Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. BLF002735 John J. Ryan, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Martha L. McGill, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Peter Quon, Jr. and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
King J.
I. INTRODUCTION
Defendant Walter Dewey Price was convicted by a jury of first degree murder of his cellmate, Jamel Banks (Banks). (Pen. Code, § 187, subd. (a).) In a bifurcated trial, the court found true allegations that defendant had suffered a prior strike conviction and a prior serious felony conviction. (Pen. Code, §§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1).) He was sentenced to 55 years to life to run consecutive to the sentence he was then serving.
Defendant argues the trial court erred in allowing the jury to hear evidence relative to a past conviction of voluntary manslaughter in which defendant strangled the victim. We hold that the trial court did not err. Here, defendant was on trial for the murder of his cellmate, allegedly accomplished by means of strangulation. The prior crime of voluntary manslaughter by strangulation was relevant to prove defendant’s intent at the time of the present crime. (See Evid. Code, § 1101, subd. (b).) Furthermore, under Evidence Code section 352, any undue prejudice of the evidence did not substantially outweigh its probative value.
Defendant also contends his Sixth Amendment right to confront witnesses was violated when the trial court allowed Dr. Joseph Cohen, a forensic pathologist, to testify concerning the autopsy of the victim performed by Dr. Manuel Montez. We hold that while the autopsy report and its contents were “testimonial, ” Dr. Cohen’s opinions as to the victim’s cause of death were his own and thus did not implicate the Sixth Amendment. To the extent portions of the autopsy report did come before the jury for the truth of matters stated therein, any error was harmless beyond a reasonable doubt.
II. SUMMARY OF FACTS
A. Prosecution Case
On September 17, 2001, Banks was killed in his Ironwood State Prison cell by strangulation. Defendant, who shared the prison cell with Banks, was incarcerated after being convicted of the voluntary manslaughter of Yvonne Gilmore, who died by strangulation. Banks and defendant were about the same height; defendant weighed about 70 pounds more than Banks. At 5:00 a.m., Correctional Officer Hernandez conducted the last security check and head count of his shift. He did not note in the logbook that anything out of the ordinary had occurred. At around 6:10 a.m., at the beginning of Correctional Officer Caralee Moreno’s shift, Moreno noticed the lights of defendant and Banks’s second floor cell flashing on and off. Looking up, she saw defendant looking out the window; Moreno asked defendant what was going on. Defendant responded, “Man down.”
Moreno then went upstairs and looked into the window of defendant’s cell. It appeared that Banks was asleep in his lower bunk, with his sheet partially covering him. Defendant was dressed in his work clothes and was standing by the cell door eating a bag of chips. Moreno hit the cell door with her baton and twice called out Banks’s name to see if he would respond. After failing to obtain a response from Banks, Moreno asked defendant what was wrong with Banks. Defendant responded that Banks was dead. Moreno radioed for support from other staff, who arrived between 6:15 a.m. and 6:17 a.m.
Several officers and a nurse, Mary Berahmand, responded to Moreno’s radio call for support. Defendant was handcuffed and removed from the cell. The responding officers and nurse could not find Banks’s pulse. Berahmand removed the sheet that was covering Banks and observed that there was blood on Banks’s pillow and dried blood on the backs of his legs and on his boxer shorts. Banks was lying face down, with his hands crossed. Banks’s body was cold and stiff, which is a sign that he had been dead for awhile and that rigor mortis had begun.
Banks had several bloodstains, contusions, scratches, and abrasions on the backs of his legs and contusions and incisions on his feet. There was also an incised wound on his chest. There was what appeared to be a bloodstain transfer on Banks’s back. Large amounts of both wet and dry blood were found on Banks’s face and on the sheet under him; the blood appeared to originate from his nose, mouth, or both. Blood was discovered throughout the cell. Correctional Officer Michael Smith, the lead investigator, found an improvised weapon consisting of a can of tuna filled with a couple of batteries inside of a sock. The weapon was found wedged between Banks’s bunk and the wall. Blood samples taken from the threshold of the cell matched Banks’s DNA and did not match defendant’s DNA.
Berahmand examined defendant in the prison clinic that morning. Defendant’s injuries consisted of a small red bruise on his right cheek, redness on his right shoulder, small scratches on his right hand and inner wrist, swelling of the left forearm, and an injury to his right elbow.
During an interview relating to the investigation of Banks’s death, Peter Nadal, an inmate who occupied a cell two cells away from defendant and Banks, told a correctional officer that he had awoken between 2:30 a.m. and 3:00 a.m. to the sound of pounding noises and yelling in the defendant and Banks’s cell. Nadal said he heard Banks ask defendant, “Do you want to kill me?” Nadal also told the investigator that he heard defendant tell Banks, “Say you’re sorry, ” twice, in the tone of one disciplining his son. Nadal then told the investigator that he heard five to six seconds of choking noises followed by silence.
