Supreme Court of California Justia
Citation 55 Cal.4th 608; 286 P.3d 442; 12 Cal. Daily Op. Serv. 11,591; 12 Cal. Daily Op. Serv. 13,611; 2012 Daily Journal D.A.R. 14,169

People v. Dungo

Filed 12/12/12

IN THE SUPREME COURT OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

S176886

v.

Ct.App. 3 C055923

REYNALDO SANTOS DUNGO,

San Joaquin County

Defendant and Appellant.

Super. Ct. No. SF100023A

___________________________________ )



ORDER MODIFYING OPINION AND

DENYING PETITION FOR REHEARING

THE COURT:

The opinion in this case, filed October 15, 2012, and appearing at 55 Cal.4th 608,

is modified as follows:

1. The third full paragraph of text on page 613 of 55 Cal.4th is modified to
read:

The police arrested defendant, and he eventually admitted killing Pina. He
said: After he and Pina left the Torres‘s home the night of April 14, 2006,
they argued at Pina‘s home. Pina told him to leave and began throwing
some of his belongings in a box. She punched defendant lightly on the
chin, pushed him, and threw some children‘s toys at him. He grabbed her
by the throat and strangled her. He then wrapped her body in a blanket, put
it in her SUV, and drove around aimlessly, eventually abandoning the SUV
on the Stockton street where the police later found it.


2. Footnote 5, at page 620 of 55 Cal.4th, is modified to read:

Defendant contends that even if the statements in nontestifying Dr.
Bolduc‘s autopsy report lacked the requisite formality, the Sixth
Amendment‘s confrontation right also applies to what Justice Thomas
called ― ‗technically informal statements‘ ‖ if those statements were ― ‗used
to evade the formalized process.‘ ‖ (Williams, supra, 567 U.S. at p. ___,
fn. 5 [132 S.Ct. at p. 2260, fn. 5] (conc. opn. of Thomas, J.).) Defendant
argues that this exception applies here. We need not decide the issue,
however. Justice Thomas has made clear, in the language quoted above,
that any such exception applies only to the formality requirement for
testimonial out-of-court statements. But formality is not enough to make an
extrajudicial statement testimonial; the statement must also have a primary
purpose pertaining to the investigation and prosecution of a crime.
(People v. Lopez, supra, 55 Cal.4th 569, 582 [―all nine high court justices
agree that an out-of-court statement is testimonial only if its primary
purpose pertains in some fashion to a criminal prosecution‖ (italics
added)].) As we will explain (see text discussion, post), the autopsy
statements upon which Dr. Lawrence relied for his opinions had no such
primary purpose.

These modifications do not affect the judgment.

The petition for rehearing is denied.

Corrigan, J., is of the opinion the petition should be granted.



Filed 10/15/12 (unmodified version) (see lead case, S177046, and companion case, S176213, also filed 10/15/12)




IN THE SUPREME COURT OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

S176886

v.

Ct.App. 3 C055923

REYNALDO SANTOS DUNGO,

San Joaquin County

Defendant and Appellant.

Super. Ct. No. SF100023A

___________________________________ )


The Sixth Amendment to the United States Constitution grants a criminal

defendant the right to confront adverse witnesses. This is the second in a trio of cases

before us involving that right. The two companion cases are People v. Lopez (Oct. 15,

2012, S177046) ___ Cal.4th ___, and People v. Rutterschmidt (Oct. 15, 2012, S176213)

___ Cal.4th ___.

At defendant Reynaldo Santos Dungo‘s murder trial, a forensic pathologist

testifying for the prosecution described to the jury objective facts about the condition of

the victim‘s body as recorded in the autopsy report and accompanying photographs.

Based on those facts, the expert gave his independent opinion that the victim had died of

strangulation. Neither the autopsy report, which was prepared by another pathologist

who did not testify, nor the photographs were introduced into evidence. Unlike the Court

of Appeal, we conclude that the expert‘s testimony did not give rise to a right by

defendant to question the preparer of the autopsy report.



1



I

A. Facts

Defendant and Lucinda Correia Pina became romantically involved in 2005. Pina

lived in Stockton, San Joaquin County, and was in the process of divorcing her husband.

Defendant and his daughter also lived in Stockton, but his wife and son were staying with

his wife‘s grandparents in Seaside, Monterey County. Defendant‘s wife viewed this as a

temporary separation, and she talked regularly to defendant, but defendant told Pina that

he and his wife were divorced.

In April 2006, defendant‘s friends noticed that he was exhibiting ―controlling

behavior‖ towards Pina. Pina told friends and relatives that defendant was ―smothering

her‖ and she wanted to end their relationship. That same month, defendant, while at

Pina‘s house, answered a telephone call to Pina from Isaac Zuniga, who had a prior

sexual relationship with Pina; defendant threatened to kill Zuniga if he continued to call

Pina. Later, on April 14, Zuniga told Pina about the call. That evening, defendant and

Pina went to visit Felipe and Angelique Torres. Pina complained to Angelique that

defendant had told Zuniga to stop calling her, and Pina said she was considering raising

the issue with defendant.

The next morning, defendant went to see Pina‘s mother and asked if she knew

where Pina was. Defendant said that while he was at Pina‘s house the previous night,

Pina received a telephone call from Zuniga and then left to meet Zuniga. Pina‘s sport

utility vehicle (SUV) was not at her house. Pina‘s mother then tried repeatedly to reach

Pina on her cellphone, without success. That afternoon, the mother called the police.

Local news media reported Pina‘s disappearance, and they described Pina and her

SUV. Thereafter, a Stockton resident told the police that an SUV matching the

description was parked on her street. Police officers found Pina‘s body in the vehicle.

The police arrested defendant, and he eventually admitted killing Pina. He said:

After he and Pina left the Torres‘s home the night of April 14, 2006, they argued at

2



Pina‘s home. Pina punched defendant lightly on the chin, pushed him, and threw some

children‘s toys at him. She told him to leave and began throwing some of his belongings

in a box. He grabbed her by the throat and strangled her. He then wrapped her body in a

blanket, put it in her SUV, and drove around aimlessly, eventually abandoning the SUV

on the Stockton street where the police later found it.

B. Trial Court Proceedings

Defendant was charged with Pina‘s murder. Before trial, the prosecution informed

the trial court that pathologist George Bolduc, who had performed the autopsy of Pina‘s

body, would not be called as an expert witness. Instead, the prosecution‘s witness would

be forensic pathologist Robert Lawrence, who at the time of trial was Dr. Bolduc‘s

employer.1 The prosecution did not indicate that Dr. Bolduc was unavailable to testify.

Defendant objected to the prosecution‘s proposed substitution of its expert witness and

asked for an evidentiary hearing on the matter. (See Evid. Code, § 402, subd. (b).) The

trial court granted the request.

At the pretrial evidentiary hearing, Dr. Lawrence testified on cross-examination by

the defense that Dr. Bolduc had at one point been a coroner in Kern County but ―was

fired,‖ a fact not disclosed in Bolduc‘s résumé. Also, in his previous employment as a

coroner for Orange County, Dr. Bolduc had resigned ―under a cloud.‖2 As a result of

these incidents, Dr. Lawrence said, some newspaper articles asserted that Dr. Bolduc was


1

At trial, Dr. Lawrence testified to being a pathologist for the San Joaquin County

coroner‘s office and owning Forensic Consultants Medical Group, which provides
pathologists, including Dr. Bolduc, to act as coroners in several counties and also offers
private consultation.
2

In People v. Beeler (1995) 9 Cal.4th 953, an Orange County capital murder case,

Dr. Bolduc performed an autopsy of the murder victim but did not testify at trial. Our
opinion affirming the judgment of death mentioned that the trial court in that case ―was
aware that Dr. Bolduc had apparently left the [Orange County] coroner‘s office under
unfavorable conditions‖ (id. at p. 979), and we noted testimony by a pathologist that Dr.
Bolduc had caused ― ‗quite a bit of consternation‘ in a prior murder case by basing his
conclusion regarding the cause of death on a police report rather than on medical
evidence.‖ (Ibid.)

3



incompetent, and prosecutors in several counties in California refused to use him as an

expert witness in homicide cases. Dr. Lawrence had seen ―no evidence that [Dr. Bolduc]

ever did anything incompetent.‖ He said the allegations against Dr. Bolduc were

―generated by people who don‘t know what they‘re talking about,‖ and he described

much of the criticism of Dr. Bolduc as ―ridiculous‖ and ―patently absurd.‖ Dr. Lawrence

agreed with the conclusion in Dr. Bolduc‘s autopsy report that Pina died from ―asphyxia

due to neck compression.‖

The trial court ruled that at trial the prosecution could have Dr. Lawrence testify

about the cause of Pina‘s death, but that the defense could cross-examine Dr. Lawrence

about Dr. Bolduc‘s qualifications as a pathologist, as this was relevant to the

trustworthiness of the facts stated in Dr. Bolduc‘s autopsy report.

At the jury trial, Dr. Lawrence testified that after reviewing Dr. Bolduc‘s autopsy

report and the accompanying autopsy photographs, he concluded that Pina had died from

asphyxia caused by strangulation. He pointed out that Pina had ―hemorrhages in the neck

organs consistent with fingertips during strangulation‖ and that she had ―pinpoint

hemorrhages in her eyes,‖ indicating a lack of oxygen. Also supporting strangulation as

the cause of Pina‘s death, Dr. Lawrence testified, were ―the purple color of her face,‖ the

―absence of any natural disease that can cause death,‖ and the fact that Pina had bitten her

tongue shortly before death. Dr. Lawrence stated that because Pina‘s hyoid bone was not

fractured, Pina was strangled for ―more than two minutes.‖ Had a fracture occurred,

Dr. Lawrence explained, death could have occurred sooner.

Dr. Lawrence did not describe to the jury Dr. Bolduc‘s opinion about the cause of

Pina‘s death; instead, he only gave his own independent opinion as a forensic pathologist.

Dr. Lawrence did not say whether his description of Pina‘s body at the time of the

autopsy (the hemorrhages in Pina‘s face and eyes, the purplish color of the face, the bite

marks on the tongue, and the absence of a fracture of the hyoid bone) was based solely on

the autopsy photographs, solely on Dr. Bolduc‘s autopsy report, or on a combination of

4



them. Neither the autopsy photographs nor Dr. Bolduc‘s autopsy report was admitted

into evidence.3 On cross-examination, defense counsel questioned Dr. Lawrence

regarding his views about the cause of Pina‘s death, but not about Dr. Bolduc‘s

qualifications.

Testifying on his own behalf, defendant said that on the night he killed Pina, he

told her of his suspicion that she might be resuming her relationship with Isaac Zuniga.

Defendant and Pina began swearing at each other, and Pina told defendant: ―I‘ll fuck

whoever I want. . . . [i]f I want to fuck Isaac, if I want to fuck Anul [Pina‘s husband], I

will do whatever I want.‖ Defendant grabbed Pina‘s arm, after which Pina punched him

on the chin and bit his arm, saying: ―You‘re not even a good father. You‘re a lousy

fucking father . . . you‘re a worthless piece of shit.‖ Defendant ―snapped.‖ He grabbed

Pina‘s neck and strangled her, saying: ―Fuck you, Lucinda. I‘m a good dad. I‘m a good

dad. I‘m not a bad father. Fuck you.‖

In closing argument, defense counsel conceded defendant‘s killing of Pina but

argued that the murder was without malice as it occurred in a sudden quarrel or heat of

passion, and that therefore defendant was guilty only of voluntary manslaughter, not

murder.4 The prosecutor, citing Dr. Lawrence‘s testimony that Pina was strangled for

―more than two minutes,‖ argued that defendant could not have been acting in the heat of

passion for that length of time, and that therefore the killing was murder rather than

manslaughter.


3

We grant the district attorney‘s motion, which defendant does not oppose, that we

take judicial notice of the autopsy report. (See People v. Castillo (2010) 49 Cal.4th 145,
157 [a court may take judicial notice of a public record when it does not consider the
record for the truth of matters stated therein]; Dixon v. Superior Court (2010) 170
Cal.App.4th 1271, 1278 [an autopsy report is a public record].)
4

―Murder is the unlawful killing of a human being . . . with malice aforethought.‖

(Pen. Code, § 187, subd. (a).) When an unlawful killing occurs ―upon a sudden quarrel
or heat of passion‖ (Pen. Code, § 192, subd. (a)) the killer lacks malice, and the crime is
voluntary manslaughter, a lesser offense necessarily included within the crime of murder.
(See People v. Moye (2009) 47 Cal.4th 537, 549.)

5



C. Verdict and Appeal

The jury convicted defendant of second degree murder, and the trial court

sentenced him to a prison term of 15 years to life.

The Court of Appeal reversed the judgment. It concluded that Dr. Lawrence‘s

trial testimony about the cause of Pina‘s death violated defendant‘s federal Sixth

Amendment right to confront and cross-examine Dr. Bolduc, and that the error was

prejudicial. We granted the district attorney‘s petition for review.

II

Like the two companion cases, this case presents a Sixth Amendment

confrontation right issue with complexities that are far from easy to resolve in light of the

widely divergent views expressed by the justices of the United States Supreme Court in a

recent quartet of cases we must consider here. Those cases are: (1) Crawford v.

Washington (2004) 541 U.S. 36 (Crawford), a seven-to-two decision; (2) Melendez-Diaz

v. Massachusetts (2009) 557 U.S. 305 (Melendez-Diaz), a five-to-four decision; (3)

Bullcoming v. New Mexico (2011) 564 U.S. ___ [131 S.Ct. 2705] (Bullcoming), a five-to-

four decision; and (4) Williams v. Illinois (2012) 567 U.S. ___ [132 S.Ct. 2221]

(Williams), a four-one-four decision.

Well before Crawford, the high court had, in Ohio v. Roberts (1980) 448 U.S. 56,

66, construed the federal Constitution‘s confrontation right as allowing the use at trial of

any out-of-court statements that were within a ―firmly rooted hearsay exception‖ or had

―particularized guarantees of trustworthiness.‖ But some 25 years later, in Crawford, the

high court abandoned that approach and adopted this general rule: The prosecution may

not use ―[t]estimonial statements‖ of a witness who does not appear at trial, unless the

witness is unavailable to testify and the defendant had a prior opportunity for cross-

examination. (Crawford, supra, 541 U.S. at p. 59.)

The Crawford majority explained that the Sixth Amendment‘s confrontation right

pertains to those who give ―testimony,‖ defined as ― ‗[a] solemn declaration or

6



affirmation made for the purpose of establishing or proving some fact.‘ ‖ (Crawford,

supra, 541 U.S. at p. 51.) Crawford mentioned several possible definitions, by several

sources, of statements that are testimonial in nature, including ― ‗extrajudicial statements

. . . contained in formalized testimonial materials, such as affidavits, depositions, prior

testimony, or confessions,‘ [citation]; [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 . . .‘ [citation].‖ (Id. at pp. 51-52.)

But Crawford did not adopt a particular definition, noting only that ―some statements

qualify under any definition.‖ (Id. at p. 52.)

Five years later, in 2009, came the high court‘s decision in Melendez-Diaz, which

extended Crawford‘s holding to forensic reports. There, at the defendant‘s trial for

cocaine distribution and trafficking, the prosecution introduced into evidence a

laboratory‘s ―certificates of analysis‖: sworn statements that a substance found in plastic

bags in the defendant‘s car was determined to be cocaine. (Melendez-Diaz, supra, 557

U.S. at p. 308.) The high court held that the laboratory certificates were ―within the ‗core

class of testimonial statements,‘ ‖ making them inadmissible under the reasoning of

Crawford, supra, 541 U.S. 36. (Melendez-Diaz, supra, at p. 310.) The Melendez-Diaz

majority explained: Each certificate was (1) ―a ‗ ―solemn declaration or affirmation

made for the purpose of establishing or proving some fact‖ ‘ ‖ (ibid.), (2) ―functionally

identical to live, in-court testimony‖ (id. at pp. 310-311), (3) ― ‗made under

circumstances which would lead an objective witness reasonably to believe that [it]

would be available for use at a later trial‘ ‖ (id. at p. 311), and (4) created ―to provide

‗prima facie evidence of the composition, quality, and the net weight‘ ‖ (ibid.) of the

substance found in the plastic bags seized from the defendant‘s car.

