Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Riverside County No. RIF111846 Terrence R. Boren, Judge. (Judge of the Marin Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
McCONNELL, P. J.
INTRODUCTION
A jury convicted Sergio Rojas Arias of first degree murder. (Pen. Code, § 187, subd. (a).) In addition, the jury found true the special circumstance allegation that the murder was committed while Arias was engaged in the commission of a robbery. (§§ 190.2, subd. (a)(17)(A), 211.) The jury fixed the penalty for Arias's conviction as life imprisonment without the possibility of parole, and the trial court sentenced Arias accordingly.
Further statutory references are also to the Penal Code unless otherwise stated.
Arias was tried along with codefendants Jesus Penuelas and Aaron Lozada. Each man had a separate jury. The prosecution sought the death penalty for Arias and Penuelas, but not for Lozada. Penuelas's jury convicted him and fixed the penalty as death. The disposition of Lozada's case is not contained in the record.
Arias appeals, contending there is insufficient evidence to support his conviction and the special circumstance finding. In addition, he contends the trial court erred by refusing to exclude twelve photographs of the victim's body as more prejudicial than probative. Alternatively, he contends his trial counsel provided ineffective assistance by failing to move to strike the photographs after the trial court granted his motion for judgment of acquittal on kidnapping and torture special circumstance allegations. He also contends the trial court erred by refusing his request to instruct the jury it could not infer from his possession of recently stolen property that he acquired the property through robbery, rather than theft. Lastly, he contends the cumulative, prejudicial effect of these errors requires reversal of his conviction. We conclude these contentions lack merit and affirm the judgment.
BACKGROUND
Prosecution Evidence
Eighteen year old Jessica De La Torre lived in a house in Ontario with her parents and her cousin. Shortly before 3:00 p.m. on August 15, 2003, a neighbor called De La Torre's father and told him the house was on fire. De La Torre was not in the house. Her cousin last saw her there sometime between 8:00 and 9:00 that morning.
An arson investigator determined separate fires had intentionally been set in three of the bedrooms. The fires were started by placing open flames against the bedding or mattresses. Because of the flame retardant materials used in the mattresses and other factors, the fires could have been burning for several hours before they were discovered.
Other than by firefighters, there were no signs of forced entry into the home. However, several items were missing from the home, including a black Toyota Avalon that had been parked in the garage, wrenches from a set De La Torre's cousin kept in his bedroom closet, a stereo and speaker set De La Torre kept in her room, and another stereo and speaker set kept in an entertainment center in the living room.
In addition, many items in the home were out of place. In the garage, the Avalon's lower dash cover was lying on the garage floor and the lower dash frame was propped up against the wall. An extension cord, flashlight and tools were lying on the floor next to some metal shavings. A wrench from the set De La Torre's cousin kept in his closet was on a bench.
In the living room, a pair of De La Torre's panties was on the sofa. A drinking glass and one of De La Torre's socks, which appeared to have blood on it, were on the floor. Testing of the drinking glass did not produce a DNA profile.
In the master bathroom, a bloody undershirt was in the sink. Testing of the blood on the undershirt produced a DNA profile that matched De La Torre's DNA profile.
In the master bedroom, De La Torre's purse, wallet, driver's license and other items from her wallet were lying on the floor. Her ATM card to a bank account containing approximately $7,000 was missing. Another pair of De La Torre's panties was on the loveseat and a drinking glass was on the floor. Testing of the drinking glass produced a partial DNA profile. Penuelas, with whom De La Torre was acquainted, was a possible donor.
In De La Torre's bedroom, two kitchen knives were lying on the dresser next to her bed. There was blood on the walls and there were clothes on the floor that appeared to have blood on them. DNA testing of the blood on the walls produced a DNA profile that matched De La Torre's DNA profile.
Further investigation revealed that, at approximately 11:00 a.m. the same day, a telephone call was made to the De La Torre home from a payphone in Upland, approximately 5.2 miles away. At approximately 11:02 a.m., a telephone call was made from the De La Torre home to the payphone using a call return feature. A forensics investigator was not able to obtain any identifiable fingerprints from the payphone booth.
