Filed 11/17/15 P. v. Mayfield CA1/1
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                   A140801
v.
JAMES L. MAYFIELD,                                                 (San Francisco County
                                                                   Super. Ct. No. SC213413)
         Defendant and Appellant.


         In this cold case prosecution, defendant James L. Mayfield was convicted
following a jury trial of first degree murder (Pen. Code, § 187), and sentenced to life in
prison with the possibility of parole. In this appeal, he claims the trial court prejudicially
erred in admitting evidence of his 1969 rape conviction. He also challenges the jury
instruction on prior act evidence, and asserts the admission of the victim’s autopsy report
violated his right to confrontation. We reject these contentions and affirm the judgment.
               FACTUAL BACKGROUND AND PROCEDURAL HISTORY
         On October 5, 2010, an information was filed accusing defendant of the 1976
murder of Jenny Read in San Francisco. Use of a knife was also alleged (Pen. Code,
§ 12022). A jury trial commenced on September 23, 2013.
I.       The Prosecution
         A. The Crime and Defendant’s Arrest
         In May 1976, Michael Kinney was a leather craftsman who rented an artist’s
studio at 15th and Carolina Streets in San Francisco. The building was a large warehouse
that had been divided into studio spaces for several artists. One of those artists was Read,
a sculptress who lived and worked in a studio/apartment upstairs from Kinney’s studio.
       On May 18, 1976, Kinney agreed to drive Read to an appointment the following
morning. When he went to pick her up at 8:00 a.m. on May 19, 1976, there was no
answer at her door. He stepped back a few feet and yelled up at her window to get her
attention, but there was no response. Most of the tenants kept a spare key in a secret
place inside a room in the back of the building. Thinking Read had overslept, Kinney
retrieved a key and opened her front door. Walking up the stairs to her unit, he saw her
body on the floor at the top of the stairs. He returned downstairs and asked a male friend
who was waiting for him in the car to accompany him and they both went upstairs to the
apartment.
       Read was lying on the floor in a large pool of blood. Her hands were bound
behind her back. Her pants were pulled down, off one leg entirely and around the ankle
of the other. Kinney believed Read was dead, but wiggled one of her fingers just in case
and found it cold and stiff. He called the police. Neither he nor his friend disturbed
anything around the body at the crime scene.
       San Francisco Police Department (SFPD) officer Raymond Kilroy responded to
the scene. There was no sign of forced entry.
       Dr. Amy Hart, the chief medical examiner of San Francisco, testified that she
attained that position in 2005 when her predecessor, Dr. Boyd Stephens, retired. The
legal mandate of the medical examiner’s office is to investigate all sudden, unexpected,
and violent deaths. In performing an autopsy, the physician may take specimens, swabs,
or slices of organs in order to examine them under a microscope. Those specimens are
stained and put onto a glass slide to view under the microscope.
       Hart retrieved the autopsy report from the May 1976 bound volume of historical
autopsy reports. The report was signed by Stephens on May 19, 1976. The report stated
that the victim was five feet two inches tall and weighed 103 pounds. When she was
found, her hands were securely tied behind her back with a scarf. A knife was still
embedded in a wound in her chest. A crusted whitish material was found in her crotch


