Opinion
NOT TO BE PUBLISHED
Superior Court County of Los Angeles No. BA315279 William C. Ryan, Judge
Richard D. Miggins, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Joseph P. Lee, Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
COFFEE, J.
Makdon Michaelov was convicted by jury of second degree murder (Pen. Code, § 187, subd. (a), 189) and arson of an inhabited structure or property (§ 451, subd. (b).) The trial court sentenced him to a total aggregate term of 23 years to life in state prison consisting of 15 years to life as to the murder count, plus the upper term of 8 years as to the arson count. Appellant contends the court committed reversible error by admitting testimonial hearsay evidence in violation of his Sixth Amendment right to confrontation, and that he received the ineffective assistance of counsel. We affirm.
All further statutory references are to the Penal Code unless otherwise stated.
FACTS
Prosecution Evidence
Appellant and his wife were in their apartment, engaged in a heated argument. He fatally stabbed her in the chest with a 10-inch knife. He set three separate fires, removed two smoke detectors from the wall, and placed them near his wife's body. Appellant then left the apartment.
A neighbor contacted the fire department. They extinguished all the fires and discovered the victim's body. She was nude except for her underwear, and was covered in blood. A trail of blood led from her body through the hallway and into the bedroom. There was blood on the bedclothes, the doorjamb, closet doors, entry door and walls. The bathroom floor was saturated in blood and a knife was recovered from the bathroom floor. Appellant was apprehended walking near the apartment building. He had blood on his shoes, socks, clothing and hand.
A criminalist with the Los Angeles Police Department tested various items from the apartment and concluded they were positive for the possible presence of blood. They included two smoke detectors, a swab from appellant's right hand, clothing worn by appellant and the knife recovered from the bathroom. The criminalist sent swabs, cuttings and reference samples from the victim and appellant to Orchid Cellmark for DNA testing.
The forensic supervisor at Orchid Cellmark, Jody Hynds, reviewed the results of the DNA testing performed on the evidence by an analyst. At the time of trial, Hynds was no longer employed by Orchid Cellmark and worked as an independent DNA consultant. She testified that notes and reports outlining the testing and analysis were conducted on the samples. They were completed at or near the time of the tests. All the Orchid Cellmark files were sufficiently detailed so that any qualified scientist could review them and determine if the correct procedures were followed, as well as the accuracy of the results. Hynds reviewed the case file in this matter and determined that the correct scientific procedures were utilized to analyze the evidence.
Hynds testified that the victim's DNA matched the DNA obtained from bloodstains on appellant's clothing, his right hand and both smoke detectors. The DNA profile on the knife blade belonged only to the victim. The handle contained the DNA of both the victim and appellant.
Defense Evidence
Appellant's defense at trial was that the killing occurred in the heat of passion. He testified that the victim's death was accidental and that he "just lost it" when he killed her. During their argument, he took a knife from the kitchen and stabbed her because he "just snapped." After the stabbing, he set the apartment on fire. The smoke alarms began going off and the sound "got on his nerves." He removed the smoke detectors from the walls and threw them next to the victim's body.
DISCUSSION
Forfeiture
Appellant claims that the DNA expert, Jody Hynds, relied on reports prepared by a non-testifying analyst, thus her testimony violated his Sixth Amendment right to confrontation. Appellant has forfeited this claim because he did not object below. (People v. Redd (2010) 48 Cal.4th 691, 729; People v. Dykes (2009) 46 Cal.4th 731, 756.) Moreover, the parties stipulated to the admission of the expert testimony.
The parties entered into a stipulation in open court and outside the presence of the jury that "Jody... Hynds... will be called to testify as an expert in the field of D.N.A. analysis[.] [¶] Ms. Hynds, while employed at Orchid Cellmark, personally reviewed D.N.A. analysis of some of the items of evidence but will testify as an expert and render an opinion regarding D.N.A. results as to all items of evidence tested, pursuant to 'People versus Geier'.... [¶] Counsel agrees to this testimony and will not claim any Sixth Amendment violation, pursuant to 'Crawford versus Washington' or 'Melendez-Diaz versus Massachusetts.'"
Appellant made no objection during Hynds's testimony. He contends that his claims should not be forfeited because any objection would have been futile. He asserts on appeal that, had he not stipulated to the admission of Hynds's testimony, the trial court would "likely have" overruled his objections since the testimony was admissible pursuant to People v. Geier (2007) 41 Cal.4th 555. Geier permits admission of the reports of a non-testifying DNA analyst, where the "accusatory opinion" is reached by the testifying expert, rather than through the non-testifying analyst's laboratory notes. (Id. at p. 607.) It serves no purpose for appellant to speculate on how the trial court might have ruled in the absence of the stipulation. In any event, his arguments are meritless.
Alleged Crawford Error
The United States Supreme Court has held that the testimonial statements of a witness absent from trial are admissible only where the witness is unavailable and the defendant had a prior opportunity for cross-examination. (Crawford v. Washington (2004) 541 U.S. 36, 68.) The court did not define the term "testimonial, " but gave examples--grand jury testimony, prior trial testimony, preliminary hearing testimony, and police interrogations. (Ibid.)
In Melendez-Diaz v. Massachusetts (2009) 557 U.S. __ [129 S.Ct. 2527], the United States Supreme Court, relying on Crawford, concluded that affidavits reporting the results of forensic analysis are testimonial statements, and therefore inadmissible unless the requirements in Crawford are met. (Melendez-Diaz, supra, v. Massachusetts, supra, 557 U.S. ___ [129 S.Ct. at p. 2532].)
In Geier, the testifying expert was employed as the laboratory director for Cellmark, a private for-profit DNA testing facility. She testified concerning a DNA analysis that had been performed by a different analyst at the same facility. The director relied upon the analyst's report in rendering her testimony. (People v. Geier, supra, 41 Cal.4thatpp. 594, 596.)
The defendant in Geier argued that his Sixth Amendment right to confrontation was violated because the analyst who had performed the analysis did not testify. Our Supreme Court rejected this argument, concluding that the DNA test results "were reached and conveyed not through the non-testifying technician's laboratory notes and report, but the testifying witness, [the laboratory director]." (People v.Geier, supra, 41 Cal.4that p. 607.) A non-testifying DNA analyst's report does not violate the confrontation clause because her notes and report "merely recount the procedures she used to analyze the DNA samples, they are not themselves accusatory...." (Ibid.) Under the doctrine of stare decisis, we must follow Geier. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Geier was not overruled by the holding in Melendez-Diaz v. Massachusetts (2009) 557 U.S. __ [129 S.Ct. 2527]. We note, however, that our Supreme Court has granted review in a number of cases to address how Melendez–Diaz affects the decision in Geier. Among them are People v. Rutterschmidt (2009) 176 Cal.App.4th 1047, review granted Dec. 2, 2009, S176213; People v. Dungo (2009) 176 Cal.App.4th 1388, review granted Dec. 2, 2009, S176886; People v. Lopez (2009) 177 Cal.App.4th 202, review granted Dec. 2, 2009, S177046; People v. Gutierrez (2009) 177 Cal.App.4th 654, review granted Dec. 2, S176620; People v. Benitez (2010) 182 Cal.App.4th 194, review granted May 12, 2010, S181137; People v. Bowman (2010) 182 Cal.App.4th 1616, review granted Jun. 9, 2010, S182172.
Appellant argues that his trial counsel was ineffective for failing to object to admission of the DNA evidence and for stipulating to the admission of Hynds's testimony. Because we conclude there was no error, we do not reach this latter claim.
DISPOSITION
The judgment is affirmed.
We concur: GILBERT, P.J., YEGAN, J.