Sometime between 11:39 and 11:49 a.m., Arias, who was acquainted with Penuelas, made eight attempts to withdraw money from De La Torre's account using an ATM at a bank on North Euclid Avenue in Ontario. The bank is approximately three miles from De La Torre's home, and approximately three miles from the payphone where the earlier call to the De LaTorre's home was made. A bicycle was visible in the background of surveillance photos showing Arias's attempts.
Arias's first five attempts to withdraw money failed because Arias used an incorrect personal identification number (PIN). The sixth attempt failed because Arias had made too many attempts to access the account with an incorrect PIN. The seventh and eight attempts failed because the bank had blocked the account.
At approximately 12:28 p.m., a telephone call was made from the payphone in Upland to the De La Torre home.
Sometime between noon and 1:00 p.m., a 13-year old boy saw a white truck and a black car, possibly a Honda, pull up and stop by a dirt road in front of his home. The boy thought there were two people in the white truck, but was not positive. The driver of the white truck, a Hispanic male, walked up to the driver of the black car, also a Hispanic male. The drivers spoke for two minutes. Then, the driver of the white truck returned to his vehicle. The black car drove onto the dirt road into the hills above Rubidoux and the truck followed.
Around 1:30 p.m., a 15-year old boy found what turned out to be De La Torre's body in the hills above Rubidoux. She was wearing only a bra, her feet were bound with a belt, and she had tire tracks across her body. DNA testing of nail clippings taken from fingers on both hands showed she had no foreign DNA under her fingernails.
At 3:06 p.m., Penuelas attempted to withdraw money from De La Torre's account using an ATM at a bank on North Mountain Avenue in Ontario. This attempt failed because the account was still blocked. At 3:19 p.m., Penuelas attempted to check the account balance and to withdraw funds from the account using the same ATM Arias had tried earlier. Both attempts failed because the account was blocked.
Several days later, a sheriff's detective located the Avalon approximately six and a half miles away from where De La Torre's body was found. The dashboard was damaged and there were some tools, a chunk of metal, and some metal shavings on the floorboard suggesting the car had been hotwired. There was a comforter in the trunk that appeared to have blood on it, and there was human hair and human tissue on the undercarriage. DNA evidence collected from the steering wheel contained a mixture of DNA from three individuals. Arias was excluded as a contributor to the DNA mixture. Penuelas could not be excluded as a contributor.
An Ontario police detective found the stereo and speaker taken from the De La Torre's living room and the speakers taken from De La Torre's bedroom in the living room of a residence shared by Arias, Lozada, and another person. The detective found the stereo taken from De La Torre's bedroom in a hall cabinet in the residence. Photographs taken of Arias after his arrest showed he had a bruise on his shoulder. He had no other injuries.
Ontario police detectives found undershirts in Penuelas's residence the same size, color, and brand as the one found in De La Torre's master bathroom. Detectives also found a distinctive blue bicycle in Penuelas's residence. The bicycle was "very similar" to the bicycle visible in the background of the surveillance photographs showing Arias's attempt to use De La Torre's ATM card.
After arresting Penuelas, police detectives conducted K-9 scent tracking of Penuelas using scent pads collected from the belt wrapped around De La Torre's ankles. A detective walked Penuelas along a meandering route through the Ontario Police Department parking lot to a picnic table at an adjacent building, where they sat down. Only knowing the general area in which Penuelas started walking, a K-9 handler presented the scent pads to the tracking dog and commanded it to search for the scent trail. The dog picked up the scent trail and followed it along the exact same route the detective and Penuelas took to the picnic table. The dog jumped up, put its paws on the table next to Penuelas, and put its nose to Penuelas, indicating it had found the target of the search. Detectives did not conduct K-9 scent tracking of Arias.
An autopsy showed De La Torre suffered over 100 distinct injuries, most of which occurred before she died. The injuries included multiple knife cuts, blunt force trauma to her genitals, a severed ear, a bruised liver, a torn lung, numerous broken bones, and numerous lacerations, abrasions, and bruises over her entire body. She died from being run over by a car one or more times, which caused her chest to collapse and prevented her from being able to breathe. There was no evidence she was unconscious for any significant period before she died.
Defense Evidence
A neighbor told a police officer she saw De La Torre walking down the street toward the De La Torre home between 11:00 and 11:30 a.m. on the day of the murder. She was wearing a white crop top and loose peg leg pants. She was alone and her demeanor was normal.