B. Defense Case
Ray Capterville had been incarcerated at Ironwood at the same time and in the same building as Banks and defendant. Capterville was acquainted with both individuals. Capterville heard Banks make disrespectful statements about defendant in the presence of other inmates. Banks called defendant stupid and on more than one occasion told defendant he would hit defendant in the head with a canned good in a sock. A “can sock” is considered a deadly weapon among inmates. Capterville did not see defendant react to the insults and threats. Capterville stated that if an inmate allows himself to be disrespected, the inmate would be in danger of being taken advantage of or assaulted by other inmates, to the point that his life would be in danger.
Nathaniel Cobb was incarcerated in the same building as Banks and defendant; he was acquainted with both. The evening before Banks’s death, Banks won a game of chess against defendant and began making fun of and pointing at defendant. Cobb said that Banks was just having fun, but also stated that to a certain extent his behavior was disrespectful. Cobb warned Banks about making fun of defendant. Cobb observed Banks in his cell later that night jumping around and appearing to continue his disrespectful behavior toward defendant.
III. ANALYSIS
A. Admission of the Facts Underlying a Prior Voluntary Manslaughter Conviction for Purposes of Proving Intent Was Not Error
The trial court allowed the prosecutor to present evidence of defendant’s prior commission of voluntary manslaughter of Yvonne Gilmore by strangulation. The evidence was admitted under Evidence Code section 110l, subdivision (b), as bearing on defendant’s intent in committing the present crime. Defendant claims this was error. We disagree.
Relative to the prior crime, the following evidence was admitted: The doctor who performed the autopsy on Gilmore testified that Gilmore died of asphyxia due to strangulation, most likely manual strangulation because there were no marks on her neck consistent with ligature strangulation. He also testified that in the vast majority of manual strangulations, the time in which death occurs can range from several seconds to minutes. Based on information received from a friend of defendant’s, a homicide detective dug up Gilmore’s body in the backyard of an abandoned house where defendant lived in a tent. After defendant’s arrest, he told the detective that he and Gilmore had a dispute and Gilmore threatened to kill him. He indicated that he grabbed Gilmore because he thought she had a handgun. The two of them ended up fighting on the ground. Defendant gained control of Gilmore by pinning her down with his knee and choking her with one hand while using the other hand to hold one of her hands. He alternated which hand was on Gilmore’s neck and which hand was holding her until he choked her to death. As a result, defendant was convicted of voluntary manslaughter.
We review the trial court’s rulings concerning the admissibility of evidence under Evidence Code sections 1101 and 352 for abuse of discretion. (People v. Cole (2004) 33 Cal.4th 1158, 1195; People v. Lewis (2001) 25 Cal.4th 610, 637.) The trial court’s exercise of discretion is to be impartial, guided and controlled by fixed legal principles. (In re Robert L. (1993) 21 Cal.App.4th 1057, 1066.) A trial court abuses its discretion in admitting evidence at trial when, in light of all the circumstances before it, “‘the court exceed[s] “‘the bounds of reason....’”’” (Gouskos v. Aptos Village Garage, Inc. (2001) 94 Cal.App.4th 754, 762.) Because substantial prejudice is inherent in the case of uncharged offenses, such evidence is admissible only if it has substantial probative value. (People v. Kelly (2007) 42 Cal.4th 763, 783 (Kelly).)
The use of character evidence of specific instances of conduct is inadmissible if it is offered to prove the conduct of the accused on a specific occasion. (Evid. Code, § 1101, subd. (a).) Evidence of specific acts, including crimes and other wrongs, are admissible if those specific acts are relevant to prove some fact, such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or accident. (Id., subd. (b).)
“Evidence of intent is admissible to prove that, if the defendant committed the act alleged, he or she did so with the intent that comprises an element of the charged offense. ‘In proving intent, the act is conceded or assumed; what is sought is the state of mind that accompanied it.’” (People v. Ewoldt (1994) 7 Cal.4th 380, 394, fn. 2, quoting 2 Wigmore, Evidence (Chadbourn rev. ed. 1979) § 300, p. 238.) “In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to the charged offense to support the inference that the defendant probably acted with the same intent in each instance.” (People v. Lindberg (2008) 45 Cal.4th 1, 23.) “‘The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent.’” (Kelly, supra, 42 Cal.4th at p. 783.)
Defendant argues the trial court erred when it admitted into evidence his prior conviction of voluntary manslaughter as evidence of his intent to commit the present crime. He submits that because the requisite mens rea for the prior crime and the present charged offense are not the same, they lacked sufficient similarity for purposes of admitting the prior conduct into evidence. We disagree. Contrary to defendant’s argument, we are concerned not with the label of the crime of which the defendant was previously convicted, but rather with the nature of the underlying conduct. As stated in Kelly: “‘“[T]he recurrence of a similar result... tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act....” (2 Wigmore, [Evidence] (Chadbourn rev. ed. 1979) § 302, p. 241.)’” (Kelly, supra, 42 Cal.4th at p 783.) It is the recurrence of the conduct or result that is the relevant consideration as to defendant’s present intent.