Two years later, in 2011, the high court decided Bullcoming, which involved a

charge of driving while intoxicated. At trial, the prosecution introduced into evidence a

report by laboratory analyst Curtis Caylor. The report included Caylor‘s ―certificate of

7



analyst‖ (Bullcoming, supra, 564 U.S. at p. ___ [131 S.Ct. at p. 2710]) stating the

correctness of his report‘s conclusion that a blood sample taken at the defendant‘s arrest

had an illegally high level of alcohol. Caylor did not testify. Instead, the prosecution

called as a witness a colleague of Caylor‘s — an analyst who, although familiar with the

laboratory‘s testing procedures, had neither participated in nor observed the testing by

Caylor. The high court held that the admission at trial of Caylor‘s laboratory report

violated the defendant‘s right to confront and cross-examine Caylor. The court noted that

unlike the laboratory certificates in Melendez-Diaz, supra, 557 U.S. 305, which were

statements sworn before a notary public attesting to the truth of the reported test results,

Caylor‘s certificate was not a sworn declaration. Nevertheless, the high court pointed

out, ―Caylor‘s certificate [was] ‗formalized‘ in a signed document‖ (Bullcoming, supra,

564 U.S. at p. ___ [131 S.Ct. at p. 2717]) — the laboratory report — and the report made

reference to New Mexico court rules that ―provide for the admission of certified blood-

alcohol analyses‖ (ibid.). These ―formalities‖ (ibid.) the high court concluded, were

―more than adequate‖ (ibid.) to qualify Caylor‘s laboratory report as testimonial in

nature.

In June of this year, 12 days after we heard oral argument in this matter and while

it was pending before us, the high court decided Williams, supra, 567 U.S. ___ [132 S.Ct.

2221]. At issue in Williams was testimony by Illinois State Police forensic biologist

Sandra Lambatos that a DNA profile (derived from semen on vaginal swabs taken from a

rape victim) produced by a Maryland laboratory matched a DNA profile (derived from a

sample of the defendant‘s blood) produced by the Illinois State Police Laboratory.

The plurality opinion in Williams, authored by Justice Alito, was signed by the

Chief Justice as well as Justices Kennedy and Breyer; in a separate concurring opinion

Justice Breyer explained why he joined Justice Alito‘s opinion ―in full‖ (Williams, supra,

567 U.S. at p. ___ [132 U.S. 2221, 2252] (conc. opn. of Breyer, J.)). The plurality

concluded on two alternative grounds that Lambatos‘s expert testimony did not violate

8



the federal Constitution‘s confrontation right. First, the plurality reasoned that

Lambatos‘s testimony was constitutionally permissible because it was admitted not for its

truth but only for the limited purpose of explaining the basis of Lambatos‘s independent

conclusion, based on her expertise, that the defendant‘s DNA matched the DNA in the

semen found on the vaginal swabs. (Id. at p. ___ [132 S.Ct. at p. 2228] (plur. opn. of

Alito, J.).) Alternatively, the Williams plurality reasoned, there was no confrontation

right violation because the Maryland laboratory‘s report was prepared for the primary

purpose of finding a dangerous rapist who was still at large, not ―for the primary purpose

of accusing a targeted individual.‖ (Id. at p. ___ [132 S.Ct. at p. 2243] (plur. opn. of

Alito, J.).) In a separate concurring opinion, Justice Thomas agreed with the plurality‘s

conclusion that Lambatos‘s expert testimony did not offend the Sixth Amendment‘s

confrontation right, but for a completely different reason: The Maryland laboratory

report on which Lambatos relied ―lack[ed] the solemnity of an affidavit or deposition‖

and was therefore not ―testimonial.‖ (Id. at p. ___ [132 S.Ct. at p. 2260] (conc. opn. of

Thomas, J.).) A dissenting opinion by Justice Kagan, and signed by Justices Scalia,

Ginsburg, and Sotomayor, disagreed with the reasoning of both the plurality and Justice

Thomas, and concluded that Lambatos‘s testimony violated the defendant‘s confrontation

right. These widely divergent views, none of which was able to garner majority support

— as reflected in the four-one-four decision — highlight the complexity of the issue.

III

We noted earlier that at defendant‘s murder trial, Dr. Lawrence gave his

independent opinion as to the cause of Pina‘s death. Dr. Lawrence reached that opinion

after reviewing an autopsy report (with accompanying photographs) prepared by

Dr. Bolduc, who did not testify and thus could not be confronted by defendant. The

Court of Appeal concluded that Dr. Lawrence‘s testimony violated defendant‘s right to

confront and cross-examine Dr. Bolduc.

9



Limiting our inquiry are two significant points. First, here (unlike in the

companion case of People v. Lopez, supra, __ Cal.4th ___), Dr. Bolduc‘s autopsy report

was not introduced into evidence. Thus, we need not decide whether that entire report is

testimonial in nature. Second, Dr. Lawrence‘s testimony never described the conclusions

in Dr. Bolduc‘s autopsy report as to the cause of Pina‘s death. Thus, we need not

determine whether such testimony, if it had been given, would have violated defendant‘s

right to confront Dr. Bolduc.

Dr. Lawrence did, however, describe to the jury the condition of Pina‘s body at the

time of the autopsy: the hemorrhages in Pina‘s eyes and neck organs, the purple color of

her face, the absence of any natural disease causing death, the fact that she had bitten her

tongue shortly before death, and the absence of any fracture of the hyoid bone. This

description was based on Dr. Lawrence‘s review of Dr. Bolduc‘s autopsy report and its

accompanying photographs. (As we have noted earlier (see p. 5, ante), the record before

us does not indicate whether Dr. Lawrence based his description solely on the autopsy

photographs, solely on Dr. Bolduc‘s autopsy report, or on a combination of the two.) The

issue before us is whether Dr. Lawrence‘s testimony about these objective facts entitled

defendant to confront and cross-examine Dr. Bolduc.

As we discussed in the companion case of People v. Lopez, supra, __ Cal.4th at

page ___ [p. 13], the prosecution‘s use of testimonial out-of-court statements ―ordinarily

violates the defendant‘s right to confront the maker of the statements unless the declarant

is unavailable to testify and the defendant had a prior opportunity for cross-examination.‖

Although the high court has not agreed on a definition of ―testimonial,‖ testimonial out-

of-court statements have two critical components. First, to be testimonial the statement

must be made with some degree of formality or solemnity. Second, the statement is

testimonial only if its primary purpose pertains in some fashion to a criminal prosecution.

The high court justices have not, however, agreed on what the statement‘s primary

purpose must be.

10



We begin with the issue of formality. An autopsy report typically contains two

types of statements: (1) statements describing the pathologist‘s anatomical and

physiological observations about the condition of the body, and (2) statements setting

forth the pathologist‘s conclusions as to the cause of the victim‘s death. The out-of-court

statements at issue here — pathologist Bolduc‘s observations about the condition of

victim Pina‘s body — all fall into the first of the two categories. These statements, which

merely record objective facts, are less formal than statements setting forth a pathologist‘s

expert conclusions. They are comparable to observations of objective fact in a report by

a physician who, after examining a patient, diagnoses a particular injury or ailment and

determines the appropriate treatment. Such observations are not testimonial in nature.

(Melendez-Diaz, supra, 557 U.S. at p. 312, fn. 2 [―medical reports created for treatment

purposes . . . would not be testimonial under our decision today‖].)5

Defendant argues that the statements in nontestifying Dr. Bolduc‘s autopsy report

were sufficiently ―formal‖ because: (1) a detective was present when the autopsy of Pina

was performed, (2) the autopsy was statutorily mandated, (3) Dr. Bolduc was required by

statute to report his findings, (4) Detective Fain disclosed defendant‘s confession to

Dr. Bolduc before the autopsy report was written, and (5) Dr. Bolduc was statutorily

required to notify law enforcement if he determined that there were reasonable grounds to

suspect that the death was a homicide. But those circumstances have little to do with the

formality and solemnity of the statements. Rather, they pertain to the second of the two

categories mentioned above: the primary purpose of the statements in the report.


5

Defendant contends that even if the statements in nontestifying Dr. Bolduc‘s

autopsy report lacked the requisite formality, the Sixth Amendment‘s confrontation right
also applies to what Justice Thomas called ― ‗technically informal statements‘ ‖ if those
statements were ― ‗used to evade the formalized process.‘ ‖ (Williams, supra, 567 U.S. at
p. ___, fn. 5 [132 S.Ct. at p. 2260, fn. 5] (conc. opn. of Thomas, J.).) Defendant argues
that this exception applies here. But he did not raise this argument at trial, and therefore
the trial court did not determine whether the statements at issue here were ― ‗used to
evade the formalized process.‘ ‖ (Ibid.) Thus, this argument can only be made, if at all,
in a habeas corpus petition.

11



For example, the presence of a detective at the autopsy and the fact that the

detective told the pathologist about defendant‘s confession do not make the statements of

objective fact in the autopsy report into formal and solemn testimony; but those

circumstances do support defendant‘s argument that the primary purpose of the autopsy

was the investigation of a crime. Similarly, the fact that the autopsy was mandated by a

statute that required public findings and notification of law enforcement does not imply

that the statements of objective fact in the report are formal and solemn testimony, but it

does imply that the primary purpose of the autopsy was forensic. Therefore, we turn now

to the question of primary purpose.

The preparation of an autopsy report is governed by California‘s Government

Code section 27491, which requires a county coroner to ―inquire into and determine the

circumstances, manner, and cause‖ of certain types of death. Some of these deaths (such

as deaths from alcoholism, ―sudden infant death syndrome,‖ and ―contagious disease‖)

result from causes unrelated to criminal activities, while other deaths (such as deaths

resulting from ―criminal abortion,‖ deaths by ―known or suspected homicide,‖ and

―deaths associated with a known or alleged rape‖) result from the commission of a crime.

(Ibid.) With respect to all of the statutorily specified categories of death, however, the

scope of the coroner‘s statutory duty to investigate is the same, regardless of whether the

death resulted from criminal activity.

The usefulness of autopsy reports, including the one at issue here, is not limited to

criminal investigation and prosecution; such reports serve many other equally important

purposes. For example, the decedent‘s relatives may use an autopsy report in

determining whether to file an action for wrongful death. And an insurance company

may use an autopsy report in determining whether a particular death is covered by one of

its policies. (See, e.g., People v. Rutterschmidt, supra, ___ Cal.4th ___.) Also, in certain

cases an autopsy report may satisfy the public‘s interest in knowing the cause of death,

12



particularly when (as here) the death was reported in the local media. In addition, an

autopsy report may provide answers to grieving family members.

In short, criminal investigation was not the primary purpose for the autopsy

report‘s description of the condition of Pina‘s body; it was only one of several purposes.

The presence of a detective at the autopsy and the statutory requirement that suspicious

findings be reported to law enforcement do not change that conclusion. The autopsy

continued to serve several purposes, only one of which was criminal investigation. The

autopsy report itself was simply an official explanation of an unusual death, and such

official records are ordinarily not testimonial. (Melendez-Diaz, supra, 554 U.S. at

p. 324.)

In summary, Dr. Lawrence‘s description to the jury of objective facts about the

condition of victim Pina‘s body, facts he derived from Dr. Bolduc‘s autopsy report and its

accompanying photographs, did not give defendant a right to confront and cross-examine

Dr. Bolduc. The facts that Dr. Lawrence related to the jury were not so formal and

solemn as to be considered testimonial for purposes of the Sixth Amendment‘s

confrontation right, and criminal investigation was not the primary purpose for recording

the facts in question. In holding that defendant‘s confrontation right was violated here,

the Court of Appeal erred.

13



Disposition

The judgment of the Court of Appeal is reversed, and the matter is remanded for

further proceedings consistent with this opinion.

KENNARD, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.


14












CONCURRING OPINION BY WERDEGAR, J.




I concur in the reasoning and result of the majority opinion, which I have

signed. I write separately to explain in more detail why the anatomical and

physiological observations recorded by a forensic pathologist in an autopsy report

should not be considered testimonial, as that term has been used in Crawford v.

Washington (2004) 541 U.S. 36 (Crawford) and its progeny.

As the majority explains (maj. opn., ante, at p. 11), the autopsy report by

Dr. George Bolduc, who conducted the autopsy but did not testify at trial, was not

admitted into evidence; the question of whether the autopsy report itself was

testimonial is thus not before us. In addition, the testifying pathologist, Dr. Robert

Lawrence, gave his own expert opinions as to the cause and manner of death

rather than relaying those reached by Dr. Bolduc; hence, the question of whether

such recorded conclusions are testimonial is also not before us. Like the majority,

therefore, I focus exclusively on Dr. Lawrence‘s repetition to the jury of

anatomical and physiological observations Dr. Bolduc recorded in his report, upon

which Dr. Lawrence based his conclusions. Of these, the most significant was Dr.

Bolduc‘s recorded observation that the victim‘s larynx and hyoid bone were both

unbroken, from which Dr. Lawrence concluded the victim was strangled for ―a

period of minutes . . . certainly more than two minutes.‖1 Dr. Lawrence‘s opinion


1

Dr. Lawrence‘s reasoning was that in the absence of a fracture that might

have blocked the victim‘s airway, it was ―unlikely that she was just briefly

1



became, in turn, the basis for prosecutorial argument to the jury that the killing

was intentional and premeditated.

The question of what out-of-court statements are and are not testimonial

has divided the justices of the United States Supreme Court, whose decisions have

not yet yielded a clear definition or test. But the justices have consistently

considered two factors in deciding whether a given statement sufficiently

resembles the English court abuses that gave rise to the confrontation clause,

primarily the use at trial of witness statements obtained through ex parte

examination: (1) the degree of formality or solemnity with which the statement

was made and (2) the degree to which it was produced for use at trial. The more a

statement resembles the ― ‗solemn declaration or affirmation‘ ‖ that is testimony,

commonly understood, and the more it was expected, when made, ― ‗to be used

prosecutorially‘ . . . ‗at a later trial,‘ ‖ the more centrally it is located within the

―core class of ‗testimonial‘ statements.‖ (Crawford, supra, 541 U.S. at pp. 51-52.)

Throughout the high court‘s exploration of the issue, Justice Thomas has

maintained that solemnity or formality is the sine qua non of the testimonial

statement. This focus is demonstrated in his separate opinions in Davis v.

Washington (2006) 547 U.S. 813, 838 (Davis) and Michigan v. Bryant (2011) 562

U.S. ___, ___ [131 S.Ct. 1143, 1167] (Bryant), both asserting that statements

resulting from a witness‘s informal conversation with police officers are not

testimonial, in Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305, 330

(Melendez-Diaz), where Justice Thomas concurred with the majority that

certificates of chemical content were affidavits and hence testimonial, and in

Williams v. Illinois (2012) 567 U.S. ___, ___, ___ [132 S.Ct. 2221, 2255]

(Williams), where he argued a DNA profile report was not testimonial because it


squeezed and then let go and went on to die. I think there was pressure applied for
a longer period.‖

2



lacked solemnity and formality (id. at p. 2260). Other opinions, primarily majority

opinions, have relied on this factor as well. (See Crawford, supra, 541 U.S. at

p. 53, fn. 4 [witness‘s ―recorded statement, knowingly given in response to

structured police questioning, qualifies under any conceivable definition‖ of

interrogation, and was hence testimonial]; Davis, supra, 547 U.S. at p. 830

[though not so formal as in Crawford, police questioning was ―formal enough‖];

Melendez-Diaz, supra, 557 U.S. at p. 310 [certificates of chemical content ―are

incontrovertibly a ‗ ―solemn declaration or affirmation made for the purpose of

establishing or proving some fact‖ ‘ ‖]; Bullcoming v. New Mexico (2011) 564

U.S. ___, ___ [131 S.Ct. 2705, 2717] (Bullcoming) [though not sworn before a

notary public, certificates were ―[l]ike the Melendez-Diaz certificates . . .

‗formalized‘ in a signed document‖]; Williams, supra, 567 U.S. at p. ___ [132

S.Ct. at p. 2242] (plur. opn. of Alito, J.) [testimonial hearsay typically consists of

―formalized statements such as affidavits, depositions, prior testimony, or

confessions‖].)

The critical hearsay statement in this case—Dr. Bolduc‘s recorded

observation that the victim‘s larynx and hyoid bone were unbroken—lacked the

solemnity and formality that characterize statements the high court deems

testimonial. Although Dr. Bolduc signed and dated his autopsy report, it was not

sworn or certified in a manner comparable to the chemical analyses in Melendez-

Diaz and Bullcoming. The report contrasts in this respect with the coroner‘s or

attending physician‘s ―[c]ertification and signature‖ on a death certificate, by

which the declarant ―attest[s] to [the] accuracy‖ of ―the portion of the certificate

setting forth the cause of death.‖ (Health & Saf. Code, § 102875, subd. (a)(7).)

