APPEAL from a judgment of the Superior Court of Los Angeles County. Robert J. Perry, Judge. (Los Angeles County Super. Ct. No. SA042750)
The opinion of the court was delivered by: Rubin, J.
opn. following U.S. Supreme Ct. remand
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Antonio Barba appeals from the judgment entered after a jury convicted him of first degree murder. Our three previous decisions affirmed the judgment after rejecting Barba's contention that the court erred by admitting certain evidence on DNA findings. In each, the United States Supreme Court granted certiorari and remanded the matter with directions to reconsider our decision in light of that court's then-newest decision concerning whether evidence of forensic laboratory reports violated a defendant's Sixth Amendment right to confront and examine adverse witnesses when the laboratory personnel who prepared those reports did not testify at trial. After considering the high court's latest ruling, we once more affirm the judgment.
FACTS AND PROCEDURAL HISTORY*fn2
Cab driver Keum Kim was robbed and stabbed to death by a fare he had driven from Santa Monica to Venice in the early morning hours of July 8, 2001. Kim was dispatched in response to a phone call from a man identifying himself as Sergio who said he needed a ride to Brooks Street in Venice and wondered whether the driver might have change for a $50 bill. The murder was witnessed by a man who had stopped his car behind Kim's parked cab at the 800 block of Brooks Street. The witness saw Kim and the passenger struggle and then saw the passenger run from the cab into some nearby bushes. According to the witness, the passenger was wearing a blue, hooded sweatshirt that was covered with blood. However, the witness did not see the passenger clearly and was therefore unable to identify him. A search of the area by the police turned up a bloody kitchen knife and a dark sweatshirt covered with blood.
Los Angeles Police Detective Paul Inabu was the primary detective assigned to investigate Kim's murder. On July 10, 2001, Inabu requested that the knife and sweatshirt be sent to a crime lab for DNA analysis. Even though no suspect had as yet been identified, Inabu made that request to determine whether those items were even connected to the crime and, if so, to preserve them in case a suspect was identified later on. DNA testing of blood samples from those two items showed the blood was Kim's.
On July 25, 2001, Inabu received an anonymous phone call from a woman who claimed Antonio Barba had killed Kim. After getting a search warrant, Inabu searched Barba's apartment, which was right near the spot where "Sergio" asked the taxi dispatcher to have Kim pick him up. The search turned up a knife that was identical to the murder weapon, but found no physical evidence linking Barba to the crime. Barba was arrested on August 2, 2001, and was formally charged with the murder and robbery of Kim in October 2002.
A police criminalist removed some hairs from the bloody sweatshirt and sent them to Orchid Cellmark (Cellmark), a DNA testing lab. A November 2001 test by Cellmark analyst Linda Wong produced no interpretable results from the hair samples. In February 2002, a police criminalist retrieved more hairs from the sweatshirt. Although they were not initially considered suitable samples for DNA testing, the hair was eventually sent on to Cellmark for a testing process that involved combining the hairs. When that was accomplished, there was only enough DNA to analyze nine genetic locations, not the 13 typically examined by Cellmark. Six of them were consistent with Barba's DNA profile.*fn3
Barba was tried for murder and robbery, but a hung jury led to a mistrial in February 2004. Barba was retried starting in August 2004. Cellmark's lab director, Dr. Jennifer Reynolds, testified for the prosecution about DNA evidence in general and about the results of the tests performed by Wong, who no longer worked for Cellmark. Reynolds acknowledged that hair samples sent for testing could, in the abstract, have become contaminated from saliva, skin, blood, mishandling by the lab, and the failure to wash samples. Such contamination was always a possibility, she testified. Wong's notes did not indicate that she had washed the hairs that yielded the positive test results for Barba's DNA. The defense introduced evidence of several unrelated instances of lab contamination by police criminalists, along with evidence of 53 reported control discrepancies at Cellmark between March 2001 and December 2002.
The jury convicted Barba of first degree murder (Pen. Code, § 187, subd. (a)), but deadlocked on the robbery count (Pen. Code, § 211), which was then dismissed. Barba was given a sentence of life without possibility of parole, plus one year.
