
    [No. A137422.
    First Dist., Div. Five.
    Apr. 7, 2015.]
    THE PEOPLE, Plaintiff and Respondent, v. LANCE FORD, Defendant and Appellant.
    [CERTIFIED FOR PARTIAL PUBLICATION]
    
      Counsel
    Danalynn Pritz, under appointment by the Court of Appeal, for Defendant and Appellant.
    Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Gregg E. Zywiclce and Allen R. Crown, Deputy Attorneys General, for Plaintiff and Respondent.
    
      
      Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts I.B., I.C.2., II., and IIL
    
   Opinion

SIMONS, Acting P. J.

Lance Ford appeals after a jury convicted him of first degree murder. He argues the trial court erred in admitting certain prosecution evidence, excluding certain defense evidence, and calculating sentencing credits. In the published portion of this opinion we reject appellant’s challenge to certain evidence under the confrontation clause. In the unpublished portion, we modify the judgment to correct an error in sentencing credits, and otherwise affirm.

BACKGROUND

In November 1981, Annie Barcelon was found dead in the basement of her San Francisco apartment building. Her underwear or nylons were around her ankles and a pair of jeans was two or three feet away from her body. Her body was taken to the Office of the Chief Medical Examiner for the City and County of San Francisco (Medical Examiner’s office) where an autopsy was performed, photographs were taken, and specimens from Barcelon’s body were collected. The Medical Examiner’s office assigned case No. 81-1612 to the autopsy. Dr. Amy Hart, the Chief Medical Examiner at the time of the 2012 trial, testified it was her opinion, based on the physical observations in the autopsy report and the autopsy photographs, that Barcelon’s death was a homicide caused by manual strangulation. She also opined, based on physical observations recorded in the autopsy report, that there were injuries consistent with sexual assault.

In 2003, DNA testing was performed on two of the specimens collected at the Barcelon autopsy, a vaginal swab and a rectal swab. Both samples contained sperm and DNA analysis showed the sperm in both samples came from the same person. A suspect was identified based on this DNA analysis; as a result, an oral swab of appellant was taken for DNA testing. The DNA testing revealed appellant’s DNA profile matched the DNA profile in the sperm on the Barcelon swabs.

In 2011, appellant’s cousin told law enforcement officers that at the time of Barcelon’s murder, appellant was staying less than a quarter-mile from Barcelon’s apartment building.

The People also submitted evidence of prior sexual offenses committed by appellant.

Appellant presented evidence relating to the reliability of the autopsy specimens and DNA analysis, which we set forth below in part I. Appellant also presented evidence that certain physical property evidence, including Barcelon’s panties and jeans, were misfiled with another case at the police department. The error was only discovered in 2005 when the attorney representing the defendant in the other case reviewed the contents of the property file.

An eyewitness on the night of Barcelon’s murder saw a car that she “didn’t feel right about” outside of Barcelon’s apartment. The eyewitness could see the driver’s silhouette and stated his hair was wavy and down to his shoulders. Appellant presented evidence that his hair at the relevant time did not match this description. Appellant also presented testimony that in 1981 the police interviewed a suspect with long hair who admitted trying to mislead investigators; in rebuttal, the People submitted evidence that DNA analysis showed this suspect could not have contributed to the DNA present in the Barcelon autopsy swabs.

The jury found appellant guilty of first degree murder (Pen. Code, § 187) and found true a special circumstance allegation that he committed the murder while engaged in the crime of rape (§ 190.2, subd. (a)(17)(C)).

DISCUSSION

I. Autopsy Report and Specimens

Appellant challenges the admission of evidence arising from the 1981 autopsy. Specifically, appellant argues (1) the autopsy specimens should not have been admitted because the People failed to lay a proper foundation and to sufficiently establish chain of custody and (2) the admission of the autopsy report and the labels and writings on the autopsy specimens (and related testimony arising from this evidence) violated appellant’s confrontation clause rights. We disagree on both counts.

A. Background

1. Pretrial Proceedings

Appellant first challenged the admission of this evidence in pretrial motions. At an evidentiary hearing on the motions, Dr. Hart testified in relevant part as follows. Dr. Hart began working at the Medical Examiner’s office in 2001. The Barcelon autopsy report indicates that Dr. Norvil Sisson was the responsible autopsy surgeon. Dr. Hart testified she could render an independent opinion on the cause of death based on autopsy photographs and the physical findings in the autopsy report.