A male friend of De La Torre's told police De La Torre called him the night before her murder and asked him for a ride to the ATM the next day so she could get some money. He told her he could not take her that day, but would get back to her. He tried calling her the afternoon of her murder, but he was not able to reach her.
A forensic nurse collected hair, blood, and DNA evidence from Arias. She recorded his height as five feet tall and his weight as 160 pounds. De La Torre's ATM card was never recovered. Testing of vaginal and rectal swabs taken from De La Torre during the autopsy did not show the presence of sperm. Toxicology testing of De La Torre's blood showed the presence of marijuana and 3.6 milligrams of a drug commonly referred to as the date rape drug.
DISCUSSION
I
Arias was prosecuted for first degree murder under three similar theories: (1) Arias aided and abetted or conspired to commit a felony that resulted in a death, (2) Arias aided and abetted a robbery and the murder was a natural and probable consequence of the robbery, and (3) Arias conspired to commit a robbery and the murder was a natural and probable consequence of the robbery. Arias contends there is insufficient evidence to support his murder conviction under any of the theories. We need not consider whether there is sufficient evidence to support Arias's conviction under the second and third theories, as we conclude there is sufficient evidence to support his conviction under the first.
"Our task in deciding a challenge to the sufficiency of the evidence is a well-established one. '[W]e review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence - that is, evidence that is reasonable, credible, and of solid value - from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] In cases in which the People rely primarily on circumstantial evidence, the standard of review is the same. [Citations.]' [Citation.] ' "An appellate court must accept logical inferences that the jury might have drawn from the evidence even if the court would have concluded otherwise." ' " (People v. Solomon (2010) 49 Cal.4th 792, 811-812.)
To support a felony-murder conviction under an aider and abettor theory, there must be substantial evidence: (1) the perpetrator committed an enumerated felony, such as robbery (§ 189); (2) the defendant knew the perpetrator intended to commit the felony, and the defendant intended to assist the perpetrator commit the felony; and (3) the defendant engaged in acts that assisted the perpetrator commit the felony. (People v. Thompson (2010) 49 Cal.4th 79, 117 (Thompson).) In this case, there is substantial evidence each of these requirements was met.
The jury could reasonably infer from the DNA evidence, the physical evidence found in De La Torre's home, and Penuelas's attempt to use De La Torre's ATM card that Penuelas took De La Torre's ATM card and the other missing items. In addition, the jury could reasonably infer from De La Torre's injuries, the blood evidence, the dog tracking evidence, and the state of De La Torre's home that Penuelas took the items and obtained De La Torre's PIN using force or fear, and with the intent to permanently deprive De La Torre and her family of their property. Accordingly, there is substantial evidence to support a finding Penuelas committed a robbery.
Moreover, the jury could reasonably infer one or more people helped Penuelas commit the robbery because the beating and cutting of De La Torre, the taking of property, the hotwiring of the Avalon, and the arson all occurred within a short period. A jury could also reasonably infer someone helped Penuelas because only De La Torre's ankles were restrained and Penuelas needed at least one hand to administer the knife wounds, which would have made it difficult for him to quell any resistance from her by himself. The absence of foreign DNA under De La Torre's fingernails and the absence of evidence she was unconscious for any length of time before her death further support the inference someone held De La Torre down for Penuelas.
The jury could likewise reasonably infer Arias helped Penuelas commit the robbery because Arias was in possession of and attempted to use De La Torre's ATM card within the short period in which the robbery could have occurred. Additionally, there were phone calls made from a payphone to the De La Torre house within approximately 40 minutes before and after Arias unsuccessfully attempted to use the card. The distance and time are consistent with Arias travelling between the bank and payphone using a bicycle. Although Arias used the wrong PIN number when he attempted to access De La Torre's account, the jury could reasonably infer from his multiple attempts to access the account that he believed he had the right PIN because he was present when Penuelas obtained it. The bruise noted on Arias's shoulder when he was arrested supports this inference.
Also supporting this inference is Penuelas's possession of the ATM card a few hours after Arias, indicating the two men met up shortly after Penuelas ran over De La Torre with the Avalon. Similarly, a few days later, Penuelas had possession of the bicycle Arias had with him when Arias attempted to use De La Torre's ATM card, and Arias had possession of the two stereo and speaker sets taken from De La Torre's home, indicating an exchange of property occurred.
