Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA317573. Judith L. Champagne, Judge.
Matthew D. Alger, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels, Supervising Deputy Attorney General, and Joseph P. Lee and Ana R. Duarte, Deputy Attorneys General, for Plaintiff and Respondent.
MALLANO, P. J.
Defendant Richard Bojorques appeals from the judgment entered following a jury trial in which he was convicted of first degree murder. Defendant contends there was insufficient evidence of premeditation and that his constitutional right of confrontation was violated by the testimony of witnesses who did not themselves perform the DNA testing and autopsy. We agree with respect to the sufficiency of evidence and reduce his conviction to second degree murder.
BACKGROUND
On the morning of October 19, 1997, Veronica Linasero was found dead in front of a church on Eagle Rock Boulevard in Eagle Rock. Linasero was lying on her back in a flower bed to the right side of steps leading to the front door of the church. Her blouse had been torn and pulled down, exposing her breasts. Her trousers had been torn and pulled down to her ankles. There was dirt on her body and blood near her genitals, which were exposed. She had a visible bruise on one side of her neck, a scrape or burn mark on her upper chest, and blood had trickled from her mouth. One of her shoes was beneath her body. In the flower bed on the opposite side of the church steps lay several unopened condom packages, a perfume bottle, lipstick, a compact, several buttons, and a purse containing money.
Los Angeles Police Department (LAPD) Officer Victor Corrella found a pink shirt with wet blood on it atop rubbish in a fenced side yard, about 300 feet away. The shirt was missing all of its buttons except the very top button at the neck. That button matched the buttons found in the flower bed at the church. The shirt had a lot of ground-in dirt on it, but the shirttail and the strip on the front that would have been covered when the shirt was buttoned were clean. It thus appeared to have been tucked in and buttoned when it got blood and grime on it.
Linasero lived just down the street from the crime scene. Her roommate testified that Linasero worked as a prostitute. The roommate last saw Linasero on the evening of October 18, 1997, as Linasero got into a man’s truck in front of a liquor store. The prosecution did not link the truck to defendant.
Dr. Juan Carrillo did not perform the autopsy on Linasero, but he testified that he reviewed the photographs, X-rays, notes, and autopsy report prepared by his colleague in the coroner’s office, Dr. Lisa Schniein. Linasero had extensive bruising and several abrasions on the front of her neck. Her thyroid cartilage and hyoid bone were fractured. Carrillo agreed with Schniein’s conclusion that Linasero’s cause of death was asphyxiation by neck compression through manual strangulation. It was impossible to determine whether the person who strangled her was behind her or in front of her. Carrillo testified that it generally takes pressure of about four pounds per square inch to block jugular veins and pressure of 11 pounds per square inch to block carotid arteries. “In order to kill someone, ” “[y]ou still need to maintain pressure on the neck to keep the air and the blood flow from getting to the brain. That can last up to four or five minutes.” But Linasero could have died “much quicker” because she suffered from arteriosclerosis: she had a 50 percent blockage of one artery and a 70 percent blockage of another. A person in her condition could quickly experience a fatal heart attack. Because Linasero died so quickly, she did not have time to develop the inflammatory reaction that would show that she suffered a heart attack. Carrillo also testified that application of 33 pounds per square inch of pressure to the neck could cause a loss of consciousness in 15 to 30 seconds. Linasero also had several abrasions on her chin, cheek, lip area, and upper neck. She had five tears to her rectum, which indicated forcible penetration. The tears had bled, which meant they were inflicted prior to her death. There was no vaginal injury. She had cocaine in her system.
Swabs obtained from a sexual assault examination of Linasero’s body were not processed until March of 2003, when a swab from her left breast was sent to Orchid Cellmark for DNA analysis. The suspect profile developed through that analysis was compared to a DNA database in 2006 and found to match defendant. The police obtained a reference sample from defendant and sent it, along with cuttings and a swab from the bloody pink shirt for DNA analysis in 2007.