The report documents the autopsy specimens that were collected. Dr. Hart was not aware of written protocols existing in 1981 for conducting autopsies or collecting specimens during an autopsy. Dr. Hart was shown photographs of evidence envelopes and test tubes containing the Barcelon specimens. She testified the packaging and labeling was consistent with that used in Medical Examiner’s office autopsies conducted in the 1980s. Two of the specimens had labels on them that did not belong to the Medical Examiner’s office. Although Dr. Hart did not know who put those labels on, it was not uncommon to see additional labeling placed on evidence after it was released from the Medical Examiner’s office. Dr. Hart had no personal knowledge of how or by whom the autopsy specimens were collected and labeled; whether the specimens were air dried before being placed in glass tubes and, if so, where they were dried; how the unlabeled swabs were tracked prior to being placed in test tubes; and when the labels were placed on the tubes.

Dr. Hart was not aware of a Medical Examiner’s office log documenting the location or movement of specimens in the 1980s. If evidence was released, a notation may have been made on the coroner’s register. In this case, the coroner’s register indicated that evidence was released to Forensic Science Associates, but there is no notation recording its return.

At an earlier evidentiary hearing, the trial court heard evidence of the DNA analysis of the Barcelon specimens. Matthew Gabriel, an expert in forensic DNA analysis, performed a DNA analysis on a vaginal specimen and a rectal specimen from the Barcelon autopsy, as well as on a reference sample he had been provided from the Barcelon autopsy and a reference sample for appellant. The results showed sperm present in both the vaginal and rectal specimens; the sperm from both specimens contained the same DNA profile, which matched appellant’s DNA profile. DNA in the nonsperm portions of each sample matched the DNA profile found in the Barcelon reference sample.

Gabriel followed established protocols in conducting this analysis and took steps to safeguard against contamination. There were no indications of contamination or ambiguous or inaccurate results. To the contrary, Gabriel testified there were indications that the specimens were not contaminated or misidentified because of the consistency between the two specimens. He explained, “there were two different items, one from the vaginal swab, one from the rectal swab that went forward with DNA analysis. . . . [E]ach one of those samples had [semen] fractions or components, so the results between the semen donor component was the same for both of those samples. [¶] Likewise, the results for the non-sperm . . . fraction from both of those samples was also consistent. The non-sperm fraction was consistent with coming from Ms. Barcelon. The semen donor profile was consistent with coming from [appellant]. . . . [¶] So conceivably, let’s say for the purpose of argument, one of those two samples was mixed with another sample case I wouldn’t have seen that consistency within this case for those four independent samples.”

The trial court denied appellant’s motion to exclude the specimens and the autopsy report. With respect to appellant’s argument that the People failed to lay an adequate foundation or establish chain of custody, the trial court found: “At this juncture, there is no evidence before the Court that the Court would conclude that there is a significant gap in the chain of custody. While there are not individuals who were there when the samples were taken, the Court notes that Annie Barcelon’s blood that was labeled to have been taken from Annie Barcelon was tested and that there is a commonality between the actual specimens and the victim in this case, and that is that her DNA is on the swabs. There’s also other DNA, but her DNA is there, and that links it up. There’s a case number. [¶] . . . [T]he Court believes that any doubt that will be appropriate for the jury to weigh in this case as to whether or not they believe that those samples were in fact taken from Ms. Barcelon and were properly maintained in custody, but again, it goes to the weight. The Court is satisfied that the People have established their burden regarding chain of custody. And for that reason, I’m denying the due process argument.”

The trial court also rejected appellant’s confrontation clause argument, finding admission of the autopsy specimens and the observations — but not the cause of death — in the autopsy report would not violate appellant’s confrontation clause rights.

2. Trial Testimony

Appellant renewed his objections with a standing objection at trial and a posttrial motion for a new trial.

Dr. Hart and Gabriel testified consistently with their pretrial testimony. The autopsy report, with the diagnosis and cause of death redacted, was admitted into evidence.

Winefredo Mendoza was a clinical laboratory scientist who worked at the Medical Examiner’s office from 1978 to 2005. Mendoza did not participate in conducting autopsies or collecting autopsy specimens. Mendoza picked up specimens from the morgue at the end of the day and brought them to the lab where he processed them. The doctors wrote the case numbers on the specimens. Swabs were sometimes left out overnight to dry.