                                             2
area, which later tested positive for sperm. Her pubic hair was matted, and swabs from
that area showed “large numbers of intact sperm.” A smaller number of sperm were
found in the victim’s vagina, mouth, and rectum.
       The victim had defensive wounds to her left hand and injuries to her neck, which
were consistent with having been grabbed by the neck. She sustained 13 knife wounds,
11 of them to her upper chest and abdomen. The two remaining wounds were on the
inside and outside of her left knee. The pants found at the scene had no knife holes in
them. The knife wounds were consistent with the knife found in her body. The wounds
were hemorrhagic, which indicated they were inflicted around the time of death. Hart
opined the cause of death was multiple stab wounds, and that the victim bled to death.
       SFPD officer Joseph Toomey testified that he interviewed defendant on August 3,
2009, after contacting him on a street in San Francisco. Defendant became a person of
interest in the crime because his DNA was in the state database and was matched to DNA
in this case in 2009. Defendant agreed to talk. Toomey told him he was investigating a
cold case involving burglaries from 1976. He showed defendant pictures of the victim,
but defendant stated that he did not recognize her. Defendant agreed to give cheek swabs
for a DNA sample. He also agreed to go for a drive. Toomey drove to the scene of the
murder, though the victim’s building had been replaced by a new building. Defendant
said he had never been in a building at that location, and had only been in the area 10
years previously when he used to recycle. Defendant was subsequently arrested.
       B. DNA Evidence
       Charles Morton, a criminalist, testified that he started working at the Institute for
Forensic Sciences in 1974. In 1978, the company divided itself into three separate
companies. Morton bought the criminalistics laboratory and operated it in conjunction
with the other laboratories, but as a separate company. He sold it to a company called
Forensic Analytical Systems (FAS) in 1996. His company’s case files and evidence were
then transferred to FAS’s laboratory in Hayward. During the transfer, all the evidence,
including materials at issue in this case, remained in a freezer, which was physically
transported from one facility to another, with no time for the contents to thaw.


                                              3
        On May 28, 1980, Stephens asked Morton to open a case file because he wanted to
bring in some evidence.
        On June 10, 1980, Morton received the evidence from Stephens. The evidence
consisted of three red-top test tubes with labels. The case was assigned to Michael
Grubb, a criminalist who worked for Morton at the time. After Grubb completed his
work on some of the tubes, he prepared some slides. The slides were made within a few
days and were put into a separate container and stored in the same freezer as the main
tubes. The material was kept in the same freezer from 1980 to 2003. Morton testified
that DNA evidence does not need to be frozen.
        Grubb testified that he analyzed the material received from Stephens over several
days and prepared a report. Two of the test tubes contained hairs with some fluid, and
one contained a portion of a swab also in some fluid. After examination, he found that
the material from all three tubes, which he mounted on three different slides, was
essentially all sperm with no indication of mixture with vaginal material. Grubb also
mounted the hairs onto slides. During his examination he used fresh, clean, smaller tubes
and slides, transferring specimens with new pipette each time to avoid contamination.
After his examination, the slides, tubes, and original evidence materials were packaged,
labeled, and placed in the freezer. None of the stains or mounting medium that he used
would have negatively impacted the ability to conduct a subsequent DNA analysis.
        On October 21, 2003, an FSA evidence technician released an envelope containing
the microscope slides prepared by Grubb to Pamela Wermes of the SFPD.
        On October 22, 2003, former SFPD criminalist Patrick Paton received the
evidence from Wermes. His job was to examine evidence for biological material that
might contain DNA. He removed the slides, three of which were broken, and repackaged
them.
        Matthew Gabriel, a former analyst at the SFPD crime lab, tested the slides for
DNA in 2004. He testified at trial as an expert witness in the area of forensic DNA
analysis. In conducting DNA analysis, an analyst will first remove a small sample of
DNA from the cellular material, such as white blood cells, semen, or saliva. The material


                                             4
will be subjected to a series of chemicals to produce clean, purified DNA. The next step
is to determine how much DNA is in the sample. In this case, Gabriel used a differential
extraction process to separate out the female cells from the male cells and to remove their
DNA. A type of DNA testing called polymerase chain reaction (PCR) analysis was then
conducted. This process generates multiple copies (amplifies) target segments of DNA.
These DNA profiles are then analyzed and interpreted.
       Gabriel testified that while prior mounting on a slide can physically affect a
specimen, it will not hinder the accuracy of a DNA analysis. Staining, lack of
refrigeration, or the presence of bacteria could degrade DNA, but these circumstances
would not change one DNA profile into another.
       Gabriel followed proper lab procedure in testing the samples in this case.
Safeguards were used to prevent contamination. The procedures he used for DNA
analysis and typing are accepted and followed by the forensic science community. He
generated DNA profiles from the samples he tested and generated a report based on the
data. His report, which was prepared in 2005, presented a profile of an unknown suspect.
The profile was not uploaded to the DNA database until 2009.
       Cherisse Boland is a supervising criminalist with the SFPD crime lab in the
forensic biology unit. She also testified as an expert in forensic DNA analysis. She tested
the victim’s panties in April of 2009. The underwear had numerous reddish brown stains
that tested positive for blood. She tested several areas of the panties for the presence of
sperm, including the crotch. The tests were negative for sperm.
       Boland also did DNA tests on reference samples taken from defendant’s oral
swabs and from swabs taken from the victim’s shirt. She compared the victim’s DNA
profile and the profile from defendant’s reference sample to the DNA profiles derived
from the slides made from the swabs originally taken by Stephens. Four of those slides
had already been analyzed by Gabriel. Boland analyzed a fifth sample, which was taken
from a vaginal slide prepared by Stephens in 1976. She followed all the standard lab
protocols for processing DNA samples. Within the sample she tested, there was a single
sperm donor whose DNA profile matched defendant. The chance of a randomly chosen