Here, defendant killed his prior victim, Gilmore, by strangulation. Death by strangulation is unique. Based on testimony in the present matter, strangulation is a slow method of causing death as compared to other means. (It can take between 20 seconds and two minutes for a person to lose consciousness when being strangled. After a loss of consciousness, force must be continuously applied anywhere from two to six minutes to cause death.) At the time defendant engaged in the present conduct, it may be reasonably inferred that because of the prior strangulation he was aware of this time span. Given the time span necessary to cause death by strangulation, it may also be inferred that defendant was aware that if he stopped strangling the victim during the process, the victim could likely survive. This knowledge, gained by defendant as a result of the prior strangulation, is highly relevant to defendant’s mens rea during the present strangulation. Defendant knew it took a relatively long time to cause death by strangulation, yet he continued his wrongful conduct over a significant time period. Clearly, the knowledge gained as a result of the prior incident was highly relevant to his present intent, premeditation, and deliberation.
Defendant next argues that the probative value of the evidence was substantially outweighed by its undue prejudice. He contends the evidence had very little probative value as to the element of intent and would “‘evoke an emotional response against the defendant as an individual....’”
As earlier stated, we review the trial court’s determination of evidentiary admissibility under the abuse of discretion standard. (People v. Cole, supra, 33 Cal.4th at p. 1195.) Because substantial prejudice is inherent in the case of uncharged offenses, such evidence is admissible only if it has substantial probative value. (Kelly, supra, 42 Cal.4th at p. 783.)
In deciding whether the prejudicial effect of prior uncharged conduct substantially outweighs its probative value, we look to the following factors: “(1) whether the inference created by the evidence is strong; (2) whether the source of evidence concerning the present offense is independent of and unaffected by information about the uncharged offense; (3) whether the defendant was punished for the prior misconduct; (4) whether the uncharged offense is more inflammatory than the charged offense; and (5) whether the two incidents occurred close in time.” (People v. Sullivan (2007) 151 Cal.App.4th 524, 559, citing People v. Ewoldt, supra, 7 Cal.4th at pp. 404-405.)
First, evidence of the prior strangulation created a strong inference that defendant had the intent to murder the present victim. Second, the sources of the information relative to the present crime were totally independent of the sources of the prior incident. None of the correctional officers or witnesses involved in the investigation and trial of the present offense had any part in the prior investigation and trial. Third, defendant was convicted of voluntary manslaughter for the prior strangulation and was serving time in state prison for said offense; thus, the jury would not feel compelled to convict defendant in the present case to punish him for the prior strangulation. Fourth, evidence of the prior crime was no more prejudicial than the facts of the present instance. By its nature, strangulation is appalling. And, finally, the two incidents occurred about one and one-half years apart, thus making the prior incident less attenuated in terms of its relevance as to defendant’s intent.
In sum, there was no abuse of discretion in admitting evidence of defendant’s prior commission of voluntary manslaughter to prove intent for first degree murder.
Finally, we reject defendant’s argument that the admission of the evidence violated his right to due process. Where there is no error in admitting evidence of uncharged crimes pursuant to state law, there is no violation of the defendant’s right to due process. (People v. Catlin (2001) 26 Cal.4th 81, 123.)
B. Any Error in Admitting Dr. Cohen’s Testimony Concerning Banks’s Autopsy Was Harmless
Defendant contends his Sixth Amendment right to confront witnesses was violated when the trial court allowed Dr. Cohen to testify concerning Banks’s autopsy, which was performed by Dr. Montez, a nontestifying expert. Defendant’s challenge is not directed to specific areas of Dr. Cohen’s testimony, but is rather a broad attack on all of the testimony “relating [to] and relying on the contents of Dr. [Montez]’s report....”
We conclude that, with some exceptions, defendant’s Sixth Amendment rights were not implicated by Dr. Cohen’s testimony. As to testimony that did violate defendant’s confrontation rights, its admission was harmless.
At no time did defendant object to the testimony of Dr. Cohen on Sixth Amendment grounds or on state evidentiary grounds. He asserts his argument has been preserved for appeal because it is based primarily on Melendez-Diaz v. Massachusetts (2009) 557 U.S. ___ [129 S.Ct. 2527, 174 L.Ed.2d 314] (Melendez-Diaz), which had not been decided at the time of his trial. Nevertheless, there was ample case law construing Crawford v. Washington (2004) 541 U.S. 36 (Crawford), placing counsel on notice of the propriety of an objection based on Sixth Amendment confrontation grounds. By failing to object, defendant thus waived or forfeited the issue on appeal. (See Melendez-Diaz, supra, at p. 2534, fn. 3 [“The right to confrontation may, of course, be waived, including by failure to object”]; People v. Redd (2010) 48 Cal.4th 691, 730 [failure to object based upon the confrontation clause forfeits the argument for purposes of appeal].) We nonetheless address the merits of defendant’s argument.
Dr. Cohen’s testimony comprises approximately 52 pages of the reporter’s transcript. He testified that on September 19, 2001, he was the chief forensic pathologist for the County of Riverside and that he was present during the autopsy of the victim. Dr. Montez, now retired, was the pathologist who performed the autopsy of Banks. Dr. Montez listed a specific diagnosis of compression of the neck as the cause of Banks’s death.