The prosecution presented the testimony of three DNA experts. The first was Dr. Rick Staub, the forensic laboratory director at Orchid Cellmark in Dallas. He testified about DNA, DNA analysis, and his company’s testing of the evidence in this case. The employees who actually performed the testing were not called as witnesses. Staub testified about the science underlying DNA testing and the procedures and protocols used by Orchid Cellmark. Staub reviewed all of his company’s records, including the electropherograms and back-up documentation and testified that all proper procedures and protocols were followed. He agreed with the conclusions reached by the actual analysts, which were that the blood on the shirt matched Linasero’s DNA profile, the swab of Linasero’s left breast and a cutting from the collar area of the pink shirt contained one DNA profile that matched defendant and another that matched Linasero, and a cutting and swab from the armpit area of the shirt each contained three DNA profiles: one matched Linasero, another matched defendant, and the third was that of an unidentified male. Staub testified that the estimated frequency of occurrence of the male DNA profile found in the breast swab was 1 in 12.21 quadrillion or 1 in 15.78 quadrillion. There was so much male DNA on the breast swab that Staub opined it had been placed there by a man licking Linasero’s breast. He further opined that the DNA on the armpit of the shirt that matched Linasero had gotten there through flaking of the dried blood on other portions of the shirt.
The prosecution’s second DNA expert was Dr. Charlotte Word, who had previously worked for Orchid Cellmark. She reviewed all of the materials regarding the DNA testing performed by Orchid Cellmark and agreed with Orchid Cellmark’s conclusions regarding the profiles and its statistical analysis.
Detective Richard Jackson testified that after he learned of the initial identification of defendant through the DNA database, he interviewed defendant at the police station in 2006. Defendant denied knowing Linasero and denied killing her. He initially denied that he had ever used the services of a prostitute, but subsequently admitted that he had done so and suggested he had hired 20 to 25 different prostitutes. He initially denied that he had ever picked up a prostitute in the Eagle Rock area, but later admitted that he might have done so at a liquor store a few blocks from the crime scene. He told Jackson that in 1980 or 1981 he had worked across the street from the church where Linasero was found, but claimed he had not been in that area since around 1996. He later admitted he had been in that area after 1996. He repeatedly told Jackson that Linasero was so unattractive that he would never have hired her, but then stated that he did not have enough money to hire pretty prostitutes. He also said that if he were “really loaded” he might have hired an unattractive prostitute and finally admitted that it was possible he had hired Linasero, but he did not recognize her. Defendant suggested that Linasero might have had his DNA on her because she had picked up something of his. He also suggested that someone else killed her after he “was with her.” Defendant was released after the interview and was not arrested until January of 2007.
On November 15, 1997, defendant was arrested for an incident that had nothing to do with Linasero’s death. When he was booked, he told Officer Sherry Kinney that he had broken his shoulder and elbow about three weeks earlier.
After reviewing hospital records for an emergency room visit by defendant on September 12, 1997, Dr. Carrillo testified that defendant was treated non-surgically for a dislocated shoulder, meaning the joint was popped back into the socket manually and defendant was sent home with a sling and pain medication. Carrillo opined that such an injury would require four to 12 weeks to completely heal, but a person recovering from such an injury would nevertheless have been capable of exerting sufficient force to strangle Linasero. In part, this was because only one arm would have been impaired by the injury.
Dr. Lawrence Sowers testified as a DNA expert for the defense. He worked in cancer research, not forensic DNA analysis. He reviewed all of the materials from Orchid Cellmark and some investigative reports in the case. He opined that the employees of Orchid Cellmark used proper procedure and handled the evidence properly. He agreed with all of Orchid Cellmark’s “raw data” and most of the conclusions reached by Orchid Cellmark personnel. But he disagreed that there was sufficient data to conclude that defendant matched a DNA profile obtained from an armpit of the pink shirt. He also disagreed that the dried blood had flaked onto other parts of the shirt because of differing levels of degradation. He testified that the unidentified male profiles found in the cutting and swab from an armpit of the shirt represented two different unidentified men. He further opined that the male DNA from Linasero’s breast could have been placed on the shirt through secondary transfer, meaning that defendant may not have worn the shirt. He did not believe that the blood on the shirt resulted from Linasero’s rectal bleeding.