                                              5
individual having that same DNA profile is 1 in 708 million African American
individuals, 1 in 4.9 million Caucasian individuals, 1 in 29 million Hispanic individuals,
and 1 in 52 million Asian individuals.
       SFPD criminalist Mignon Dunbar reevaluated the testing done by Boland and
Gabriel. She noted that one of the samples reflected a very small peak that was present at
one of the copied sections of DNA. This peak could indicate a possible minor donor at
one location in the testing. That peak could also be explained by “stutter” in the machine,
or error in the amplification process of the DNA. These peaks appeared at a much lower
concentration of DNA than the material donated by defendant. Dunbar conceded that this
could have been evidence of more than one sexual assailant.
       Dunbar also did a more sensitive statistical calculation, which eliminated the
victim’s DNA. This yielded probability calculations for a match of the DNA found on
the victim and matched to defendant of 1 in 24 trillion Caucasians, 1 in 43 trillion African
Americans, one in 53 trillion Hispanics, and 1 in 117 trillion Asians.
       C. Prior Rape Conviction
       The jury was given six pages of a transcript from a preliminary hearing conducted
in 1968 in a case in which defendant was charged with rape. In the transcript, the
complaining witness (who was deceased by the time of this trial) recalled that one
afternoon at about 2:30 p.m., she was in her apartment when she answered a knock at the
door. Defendant was at the door. She had seen him about a half hour before when the
door to her apartment was open. He asked her if she recognized a handkerchief and
walking stick that he held. When she said she did not, he said, “Look again.” As she
tried to close the door, he pushed his way into the apartment. He walked around her
apartment and then raped her twice.
       At trial, it was stipulated that the complaining witness identified defendant at the
preliminary examination and that he was convicted of rape by force and violence on
June 13, 1969. The parties also stipulated that defendant was living in San Francisco and
was free from custody between September 17, 1975, through August 3, 1976, and that the
victim (Read) was not married.


                                             6
II.    The Defense
       Judy Malmgren, a forensic nurse examiner and registered nurse, testified as an
expert in sexual assault examinations and forensic nursing. She reviewed the documents
in this case. She found no evidence in the report indicating there had been penetration of
the victim’s vagina or anus. The lack of injuries may or may not indicate that the sex was
consensual. The sperm found in the rectum could have been pushed in by the examiner
when he took the swabs. However, sound medical practice would have been to avoid
pushing sperm into the rectum while collecting the swabs.
       DNA analysis expert Keith Inman reviewed Dunbar’s report, as well as the raw
data from this case. When he looked at all the DNA data he received, he was able to find
evidence of other alleles not belonging to defendant or the victim. He opined that one
data peak in particular (the same peak Dunbar interpreted as a possible stutter) did not
appear to be static, echo, or some other artifact, because it showed up in almost all of the
samples that were analyzed. Other low-level allele data reinforced the inference that
there was an additional donor to the samples. The other person’s DNA could have been
contributed by contamination in the laboratory, but Inman did not think that possibility
was likely. In arriving at his conclusions, Inman used an analytical threshold that is
lower than the threshold used by Dunbar, which is how Inman arrived at some of the
peaks he testified to. Most labs set the threshold higher in order to be conservative, a
practice that Inman criticized because it can cause real alleles to be missed.
       SFPD inspector Ronan Shouldice testified that he analyzed two latent prints that
had been taken from the crime scene to see if they matched defendant. Neither print was
a match.
III.   The Verdict and Sentencing
       On October 8, 2013, the jury found defendant guilty of first degree murder. The
jury also found the knife-use allegation to be true. The trial court later struck the knife-
use allegation on the People’s motion. Defendant was sentenced to life in prison with the
possibility of parole.



