The People v. Barba

Filed 4/19/13 opn. following U.S. Supreme Ct. remand

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B185940

Plaintiff and Respondent, (Los Angeles County

Super. Ct. No. SA042750)

v.

ANTONIO BARBA,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County.

Robert J. Perry, Judge. Affirmed.

Marilee Marshall & Associates and Marilee Marshall, for Defendant and

Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Joseph P. Lee and Mary Sanchez, Deputy Attorneys General, for Plaintiff and

Respondent.

__________________________

* Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is

certified for publication with the exception of part II of the DISCUSSION.

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 HISTORY1

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

1 The statement of facts is taken in large part from our previous decision. (People v.

Barba (Jan. 23, 2012) [nonpub. opn.].)

2

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.2

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

2 We state the facts concerning the DNA evidence in more detail in section I., 1. of

our Discussion, post.

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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.

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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.

DISCUSSION

I.

CONFRONTATION CLAUSE ISSUES

1. The DNA Evidence

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

5

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

6

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).3

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.

3 These reports were not part of the appellate record in either Barba I or Barba II.

In Barba III, we ordered the record augmented to include these trial exhibits.

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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.

8

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.)

A. The Geier Decision

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.

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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

10

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 nontestifying 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

11

– 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.

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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

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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.)4

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 nonadversarial 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

4 In Part II of Bullcoming, footnote 6 mentioned Melendez-Diaz’s observation that

business and public records are generally admissible absent confrontation because they

are usually created in order to administer an entity‟s affairs, not to prove a fact at trial.

(Bullcoming, supra, 131 S.Ct. at p. 2714, fn. 6.) Although a majority of the court signed

off on Part II of Bullcoming, Justices Ginsburg and Thomas did not join in footnote 6,

and it is therefore part of the plurality holding only.

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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

15

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

testimony by someone other than the analyst because the surrogate analyst who testified

at Bullcoming‟s trial had no involvement in the test and report. (Ibid.)

Third, this was “not a case in which an expert witness was asked for his

independent opinion about underlying testimonial reports that were not themselves

admitted into evidence. [Citation.]” (Bullcoming, supra, 131 S.Ct. at p. 2722 (conc. opn.

of Sotomayor, J.).) That scenario would present a different question, Justice Sotomayor

explained.

Fourth, the case did not involve only machine-generated results. Instead, the

prosecution introduced the analyst‟s statements about the results of the test, the

procedures used, and their validity and integrity. Therefore, the decision did not consider

whether the prosecution could introduce raw, machine-generated data in conjunction with

expert witness testimony. (Bullcoming, supra, 131 S.Ct. at p. 2722 (conc. opn. of

Sotomayor, J.).)

In Barba III, we again affirmed, holding that as to Reynolds‟s testimony alone, it

fell under the exception for the independent opinion of an expert witness based on

underlying testimonial reports not placed in evidence, as suggested in Justice

Sotomayor‟s concurring opinion. As for admitting in evidence the three DNA reports

that excluded Barba as a DNA donor, we held that any error was harmless beyond a

reasonable doubt. As for admitting in evidence the one report that found a “match” with

Barba‟s DNA, we held that the error was harmless because: (1) it contained no

affirmations that all testing procedures had been correctly followed; (2) Reynolds was

forced to concede that Wong had not washed the hair samples, which confirmed the key

defense claim against Cellmark‟s handling of the samples; (3) Reynolds conceded on

cross examination that she could not rule out the possibility that the samples had been

contaminated; and (4) the report was virtually meaningless without Reynold‟s expert

testimony.

16

D. The Williams Decision

Williams arose from the kidnap, rape, and robbery of a Chicago woman in

February 2000. Vaginal swabs were taken as part of a sexual assault examination and the

Illinois State Police sent those swabs to a Cellmark lab for DNA analysis. Cellmark

tested the swabs and produced a DNA profile of the semen donor. Defendant Williams

had not been identified as the perpetrator and was not considered a suspect in that crime

when the Cellmark DNA profile was created. Williams was arrested in August 2000 on

unrelated charges. A sample of his blood was taken at that time, from which the state

police lab created a DNA profile. Sometime later, state police crime lab analyst Sandra

Lambatos conducted a computer search of DNA profiles in the state police database to

see if any matched the DNA profile that Cellmark had produced from the rape victim‟s

vaginal swabs. Lambatos determined that the Cellmark profile from the vaginal swabs

matched the state crime lab‟s DNA profile of Williams produced from his August 2000

blood sample. Williams then took part in a lineup where the rape victim identified him as

her attacker. At trial, Lambatos testified about her conclusions based on the Cellmark

DNA report, but the report itself was not in evidence.

Williams was found guilty at a bench trial and the Illinois Court of Appeals and

Supreme Court each affirmed that judgment. At issue in those appeals was whether

Lamabtos‟s testimony concerning the match between the state police lab and Cellmark

DNA profiles violated Williams‟s Sixth Amendment confrontation rights.

The United States Supreme Court affirmed the judgment, yet remained as

fractured as it had in Bullcoming. In a plurality opinion written by Justice Alito, the court

set forth two independent grounds why Lambatos‟s expert testimony did not violate the

Confrontation Clause. In the first of these, Justice Alito said that the testimony was not

admitted for its truth. Instead, the prosecution expert‟s references to the underlying DNA

reports had the limited purpose of explaining the basis of Lambatos‟s independent expert

conclusion that Williams‟s DNA from the state police lab profile matched the profile that

Cellmark produced from the victim‟s vaginal swabs. (Williams, supra, 132 S.Ct. at

17

p. 2228 (plur. opn. of Alito, J.).) Because this was a bench trial, it was far more likely

that the trial judge was able to evaluate this evidence for this limited purpose. (Id. at

pp. 2236-2237.)

The plurality‟s alternative ground rested on the conclusion that the Cellmark DNA

report was not testimonial for purposes of Confrontation Clause analysis. The Williams

plurality reasoned that the confrontation clause had not been violated because the

Cellmark report was prepared for the primary purpose of finding a dangerous rapist who

was still at large, not for the primary purpose of targeting an accused individual.

(Williams, supra, 132 S.Ct. at p. 2243 (plur. opn. of Alito, J.).)5

Justice Thomas wrote a separate concurring opinion, concluding that even though

Lambatos‟s testimony about the Cellmark DNA report went to the truth of that report, the

report was not testimonial because it “lack[ed] the solemnity of an affidavit or

deposition.” (Williams, supra, 132 S.Ct. at p. 2260 (conc. opn. of Thomas, J.).) Justice

Kagan, joined by Justices Scalia, Ginsburg, and Sotomayor, dissented. According to the

dissent, testimony about the Cellmark DNA by Lambatos (who was not affiliated with

Cellmark) violated Williams‟s right to confront the Cellmark analyst who prepared the

report because the expert‟s statements went to the truth of that report. (Id. at p. 2276 (dis.

opn. of Kagan, J.).)

E. Post-Williams Decisions of the California Supreme Court

(i) People v. Lopez

On October 15, 2012, the California Supreme Court issued a trio of companion

cases interpreting Williams: Lopez, supra, 55 Cal.4th 569; People v. Dungo (2012)

55 Cal.4th 608 (Dungo); and People v. Rutterschmidt (2012) 55 Cal.4th 650

(Rutterschmidt).

5 However, as we discuss in detail in our analysis, the plurality‟s language veered

from this limiting language and signaled a far broader holding.