The prosecution’s third DNA expert, Dr. Winters Reef Hardy, testified in the prosecution’s rebuttal case. He was a criminalist with the LAPD’s Scientific Investigation Division. He had reviewed all of Orchid Cellmark’s data and reports and had listened to Dr. Sowers’s testimony. He agreed with Orchid Cellmark’s conclusions; he disagreed with Sower’s testimony regarding the likelihood of secondary transfer of DNA from Linasero’s breast to the shirt, the insufficiency of the data to conclude that defendant matched the DNA profile obtained from the armpit of the shirt, the existence of any degradation of the DNA, the possibility that dust from flaking dried blood could have caused Linasero’s profile to be found on the armpit of the shirt, and the unlikelihood that Linasero’s rectal bleeding was the source of her blood on the shirt.
The jury convicted defendant of first degree murder, but acquitted him of sodomy and found a sodomy special circumstance allegation not true. On the prosecutor’s motion, allegations that defendant had served five prior prison terms within the scope of Penal Code section 667.5, subdivision (b) were dismissed. The court sentenced defendant to 25 years to life in prison.
DISCUSSION
1. Sufficiency of the evidence
The prosecutor tried the case on two theories of first degree murder: Linasero was murdered during commission of a felony, namely sodomy, and defendant acted with premeditation and deliberation. The jury’s rejection of the sodomy charge and special circumstance means it adopted the theory of premeditation and deliberation. Defendant contends that the evidence was insufficient to support a finding of premeditation. He argues that the evidence suggests he “acted in fury.”
To resolve this issue, we review the whole record in the light most favorable to the judgment to decide whether substantial evidence supports the conviction, so that a reasonable jury could find guilt beyond a reasonable doubt. (People v. Ceja (1993) 4 Cal.4th 1134, 1138.) We presume the existence of every fact supporting the judgment that the jury could reasonably deduce from the evidence and make all reasonable inferences that support the judgment. (People v. Barnes (1986) 42 Cal.3d 284, 303; People v. Catlin (2001) 26 Cal.4th 81, 139.)
Premeditation requires that the act be considered beforehand. (People v. Mayfield (1997) 14 Cal.4th 668, 767.) The extent of the reflection, not the length of time, is the true test. (Ibid.) These processes can occur very rapidly, even after an altercation is under way. (Ibid.; People v. Sanchez (1995) 12 Cal.4th 1, 34, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
In People v. Anderson (1968) 70 Cal.2d 15, 26–27, the California Supreme Court described the three categories of evidence that typically support a finding of premeditation and deliberation: “The type of evidence which this court has found sufficient to sustain a finding of premeditation and deliberation falls into three basic categories: (1) facts about how and what defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing-what may be characterized as ‘planning’ activity; (2) facts about the defendant’s prior relationship and/or conduct with the victim from which the jury could reasonably infer a ‘motive’ to kill the victim, which inference of motive, together with facts of type (1) or (3), would in turn support an inference that the killing was the result of ‘a pre-existing reflection’ and ‘careful thought and weighing of considerations’ rather than ‘mere unconsidered or rash impulse hastily executed’ [citation]; (3) facts about the nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a ‘preconceived design’ to take his victim’s life in a particular way for a ‘reason’ which the jury can reasonably infer from facts of type (1) or (2).” These categories are not prerequisites, but simply guidelines to assist reviewing courts in assessing whether the evidence supports an inference that the killing resulted from preexisting reflection and weighing of considerations rather than an unconsidered or rash impulse. (People v. Young (2005) 34 Cal.4th 1149, 1183.)