                                              7
                                        DISCUSSION
I.       Admission of Evidence of the 1968 Rape
         A. Background
         Defendant challenges the trial court’s ruling admitting evidence of the 1968 rape
and his resulting 1969 conviction. He asserts the evidence of the prior offense was more
prejudicial than probative. We disagree.
         The prosecutor moved under both Evidence Code sections 1101, subdivision (b),
and 11081 to introduce evidence concerning defendant’s 1969 rape conviction to show he
was disposed or inclined to commit sexual offenses, as well as to prove identity, motive,
and intent. Defendant moved to exclude such evidence. Before trial, the trial court and
counsel engaged in numerous discussions, supported by briefing, on whether two
categories of evidence would be admitted against defendant as prior sexual misconduct.
In addition to the rape charge that led to the conviction, the prosecution proffered a
psychologist’s report from 1968, which reported that defendant had admitted to
committing five forcible sexual offenses. The court ultimately declined to admit
evidence of this report.
         The trial court initially determined evidence of the rape conviction would be more
prejudicial than probative in the absence of proof that a rape had occurred in the present
case. However, if substantial evidence was introduced during trial that would allow a
jury to find the current case involved a forcible sexual offense, then the court would
consider admission under sections 1101, subdivision (b), and 1108. The court would also
consider all the factors contained in section 352 to determine whether the People could
introduce the prior conviction. However, the court indicated the evidence would likely
be admissible because the conviction was not remote, the prior sexual offense was
relevant to propensity, the degree of certainty was high because he had admitted the prior
offense by pleading guilty, and the evidence would not be likely to confuse, mislead, or
distract the jurors from their main inquiry. The court also noted the prior offense was


1
    All further statutory references are to the Evidence Code except as otherwise stated.

                                               8
very similar to the charged offense, and opined that the impact of the earlier rape would
not be more prejudicial than the facts surrounding the current crime. As noted above,
evidence of the prior rape conviction was introduced at trial.
       B. General Principles
       Generally, evidence of other crimes or misconduct is inadmissible when it is
offered to show that a defendant had the criminal disposition or propensity to commit the
crimes charged. (§ 1101, subd. (a).) However, evidence of other crimes or misconduct
by a defendant is admissible if it tends to “ ‘logically, naturally, and by reasonable
inference . . . establish any fact material for the people, or to overcome any material
matter sought to be proved by the defense.’ ” (People v. Peete (1946) 28 Cal.2d 306,
315.) Section 1101, subdivision (b), codifies this exception to the general rule of
inadmissibility by providing for the admission of such evidence “when relevant to prove
some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake or accident, or whether a defendant in a prosecution for an unlawful
sexual act . . . did not reasonably and in good faith believe that the victim consented)
other than [the defendant’s] disposition to commit such [crimes or bad acts].”
       “ ‘Evidence of uncharged crimes is admissible to prove identity, common design
or plan, or intent only if the charged and uncharged crimes are sufficiently similar to
support a rational inference of identity, common design or plan, or intent.’ ” (People v.
Foster (2010) 50 Cal.4th 1301, 1328.) In order to be admissible to prove the existence of
a common design or plan, evidence of uncharged misconduct must demonstrate “ ‘not
merely a similarity in the results, but such a concurrence of common features that the
various acts are naturally to be explained as caused by a general plan of which they are
the individual manifestations.’ ” (People v. Ewoldt (1994) 7 Cal.4th 380, 402 (Ewoldt).)
       Section 1108 allows the admission of uncharged sexual acts to show the
defendant’s propensity to commit sexual offenses. The section is a significant departure
from the general rule that evidence of propensity to commit crime is not admissible.
(People v. Villatoro (2012) 54 Cal.4th 1152, 1159–1160.) The admissibility of such
evidence is dependent on the trial court’s review of the proposed testimony in light of