18

The defendant in Lopez was found guilty of vehicular manslaughter while

intoxicated. (Pen. Code, § 191.5, subd. (b).) At trial, a sheriff‟s department criminalist

testified that he had reviewed a lab report – made by a colleague – which showed that the

defendant‟s blood alcohol level was .09 percent two hours after the collision. The

criminalist testified that based on his own separate abilities he too concluded that the

defendant‟s blood alcohol level was .09 percent. The criminalist testified that he had

worked at the lab for 17 years, knew its procedures for processing and testing blood

samples, had trained the analyst who actually tested the defendant‟s blood, and that all

lab technicians receive the same training. The report was also allowed in evidence.

After the Court of Appeal affirmed the judgment, our Supreme Court granted

review and ordered the appellate court to reconsider its holding in light of Melendez-

Diaz. The Court of Appeal then reversed the judgment, and the California Supreme

Court granted review. The Lopez court noted Geier’s holding that the DNA evidence at

issue in that case was not testimonial because it was a contemporaneous recordation of

observable events. (Lopez, supra, 55 Cal.4th at pp. 577, 581.) However, the Melendez-

Diaz and Bullcoming courts held that the lab reports at issue in those cases were

testimonial even though they contained near-contemporaneous observations of a

scientific test. (Ibid. citing Melendez-Diaz, supra, 557 U.S. at p. 315, and Bullcoming,

supra, 131 S.Ct. at pp. 2714-2715.)

To resolve this issue, the Lopez court looked to Crawford, Melendez-Diaz,

Bullcoming, and Williams. (Lopez, supra, 55 Cal.4th at p. 581.) It held that the portions

of the lab report that contained nothing other than the machine-generated results of the

test performed were not sufficiently formal or solemn to be testimonial under the

Confrontation Clause because they lacked any attestations or assertions of validity, and

because there was no way to cross-examine the machine that generated those results. (Id.

at pp. 582-583.) The same was true as to portions of the report that functioned like a

chain of custody report by showing that it was the defendant‟s sample being tested.

Those notations, on a chart captioned “FOR LAB USE ONLY”, were instead nothing

more than an informal record of data for internal purposes. (Id. at pp. 583-584.)

19

(ii) People v. Dungo

The defendant in Dungo, supra, 55 Cal.4th 608, was convicted of murder. A

prosecution forensic pathologist testified that the victim had been strangled. That

expert‟s opinion testimony was based on objective facts concerning the condition of the

body that another pathologist observed and recorded in the autopsy report. The report

itself was not placed in evidence. The Court of Appeal reversed the judgment,

concluding that the defendant‟s Confrontation Clause rights had been violated.

The Dungo court reversed. Justice Kennard‟s lead opinion, in which four other

justices concurred, determined that the autopsy report was not testimonial under the

Confrontation Clause. First, the expert testified as to only the physical observations

recorded in the autopsy report, not as to the conclusions reached by the pathologist who

conducted the autopsy and prepared the report. Such observations lack the formality

required under the Confrontation Clause. (Dungo, supra, 55 Cal.4th at pp. 619-620.)

Second, the court held that autopsy reports do not have the primary purpose of

targeting an accused individual. Autopsy reports are required by law for certain types of

deaths – some related to criminal activities and some not. (Dungo, supra, 55 Cal.4th at

p. 620.) Such reports therefore serve many purposes: to allow a decedent‟s family to

learn whether a wrongful death action is warranted; for insurance companies to determine

whether a death is covered under one of its policies; and to provide answers to grieving

family members or satisfy the public‟s interest in the death of newsworthy persons. (Id.

at p. 621.) Although autopsy reports are sometimes prepared for criminal investigations,

their primary purpose is to provide an official explanation for an unusual death. Such

official records are not ordinarily testimonial. (Ibid.)

Justice Chin wrote a concurring opinion, which was joined by three other justices.

In it, he amplified the lead opinion‟s reasoning in light of the plurality opinion in

Williams. According to Justice Chin, the autopsy report did not have the primary purpose

of accusing the defendant or any other targeted individual of having committed a crime.

20

Instead, its primary purpose was to describe the condition of the victim‟s body. (Dungo,

supra, 55 Cal.4th at p. 630 (conc. opn. of Chin, J.).)6

(iii) People v. Rutterschmidt

The court in Rutterschmidt, supra, 55 Cal.4th 650, considered the appeal of a

murder conviction from a trial where a lab director testified as a prosecution expert that,

based on lab tests conducted by others, the victims had been drugged. The Rutterschmidt

court declined to address whether a Confrontation Clause violation occurred, opting

instead to affirm on the ground that any error was harmless beyond a reasonable doubt

based on other overwhelming evidence of the defendants‟ guilt. (Id. at p. 661.)

F. Post- Williams Decisions By the California Court of Appeal

(i) People v. Huynh

The defendant in People v. Huyhn (2012) 212 Cal.App.4th 285 (Huynh) was

charged with drugging and murdering one man, and with drugging and sexually

assaulting another. The surviving victim had no memory of what occurred and was taken

to a medical facility, where a sexual assault exam was performed. The nurse who

conducted that exam observed and photographed various signs that the victim had been

sodomized and otherwise sexually assaulted. That nurse was unavailable to testify at

defendant‟s trial, so her supervisor testified about the examination results in her stead,

opining based on the photographs that the victim‟s anus showed signs of significant

trauma.

Division 1 of the Fourth District rejected the defendant‟s claim that the substitute

witness‟s testimony violated the Confrontation Clause. After discussing recent United

States Supreme Court Confrontation Clause decisions, including Williams, along with the

California Supreme Court‟s ruling in Dungo, the Huynh court found Dungo most

6 We explain Justice Chin‟s reasoning in greater detail in section I., 5. of our

DISCUSSION, post, where we analyze Williams and its applicability to this case.

21

analogous. Because the defendant was not a suspect and was not the target of a criminal

investigation when the exam was performed, the court held that the primary purpose of

the sex assault exam and the photographs was to show the condition of the victim‟s body,

not to accuse a targeted individual. (Huynh, supra, 212 Cal.App.4th pp. 320-321.)

(ii) People v. Holmes

In People v. Holmes (2012) 212 Cal.App.4th 431 (Holmes), Division Six of this

court considered a case similar to ours: a defendant convicted of burglary, robbery, and

murder challenged the judgment under the Confrontation Clause because lab supervisors

testified about DNA results found on evidence at the crime scene, not the analysts who

conducted those tests. Relying on Dungo, the appellate court held that no Confrontation

Clause violation occurred because the unsworn and uncertified lab reports lacked the

formality required to find such a violation. (Id. at pp. 437-438.)

(iii) People v. Westmoreland

The court in People v. Westmoreland (2013) 213 Cal.App.4th 602 affirmed the

murder and robbery convictions of a defendant who claimed his Confrontation Clause

rights were violated when a forensic expert testified based on both the observations and

conclusions contained in an autopsy report prepared by someone else. The appellate

court noted that the case was unlike Dungo because the expert testified about someone

else‟s conclusions, not just his observations, and because the autopsy report itself was

placed in evidence. Even so, no Confrontation Clause violation occurred, the court held,

because Dungo’s conclusion about the primary purpose of autopsy reports extended

beyond the more limited facts of that case. (Id. at pp. 623-624.)