The record in this case does not contain evidence in any of the three Anderson categories. It appears that the police and prosecution were unable to find either anyone who witnessed Linasero’s murder or any evidence of a prior relationship or even prior contact between defendant and Linasero. Defendant’s statements to Jackson did not give rise to any inference of a motive or planning activity on his part. Although the physical evidence tended to show a violent struggle and sexual assault, neither of these factors constituted substantial evidence that defendant premeditated Linasero’s murder. They are fully consistent with a killing resulting from an unconsidered or rash impulse. And while the medical evidence showed that it generally takes four or five minutes of continuous pressure to kill a person by strangulation, it also showed that Linasero might have died more quickly because she had a 50 percent blockage of one artery and a 70 percent blockage of another artery and might have quickly experienced a fatal heart attack. Carrillo testified that Linasero died so quickly that she did not have time to develop the inflammatory reaction that indicates a heart attack occurred. Even if it took several minutes for Linasero to die, the manner of killing in this case in no way reflected a preconceived plan. Defendant used his hands, not any object he brought with him to the scene. This case presents even less evidence of premeditation than that found insufficient in People v. Rowland (1982) 134 Cal.App.3d 1 (Rowland).
In Rowland, supra, 134 Cal.App.3d at pages 6–7, the victim and the defendant met at a party, then left the party with others to drink at a bar. The defendant then drove the victim to his apartment in her car. Inside the apartment, the defendant told his live-in girlfriend that his friend and the friend’s girlfriend were going to stay overnight. He turned up the stereo and told his girlfriend he had to pick up a friend at the bar. The girlfriend turned down the music and heard the bed in the next room shaking, a woman speaking a few words, then choking sounds and something banging against the wall. The victim was later found to have been strangled with an electrical cord. The Court of Appeal reduced the defendant’s first degree murder conviction to second degree. It found the planning activity insufficient because it was “directed toward” concealing the victim’s presence from the defendant’s girlfriend, not toward killing the victim. With respect to the manner of killing, the court noted that “[a]n electrical cord... is a normal object to be found in a bedroom and there was no evidence presented that defendant acquired the cord at any time prior to the actual killing.” (Id. at p. 8.) The court further explained, “The People argue that strangulation with an electrical cord shows a deliberate intent to kill. We agree. [Citation.] A deliberate intent to kill, however, is a means of establishing malice aforethought and is thus an element of second degree murder in the circumstances of this case. In order to support a finding of premeditation and deliberation the manner of killing must be, in the words of the Anderson court, ‘so particular and exacting’ as to show that defendant must have ‘intentionally killed according to a “preconceived design”....’ [Citation.] The ligature strangulation in this case fails to show that defendant must have premeditated and deliberated the killing. [¶] An unjustified killing of a human being is presumed to be second, rather than first, degree murder. [Citation.] In order to support a finding that the murder is first degree the People bear the burden of proving beyond a reasonable doubt that the defendant premeditated and deliberated the killing. [Citation.] In view of the lack of an established motive or exacting manner of killing in this case, the minimal evidence of planning on defendant’s part fails to support a conviction for first degree murder.” (Id. at p. 9.)
The cases cited by the Attorney General involved significant facts not present here that tended to establish at least one of the Anderson factors: in People v. Hovarter (2008) 44 Cal.4th 983, 989, 991, 993, 1019–1020, the defendant kidnapped the victim and admitted to a fellow jail inmate that he used a rope to strangle the victim; in People v. Stitely (2005) 35 Cal.4th 514, 523–524, 543–544, there was evidence in all three Anderson categories: the defendant became fixated upon the victim after she asked the defendant to dance with her (motive), the defendant watched the victim and offered her a ride when she asked the bartender to summon a taxi for her (planning), and the defendant used not only his hands, but a chokehold and ligature to strangle the victim; and in People v. Davis (1995) 10 Cal.4th 463, 490, 510, the defendant asked for and received a ride in the victim’s car, pursued the victim 265 feet after the car crashed into a telephone pole and she fled, then the defendant sexually assaulted and manually strangled her. Here, the evidence showed only manual strangulation, not ligature strangulation. There is no evidence that defendant, watching Linasero, lured her to a more secluded location, pursued her, or was even in her company for any time other than that consumed by the struggle, sexual assault, and killing, which may have been nearly simultaneous. The Attorney General also argues that the manner of killing shows that defendant had time to premeditate. But the passage of sufficient time does not mean that premeditation actually occurred.