                                              9
section 352 to weigh its probative value against its prejudicial effect. (People v. Loy
(2011) 52 Cal.4th 46, 62 (Loy); People v. Falsetta (1999) 21 Cal.4th 903, 917 (Falsetta).)
Section 1108, subdivision (a) provides that “[i]n a criminal action in which the defendant
is accused of a sexual offense, evidence of the defendant’s commission of another sexual
offense or offenses is not made inadmissible by Section 1101, if the evidence is not
inadmissible pursuant to Section 352.” Section 1108, subdivision (a) allows admission,
in a criminal action in which the defendant is accused of one of a list of sexual offenses,
of evidence of the defendant’s commission of another listed sexual offense that would
otherwise be made inadmissible by section 1101, subdivision (a). The prior and charged
offenses are considered sufficiently similar if they are both sexual offenses enumerated in
section 1108.2 (People v. Frazier (2001) 89 Cal.App.4th 30, 41.)
       In other words, evidence of defendant’s prior rape offense and conviction is
admissible to prove he has a propensity to commit the charged offense of murder in the
course of rape unless such evidence is excluded as more prejudicial than probative under
section 352. (§ 1108, subd. (a).) As our Supreme Court stated in Falsetta, supra,
21 Cal.4th 903, in balancing such section 1108 evidence under section 352, “trial judges
must consider such factors as its nature, relevance, and possible remoteness, the degree of
certainty of its commission and the likelihood of confusing, misleading, or distracting the
jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial
impact on the jurors, the burden on the defendant in defending against the uncharged
offense, and the availability of less prejudicial alternatives to its outright admission, such
as admitting some but not all of the defendant’s other . . . offenses, or excluding
irrelevant though inflammatory details surrounding the offense.” (Falsetta, at p. 917.)




2
  Section 1108 applies to this case: “Because a murder during the course of a rape
involves conduct, or at least an attempt to engage in conduct, proscribed by Penal Code
section 261, we conclude that a defendant accused of such a murder is accused of a
sexual offense within the meaning of section 1108.” (People v. Story (2009) 45 Cal.4th
1282, 1285.)

                                              10
        On appeal, we review the admission of other acts or crimes evidence under either
section 1101 or section 1108 for an abuse of the trial court’s discretion. (People v. Lewis
(2009) 46 Cal.4th 1255, 1286.) The determination as to whether the probative value of
such evidence is substantially outweighed by the possibility of undue consumption of
time, unfair prejudice or misleading the jury is “entrusted to the sound discretion of the
trial judge who is in the best position to evaluate the evidence.” (People v. Fitch (1997)
55 Cal.App.4th 172, 183.) We will not find that a court abused its discretion in admitting
such other acts evidence unless its ruling “ ‘falls outside the bounds of reason.’ ” (People
v. Kipp (1998) 18 Cal.4th 349, 371; see People v. Ochoa (2001) 26 Cal.4th 398, 437–
438.)
        C. Analysis
           1. No Abuse of Discretion
        On appeal, defendant contends the trial court abused its discretion in admitting
evidence of his 1969 rape conviction. He specifically argues such evidence was more
prejudicial than probative under section 352,3 relying on People v. Harris (1998)
60 Cal.App.4th 727 (Harris). He also stresses that because the evidence of the prior
sexual offense was used to establish propensity, under People v. Smallwood (1986)
42 Cal.3d 415 the probative value of such evidence “must be extraordinarily high to be
admissible.” We conclude there was no abuse of discretion.
        Harris is distinguishable. In Harris, a nurse was accused of fondling two of his
patients. (Harris, supra, 60 Cal.App.4th at pp. 730–733.) The appellate court found the
trial court erred in admitting evidence implicating him in a decades-old incident in which
the victim was beaten and sexually exploited during a ferocious attack. (60 Cal.App.4th
at pp. 733–735.) Harris’s facts are entirely different from those here. There, the prior
offense was forcible and the evidence of it was “inflammatory in the extreme.” (Id. at


3
 Section 352 provides: “The court in its discretion may exclude evidence if its probative
value is substantially outweighed by the probability that its admission will (a) necessitate
undue consumption of time or (b) create substantial danger of undue prejudice, of
confusing the issues, or of misleading the jury.”