In his original appeal Barba contended: (1) the court committed error by denying his motion which charged that the prosecutor peremptorily challenged an African-American prospective juror because of his race; (2) the court erred by allowing in evidence the anonymous phone tip and portions of Barba's jailhouse conversations that were recorded by the police; and (3) the DNA evidence was inadmissible because the test results were hearsay and because allowing Reynolds to testify about Wong's test results violated his constitutional right to confront the witnesses against him. In November 2007, we issued our first opinion in this matter, affirming the judgment. (People v. Barba (Nov. 21, 2007, B185940) [nonpub. opn.] (Barba I).) On June 29, 2009, the United States Supreme Court granted Barba's petition for certiorari, vacated our earlier decision, and remanded the case to us with directions to reconsider our decision in light of its holding four days earlier in Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305 (Melendez-Diaz), which concerned a defendant's constitutional right to confront adverse witnesses where the results of scientific tests were involved.
On remand, we affirmed again, distinguishing this case from Melendez-Diaz because the disputed DNA test report was admitted as part of the basis for the independent opinion of another expert witness. (People v. Barba (Feb. 21, 2009, B185940) [nonpub. opn.] (Barba II).) We also concluded that even if the report should not have been admitted in evidence, the error was harmless. Even though the only issue before us on remand was the applicability of Melendez-Diaz, because our entire decision in Barba I had been vacated, we restated our discussion as to the other issues that had been before us.
On June 28, 2011, the United States Supreme Court granted a new petition for certiorari from Barba, vacated our decision in Barba II, and remanded the case to us with directions to reconsider our decision in light of its holding in Bullcoming v. New Mexico (2011) 564 U.S. ___ [131 S.Ct. 2705] (Bullcoming), which considered whether a defendant's constitutional confrontation rights were violated by having someone other than the person who conducted a laboratory analysis testify about the results and report of the person who actually conducted the test. On remand, we again affirmed the judgment. (People v. Barba (Jan. 23, 2012, B185940 [nonpub. opn.] (Barba III).)
On November 13, 2012, the United States Supreme Court granted Barba's petition for writ of certiorari in Barba III and asked us to reconsider our decision in light of its decision in Williams v. Illinois (2012) 567 U.S. ___ [132 S.Ct. 2221] (Williams). As we did in Barba II and Barba III, although the United States Supreme Court has directed us to reconsider our decision only in light of its most recent Confrontation Clause decision, because it vacated our decision in Barba III, in Part II of our Discussion, we restate our analysis and holding from Barba I, Barba II and Barba III as to the issues not implicated by Williams.
CONFRONTATION CLAUSE ISSUES
Hairs from the blood-soaked sweatshirt discarded by Kim's killer were sent to Cellmark for DNA analysis. Three hair samples taken by the LAPD in September 2001 matched Kim's DNA, not Barba's. More hair samples taken from the sweatshirt in March 2002 also matched Kim's DNA, not Barba's.
The hair samples that implicated Barba were removed from the sweatshirt on February 21, 2002, by LAPD criminalist Michael Mastrocovo. He found 14 hairs and gave them to LAPD criminalist Susan Brockbank, who examined them and concluded they had telogen roots, which were not suitable for DNA analysis. In May 2002, Mastrocovo told the prosecutor those hairs could be combined to produce a testable sample, but that doing so would destroy the sample, thereby precluding any further testing. The prosecutor said to perform the test, and Mastrocovo sent the 14 hairs to Cellmark with instructions to consume the samples if necessary. The LAPD's lab procedure manual recommended that before DNA testing was performed on hair samples, the hairs should be washed to reduce the presence of any contaminants. Mastrocovo did not wash these hair samples because he did not extract them.
In June 2002, Cellmark DNA analyst Linda Wong tested the 14 hairs sent by Mastrocovo. Wong had performed the previous DNA tests but, unlike those tests, her notes did not reflect that she performed the Chelex procedure, which involves washing the hairs to remove any contaminants that might have been deposited on them. Wong cut and combined the hair shafts and was able to locate only nine genetic locations instead of the 13 that were usually present. Of those nine, six were consistent with Barba's DNA.
