned that such a test must be coupled with the
solemnity requirement. Otherwise ―it sweeps into the ambit of the Confrontation
Clause statements that lack formality and solemnity and is thus ‗disconnected
from history.‘ ‖ (Williams, supra, 567 U.S. at p. __ [132 S.Ct. at p. 2261] (conc.
opn. of Thomas, J.).)
14
previously identified individual; indeed, in Melendez–Diaz, we rejected a related
argument that laboratory ‗analysts are not subject to confrontation because they
are not ―accusatory‖ witnesses.‘ 557 U.S., at 313, 129 S.Ct. 2527.‖ (Williams,
supra, 567 U.S. at pp. __-__ [132 S.Ct. at pp. 2273-2274] (dis. opn. of Kagan, J.).)
In Williams, supra, 567 U.S. __ [132 S.Ct. 2221], the high court failed to
articulate any reasoning accepted by a majority of that court. ― ‗When a
fragmented Court decides a case and no single rationale explaining the result
enjoys the assent of five Justices, ―the holding of the Court may be viewed as that
position taken by those Members who concurred in the judgment on the narrowest
grounds . . . .‖ ‘ (Marks v. United States (1977) 430 U.S. 188, 193.)‖ (Del Monte
v. Wilson (1992) 1 Cal.4th 1009, 1023.) ―This rule only works in instances where
‗one opinion can meaningfully be regarded as ―narrower‖ than another — only
when one opinion is a logical subset of other, broader opinions,‘ King v.
Palmer, . . . 950 F.2d 771, 781 (D.C.Cir. 1991) (en banc), that is to say, only when
that narrow opinion is the common denominator representing the position
approved by at least five justices. When it is not possible to discover a single
standard that legitimately constitutes the narrowest ground for a decision on that
issue, there is then no law of the land because no one standard commands the
support of a majority of the Supreme Court. [Citation.] [¶] . . . The only binding
aspect of such a splintered decision is its specific result . . . .‖ (U.S. v. Alcan
Aluminum Corp. (2d Cir. 2003) 315 F.3d 179, 189.)
As Justice Kagan wrote in Williams, supra, 567 U.S. __ [132 S.Ct. 2221],
― . . . I call Justice Alito‘s opinion ‗the plurality,‘ because that is the conventional
term for it. But in all except its disposition, his opinion is a dissent: Five Justices
specifically reject every aspect of its reasoning and every paragraph of its
explication.‖ (Id. at p. __ [132 S.Ct. at p. 2265] (dis. opn. of Kagan, J.).)
15
Because the high court failed to articulate any reasoning carrying a majority
of that court, Williams provides no authoritative reasoning for us to follow.
Nevertheless, despite the fractured voting, Williams represents the first time that
all nine justices agree that primary purpose is a significant part of the
―testimonial‖ analysis. So how do we determine whether the ―primary purpose‖
for which a statement was given satisfies that prong of the testimonial test?
We must apply the high court‘s binding decisions in this area. The four
dissenting justices in Williams continue to adhere to the primary purpose test
articulated in Davis, supra, 547 U.S. 813. (See Williams, supra, 567 U.S. at p. __
[132 S.Ct. at p. 2274] (dis. opn. of Kagan, J.).) As set out above, ante at page 5,
Justice Thomas provides a definition slightly different from that endorsed by the
dissenters. While future developments may clarify whether those differences
result in a legally significant distinction, the similarity between the two
formulations is sufficient to consider them together here.
The primary purpose test of Davis was again applied by the Supreme Court
majority in Bryant, supra, 562 U.S. __ [131 S.Ct. 1143]. The court further
explained that ―[a]n objective analysis of the circumstances of an encounter and
the statements and actions of the parties to it provides the most accurate
assessment of the ‗primary purpose of the interrogation.‘ The circumstances in
which an encounter occurs . . . are clearly matters of objective fact.‖ (Bryant,
supra, at p. __ [131 S.Ct. at p. 1156].)7
7 In Bullcoming, supra, 564 U.S. __ [131 S.Ct. 2705], Justice Ginsburg,
writing for the majority, included this footnote: ―To rank as ‗testimonial,‘ a
statement must have a ‗primary purpose‘ of ‗establish[ing] or prov[ing] past
events potentially relevant to later criminal prosecution.‘ ‖ (Id. at p. __ [131 S. Ct.
at p. 2714, fn. 6], quoting Davis, supra, 547 U.S. at p. 822.) Justice Thomas, a
member of the majority, did not join in the footnote.
16
In view of the binding precedent of the high court, I suggest the appropriate
inquiry is whether, viewed objectively, a sufficiently formal statement was made
for the primary purpose of establishing or proving past facts for possible use in a
criminal trial.