Accordingly, we agree with defendant that there was insufficient evidence of premeditation to support his first degree murder conviction. We modify the judgment to reflect a conviction of second degree murder. (Pen. Code, §§ 1181, subd. (6), 1260; People v. Jackson (2000) 77 Cal.App.4th 574, 580.)
2. Confrontation Clause violations
Defendant contends that the testimony of Drs. Carrillo, Staub, and Word violated his Sixth Amendment right to confrontation because these witnesses testified to the findings and results of procedures they did not themselves perform.
Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354] (Crawford) held that with respect to testimonial evidence, such as police interrogations or testimony from grand jury proceedings, a preliminary hearing, or a former trial, the confrontation clause demands both unavailability of the witness and a prior opportunity for cross-examination. (Id. at p. 68.) Otherwise, such testimonial hearsay is inadmissible.
Crawford did not define the term “testimonial.” After reviewing the history and purpose of the confrontation clause, the court concluded that it was intended chiefly to combat “the civil-law mode of criminal procedure, and particularly its use of ex parte examinations against the accused, ” in which justices of the peace or other officials examined suspects and witnesses before trial, and these examinations were read in court in lieu of live testimony. (Crawford, supra, 541 U.S. at pp. 43–50.) The court noted that “[v]arious formulations of this core class of ‘testimonial’ statements exist: ‘ex parte in-court testimony or its functional equivalent-that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially, ’... ‘extrajudicial statements... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions, ’... [and] ‘statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.’” (Id. at pp. 51–52, citations omitted.) The court did not adopt any of these “formulations, ” but held that, “[w]hatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.” (Id. at p. 68.) The court noted that it used “interrogation” in a colloquial, not a technical legal sense, and stated that the witness’s “recorded statement, knowingly given in response to structured police questioning, ” qualified as interrogation under any definition. (Id. at p. 53, fn. 4.)
Determining whether particular evidence constitutes testimonial hearsay has proven to be a challenging task. Defendant relies upon Melendez-Diaz v. Massachusetts (2009) 557 U.S. ___, [129 S.Ct. 2527] (Melendez-Diaz), in which three notarized “certificates of analysis” were the sole evidence admitted to establish that the substance the defendant possessed was cocaine. (129 S.Ct. at p. 2531.) In a five-to-four decision, the United States Supreme Court held that “the analysts’ affidavits were testimonial statements, and the analysts were ‘witnesses’ for purposes of the Sixth Amendment. Absent a showing that the analysts were unavailable to testify at trial and that petitioner had a prior opportunity to cross-examine them, petitioner was entitled to ‘“be confronted with”’ the analysts at trial.” (129 S.Ct. at p. 2532, quoting Crawford, supra, 541 U.S. at p. 54.) The court rejected the dissent’s argument that because the affidavits contained “‘near-contemporaneous observations of the test, ’” they were not testimonial. (Melendez-Diaz, supra, 129 S.Ct. at p. 2535.) The court noted that “[i]t is doubtful that the analyst’s reports in this case could be characterized as reporting ‘near-contemporaneous observations’; the affidavits were completed almost a week after the tests were performed.” (Ibid.)