As a jury could reasonably infer Arias knew Penuelas intended to commit the robbery, Arias intended to help Penuelas commit the robbery, and Arias performed acts that, in fact, helped Penuelas commit the robbery, we conclude there is substantial evidence to support Arias's conviction for felony murder as an aider and abettor. In view of our conclusion, we need not address Arias's contention that the trial court erred in denying his motion for judgment of acquittal as to the murder charge.
II
Arias next contends there is insufficient evidence to support the robbery special circumstance finding. "In reviewing the sufficiency of the evidence for a special circumstance, as for a conviction, we ask whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the allegation beyond a reasonable doubt." (People v. Dickey (2005) 35 Cal.4th 884, 903; accord, People v. Lindberg (2008) 45 Cal.4th 1, 37-38.)
A first degree murder may be punished by death or life in prison without the possibility of parole if the murder was committed during a robbery. (§ 190.2, subd. (a)(17)(A).) For a person who was not the actual killer to receive one of these punishments, the person must either have acted with intent to kill, or have been a major participant in the robbery and acted with reckless indifference to human life. (§ 190.2, subds. (c), (d); Tison v. Arizona (1987) 481 U.S. 137, 157-158; People v. Letner (2010) 50 Cal.4th 99, 163, fn. 20.) We need not decide whether there is sufficient evidence Arias acted with intent to kill as we conclude there is sufficient evidence he was a major participant in the robbery and acted with reckless indifference to human life.
A
"As used in the term ' "major participant, " ' the word ' "major" ' means ' "notable or conspicuous in effect or scope" ' or ' "one of the larger or more important members... of a... group." ' " (People v. Smith (2005) 135 Cal.App.4th 914, 928 (Smith), overruled on another ground as recognized in People v. Garcia (2008) 168 Cal.App.4th 261, 291-292; People v. Hodgson (2003) 111 Cal.App.4th 566, 578 (Hodgson); People v. Proby (1998) 60 Cal.App.4th 922, 931, 933-934 (Proby).) In this case, a large group did not commit the robbery and murder of De La Torre. At most, it appears just three individuals were involved: Penuelas, Arias, and Lozada. Therefore, Arias's role was more "notable and conspicuous" than if Penuelas had been assisted by numerous confederates. (Smith, at p. 928; Hodgson, at p. 580.)
Moreover, as discussed above, the jury could reasonably infer from the evidence that Arias helped Penuelas obtain De La Torre's PIN, which was necessary to access De La Torre's bank account - the chief objective of the robbery. In addition, the commission of the robbery and murder occurred during a relatively brief period. Arias's attempts to access De La Torre's account inferably provided Penuelas time to put De La Torre and the stereo and speakers stolen from her home into the Avalon, and to set fire to the crime scene to destroy evidence. Consequently, a jury could reasonably infer Arias's actions were instrumental to the robbery. (Smith, supra, 135 Cal.App.4th 928.) We, therefore, conclude there is substantial evidence Arias was a major participant in the robbery.
B
" '[R]eckless indifference to human life' is commonly understood to mean that the defendant was subjectively aware that his or her participation in the felony involved a grave risk of death." (People v. Estrada (1995) 11 Cal.4th 568, 577; accord, Smith, supra, 135 Cal.App.4th at p. 927; Hodgson, supra, 111 Cal.App.4th at p. 580; Proby, supra, 60 Cal.App.4th at p. 928.) In this case, a jury could reasonably infer Arias was subjectively aware his participation in the robbery involved a grave risk of death because of the means Penuelas used to obtain De La Torre's PIN and the consequent need to destroy evidence, including eliminating the victim as a witness. We, therefore, conclude there is substantial evidence Arias acted with reckless indifference to human life. In view of our conclusion, we need not address Arias's contention the trial court erred by denying his motion for judgment of acquittal as to the robbery special circumstance allegation.
III
Before trial, defense counsel sought to exclude four crime scene photos of De La Torre. Defense counsel also sought to exclude eight pre-autopsy photos of De La Torre. At that time, the charges against Arias included kidnapping and torture special circumstance allegations. Although acknowledging the photos were "unpleasant, " the trial court declined to exclude the photos finding the photos were not cumulative and were not more prejudicial than probative given the allegations in the case and the anticipated testimony from the forensic pathologist. Arias contends the trial court erred in admitting the photos. We disagree.