Though the cause of death declared on a death certificate is to be ―in conformity

with‖ the ―facts ascertained‖ by autopsy or other investigation (Gov. Code,

§ 27491.5), the two documents, autopsy report and death certificate, are distinct,

3



and only the latter bears a formal certification mandated by statute. Certainly, no

certification or solemn attestation accompanied the portions of Dr. Bolduc‘s

autopsy report containing his observations as to the unbroken state of the

decedent‘s larynx and hyoid bone.

In cases involving the declarations of percipient witnesses rather than

laboratory reports, the high court has looked to the degree of formality and

structure of the circumstances in which the statement was made, using this

analysis to help determine whether the statement is akin to the products of ex parte

examinations. (See Crawford, supra, 541 U.S. at pp. 50-53 & fn. 4 [contrasting

nontestimonial ―off-hand, overheard‖ remarks with the testimonial products of

―structured‖ police interrogation]; Davis, supra, 547 U.S. at p. 830 [as in

Crawford, formal police interrogation of witness bore a ― ‗striking resemblance‘ ‖

to ex parte examinations]; Bryant, supra, 562 U.S. at p. ___ [131 S.Ct. at p. 1155]

[where ―state actors are involved in formal, out-of-court interrogation of a witness

to obtain evidence for trial,‖ resulting statements are considered testimonial].)

Looking beyond the question of certification to the formality or lack thereof in the

circumstances in which Dr. Bolduc‘s anatomical observations were made and

recorded, the statements again appear to lack the requisite formality.

As the majority observes, autopsy reports typically (and in this case) have

two parts: ―(1) the objective forensic autopsy with its findings including

toxicological tests, special tests, microscopic examination, etc., and (2) the

interpretations of the forensic pathologist including cause and manner of death.‖

(Nat. Assn. of Medical Examiners, Forensic Autopsy Performance Standards

(2005, as amended, Aug. 11, 2011) std. H31, p. 25 (hereafter NAME Standards);

see maj. opn., ante, at p. 12.) Whatever one might say of the latter portion (again,

that issue is not before us here because Dr. Lawrence testified to his own

conclusions as to cause and manner of death, not to Dr. Bolduc‘s), the former does

4



not resemble the ex parte examinations of historical example or the structured

police interrogations of Crawford and Davis. Though there is a structure to the

autopsy examination process, it is largely that of a medical examination, not an

interrogation. ―Performance of a forensic autopsy is the practice of medicine.‖

(NAME Standards, supra, std. B4, p. 10.) A professionally prepared autopsy

report should record the pathologist‘s observations of the external examination

and, where performed, the internal examination of the decedent‘s body, with a

description of all internal and external injuries observed ―in sufficient detail to

support diagnoses, opinions, and conclusions.‖ (Id., std. H31.8, p. 25.) The

process of systematically examining the decedent‘s body and recording the

resulting observations is thus one governed primarily by medical standards rather

than by legal requirements of formality or solemnity.

On the second factor going to a statement‘s testimonial character, the

primary purpose behind the statement‘s production, a consensus appears to exist

that a statement is more testimonial to the extent it was produced under

circumstances making it likely to be used in place of live testimony at a future

criminal trial. (See Williams, supra, 567 U.S. at p. ___ [132 S.Ct. at p. 2243]

(plur. opn. of Alito, J.) [―the primary purpose of the Cellmark report, viewed

objectively, was not to accuse petitioner or to create evidence for use at trial‖]; id.

at p. ___ [132 S.Ct. at p. 2273] (dis. opn. of Kagan, J.) [court has asked ―whether a

statement was made for the primary purpose of establishing ‗past events

potentially relevant to later criminal prosecution‘—in other words, for the purpose

of providing evidence‖]; Bullcoming, supra, 564 U.S. at p. ___ [131 S.Ct. at

p. 2717] [―A document created solely for an ‗evidentiary purpose‘ . . . made in aid

of a police investigation, ranks as testimonial.‖]; Bryant, supra, 562 U.S. at p. ___

[131 S.Ct. at p. 1155] [confrontation clause not implicated when ―a statement is

not procured with a primary purpose of creating an out-of-court substitute for trial

5



testimony‖]; Melendez-Diaz, supra, 557 U.S. at p. 311 [observing that ―under

Massachusetts law the sole purpose of the affidavits was to provide ‗prima facie

evidence of the composition, quality, and the net weight‘ of the analyzed

substance‖]; Davis, supra, 547 U.S. at p. 830 [statements made under formal

police interrogation are ―an obvious substitute for live testimony‖].)

Assessing the degree to which Dr. Bolduc‘s observations on the state of the

victim‘s larynx and hyoid bone were produced for use at trial, I conclude the

nontestimonial aspects of these anatomical observations predominate over the

testimonial. A California coroner or medical examiner2 has, by statute, the duty of

investigating certain categories of deaths, regardless of whether the death is also

the subject of a criminal investigation. (Gov. Code, § 27491; see maj. opn., ante,

at p. 13.) Speaking generally, the coroner or medical examiner investigates a

death ―cooperatively with, but independent from, law enforcement and

prosecutors‖ with the goal of producing a ―neutral and objective medical

assessment of the cause and manner of death.‖ (NAME Standards, supra, std. A1,

p. 7.) The investigation of deaths through autopsies in appropriate cases ―protects

the public interest and provides the information necessary to address legal, public

health, and public safety issues in each case.‖ (Id., std. B3, p. 9.)

To be sure, an autopsy physician documents his or her observations of the

decedent‘s injuries partly ―to provide evidence for court,‖ but detailed

documentation of the pathologist‘s observations is also important ―to support or

refute interpretations‖ and ―to serve as a record.‖ (NAME Standards, supra, std.

E13, p. 15.) A competent autopsy physician describes the decedent‘s observed

injuries and condition as a matter of course; an autopsy report that lacked such


2

A California county may choose to employ an appointed medical examiner

in place of a coroner. In such a county, the medical examiner exercises the
statutory powers and duties of the coroner. (Gov. Code, § 24010.)

6



documentation would not meet minimum professional standards. (Id., §§ D-F,

pp. 13-21.) That Dr. Bolduc reported his findings concerning the condition of the

victim‘s larynx and hyoid bone primarily for use as trial evidence is doubtful.

A statement should also be deemed more testimonial to the extent it was

produced through the agency of government officers engaged in a prosecutorial

effort, and less testimonial to the extent it was produced for purposes other than

prosecution or without the involvement of police or prosecutors. ―Involvement of

government officers in the production of testimony with an eye toward trial

presents unique potential for prosecutorial abuse—a fact borne out time and again

throughout a history with which the Framers were keenly familiar.‖ (Crawford,

supra, 541 U.S. at p. 56, fn. 7.) The high court has made clear a witness‘s

statement may be testimonial even if it does not by itself inculpate the defendant

(Melendez-Diaz, supra, 557 U.S. at pp. 313-314), and a majority of the justices

have rejected a very narrow definition of testimonial statements as limited to those

―prepared for the primary purpose of accusing a targeted individual‖ (Williams,

supra, 567 U.S. at p. ___ [132 S.Ct. at p. 2243] (plur. opn. of Alito, J.); see id. at

p. ___ [132 S.Ct. at p. 2262] (conc. opn. of Thomas, J.); id. at pp. ___-___ [132

S.Ct. at pp. 2273-2274 (dis. opn. of Kagan, J.)). Nonetheless, the court‘s

Crawford jurisprudence suggests that testimonial character depends, to some

extent, on the degree to which the statement was produced by or at the behest of

government agents for use in a criminal prosecution.

As the court explained in Bryant, certain types of hearsay are considered

nontestimonial because, having been produced primarily for purposes other than

use in a criminal trial, they pose a significantly reduced ―prospect of fabrication.‖

(Bryant, supra, 562 U.S. at p. ___ [131 S.Ct. at p. 1157].) Among these are

business and public records ― ‗created for the administration of an entity‘s

affairs.‘ ‖ (Id. at p. ___, fn. 9 [131 S.Ct. at p. 1157, fn. 9].) In contrast, when law

7



enforcement agents solicit statements from witnesses for the purpose of using

those statements against a person, the prospect for fabrication is at its greatest.

Even without telling a witness what to say, government agents intent on building a

criminal case against a suspect may consciously or unconsciously bias a witness‘s

responses by verbal and nonverbal cues. It is the accusatory context that makes

the production of such out-of-court testimony especially dangerous and demands

the resulting statements be considered ―testimonial under even a narrow standard.‖

(Crawford, supra, 541 U.S. at p. 52; see also id. at p. 53 [―The involvement of

government officers in the production of testimonial evidence presents the same

risk, whether the officers are police or justices of the peace.‖].) A process in

which government agents may prompt a witness to make inherently inculpatory

statements is more dangerous, and should more readily lead to classification of the

statements as testimonial, than one in which a witness acts independently to record

observations made as a regular part of the witness‘s business or profession, even if

those observations turn out to be helpful to the prosecution in a particular case.

Focusing once more on Dr. Bolduc‘s recorded observations on the

decedent‘s injuries, in particular the observation that her larynx and hyoid bone

were unbroken, it does not appear Dr. Bolduc‘s record of that observation was

produced through a prosecutorial effort to obtain evidence against defendant, or

anyone else, for use at trial. As previously discussed, a medical examiner‘s duty

to investigate the victim‘s death is independent of any police inquiry or

prosecutorial effort. (See U.S. v. Feliz (2d Cir. 2006) 467 F.3d 227, 237 [relying

on medical examiner‘s independent statutory duty ―to conduct autopsies in various

situations‖ to show autopsy report was nontestimonial public record].) While a

police detective was apparently present at the autopsy, there is no evidence he

asked Dr. Bolduc to investigate possible breaks in the victim‘s larynx or hyoid

bone, or to answer any other particular question about the condition of the

8



decedent‘s body. As a matter of standard practice, a competent autopsy physician

will describe and document possible blunt force injuries to skeletal and other

structures. (NAME Standards, supra, std. F24, p. 21.) The record does not show

or suggest that Dr. Bolduc was prompted by prosecutorial agents to make any of

the statements at issue, or indeed that he was guided in his conduct and

documentation of the autopsy by anything other than professional medical

practices and standards.

For the above reasons as well as those given by the majority, I conclude the

trial court did not err in admitting Dr. Lawrence‘s testimony over a confrontation

clause objection. Dr. Lawrence relayed to the jury certain physical observations

recorded by Dr. Bolduc in his report of the autopsy, using those observations to

support Dr. Lawrence‘s own expert opinions as to the cause and manner of death.

Dr. Bolduc‘s observations were introduced for their truth, and since Dr. Bolduc

was not shown to be unavailable and had not been subject to prior cross-

examination on this matter by defendant, his statements, were they testimonial,

would have been inadmissible under Crawford. But because they neither bore

sufficient indicia of formality or solemnity nor were produced primarily for use

instead of live evidence at a criminal trial, they were not testimonial, and the

confrontation clause did not bar their use. We need not decide here—and the

majority does not decide—whether an autopsy report itself, or the examining

pathologist‘s conclusions as to cause and manner of death, would be similarly

admissible without the testimony of the examining pathologist.

WERDEGAR, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.
BAXTER, J.
CHIN, J.


9










CONCURRING OPINION BY CHIN, J.




I concur fully in the majority opinion, which I have signed. I write

separately to explain why Dr. Lawrence‘s testimony did not violate defendant‘s

federal confrontation rights under the United States Supreme Court‘s recent

decision in Williams v. Illinois (2012) 567 U.S. __ [132 S.Ct. 2221] (Williams).

Unfortunately, as the majority opinion explains (maj. opn., ante, at pp. 9-

10), the high court had a majority for its result in Williams, but there was no

majority explanation for this result. It took a combination of two opinions — each

containing quite different reasoning — to achieve the majority result: (1) the

plurality opinion authored by Justice Alito and joined by Chief Justice Roberts and

Justices Kennedy and Breyer, and (2) Justice Thomas‘s opinion concurring in the

judgment. Neither the plurality‘s nor Justice Thomas‘s reasoning gained majority

support. Indeed, a majority of the court (Justice Thomas and the four dissenters)

disagreed with the plurality‘s reasoning. (See People v. Lopez (Oct. 15, 2012,

S177046) __ Cal.4th __ [maj. opn., pp. 9-12].) This situation makes it difficult to

determine what to make of that decision.

―When a fragmented Court decides a case and no single rationale

explaining the result enjoys the assent of five Justices, ‗the holding of the Court

may be viewed as that position taken by those Members who concurred in the

judgments on the narrowest grounds. . . .‘ ‖ (Marks v. United States (1977) 430

U.S. 188, 193.) This rule does not work particularly well, if at all, unless ―one

opinion can be meaningfully regarded as ‗narrower‘ than another,‖ that is, unless

1



―one opinion is a logical subset of other, broader opinions.‖ (King v. Palmer

(D.C. Cir. 1991) 950 F.2d 771, 781 (in bank).) Here, neither the plurality opinion

nor Justice Thomas‘s concurring opinion can be viewed as a logical subset of the

other. Indeed, to some extent they are contradictory. One court has said that

―[w]hen it is not possible to discover a single standard that legitimately constitutes

the narrowest ground for a decision on that issue, there is then no law of the land

because no one standard commands the support of a majority of the Supreme

Court.‖ (U.S. v. Alcan Aluminum Corp. (2d Cir. 2003) 315 F.3d 179, 189.) Is that

the situation here? Are we to discern no law of the land from the Williams case? I

do not believe so. We can discover the narrowest ground for a decision. We can

discover a standard that commands majority support.

We know what the result was in Williams, supra, 567 U.S. __ [132 S.Ct.

2221]: The testimony at issue did not violate the confrontation clause. This is

because a majority of the court so concluded. Four justices (the plurality) found

no violation for their reasons. One justice (Justice Thomas) found no violation for

his different reasons. This means that a majority of the Williams court would find

no violation of the confrontation clause whenever there was no violation under the

plurality‘s and under Justice Thomas‘s reasoning. This is exactly what happened

in Williams itself. ―We need not find a legal opinion which a majority joined, but

merely ‗a legal standard which, when applied, will necessarily produce results

with which a majority of the Court from that case would agree.‘ ‖ (U.S. v.

Williams (9th Cir. 2006) 435 F.3d 1148, 1157 [unrelated opn.].) If there is no

confrontation clause violation under both the plurality and Justice Thomas‘s

opinion, a majority of the high court‘s Williams case would agree with the

result — no confrontation clause violation. To adapt the Ninth Circuit‘s analysis

to this case, ―we must identify and apply a test which satisfies the requirements of

2



both Justice [Alito‘s] plurality opinion and Justice [Thomas‘s] concurrence.‖

(U.S. v. Williams, supra, 567 U.S. at p. __ [132 S.Ct. at p. 1157.)

Accordingly, we must determine whether there was a confrontation clause

violation under Justice Thomas‘s opinion and whether there was a confrontation

clause violation under the plurality‘s opinion. If there was no violation under both

opinions, then the result (finding no confrontation clause violation) would

command the support of a majority from the high court‘s Williams case. Such a

test satisfies the requirements of both the plurality opinion and Justice Thomas‘s

concurrence.

Justice Thomas would find no violation if the out-of-court statements lack

the necessary formality and solemnity to be testimonial. (Williams, supra, 567

U.S. at p. __ [132 S.Ct. at p. 2255] (conc. opn. of Thomas J.).) As the majority in

this case explains, the statements here are not sufficiently formal to meet this test.

(Maj. opn., ante, at pp. 12-13.)

The Williams plurality opinion stated two reasons for its finding of no

confrontation clause violation. The second reason applies here. In the

introductory portion of its opinion, the plurality summarized this second reason:

―The Cellmark report is very different from the sort of extrajudicial statements,

such as affidavits, depositions, prior testimony, and confessions, that the

Confrontation Clause was originally understood to reach. The report was

produced before any suspect was identified. The report was sought not for the

purpose of obtaining evidence to be used against petitioner, who was not even

under suspicion at the time, but for the purpose of finding a rapist who was on the

loose. And the profile that Cellmark provided was not inherently inculpatory.‖

(Williams, supra, 567 U.S. at p. __ [132 S.Ct. at p. 2228] (plur. opn. of Alito, J.).)

(All further citations to Williams will be to the plurality opinion unless otherwise

indicated.)