Instead of lab analyst Wong, Dr. Jennifer Reynolds, the director of Cellmark's Maryland laboratory, testified about the DNA results. Reynolds's duties included performing technical reviews of case folders created by the lab's test analysts, independently drawing conclusions from the test results based on her own expertise and training, and either cosigning the reports or testifying about them in court. Reynolds ended this description of her job duties by stating, "as I have done today." According to Reynolds, the case file for the June 2002 testing included correspondence from the LAPD, test data and results, Wong's worksheets and handwritten notes, and reports of the test's conclusions. Analysts complete their lab notes and other documents at or near the time of the events. The materials in the file included all of the lab notes and worksheets that an analyst would have to fill out in the course of DNA testing. The information in the file was detailed enough to allow any qualified scientist to look at the file and determine what procedures had been used. For instance, Reynolds testified, the file included electropherograms, from which anyone with the proper training could determine how the testing was done. Those records were kept and maintained in the normal course of Cellmark's business.
Along with Reynolds's testimony, four DNA test reports were admitted in evidence: (1) Wong's November 27, 2001 report which determined that three hair samples taken from the killer's sweatshirt contained only Kim's DNA (Exhibit 27); (2) Wong's March 26, 2002 report which determined that another sample taken from the sweatshirt contained only Kim's DNA (Exhibit 28); (3) Wong's June 28, 2002 report which determined that the 14 hairs found in the sweatshirt matched Barba's DNA (Exhibit 29); and (4) A June 10, 2004 report by lab analyst Terrill that another hair sample from the sweatshirt belonged to Kim, and not to Barba (Exhibit 35).*fn4
These four reports were prepared in the identical format. Each was on Cellmark letterhead, addressed to a police investigator. Each bore the title, "REPORT OF LABORATORY EXAMINATION." Each described the items being tested and the type of test performed - polymerase chain reaction (PCR) testing. Under the heading "RESULTS," the reports said that DNA extracts were isolated from the items tested by using the "AmpF/STR Profiler Plus and/or AmpF/STR COfiler PCR Amplification Kits." The results section said that the DNA loci tested and the types obtained for each sample were listed in an attached table.
Under the heading "CONCLUSIONS," the reports stated whether the DNA matched Kim or excluded Barba. A population database and frequency table was provided to show the frequency of unrelated individuals having the same DNA results depending on whether they were African American, Caucasian, or Hispanic. The third page of the reports contained a table identified as "ALLELES DETECTED - PROFILER PLUS," and then set forth certain letter or numerical designations that corresponded to certain DNA loci.
Exhibits 27, 28, and 35 all stated that Barba was excluded as the source of the DNA. Exhibit 29, which implicated Barba, stated in the RESULTS section that "[a] portion of the hair shafts adjacent to the roots was used as a control. Any results obtained from this hair shaft control are likely due to DNA deposited on the exterior of the hair shaft." Under CONCLUSIONS, the report said that the DNA profile used six of nine loci and that Barba could not be excluded as the source. No conclusion about Barba could be reached as to the other three loci. The report's database frequency table said that only one in six million unrelated Hispanics would have the same DNA at those six loci. Under the ALLELES DETECTED table on the third page was the following notation: "In addition to the profiles obtained from the items referenced in this report, weak results were observed. These results may be due to the presence of DNA from more than one individual or to technical artifacts, and therefore were not interpreted." Each report was signed by the analyst and by a lab director.
Barba objected that having Reynolds testify instead of Wong violated his confrontation rights. Defense counsel said she believed the incriminating hair samples had been contaminated while in the LAPD's custody before being sent to Cellmark for testing, but that Wong's testimony was required because there was evidence she had not washed the hair samples, which would have eliminated any contamination. Without Wong's testimony, there would be no explanation of why that happened.
The trial court overruled the objection because it believed Wong's reports qualified as business records. However, Reynolds was allowed to testify only as to procedures that Wong's notes showed were actually conducted, or as to what the lab's standard protocols were. Reynolds was not allowed to speculate as to any procedures not reflected in Wong's notes, or why they might not have been performed. Reynolds testified that, in accord with her job duties, she was in court to give her own independent conclusions based on the contents of Wong's case file. According to Reynolds, only one in six million people would have the same six genetic markers as those that matched Barba.
Reynolds was vigorously cross-examined about Wong's testing procedures. Reynolds said that because the notes did not state that Wong had washed the hair samples before testing, Wong probably had not done so. Reynolds also testified that even though the test results were accurate as to the DNA found on the hair shafts, that did not mean the DNA had not been deposited there before testing. Nor could she rule out whether such contamination had occurred.