(iv) People v. Steppe

The court in People v. Steppe (2013) 213 Cal.App.4th 1116 affirmed a conviction

for attempted murder against the defendant‟s contention that his Confrontation Clause

rights were violated when a laboratory‟s technical reviewer gave her own independent

22

opinion that the defendant‟s DNA matched that retrieved from certain evidence, as

opposed to having the technician who performed the tests testify at trial. Interpreting

both Williams and Lopez, the Steppe court held that no Confrontation Clause violation

occurred.

First, as to the testimony referring to the raw data generated from the tests, such

machine-generated results are not testimonial under Lopez. (Steppe, supra,

213 Cal.App.4th at p. 1126.) As to the reviewer‟s testimony that she reached the same

conclusion about a DNA match as did the analyst who performed the test, the court found

no Confrontation Clause violation for the following reasons: (1) there had already been

testimony that the lab would not issue a report unless a reviewer concurred in the

analyst‟s finding, meaning that the jury already knew that the analyst and the reviewer

had reached the same conclusion; (2) under Williams and Lopez, such reports are not

formal and solemn enough to be testimonial; and (3) the reviewer‟s brief reference to the

analyst‟s report and her reliance on the raw data it contained were proper under

California law because “such items are reasonably relied on by experts in the field of

DNA analysis in forming their opinions.” (Id. at pp. 1126-1127, citing to People v.

Gardeley (1996) 14 Cal.4th 605, 618, for the third reason.)

3. How To Interpret Williams

In Barba III, we interpreted Bullcoming in accord with Justice Sotomayor‟s

concurring opinion under the rule that a fragmented court‟s holding may be viewed as

that position taken by a majority of justices who concurred on the narrowest grounds.

(Marks, supra, 430 U.S. at p. 193.) When the California Supreme Court set out to

interpret Williams, however, it found that rule ill-suited to the disparate reasoning

employed by the plurality and Justice Thomas‟s concurring opinion.

In Dungo, supra, 55 Cal.4th 608, the court held that one pathologist could testify

about an autopsy report prepared by another because such reports had multiple purposes

and therefore did not have the primary purpose of serving as testimony at trial. Justice

Kennard wrote the lead opinion, which was joined by Chief Justice Cantil-Sakauye and

23

Justices Werdegar, Baxter, and Chin. However, Justice Chin wrote a concurring opinion,

joined by the Chief Justice and Justices Baxter and Werdegar, that amplified the

reasoning of the lead opinion.

Justice Chin‟s first task was to stake out the analytic guideposts for a decision as

fractured as that in Williams. Because Justice Thomas‟s concurring opinion at least

partly contradicted the Williams plurality, it could not be a logical subset of the plurality

opinion, thereby making the Marks rule inapplicable. (Dungo, supra, 55 Cal.4th at p. 628

(conc. opn. of Chin, J.).) However, a legal opinion that commanded a majority of the

Supreme Court is not required to find that court‟s reasoning. Instead, we need find

nothing more than a legal standard which, when applied, will necessarily produce a result

with which a majority of that court would agree. (Ibid, citing U.S. v. Williams (9th Cir.

2006) 435 F.3d 1148, 1157.)

Justice Chin explained that under this interpretive rule, the result in Williams

allowed a majority of our Supreme Court in Dungo to discern a standard that would

command the support of a majority of the Williams court. Because a majority of that

court found no Confrontation Clause violation, albeit for different reasons, if such a

ruling in Dungo would comport with the reasoning of both the plurality and concurring

opinions in Williams, then an affirmance was possible. (Dungo, supra, 55 Cal.4th at

p. 628 (conc. opn. of Chin, J.).) “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 were 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

satisfied the requirements of both the plurality opinion and Justice Thomas‟s

concurrence.” (Id. at pp. 628-629, original italics.)7

7 Even if Justice Chin‟s concurring opinion does not rise to the level of binding

precedent, we may rely on it because it was signed by four of the court‟s seven justices.

(People v. Retanan (2007) 154 Cal.App.4th 1219, 1231 [rejecting appellant‟s reliance on

a Supreme Court concurring opinion because no other justices joined in].) At a

24

4. The Williams Plurality’s Holding Regarding the Primary Purpose of DNA Testing

Under the interpretive rule announced in Dungo, we may affirm if we can find that

there was no confrontation clause violation under the rationales employed by both the

plurality and Justice Thomas‟s concurring opinion in Williams. In our view, Justice

Thomas would likely affirm because the DNA reports created by Wong for this case were

not sworn or certified declarations of fact that attested to their accuracy and reliability,

and were therefore not sufficiently formal or solemn enough to invoke the protections of

the Confrontation Clause. (Williams, supra, 132 S.Ct. at p. 2260 (conc. opn. of

Thomas, J.).)8 We must then determine whether the Williams plurality would have

reached the same result, albeit for different reasons.

The alternative ground for the Williams court‟s plurality opinion was the

determination that the Confrontation Clause would not have been violated even if the

Cellmark DNA report had been admitted in evidence. According to the plurality, the

report in that case did not have the primary purpose of targeting an accused individual

and therefore was not testimonial. (Williams, supra, 132 S.Ct. at pp. 2242-2243 (plur.

opn. of Alito, J.).) Barba understandably latches onto this language because he was not

only a suspect in Kim‟s death when the DNA tests were conducted, he was in custody

after having been charged with the crime. However, as we indicated earlier, we believe

the Williams plurality has a broader reach.

minimum, we consider it persuasive authority and a reliable indicator of how a majority

of the court would rule.

8 Barba contends that Justice Thomas would view the DNA reports as sufficiently

formalized and solemn to be considered testimonial because, if they were falsified, a

felony would have been committed under Penal Code section 134. We reject that

contention.

Penal Code section 134 states that it is a felony to prepare any false document or

object with the intent that it be produced at trial for any fraudulent purpose. That

provision would apply with equal force to documents that are not testimonial under the

Confrontation Clause, such as the autopsy reports in Lopez and Dungo. That would not

make them testimonial just because they had been falsified.

25

We begin by setting forth in full the Williams plurality‟s rationale for concluding

that DNA test reports were not testimonial under the Confrontation Clause. In describing

the holding that would appear later in the decision, the plurality noted that 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. On the contrary, a DNA profile is evidence that tends to

exculpate all but one of the more than 7 billion people in the world today. The use of

DNA evidence to exonerate persons who have been wrongfully accused or convicted is

well known. 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. [Citation.] The Confrontation Clause

does not mandate such an undesirable development. This conclusion will not prejudice

any defendant who really wishes to probe the reliability of the DNA testing done in a

particular case because those who participated in the testing may always be subpoenaed

by the defense and questioned at trial.” (Williams, supra, 132 S.Ct. at p. 2228 (plur. opn.

of Alito, J.).)

When the Williams plurality turned to its analysis and discussion of this issue, it

noted that the Melendez-Diaz and Bullcoming courts did not hold that all forensic reports

were testimonial statements. In those cases, the reports violated 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. There was nothing resembling an ongoing

emergency, as the suspects in both cases had already been captured, and the tests in

question were relatively simple and can generally be performed by a single analyst. In

addition, the technicians who prepared the reports must have realized that their contents

26

(which reported an elevated blood-alcohol level and the presence of an illegal drug)

would be incriminating.

“The Cellmark report 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 [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 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 scientifically sound and reliable profile. [Citation.]

“The situation in which the Cellmark technicians found themselves was by no

means unique. 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. . . . 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.