Based on his review of Dr. Montez’s notes, photographs, and autopsy report, Dr. Cohen opined that the cause of Banks’s death was ligature strangulation, manual strangulation, and/or a combination of both. He testified that a person can become unconscious due to strangulation anywhere between 20 seconds and 2 minutes. After the victim is unconscious, the strangler would have to continue to strangle the person for two to six minutes in order to kill him or her. He testified that due to the level of rigor mortis in Banks’s body when found, Banks had been dead for about four to eight hours.
Aside from injuries sustained by strangulation, Banks had approximately 30 blunt force injuries to his head, torso, and extremities. There was also bruising on Banks’s knuckles, which Dr. Cohen testified is common in an individual who has been in a fight or punching things with his or her hands and fists.
Defendant broadly argues that his confrontation rights were violated when Dr. Cohen testified relative to the autopsy performed by Dr. Montez. We agree in part.
Under the present circumstances, the contents of the autopsy report was “testimonial.” Although the report was not admitted into evidence, some of its contents came before the jury for their truth; it was therefore objectionable under the Sixth Amendment. To the extent the report served solely as the basis for Dr. Cohen’s opinions, without its contents being factually detailed, there was no Sixth Amendment violation. Because much of Dr. Cohen’s testimony was “stand alone” testimony, without the report’s contents being detailed, we believe any error in allowing the details of the report into evidence was harmless.
Under Crawford, supra, 541 U.S. 36, testimonial statements of an absent witness are admissible at trial only when the declarant is unavailable to testify and when the defendant has had a prior opportunity to cross-examine the declarant. (Id. at p. 59.) The confrontation clause “applies to ‘witnesses’ against the accused-in other words, those who ‘bear testimony.’ [Citation.] ‘Testimony, ’ in turn, is typically ‘[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.’ [Citation.]” (Id. at p. 51.) Among the type of statements viewed as “testimonial” are those “‘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 p. 52; see also Melendez-Diaz, supra, 129 S.Ct. at p. 2532.) Statements made in response to police interrogation are “testimonial when the circumstances objectively indicate... that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” (Davis v. Washington (2006) 547 U.S. 813, 822, fn. omitted.) Here, there is little doubt that the autopsy report was the functional equivalent of a statement by Dr. Montez prepared for use at a later trial. Its primary purpose was to record the nature of the injuries inflicted on the victim and opine as to what caused the victim’s death-all potentially for future use in a criminal prosecution.
Although Dr. Munoz did testify at the defendant’s preliminary hearing, there was no showing that he was unavailable to testify at trial.
As provided in Government Code section 27491, autopsies are to be performed in cases of “suspected homicide, ... deaths due to... strangulation... [and those] in whole or in part occasioned by criminal means....” Dr. Cohen testified that homicide is among the reasons autopsies are performed. He further testified that, as in this case, x-rays “are taken on all homicide cases” and “[a]ny items of potential evidentiary value are obtained....” Moreover, the presence of a writing board during Banks’s autopsy indicated to Dr. Cohen that the autopsy was performed in the “homicide autopsy suite.” All the indicia of the present autopsy and the report generated therefrom, placed in conjunction with the immediate facts surrounding Banks’s death, lead to the conclusion that an objective witness would reasonably believe the autopsy would be available for use at a later criminal trial. Thus, under Crawford and Melendez-Diaz, the autopsy report is a “testimonial” statement.
Although the report itself and its contents may be “testimonial, ” the confrontation clause “does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.” (Crawford, supra, 541 U.S. at p. 59, fn. 9, citing Tennessee v. Street (1985) 471 U.S. 409, 414.) As with state evidentiary rules, “out-of-court statements offered to support an expert’s opinion are not hearsay because they are not offered for the truth of the matter asserted. Instead, they are offered for the purpose of assessing the value of the expert’s opinion.” (People v. Dean (2009) 174 Cal.App.4th 186, 193 [Fourth Dist., Div Two], citing People v. Thomas (2005) 130 Cal.App.4th 1202, 1209-1210 [Fourth Dist., Div Two].) Generally speaking, when an expert witness uses statements, even testimonial ones, to support his or her expert opinion at trial, those statements do not implicate the confrontation clause because they are not used for the truth of the matter asserted. However, while an expert may use out-of-court statements to support his opinion, he may not detail the content of those statements on direct examination.
As stated in People v. Campos (1995) 32 Cal.App.4th 304, “[a]n expert witness may not, on direct examination, reveal the content of reports prepared or opinions expressed by nontestifying experts. ‘“‘The reason for this is obvious. The opportunity of cross-examining the other doctors as to the basis for their opinion, etc., is denied the party as to whom the testimony is adverse.’”’ [Citations.]” (Id. at p. 308, italics added.) Here, Dr. Cohen, in many areas of his direct testimony, related to the jury the details of the autopsy report. For example, Dr. Cohen testified that “Dr. Montez wrote a specific diagnosis, cause of death, compression of the neck.” When Dr. Cohen was asked about the “internal findings” of the autopsy report, he responded: “[Dr.] Montez describes multiple blunt impact injuries....” Moreover, in many other areas of Dr. Cohen’s testimony, it is unclear as to whether he is stating his opinion based on the autopsy report or whether he is relaying the contents of the report.