3



Later, the plurality explained its reasoning in greater detail. It said that the

―abuses that the Court has identified as prompting the adoption of the

Confrontation Clause shared the following two characteristics: (a) they involved

out-of-court statements having the primary purpose of accusing a targeted

individual of engaging in criminal conduct and (b) they involved formalized

statements such as affidavits, depositions, prior testimony, or confessions.‖

(Williams, supra, 567 U.S. at p. __ [132 S.Ct. at p. 2242], italics added.)

The Williams plurality cites cases involving reports that did have the

purpose of accusing a targeted person of a crime, such as a report having the

purpose of showing the ―defendant‘s blood-alcohol level exceeded legal limit‖ or

that a ―substance connected to [the] defendant contained cocaine.‖ (Williams,

supra, 567 U.S. at p. __ [132 S.Ct. at p. 2242].) But, the plurality said, the report

in its case ―is very different. It plainly was not prepared for the primary purpose

of accusing a targeted individual. In identifying the primary purpose of an out-of-

court statement, we apply an objective test. [Citation.] We look for the primary

purpose that a reasonable person would have ascribed to the statement, taking into

account all of the surrounding circumstances. [Citation.]

―Here, the primary purpose of the Cellmark report, viewed objectively, was

not to accuse petitioner or to create evidence for use at trial. When the [Illinois

State Police] lab sent the sample to Cellmark, its primary purpose was to catch a

dangerous rapist who was still at large, not to obtain evidence for use against

petitioner, who was neither in custody nor under suspicion at that time. Similarly,

no one at Cellmark could have possibly known that the profile that it produced

would turn out to inculpate petitioner — or for that matter, anyone else whose

DNA profile was in a law enforcement database. Under these circumstances, there

was no ‗prospect of fabrication‘ and no incentive to produce anything other than a

4



scientifically sound and reliable profile. [Citation.]‖ (Williams, supra, 567 U.S. at

p. __ [132 S.Ct. at pp. 2243-2244], italics added.)

The plurality continued: ―When lab technicians are asked to work on the

production of a DNA profile, they often have no idea what the consequences of

their work will be. In some cases, a DNA profile may provide powerful

incriminating evidence against a person who is identified either before or after the

profile is completed. But in others, the primary effect of the profile is to exonerate

a suspect who has been charged or is under investigation. The technicians who

prepare a DNA profile generally have no way of knowing whether it will turn out

to be incriminating or exonerating — or both.‖ (Williams, supra, 567 U.S. at p. __

[132 S.Ct. at p. 2244].)

The out-of-court statements in the autopsy report that Dr. Lawrence relied

on to form his opinion are not testimonial under this test. They did not have the

primary purpose of accusing defendant or any other targeted individual of

engaging in criminal conduct. The primary purpose of the portions of the report

that Dr. Lawrence relied on was to describe the condition of the body. (See also

maj. opn., ante, at pp. 13-14; conc. opn. of Werdegar, J., ante, at pp. 4-5.) In

describing the condition of the body, there was no prospect of fabrication or

incentive to produce anything other than a scientifically reliable report. The

purpose of this part of the autopsy report is ―simply to perform [the pathologist‘s]

task in accordance with accepted procedures.‖ (Williams, supra, 567 U.S. at p. __

[132 S.Ct. at p. 2244].)

The plurality opinion in Williams indicates that practical considerations

helped inform its conclusion. ―If DNA profiles could not be introduced without

calling the technicians who participated in the preparation of the profile, economic

pressures would encourage prosecutors to forgo DNA testing and rely instead on

older forms of evidence, such as eyewitness identification, that are less reliable.

5



[Citation.] The Confrontation Clause does not mandate such an undesirable

development.‖ (Williams, supra, 567 U.S. at p. __ [132 S.Ct. at p. 2228].)

Similar practical considerations support finding that autopsy reports, or at

least the objective, factual observations included in those reports, are not

testimonial for these purposes. A holding that everything in autopsy reports is

testimonial — and, accordingly, that only the pathologist who prepared the report

may testify about it — would have serious adverse consequences. ―Years may

pass between the performance of the autopsy and the apprehension of the

perpetrator. This passage of time can easily lead to the unavailability of the

examiner who prepared the autopsy report. Moreover, medical examiners who

regularly perform hundreds of autopsies are unlikely to have any independent

recollection of the autopsy at issue in a particular case and in testifying invariably

rely entirely on the autopsy report. Unlike other forensic tests, an autopsy cannot

be replicated by another pathologist. Certainly it would be against society's

interests to permit the unavailability of the medical examiner who prepared the

report to preclude the prosecution of a homicide case.‖ (People v. Durio

(N.Y.Sup.Ct. 2005) 794 N.Y.S.2d 863, 869.) Much harm would be done to the

criminal justice system, with little accompanying benefit to criminal defendants, if

all reliance on autopsy reports were banned.

Justice Breyer discussed the practical considerations concerning autopsy

reports in a separate concurring opinion in Williams. ―[T]o bar admission of the

out-of-court records at issue here could undermine, not fortify, the accuracy of

factfinding at a criminal trial. Such a precedent could bar the admission of other

reliable case-specific technical information such as, say, autopsy reports.

Autopsies, like the DNA report in this case, are often conducted when it is not yet

clear whether there is a particular suspect or whether the facts found in the autopsy

will ultimately prove relevant in a criminal trial. Autopsies are typically

6



conducted soon after death. And when, say, a victim‘s body has decomposed,

repetition of the autopsy may not be possible. What is to happen if the medical

examiner dies before trial? [Citations.] Is the Confrontation Clause

‗ ―effectively‖ ‘ to function ‗ ―as a statute of limitations for murder‖ ‘?

[Citation.]‖ (Williams, supra, 567 U.S. at p. __ [132 S.Ct. at p. 2251] (conc. opn.

of Breyer, J.).) Justice Breyer spoke only for himself, but his observations are

entirely consistent with the plurality opinion that he joined.

Some of the attendant circumstances in this case support the argument that

the autopsy report was prepared with the primary purpose of accusing defendant of

a crime. Unlike the situation in Williams, defendant was a suspect at the time the

autopsy report was prepared. An investigator was present during the autopsy, and

the pathologist had been told of defendant‘s confession before the autopsy report

was written. Although the plurality in Williams stated that the defendant in that

case happened not to be a suspect or in custody at the time the report was

prepared, nothing in its opinion suggests this is a requirement rather than merely

one of the ―surrounding circumstances‖ of which the court must take account.

(Williams, supra, 567 U.S. at p. __ [132 at p. 2243].) Because of these

circumstances, a statement in the autopsy report expressing the opinion, for

example, that the victim had been strangled for two minutes might have been

prepared with the primary purpose of accusing a targeted individual. But here, Dr.

Lawrence, the testifying witness, offered that opinion. Defendant had full

opportunity to confront and cross-examine Dr. Lawrence regarding that opinion.

The autopsy report itself was not introduced into evidence. Rather, in

forming his opinion, Dr. Lawrence merely relied on information regarding the

condition of the body that was detailed in that report, such as that the victim‘s

larynx and hyoid bone had not been fractured. But these statements are objective

observations of the type routinely placed into autopsy reports, whether or not a

7



specific suspect exists. They are not statements with a primary purpose of

accusing defendant, or anyone else, of criminal conduct. The fact that the larynx

and hyoid bone were not broken, like most of the other observations memorialized

in the report, ―was not inherently inculpatory.‖ (Williams, supra, 567 U.S. at p. __

[132 S.Ct. at p. 2228].) There was no prospect of fabrication or incentive to

produce anything other than an accurate description of the state of the body. (Id.

at p.__ [132 S.Ct. at p. 2244].)

The trial court did not have to allow defendant to confront Dr. Bolduc, the

pathologist who prepared the autopsy report, regarding his observations, including

that the larynx and hyoid bone were not broken. Indeed, such confrontation would

undoubtedly have been futile. It seems unlikely a pathologist who conducts many

autopsies would specifically remember a detail such as that. If called to testify,

Dr. Bolduc, like Dr. Lawrence, would undoubtedly have had to rely on the report,

rather than his memory, in this regard. (See People v. Durio, supra, 794 N.Y.S.2d

at p. 869, quoted ante.) That is one of the purposes for preparing and preserving

written autopsy reports.

For these reasons, I conclude the Williams plurality would find no

confrontation clause violation in this case. Because Justice Thomas would also

find no confrontation clause violation, albeit for different reasons, we may not do

so either. Dr. Lawrence‘s reliance on portions of someone else‘s autopsy report in

forming his opinions did not violate defendant‘s right to confront the witnesses

against him.

CHIN, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.
BAXTER, J.
WERDEGAR, J.


8












DISSENTING OPINION BY CORRIGAN, J.




I respectfully dissent. I would hold that Dr. George Bolduc‘s autopsy

report was sufficiently formal and primarily made for an evidentiary purpose, as

the United States Supreme Court has explicated those terms to date. Dr. Bolduc‘s

report contained anatomical observations about which another forensic pathologist

testified. High court authority compels the conclusion that admitting this

testimony violated defendant‘s confrontation rights.

Dr. Bolduc performed an autopsy on Lucinda Pina and prepared an autopsy

report with accompanying photographs. We have taken judicial notice of that

report, which is not certified. The prosecution did not call Dr. Bolduc as a

witness, presenting instead Dr. Robert Lawrence. The prosecution did not indicate

that Dr. Bolduc was unavailable, and defendant objected to the witness

substitution. Defense counsel‘s hearsay objection to Dr. Lawrence‘s testimony

was overruled.

Dr. Lawrence told the jury that he relied on Dr. Bolduc‘s autopsy report

and accompanying photographs as a basis for his testimony. Neither the report nor

photographs were admitted in evidence. Although he had not been present during

the procedure, Dr. Lawrence testified about the condition of Pina‘s body at the

time of the autopsy. These statements about the body‘s condition were presented

as facts, about which Dr. Lawrence had no personal knowledge.

1



Whether Dr. Lawrence‘s testimony violated defendant‘s Sixth Amendment

right to confrontation turns on whether Dr. Lawrence related testimonial hearsay.

In Crawford v. Washington (2004) 541 U.S. 36 (Crawford), the Supreme Court

established that it is the ―testimonial‖ nature of a statement that gives rise to Sixth

Amendment protections.1 The Supreme Court has yet to clearly define just what

the term ―testimonial‖ means.

Nevertheless, I agree with the majority that the Supreme Court‘s Crawford

jurisprudence reflects the importance of two factors in determining whether a

statement is testimonial: (1) the degree of formality or solemnity of the statement

and (2) the primary purpose for which the statement is made.

Applying those two factors, I conclude the anatomical observations

contained in Dr. Bolduc‘s autopsy report were testimonial statements. The

prosecution asked Dr. Lawrence to relate facts about the condition of Pina‘s body.

To the extent those facts were drawn from Dr. Bolduc‘s report, as opposed to

observations based on the autopsy photographs, Dr. Lawrence related testimonial

hearsay in violation of defendant‘s federal constitutional right to confront and

cross-examine Dr. Bolduc.

Although the majority notes that Dr. Lawrence also relied on autopsy

photographs for his testimony, the record is insufficient to establish that the

photographs provided an independent basis for Dr. Lawrence‘s testimony.

A. Dr. Bolduc’s Recorded Observations Were Sufficiently Formal

In Crawford, the Supreme Court made clear that ―not all hearsay implicates

the Sixth Amendment‘s core concerns.‖ (Crawford, supra, 541 U.S. at p. 51.)

The court observed that core testimonial statements covered by the confrontation


1

The circumstances surrounding the prosecution‘s decision to call Dr.

Lawrence, rather than presenting Dr. Bolduc and subjecting him to cross-
examination, certainly raise concerns.

2



clause include ― ‗ex parte in-court testimony or its functional equivalent,‘ ‖ using

an affidavit as an example. (Crawford, at p. 51.)

Applying the Crawford analysis to forensic evidence, the United States

Supreme Court has determined that affidavits reporting results of forensic analysis

are sufficiently formal (Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305,

310-311) (Melendez-Diaz), as are unsworn certificates (Bullcoming v. New Mexico

(2011) 564 U.S. __, __ [131 S.Ct. 2705, 2717]) (Bullcoming). In Melendez-Diaz,

a Massachusetts statute allowed state crime laboratory technicians to record their

test results in a sworn affidavit. Under the statute, these affidavits were admitted

to prove the test results. The technicians did not testify and thus were not subject

to cross-examination. (See Melendez-Diaz, at pp. 308-309.) Similarly in

Bullcoming, New Mexico applied municipal and magistrate court rules that

allowed certified reports into evidence without a technician‘s testimony. (See

Bullcoming, supra, at p. __ [131 S.Ct. at p. 2717].) These state-created procedures

were quite similar, in some respects, to the ex parte procedure of the Marian

statutes, which the Crawford court observed was the ―principal evil at which the

Confrontation Clause was directed.‖ (Crawford, supra, 541 U.S. at p. 50.)

However, whether uncertified reports are sufficiently formal to be

considered testimonial remains an open question. In Williams v. Illinois (2012)

567 U.S. __ [132 S.Ct. 2221] (Williams), the high court considered statements

made in an uncertified Cellmark laboratory report, relied upon by an expert

witness for her testimony. The report was not introduced into evidence. (Id. at

p. __ [132 S.Ct. at p. 2235].) Before considering whether the Cellmark report

amounted to testimonial hearsay, the plurality opined that the report was not

hearsay at all because its contents were not admitted for their truth. (Williams,

3



supra, at p. __ [132 S.Ct. at p. 2228] (plur. opn. of Alito, J.).)2 This conclusion

did not garner a majority. Five justices explicitly repudiated that analysis. (See

Williams, at pp. __-__ [132 S.Ct. at pp. 2256-2259] (conc. opn. of Thomas, J.); id.

at pp. __-__ [132 S.Ct. at pp. 2268-2272] (dis. opn. of Kagan, J.).)3

The Williams plurality offered an alternative analysis as well. Even if the

Cellmark report had been introduced for its truth, the report failed to satisfy the

plurality‘s formulation of primary purpose. (Williams, supra, 567 U.S. at p. __

[132 S.Ct. at p. 2243] (plur. opn. of Alito, J.).) The primary purpose test is

discussed below. What is important to note here is that, in offering its alternative

analysis, the plurality did not discuss whether the Cellmark report was sufficiently

formal.

Justice Thomas provided the dispositive fifth vote in Williams. He did so

only because the Cellmark report ―lacked the requisite ‗formality and solemnity‘

to be considered ‗ ―testimonial.‖ ‘ ‖ (Williams, supra, 567 U.S. at p. __ [132 S.Ct.

at p. 2255] (conc. opn. of Thomas, J.).) In joining the plurality‘s outcome, Justice


2

See Evidence Code section 1200, subdivision (a), which provides that

― ‗[h]earsay evidence‘ is evidence of a statement that was made other than by a
witness while testifying at the hearing and that is offered to prove the truth of the
matter stated.‖
3

Two points are important here. There are, of course, many instances in

which out-of-court statements are not offered for their truth. The longstanding
rule that unless a statement is admitted for its truth it is not hearsay remains
unchanged. The question is whether a statement is admitted for its truth. When an
expert witness treats as factual the contents of an out-of-court statement, and
relates as true the contents of that statement to the jury, a majority of the high
court in Williams, supra, 567 U.S. __ [132 S.Ct. 2221], rejects the premise that the
out-of-court statement is not admitted for its truth.


Second, it should be noted that Crawford and its progeny are grounded

squarely in the Sixth Amendment, which provides that ―[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him . . . .‖ Thus, the Crawford limitations do not apply in civil
cases nor do they apply when evidence is not offered against a criminal defendant.

4



Thomas emphasized his strict position ―that the Confrontation Clause reaches

‗ ―formalized testimonial materials,‖ ‘ such as depositions, affidavits, and prior

testimony, or statements resulting from ‗ ―formalized dialogue,‖ ‘ such as

custodial interrogation.‖ (Id. at p. __ [132 S.Ct. at p. 2260].) Justice Thomas has

articulated this position in Davis v. Washington (2006) 547 U.S. 813, 836-837

(dis. opn. of Thomas, J.) (Davis); Melendez-Diaz, supra, 557 U.S. at page 329;

and Michigan v. Bryant (2011) 562 U.S. __, __ [131 S.Ct. 1143, 1165] (conc. opn.

of Thomas, J.) (Bryant). Under Justice Thomas‘s interpretation, ―although the

[Cellmark] report was produced at the request of law enforcement, it was not the

product of any sort of formalized dialogue resembling custodial interrogation.‖

(Williams, supra, at p. __ [132 S.Ct. at p. 2260] (conc. opn. of Thomas, J.).)