27

“Finally, the knowledge that defects in a DNA profile may often be detected from

the profile itself provides a further safeguard. In this case, for example, [police

laboratory analyst] Lambatos testified that she would have been able to tell from the

profile if the sample used by Cellmark had been degraded prior to testing. As noted

above, moreover, there is no real chance that „sample contamination, sample switching,

mislabeling, [or] fraud‟ could have led Cellmark to produce a DNA profile that falsely

matched petitioner. Post, at [2275], (Kagan, J., dissenting). At the time of the testing,

petitioner had not yet been identified as a suspect, and there is no suggestion that anyone

at Cellmark had a sample of his DNA to swap in by malice or mistake. And given the

complexity of the DNA molecule, it is inconceivable that shoddy lab work would

somehow produce a DNA profile that just so happened to have the precise genetic

makeup of petitioner, who just so happened to be picked out of a lineup by the victim.

The prospect is beyond fanciful.

“In short, the use at trial of a DNA report prepared by a modern, accredited

laboratory „bears little if any resemblance to the historical practices that the

Confrontation Clause aimed to eliminate.‟ [Citation.]” (Williams, supra, 132 S.Ct. at

pp. 2243-2244 (plur. opn. of Alito, J.).)

5. The Dungo Court’s Analysis of Williams

We next examine Justice Chin‟s concurring opinion in Dungo, supra, 55 Cal.4th

608, which commanded a majority of the court. Justice Chin concluded that the autopsy

report statements relied on at trial by the expert witness were not testimonial because

their primary purpose was to describe the condition of the victim‟s body. In doing so,

Justice Chin stated that “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.” (Dungo, supra, 55 Cal.App.4th at p. 630 (conc. opn. of Chin, J.), quoting

Williams, supra, 132 S.Ct. at p. 2244.)

28

Justice Chin‟s concurring opinion went on to observe that “practical

considerations” helped to inform the Williams plurality, pointing to the plurality‟s

statement that economic pressures would likely cause prosecutors to forego the use of

DNA testing if they had to call the technicians who helped prepare a DNA profile.

Similar considerations were at play for autopsy reports, Justice Chin wrote. (Dungo,

supra, 55 Cal.4th at p. 631 (conc. opn. of Chin, J.), citing Williams, supra, 132 S.Ct. at

p. 2228.)

Justice Chin acknowledged that the circumstances in Dungo supported the

contention that the autopsy report‟s primary purpose was to accuse the defendant in that

case 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.” (Dungo, supra, 55 Cal.4th at p. 632 (conc. opn. of Chin, J.).) Even so, he did

not believe that the Williams plurality intended to allow evidence of DNA reports only

when there was no identified suspect at the time the report was prepared. “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 that this is

a requirement rather than merely one of „the surrounding circumstances‟ of which the

court must take account.” (Ibid. citing Williams, supra, 132 S.Ct. at p. 2243, original

italics.)

The key distinction for Justice Chin was that the opinion concerning the manner of

death came from the testifying expert who was subject to full cross examination, and not

from the report, which was not placed in evidence. (Dungo, supra, 55 Cal.4th at p. 632

(conc. opn. of Chin, J.).) In forming his opinion, the testifying expert relied on

statements in the autopsy report concerning the condition of the victim‟s body. Such

statements “are objective observations of the type routinely placed into autopsy reports,

whether or not a 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

29

report, „was not inherently inculpatory.‟ [Citation.] There was no prospect of fabrication

or incentive to produce anything other than an accurate description of the state of the

body.” (Dungo, supra, 55 Cal.4th at p. 632 (conc. opn. of Chin, J.), citing Williams,

supra, 132 S.Ct. at pp. 2228, 2244.)

A majority of the California Supreme Court therefore interprets the Williams

plurality to mean that a DNA profile report is not necessarily testimonial simply because

the defendant had been identified as a suspect when the report was prepared. Instead,

according to Justice Chin‟s concurring opinion in Dungo, that is merely a factor to

consider when evaluating the circumstances under which reports of forensic test results

are prepared.

6. The Absence of An Identified Suspect Is Not Required Under the Williams

Plurality’s Analysis of the Primary Purpose of DNA Testing

We agree with Justice Chin‟s concurring opinion in Dungo that the Williams

plurality did not make the absence of a targeted individual a requirement for finding that

a DNA test report is not testimonial. Even though the Williams plurality can be plausibly

read as limited to situations where no suspect had been identified when a DNA profile

was produced, that narrow language actually serves as the jumping off point for a broader

interpretation.

As we explained above, the Williams plurality said that when the police sent the

samples to Cellmark for DNA testing, its primary purpose was to identify and catch the

rapist. The same was true for the Cellmark technicians, who could not have known that

their test results would point to the defendant or anyone else with a DNA profile in the

state‟s database. However, the plurality then said in essence that the Cellmark

technicians who tested the incriminating samples that were later linked to Williams were

no different from DNA lab technicians in general, who never know whether their work

will incriminate or exonerate someone whether or not that person has been identified as a

suspect or charged with a crime. (Williams, supra, 132 S.Ct. at p. 2244 (plur. opn. of

Alito, J.).)

30

The Williams plurality elsewhere extolled the virtues of DNA testing in general,

noting that its use “to exonerate persons who have been wrongfully accused or convicted

is well known.” (Williams, supra, 132 S.Ct. at p. 2228 (plur. opn. of Alito, J.), italics

added.) The plurality warned that requiring testimony from the technicians who prepared

DNA profiles would encourage prosecutors to forego the use of DNA testing and resort

to less reliable forms of identification evidence, an “undesirable development” that the

Confrontation Clause did not require. (Ibid.) A safeguard for defendants existed because

those who “really wishe[d] to probe the reliability of the DNA testing done in a particular

case” may always subpoena those who took part in the testing and question them at trial.

(Ibid.)

Finally, the Williams plurality ended by stating that DNA reports prepared by

modern accredited laboratories bear little or no resemblance to the kinds of testimonial

statements covered by the Confrontation Clause.

If, as Barba contends, the Williams plurality is limited to DNA testing conducted

only in the absence of an identified suspect, why did Justice Alito contrast that scenario

with DNA testing in general, pointing out in broadly favorable language how such testing

can exonerate as well as implicate someone already charged with a crime? And why

conclude the analysis by stating that DNA testing is essentially exempt from the

Confrontation Clause without specifying that this was so only when the test was

performed at a time when no suspect had yet been identified? The answer must be – as

Justice Chin wrote for a majority of four justices in Dungo – that the absence of a

targeted individual is not required by the Williams plurality in order to find that a DNA

test report is not testimonial under the Confrontation Clause.

The practicality of this conclusion is borne out by the facts of this case. Two days

after Kim‟s murder and more than two weeks before an anonymous tipster identified

Barba as his killer, lead detective Inabu asked that the bloody knife and sweatshirt found

at the scene be tested in order to determine the killer‟s identity. Under Barba‟s reasoning,

any DNA test results obtained during that period would not be testimonial under the

Williams plurality. However, once Barba had been targeted as a suspect, reports

31

concerning the results of any testing done after that time became testimonial. The

benefits of DNA testing praised by the Williams plurality would not simply disappear

upon the discovery of a possible suspect. In either case, the same objects would be tested

using the same methods by lab technicians who, as Justice Alito observed, have no idea

whether their work will exonerate or implicate someone who has been “charged or is

under investigation.” (Williams, supra, 132 S.Ct. at p. 2244 (plur. opn. of Alito, J.).)

