APPEAL from a judgment of the Superior Court of San Joaquin County, Charlotte J. Orcutt, Judge. Reversed. (Super. Ct. No. SF100023A).
The opinion of the court was delivered by: Blease, Acting P. J.
CERTIFIED FOR PUBLICATION
Defendant Reynaldo Santos Dungo admitted choking his girlfriend Lucinda Correia Pina to death, but claimed he did so only after he was provoked to the point of losing control, and thus, was guilty of at most voluntary manslaughter. The jury disagreed and found defendant guilty of second degree murder, in part on the basis of the testimony of a pathologist (Dr. Robert Lawrence). (Pen. Code, § 187, subd. (a).)*fn1
At issue is the defendant‟s Sixth Amendment right to cross-examine the pathologist (Dr. George Bolduc) who prepared the report on the cause of the victim‟s death. A critical fact in the trial was the duration of the choking, which bore on the defendant‟s culpability, whether he was guilty of murder or voluntary manslaughter. Dr. Lawrence was not present at the autopsy on the victim‟s body and was permitted to testify, over defendant‟s Sixth Amendment objection, as to the cause of death, including the amount of time the victim was choked before she died. In doing so, he relied on the facts adduced in an autopsy report prepared by Dr. Bolduc, Dr. Lawrence‟s employee.
The autopsy report itself was not admitted into evidence, though Dr. Lawrence disclosed portions of the report to the jury, and defendant was not able to cross-examine Dr. Bolduc either on the facts contained in the report or his competence to conduct an autopsy. Dr. Lawrence testified at a preliminary hearing*fn2 that he was aware that Dr. Bolduc had been fired from Kern County and had been allowed to resign "under a cloud" from Orange County and that both Stanislaus and San Joaquin Counties refused to use him to testify in homicide cases. He explained that if Dr. Bolduc testifies "it becomes too awkward [for the district attorney] to make them easily try their cases. And for that reason, they want to use me instead of him."
The trial court ruled that there was no Sixth Amendment issue "[s]ince the autopsy report is not actually being introduced, which would then cause an issue regarding trustworthiness and testimonial [evidence] . . . ."
The Sixth Amendment issue is whether the autopsy report is "testimonial," and if so, whether allowing Dr. Lawrence, who was not present at the autopsy, to testify based on the facts in Dr. Bolduc‟s report violated defendant‟s right of confrontation under the Sixth Amendment. (See Crawford v. Washington (2004) 541 U.S. 36, 68 [158 L.Ed.2d 177, 203] (Crawford); Melendez-Diaz v. Massachusetts (2009) 557 U.S. __ [174 L.Ed.2d 314] (MelendezDiaz).)
We shall conclude that the autopsy report, which was prepared in the midst of a homicide investigation, is testimonial, and that Dr. Bolduc was a "witness" for purposes of the Sixth Amendment. Because there was no showing that Dr. Bolduc was unavailable or that defendant had a prior opportunity to cross-examine him, defendant was entitled to "be confronted with" Dr. Bolduc at trial. Thus, the trial court erred in allowing Dr. Lawrence, a non-percipient witness to the autopsy, to testify based on the contents of Dr. Bolduc‟s report.
Because the prosecution relied on Dr. Lawrence‟s testimony concerning the amount of time the victim was choked in arguing that defendant was guilty of murder and not voluntary manslaughter, we cannot conclude the error harmless beyond a reasonable doubt and shall reverse the judgment.*fn3
FACTUAL AND PROCEDURAL BACKGROUND
Defendant and Pina began dating in December 2005. At the time, both were married but living apart from their spouses.
In April 2006, Pina complained to her mother and friends that defendant was "smothering" her and told her mother that she wanted to end the relationship.
Around that same time, defendant intercepted a telephone call to Pina from Isaac Zuniga, Pina‟s former lover, and threatened to kill Zuniga if he did not stop calling.*fn4 Zuniga last spoke to Pina around noon on April 14, 2006. During that telephone call, Zuniga mentioned that he had attempted to telephone her a few weeks earlier, but a male answered and threatened to kill him if he did not stop calling. Pina sounded "pissed off," said she thought she knew who had answered the phone, and said she would talk to him about it.
On the night of April 14, 2006, defendant and Pina went to the home of Angelique and Felipe Torres to play dominos. During the visit, Pina asked Mrs. Torres whether she should confront defendant about answering her phone and telling Zuniga to stop calling. Pina and defendant left the Torres‟ home at approximately 1:00 a.m. the following morning and went to Pina‟s house.
Later that morning, defendant went next door to Pina‟s mother‟s home and asked her if she knew where Pina was. Defendant said that Zuniga had telephoned Pina sometime after 1:00 a.m. that morning, and that Pina had driven to Tracy "to take care of that situation." Pina‟s mother reported Pina missing later that day after she was unable to reach her on her cell phone.
On the morning of April 18, 2006, approximately three days after Pina went missing, police discovered her body inside her sports utility vehicle (SUV), which was parked in a residential area not far from her home. At that point, the investigation was turned over to the police department‟s robbery/homicide unit, and a detective from that unit was sent to investigate the crime scene. According to the detective, "the coroner had also been requested and was on scene." An autopsy was begun later that day and completed on April 19, 2006. The homicide detective that was sent to the scene to investigate was present during the autopsy.
Defendant was arrested on the morning of April 19, 2006. After waiving his Miranda*fn5 rights, he was interviewed by detectives Craig Takeda and Steven Capps. Defendant admitted "[c]hok[ing] [Pina] to death." After he and Pina returned from the Torres‟ home, they got into an argument that turned physical. Pina punched him in the chin and threw objects at him, and he grabbed her by the throat and choked her. He did so while straddling her as she was on her back on the floor. He stopped choking her once he saw that she had stopped breathing.
Defendant described Pina‟s death as an "accident" and said "[i]t was like I couldn‟t control my strength at the moment. . . . I didn‟t know what I was doing. I was a different person." He demonstrated how he strangled Pina on Takeda -- placing four fingers from each of his hands on the sides ...