The matter is further complicated by the fact that the present jury was not given a limiting instruction that the matters on which Dr. Cohen expressed his opinion were admitted only to show the basis of his opinion and not for their truth. (See, e.g., People v. Coleman (1985) 38 Cal.3d 69, 92.) Thus, it is likely that the jurors accepted Dr. Cohen’s testimony as to the contents of the report for its truth. To compound the problem, the prosecutor during closing argument alluded to some of the details of the autopsy report for their truth. In conclusion, portions of Dr. Cohen’s testimony did implicate defendant’s Sixth Amendment right to confront witnesses.
The People rely on People v. Geier (2007) 41 Cal.4th 555 (Geier) for the proposition that the autopsy report is not “testimonial.” In Geier, the court was confronted with the question of whether a DNA report was “testimonial.” In concluding that it was not, the court focused its analysis on three facets of DNA tests: (1) the nonaccusatory nature of the results of scientific tests; (2) the fact that the test results represented the contemporaneous recordation of observable events; and (3) the admissibility of the test results under the business records exception to the hearsay rule. (Id. at pp. 605-607.)
Initially, Geier is factually distinguishable because an autopsy report involves more than the reporting of scientific tests; it includes the interpretation of facts and the conclusions and opinions of the pathologist. The physician performing the autopsy is not merely reporting on contemporaneous events, but interpreting past events, including the cause of death. Indeed, the Crawford court itself indicated that American courts have historically “rejected any special status for coroner statements” that would exempt them from the requirement of cross-examination. (Crawford, supra, 541 U.S. at p. 47, fn. 2; see also Melendez-Diaz, supra, 129 S.Ct. at p. 2538.)
Moreover, the continuing validity of Geier on this issue is in doubt. In Melendez-Diaz, the United States Supreme Court held that a certificate of forensic drug analysis issued under Massachusetts law was testimonial and therefore inadmissible under the confrontation clause. (Melendez-Diaz, supra, 129 S.Ct. at p. 2532.) The certificates, the court explained, were “functionally identical to live, in-court testimony, doing ‘precisely what a witness does on direct examination.’ [Citation.]” (Ibid.) The court specifically rejected the argument that scientific “analysts are not subject to confrontation because they are not ‘accusatory’ witnesses....” (Id. at pp. 2533-2534.) The court also rejected the argument that the certificates were outside the scope of the confrontation clause “because they are ‘akin to the types of official and business records admissible at common law.’” (Id. at p. 2538.) After reiterating the Crawford court’s comment that coroner’s reports have not been accorded any special status for purposes of the confrontation clause, the Melendez-Diaz court explained that business records are nontestimonial only if they were “created for the administration of an entity’s affairs and not for the purpose of establishing or proving some fact at trial....” (Melendez-Diaz, supra, at pp. 2539-2540.) To the extent that Melendez-Diaz conflicts with Geier, we are bound to follow Melendez-Diaz. (Chesapeake & O. Ry. Co. v. Martin (1931) 283 U.S. 209, 220-221; General Motors Corp. v. City of Los Angeles (1995) 35 Cal.App.4th 1736, 1749.)
A recent decision by this court concludes that Melendez-Diaz did not overrule Geier’s holding that a contemporaneous recordation of observable events is not testimonial. (People v. Miller (2010) 187 Cal.App.4th 902.) We disagree with this conclusion. The effect of Melendez-Diaz on Geier is currently pending before the California Supreme Court. (See, e.g., People v. Dungo (Reynaldo Santos), review granted Dec. 2, 2009, S176886; People v. Gutierrez (Hugo), review granted Dec. 2, 2009, S176620.)
Even though some of Dr. Cohen’s testimony was inadmissible under the confrontation clause, any error is harmless. There was an abundance of testimony by Dr. Cohen relative to the cause of death that did not bring before the jury the details of the testimonial statements of Dr. Munoz. Dr. Cohen testified that he reviewed the photographs, x-rays, body diagrams, and chart notes compiled during the autopsy. As the following testimony reveals, Dr. Cohen explains many of his opinions without detailing before the jury the contents of the autopsy report:
“Q. Still going over his external injuries. [Exhibit] 69-G. What does that show?
“A. This is [the] right side of [Banks]’s body showing the right side of the neck with the head turned to the left. There is a mark across the neck. It’s very slender. It measures approximately one-sixteenth of an inch. And it runs from the front of the neck all the way upward and back towards the outer aspect of the neck, measuring about six inches long and slender. That is an abrasion. That is a very slender scrape of the skin surface. It[’]s consistent with a ligature mark.
“Q. Were you referring to this mark here?
“A. Yes.