Turning to Dr. Bolduc‘s autopsy, the majority states: ―The usefulness of
autopsy reports, including the one at issue here, is not limited to criminal
investigations and prosecution; such reports serve many other equally important
purposes.‖ (Maj. opn., ante, at p. 14.)
Such a blanket approach is not supported by controlling precedent. While
some autopsies may be conducted for purposes unrelated to a criminal
prosecution, other autopsies conducted under different circumstances may well
result in the production of testimonial statements. In Bryant, supra, 562 U.S. __
[131 S.Ct. 1143], Justice Sotomayor, writing for the majority, notes that the
primary purpose for which a statement is made will often be highly fact
dependent.8 Indeed, the primary purpose may change as events evolve. The
Bryant court, citing Davis, supra, 547 U.S. at page 828, pointed out that a
conversation initially concerning the need for emergency assistance may evolve to
produce testimonial statements.9 Further, a statement may be made or recorded
8 For example, the majority noted, ―[W]hether an emergency exists and is
ongoing is a highly context-dependent inquiry.‖ (Bryant, supra, 562 U.S. at p. __
[131 S.Ct. at p. 1158].) ―In determining whether a declarant‘s statements are
testimonial, courts should look to all of the relevant circumstances.‖ (Id. at p. __
[131 S.Ct. at p. 1162].)
9 As the majority explained in Bryant: ―This evolution may occur if, for
example, a declarant provides police with information that makes clear that what
appeared to be an emergency is not or is no longer an emergency or that what
appeared to be a public threat is actually a private dispute. It could also occur if a
perpetrator is disarmed, surrenders, is apprehended, or, as in Davis, flees with little
prospect of posing a threat to the public. Trial courts can determine in the first
instance when any transition from nontestimonial to testimonial occurs, and
exclude ‗the portions of any statement that have become testimonial, as they do,
17
for multiple purposes. (See Bryant, supra, at p. __ [131 S.Ct. at p. 1161].)
However, it is the primary purpose that must be determined and that determination
will drive the analysis.
Thus, the question is whether this autopsy report was made for the primary
purpose of establishing past facts for possible use in a criminal trial. Answering
that question, ―we objectively evaluate the circumstances‖ in which the report was
generated. (Bryant, supra, 562 U.S. at p. __ [131 S.Ct. at p. 1156].)
An objective consideration of this autopsy report reveals the following. Dr.
Bolduc‘s autopsy of Pina‘s body took place over two days during a homicide
investigation. There is no dispute that the victim, whose body was discovered in
her parked car after a police search, was a homicide victim. The report reveals
that homicide detective Robert Faine was present throughout the autopsy. It
indicates that, at various times during the second day of the procedure, another
police officer, an evidence technician, and a Department of Justice representative
were also present. Faine testified at the preliminary hearing that he told Dr.
Bolduc about the position and appearance of Pina‘s body in the car. Dr. Bolduc‘s
autopsy report relates: ―This woman, dressed in pajamas and socks, was found on
the rear floorboard of her SUV covered by a blanket. The windows were closed
and the doors were locked.‖ The report also notes: ―History from police
Detective Faine that someone confessed to manually strangling the deceased from
the front and putting the body in her SUV and driving around for a while.‖ In
light of all these circumstances, I conclude that when Dr. Bolduc wrote this
for example, with unduly prejudicial portions of otherwise admissible evidence.‘ ‖
(Bryant, supra, 562 U.S. at pp. __-__ [131 S.Ct at pp. 1159-1160, fn. omitted].)
18
autopsy report, his primary purpose was to make the statements at issue to
establish facts for possible use in a criminal trial.10
While Justice Werdegar joins the majority opinion, she writes separately to
explain in more detail why Dr. Bolduc‘s statements are not testimonial. The
explanation offered is problematic.
First, on the issue of formality, the concurrence relies on standards
attributed to the National Association of Medical Examiners (NAME Standards).
Those standards appear nowhere in the record. The trial court did not rely on
them. No statute mentions them. We cannot determine from this record whether
those standards are widely accepted in California. We have no basis to conclude
those standards are implicated in this case.
On the primary purpose question, the concurrence asserts there is a
―consensus‖ that a statement is more testimonial ―to the extent it was produced
under circumstances making it likely to be used in place of live testimony at a
future criminal trial.‖ (Conc. opn. of Werdegar, J., ante, at p. 5.) It is inaccurate
to say there is a consensus among the justices as to the definition of ―primary
purpose.‖ The definition has been formulated variously in Crawford and
subsequent cases. As noted, three different formulations are contained in the
Williams opinion alone.
