APPEAL from the Superior Court of San Bernardino County. Daniel Detienne, Judge. (Super.Ct.No. FMB008690)
The opinion of the court was delivered by: Ramirez P. J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Affirmed with directions.
A jury convicted defendant, Bernard Steppe, of second degree murder (Pen. Code, § 187, subd. (a)),*fn2 during which he discharged a firearm causing death (§ 12022.53, subd. (d)), discharged a firearm (§ 12022.53, subd. (c)) and used a firearm (§§ 12022.53, subd. (b) & 12022.5, subd. (a)). The jury also convicted defendant of attempted murder (§§ 664/187, subd. (a)), during which he discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)), discharged a firearm and used a firearm. He was sentenced to prison for two 25-years-to-life terms and one 15-years-to-life term, plus 9 years. He appeals claiming the admission of certain DNA analysis evidence violated his right to confrontation, he was improperly denied discovery and a juror should have been excused. We reject his contentions and affirm, while directing the trial court to correct errors appearing in both abstracts of judgment.
During a 911 call on January 8, 2007, the attempted murder victim was heard to say that he and others had been shot by defendant, after the latter threatened to kill "all of [them]" and two of them were "down." In the background, the murder victim could be heard asking for help and saying he was going to die. Bullets had been fired into the front and back doors of a building which housed the attempted murder victim's law office. The attempted murder victim told arriving police that defendant had shot him, the murder victim and a female. Defendant had worked as the attempted murder victim's paralegal and he was living at the next door bail bonds building rent-free. The female and the attempted murder victim had been in the latter's office, cleaning, and the murder victim had been hired by the new owner of the building to help clean. Defendant, who was being evicted from the bail bonds building, came to the door of the next door building with a gun, waved it at all of them, pointed it at the murder victim and said he was going to shoot him. The murder victim and the attempted murder victim closed the door, but were shot by defendant in the process. The murder victim had been shot in the chest, the attempted murder victim in the lower right abdomen and on the left side of his face and the female in the thigh. Police followed fresh shoe tracks from the building from whence defendant had been evicted out into the desert. There were indicators that a person had gone down on their hands and knees and disturbed the dirt. A gun with seven expended shell casings inside was found buried in this area. The police stopped a car being driven by defendant nearby. As the police approached the car, defendant said, "You caught me." There were what appeared to be blood splatters on defendant's hands and jacket. The soles of the shoes he wore resembled the tracks that had been seen in the desert. On the way to jail, defendant said that he had "reloaded." There were seven expended .22-caliber shell casings in his pants pocket, which had been fired from the buried gun. Upon the police discovering them, defendant reiterated, "I reloaded." The bullet removed from the murder victim could have been fired from that gun. Defendant had gunshot residue on his hands. Blood with DNA matching the murder victim's was found on defendant's hand and his clothing. DNA matching the murder victim's and defendant's was also on the grip of the gun.
Defendant testified that he shot the attempted murder victim in self-defense and he denied inflicting the fatal shot to the murder victim and shooting the female. He claimed that he buried $5,000 in the desert, but not the gun, so the police must have dug up the money and replaced it with the gun.
1. Admission of DNA Analysis and Defendant's Right to Confrontation
A DNA analyst for the San Bernardino Crime Lab testified in general
about DNA testing. She testified that analysts in the lab "obtain DNA
typing results that have a numerical value from [items at the crime
scene] and we compare those numerical results [with those taken from
individuals present at the crime scene]. They either are the same or
they are different." She also testified that "chemicals and reagents
. . . are used during the analysis" and the analyst "performs the
actual extraction [of the DNA] and DNA typing analysis and comes to
interpretation, conclusion, and writes a report. However, neither she
nor any other DNA analyst testified about the method by which the raw
data used by analysts to conclude that there was a match was
obtained--whether this raw data was computer-generated*fn3
or the product of work by the analyst or by the analyst
with the assistance of co-workers or by a co-worker.*fn4
She went on to testify that after the report is written,
"that whole file is given on to a second qualified individual who
reviews the raw data and comes to their own conclusions based on the
results, and they must agree [with the first analyst] before th[e
first analyst's] report leaves the building." She testified, inter
alia, to the analysis she arrived at regarding the DNA of the people
at the scene of the crimes, including defendant. Hereafter, she will
be referred to as the people analyst.