2. Relevant Confrontation Clause Decisions
Under the Sixth Amendment to the United States Constitution, a defendant in a criminal trial has the right to confront and cross-examine adverse witnesses (the Confrontation Clause). This provision bars the admission at trial of a testimonial statement made outside of court against a defendant unless the maker of the statement is unavailable at trial and the defendant had a prior opportunity to cross-examine that person. (People v. Lopez (2012) 55 Cal.4th 569, 580-581 (Lopez), citing Crawford v. Washington (2004) 541 U.S. 36, 59 (Crawford).) To be considered testimonial, the out-of-court statement: (1) must have been made with some degree of formality or solemnity; and (2) must have a primary purpose that pertains in some fashion to a criminal prosecution. However, the United States Supreme Court has been unable to agree on a precise definition of those requirements. (Lopez, at p. 581.)
The defendant in People v. Geier (2007) 41 Cal.4th 555, was convicted of murder and rape based in part on DNA evidence tested by Cellmark. The analyst who performed the testing did not testify at trial. Instead, a lab director who co-signed the report did, and, based on the results and her review of the case file, testified that in her expert opinion the incriminating DNA matched that of the defendant. Geier contended his constitutional right to confront and cross-examine adverse witnesses was violated because the lab analyst did not testify. Our Supreme Court disagreed.
After examining disparate state and federal authority on the issue of whether scientific test reports were testimonial for purposes of the confrontation clause, the Geier court relied in large measure on Davis v. Washington (2006) 547 U.S. 813 (Davis), which involved two consolidated cases. The first involved the admissibility of a recording of a 911 phone call by a victim who was describing an attack upon her as it occurred. The second arose from the police response to a domestic disturbance call. After arriving at the scene and separating the couple, the officers questioned the victim and had her fill out and sign an affidavit describing the battery, which was later admitted at her attacker's trial. The Davis court held that the tape of the 911 call was admissible under the Confrontation Clause because the victim was describing events as they occurred and had the primary purpose of enabling the police to respond to an ongoing emergency. (Geier, supra, 41 Cal.4th at pp. 603-604, citing Davis at pp. 822, 827.) The domestic violence victim's statements were testimonial, the Davis court held, because they were made after an ongoing emergency had ended and their primary purpose was to establish or prove past events potentially relevant to a later criminal prosecution. (Ibid., citing Davis at pp. 822, 829.)
Based on this, the Geier court concluded a statement was testimonial only if three requirements were all met: (1) it was made to a law enforcement officer or by a law enforcement officer or agent; (2) it describes a past fact related to criminal activity; and (3) it will possibly be used at a later trial. (Geier, supra, 41 Cal.4th at p. 605.) The Geier court found the second point determinative. Even though the analyst was working for the police and could reasonably anticipate the use of her test results at trial, those results "constitute[d] a contemporaneous recordation of observable events rather than the documentation of past events." (Ibid.) As a result, when the analyst recorded the results, she was not acting as a witness and was not testifying. (Id. at pp. 605-606.)
The Geier court believed that under Davis, supra, 547 U.S. 813, various types of laboratory reports were not testimonial because they were contemporaneous observations of recordable events. (Geier, supra, 41 Cal.4th at pp. 606-607.) Even before Davis, the Geier court observed, numerous courts looked to the circumstances under which statements in laboratory reports and other forensic evidence were made in order to conclude that they were not testimonial despite their possible use at trial. (Id. at p. 607.)
The circumstances under which the DNA documents at issue in Geier were created led that court to conclude that they too were not testimonial. First, they were generated as part of a standardized scientific protocol conducted pursuant to the analyst's employment at Cellmark. Even though the prosecutor hoped to obtain evidence against Geier, the analyst's work product was part of her job, and was not intended to incriminate him. Second, to the extent the analyst's notes and reports recounted the procedures used, they were not accusatory because DNA analysis can lead to either incriminatory or exculpatory results. Third, the accusatory opinions that the DNA evidence matched Geier "were reached and conveyed not through the non-testifying technician's laboratory notes and report, but by the testifying witness, [the lab director]." (Geier, supra, 41 Cal.4th at p. 607.) Accordingly, it was the circumstances under which the DNA report and notes were generated that led the Geier court to determine that those documents were not testimonial. (Ibid.)
