Bob S. Bowers, Jr., Judge Superior Court County of Los Angeles (Super. Ct. No. BA285264)
The opinion of the court was delivered by: Coffee, J.*fn3
CERTIFIED FOR PUBLICATION
Roosevelt Holmes appeals from a judgment after conviction by jury for murder (Pen. Code, § 187, subd. (a), 189), first degree residential burglary (§ 459), and first degree residential robbery (§ 211).*fn1 The jury found true allegations that appellant committed the burglary and robbery counts with infliction of great bodily injury (§ 12022.7, subd. (a)), that he committed each count with personal use of a deadly and dangerous weapon (§ 12022, subd. (b)(1)), and that he suffered a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). Appellant admitted that he had served nine prior prison terms. (§ 667.5.) The court sentenced appellant to life in prison without parole.
Appellant contends that his right to confrontation under the Sixth Amendment of the United States Constitution was violated because the testifying DNA experts did not personally perform all of the testing upon which they relied in reaching their opinions. We reject the contention. The forensic analysis relied on by the DNA experts in this case was not "testimonial" under any formulation of that term yet-adopted by a majority of the United States Supreme Court justices or by the California Supreme Court. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Gretchen Lewis was killed in her apartment. She was strangled and stabbed. At her apartment, police collected gloves, a knife, and samples of a blood stain, among other things. The coroner collected blood and fingernail scrapings from Lewis's body. Police also collected DNA samples from a friend who reported Lewis missing (James Marquez) and, later, from appellant because Marquez said he had seen appellant in Lewis's apartment about two weeks before she was killed.
The collected materials were subjected to DNA analysis at the Los Angeles Police Department's Scientific Investigations Department (SID) and at two private laboratories run by Orchid Cellmark Laboratories (Cellmark). Cellmark's laboratory in Texas tested the knife handle. Its laboratory in Pennsylvania tested the nail scrapings, Lewis's blood and Marquez's sample. SID tested the glove, the knife handle and appellant's sample.
Three supervising criminalists from these three labs offered opinions at trial, over defense objection, based on DNA tests that they did not personally perform. They referred to notes, DNA profiles, tables of results, typing summary sheets, and laboratory reports, that were prepared by non-testifying analysts. None of these documents was executed under oath. None was admitted into evidence. Each was marked for identification and most were displayed during the testimony. Each of the experts reached his or her own conclusions based, at least in part, upon the data and profiles generated by other analysts.
Amber Moss, a senior forensic scientist at the Texas Cellmark laboratory,*fn2 offered the opinion that a DNA sample taken from the handle of the knife contained a mixture of DNA that matched a combination of appellant's and Lewis's DNA profiles. In reaching this conclusion, Moss relied on raw data, notes, and genetic analysis generated by other analysts at her laboratory and at Cellmark's Pennsylvania laboratory.
As a technical reviewer, it was Moss's job to review the paperwork associated with each step of testing these samples to ensure that a generally accepted protocol was followed. After verifying that protocol was followed, she looked at the data and made sure she was in agreement with the conclusions of the person who generated the report. The steps of sample testing are: (1) extracting DNA from a sample; (2) quantifying the amount of DNA extracted; (3) amplifying the sample by copying the extracted DNA; (4) running the sample on a genetic analyzer machine, which generates a profile by type tags on the DNA with a laser; (5) comparing the resulting profile with the profile of known samples to determine if they match; (6) performing a statistical analysis by entering the profiles into a software program. Moss had personally performed these steps thousands of times on other samples.
Appellant's counsel objected to Moss's testimony on the grounds that it was hearsay and violated his constitutional right to confront witnesses against him because Moss relied on tests that she did not personally perform. Appellant's counsel cited Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305 (Melendez-Diaz). The trial court ...