Appellate courts are " 'often asked to rule on the propriety of the admission of allegedly gruesome photographs. [Citations.] At base, the applicable rule is simply one of relevance, and the trial court has broad discretion in determining such relevance. [Citation.] " '[M]urder is seldom pretty, and pictures, testimony and physical evidence in such a case are always unpleasant' " [citation], and we rely on our trial courts to ensure that relevant, otherwise admissible evidence is not more prejudicial than probative (Evid. Code, § 352). A trial court's decision to admit photographs under Evidence Code section 352 will be upheld on appeal unless the prejudicial effect of such photographs clearly outweighs their probative value.' " (People v. Lewis (2009) 46 Cal.4th 1255, 1282.)
The four crime scene photographs, which Arias appended to his opening brief, show two different views of De La Torre's body as it appeared when sheriff's officers found it, and close-ups of tread marks on her legs and chest. The photographs are relevant to show where and how De La Torre died. They are also relevant to corroborate the dog scent evidence and to show that only De La Torre's legs were bound. Similarly, the eight pre-autopsy photographs, which Arias also appended to his opening brief, document the numerous injuries to De La Torre's body, including a close-up of her severed ear. The photographs are relevant to show what types of injuries she sustained, when the injuries occurred, and how she died. Although the photographs are difficult to view because they show she suffered terribly, the record establishes they greatly aided the forensic pathologist's and other witnesses' testimony. Therefore, we cannot conclude the prejudicial effect of the photographs clearly outweighed their probative value.
Even if the trial court had abused its discretion in admitting the photographs, the error would have been harmless. Partially, because of the then pending torture special circumstance allegation against Arias, the forensic pathologist testified at length about each of De La Torre's more than 100 injuries. The photographs did not disclose any information not presented to the jury through the forensic pathologist's testimony and the testimony of other witnesses. Accordingly, we conclude it is not reasonably probable admission of the photographs affected the jury's verdict. (People v. Lewis, supra, 46 Cal.4th at p. 1283.)
IV
After the prosecution presented its case, Arias moved under section 1118.1 for a judgment of acquittal as to the murder charge and all the special circumstance allegations against him. The trial court denied the motion as to the murder charge and the robbery special circumstance allegation; however, the court granted the motion as to the kidnapping and torture special circumstance allegations. Afterwards, lead trial counsel informed the court, "I need to go back and review the 402s related to the photographs coming in. It's my recollection that [the prosecutor] argued as the basis for the photographs to be shown that it goes toward the torture. If that allegation is no longer before my jury, I may have a motion to strike those photographs - or at least not allow them to be used during closing. I'm just putting both sides - or the Court and counsel on notice." Neither of Arias's trial counsel ultimately made such a motion, and the photographs remained part of the evidence in the case against Arias. Arias contends his trial counsel provided ineffective assistance by failing to move to strike the photos from evidence.
" 'To establish a violation of the constitutional right to effective assistance of counsel, a defendant must show both that his counsel's performance was deficient when measured against the standard of a reasonably competent attorney and that counsel's deficient performance resulted in prejudice to defendant in the sense that it "so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." ' " (Thompson, supra, 49 Cal.4th 79, 122.)
Although Arias acknowledges ineffective assistance of counsel can rarely be shown on direct appeal (Thompson, supra, 49 Cal.4th at p. 122), he contends his trial counsel's deficiency is apparent in this case because there was no tactical reason for failing to move to strike the photos. We disagree.
It is clear from the record, a key defense strategy was to contrast the respective roles of Penuelas and Arias in the robbery and murder of De La Torre, and to deflect as much blame on Penuelas as possible. The photographs were some of the strongest support for this strategy because De La Torre suffered her worst injuries and was killed when Penuelas ran over her with the Avalon. Moreover, in arguing Penuelas was the true culpable party, lead trial counsel specifically referenced the pathologist's testimony in his closing arguments, which almost certainly would have triggered the jurors' memories of the photographs. Consequently, it appears from the record defense counsel intentionally decided not to move to strike the photographs in order to bolster the defense strategy. (See, e.g., People v. Neely (2009) 176 Cal.App.4th 787, 796 [failure to object to evidence is a reasonable tactical choice if evidence helps shift blame to another].) Even if trial counsel's failure to move to strike the photos constituted deficient performance, for the reasons discussed in part III, ante, Arias has not shown he was prejudiced as a result.