Justice Kagan, writing for the dissenters, expressly rejected Justice

Thomas‘s formality analysis. Comparing the Cellmark report to the unsworn

report in Bullcoming, supra, 564 U.S. __ [131 S.Ct. 2705], Justice Kagan stated:

the differences ―amount[] to (maybe) a nickel‘s worth of difference: The

similarities in form, function, and purpose dwarf the distinctions. [Citation.] Each

report is an official and signed record of laboratory test results, meant to establish

a certain set of facts in legal proceedings. Neither looks any more ‗formal‘ than

the other; neither is any more formal than the other. . . . The difference in labeling

—a ‗certificate‘ in one case, a ‗report of laboratory examination‘ in the other—is

not of constitutional dimension.‖ (Williams, supra, 567 U.S. at p. __ [132 S.Ct. at

p. 2276] (dis. opn. of Kagan, J.).)

So the question remains: For purposes of the Sixth Amendment

confrontation clause, can a statement in an uncertified document be formal enough

to qualify as testimonial? In the absence of any Supreme Court majority

definitively answering this question, we must do so. We answer it in light of the

entire Crawford jurisprudence and our own application of it.

5



The Crawford court explained that testimony ―is typically ‗[a] solemn

declaration or affirmation made for the purpose of establishing or proving some

fact.‘ ‖ (Crawford, supra, 541 U.S. at p. 51, italics added.) ―Various 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,‘ [citation]; ‗extrajudicial statements . . . contained in formalized

testimonial materials, such as affidavits, depositions, prior testimony, or

confessions,‘ [citation]; ‗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,‘ [citation].‖ (Crawford, supra, 541 U.S. at pp. 51–

52.)

But the high court emphasized that ―[s]tatements taken by police officers in

the course of interrogations are also testimonial under even a narrow standard.‖

(Crawford, supra, 541 U.S. at p. 52, italics added.) ―The statements are not sworn

testimony, but the absence of oath was not dispositive.‖ (Ibid.)

In Davis, supra, 547 U.S. 813, the court again emphasized that testimonial

hearsay is not limited to ―the most formal sort — sworn testimony in prior judicial

proceedings or formal depositions under oath . . . .‖ (Id. at p. 826.) ―[W]e do not

think it conceivable that the protections of the Confrontation Clause can readily be

evaded by having a note-taking policeman recite the unsworn hearsay testimony

of the declarant, instead of having the declarant sign a deposition.‖ (Davis, at

p. 826.) ―The product of [police] interrogation, whether reduced to a writing

signed by the declarant or embedded in the memory (and perhaps notes) of the

interrogating officer, is testimonial.‖ (Ibid.) The court noted that ―[t]he solemnity

of even an oral declaration of relevant past fact to an investigating officer is well

6



enough established by the severe consequences that can attend a deliberate

falsehood. [Citations.]‖ (Ibid.)

Davis, supra, 547 U.S. 813, involved two consolidated cases in which

domestic violence victims made statements to government authorities. In one of

those cases, Hammon v. Indiana, police responded to a domestic violence report

and came upon the defendant‘s wife standing outside her house. Although

frightened, she told the officers that ― ‗ ―nothing was the matter.‖ ‘ ‖ (Davis, at

p. 819.) The officers eventually interviewed her inside the home, keeping her

separated from her husband in another room. She wrote and signed a ― ‗battery

affidavit,‘ ‖ summarizing an assault. (Id. at p. 820.) When the wife failed to

appear at her husband‘s trial, her oral and written statements were admitted

through the police officer who had questioned her. (Davis, at pp. 820-821.)

The Supreme Court concluded the statements were ―formal enough‖ to

qualify as testimonial because of the circumstances surrounding the interrogation.

(Davis, supra, 547 U.S. at p. 830.) The statements were made during organized

and structured questioning in a separate room; inquiry focused on past events that

were potentially criminal; and the officer received the wife‘s replies for use in the

investigation. (Ibid.) ―Such statements under official interrogation are an obvious

substitute for live testimony, because they do precisely what a witness does on

direct examination; they are inherently testimonial.‖ (Ibid.)

The other case decided in Davis concerned statements made by a domestic

violence victim to a 911 operator. In concluding that these statements were not

sufficiently formal, the court contrasted them with Crawford‘s police station

interrogation: ―Crawford was responding calmly, at the station house, to a series

7



of questions, with the officer-interrogator taping and making notes of her

answers; [the Davis victim‘s] frantic answers were provided over the phone, in an

environment that was not tranquil, or even (as far as any reasonable 911 operator

could make out) safe.‖ (Davis, supra, 547 U.S. at p. 827.)

In People v. Cage (2007) 40 Cal.4th 965, this court applied Davis to

determine whether a victim‘s hearsay statements to a sheriff‘s deputy were

testimonial. We explained that Davis demonstrates that ―though a statement need

not be sworn under oath to be testimonial, it must have occurred under

circumstances that imparted, to some degree, the formality and solemnity

characteristic of testimony.‖ (Cage, at p. 984, italics added.) In Cage, a sheriff‘s

deputy interviewed an assault victim at a hospital emergency room, more than an

hour after the assault. (Id. at p. 985.) The circumstances of the interview ―were

relatively informal, but they were no less formal or structured than the residential

interview of Amy Hammon in Davis. Here, as there, the requisite solemnity was

imparted by the potentially criminal consequences of lying to a peace officer.‖

(Cage, at p. 986, fn. omitted.)

In Bryant, supra, 562 U.S. __ [131 S.Ct. 1143], police came upon a man

lying in a parking lot, bleeding from gunshot wounds. The Supreme Court

majority concluded his statements identifying his shooter were not testimonial

because their primary purpose was to enable police to respond to an ongoing

emergency. (Id. at pp. __-__ [131 S.Ct. at pp. 1163-1167].) Addressing the issue

of formality, the court noted that questioning occurred in an exposed, public area,

in a disorganized fashion, before emergency medical services arrived. Thus, the

circumstances were factually distinguishable from a formal station house

interrogation. The court cautioned that ―informality does not necessarily indicate

the presence of an emergency or the lack of testimonial intent.‖ The Bryant

majority referred to Davis‘s explanation that attempting to keep a written

8



interrogation ―informal‖ by not asking the declarant to sign it will not serve to

evade confrontation clause protections. (Bryant, supra, at p. __ [131 S.Ct. at

p. 1160], citing Davis, supra, 547 U.S. at p. 826.)

In Bullcoming, supra, 564 U.S. __ [131 S.Ct. 2705], the high court refused

to distinguish between the unsworn laboratory certificate before it and the

affidavits offered in Melendez-Diaz. The court noted Crawford‘s observation that

the absence of an oath is not controlling when determining whether a statement is

testimonial. (Bullcoming, supra, at p. __ [131 S.Ct. at p. 2717].) The court

pointed out that the analyst‘s certificate was ― ‗formalized‘ in a signed document,

[citation], headed a ‗report.‘ ‖ The report form contained a legend referring to the

applicable court rules permitting admission of certified blood-alcohol analyses.

―In sum, the formalities attending the ‗report of blood alcohol analysis‘ are more

than adequate to qualify [the analyst‘s] assertions as testimonial.‖ (Ibid., italics

added.)

With this background in mind, we turn to the autopsy report prepared by

Dr. Bolduc. During the autopsy, he examined Pina‘s body and ultimately included

his observations as to her physical condition in his written report. At trial, Dr.

Lawrence gave his opinion that Pina died by strangulation. In explaining that

conclusion, he related, as matters of fact, Dr. Bolduc‘s observations of Pina‘s body

as they were set out in the autopsy report. In particular, Dr. Lawrence mentioned

the hemorrhages in Pina‘s eyes and neck, the purple color of her face, the absence

of any natural disease causing death, the fact that she had bitten her tongue shortly

before death, and the absence of any fractures in the larynx and hyoid bone. As to

the latter, Dr. Bolduc wrote: ―There are no fractures of the hyoid bone, thyroid or

cricoid cartilages.‖

The majority states: ―An autopsy report typically contains two types of

statements: (1) statements describing the pathologist‘s anatomical and

9



physiological observations about the condition of the body, and (2) statements

setting forth the pathologist‘s conclusions as to the cause of the victim‘s death.

The out-of-court statements at issue here — pathologist Bolduc‘s observations

about the condition of victim Pina‘s body — all fall into the first of the two

categories. These statements, which merely record objective facts, are less formal

than statements setting forth a pathologist‘s expert conclusions. They are

comparable to observations of objective fact in a report by a physician who, after

examining a patient, diagnoses a particular injury or ailment and determines the

appropriate treatment. Such notations are not testimonial in nature.‖ (Maj. opn.,

ante, at p. 12.)4

The majority creates a distinction between two kinds of statements in the

autopsy report: observations and conclusions. The majority appears to suggest

that while conclusions may be formal, observations are not. There are several

problems with this analysis. First, it conflates the two prongs of the testimonial

determination: formality and primary purpose. The formality prong looks to the

circumstances under which the statement is made and any efforts to enhance the

statement‘s formality by having it sworn (Melendez-Diaz, supra, 557 U.S. 305),

certified (Bullcoming, supra, 564 U.S. __ [131 S.Ct. 2705]), or signed (Davis,

supra, 547 U.S. 813). The formality prong turns on the circumstances of the

statement‘s production and preservation rather than its content.5


4

Of course there are several ways in which the statements are not

comparable. An autopsy report reflects the examination of a dead body rather than
a live patient. The autopsy surgeon is conducting an official inquiry, while a
physician is treating his or her patient, not assisting in a governmental
investigation.
5

The high court made clear that the content of a statement may be quite

important in determining the primary purpose for which it is made. (See, e.g.,
Bryant, supra, 562 U.S. at pp. __-__ [131 S.Ct. at pp. 1160-1161, 1165-1166].)

10



Second, the distinction the majority offers here was rejected in Bullcoming,

supra, 564 U.S. __ [131 S.Ct. 2705]. Justice Ginsburg, joined by four other

justices on this point, wrote: ―Most witnesses, after all, testify to their

observations of factual conditions or events, e.g., ‗the light was green,‘ ‗the hour

was noon.‘ Such witnesses may record, on the spot, what they observed. Suppose

a police report recorded an objective fact—Bullcoming‘s counsel posited the

address above the front door of a house or the read-out of a radar gun. [Citation.]

Could an officer other than the one who saw the number on the house or gun

present the information in court—so long as that officer was equipped to testify

about any technology the observing officer deployed and the police department‘s

standard operating procedures? As our precedent makes plain, the answer is

emphatically ‗No.‘ ‖ (Id. at pp. __-__ [131 S.Ct. at pp. 2714-2715].)

Further, the Bullcoming majority noted that while ―[t]he New Mexico

Supreme Court stated that the number registered by the gas chromatograph

machine called for no interpretation or exercise of independent judgment on [the

analyst‘s] part,‖ the ―analysts who write reports that the prosecution introduces

must be made available for confrontation even if they possess ‗the scientific

acumen of Mme. Curie and the veracity of Mother Teresa.‘ ‖ (Bullcoming, supra,

564 U.S. at p. __ [131 S.Ct. at p. 2715].)

We are not called upon in this matter to determine whether every aspect of

the autopsy report was testimonial. The question here is whether anatomical

observations Dr. Bolduc made are sufficiently formal in light of the circumstances

in which they were made and the document in which they were recorded. In many

cases, Government Code section 27491.4, subdivision (a) gives a coroner

discretion whether to conduct an autopsy. Once that discretion is exercised, the

statute requires: ―The detailed medical findings resulting from an inspection of the

body or autopsy by an examining physician shall be either reduced to writing or

11



permanently preserved on recording discs or other similar recording media, shall

include all positive and negative findings pertinent to establishing the cause of

death in accordance with medicolegal practice and this, along with the written

opinions and conclusions of the examining physician, shall be included in the

coroner‘s record of the death.‖ (Gov. Code, § 27491.4, subd. (a).)

Dr. Bolduc performed this autopsy and prepared a report in compliance

with Government Code section 27491.4, subdivision (a). He was working for the

Sheriff-Coroner of San Joaquin County, and the report is identified as a document

filed with the San Joaquin County Sheriff-Coroner‘s Office. An autopsy report is

a public record. (See Dixon v. Superior Court (2009) 170 Cal.App.4th 1271,

1278.)

Dr. Bolduc‘s autopsy report consists of seven pages. The top of the first

page bears the preprinted notation ―Office of Sheriff-Coroner, County of San

Joaquin.‖ That same page contains a reproduction of the badge of the San Joaquin

County Sheriff, below which is the name ―Robert Heidelbach, Sheriff-Coroner,

Public Administrator.‖

Additionally, the first page of the autopsy report identifies the document as

―Coroner‘s Autopsy Report.‖ In the upper right-hand corner of each subsequent

page is the identification ―Coroner‘s Autopsy Report.‖ Dr. Bolduc‘s name is

printed on the bottom of each page.

The report provides a detailed summary of the external examination of the

victim, concluding with ―Findings Consistent With Neck Compression.‖ The

report then provides a detailed summary of the internal examination, including the

description of the injuries to the neck and the absences of fractures ―of the hyoid

bone, thyroid or cricoid cartilages.‖

The report concludes with nine ―Autopsy Findings.‖ The first ―finding‖

states: ―The autopsy findings are consistent with neck compression for the

12



following reasons,‖ and list six reasons. The report states, ―Cause of Death:

Asphyxia (minutes) [sic]; Due to: Neck compression.‖ The report is signed by

―George E. Bolduc, M.D.,‖ and dated June 8, 2006.

In terms of formality, Dr. Bolduc‘s autopsy report comports closely with

the court‘s description of ―testimonial‖ in Bullcoming, supra, 564 U.S. __ [131

S.Ct. 2705]. There, the analyst‘s certificate, although unsworn, was ― ‗formalized‘

in a signed document, [citation], headed a ‗report,‘ ‖ and these attendant

formalities were found ―more than adequate to qualify [the analyst‘s] assertions as

testimonial.‖ (Id. at p. __ [131 S.Ct. at p. 2717].) Although Dr. Bolduc‘s

―Coroner‘s Autopsy Report,‖ is not certified, it is signed and dated. It is

manifestly an official report, prepared by Dr. Bolduc as an agent of the Sheriff-

Coroner and in compliance with the Government Code. I believe the document

and the circumstances of its preparation reveal that the statements at issue here are

sufficiently formal to satisfy that prong of the Supreme Court‘s testimonial test.

B. Dr. Bolduc’s Recorded Observations Satisfy the Primary Purpose Test

In Williams, supra, 567 U.S. __ [132 S.Ct. 2221], all members of the

Supreme Court agreed that the primary purpose for which a statement is made is

an important prong of the testimonial test. Beginning with Crawford, supra, 541

U.S. 36, the high court has declined to provide a firm definition of ―testimonial.‖

In Williams, three different formulations were given.

Justice Alito, for the plurality, wrote that even if the Cellmark report had

been introduced for its truth, it was not testimonial because it was not prepared for

―the primary purpose of accusing a targeted individual.‖ (Williams, supra, 567

U.S. at p. __ [132 S.Ct. at p. 2243] (plur. opn. of Alito, J.).) This formulation

garnered a total of four votes, as Justice Alito was joined by Chief Justice Roberts

and Justices Kennedy and Breyer. (Id. at p. __ [132 S.Ct. at p. 2227].). Under the

13



plurality‘s definition, a statement is not testimonial unless it was made to accuse a

specific person.

Justice Thomas rejected that definition. He agreed that for a statement to

qualify as testimonial, it must be made with a requisite primary purpose, which he

described thusly: ―[F]or a statement to be testimonial within the meaning of the

Confrontation Clause, the declarant must primarily intend to establish some fact

with the understanding that his statement may be used in a criminal prosecution.‖

(Williams, supra, 567 U.S. at p. __ [132 S.Ct. at p. 2261] (conc. opn. of Thomas,

J.).)6 He criticized the accusatory statement concept newly formulated by the

plurality because it ―lacks any grounding in constitutional text, in history, or in

logic.‖ (Williams, at p. __ [132 S.Ct. at p. 2262].)

Justice Kagan, in a dissent joined by Justices Scalia, Ginsburg, and

Sotomayor, also rejected the plurality‘s definition of the primary purpose test.