“Q. And you call that a ligature mark?
“A. Yes.
“Q. And what is a ligature?
“A. Ligature is usually a long slender implement used to compress the neck. So this is consistent with that. It’s a mark that is made by some object that is being forced up against the neck, and where there is friction between the surface of the neck and the object causing a scrape or abrasion. So this is consistent with a ligature mark.
“Q. What do we see on his left side chest?
“A. That is a horizontal, slender incised wound similar to the small incised wound that we saw on the nose. This is longer, horizontal across the left lower chest. It’s not very deep but it looks like something sharp caused it or relatively sharp.
“Q. Going to People’s [exhibit] H, can you tell us what that depicts?
“A. This is a close-up of the right side of the neck showing that ligature mark. It’s just above the ruler. It’s a very slender red abrasion about six inches long.
“Q. And referring to People’s [exhibit] 66, what has been called the stinger. You looked at this earlier. Is it possible that the stinger made that mark?
“A. It is, yes, that would be consistent with the mark. I couldn’t say with certainty, but something slender, and relatively long was pressed up against the neck to make that mark. The other thing that could cause that, arguably, would be something that scrapes the skin along the neck, not necessarily a ligature but something that scrapes the skin. Something very small with a point that would scrape the skin in a long slender way like that.
“Q. People’s [exhibit] I, what is that?
“A. That is [a] bruise, a bruise on the skin. It’s on the lower neck to the right side, right side of the neck near the collarbone. And that’s bruising there on the skin surface.
“Q. Are we referring to this darker mark here?
“A. Yes.
“Q. And then how about these three marks here?
“A. They are slender contusions or bruises. They are an inch to two inches plus or minus in length each. And those are horizontally situated in a ladder configuration, three slender bruises.
“Q. People’s [exhibit] J?
“A. That’s the same. There is really nothing much to add here. We can see the slender mark on [the] right side of the neck extending to the front of the [neck]. The voice box is the larynx or the prominent part that sticks out. This cartilage in the front of the neck, and the ligature mark you see is just below-below the voice box. And, again, those several band-like slender contusions in a band or ladder configuration.
“Q. So as a layperson, you said this mark up here [on] his neck you would assume is [a] ligature mark?
“A. Yes.
“Q. These marks lower down, are those indicative of anything to you?
“A. They are consistent with ligature marks. The simple answer to your question is if we look at the totality of the findings, not just the external, but the internal findings which we haven’t discussed yet, it always points to at least some element of manual strangulation, the use of hands to compress the neck, as well as the use of some type of ligature, a combination.
“The evidence supports, at least, some manual manipulation, and that is why we call it [a] compression of [the] neck because it’s a combination of ligature and manual strangulation.
“Q. Based on your expertise, you are saying that Jamel Banks was strangled by a ligature and manual, hand strangulation?
“A. Yes.
“Q. People’s [exhibit] K?
“A. This is the left side of the neck. And there are several horizontal, parallel to the ground contusions, bruises on the skin surface on the left side of the neck. It’s consistent with a ligature being used to compress the neck. These are not as vivid as the long slender one on the left side of the neck. They are more fuzzy, not as well defined.
“So it would be harder to implicate a specific type of instrument. Something was pressing on the neck in this area that caused those parallel contusions.
“Q. And still staying with the external injuries, showing you People’s [exhibit] L.
“A. This is a close-up of [Banks]’s right eye. What you see[, ] the white of the eye, called the sclera, has areas of hemorrhage. The dark red irregular discoloration is bleeding into the eyeball, into the sclera. And that is from neck compression and pressure effect that I described earlier where the heart is pumping blood into the head, but the veins which are low pressure are being compressed and blood is not able to get back to the heart from the head.
“This causes the suffusion of the face and neck above the ligature mark, as well as the hemorrhage in the eyes. And what you can make out slightly here are pinpoint hemorrhages we call petechiae hemorrhages, the minute pinpoint dots capillaries that are ruptured are petechiae hemorrhage. And they are described in Dr. Montez’s report not only on the white of the eye, but on the inside of [the] upper and lower eyelids on the inside where we look [at] these hemorrhages, which are a sign of neck compression as well.
“I should point out that [if a] person that is found facedown that has been facedown dead for a while, meaning several hours, will develop petechial hemorrhages and sometimes larger hemorrhages in the eyes. We have to consider that as a mechanism as part of the postmortem change, that is [rigor] mortis, the pooling of blood closest to gravity. That can cause bleeding points in the eye and skin.
“However, when we look at the internal injuries, those are the telltale signs that there is some physical manipulation, not postmortem. So I make that clear that the internal findings, which we have not discussed, clearly implicate physical inflicted trauma.
“Q. Strangulation?
“A. Yes.
“Q. [Exhibit] M, what does that show?
“A. This is another vantage point. One can see the bruises on the left shoulder, the front of the left shoulder and the area of [the] collarbone. And then there is [a] bruise on the lower front portion of the neck. And then you can make out, perhaps, a bit of the ligature marks. Although, I wouldn’t utilize this photograph as a good demonstration of those ligature marks because there are some skin folds here that tend to muddy the water and make it more difficult to see on this photo.