                                             11
p. 738, italics omitted.) The charged sexual offenses were, by contrast, not forcible but
involved breaches of trust. Thus the charged offenses were “of a significantly different
nature and quality than the violent and perverse attack on a stranger that was described to
the jury.” (Ibid.) Moreover, the prior offense occurred 23 years before the charged
offenses, a factor the appellate court found weighed in favor of exclusion. (Id. at p. 739.)
Nothing in Harris compels the conclusion that the trial court here abused its discretion in
admitting the evidence of defendant’s prior conviction.
       We also disagree with defendant’s assertion that the prejudicial nature of the
evidence outweighed its probative value. The prejudice with which section 352 is
concerned is the creation of emotional bias against the defendant through evidence with
little probative value, “not the prejudice or damage to a defense that naturally flows from
relevant, highly probative evidence.” (People v. Karis (1988) 46 Cal.3d 612, 638.)
“ ‘[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant’s
case. The stronger the evidence, the more it is “prejudicial.” The “prejudice” referred to
in Evidence Code section 352 applies to evidence which uniquely tends to evoke an
emotional bias against the defendant as an individual and which has very little effect on
the issues. In applying section 352, “prejudicial” is not synonymous with
“damaging.” ’ ” (Ibid.)
       As our Supreme Court stated in Loy, supra, 52 Cal.4th 46 at p. 62, “[e]vidence of
previous criminal history inevitably has some prejudicial effect. But under section 1108,
this circumstance alone is no reason to exclude it. ‘[S]ection 1108 affects the practical
operation of . . . section 352 balancing “ ‘because admission and consideration of
evidence of other sexual offenses to show character or disposition would be no longer
treated as intrinsically prejudicial or impermissible. Hence, evidence offered under
[section] 1108 could not be excluded on the basis of [section] 352 unless “the probability
that its admission will . . . create substantial danger of undue prejudice” . . . substantially
outweighed its probative value concerning the defendant’s disposition to commit the
sexual offense or offenses with which he is charged and other matters relevant to the
determination of the charge. As with other forms of relevant evidence that are not subject


                                              12
to any exclusionary principle, the presumption will be in favor of admission.’ ”
[Citation]’ [Citation.]”
       Here, the probative value of the evidence was substantial. As in the prior crime, it
was inferable that defendant had observed a single woman alone in an apartment,
somehow forced his way in without having to break through the door or window, and
committed a rape behind the closed door of the apartment. Evidence of the
circumstances surrounding his prior conviction for rape was also very relevant to the
issue of whether the sexual conduct was nonconsensual. Because defendant claimed at
trial that the sexual conduct was consensual and unrelated to the victim’s murder, and
because there were no living witnesses to the events surrounding the crime, the character
of the sexual activity was plainly in issue.
       As we have mentioned, the trial court held a lengthy hearing on the admissibility
of the prior conviction. The court recognized its responsibility to apply the section 352
weighing process and did so at some length. The court considered the remoteness of the
prior act, whether it was sufficiently similar, the length of time necessary to present the
evidence, as well as questions of relevance and potential prejudice.
       To the extent defendant suggests section 1108 is unconstitutionally applied in this
case because it allowed the jury to convict him solely on propensity evidence, we note
that in Falsetta, the Supreme Court rejected the argument the Legislature may not
constitutionally permit a jury to consider the defendant’s propensity to commit a
particular type of crime in deciding the defendant’s guilt of a current offense of the same
type of crime: “The admission of relevant evidence will not offend due process unless
the evidence is so prejudicial as to render the defendant’s trial fundamentally unfair.”
(Falsetta, supra, 21 Cal.4th at p. 913.) No due process violation is shown.4


4
 Defendant also asserts the evidence was inadmissible under section 1101, subdivision
(b), because “there is no proof of a scheme or plan of any type in the Read encounter”
because “[w]e do not know how the attacker acted in the Read case, so we cannot say if it
bore any similarities to the [prior] matter.” However, the jury could have inferred that
defendant committed the charged offense based on a common plan of forcibly entering