Justice Kagan wrote, ―Where that test comes from is anyone‘s guess. Justice

Thomas rightly shows that it derives neither from the text nor from the history of

the Confrontation Clause. [Citation.] And it has no basis in our precedents. We

have previously asked whether a statement was made for the primary purpose of

establishing ‗past events potentially relevant to later criminal prosecution‘—in

other words, for the purpose of providing evidence. Davis, 547 U.S., at 822, 126

S.Ct. 2266; see also Bullcoming, 564 U.S., at __, 131 S.Ct., at 2705; Bryant, 562

U.S., at ___,___, 131 S.Ct. 1143, at p. 1157; Melendez-Diaz, 557 U.S., at 310-311,

129 S.Ct. 2527; Crawford, 541 U.S., at 51-52, 124 S.Ct. 1354. None of our cases

has ever suggested that, in addition, the statement must be meant to accuse a


6

Justice Thomas cautioned that such a test must be coupled with the

solemnity requirement. Otherwise ―it sweeps into the ambit of the Confrontation
Clause statements that lack formality and solemnity and is thus ‗disconnected
from history.‘ ‖ (Williams, supra, 567 U.S. at p. __ [132 S.Ct. at p. 2261] (conc.
opn. of Thomas, J.).)

14



previously identified individual; indeed, in Melendez–Diaz, we rejected a related

argument that laboratory ‗analysts are not subject to confrontation because they

are not ―accusatory‖ witnesses.‘ 557 U.S., at 313, 129 S.Ct. 2527.‖ (Williams,

supra, 567 U.S. at pp. __-__ [132 S.Ct. at pp. 2273-2274] (dis. opn. of Kagan, J.).)

In Williams, supra, 567 U.S. __ [132 S.Ct. 2221], the high court failed to

articulate any reasoning accepted by a majority of that court. ― ‗When a

fragmented Court decides a case and no single rationale explaining the result

enjoys the assent of five Justices, ―the holding of the Court may be viewed as that

position taken by those Members who concurred in the judgment on the narrowest

grounds . . . .‖ ‘ (Marks v. United States (1977) 430 U.S. 188, 193.)‖ (Del Monte

v. Wilson (1992) 1 Cal.4th 1009, 1023.) ―This rule only works in instances where

‗one opinion can meaningfully be regarded as ―narrower‖ than another — only

when one opinion is a logical subset of other, broader opinions,‘ King v.

Palmer, . . . 950 F.2d 771, 781 (D.C.Cir. 1991) (en banc), that is to say, only when

that narrow opinion is the common denominator representing the position

approved by at least five justices. When it is not possible to discover a single

standard that legitimately constitutes the narrowest ground for a decision on that

issue, there is then no law of the land because no one standard commands the

support of a majority of the Supreme Court. [Citation.] [¶] . . . The only binding

aspect of such a splintered decision is its specific result . . . .‖ (U.S. v. Alcan

Aluminum Corp. (2d Cir. 2003) 315 F.3d 179, 189.)

As Justice Kagan wrote in Williams, supra, 567 U.S. __ [132 S.Ct. 2221],

― . . . I call Justice Alito‘s opinion ‗the plurality,‘ because that is the conventional

term for it. But in all except its disposition, his opinion is a dissent: Five Justices

specifically reject every aspect of its reasoning and every paragraph of its

explication.‖ (Id. at p. __ [132 S.Ct. at p. 2265] (dis. opn. of Kagan, J.).)

15



Because the high court failed to articulate any reasoning carrying a majority

of that court, Williams provides no authoritative reasoning for us to follow.

Nevertheless, despite the fractured voting, Williams represents the first time that

all nine justices agree that primary purpose is a significant part of the

―testimonial‖ analysis. So how do we determine whether the ―primary purpose‖

for which a statement was given satisfies that prong of the testimonial test?

We must apply the high court‘s binding decisions in this area. The four

dissenting justices in Williams continue to adhere to the primary purpose test

articulated in Davis, supra, 547 U.S. 813. (See Williams, supra, 567 U.S. at p. __

[132 S.Ct. at p. 2274] (dis. opn. of Kagan, J.).) As set out above, ante at page 5,

Justice Thomas provides a definition slightly different from that endorsed by the

dissenters. While future developments may clarify whether those differences

result in a legally significant distinction, the similarity between the two

formulations is sufficient to consider them together here.

The primary purpose test of Davis was again applied by the Supreme Court

majority in Bryant, supra, 562 U.S. __ [131 S.Ct. 1143]. The court further

explained that ―[a]n objective analysis of the circumstances of an encounter and

the statements and actions of the parties to it provides the most accurate

assessment of the ‗primary purpose of the interrogation.‘ The circumstances in

which an encounter occurs . . . are clearly matters of objective fact.‖ (Bryant,

supra, at p. __ [131 S.Ct. at p. 1156].)7


7

In Bullcoming, supra, 564 U.S. __ [131 S.Ct. 2705], Justice Ginsburg,

writing for the majority, included this footnote: ―To rank as ‗testimonial,‘ a
statement must have a ‗primary purpose‘ of ‗establish[ing] or prov[ing] past
events potentially relevant to later criminal prosecution.‘ ‖ (Id. at p. __ [131 S. Ct.
at p. 2714, fn. 6], quoting Davis, supra, 547 U.S. at p. 822.) Justice Thomas, a
member of the majority, did not join in the footnote.

16



In view of the binding precedent of the high court, I suggest the appropriate

inquiry is whether, viewed objectively, a sufficiently formal statement was made

for the primary purpose of establishing or proving past facts for possible use in a

criminal trial.

Turning to Dr. Bolduc‘s autopsy, the majority states: ―The usefulness of

autopsy reports, including the one at issue here, is not limited to criminal

investigations and prosecution; such reports serve many other equally important

purposes.‖ (Maj. opn., ante, at p. 14.)

Such a blanket approach is not supported by controlling precedent. While

some autopsies may be conducted for purposes unrelated to a criminal

prosecution, other autopsies conducted under different circumstances may well

result in the production of testimonial statements. In Bryant, supra, 562 U.S. __

[131 S.Ct. 1143], Justice Sotomayor, writing for the majority, notes that the

primary purpose for which a statement is made will often be highly fact

dependent.8 Indeed, the primary purpose may change as events evolve. The

Bryant court, citing Davis, supra, 547 U.S. at page 828, pointed out that a

conversation initially concerning the need for emergency assistance may evolve to

produce testimonial statements.9 Further, a statement may be made or recorded


8

For example, the majority noted, ―[W]hether an emergency exists and is

ongoing is a highly context-dependent inquiry.‖ (Bryant, supra, 562 U.S. at p. __
[131 S.Ct. at p. 1158].) ―In determining whether a declarant‘s statements are
testimonial, courts should look to all of the relevant circumstances.‖ (Id. at p. __
[131 S.Ct. at p. 1162].)
9

As the majority explained in Bryant: ―This evolution may occur if, for

example, a declarant provides police with information that makes clear that what
appeared to be an emergency is not or is no longer an emergency or that what
appeared to be a public threat is actually a private dispute. It could also occur if a
perpetrator is disarmed, surrenders, is apprehended, or, as in Davis, flees with little
prospect of posing a threat to the public. Trial courts can determine in the first
instance when any transition from nontestimonial to testimonial occurs, and
exclude ‗the portions of any statement that have become testimonial, as they do,

17



for multiple purposes. (See Bryant, supra, at p. __ [131 S.Ct. at p. 1161].)

However, it is the primary purpose that must be determined and that determination

will drive the analysis.

Thus, the question is whether this autopsy report was made for the primary

purpose of establishing past facts for possible use in a criminal trial. Answering

that question, ―we objectively evaluate the circumstances‖ in which the report was

generated. (Bryant, supra, 562 U.S. at p. __ [131 S.Ct. at p. 1156].)

An objective consideration of this autopsy report reveals the following. Dr.

Bolduc‘s autopsy of Pina‘s body took place over two days during a homicide

investigation. There is no dispute that the victim, whose body was discovered in

her parked car after a police search, was a homicide victim. The report reveals

that homicide detective Robert Faine was present throughout the autopsy. It

indicates that, at various times during the second day of the procedure, another

police officer, an evidence technician, and a Department of Justice representative

were also present. Faine testified at the preliminary hearing that he told Dr.

Bolduc about the position and appearance of Pina‘s body in the car. Dr. Bolduc‘s

autopsy report relates: ―This woman, dressed in pajamas and socks, was found on

the rear floorboard of her SUV covered by a blanket. The windows were closed

and the doors were locked.‖ The report also notes: ―History from police

Detective Faine that someone confessed to manually strangling the deceased from

the front and putting the body in her SUV and driving around for a while.‖ In

light of all these circumstances, I conclude that when Dr. Bolduc wrote this


for example, with unduly prejudicial portions of otherwise admissible evidence.‘ ‖
(Bryant, supra, 562 U.S. at pp. __-__ [131 S.Ct at pp. 1159-1160, fn. omitted].)

18



autopsy report, his primary purpose was to make the statements at issue to

establish facts for possible use in a criminal trial.10

While Justice Werdegar joins the majority opinion, she writes separately to

explain in more detail why Dr. Bolduc‘s statements are not testimonial. The

explanation offered is problematic.

First, on the issue of formality, the concurrence relies on standards

attributed to the National Association of Medical Examiners (NAME Standards).

Those standards appear nowhere in the record. The trial court did not rely on

them. No statute mentions them. We cannot determine from this record whether

those standards are widely accepted in California. We have no basis to conclude

those standards are implicated in this case.

On the primary purpose question, the concurrence asserts there is a

―consensus‖ that a statement is more testimonial ―to the extent it was produced

under circumstances making it likely to be used in place of live testimony at a

future criminal trial.‖ (Conc. opn. of Werdegar, J., ante, at p. 5.) It is inaccurate

to say there is a consensus among the justices as to the definition of ―primary

purpose.‖ The definition has been formulated variously in Crawford and

subsequent cases. As noted, three different formulations are contained in the

Williams opinion alone.

The precise phrasing of the test is important, even if the high court has yet

to agree upon one. Articulating the test in different ways gives rise to confusion. I


10

I note that because defendant had already confessed to strangling Pina at

the time Dr. Bolduc prepared his autopsy report, the primary purpose formulation
embraced by the Williams plurality is also satisfied. The autopsy statements were
made for the primary purpose of accusing a targeted individual, the confessing
defendant. (See Williams, supra, 567 U.S. at p. __ [132 S.Ct. at p. 2242] (plur.
opn. of Alito, J.).)

19



suggest it is unwise for us to try and synthesize the court‘s many formulations to

urge there is a consensus, where plainly one does not exist.

The concurrence again places heavy reliance on the NAME Standards to

conclude that a medical examiner may make a ― ‗neutral and objective medical

assessment,‘ ‖ when doing an autopsy. (Conc. opn. of Werdegar, J., ante, at p. 6.)

Regardless of how an association may characterize what some medical examiners

may generally do, the question before us is what this doctor did, and for what

primary purpose he wrote this autopsy report. There is no evidence in this record

that Dr. Bolduc followed the NAME Standards, or relied on them in any way. As

explained in the majority opinion (ante, at pp. 3-4) the pretrial evidentiary hearing

contains assertions that Dr. Bolduc was fired as a coroner in Kern County, did not

reveal that fact in his resume, and resigned his coroner‘s position in Orange

County ― ‗under a cloud.‘ ‖ Dr. Lawrence acknowledged at that hearing that

prosecutors in several counties refused to use him as an expert witness.

The concurrence‘s statement that there is no indication that Dr. Bolduc

―was guided in his conduct and documentation of the autopsy by anything other

than professional medical practices and standards‖ (conc. opn. of Werdegar, J.,

ante, at p. 9) rests on complete speculation. Indeed, it is precisely those questions

that could have been pursued during his cross-examination had the prosecution not

declined to call Dr. Bolduc as a witness.

C. Prejudicial Effect of the Error

The majority notes that Dr. Lawrence did not say whether his description of

Pina‘s body at the time of the autopsy was based solely on the autopsy

photographs, solely on Dr. Bolduc‘s autopsy report, or on a combination of the

two. (Maj. opn., ante, at p. 5.) The existence of multiple sources is important.

Autopsy photographs are not hearsay. Hearsay is an out-of-court

―statement.‖ (See Evid. Code, § 1200.) Evidence Code section 225 defines

20



―statement‖ as oral or written verbal expression or nonverbal conduct of a person.

Only people can generate hearsay. Machines, animals, chemical reactions cannot.

(See Simons, Cal. Evidence Manual (2012 ed.) §2.2, pp. 74-75.) Therefore, to the

extent Dr. Lawrence had used properly authenticated autopsy photographs to

explain his testimony, he would not have disclosed testimonial hearsay.11

On this record, supplemented by our review of the judicially noticed

autopsy record, it cannot be determined if the autopsy photographs would have

independently supported Dr. Lawrence‘s testimony. The photographs were not

admitted in evidence, and Dr. Bolduc‘s report did not mention them other than to

note that ―[m]ultiple photographs are taken.‖ Defendant objected to Dr.

Lawrence‘s testimony as hearsay. It was the prosecution‘s burden, as proponent

of the challenged evidence, to establish its admissibility. (See Pen. Code, § 1096.)

It failed to do so.

When the erroneous admission of evidence against a criminal defendant

violates a right under the federal Constitution, the judgment must be reversed

unless the prosecution shows beyond a reasonable doubt that the result would have

been the same notwithstanding the error. (Chapman v. California (1967) 386 U.S.

18, 24.) Applying that test here, I conclude that the erroneously admitted

testimony of Dr. Lawrence was prejudicial.

As the Court of Appeal explained, Dr. Lawrence‘s opinion that Pina was

strangled for at least two minutes was a crucial part of the prosecution‘s case:

―While defendant admitted strangling Pina to death, he said he did so only after he

was provoked to the point of losing control and argued he was guilty of at most

voluntary manslaughter. The prosecution‘s argument that defendant was guilty of

intentional murder, and not voluntary manslaughter, was based in large part on the


11

I assume Detective Faine, who attended the autopsy, could have

authenticated the autopsy photographs.

21



theory that during the time it took for defendant to strangle Pina, what may have

begun as passion shaded into intent. The only evidence offered by the prosecution

in support of this theory was Dr. Lawrence‘s testimony that Pina was strangled for

at least two minutes before she died, which he based on Dr. Bolduc‘s report. The

prosecutor relied on that testimony during her closing argument in arguing

defendant was guilty of murder and not voluntary manslaughter.‖

Dr. Lawrence description of Pina‘s body, drawn from the hearsay contained

in Dr. Bolduc‘s autopsy report, violated defendant‘s right to confront and cross-

examine Dr. Bolduc. Had the trial court excluded that description, there would

have been no evidence supporting Dr. Lawrence‘s opinion regarding the length of

Pina‘s strangulation.12 Without such evidence, the jury might have rejected the

prosecutor‘s argument (maj. opn., ante, at p. 6) that defendant could not have

killed Pina in the heat of passion because any such passion would have dissipated

during the two minutes it took to strangle her.

I would affirm the judgment of the Court of Appeal.

In reaching this conclusion I note that various Supreme Court justices have

written at length describing how the court‘s Crawford jurisprudence has created

serious and complicated problems, the full significance of which continues to

evolve.13 As Justice Alito observed in Williams, ―Experience might yet show that


12

Dr. Lawrence might have testified that he could base his opinion on

nonhearsay photographs. He did not. Had he done so, his claims that the
photographs were sufficient for that purpose would have been subject to cross-
examination as well as being potentially rebuttable by independent defense
evidence to the contrary.
13

See, for example, the concurring opinion of Chief Justice Rehnquist, joined

by Justice O‘Connor in Crawford, supra, 541 U.S. at pages 69-76; the dissenting
opinion of Justice Kennedy, joined by Chief Justice Roberts, and Justices Breyer
and Alito, in Melendez-Diaz, supra, 557 U.S. at pages 330-357; and the
concurring opinion of Justice Breyer in Williams, supra, 567 U.S. at pages __-__
[132 S.Ct. at pages 2244-2255].

22



the holdings [in Crawford‘s progeny] should be reconsidered for the reasons,

among others, expressed in the dissents the decisions produced.‖ (Williams,

supra, 567 U.S. at p. __, fn. 13 [132 S.Ct. at p. 2242, fn. 13] (plur. opn. of Alito,

J.).)