B. The Melendez-Diaz Decision
The defendant in Melendez-Diaz, supra, 557 U.S. 305, was convicted in Massachusetts state court of selling cocaine. A substance in the defendant's possession that was believed to be cocaine was sent to a lab for analysis, and the lab test confirmed it was cocaine. At trial, as permitted by Massachusetts law, a sworn affidavit known as a certificate of analysis was allowed in evidence in order to prove that the substance tested positive as cocaine. The analyst who performed the test did not testify at trial. The certificate said nothing more than that the substance was found to contain cocaine. At the time of trial, the defendant did not know what tests the analyst performed, whether those tests were routine, or whether interpreting their results required the exercise of judgment or skills the analyst did not possess.
The Melendez-Diaz court held that the affidavits fell within the core class of testimonial statements - such as depositions, prior testimony, declarations, and affidavits - whose admission violates the confrontation clause. (Melendez-Diaz, supra, 567 U.S. at pp. 309-310.) Therefore, the analysts were witnesses and their affidavits were testimonial, meaning that the defendant had a right to "confront" them at his trial unless the analysts were unavailable for trial and the defendant had a previous opportunity to cross-examine them. (Id. at p. 311.) In short, "[t]he Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits, and the admission of such evidence . . . was error." (Id. at p. 329, fn. omitted.)
In Barba II we held that Melendez-Diaz did not apply because that decision did not consider the scenario present here, where the reports themselves did not contain a sworn certificate or affidavit attesting to their genuinness and accuracy and the DNA evidence came in through the in-court testimony of an expert witness who used the analyst's test materials to form her own independent opinion.
C. The Bullcoming Decision
Bullcoming was arrested in New Mexico for drunk driving, and his blood sample was sent to a New Mexico state lab for testing. The analyst who tested the sample determined that Bullcoming's blood alcohol level was .21 grams per hundred millimeters, which was very high. The analyst recorded his results on a state-prepared form titled "Report of Blood Alcohol Analysis." The report included a "certificate of analyst," affirming that: the sealed sample he tested was received at the laboratory intact, with the seal unbroken; the statements made by the analyst were correct; and that he had followed the procedures set out on the back side of the form. Those procedures required analysts to retain the sample container and raw data from the analysis and to note anything that might affect the integrity of the sample or otherwise affect the validity of the analysis. No such notations appeared on the certificate for Bullcoming's test results. Finally, under the heading "certificate of reviewer," a state lab examiner who reviewed the analysis certified that the person who tested the sample and prepared the report was qualified to do so and had followed the established procedures for conducting the test.
At Bullcoming's trial, the analyst who tested his blood sample did not testify because he had been placed on disciplinary leave. Instead, the prosecution called another analyst who was familiar with the lab's testing procedures but had not participated in or observed the test on Bullcoming's sample.
The trial court overruled Bullcoming's objection that allowing the other lab analyst to testify about the report violated his confrontation rights, and he was convicted of aggravated drunk driving. The New Mexico Supreme Court affirmed. That court said the certifying analyst was a mere scrivener who did nothing more than transcribe the results generated by the machine used to conduct the test. The substitute analyst who testified at trial was a qualified expert on the use of that machine and provided live, in-court testimony that was subject to cross-examination. As a result, the New Mexico court concluded, even though the certificate was testimonial, Bullcoming's right of confrontation was not violated.
In Bullcoming, supra, 131 S.Ct. 2705, the United States Supreme Court reversed. In a plurality opinion, the court held that the analyst's certificate was a testimonial statement that could not be introduced unless the analyst was unavailable for trial and the defendant had a prior opportunity to confront that witness. Justice Ginsburg delivered the four-part decision. However, part IV did not command a majority, and the concurring opinion of Justice Sotomayor, who also declined to join in part IV, sets the parameters of Bullcoming's reach. (Panetti v. Quarterman (2007) 551 U.S. 930, 949 [if no majority opinion, the narrower holding controls]; Marks v. United States (1977) 430 U.S. 188, 193 (Marks) [in plurality decision, court's holding is viewed as the position taken by the justices who concurred on the narrowest grounds].)