The precise phrasing of the test is important, even if the high court has yet
to agree upon one. Articulating the test in different ways gives rise to confusion. I
10 I note that because defendant had already confessed to strangling Pina at
the time Dr. Bolduc prepared his autopsy report, the primary purpose formulation
embraced by the Williams plurality is also satisfied. The autopsy statements were
made for the primary purpose of accusing a targeted individual, the confessing
defendant. (See Williams, supra, 567 U.S. at p. __ [132 S.Ct. at p. 2242] (plur.
opn. of Alito, J.).)
19
suggest it is unwise for us to try and synthesize the court‘s many formulations to
urge there is a consensus, where plainly one does not exist.
The concurrence again places heavy reliance on the NAME Standards to
conclude that a medical examiner may make a ― ‗neutral and objective medical
assessment,‘ ‖ when doing an autopsy. (Conc. opn. of Werdegar, J., ante, at p. 6.)
Regardless of how an association may characterize what some medical examiners
may generally do, the question before us is what this doctor did, and for what
primary purpose he wrote this autopsy report. There is no evidence in this record
that Dr. Bolduc followed the NAME Standards, or relied on them in any way. As
explained in the majority opinion (ante, at pp. 3-4) the pretrial evidentiary hearing
contains assertions that Dr. Bolduc was fired as a coroner in Kern County, did not
reveal that fact in his resume, and resigned his coroner‘s position in Orange
County ― ‗under a cloud.‘ ‖ Dr. Lawrence acknowledged at that hearing that
prosecutors in several counties refused to use him as an expert witness.
The concurrence‘s statement that there is no indication that Dr. Bolduc
―was guided in his conduct and documentation of the autopsy by anything other
than professional medical practices and standards‖ (conc. opn. of Werdegar, J.,
ante, at p. 9) rests on complete speculation. Indeed, it is precisely those questions
that could have been pursued during his cross-examination had the prosecution not
declined to call Dr. Bolduc as a witness.
C. Prejudicial Effect of the Error
The majority notes that Dr. Lawrence did not say whether his description of
Pina‘s body at the time of the autopsy was based solely on the autopsy
photographs, solely on Dr. Bolduc‘s autopsy report, or on a combination of the
two. (Maj. opn., ante, at p. 5.) The existence of multiple sources is important.
Autopsy photographs are not hearsay. Hearsay is an out-of-court
―statement.‖ (See Evid. Code, § 1200.) Evidence Code section 225 defines
20
―statement‖ as oral or written verbal expression or nonverbal conduct of a person.
Only people can generate hearsay. Machines, animals, chemical reactions cannot.
(See Simons, Cal. Evidence Manual (2012 ed.) §2.2, pp. 74-75.) Therefore, to the
extent Dr. Lawrence had used properly authenticated autopsy photographs to
explain his testimony, he would not have disclosed testimonial hearsay.11
On this record, supplemented by our review of the judicially noticed
autopsy record, it cannot be determined if the autopsy photographs would have
independently supported Dr. Lawrence‘s testimony. The photographs were not
admitted in evidence, and Dr. Bolduc‘s report did not mention them other than to
note that ―[m]ultiple photographs are taken.‖ Defendant objected to Dr.
Lawrence‘s testimony as hearsay. It was the prosecution‘s burden, as proponent
of the challenged evidence, to establish its admissibility. (See Pen. Code, § 1096.)
It failed to do so.
When the erroneous admission of evidence against a criminal defendant
violates a right under the federal Constitution, the judgment must be reversed
unless the prosecution shows beyond a reasonable doubt that the result would have
been the same notwithstanding the error. (Chapman v. California (1967) 386 U.S.
18, 24.) Applying that test here, I conclude that the erroneously admitted
testimony of Dr. Lawrence was prejudicial.
As the Court of Appeal explained, Dr. Lawrence‘s opinion that Pina was
strangled for at least two minutes was a crucial part of the prosecution‘s case:
―While defendant admitted strangling Pina to death, he said he did so only after he
was provoked to the point of losing control and argued he was guilty of at most
voluntary manslaughter. The prosecution‘s argument that defendant was guilty of
intentional murder, and not voluntary manslaughter, was based in large part on the
11 I assume Detective Faine, who attended the autopsy, could have
authenticated the autopsy photographs.
21
theory that during the time it took for defendant to strangle Pina, what may have
begun as passion shaded into intent. The only evidence offered by the prosecution
in support of this theory was Dr. Lawrence‘s testimony that Pina was strangled for
at least two minutes before she died, which he based on Dr. Bolduc‘s report. The
prosecutor relied on that testimony during her closing argument in arguing
defendant was guilty of murder and not voluntary manslaughter.‖
Dr. Lawrence description of Pina‘s body, drawn from the hearsay contained
in Dr. Bolduc‘s autopsy report, violated defendant‘s right to confront and cross-
examine Dr. Bolduc. Had the trial court excluded that description, there would
have been no evidence supporting Dr. Lawrence‘s opinion regarding the length of
Pina‘s strangulation.12 Without such evidence, the jury might have rejected the
prosecutor‘s argument (maj. opn., ante, at p. 6) that defendant could not have
killed Pina in the heat of passion because any such passion would have dissipated
during the two minutes it took to strangle her.