V
During the jury instructions conference, defense counsel requested and the court declined to include as part of the CALCRIM No. 376 instruction on the use of evidence of stolen property, the sentence: "You may not infer from the defendant's conscious possession of the stolen property that any illegal acquisition of the property was affected through robbery rather than theft." Arias contends the trial court prejudicially erred in failing to include the requested language because, without it, the instruction lowered the prosecution's burden of proof and allowed the jury to presume Arias's guilt from his possession of property stolen from the De La Torre home. We conclude there is no merit to this contention.
A trial court may " 'properly refuse an instruction offered by the defendant if it incorrectly states the law, is argumentative, duplicative, or potentially confusing [citation], or if it is not supported by substantial evidence [citation].' " (People v. Burney (2009) 47 Cal.4th 203, 246.) Here, defense counsel's proposed instruction was not a correct statement of law as it specifically precluded the jury from considering Arias's possession of recently stolen property as evidence he was guilty of aiding and abetting a robbery, rather than some lesser form of theft. In fact, possession of recently stolen property can support an inference of guilt as to either robbery or some lesser form of theft. (People v. Anderson (2007) 152 Cal.App.4th 919, 947.)
Moreover, defense counsel's justification for offering the instruction was to ensure the jury did not "jump to the conclusion" Arias obtained De La Torre's ATM card through robbery. The trial court addressed this concern by tailoring the CALCRIM No. 376 instruction to the specific charges and facts of this case. As given, the instruction read, "If you conclude that the defendant knew he possessed property and you conclude the property had, in fact, been recently stolen, you may not conclude that the defendant committed or aided or abetted in committing a robbery based on those facts alone. However, if you also find that supporting evidence tends to prove that a robbery was committed, then you may conclude that the evidence is sufficient to prove he committed or aided and abetted in committing the robbery. [¶] The supporting evidence need only be slight and need not be enough by itself to prove guilt. You may consider how, where, and when the defendant possessed the property, along with any other relevant circumstances tending to prove that the defendant committed or aided and abetted in committing the robbery. [¶] Remember that you may not convict the defendant of any crime or find any special circumstance to be true unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime or a special circumstance has been proved beyond a reasonable doubt." (Italics added.)
The instruction as given by the trial court addressed defense counsel's concerns and it accurately stated the law. (People v. Anderson, supra, 152 Cal.App.4th at p. 948.) Accordingly, we conclude the trial court did not abuse its discretion in refusing to give defense counsel's requested special instruction.
VI
Arias contends the cumulative effect of his claimed errors deprived him of due process of law and a fair trial. Because we have concluded there is no merit to Arias's other contentions, we conclude there is no merit to this contention as well. (See People v. Butler (2009) 46 Cal.4th 847, 885; People v. Bolin (1998) 18 Cal.4th 297, 335.)
The potential, but unasserted, confrontation clause error referenced in footnote 31 of Arias's opening brief does not alter our conclusion. The record shows two forensic pathologists performed parts of De La Torre's autopsy. The first pathologist documented most of De La Torre's external injuries before being called away because of a family emergency. The second pathologist completed the autopsy and determined the cause and manner of De La Torre's death. At trial, the second pathologist testified as to his own findings, as well as the findings contained in the report of the first pathologist, who had left the coroner's office approximately four years earlier. Defense counsel did not object to the testimony.
The year following Arias's trial, the United States Supreme Court decided Melendez-Diaz v. Massachusetts (2009) 557 U.S. __ [129 S.Ct. 2527] (Melendez-Diaz). The Court concluded in Melendez-Diaz that the confrontation clause entitles a defendant to an opportunity to cross-examine an expert witness whose testimonial hearsay statements provide facts necessary to the prosecution's case unless the expert is unavailable to testify and the defendant had a prior opportunity to cross-examine the expert. (Melendez-Diaz, at pp. 2531-2534.)
Assuming without deciding a Melendez-Diaz error occurred in this case, the error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) The parties did not dispute the first pathologist's findings and the pre-autopsy photographs of De La Torre's body fully corroborated them. Accordingly, it is clear beyond a reasonable doubt that a rational jury would have found Arias guilty absent the error. (People v. Geier (2007) 41 Cal.4th 555, 608.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: HALLER, J., McINTYRE, J.