Mendoza had no personal knowledge of the Barcelon autopsy or how Dr. Sisson prepared for autopsies. Mendoza confirmed that test tubes and test tube labels identifying the specimens inside as from the Barcelon autopsy were the type of test tubes and labels used by the Medical Examiner’s office in the 1980s. Writing on the labels included case No. 1612, Barcelon’s name, the autopsy date, and the doctor’s initials. Mendoza identified the handwriting of Dr. Sisson and Dr. Stevens on the labels. Mendoza also identified a specimen that he referred to as a “blood spot.” Mendoza explained that during an autopsy, the doctor would typically drip a little of the decedent’s blood onto a cotton cloth. Mendoza did not recognize initials or handwriting from a Medical Examiner’s office staff member on the blood spot cloth. However, there were notations of the case number, Barcelon’s name, and the autopsy date that Mendoza believed may have been written by an investigator in the crime lab. When the DNA analysis was conducted, this blood spot was used as the Barcelon reference sample.

Dr. Edward Blake testified that in December 1981, he received from the Medical Examiner’s office a number of swabs in test tubes identified with case No. 81-1612. Dr. Blake did not receive a blood spot on a cloth, but he did receive a bottle of blood from the autopsy that was identified as coming from Barcelon. Dr. Blake made his own notations on the test tube labels. Dr. Blake found sperm on several vaginal swabs, as well as low levels of sperm on two rectal swabs. He returned the swabs to the Medical Examiner’s office in 1983.

As part of appellant’s case, a videotaped examination of Dr. Michael Slade was played for the jury. Dr. Slade worked as a forensic toxicologist at the Medical Examiner’s office from 1979 to 1993. He testified that multiple autopsies were often performed on any given day. Containers for specimens would be lined up in the autopsy suite. In the early 1980s there were no protocols in place describing how autopsy specimens should be labeled. There were also no procedures at that time for keeping track of autopsy specimens or documenting the chain of custody. People who worked in the coroner’s office, investigators, and people from funeral homes who had business in the coroner’s office all had access to the storage areas where specimens were held.

Doctor Slade was personally aware of two incidents in which biological evidence collected at autopsies in the early 1980s was mislabeled. In one incident, a blood sample showed a high level of alcohol but a sample of fluid from the decedent’s eye was negative for alcohol. It was determined that the blood sample was mislabeled and came from another case. In the second incident, the decedent showed indications of carbon monoxide poisoning but his blood sample tested negative for carbon monoxide. Again, it was determined the blood sample was mislabeled and came from another autopsy performed the same day.

Appellant also presented the testimony of Brian Harmon, who performed DNA analysis on a vaginal slide from the Barcelon autopsy in 2006. The slide contained sperm and nonsperm cells, but Harmon was unable to obtain good results. The vaginal slide did not have an airtight seal, exposing the DNA to the surrounding environment. Under such conditions, DNA can degrade; once degraded, it cannot be genetically typed very well.

In the nonsperm portion of the slide, Harmon found DNA from more than one person. One of the DNA profiles in the nonsperm portion of the slide did not match either appellant or Barcelon. This different profile could have resulted from somebody touching the slide or from contamination in storage. Harmon could not tell if the different profile was deposited on the slide at the same time as the other profiles. The sperm portion of the slide contained only one DNA profile. The sperm could have been contributed by appellant; however, because the DNA profile was incomplete, the probability of a match was one in 35 for African-Americans.

B. Foundation and Chain of Custody

C. Confrontation Clause

Appellant next contends admission of the autopsy report and specimen labels violated his Sixth Amendment right to confrontation absent his opportunity to cross-examine Dr. Sisson or anyone else who personally participated in the autopsy or specimen collection. This argument is inconsistent with current case law.

“[T]he United States Supreme Court has said that generally the Sixth Amendment’s confrontation right bars the admission at trial of a testimonial out-of-court statement against a criminal defendant unless the maker of the statement is unavailable to testify at trial and the defendant had a prior opportunity for cross-examination.” (People v. Lopez (2012) 55 Cal.4th 569, 580-581 [147 Cal.Rptr.3d 559, 286 P.3d 469] (Lopez).) “Although the high court has not agreed on a definition of ‘testimonial,’ testimonial out-of-court statements have two critical components. First, to be testimonial the statement must be made with some degree of formality or solemnity. Second, the statement is testimonial only if its primary purpose pertains in some fashion to a criminal prosecution. The high court justices have not, however, agreed on what the statement’s primary purpose must be.” (People v. Dungo (2012) 55 Cal.4th 608, 619 [147 Cal.Rptr.3d 527, 286 P3d 442] (Dungo).) “On appeal, we independently review whether a statement was testimonial so as to implicate the constitutional right of confrontation.” (People v. Nelson (2010) 190 Cal.App.4th 1453, 1466 [119 Cal.Rptr.3d 56].)