7. Barba’s Confrontation Rights Were Not Violated

Making sense out of the case law in this area is to some extent an exercise in

tasseomancy. The Williams plurality believes that DNA reports themselves are not

testimonial. A majority of the justices in Dungo, as represented by Justice Chin‟s

concurring opinion, reads that opinion to mean that its rationale may apply even if the

reports were prepared when a suspect had been identified or charged. Those same four

justices concluded that the autopsy report evidence at issue in that case did not violate the

Confrontation Clause because it came in through the testimony of the expert witness, who

was subject to cross-examination.

Meanwhile, the two post-Williams decisions by the Court of Appeal that concern

DNA evidence have taken somewhat different approaches. The court in Holmes, supra,

212 Cal.App.4th 431, concluded that DNA reports were not testimonial because they

lacked the requisite formality and solemnity. (Id. at pp. 437-438.) The court in Steppe,

supra, 213 Cal.App.4th 1116 found no Confrontation Clause violation on facts similar to

those here for three reasons: (1) there had already been testimony that the lab would not

issue a report unless a reviewer concurred in the analyst‟s finding, meaning that the jury

already knew that the analyst and the reviewer had reached the same conclusion;

(2) under Williams and Lopez, such reports are not formal and solemn enough to be

testimonial; and (3) the reviewer‟s brief reference to the analyst‟s report and her reliance

on the raw data it contained were proper under California law because “such items are

reasonably relied on by experts in the field of DNA analysis in forming their opinions.”

32

(Id. at pp. 1126-1127, citing to People v. Gardeley (1996) 14 Cal.4th 605, 618, for the

third reason.)

In some ways, the end of this lengthy exposition takes us back to the beginning

and the California Supreme Court‟s decision in Geier, supra, 41 Cal.4th 555. Although

the Geier court used the label “contemporaneous recordation of observable events” to

describe why DNA test results were not testimonial (id. at pp. 606-607), it did so through

the prism of “the circumstances under which [a] statement [was] made.” (Ibid.)

There were three circumstances that led the Geier court to conclude the DNA

results at issue in that case were not testimonial. First, the results were generated as part

of a standardized scientific protocol conducted pursuant to the analyst‟s employment at

Cellmark. Although 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 nontestifying technician‟s laboratory notes and report, but by

the testifying witness, [the lab director].” (Geier, supra, 41 Cal.4th at p. 607.)

This reasoning overlaps that of the Williams plurality. When determining the

primary purpose of an out-of-court statement, the plurality took into account all the

surrounding circumstances. Just like the lab technicians who worked on the defendant‟s

samples in Williams, DNA lab technicians in general perform their tasks in accordance

with accepted procedures and have no idea beforehand whether their work will exonerate

or inculpate a known suspect. (Williams, supra, 132 S.Ct. at pp. 2243-2244 (plur. opn. of

Alito, J.).)

Not addressed by the Williams plurality is the Geier court‟s third factor: that the

DNA evidence was conveyed through the independent opinion of the DNA expert who

testified at trial. This thread is picked up by Justice Chin‟s concurring opinion in Dungo,

where he wrote that the autopsy evidence was not testimonial because it came from the

expert who testified at trial, and whose opinion was based on the non-accusatory

33

statements about the victim‟s physical condition that were contained in the report, not

from the report itself. (Dungo, supra, 55 Cal.4th at p. 632 (conc. opn. of Chin, J.).)

Although Geier’s continued validity has been questioned in light of later United States

Supreme Court decisions, it has never been abrogated by the United States Supreme

Court, which denied a petition for certiorari in that case just four days after deciding

Melendez-Diaz. Nor has the California Supreme Court overruled Geier, which cited it

without qualification in Lopez, supra, 55 Cal.4th at pages 576-577, 581, 585.

We therefore arrive at a jurisprudential crossroads. The United States Supreme

Court has asked us to reconsider our decision in Barba III in light of Williams. We

believe that a majority of that court would approve of an affirmance here for two reasons.

Justice Thomas would approve because DNA reports lack the solemnity and formality

required to be deemed testimonial. The plurality would approve because, at least as we

read the opinion, DNA test reports are not testimonial in part due to practical

considerations, and in part because their primary purpose is not to accuse a targeted

individual. The former rationale squares with at least part of our analysis in Barba III,

where we distinguished the Cellmark DNA reports from the affidavit-like documents at

issue in Melendez-Diaz and Bullcoming. It also aligns with the reasoning in Holmes,

supra, 212 Cal.App.4th 431 and part of the analysis relied on in Steppe, supra,

213 Cal.App.4th 1116.

It appears likely that at least four justices of the California Supreme Court – as

represented in Justice Chin‟s concurring opinion in Dungo – would agree that the primary

purpose of the DNA test materials produced by Cellmark were not testimonial under the

Williams plurality‟s primary purpose test and would reach that conclusion without regard

to whether the police had identified a suspect. However, their admissibility would be

proper only through the testimony of expert witness Reynolds.

The somewhat competing analyses represented by the Williams plurality and the

Dungo concurrence are almost fully reconciled by the reasoning of Geier. The primary

purpose of the DNA reports was not testimonial because: (1) they were generated by a

lab technician pursuant to standardized procedures; (2) even though Barba had been

34

charged with the crime, lab technicians such as Wong have no idea what their results

might show, and DNA testing is routinely used to inculpate or exonerate those charged

with crimes; and (3) the accusatory opinions came from expert witness Reynolds, who

was subject to vigorous cross-examination.9

As for the practical considerations that motivated the plurality in Williams, we

agree that it makes no sense to exclude evidence of DNA reports if the technicians who

conducted the tests do not testify. So long as a qualified expert who is subject to cross

examination conveys an independent opinion about the test results, then evidence about

the DNA tests themselves is admissible. Finally, as the Williams plurality observed,

defendants who question the validity of DNA test results have an additional safeguard

available through their power to subpoena anyone who took part in the DNA testing

process. Accordingly, we hold that Barba‟s confrontation rights were not violated by

Reynolds‟s testimony.10

9 We question whether Geier’s “contemporaneous recordation of observable events”

analysis is viable, given the holdings in Melendez-Diaz and Bullcoming. Underlying that

analysis, however, is a principle that squares with the Williams plurality: examining the

totality of the circumstances under which a DNA test report was generated. We rely on

the latter.

10 Barba‟s supplemental brief on Williams and its progeny splits time between each

of the Williams plurality‟s alternative grounds. We do not believe the first ground – that

the reports were not in evidence for their truth – is applicable on the facts of this case.

The dispute in Williams concerned the expert‟s testimony that Cellmark‟s DNA profile

from the rape victim‟s vaginal swabs matched the DNA profile of Williams that the state

police obtained in a separate incident. The focus of the argument was on the assumption

in the prosecutor‟s question that the DNA tested by Cellmark in fact came from the

victim‟s vaginal swabs. (Williams, supra, 567 U.S. at p. ___, 132 S.Ct. at pp. 2236-2237

(plur. opn. of Alito, J.).)

As Justice Alito pointed out, Justice Kagan agreed in her dissent that there would

be no problem asking the expert whether the two DNA profiles matched, without

reference to the source of the DNA materials that were tested. (Williams, supra, 567 U.S.

at p. ___, 132 S.Ct. at p. 2237.) The expert did not testify about anything that was done

at Cellmark‟s lab and did not vouch for the quality of Cellmark‟s work. (Id. at p. 2235.)