The technical reviewer of the DNA analysis done on bloodstains and suspected bloodstains found on defendant's clothing and on a door at the crime scene testified that her job was to "review . . . all the notes, data, and the report of the DNA analyst and . . . ensure that the results are accurate and the conclusions are appropriate for th[e] items [tested]. It also includes doing an independent analysis of the data and interpretation and arriving at results and then comparing those results to the analyst's results to . . . ensure that it is accurate and the conclusions are appropriate for those items." She testified that she was the technical reviewer for the analyst who analyzed the bloodstains and suspected bloodstains on defendant's clothing and the door. She was asked if she reviewed all of the clothing/door analyst's raw data regarding those items and she said she did.*fn5 When she was asked if she compared the first such stain to the DNA analysis performed by the people analyst, defendant, who was representing himself, objected as follows, "I have a right to confront [the clothing/door analyst] and I am objecting to th[e technical reviewer] saying anything about [that analyst's] work. I have a right to have confrontation with [the clothing/door analyst] about anything she did, the facts that she reviewed." The trial court overruled the objection. Thereafter, the technical reviewer was asked whether she "looked at . . . [the] raw data [for the first bloodstain from defendant's clothing]" and was able to make a comparison between that and the [DNA profiles made by the people analyst] . . . ." She replied, " . . . I interpreted the raw data and drew, interpreted, and arrived at the . . . results that are listed along the top [of a DNA table introduced into evidence called 'STR-DNA Analysis Results.']." She went on to testify, as is relevant here, that it was her conclusion, looking at the raw data, that the murder victim was the major donor of DNA to suspected bloodstains on defendant's t-shirt and was the only donor of DNA to a bloodstain and a suspected bloodstain on defendant's jacket and she added the statistical probabilities that someone other than the murder victim could have the same DNA. Additionally, two of the suspected bloodstains on the door matched the murder victim's DNA*fn6 and for a third, he was a major donor.*fn7 She was asked, "[W]hen you conducted and did your independent analysis of the raw data, can you compare your results to [the clothing/door analyst]'s results?" She replied that she could and "the conclusions were exactly the results that I stated here. They have to be consistent and that is the point of the tech[nical] review. I have to insure it is accurate and we are agreed upon in terms of the same result or similar result and the same conclusion." She added that she and the clothing/door analyst's results were the same for each item. The clothing/door analyst's report was not shown to the jury nor admitted into evidence and there is nothing in the record to suggest that the STR-DNA Analysis Results pages referred to by the technical reviewer throughout her testimony and admitted into evidence were generated by the clothing/door analyst. Defendant here contends that the trial court erred in overruling his confrontation clause objection to the technical reviewer's testimony. We disagree.
After the parties fully briefed this case, the United States Supreme Court decided Williams, and, stunningly, neither party has submitted a supplemental brief to this court addressing its application to this case. In Williams,*fn8 the issues were whether "Crawford bar[s] an expert from expressing an opinion based on facts about a case that have been made known to the expert but about which the expert is not competent to testify . . . [or] [¶] . . . [¶] ' . . . the constitutionality of allowing an expert witness to discuss others' testimonial statements if the testimonial statements were not themselves admitted as evidence.' [Citation.]" (Williams, supra, 132 S.Ct. at pp. 2227, 2233.) "The . . . report [of the outside lab] itself was neither admitted into evidence nor shown to the [judge in a bench trial]. [The expert] did not quote or read from the report; nor did she identify it as the source of any of the opinions she expressed." (Id. at p. 2230.)
As is pertinent to our discussion, the High Court held, "Even if the
[outside lab's] report had been introduced for its truth, we would
nevertheless conclude that there was no Confrontation Clause
violation. . . . [¶] 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. In all but one of the post-Crawford cases
in which a Confrontation Clause violation has been found, both of
these characteristics were present. [Citations.][*fn9
] . . . [¶] . . . In [Michigan v.] Bryant
[(2011) 131 S.Ct. 1143] . . . we explained that a person who makes a
statement to resolve an ongoing emergency is not acting like a trial
witness because the declarant's purpose is not to provide a solemn
declaration for use at trial . . . . [Citation.] We noted that 'the
prospect of fabrication . . . is presumably significantly diminished'
when a statement is made under such circumstances [citation] and that
reliability is a salient characteristic of a statement that falls
outside the reach of the Confrontation Clause [citation]. We
emphasized that if a statement is not made for 'the primary purpose of
creating an out-of-court substitute for trial testimony,' its
admissibility 'is the concern of state and federal rules of evidence,
not the Confrontation Clause.' [Citation.] [¶] In Melendez-Diaz and
Bullcoming, the Court held that the particular forensic reports at
issue qualified as testimonial statements, but the Court did not hold
that all forensic reports fall into the same category. Introduction
of the reports in those cases ran afoul of the Confrontation Clause
because they were the equivalent of affidavits made for the purpose of
proving the guilt of a particular criminal defendant at trial. . . .
[¶] The [outside lab] report [here] is very different [than the
forensic reports in Melendez-Diaz and Bullcoming]. 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.]"*fn10
(Williams, supra, 132 S.Ct. at pp. 2242-2243, fns.
omitted.) " . . . 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. [¶] It is also
significant that in many labs, numerous technicians work on each DNA
profile. [Citations.] When the work of a lab is divided up in such a
way, it is likely that the sole purpose of each technician is simply
to perform his or her task in accordance with accepted procedures.
[¶] Finally, the knowledge that defects in a DNA profile may often be
detected from the profile itself provides a further safeguard. . . ."
(Williams, supra, 132 S.Ct. at p. 2244.) [¶] " . . . If DNA profiles
could not be introduced without calling the technicians who
participated in the preparation of the profile, ...