The Attorney General argues that Melendez-Diaz “is limited to its unusual facts” and notes that after it decided Melendez-Diaz, the United States Supreme Court denied certiorari in People v. Geier (2007) 41 Cal.4th 555 (Geier), which remains sound law. (Ibid., cert. den. June 29, 2009, No. 07-7770, sub nom. Geier v. California (2009) ___ U.S. ___ [129 S.Ct. 2856].) In Geier, the California Supreme Court held that the admission of expert testimony by Cellmark’s laboratory director regarding DNA testing and analysis performed by another Cellmark employee did not violate the confrontation clause. (Geier, 41 Cal.4th at pp. 593–609.) The court concluded that the analyst’s notes and report “constitute[d] a contemporaneous recordation of observable events rather than the documentation of past events. That is, [the analyst] recorded her observations regarding the receipt of the DNA samples, her preparation of the samples for analysis, and the results of that analysis as she was actually performing those tasks. ‘Therefore, when [she] made these observations, [she]-like the declarant reporting an emergency in Davis [v. Washington (2006) 547 U.S. 813 [126 S.Ct. 2266]]-[was] “not acting as [a] witness[];” and [was] “not testifying.”’” (Geier, at pp. 605–606.) The court also found the analyst’s notes and report non-testimonial in nature because they “were generated as part of a standardized scientific protocol that she conducted pursuant to her employment at Cellmark. While the prosecutor undoubtedly hired Cellmark in the hope of obtaining evidence against defendant, [the analyst] conducted her analysis, and made her notes and report, as part of her job, not in order to incriminate defendant. Moreover, to the extent [the analyst’s] notes, forms and report merely recount the procedures she used to analyze the DNA samples, they are not themselves accusatory, as DNA analysis can lead to either incriminatory or exculpatory results. Finally, the accusatory opinions in this case-that defendant’s DNA matched that taken from the victim’s vagina and that such a result was very unlikely unless defendant was the donor-were reached and conveyed not through the nontestifying technician’s laboratory notes and report, but by the testifying witness, Dr. Cotton. [¶] Thus, ... [the analyst’s] notes were made ‘during a routine, non-adversarial process meant to ensure accurate analysis.’” (Id. at p. 607)
In the portion of Davis v. Washington, supra, 547 U.S. at pages 817–818, 826–828 (Davis), relied upon by Geier, the United States Supreme Court concluded that a recording of a 911 call in which the victim described to the 911 operator the physical assault her boyfriend was inflicting upon her as she spoke was not testimonial hearsay under Crawford. (Geier, supra, 41 Cal.4th at pp. 603–606.) From this portion of Davis, Geier derived the principle that “contemporaneous recordation of observable events, ” as opposed to “documentation of past events, ” is not testimonial hearsay for purposes of the confrontation clause. (Geier, at p. 605.)
Melendez-Diaz relied upon a different portion of Davis, supra, 547 U.S. at pages 819–821, 829–830, in which the court addressed (in a consolidated case) “the admissibility of statements made to police officers responding to a report of a domestic disturbance. By the time officers arrived the assault had ended, but the victim’s statements-written and oral-were sufficiently close in time to the alleged assault that the trial court admitted her affidavit as a ‘present sense impression.’ [Citation.] Though the witness’s statements in Davis were ‘near-contemporaneous’ to the events she reported, we nevertheless held that they could not be admitted absent an opportunity to confront the witness.” (Melendez-Diaz, supra, 129 S.Ct. at p. 2535.) Melendez-Diaz thus held that statements that are merely “near-contemporaneous” observations may be testimonial hearsay for purposes of the confrontation clause. Notably, Davis itself did not base its conclusion that the statements to police officers were merely “near-contemporaneous” observations, but instead stated, “Determining the testimonial or nontestimonial character of the statements that were the product of the interrogation in [the consolidated case]is a much easier task, since they were not much different from the statements we found to be testimonial in Crawford. It is entirely clear from the circumstances that the interrogation was part of an investigation into possibly criminal past conduct-as, indeed, the testifying officer expressly acknowledged, [citation]. There was no emergency in progress; the interrogating officer testified that he had heard no arguments or crashing and saw no one throw or break anything, [citation]. When the officers first arrived, Amy told them that things were fine, [citation], and there was no immediate threat to her person. When the officer questioned Amy for the second time, and elicited the challenged statements, he was not seeking to determine (as [with the 911 call considered] in Davis) ‘what is happening, ’ but rather ‘what happened.’ Objectively viewed, the primary, if not indeed the sole, purpose of the interrogation was to investigate a possible crime....” (Davis, supra, 547 U.S. at p. 829.)