Instead, the expert was simply making a permissible assumption upon which to base her

opinion. (Id. at p. 2236.) In this case, however, Reynolds did essentially vouch for the

35

8. Admission of the Reports Was Harmless Error

Although the plurality opinion in Williams could arguably be read to allow DNA

reports in evidence without expert testimony, both Geier and Justice Chin‟s concurring

opinion in Dungo endorsed reference to forensic test reports in part because evidence

about them came by way of expert testimony. We need not reach that issue, however,

because even if the one DNA report that implicated Barba should not have been allowed

in evidence, we conclude the error was harmless. (People v. Loy (2011) 52 Cal.4th 46,

69-70 [confrontation clause violations subject to harmless error analysis, where we ask

whether it is clear beyond a reasonable doubt that a rational jury would have reached the

same verdict without the error].)11

The report contained nothing remotely approaching a direct affirmation that

certain correct procedures had been properly followed. The key defense theory at trial

was that the hair samples had been contaminated by the police before being sent to

Cellmark, and that Wong‟s failure to wash the samples explained why Barba‟s DNA was

on the hairs. However, Reynolds was not allowed to speculate about procedures Wong

might have performed. Although she could testify about the lab‟s usual protocols, the

jury was told that it did not mean the protocols were followed unless it was reflected in

Wong‟s notes. As a result, Reynolds was forced to concede that Wong had not washed

the hair samples that implicated Barba, even though that was usually done in order to

eliminate a DNA result from genetic material that had been deposited on the hair shaft.

According to Reynolds, the hair shaft does not contain DNA, but the root does.

The shaft was tested separately and was found to have Barba‟s DNA on it, meaning that

it had been deposited there somehow. On direct-examination, Reynolds testified that if

the hair had belonged to someone other than Barba, but his DNA had been deposited on

accuracy and reliability of Cellmark‟s DNA testing. Accordingly, we choose not to apply

Justice Alito‟s analysis that evidence from the DNA reports was not admitted for its truth.

11 As for the other three Cellmark reports, because they concluded that the samples

did not contain Barba‟s DNA, their admission was also harmless.

36

the hair, then the test results would have shown a mixture – meaning the DNA of two

separate persons was present. No mixture was present, she testified. However, on cross-

examination, she conceded that she could not rule out the possibility of contamination

before Cellmark received the hair samples, and could not say with certainty that the test

results came from the hair donor or were deposited there. The report itself noted that in

addition to the listed profile results, “weak results” were obtained that could have come

from someone else.

In short, even if the report should not have been admitted into evidence, it was

virtually meaningless without Reynolds‟s testimony to explain it. Had the report itself

been excluded, Reynolds‟s opinion would have still been before the jury. Also, the

court‟s order preventing Reynolds from speculating about test procedures that did not

appear in Wong‟s notes allowed defense counsel to perform a skillful and thorough cross-

examination that allowed the jury to doubt the reliability of the test results. And, as

noted, the report itself stated that weak results were obtained, possibly due to another

DNA donor. Finally, the jury did not ask to see the report during its deliberations, and

the report was not the focus of the parties‟ arguments to the jury. We therefore conclude

that it is clear beyond a reasonable doubt that a rational jury would have reached the same

verdict even if the report had not been admitted into evidence. (People v. Loy, supra,

52 Cal.4th at pp. 69-70.)

II.

NON-CONFRONTATION CLAUSE ISSUES

1. Business Record Foundational Challenges

Barba also contends the trial court erred by admitting the DNA test results

themselves under the business records exception to the hearsay rule (Evid. Code,

§ 1270)12 because those results reflected Wong‟s opinions and were not recording an

12 All further undesignated section references are to the Evidence Code.

37

“act, condition, or event.” (People v. Campos (1995) 32 Cal.App.4th 304, 309.) He also

challenges the admissibility of Reynolds‟s testimony because the prosecution failed to

establish two of the statutory predicates under the business records exception: (1) that

Reynolds was Cellmark‟s custodian of records or was otherwise qualified to testify to the

report‟s identity and method of preparation (§ 1271, subd. (c)); and (2) because there was

evidence that Wong did not follow the proper testing protocols, the evidence was not

sufficiently trustworthy (id., subd. (d)). As to the first, no such objection was raised

below and the issue is therefore waived. (§ 353, subd. (a); People v. Pollock (2004)

32 Cal.4th 1153.)13

Regardless of whether the reports were independently admissible, however, as just

discussed, Reynolds was still free to offer an expert opinion based on those reports if they

were the proper basis for such testimony. (§ 804, subd. (d); Geier, supra, 41 Cal.4th at

p. 608, fn. 13 [DNA expert witness was free to rely on the analyst‟s report to form her

own opinions about the DNA match]; People v. Gardeley (1996) 14 Cal.4th 605, 618.)

Because Reynolds could rely on (and be examined about the basis of) those reports, and

because Reynolds‟s independent opinions were the lynchpin of the incriminating DNA

evidence, any error in admitting the reports as business records was harmless.

13 At oral argument upon remand to this court, Barba‟s counsel said objections about

the report were made as “to everything,” suggesting to us that an objection had been

made under section 1271, subdivision (c). We have reviewed the record and determined

that no such objection was made. Were we to reach that issue we would find no error.

Reynolds testified that she had a doctoral degree in human genetics, that part of her job

duties included performing technical reviews of the lab analysts‟ case files and

independently drawing her own conclusions about the results, that the file Wong prepared

was kept in the normal course of business, and that Wong‟s notes and other records were

made at or near the time of the events and were sufficiently detailed that any qualified

scientist could interpret them. Accordingly, she did testify to the identity and mode of

preparation of the report.

38

2. Claimed Jury Selection Error

A. Applicable Law and Standard of Review

Group bias is bias against members of an identifiable group distinguished on

racial, religious, ethnic, or similar grounds. When a prosecutor uses peremptory

challenges to strike prospective jurors because of group bias, she violates a criminal

defendant‟s right to trial by a jury drawn from a representative cross-section of the

community under both the Fourteenth Amendment to the United States Constitution and

article I, section 16 of the California Constitution. (People v. Bell (2007) 40 Cal.4th 582,

596 (Bell).) The federal constitutional right was established by Batson v. Kentucky

(1986) 476 U.S. 79 (Batson) and the California counterpart was recognized by People v.

Wheeler (1978) 22 Cal.3d 258 (Wheeler). (Bell, at p. 596.) The right applies not only to

racial and ethnic minorities, but to gender discrimination as well. (People v. Jurado

(2006) 38 Cal.4th 72, 104.) The defendant need not be a member of the targeted group.

(Bell, at p. 597.)

When a Batson-Wheeler motion is made, the trial court conducts a three-part

inquiry. First, the defendant must make out a prima facie case by showing that the

totality of the circumstances gives rise to an inference of discriminatory purpose.

Second, if the defendant does so, the burden shifts to the prosecution to adequately

explain its peremptory challenges by offering group bias-neutral justifications for the

strikes. Third, if such an explanation has been given, the trial court must decide whether

the defendant has proven purposeful discrimination. (Bell, supra, 40 Cal.4th at p. 596.)