1. The Autopsy Report

In Dungo, our Supreme Court considered whether an autopsy report was testimonial. The court began by noting “[a]n autopsy report typically contains two types of statements: (1) statements describing the pathologist’s anatomical and physiological observations about the condition of the body, and (2) statements setting forth the pathologist’s conclusions as to the cause of the victim’s death.” (Dungo, supra, 55 Cal.4th at p. 619.) Only the former type of statement was at issue in Dungo. The court held that such statements, “which merely record objective facts, are less formal than statements setting forth a pathologist’s expert conclusions. They are comparable to observations of objective fact in a report by a physician who, after examining a patient, diagnoses a particular injury or ailment and determines the appropriate treatment. Such observations are not testimonial in nature.” (Ibid.) The court also considered the primary purpose of autopsy reports, concluding that “criminal investigation was not the primary purpose for the autopsy report’s description of the condition of [the victim’s] body; it was only one of several purposes.” (Id. at p. 621; see ibid, [noting purposes of autopsy reports include helping relatives decide “whether to file an action for wrongful death”; helping insurance companies determine “whether a particular death is covered by one of its policies”; “satisfying] the public’s interest in knowing the cause of death”; and “providing] answers to grieving family members”].) The court concluded the defendant’s confrontation rights were not violated by his inability to cross-examine the autopsy report’s author. (Ibid.)

Appellant argues Dungo was wrongly decided and relies on the analysis of the dissenting opinion. We are, of course, bound to follow the majority. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [20 Cal.Rptr. 321, 369 P.2d 937].)

Appellant next attempts to distinguish Dungo. Appellant contends that, although the trial court redacted the diagnosis and cause of death from the autopsy report, the redacted report nonetheless contained “conclusions.” The only example cited by appellant is the following statement; “There are superficial stretch type abrasions across the anterior portions of the clitoris, its sheath and in the area of the external urethra.” This statement falls within Dungo’s category of “observations” — “statements describing the pathologist’s anatomical and physiological observations about the condition of the body”— rather than conclusions — “statements setting forth the pathologist’s conclusions as to the cause of the victim’s death.” (Dungo, supra, 55 Cal.4th at p. 619.) Contrary to appellant’s suggestion, Dr. Hart’s testimony that the injuries described above are consistent with sexual assault does not transform the statement into a conclusion.

Appellant also notes that in Dungo, it was unclear whether the testifying pathologist relied “solely on the autopsy photographs, solely on [the] autopsy report, or on a combination of the two.” (Dungo, supra, 55 Cal.4th at p. 619.) Appellant contends that Dr. Hart’s testimony as to the cause of death and likelihood of sexual assault was based solely on the autopsy report; in fact, with respect to the cause of death, Dr. Hart testified her opinion was based on both the autopsy photographs and the physical findings in the autopsy report. In any event, appellant fails to explain the significance of the difference. The only relevance in Dungo of the possibility that the testifying pathologist relied on the photographs appears to be that, if the photographs were the sole basis for the testimony, the confrontation clause would not be implicated. (See id. at p. 647 (dis. opn. of Corrigan, J.) [“to the extent [the testifying pathologist] had used properly authenticated autopsy photographs to explain his testimony, he would not have disclosed testimonial hearsay”].) This has no bearing on whether the autopsy report is testimonial.

Appellant notes the testifying pathologist in Dungo worked with the author of the autopsy report (see Dungo, supra, 55 Cal.4th at p. 613), whereas Dr. Hart did not work with Dr. Sisson and had no personal knowledge of his autopsy procedures. Again, appellant does not explain why this distinction— which may bear on the trustworthiness of the report’s statements — is relevant to the analysis of the report’s testimonial nature.

Finally, appellant points out that the autopsy report was admitted into evidence. In Dungo, the court noted the “autopsy report was not introduced into evidence. Thus, we need not decide whether that entire report is testimonial in nature.” (Dungo, supra, 55 Cal.4th at p. 619.) The relevance of this fact in Dungo appears to rest on the court’s distinction between observations and conclusions. As the trial court redacted the conclusions from the autopsy report admitted in appellant’s case, we do not find the difference significant. In any event, any error in admitting the redacted autopsy report — as opposed to having Dr. Hart “describe to the jury the condition of [the victim’s] body at the time of the autopsy” based on the observations set forth in the autopsy report, as was the case in Dungo {ibid.) — was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 87 S.Ct. 824].)

Under Dungo, the trial court’s decision to admit the autopsy report was correct and did not violate appellant’s confrontation clause rights.