                                               13
          2. The Error, If Any, Was Harmless
       Even if the trial court did abuse its discretion in admitting the prior conviction, we
would find the error to be harmless. Error in the admission of prior conviction evidence
is reviewed under the standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836
(Watson). (People v. Anderson (1987) 43 Cal.3d 1104, 1137.) Under the Watson
standard, “[t]he reviewing court must ask whether it is reasonably probable the verdict
would have been more favorable to the defendant absent the error.” (People v. Partida
(2005) 37 Cal.4th 428, 439.) In applying this standard, we examine “ ‘the entire cause,
including the evidence.’ ” (Watson, at p. 836.)
       Defendant’s theory that the victim had consensual sex with him, and then was
killed shortly thereafter by someone else, does not fit with the evidence of the crime. The
victim was found with 13 stab wounds in a pool of blood on the floor of her apartment.
Her hands were tied behind her back. Her pubic area was covered by defendant’s sperm.
The arrangement of the clothing on her body clearly suggests a sexual assault took place.
While the stab wounds on her upper body went through her clothing, there were two stab
wounds near her left knee but no cuts in her jeans. This established conclusively that she
was stabbed after her pants were removed. An analysis of her panties showed no
presence of sperm, suggesting the stabbing occurred before the victim had the
opportunity to pull her pants back on. In sum, there was substantial evidence indicating
that the murder occurred during the course of a sexual assault committed by defendant.
       While defendant argues that the DNA analysis showed evidence of a third
person’s DNA, that evidence was inconclusive. The evidence of possible weak spikes at
a very few loci was vague evidence of the possible presence of a third party. Further,
given that the physical specimens were gathered in 1976, the faint evidence of a third
party could be explained by inadvertent contamination. In 1976, there was no understood




apartments of women who were alone and then sexually assaulting them. The evidence
of his prior crime established that it was sufficiently similar to the charged offenses to
authorize its admission for this purpose. (See Ewoldt, supra, 7 Cal.4th at pp. 402–407.)

                                             14
need to observe the strict laboratory protocols that are currently in place, because the
gathering of DNA evidence was not a realistic possibility at that time.5
       With respect to the arguments made by the prosecutor tying the circumstances of
the 1968 rape to the present case, any potential prejudice was cured here by the court’s
instructions to the jury that they must decide the facts using only the evidence presented
at trial, that nothing the attorneys said was evidence, including their arguments, and that
they must follow the law as given to them by the court. We presume that the jury
followed these instructions. (People v. Boyette (2002) 29 Cal.4th 381, 436; People v.
Clair (1992) 2 Cal.4th 629, 663, fn. 8.) We conclude it is not reasonably probable the
verdict would have been more favorable to the defendant absent the admission of the
evidence of the prior rape and his conviction.6
II.    CALCRIM No. 1191
       Defendant argues that the giving of CALCRIM No. 11917 deprived him of due
process of law because it allowed him to be convicted, at least in part, on evidence


5
  Defendant notes a foreign hair was found on the victim’s thigh. We agree with the
People that because her body was found on the floor, the presence of one hair was
inconclusive.
6
  We reject defendant’s claim that admission of evidence of the prior conviction must be
reviewed under the standard set forth in Chapman v. California (1967) 386 U.S. 18, 24.
For the reasons stated above, the purported error in admitting evidence of defendant’s
prior uncharged conduct did not result in a fundamentally unfair trial implicating his due
process or other federal constitutional right.
7
  CALCRIM No. 1191 provides: “The People presented evidence that the defendant
committed the crime[s] of ___________________ <insert description of offense[s]> that
(was/were) not charged in this case. (This/These) crime[s] (is/are) defined for you in
these instructions. [¶] You may consider this evidence only if the People have proved by
a preponderance of the evidence that the defendant in fact committed the uncharged
offense[s]. Proof by a preponderance of the evidence is a different burden of proof from
proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if
you conclude that it is more likely than not that the fact is true. [¶] If the People have not
met this burden of proof, you must disregard this evidence entirely. [¶] If you decide
that the defendant committed the uncharged offense[s], you may, but are not required to,
conclude from that evidence that the defendant was disposed or inclined to commit
sexual offenses, and based on that decision, also conclude that the defendant was likely to