At the time of trial in August 2004, California‟s courts had interpreted Batson‟s

requirement of an inference of discrimination to establish a prima facie case to mean a

showing of a strong likelihood of discrimination. (People v. Box (2000) 23 Cal.4th 1153,

1188, fn. 7, disapproved on another ground in People v Martinez (2010) 47 Cal.4th 911,

948, fn. 10; Wheeler, supra, 22 Cal.3d at pp. 280-281.) In June 2003, our Supreme Court

attempted to reconcile the two terms by holding that a prima facie case under Batson-

Wheeler required a showing that it was more likely than not that group bias had

39

motivated a prosecutor‟s peremptory challenges. (People v. Johnson (2003) 30 Cal.4th

1302 (Johnson I).) In Johnson v. California (2005) 545 U.S. 162 (Johnson II), however,

the United States Supreme Court reversed Johnson I and held that a prima facie case

required no more than evidence or circumstances that gave rise to an inference of

discrimination.

Because the trial occurred before Johnson II was decided, and because nothing in

the trial court‟s comments indicates that it applied the correct standard, Barba contends,

and respondent does not dispute, that we must review the matter de novo, examining the

entire record of voir dire to determine the legal question whether the record supports an

inference that the prosecutor excused a juror due to prohibited group bias. (Bell, supra,

40 Cal.4th at p. 597.) We agree.

B. The Wheeler Motion

Barba‟s Wheeler motion came in response to the prosecutor‟s 18th peremptory

challenge, to prospective Juror No. 61, who was an African-American. Voir dire was

initially conducted by the court, with counsel then permitted to ask questions if they

wished. The court began its voir dire of Juror No. 61 by greeting him, to which

Juror No. 61 replied, “What‟s up?” Juror No. 61 lived in Hollywood and had worked for

Home Depot for five years. He did not know his job title, but was “supposed to do

customer service.” Juror No. 61 was single, had never been on a jury, and had one year

of college education. The prosecutor asked Juror No. 61 no questions, and initially

accepted the jury with him on it. After defense counsel exercised her 13th peremptory

challenge, however, the prosecutor peremptorily challenged Juror No. 61.

Defense counsel then made her Wheeler motion, stating her belief that the

prosecutor had earlier challenged another African-American juror and that Juror No. 61

had said nothing to justify a peremptory challenge. When defense counsel claimed that

three of the jurors who had voted not guilty at Barba‟s first trial had been African-

American, the court said it did not think that was a factor for it to consider. Defense

counsel argued that it “demonstrates that the reason, the only reason she‟s asked to

40

excuse juror number 61 is because he‟s African-American male. Also, I would note that

there are no African-American males seated on the jury panel right now, seated in the box

right now.” The court replied, “All right,” and asked defense counsel if she had any other

arguments to make. Defense counsel pointed out that a White juror, No. 57, had a

background similar to Juror No. 61 but had not been excused by the prosecutor. The

court said: “Yeah, I don‟t find a prima facie case. The prosecution has exercised 17

peremptory challenges. I felt that she has been kicking off people that are both sexes and

all races. I don‟t feel that there is a prima facie case of exclusion of one particular race. I

felt that this particular juror whose [sic] being challenged now as to whether or not they

were excused, says he‟s been working at Home Depot for five years. He seemed a little, I

don‟t know, casual in his approach. He greeted the court with a „what‟s up.‟ [¶] Were I

trying the case, I don‟t think I would have kept him, but that‟s – I don‟t know. That‟s not

an appropriate consideration for the court, but I just don‟t see that there is a prima facie

case.”

Later, during jury deliberations, the court provided counsel with a summary of the

racial composition of all prospective jurors who had been peremptorily challenged by

both sides, and of the jury that was finally selected to hear the case.14 The court noted

that Juror No. 7, who was the prosecutor‟s third peremptory challenge, was a dark-

skinned man from Honduras that the court perceived was Hispanic and not African-

American. Even so, for purposes of its Wheeler prima facie analysis, the court

considered Juror No. 7 to have been African-American. Of the prosecutor‟s 17 other

peremptory challenges, 9 were Hispanic, 7 were White, and 1 was Asian. Two African-

Americans were eventually selected to sit on the jury.

14 We found this summary very helpful and appreciate the trial judge‟s effort in

making a complete record.

41

C. No Wheeler Error Occurred

In determining whether the trial court erred in finding that no prima facie of group

bias had been made, we examine the totality of all the relevant circumstances, including

the entire record of voir dire of the challenged jurors. However, the other relevant

circumstances must do more than indicate that the record would support neutral reasons

for the questioned challenges. (Williams v. Runnels (9th Cir. 2006) 432 F.3d 1102,

1108.) The defense may show that the prosecutor struck most or all of the members of

the identified group from the venire or used a disproportionate number of her

peremptories against the group. The defendant may also show that the challenged jurors

share only one common characteristic -- their group membership -- and in all other

respects are as heterogeneous as the community as a whole. The showing may be

supplemented when appropriate by such circumstances as the prosecutor‟s failure to ask

the jurors anything other than desultory questions on voir dire, or the failure to ask them

any questions at all. (Bell, supra, 40 Cal.4th at p. 597.)

Barba contends that a prima facie case exists because: (1) the prosecutor had a

motive to exclude African-American jurors based on the results of the first trial; (2) jurors

with backgrounds similar to Juror No. 61 were allowed to remain; and (3) the prosecutor

asked Juror No. 61 no questions. We find no prima facie case.

First, whether the prosecutor might have had a motive does not by itself establish a

prima facie case of discrimination. Barba cites no authority for such a proposition and

the existence of such a potential motive does not relieve Barba of showing at least some

of the permissible factors set forth above when reviewing the trial court‟s finding that no

prima facie case existed. Second, Barba‟s defense counsel compared Juror No. 61 to just

one other juror with a supposedly similar background -- Juror No. 57, who was White.

Although Juror Nos. 57 and 61 were both single, they were otherwise dissimilar. Juror

No. 61 worked at Home Depot in customer service and had one year of college

education, while Juror No. 57 had an AA degree and some postgraduate education and

worked as a teaching assistant at a community college. Third, although the prosecutor

42

asked Juror No. 61 no questions after the trial court‟s initial voir dire, the prosecutor did

not question several other prospective White and Hispanic prospective jurors who were

peremptorily challenged.15 We take this to mean that it was the prosecutor‟s practice not

to question many of the jurors she planned to challenge regardless of their racial or ethnic

identities, and it is therefore not indicative of group bias. Fourth, the prosecutor did not

use a disproportionate number of peremptory challenges against African-Americans.

Instead, Juror No. 61 was the first and only African-American juror she excused.16

Finally, the prosecutor agreed to a jury that eventually included two African-American

members, which is a factor we may consider. (People v. Ward (2005) 36 Cal.4th 186,

203.) On this record, we hold that the trial court correctly determined that there was no

prima facie showing of a Wheeler violation.

3. The Phone Tip and Jailhouse Conversation Evidence

A. The Disputed Evidence and the Parties’ Appellate Arguments

After obtaining a warrant, the police recorded Barba‟s jailhouse conversations

with various visitors. Portions of those recordings were introduced in evidence. The first

was a conversation with his sister where she tells Barba that his godfather, David, “got a

report.” Barba answers, “I know, I know,” then said the report had been shown to

“Gordy” and “Abel.” When the sister says she has not seen the report, she asks to see it.

Barba then asks whether his godfather talked to her “about that?” When she says yes,

15 These were prospective Juror Nos. 17, 28, 34, 45, 49, 58, and 63.

16 The trial court decided for purposes of its analysis that it would consider Juror

No. 7 – the subject of the prosecutor‟s third peremptory challenge – to have been

African-American, and the parties have argued the issue on that basis. However, the trial

court believed that Juror No. 7, who said he was from Honduras, was in fact Hispanic.