Application of Supreme Court precedent is further complicated by the fact

that the tests propounded are expressed in various formulations and are modified

in ensuing opinions with shifting levels of agreement among the justices. As

Justice Breyer pointed out in his Williams concurrence: ―Answering the

underlying general question . . . , and doing so soon, is important. Trial judges in

both federal and state courts apply and interpret hearsay rules as part of their daily

trial work. . . . Obviously, judges, prosecutors, and defense lawyers have to know,

in as definitive a form as possible, what the Constitution requires so that they can

try their cases accordingly. [¶] The several different opinions filed today embody

several serious, but different, approaches to the difficult general question. Yet

none fully deals with the underlying question as to how, after Crawford,

Confrontation Clause ‗testimonial statement‘ requirements apply . . . .‖ (Williams,

supra, 567 U.S. at p. __ [132 S.Ct. at p. 2248] (conc. opn. of Breyer, J.).) The

problem is reflected in the various opinions our court offers here.

23



Nevertheless, a majority of the Supreme Court has propounded a series of

rules founded squarely on a federal constitutional guarantee. Lower courts must

conscientiously apply those constitutionally mandated principles, as best we can

discern them, whether or not we agree with their wisdom or their logic.

CORRIGAN, J.

I CONCUR:

LIU, J.

24



See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Dungo
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted
XXX 176 Cal.App.4th 1388
Rehearing Granted

__________________________________________________________________________________

Opinion No.
S176886
Date Filed: October 15, 2012
__________________________________________________________________________________

Court:
Superior
County: San Joaquin
Judge: Charlotte J. Orcutt

__________________________________________________________________________________

Counsel:

Ann Hopkins, under appointment by the Supreme Court, for Defendant and Appellant.

Bartell & Hensel, Donald J. Bartell, Lara J. Gressley; and John N. Aquilina for California DUI Lawyers
Association and California Attorneys for Criminal Justice as Amici Curiae on behalf of Defendant and
Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant
Attorney General, Michael P. Farrell, Assistant Attorney General, David A. Rhodes and Daniel E.
Bernstein, Deputy Attorneys General; James P. Willett, District Attorney, Edward J. Busuttil, Assistant
District Attorney, and Ronald J. Freitas, Deputy District Attorney, for Plaintiff and Respondent.

W. Scott Thorpe; and Albert C. Locher, Assistant District Attorney (Sacramento) for California District
Attorneys Association as Amicus Curiae on behalf of Plaintiff and Respondent.

Dolores A. Carr, District Attorney (San Jose) and John Chase, Deputy District Attorney, for California
Association of Crime Laboratory Directors as Amicus Curiae on behalf of Plaintiff and Respondent.

















Counsel who argued in Supreme Court (not intended for publication with opinion):

Ann Hopkins
P.O. Box 23711
Oakland, CA 94623
(510) 530-8774

Ronald J. Freitas
Deputy District Attorney
222 East Weber, Room 202
Stockton, CA 95202
(209) 468-2400


Petition for review after the Court of Appeal reversed a judgment of conviction of a criminal offense. This case presents the following issues: (1) Was defendant denied his right of confrontation under the Sixth Amendment when one forensic pathologist testified to the manner and cause of death in a murder case based upon an autopsy report prepared by another pathologist? (2) How does the decision of the United States Supreme Court in Melendez-Diaz v. Massachusetts (2009) 557 U.S. ___, 129 S.Ct. 2527, 174 L.Ed.2d 314, affect this court's decision in People v. Geier (2007) 41 Cal.4th 555?

Opinion Information
Date:Citation:Docket Number:Cross Referenced Cases:
Wed, 12/12/201255 Cal.4th 608; 286 P.3d 442; 12 Cal. Daily Op. Serv. 11,591; 12 Cal. Daily Op. Serv. 13,611; 2012 Daily Journal D.A.R. 14,169S176886M

People v. Anunciation (S179423)
People v. Schwarz (S180445)
People v. Benitez (S181137)
People v. Bowman (S182172)
People v. Chikosi (S184190)
People v. Miller (S186758)
People v. Thompson (S188661)
People v. Smith (S192048)
People v. Shockman (S193189)
People v. Kelley (S193395)


Parties
1The People (Plaintiff and Respondent)
Represented by Ronald Freitas
San Joaquin County District
222 E. Weber Avenue, Room 202
Stockton, CA

2Reynaldo Santos Dungo (Defendant and Appellant)
Represented by Ann Hopkins
P.O. Box 23711 Oakland, CA

Opinion Authors
OpinionJustice Joyce L. Kennard
ConcurJustice Kathryn M. Werdegar, Justice Ming W. Chin
DissentJustice Carol A. Corrigan

Dockets
Oct 2 2009Petition for review filed
Plaintiff and Respondent: The People Attorney: Ronald Freitas (Filed in San Diego)
Oct 6 2009Request for depublication (petition for review pending)
Pub/Depublication Requestor: Attorney General of the State of California Attorney: Daniel Brad Bernstein (Received in Sacramento)
Oct 6 2009Record requested
Oct 7 2009Received Court of Appeal record
one doghouse
Oct 23 2009Answer to petition for review filed
Defendant and Appellant: Reynaldo Santos Dungo Attorney: Ann Hopkins per CRC 8.25b
Nov 13 2009Time extended to grant or deny review
The time for granting or denying review in the above-entitled matter is hereby extended to and including December 31, 2009, or the date upon which review is either granted or denied.
Dec 2 2009Petition for review granted
The petition for review is granted. The parties will brief and argue the following issues: (1) Was defendant denied his right of confrontation under the Sixth Amendment when one forensic pathologist testified to the manner and cause of death in a murder case based upon an autopsy report prepared by another pathologist? (2) How does the decision of the United States Supreme Court in Melendez-Diaz v. Massachusetts (2009) 557 U.S. ___, 129 S.Ct. 2527, 174 L.Ed.2d 314, affect this court's decision in People v. Geier (2007) 41 Cal.4th 555? Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.
Dec 4 2009Record sent to Calendar Coordination Office
Ct-4, Rt-11, 2-2, 3-2, 4, 7-2, 8, Misc papers, orders, confidential envelopes, etc.
Dec 14 2009Counsel appointment order filed
Upon request of appellant for appointment of counsel, Ann Hopkins is hereby appointed to represent appellant on the appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before thirty (30) days from the date respondent's opening brief on the merits is filed.
Dec 30 2009Request for extension of time filed
By counsel for respondent requesting a 30-day extension to and including February 4, 2010 to file respondent's opening brief on the merits.
Jan 8 2010Extension of time granted
On application of Respondent and good cause appearing, it is ordered that the time to serve and file Respondent's Opening Brief on the Merits is extended to and including February 4, 2010.
Feb 3 2010Request for extension of time filed
30-days, to and including March 5, 2010, to serve and file Respondent's Opening Brief on the Merits The People, respondent by Ronald J. Freitas, counsel
Feb 9 2010Extension of time granted
On application of Respondent and good cause appearing, it is ordered that the time to serve and file Respondent's Opening Brief on the Merits is extended to and including March 5, 2010.
Mar 4 2010Opening brief on the merits filed
Plaintiff and Respondent: The People Attorney: Ronald Freitas
Mar 30 2010Request for extension of time filed
By counsel for appellant requesting a 30-day extension to and including May 5, 2010, to file appellant's Answer Brief on the Merits.
Apr 7 2010Extension of time granted
On application of appellant and good cause appearing, it is ordered that the time to serve and file Appellant's Answer Brief on the Merits is hereby extended to and including May 5, 2010.
Apr 29 2010Received additional record
two file envelope jackets
Apr 29 2010Received additional record
two file folders
May 3 2010Request for extension of time filed
30 days, to and including June 4, 2010, to serve and file appellant's answer brief on the merits. Reynaldo S. Dungo, appellant by Ann Hopkins, counsel ***GRANTED*** - order being prepared.
May 4 2010Extension of time granted
On application of appellant and good cause appearing, it is ordered that the time to serve and file appellant's answer brief on the merits is extended to and including June 4, 2010.
Jun 2 2010Request for extension of time filed
hirty (30) days, to and including July 2, 2010, to serve and file appellant's answer brief on the merits Reynaldo S. Dungo, appellant Ann Hopkins, Supreme Court appointment ***GRANTED*** - order being prepared.
Jun 7 2010Extension of time granted
On application of appellant and good cause appearing, it is ordered that the time to serve and file appellant's answer brief on the merits is extended to and including July 2, 2010.
Jul 1 2010Answer brief on the merits filed
Defendant and Appellant: Reynaldo Santos Dungo Attorney: Ann Hopkins
Jul 20 2010Request for extension of time filed
thirty (30) days, to and including August 20, 2010, to serve and file respondent's reply brief on the merits. The People, respondent by Ronald J. Freitas, counsel ***GRANTED*** - order being prepared.
Jul 23 2010Extension of time granted
On application of respondent and good cause appearing, it is ordered that the time to serve and file the reply brief on the merits is extended to and including August 20, 2010.
Jul 21 2010Application to file amicus curiae brief filed
application and brief combined in one document. California Association of Crime Laboratory Directors, amicus curiae by John Chase, Deputy District Attorney ***GRANTED*** - order being prepared.
Aug 20 2010Permission to file amicus curiae brief granted
The application of California Association of Crime Laboratory Directors for permission to file an amicus curiae brief in support of respondent is hereby granted. An answer thereto may be served and filed by any party within 20 days of the filing of the brief.
Aug 20 2010Amicus curiae brief filed
Amicus curiae for respondent: California Association of Crime Laboratory Directors Attorney: John Franklin Chase
Aug 20 2010Request for extension of time filed
thirty (30) days, to and including September 19, 2010, to serve and file the reply brief on the merits The People, respondent Ronald J. Freitas, Chief Deputy District Attorney ***GRANTED*** - order being prepared.
Aug 25 2010Extension of time granted
On application of respondent and good cause appearing, it is ordered that the time to serve and file the reply brief on the merits is extended to and including September 19. 2010.
Sep 8 2010Request for extension of time filed
counsel for appellant requests extension of time to September 29, 2010, to file the answer to amicus curiae brief.
Sep 14 2010Extension of time granted
On application of appellant and good cause appearing, it is ordered that the time to serve and file the response to amicus curiae brief is extended to and including September 29, 2010.
Sep 17 2010Reply brief filed (case fully briefed)
Plaintiff and Respondent: The People Attorney: Ronald Freitas
Sep 29 2010Request for extension of time filed
seven (7) days, to and including October 6, 2010, to serve and file a response to amicus curiae briefs. Reynaldo S. Dungo, appellant Ann Hopkins, counsel
Oct 6 2010Response to amicus curiae brief filed
Defendant and Appellant: Reynaldo Santos Dungo Attorney: Ann Hopkins
Oct 18 2010Application to file amicus curiae brief filed
California District Attorneys Association request permission to file amicus curiae brief in support of respondent.
Oct 18 2010Application to file amicus curiae brief filed
DUI Lawyers Association and California Attorneys for Criminal Justice request permission to file amicus curiae brief in support of appellant.
Nov 9 2010Permission to file amicus curiae brief granted
The application of California District Attorneys Association for permission to file an amicus curiae brief in support of respondent is hereby granted. An answer thereto may be served and filed by any party within 20 days of the filing of the brief.
Nov 9 2010Amicus curiae brief filed
Amicus curiae in support of respondent: California District Attorneys Association
Nov 9 2010Permission to file amicus curiae brief granted
The application of California DUI Lawyers Association and California Attorneys for Criminal Justice for permission to file an amicus curiae brief in support of appellant is hereby granted. An answer thereto may be served and filed by any party within 20 days of the filing of the brief.
Nov 9 2010Amicus curiae brief filed
Amicus curiae: California DUI Lawyers Association Attorney: Donald Bartell Amicus curiae: California Attorneys for Criminal Justice Attorney: Donald Bartell California DUI Lawyers Association and California Attorneys for Criminal Justice in support of appellant. **** FILING STRICKEN PER COURT ORDER FILED ON 12/15/10 ****
Nov 19 2010Request for extension of time filed
Submitted by Ronald Freitas, counsel for respondent, to extend time to file respondent's response to amicus curiae brief in support of appellant, to December 17, 2010.
Nov 22 2010Request for extension of time filed
Submitted by Ann Hopkins, counsel for appellant, to extend time to file appellant's response to amicus curiae brief, to December 29, 2010 and application for copy of unredacted appendix to amicus curiae brief of California District Attorneys Association.
Dec 1 2010Extension of time granted
On application of respondent and good cause appearing, it is ordered that the time to serve and file the response to amicus curiae brief is extended to and including December 17, 2010.
Dec 6 2010Response to amicus curiae brief filed
Plaintiff and Respondent: The People Attorney: Ronald Freitas
Dec 15 2010Filing stricken per court order
On the court's own motion, the Clerk is directed to strike the filing of the amicus curiae brief submitted by the California District Attorneys Association (CDAA) in this matter, filed on November 9, 2010. The brief is defective because an appendix to the brief contains materials not authorized under California Rules of Court, rule 8.520(h); because the copies of the brief served on the parties do not conform to the original; and because the brief, which purports to contain records that are protected from public inspection and disclosure, is not accompanied by a request that those records be filed under seal. CDAA may submit a new amicus curiae brief on or before January 14, 2010. If CDAA would like to ask this court to take judicial notice of the matters appearing in the appendix of the stricken brief, those matters should be not be provided to this court in its amicus curiae brief, but in a separate motion for judicial notice. (Cal. Rules of Court, rule 8.252; see also rule 8.520(g).) If the request for judicial notice contains records that are protected from public inspection and disclosure, CDAA must ask that the records be filed under seal. The request "must be filed in a public redacted version and lodged in a complete version conditionally under seal" (Cal. Rules of Court, rule 8.46(e)(4)), and must be "accompanied by a declaration containing facts sufficient to justify the sealing" (id., rule 46(e)(2)).
Jan 6 2011Amicus curiae brief filed
Amicus curiae: California District Attorneys Association Attorney: W. Scott Thorpe
Jan 6 2011Received
Motion for Judicial Notice and Application to File Material Under Seal, submitted by W. Scott Thorpe, counsel for California District Attorneys Association.
Jan 26 2011Response to amicus curiae brief filed
Defendant and Appellant: Reynaldo Santos Dungo Attorney: Ann Hopkins by California District Attorneys Association.
Jul 13 2011Supplemental briefing ordered
The parties are requested to serve and file, within 30 days of this order, supplemental briefs addressing the significance, if any, of the United States Supreme Court's recent decision in Bullcoming v. New Mexico (June 23, 2011) ___ U.S. ___ [2011 WL 2472799]. (See generally, Cal. Rules of Court, rule 8.520(d).) Upon the filing of those briefs, each party will then have 30 days to serve and file a response to the brief submitted by the opposing party.
Aug 11 2011Supplemental brief filed
Defendant and Appellant: Reynaldo Santos Dungo Attorney: Ann Hopkins
Aug 12 2011Supplemental brief filed
Plaintiff and Respondent: The People Attorney: Ronald Freitas
Sep 12 2011Reply to supplemental brief filed
Plaintiff and Respondent: The People Attorney: Ronald Freitas
Sep 12 2011Application to file over-length brief filed
Attorney for Appellant requesting to file oversized response to Respondent's Supplemental Brief. (To court for permission)
Sep 13 2011Reply to supplemental brief filed
Defendant and Appellant: Reynaldo Santos Dungo Attorney: Ann Hopkins Filed With Permission
Oct 26 2011Compensation awarded counsel
Atty Hopkins
May 3 2012Case ordered on calendar
to be argued on Wednesday, June 6, 2012, at 9:00 a.m., in Los Angeles
May 24 2012Supplemental brief filed
Defendant and Appellant: Reynaldo Santos Dungo Attorney: Ann Hopkins
Jun 6 2012Cause argued and submitted
no notes
Jun 20 2012Supplemental briefing ordered
The parties are requested to serve and file supplemental briefs addressing the significance, if any, of the United States Supreme Court's recent decision in Williams v. Illinois (June 18, 2012) ___ U.S. ___ [2012 WL 2202981]. Those briefs are to be filed on or before July 5, 2012. Upon the filing of those briefs, each party will then have until July 16, 2012, to serve and file a response to the brief submitted by the opposing party. Submission of the cause is vacated. (See Cal. Rules of Court, rule 8.524(h)(1) [submission runs from expiration of the time in which to file briefs, including supplemental briefs].) The cause will be resubmitted upon timely filing of the response briefs.
Jun 20 2012Submission vacated
no notes
Jun 29 2012Request for extension of time filed
Chief Deputy District Attorney, Ronald Freitas, requests 14-day extension of time to file supplemental brief.
Jul 2 2012Request for extension of time filed
Appellant is asking for a 14 day extension to file the supplemental brief. By cousnel, Ann Hopkins.
Jul 5 2012Extension of time denied
The request of respondent for an extension of time to file the supplemental brief is hereby denied.
Jul 5 2012Extension of time denied
The application of appellant for an extension of time to file the supplemental brief is hereby denied.
Jul 5 2012Supplemental brief filed
Defendant and Appellant: Reynaldo Santos Dungo Attorney: Ann Hopkins
Jul 5 2012Received
Respondent's supplemental brief in excess of the word limit. by Deputy District Attorney, Ronald J. Freitas.
Jul 9 2012Application filed
by respondent to file an oversized supplemental brief Ronald Freitas, District Attorney.
Jul 5 2012Request for judicial notice filed
Plaintiff and Respondent: The People Attorney: Ronald Freitas
Jul 5 2012Application filed
for leave to file amici curiae supplemental brief (to court for permission) California DUI Lawyers Association and California Attorneys for Criminal Justice, amicus curiae Donald J. Bartell, counsel
Jul 6 2012Order filed
The application of respondent to file an oversized supplemental brief is hereby granted.
Jul 6 2012Supplemental brief field
Plaintiff and Respondent: The People Attorney: Ronald Freitas
Jul 9 2012Order filed
The application of amicus curiae California DUI Lawyers Association and California Attorneys for Criminal Justice for permission to file a supplemental brief in support of appellant is hereby granted.
Jul 9 2012Supplemental brief filed
Amicus curiae: California DUI Lawyers Association Attorney: Donald Bartell Amicus curiae: California Attorneys for Criminal Justice Attorney: Donald Bartell
Jul 16 2012Reply to supplemental brief filed
Plaintiff and Respondent: The People Attorney: Ronald Freitas
Jul 16 2012Reply to supplemental brief filed
Defendant and Appellant: Reynaldo Santos Dungo Attorney: Ann Hopkins
Jul 17 2012Submitted by order
no notes
Oct 12 2012Notice of forthcoming opinion posted
To be filed on Monday, October 15, 2012 at 10 a.m.
Oct 15 2012Opinion filed: Judgment reversed
The judgment of the Court of Appeal is reversed, and the matter is remanded for further proceedings consistent with this opinion. Majority Opinion by Kennard, J. -- joined by Cantil-Sakauye, C. J., Baxter, Werdegar, and Chin, JJ. Concurring Opinion by Werdegar, J. -- joined by Cantil-Sakauye, C. J., Baxter, and Chin, JJ. Concurring Opinion by Chin, J. -- joined by Cantil-Sakauye, C. J., Baxter, and Werdegar, JJ. Dissenting Opinion by Corrigan, J. -- joined by Liu, J.
Oct 15 2012Request for judicial notice denied
Amicus Curiae California District Attorneys Association's request for judicial notice, received on January 6, 2011, is denied.
Oct 30 2012Rehearing petition filed
Defendant and Appellant: Reynaldo Santos Dungo Attorney: Ann Hopkins
Oct 31 2012Time extended to consider modification or rehearing
The time for granting or denying rehearing in the above-entitled case is hereby extended to and including January 11, 2013, or the date upon which rehearing is either granted or denied, whichever occurs first.
Dec 12 2012Rehearing denied; opinion modified
These modifications do not affect the judgment. Corrigan, J., is of the opinion the petition should be granted.
Dec 12 2012Remititur issued
no notes
Dec 14 2012Received
Substitution of Counsel for Respondent. By Michael Chamberlain, Deputy Attorney General.
Dec 18 2012Returned record
4 doghouses and 1 confidential doghouse with a confidential envelope of appellate court documents.
Jan 2 2013Received
receipt for remittitur from CA3.
Feb 13 2013Compensation awarded counsel
Atty Hopkins