Part I of the Bullcoming decision contained the facts and procedural history. Part II explained why the surrogate analyst was an inadequate substitute for the analyst who performed the test. The court noted that the analyst's certification reported more than a machine-generated number. It also included the analyst's certification that he received the blood sample intact with the seal unbroken, that he had properly followed certain specified procedures, and that nothing happened to affect the integrity or validity of the testing process. (Bullcoming, supra, 131 S.Ct. at p. 2714.) Even so, the comparative reliability of an analyst's testimonial report derived from machine-generated data does not overcome the confrontation clause, and analysts who write reports that the prosecution puts in evidence must be made available for examination at trial. (Id. at p. 2715.)*fn5
Surrogate testimony by someone who qualified as an expert regarding the machine used and the lab's procedures could not convey what the actual analyst knew or observed when testing Bullcoming's blood sample, and cross examination would not expose "any lapses or lies" by the certifying analyst, the Bullcoming court held. This was especially significant because the analyst was on disciplinary leave, but was not declared unavailable by the prosecution. As a result, Bullcoming's lawyer could not question the analyst to determine whether he was incompetent or dishonest. (Bullcoming, supra, 131 S.Ct. at pp. 2715-2716.) In short, if the Sixth Amendment is violated, "no substitute procedure can cure the violation." (Id. at p. 2716.)
Part III of Bullcoming, which commanded a majority of the court, explained why the analyst's certificate was testimonial for purposes of the confrontation clause. The court rejected New Mexico's contention that the report was not adversarial or inquisitorial because it contained nothing more than the observations of an independent scientist created pursuant to a non-adversarial public duty. As the Melendez-Diaz court held, a document created solely for an evidentiary purpose in aid of a police investigation is testimonial. (Bullcoming, supra, 131 S.Ct. at pp. 2716-2717.)
Even though the analyst's certificate was not signed under oath, as was the case in Melendez-Diaz, the two documents were similar in all material respects, the Bullcoming court held. (Bullcoming, supra, 131 S.Ct. at p. 2717.) As in Melendez-Diaz, a police officer provided a sample to a lab for testing to assist in a police investigation. An analyst tested the sample and prepared a certificate concerning the results. Finally, the certificate was formalized in a signed document that was sufficient to qualify the analyst's statements as testimonial despite the absence of notarization present in Melendez-Diaz. In short, the certificate was testimonial. (Bullcoming, at p. 2717.)
Part IV explained why the court did not believe that application of its holding would impose an undue burden on the prosecution by requiring it to produce the analyst who actually conducted a test and prepared a report. (Bullcoming, supra, 131 S.Ct. at pp. 2717-2719.)
Justice Sotomayor's concurring opinion had two express purposes: (1) to explain why the analyst's report was testimonial; and (2) "to emphasize the limited reach of the court's opinion." (Bullcoming, supra, 131 S.Ct. at p. 2719 (conc. opn. of Sotomayor, J).)
As to her first purpose, Justice Sotomayor reaffirmed the principle that a statement is testimonial if its primary purpose was evidentiary - to create an out-of-court substitute for trial testimony. (Bullcoming, supra, 131 S.Ct. at pp. 2719-2720 (conc. opn. of Sotomayor, J).) She agreed with the majority that the lab analyst's certificate was sufficiently formal to suggest its evidentiary purpose despite the absence of an affirmation under oath that was present in Melendez-Diaz. However, she noted that formality is not the only test to determine whether a report is testimonial. (Id. at pp. 2720-2721.)
As to her second purpose, Justice Sotomayor pointed out four circumstances not present in Bullcoming. First, this was not a case where the state suggested an alternate primary purpose for the report, such as medical reports created while treating a patient. (Bullcoming, supra, 131 S.Ct. at p. 2722 (conc. opn. of Sotomayor, J.).)
Second, because the surrogate analyst testified that he had no part in producing any portion of the report and did not observe the testing process, "this is not a case in which the person testifying is a supervisor, reviewer, or someone else with a personal, albeit limited, connection to the scientific test at issue." (Bullcoming, supra, 131 S.Ct. at p. 2722 (conc. opn. of Sotomayor, J.).) For example, a supervisor who observed an analyst conducting the test might be allowed to testify about the results. Justice Sotomayor did not address the precise degree of involvement necessary to justify ...