Because we review the trial court‟s order de novo, the trial court‟s analysis is not binding.

Its factual findings concerning a prospective juror‟s true racial identity are relevant.

Regardless, Barba did not contend below and does not contend on appeal that Juror No. 7

was improperly challenged. In short, we are dealing with a Wheeler claim as to only one

prospective juror.

43

Barba says, “The person that . . . when -- I was at the house -- the person he came in

with.” When the sister agrees, Barba says, “Had to be. Had to be.” The following

exchange then took place:

“[The sister]: Yeah. I went -- I went over there because I needed

brakes. I went over there, and I saw him.

“[Barba]: It had to be. No other -- no -- there was nobody else.

“[The sister]: I know, but Steve [Barba‟s defense counsel] said that

it shouldn‟t --

“[Barba]: Oh, I know because it‟s -- it‟s --

“[The sister]: -- anonymous.

“[Barba]: Yeah, yeah.

“[The sister]: So --

“[Barba]: But still, though, that -- that -- that -- that --

“[The sister]: He‟s upset -- Gordy is upset about that.17

“[Barba]: That . . . just jumps, you know?

“[The sister]: Gordy is upset about that.

“[Barba]: It gave him a green light pretty much.

“[The sister]: Not really because you didn‟t tell him. As long as -- I

don‟t know, but Gordy - -

“[Barba]: The way it went down.

“[The sister]: Way after.

“[Barba]: I told him.

“[The sister]: Way after.”

The second was a conversation between Barba and his aunt where she said:

“When -- when you want to do -- tell them something, write it down and show it to him

17 Gordy is Barba‟s brother.

44

or he writes and -- it to you here. And that‟s it. Don‟t -- about anything, okay.” Barba

replied, “No, well, about that, no one.”

The third was a conversation with a woman named Karla where Barba said, “I

know I got everybody behind me, you know? I know that already. I just feel like, damn,

I fucked up. It‟s like I let everybody down.”

These conversations were admitted on the theory that they were adoptive

admissions by Barba. (§ 1221.) In connection with this evidence, the court allowed a

police detective to testify about the anonymous phone tipster who identified Barba as

Kim‟s killer. The court instructed the jury that the phone tip evidence was not to be

considered for the truth of the tipster‟s statement, but was to be used solely in order to

explain subsequent actions by the police and to explain the context of Barba‟s jailhouse

conversations.

In his opening appellate brief, Barba contends the trial court erred by admitting

evidence of the anonymous phone tip because it was inadmissible to explain subsequent

conduct by the police in response to the tip. (People v. Scalzi (1981) 126 Cal.App.3d

901, 907.) He contends the jailhouse conversations were not admissible as adoptive

admissions because there was no showing that he knew of the contents of the anonymous

call when his conversations were recorded. (People v. Maki (1985) 39 Cal.3d 707, 712.)

The conversation where he told his sister he had “fucked up” and “let everybody down”

was not admissible, Barba contends, because it is not a clear admission of anything and

bears no relationship to the anonymous phone tip. Respondent conceded in its brief that

the phone tip was not admissible to explain later actions by the police and that the three

jailhouse conversations did not qualify as adoptive admissions. According to respondent,

evidence of the phone tip was admissible for a nonhearsay purpose on the alternate

ground that it explained the jailhouse conversation concerning an anonymous report, and

that all three conversations were admissible on a ground not raised at trial: they qualified

as hearsay exceptions because they were statements of a party. (§ 1220.)

In his reply brief, Barba renews his attack on the admissibility of the phone tip to

explain police conduct, but does not address respondent‟s contention that the evidence

45

was properly admitted to give context to at least one of his jailhouse conversations. He

does, however, renew his contention that there was no showing he knew of the phone tip

when his conversations were recorded. He also contends that respondent cannot attempt

to justify admission of the jailhouse conversations under section 1220 because that issue

was not raised below, and that allowing the jailhouse conversations and phone tip into

evidence violated his constitutional witness confrontation rights under Crawford v.

Washington (2004) 541 U.S. 36.

B. The Phone Tip Evidence Was Properly Admitted

The anonymous phone tip evidence was admitted in part for a nonhearsay purpose:

to give context to Barba‟s jailhouse conversations. It was therefore admissible on that

basis and did not violate his constitutional witness confrontation rights. (People v.

Turner (1994) 8 Cal.4th 137, 189-190, overruled on another ground by People v. Griffin

(2004) 33 Cal.4th 536, 555, fn. 5, overruled on another ground in People v Riccardi

(2012) 54 Cal.4th 758, 824, fn. 32; People v. Cooper (2007) 148 Cal.App.4th 731, 747.)

Because Barba referred to an anonymous report in his conversation with his sister, as

well as to some other person he talked to about “[t]he way it went down,” we reject his

contention that the prosecution failed to show he knew about the anonymous phone tip at

the time of that conversation. In any event, if error occurred at the time the evidence was

admitted because the prosecution failed to make that foundational showing, it was

rendered harmless because the jury was instructed that in order to consider the jailhouse

conversations as adoptive admissions, it first had to find that Barba knew about the phone

tip.

C. The Jailhouse Conversations Were Properly Admitted

Even if the trial court erred by admitting the jailhouse conversations in evidence as

adoptive admissions, we will find no error if the evidence was admissible under

section 1220. (People v. Horning (2004) 34 Cal.4th 871, 898.) Under that section,

“[e]vidence of a statement is not made inadmissible by the hearsay rule when offered

46

against the declarant in an action to which he is a party. . . .” (§ 1220.) In order to

qualify under section 1220, the statement does not have to be an admission, and the

section covers all statements by a party. (Horning, at p. 898.) If a party has made an out-

of-court statement that is relevant and not excludable as unduly prejudicial under section

352, the statement is admissible under section 1220. (People v. Castille (2005)

129 Cal.App.4th 863, 875.)18 All three jailhouse conversations meet this standard.19 To

the extent those statements might be considered ambiguous, that affected only the weight

to be accorded the evidence, not its admissibility. (People v. Guerra (2006) 37 Cal.4th

1067, 1122, disapproved on another ground in People v. Rundle (2008) 43 Cal.4th 76,

151, which was disapproved on another ground in People v. Doolin (2009) 45 Cal.4th

390, 421, fn. 22.)

DISPOSITION

The judgment is affirmed.

RUBIN, J.

I CONCUR:

BIGELOW, P. J.

18 Barba‟s trial counsel objected that the anonymous phone tip evidence was unduly

prejudicial under section 352, but did not make the same objection as to the jailhouse

conversations. On appeal, Barba did not renew the section 352 objection.

19 The statement that Barba knew he “fucked up” and “let everybody down” could be

interpreted as an acknowledgement of wrongdoing. We have some concerns about the

conversation where Barba indicates he will write down things he wants to say, rather than

speak them out loud. The prosecution contended this showed a consciousness of guilt,

while the defense contended it was ambiguous and might have reflected nothing more

than defense counsel‟s instructions to say nothing about the case. If error occurred in

admitting this one statement, it is frankly so ambiguous that its admission was harmless.

47

People v. Barba

B185940

J. Flier, Concurring

I concur in the judgment because People v Lopez (2012) 55 Cal.4th 569 and

People v. Dungo (2012) 55 Cal.4th 608 require finding the admission of Dr. Reynold‟s

testimony did not violate the Confrontation Clause.

FLIER, J.

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