I would affirm the judgment of the Court of Appeal.
In reaching this conclusion I note that various Supreme Court justices have
written at length describing how the court‘s Crawford jurisprudence has created
serious and complicated problems, the full significance of which continues to
evolve.13 As Justice Alito observed in Williams, ―Experience might yet show that
12 Dr. Lawrence might have testified that he could base his opinion on
nonhearsay photographs. He did not. Had he done so, his claims that the
photographs were sufficient for that purpose would have been subject to cross-
examination as well as being potentially rebuttable by independent defense
evidence to the contrary.
13 See, for example, the concurring opinion of Chief Justice Rehnquist, joined
by Justice O‘Connor in Crawford, supra, 541 U.S. at pages 69-76; the dissenting
opinion of Justice Kennedy, joined by Chief Justice Roberts, and Justices Breyer
and Alito, in Melendez-Diaz, supra, 557 U.S. at pages 330-357; and the
concurring opinion of Justice Breyer in Williams, supra, 567 U.S. at pages __-__
[132 S.Ct. at pages 2244-2255].
22
the holdings [in Crawford‘s progeny] should be reconsidered for the reasons,
among others, expressed in the dissents the decisions produced.‖ (Williams,
supra, 567 U.S. at p. __, fn. 13 [132 S.Ct. at p. 2242, fn. 13] (plur. opn. of Alito,
J.).)
Application of Supreme Court precedent is further complicated by the fact
that the tests propounded are expressed in various formulations and are modified
in ensuing opinions with shifting levels of agreement among the justices. As
Justice Breyer pointed out in his Williams concurrence: ―Answering the
underlying general question . . . , and doing so soon, is important. Trial judges in
both federal and state courts apply and interpret hearsay rules as part of their daily
trial work. . . . Obviously, judges, prosecutors, and defense lawyers have to know,
in as definitive a form as possible, what the Constitution requires so that they can
try their cases accordingly. [¶] The several different opinions filed today embody
several serious, but different, approaches to the difficult general question. Yet
none fully deals with the underlying question as to how, after Crawford,
Confrontation Clause ‗testimonial statement‘ requirements apply . . . .‖ (Williams,
supra, 567 U.S. at p. __ [132 S.Ct. at p. 2248] (conc. opn. of Breyer, J.).) The
problem is reflected in the various opinions our court offers here.
23
Nevertheless, a majority of the Supreme Court has propounded a series of
rules founded squarely on a federal constitutional guarantee. Lower courts must
conscientiously apply those constitutionally mandated principles, as best we can
discern them, whether or not we agree with their wisdom or their logic.
CORRIGAN, J.
I CONCUR:
LIU, J.
24
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Dungo
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 176 Cal.App.4th 1388Rehearing Granted
__________________________________________________________________________________
Opinion No. S176886
Date Filed: October 15, 2012
__________________________________________________________________________________
Court: Superior
County: San Joaquin
Judge: Charlotte J. Orcutt
__________________________________________________________________________________
Counsel:
Ann Hopkins, under appointment by the Supreme Court, for Defendant and Appellant.
Bartell & Hensel, Donald J. Bartell, Lara J. Gressley; and John N. Aquilina for California DUI Lawyers
Association and California Attorneys for Criminal Justice as Amici Curiae on behalf of Defendant and
Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant
Attorney General, Michael P. Farrell, Assistant Attorney General, David A. Rhodes and Daniel E.
Bernstein, Deputy Attorneys General; James P. Willett, District Attorney, Edward J. Busuttil, Assistant
District Attorney, and Ronald J. Freitas, Deputy District Attorney, for Plaintiff and Respondent.
W. Scott Thorpe; and Albert C. Locher, Assistant District Attorney (Sacramento) for California District
Attorneys Association as Amicus Curiae on behalf of Plaintiff and Respondent.
Dolores A. Carr, District Attorney (San Jose) and John Chase, Deputy District Attorney, for California
Association of Crime Laboratory Directors as Amicus Curiae on behalf of Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Ann Hopkins
P.O. Box 23711
Oakland, CA 94623
(510) 530-8774
Ronald J. Freitas
Deputy District Attorney
222 East Weber, Room 202
Stockton, CA 95202
(209) 468-2400