This case directly poses the “absent pathologist” problem: if statements in autopsy reports are testimonial under the United States Supreme Court’s confrontation clause jurisprudence, how is cause of death established when the pathologist has died or otherwise becomes unavailable before trial? This issue is a small but significant subset of the problems in determining the admissibility under the confrontation clause of expert testimony relating the contents of reports prepared by absent experts that serve as a basis for the witness’s opinion. The significance of the autopsy piece was well captured by Justice Breyer in his concurring opinion in Williams v. Illinois (2012) 567 U.S._ [183 L.Ed.2d 89, 132 S.Ct. 2221]: “Autopsies are typically conducted soon after death. And when, say, a victim’s body has decomposed, repetition of the autopsy may not be possible. What is to happen if the medical examiner dies before trial? [Citations.] Is the Confrontation Clause ‘effectively’ to function ‘ “as a statute of limitations for murder” ’?” (Williams, supra, 567 U.S. at p._[132 S.Ct. at p. 2251] (conc. opn. of Breyer, J.).)

Challenges to expert basis evidence consisting of out-of-court statements are particularly concerning for several reasons. As with all such issues, the ultimate determination as to whether statements are “testimonial” is lodged with the federal, not the California Supreme Court. Unfortunately, the United States Supreme Court seems firmly deadlocked in a 4-4-1 split on this issue, and that split has, so far, defied efforts to find a rationale that commands a majority. (Compare Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305 [174 L.Ed.2d 314, 129 S.Ct. 2527] and Bullcoming v. New Mexico (2011) 564 U.S. _ [180 L.Ed.2d 610, 131 S.Ct. 2705] with Williams v. Illinois, supra, 567 U.S. _ [132 S.Ct. 2221].) The California Supreme Court has expressly recognized this dilemma. (People v. Banks (2014) 59 Cal.4th 1113, 1167 [176 Cal.Rptr.3d 185, 331 P.3d 1206]; Dungo, supra, 55 Cal.4th at p. 616.) But, in attempting to resolve it, our high court has occasionally engaged in line drawing that may prove challenging to apply. Our analysis reflects this. For example, Dungo distinguishes a pathologist’s observations and conclusions in analyzing whether statements in the autopsy report are testimonial. This distinction may prove difficult to defend over time and is hardly self-evident. (See Dungo, supra, 55 Cal.4th at pp. 639-640 (dis. opn. of Corrigan, J.).) And basing the distinction on the determination that observations are less “formal and solemn” lacks any basis in the United States Supreme Court’s cases and is inconsistent with previous discussions of formality by the California Supreme Court. (See People v. Blacksher (2011) 52 Cal.4th 769, 812-818 [130 Cal.Rptr.3d 191, 259 P.3d 370].) Finally, it is arguable whether Lopez’s determination that the autopsy was not conducted for the primary purpose of gathering evidence for trial is correct. (See Dungo, supra, 55 Cal.4th at pp. 644-645 (dis. opn. of Corrigan, J.).)

It is unknown if or when the United States Supreme Court will articulate a definition of testimonial that clarifies the admissibility of expert basis evidence contained in an autopsy report prepared by an absent pathologist. While a change in opinion by one or more members of the court is possible, it may well require a change in the composition of the court for that to occur. Because autopsies continue to take place there is a need for a prompt modification of the autopsy protocol that will produce both a more reliable record and one designed to survive even a broad definition of testimonial. Suggesting the details of such a procedure is beyond both the scope of this opinion and our expertise. But organizations like the National Association of Medical Examiners, which prepares Forensic Autopsy Performance Standards (Dungo, supra, 55 Cal.4th at p. 624 (cone. opn. of Werdegar, J.)), working in conjunction with appropriate representatives of the prosecution and criminal defense bar, should undertake this task.

2. Specimen Labels

II., III.

DISPOSITION

The judgment is modified to reflect the addition of 1,586 days of conduct credit and, as so modified, is affirmed. The trial court is ordered to prepare and forward to California’s Department of Corrections and Rehabilitation an abstract of judgment modified accordingly.

Needham, J., and Brainiers, J., concurred.

Appellant’s petition for review by the Supreme Court was denied July 22, 2015, S226514. Corrigan, J., and Liu, J., were of the opinion that the petition should be granted. 
      
       Additional evidence about the autopsy, specimen collection, and autopsy report is set forth in part I, below.
     
      
       All undesignated section references are to the Penal Code.
     
      
       Dr. Sisson was deceased at the time of trial.
     
      
       At trial, Gabriel testified that appellant’s DNA was also found in the nonsperm portion of the vaginal swab.
     
      
       The trial court found the autopsy report admissible under the official records exemption to the hearsay rule (Evid. Code, § 1280). Appellant does not challenge this ruling on appeal.
     
      
       Mendoza testified in part through an interpreter.
     
      
      See footnote, ante, page 987.
     
      
      See footnote, ante, page 987.
     