“Q. All the blunt force trauma that Mr. Banks received, the injuries he received, did that happen before the strangulation?
“A. Yes. Any time that there is a bruise, which is bleeding into the tissue, that requires a blood pressure. That is a functioning heart and blood pressure. So those are before death injuries.
“Now, abrasion and scrapes of the skin can occur postmortem and look similar to before death abrasions, generally speaking. There are exceptions where bruising can occur after death, but by and large the bruising seen here is antemortem injury, injury prior to death.
“Q. People’s [exhibit] N?
“A. This is closer up, a different angle view of that linear, horizontal incised wound on the left lower chest. It measures several inches in length. Not too deep, but it does get into under the skin. So something relatively sharp or something with a component of sharp caused this.
“Q. People’s [exhibit] O?
“A. This is a closer view of that same incised wound on the left lower chest.
“Q. People’s [exhibit] P?
“A. This is a photograph of the lower extremities showing body surface injuries. These are the abrasions and contusions around the knees that were described in the report and diagrams from blunt impact.
“Q. People’s [exhibit] Q?
“A. This is [the] top of the right foot. There are two abrasions. You can see the small red marks, and those were scrapes of the surface layers of the skin from blunt impact. They are not very big, but they are documented two abrasions.
“Q. People’s [exhibit] R?
“A. This is a photograph of the hand, looks like the left hand, showing the absence of injuries. And there were no injuries to [Banks]’s hands noted at autopsy, no bruising, no swelling, no bleeding, or open injuries to his hands. And this is an example of one of those photographs.
“Q. So bruising on Jamel Banks’[s] knuckles was found?
“A. Yes.
“Q. And when you are dealing with someone in a fight or punching things with their hand and fists, it is common to find bruising on the knuckles?
“A. Certainly, yes. [¶]... [¶]
“Q. And can you tell us what was done with Jamel Bank’[s] neck?
“A. It’s pretty straightforward. The findings are compelling for strangulation. And the reason for that is, not only are those body surface injuries that I described present, but there are internal injuries to the neck that are very, very important in putting the whole picture together.
“Starting with the surface layers, we do what is known as layered neck dissection starting with the outside and going all the way down to the spine. And we look at these different layers starting with the superficial muscles, we call strap muscles, and going to the deeper strap muscles, all the way to the thyroid gland, the larynx, the trachea, the tissues around the airway, and the hyoid bone, which is the small U-shaped bone that looks like a wishbone.
“We look at these areas meticulously. And this takes 10 to 30 minutes to do this procedure. So that is done on every forensic autopsy, but especially in the case of neck compression, we take extra measures [to] identify injuries. [¶]... [¶]
“So that is very important because what all this tells us is that significant, severe amounts of neck compression occurred to jeopardize the airway, not just the tissue, the muscles of the neck, but also the bone and the airway, the cartilage. So that’s it in a nutshell. [¶]... [¶]
“Q. Am I correct in saying that it would require considerable force to break the hyoid bone in someone’s neck?
“A. Yes. It has to be considerable force or a very directed blow to that area. It will fracture. It’s also very, very pliable, especially in a young person. [Banks] was 27, I believe. And the hyoid is very pliable. In an older individual, it[’]s very calcified and it breaks much easier. Infants, children and young adults, it is very pliable and requires even more force.
“Q. Doctor, I want to talk about the process of strangulation, not internally on the victim, what would be seen as the person was being strangled.
“A. Okay.
“Q. Force applied to the neck, correct?
“A. Yes.
“Q. By ligature or hands or both?
“A. Yes.
“Q. And could you go on from there?
“A. Yes. How long would you like me to go for?
“Q. The simple one.
“A. Very simply, what happened is the veins are compressed first. It may take 20 seconds or 30 seconds for the person to lose consciousness. It may take one or two minutes or longer. It depends on how long the force is applied, and if the force is released. Because when the force is released, the person can regain consciousness. So death really doesn’t occur until minutes later. The person first becomes unconscious
“Q. So a person is being strangled?
“A. Yes.
“Q. And if you have this expertise, it is normal for a person to fight-a person being strangled to fight strangulation?
“A. It would be a normal reflex for a person to attempt to fend off an attacker like that, yes. Because it would be a very noxious stimulus to have your neck compressed where you become air hungry, you are not getting enough air, feeling faint and you are about to pass out. That would be a normal, natural response.
“Q. So you would expect the person being strangled to be moving around and fighting?
“A. Yes. Especially if they are not intoxicated, which he was not. He was intoxicated.
“Q. Then you said maybe in 30 seconds or longer that person goes unconscious?
“A. It would be sooner, it may be longer.
“Q. And what happens when they go [un]conscious to their body?
“A. The body becoming limp. It’s like fainting. There is no voluntary, no ability to fight back or to utilize your muscles.
“Q. So the body goes limp. Would that be visible to the person strangling the person?
“A. Yes.