Brief Downloads
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Respondent's Petition for Review.pdf (1538841 bytes) - Respondent’s Petition for Review: Filed on October 2, 2009
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Answer to Petititon for Review.pdf (615673 bytes) - Appellant’s Answer to Petition for Review: Filed on October 23, 2009
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Opening Brief on the Merits.pdf (2251384 bytes) - Respondent’s Opening Brief on the Merits: Filed on March 4, 2010
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Answer Brief on the Merits.pdf (2491487 bytes) - Appellant’s Answer Brief on the Merits: Filed on July 1, 2010
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Reply Brief on the Merits.pdf (1218823 bytes) - Respondent’s Reply Brief on the Merits: Filed on September 17, 2010
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Supplemental Brief.pdf (583720 bytes) - Appellant’s Supplemental Brief: Filed on August 11, 2011
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Respondent's Supplemental Brief.pdf (922888 bytes) - Respondent’s Supplemental Brief: Filed on August 12, 2011
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Respondent's Reply to Supplemental Brief.pdf (461936 bytes) - Respondent’s Reply to Supplemental Brief: Filed on September 12, 2011
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Appellant's Reply to Supplemental Brief.pdf (665719 bytes) - Appellant’s Reply to Supplemental Brief: Filed on September 13, 2011
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
May 21, 2013
Annotated by Susie Choi

Facts:

Defendant, Reynaldo Santos Dungo, killed Lucinda Correia Pina, a woman with whom he was romantically involved. On the night of April 14, 2006, after quarreling with Pina about her resuming a sexual relationship with a prior lover, defendant strangled Pina.

The trial court granted defendant’s request for a pretrial evidentiary hearing pursuant to CAL. EVID. CODE § 402(b). A pretrial evidentiary hearing is a judicial session out of the presence of a jury that is conducted to review and determine the admissibility of evidence. At the pretrial hearing, the trial court ruled that the prosecution’s expert witness, forensic pathologist Robert Lawrence, could testify about the condition of Pina’s body based on an autopsy report and photos that a different pathologist, George Bolduc, had prepared (even if Bolduc himself would not testify).

At the jury trial, Dr. Lawrence gave an independent opinion as to the cause of Pina’s death – that she had been strangled for more than two minutes – by evaluating the information provided in Dr. Bolduc’s autopsy report.

Procedural History:

In large part because of Dr. Lawrence’s testimony, the jury convicted defendant of second-degree murder and sentenced him to prison for 15 years to life. Defendant tried to argue that the killing was voluntary manslaughter instead of murder because voluntary manslaughter, which is defined as the unlawful killing of another upon sudden quarrel or heat of passion, would subject him only to 3, 6, or 11 years in state prison. CAL. PENAL CODE §§ 193 explains these charges in more detail.

The Court of Appeals concluded that Dr. Lawrence’s trial testimony violated defendant’s constitutional rights (this issue is explained below) and thus reversed the jury judgment. The Court remanded the matter for retrial since defendant was convicted on evidence that the Court deemed to be erroneously admitted.

The California Supreme Court then granted review of the Court of Appeals’s holding.

Issue:

If a forensic pathologist’s testimony relies on autopsy photographs and an autopsy report prepared by a different pathologist, does the Sixth Amendment confrontation right entitle defendant to confront and cross-examine the pathologist who prepared the autopsy report?

Contextualizing the Issue

The Sixth Amendment establishes rights for defendants during criminal prosecution, including the right to confront their accusers by disputing in court the testimonies of the prosecution’s witnesses. Thus, when the prosecution uses out-of-court statements as evidence against a defendant without having the speakers of those statements testify, defendant’s Sixth Amendment right to confrontation is violated. In this case, the issue is whether the autopsy report performed by Dr. Bolduc, which Dr. Lawrence relied on in his trial testimony, constitutes an out-of-court testimony. If it does, then Dr. Bolduc would have to testify in trial to give defendant the opportunity to confront his report.

Read an overview of the Sixth Amendment confrontation here.

Hearsay

Although not directly addressed by the Court, this case presents another issue, which Judge Corrigan mentions in his dissenting opinion: Whether an autopsy report constitutes hearsay.

Hearsay is a rule of evidence that invalidates a witness’s testimony when it relates what someone else said instead of what the witness knows personally. Because an autopsy report can contain, for example, the forensic pathologist’s opinion as to the cause of death or statements from police investigations, the report is sometimes alleged to be hearsay. However, it is tenuous to characterize an autopsy report as such since it primarily constitutes the forensic pathologist’s careful memorialization of what was observed and done during the autopsy. Moreover, in this particular case, because the forensic pathologist who testified relied only on the factual observations presented in the autopsy pathologist’s report (instead of on the report’s conclusions regarding victim’s cause of death), the Court did not address the issue of hearsay.

This article in the Federal Criminal Defense Journal provides an in-depth overview of the hearsay issues surrounding autopsy reports.

Holding:

The Supreme Court of California held that defendant’s Sixth Amendment confrontation right was not violated because objective facts about the victim’s body provided in an autopsy report are 1) not so formal and solemn to be considered testimonial, and 2) an autopsy report is not prepared for the primary purpose of criminal investigation. The prosecution’s expert witness can rely on facts from an autopsy report in his testimony, even if the pathologist who prepared the report does not testify in court.

The Supreme Court of California reversed the Court of Appeal’s judgment and denied petition for rehearing.

Analysis:

Majority (Kennard, J.):

Supreme Court Rules Regarding Sixth Amendment Confrontation Right

The Sixth Amendment confrontation right provides that the prosecution may not use a witness’s testimonial statements if the witness does not appear trial, unless the witness is unavailable to testify and the defendant had a prior opportunity for cross-examination. Crawford v. Washington, 541 U.S., 36, 59 (2004).

The U.S. Supreme Court has held that this right pertains only to those who give “testimony,” defined as a “solemn declaration or affirmation made for the purpose of establishing or proving some fact,” including ex parte in-court testimonies or their functional equivalents (e.g., affidavits, custodial examinations, prior testimony, etc.). Crawford at 51. Laboratory certificates qualify as testimonial statements, but medical reports created for treatment purposes are not. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 310, 324 (2009). The Court also has said that an expert testimony by a forensic biologist is not testimonial when it lacks the solemnity of an affidavit or deposition and the primary purpose for its preparation is something other than to accuse a targeted individual. Williams v. Illinois (2012).

In short, while the U.S. Supreme Court has not established a clear definition or test for determining which out-of-court statements are and are not testimonial, the justices have consistently considered two factors. The existing law is as such: To be “testimonial” and trigger protection of defendant’s Sixth Amendment right, 1) a statement must be made with some degree of formality or solemnity, and 2) its primary purpose must pertain in some fashion to a criminal prosecution. The California Supreme Court evaluated whether these two factors were present in this case.

CA Supreme Court’s Application of the Law

1) Formality and Solemnity

An autopsy report typically contains statements describing a pathologist’s anatomical and physical observations about a body’s conditions, as well as the pathologist’s conclusions about the victim’s cause of death. The California Supreme Court drew a distinction between these two components of a common autopsy report, noting that the out-of-court statements at issue in this case were Dr. Bolduc’s objective factual observations about victim Pina. The Court compared these statements to observations in a report by a physician who, after examining a patient, diagnoses an injury and determines the proper treatment, which the Supreme Court deemed to not be testimonial (as mentioned in the above section in a description of Melendez-Diaz). Moreover, while the Court explicitly refused to address whether the conclusions provided by a pathologist in an autopsy report qualify as testimonial under the Sixth Amendment, the Court said that a record of objective facts is less formal than statements setting forth expert conclusions. It then concluded that Dr. Bolduc’s autopsy report failed to meet the “formality and solemnity” requirement.

The Court specifically noted that the fact that a detective was present at the autopsy and informed the pathologist about defendant’s confession did not transform the autopsy report’s statements of objective fact into formal and solemn testimony.

2) Primary Purpose

The second prerequisite for a statement to qualify as a testimonial is that its primary purpose be for criminal investigation. The California Supreme Court’s reasoning was grounded in an analysis of CA GOVT. CODE § 27491, the statutory authority in California for the preparation of autopsy reports. § 27491 of the aforementioned code mandates county coroners in California to “inquire into and determine the circumstances, manner, and cause” of deaths resulting from commission of a crime. However, an autopsy report is required for other statutorily specified categories of death as well, such as deaths from alcoholism or contagious disease. Because there are numerous reasons for an autopsy, the Court asserted that the usefulness of an autopsy report is not limited to criminal investigation and prosecution; for example, it could be used to satisfy the public’s interest in knowing the cause of a death, or to inform a decedent’s relatives as to whether they should file a wrongful death action. The Court noted that “the scope of the coroner’s statutory duty to investigate is the same, regardless of whether the death resulted from criminal activity” (p. 12).

Based on this analysis, the Court held that criminal investigation was just one of several purposes – and not the primary purpose – behind Dr. Bolduc’s autopsy report.

Concurrence (Werdegar, J.):

Justice Werdegar concurred in the majority opinion but wrote separately to elaborate on why anatomical and physiological observations recorded by a forensic pathologist in an autopsy report do not constitute testimony.

Dr. Bolduc’s autopsy report, while signed and dated, was not sworn or certified; Werdegar distinguished it from a death certificate, which bears a formal certification mandated by statute. Furthermore, Werdegar noted that a forensic autopsy is part of the practice of medicine and is governed by medical standards rather than by the legal requirements of formality or solemnity.

Echoing the majority’s emphasis on the objectivity and neutrality of an autopsy, Werdegar wrote that a medical examiner investigates death cooperatively with, but independent from, law enforcement. The autopsy report was not produced by or at the behest of government officers engaged in a prosecutorial effort; its primary purpose thus is not criminal prosecution.

Concurrence (Chin, J.)

Justice Chin also concurred with the majority opinion but wrote separately to further explain why defendant’s federal confrontation rights were not violated when testifying forensic pathologist Dr. Lawrence relied on portions of Dr. Bolduc’s autopsy report in forming his opinions.

Chin emphasized that the primary purpose of the parts of the autopsy report that Dr. Lawrence relied on was to describe the condition of the body, not to accuse defendant. Although defendant was a suspect at the time the autopsy report was prepared, Dr. Lawrence relied only on objective statements provided in the report, such as that the victim’s larynx and hyoid bone had not been fractured.

Chin also raised practical considerations: Holding that autopsy reports are testimonial would negatively affect the criminal justice system by requiring all medical examiners to testify at trial. For example, since many years can pass between performance of an autopsy and the actual trial, the examiner could be unavailable; moreover, the examiner would likely not have an independent recollection of the autopsy at issue by the time of trial.

Dissent (Corrigan, J.)

Justice Corrigan would affirm the judgment of the Court of Appeal (and have defendant be retried). She asserted that the description of victim Pina’s body was drawn from hearsay contained in the autopsy report and that defendant was entitled to confront and cross-examine the pathologist who performed the autopsy.

She cited several cases where the U.S. Supreme Court found documents to be sufficiently formal, even without certification (i.e., absent sworn testimony or oath): where a police officer took statements in the course of an interrogation, a sheriff deputy interviewed an assault victim in the ER, and a domestic violence victim was interviewed inside her house. She also relied heavily on Bullcoming v. New Mexico (2011), where the Supreme Court held an unsworn certificate to be formal. The examples that Corrigan provided in her dissent reveal the vagueness surrounding the right to confrontation doctrine and the lack of clarity as to what qualifies as “solemn” and “formal,” particularly since the context of each case seems to have affected the Supreme Court’s determinations.

Corrigan took issue with the majority’s rationale that conclusions are formal but observations are not, and she argued that the formality prong of the testimonial determination should focus not on content, but on the circumstances of the statement’s production (whether there were any efforts to enhance the statement’s formality by having it sworn or certified).

Lastly, Corrigan noted that Supreme Court precedent is complicated and that there is no clear test. For example, in Williams v. Illinois (2012), the justices gave conflicting formulations for “primary purpose.” Justice Thomas said that “for a statement to be testimonial within the meaning of the Confrontation Clause, the declarant must primarily intend to establish some fact with the understand that his statement may be used in a criminal prosecution.” This is less stringent than what the Williams majority applied, and if relying on Thomas’s standard, an autopsy report would qualify as a testimonial under the primary purpose prong since it could be used in a criminal prosecution. Likewise, Justice Kagan, along with Justices Scalia, Ginsburg, and Sotomayor, said that a statement need not accuse a previously identified individual to be testimonial; instead, the primary purpose of a statement need only be to establish past facts for possible use in a criminal trial.

Related Cases:

Tags:

Sixth Amendment, confrontation right, confrontation clause, right to confront adverse witnesses, cross-examination, cross-examine, right to cross-examine, autopsy, autopsy report, forensic pathologist, forensics, testimonial, testimony, testify, certification, sworn statement, formality, solemnity, objective facts, primary purpose, criminal prosecution, criminal investigation, second-degree murder, circumstances, jury trial, evidentiary hearing, pretrial hearing, evidence, hearsay, out-of-court statements

Annotated by Susie Choi