We conclude that Geier is still controlling law notwithstanding Melendez-Diaz because the two cases are distinguishable. In Geier, the supervisor of the analyst who prepared the reports testified at trial and was subject to cross-examination, whereas the evidence in controversy in Melendez-Diaz was documentary, and no witness testified regarding the testing performed on the cocaine. Also, Melendez-Diaz involved only “near-contemporaneous” affidavits that were prepared almost one week after the tests were performed, whereas Geier involved contemporaneous reports prepared at the time the tests were conducted. Melendez-Diaz does not state that contemporaneous recordation of observable events is testimonial, but only that “near-contemporaneous” statements are testimonial. Geier held, in effect, that the testimony regarding the laboratory testing and results were more comparable to the911 recording in Davis than to the statements made by the victim and suspect to police officers who responded to the domestic violence call involved in the consolidated case in Davis. Melendez-Diaz did not cast any doubt upon the validity of Davis’s holding that the 911 recording was not testimonial.
With respect to Dr. Staub’s testimony, Geier is directly on point. Like the testifying witness in Geier, Staub was the supervisor of the laboratory that performed the DNA testing and analysis. Staub testified regarding the science underlying DNA testing and the procedures and protocols used by Orchid Cellmark. He reviewed all of his company’s records, including the electropherograms and all supporting documentation and testified that all proper procedures and protocols were followed. He then testified, based upon his review and expertise, what the DNA testing established and what the significance of those results were. He also testified that he agreed with the conclusions reached by the actual Orchid Cellmark analysts who performed the DNA testing and analysis. As in Geier (but not Melendez-Diaz), Staub testified and was extensively cross-examined by the defense. Dr. Staub’s reliance upon the electropherograms and supporting documentation produced by the actual Orchid Cellmark analysts did not entail testimonial hearsay under Crawford.
Dr. Word’s testimony was essentially that of an expert opining that she agreed with the results and conclusions reached by Orchid Cellmark. Her testimony did not itself introduce those results and conclusions, Dr. Staub’s did. Expert testimony may “be premised on material that is not admitted into evidence so long as it is material of a type that is reasonably relied upon by experts in the particular field in forming their opinions.” (People v. Gardeley (1996) 14 Cal.4th 605, 618.) “So long as this threshold requirement of reliability is satisfied, even matter that is ordinarily inadmissible can form the proper basis for an expert’s opinion testimony.” (Ibid.) “And because Evidence Code section 802 allows an expert witness to ‘state on direct examination the reasons for his opinion and the matter... upon which it is based, ’ an expert witness whose opinion is based on such inadmissible matter can, when testifying, describe the material that forms the basis of the opinion.” (Ibid.; Geier, supra, 41 Cal.4th at p. 608, fn. 13 [“As an expert witness, [the DNA expert] was free to rely on [the analyst’s] report in forming her own opinions regarding the DNA match.”].) Thus, Dr. Word’s reliance upon the documentation produced by the actual Orchid Cellmark analysts did not introduce testimonial hearsay in violation of the confrontation clause.
Dr. Carrillo did not simply act as a stand-in to read Dr. Schniein’s autopsy report or convey her findings. He instead reviewed the X-rays, notes, photographs, and report prepared by Schniein, reached his own conclusions, and testified to his own expert opinion. Even if the autopsy report itself were inadmissible-an issue not before us-Carrillo was entitled to rely upon the report as part of the basis for his expert opinion and refer to the report in his testimony. Accordingly, Carrillo’s reliance upon the various forms of documentation generated by Schniein did not entail testimonial hearsay in violation of the confrontation clause.
DISPOSITION
Defendant’s conviction is reduced to second degree murder and his sentence is reduced to 15 years to life. As modified, the judgment is affirmed. The trial court is directed to issue an amended abstract of judgment.
We concur: ROTHSCHILD, J., CHANEY, J.