“Q. When the body goes limp, is the person, that is Jamel Banks, still alive?
“A. Yes. [¶]... [¶]
“Q.... So the body is limp. How much longer does the person that [is] doing the strangling need to continue pushing force on this person’s neck before they actually die?
“A. Approximately, at least a couple of minutes or longer, several minutes. [Banks] was a healthy person. There was no natural disease, no heart disease, lung disease.
“In a case of a young, healthy person, it’s going to take longer, approximately two to three minutes or longer, maybe up to five or six minutes before the heart stops. And the reason that it stops is because of hypoxia, lack of oxygen due to those mechanisms that I described with the blood vessels and the airway.
“Q. So to strangle a person like Jamel Banks to death, the person that did the strangling would have to continue to strangle him after he was limp for up to two to five minutes, you are saying? [¶]... [¶]
“[A.] The answer to your question is, yes, approximately. That would be a very safe range.
“Q.... People’s [exhibit] 24, can you account for this amount of blood under the head of Jamel Banks at the prison?
“A. Yes.
“Q. Would you tell us what caused that?
“A. Assuming that it’s all his blood, assuming that it is all his blood, the open injuries to the mouth, the lower lip, on the inside of the lip, they are very vascular areas and they would bleed readily. Also, this incised wound by the nose, it’s deep and would bleed as well. This thing, this horizontal incised wound on the left lower chest is the same thing.
“You can see from the photograph there is a lot of blood and bloody material on the face. And a lot of other pictures that we looked at the blood was cleaned off, washed off and blotted dry for photographs. It is not difficult to explain that amount of blood from just these lip lacerations, especially given the length of time between-my assumption here is that the lacerations occurred sometime before death, that is a given. Because there has to be a pretty significant heartbeat and blood pressure to allow for blood to keep coming out. So several minutes of bleeding from those lacerations would yield this amount of blood, there is no problem with that.
“Q. That didn’t come from the strangulation part?
“A. No. The strangulation itself is not going to cause that. Strangulation-if a person is strangled and left facedown for three to six hours or longer, they will purge some bloody liquid as part of the postmortem change, some fluids come out of their mouth. They tend to be not dark red bloody, they tend to be more liquid bloody. And that is postmortem change from materials coming from the airways, broken capillaries mixed with mucus and saliva.
“Q. If Jamel Banks was found at 6:10 a.m., and the first couple people that touched him said that he felt cold to touch and was stiff, what would that tell you, Doctor?
“A. Well, that information would tell me that he has been dead for [at] least two to three hours, or probably more with the stiffening. Significant stiffening occur[s] quickly, but usually it takes three to six hours or longer to get that stiff, even up to 12 to 24 hours.
“So it’s safe to say it has been at least several hours, up to six or eight hours that he has been dead based on the rigor mortis. To the cool, [if] the body is cool to the touch is [a] very [] subjective measurement. The body temperature drops a degree and [a] half per hour after death approximately. And, of course, the person who is doing the measurement by feeling the dead person’s body, may have warm skin or cold skin. So what he is feeling may not be that accurate. So there is some variable there that I would caution.
“Generally, speaking a cool body has been dead for at least an hour or two or longer. I would put more weight on rigor mortis, the stiffening of the body.
“Q. If it was so stiff that it was difficult to turn over, does that help?
“A. Yes.
“Q. What would that tell you?
“A. It doesn’t change my opinion.
“Q. So you are going with two to six hours?
“A. I’m going with at least several hours, probably four to six hours or eight hours.
“Q. Four to six?
“A. I’ll give you four to eight hours, that is an approximation. I’m not saying that it couldn’t be three or ten, it’s approximately four to eight. It’s highly unlikely that it would be one or two.
“Q. And in the course of all autopsies, is it normal and customary to draw blood from the deceased?
“A. Yes.
“Q. And that is sent off to the lab for different sorts of analysis?
“A. Yeah. We draw blood for drug testing. And we take blood for DNA testing, if that is needed. That was done in this case.
“Q. After reviewing the autopsy report, all the photographs, and the notes, what final conclusion did you come to as the findings in this case?
“A. In terms of cause of death?
“Q. Yes.
“A. Cause of the death.... You can call it manual strangulation with probable ligature strangulation. It’s a strangulation case is what this is. Compression of the neck is [a] little more generic.... I can tell you this is a strangulation case with an element of the manual and probably some ligature on top of it?
“Q. And when you say manual, you mean another person putting their hands on [Banks]’s neck?
“A. Yes, and performing compression of the neck by way of the hands over a period of time.”
From this admissible testimony, it is clear that Dr. Cohen rendered sufficient “stand alone” testimony as to the cause of death, such that any reference to the details of the autopsy report was harmless beyond a reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18, 24.) This conclusion is strengthened by the evidence that a fellow inmate heard an argument taking place in Banks and defendant’s cell on the night Banks died, followed by five to six seconds of choking noises and then silence.
IV. DISPOSITION
The judgment is affirmed.
We concur: Ramirez P.J., Miller J.