                                             15
proven by a preponderance of the evidence. Defendant’s counsel recognizes this issue
has been resolved by our Supreme Court. Counsel raises the issue here to preserve any
remedies defendant may have in the federal courts.
       In People v. Reliford (2003) 29 Cal.4th 1007, 1011–1012, the court upheld
CALJIC No. 250.01. The appellate courts have held that CALCRIM No. 1191 is
indistinguishable from CALJIC No. 250.01. (People v. Johnson (2008) 164 Cal.App.4th
731, 739–740; People v. Wilson (2008) 166 Cal.App.4th 1034, 1052–1053; People v.
Cromp (2007) 153 Cal.App.4th 476, 479–480.) Defendant does not contend that
CALCRIM No. 1191 is distinguishable from CALJIC No. 250.01. He also recognizes
we are bound to follow our Supreme Court’s decision on this issue. (Auto Equity Sales,
Inc. v. Superior Court (1962) 57 Cal.2d 450). We find no error in the use of CALCRIM
No. 1191 in this case.
III.   Evidence Derived From the 1976 Autopsy
       Defendant claims he was deprived of his right to confrontation because he could
not cross-examine the medical examiner who performed the victim’s autopsy. Stephens
died prior to trial and Hart testified concerning his autopsy report. The trial court
admitted the entire autopsy report into evidence, redacting the diagnosis and cause of
death. Defendant claims the autopsy report was not admissible, and asserts expert
testimony based on the autopsy report and on the specimens collected from the victim
also was not admissible because the witnesses repeated testimonial statements made by
Stephens in his autopsy report. We conclude that because the redacted autopsy report did
not include any testimonial statements, there was no confrontation clause violation.



commit [and did commit] ___________________ <insert charged sex offense[s]>, as
charged here. If you conclude that the defendant committed the uncharged offense[s],
that conclusion is only one factor to consider along with all the other evidence. It is not
sufficient by itself to prove that the defendant is guilty of ___________________ <insert
charged sex offense[s]>. The People must still prove (the/each) (charge/ [and]
allegation) beyond a reasonable doubt. [¶] [Do not consider this evidence for any other
purpose [except for the limited purpose of ___________________ <insert other
permitted purposes, e.g., determining the defendant’s credibility>].].

                                             16
          In Crawford v. Washington (2004) 541 U.S. 36 (Crawford), the high court held
that a criminal defendant’s Sixth Amendment right to confrontation precludes the
admission of testimonial statements by a witness who is not subject to cross-examination
at trial, even if those statements fall within an exception to the hearsay rule. In Melendez-
Diaz v. Massachusetts (2009) 557 U.S. 305 (Melendez-Diaz), the court applied this
holding to preclude the prosecution from relying on certificates setting forth the results of
scientific tests on suspected controlled substances, holding that the prosecution was
obligated, instead, to produce the lab analysts who conducted the tests so that the defense
could cross-examine them. In Bullcoming v. New Mexico (2011) 564 U.S. __ [131 S.Ct.
2705, 2717; 180 L.Ed.2d 610], the court held that testimony of a laboratory analyst
parroting the results of a blood alcohol test he did not perform or observe, together with
admission of a formalized report, violated the defendant’s confrontation rights. In
Williams v. Illinois (2012) 567 U.S. __ [132 S.Ct. 2221, 2243–2244; 183 L.Ed.2d 89], the
court held that testimony by a police forensic biologist about a DNA match that relied in
part on a DNA profile generated at another laboratory did not violate the confrontation
clause.
          In the present case, defendant relies on Crawford, supra, 541 U.S. 36, and
Melendez-Diaz, supra, 557 U.S. 305, in arguing that the trial court committed reversible
error in admitting into evidence Stephens’s autopsy report, the specimens collected from
the victim’s body and the slides made from the specimens, as well as the expert
witnesses’ testimony made in reliance on the autopsy report and specimens. Defendant’s
arguments lack merit.
          In People v. Dungo (2012) 55 Cal.4th 608 (Dungo), our Supreme Court
considered Crawford and its progeny, and reasoned that “statements in an autopsy report
describing a nontestifying pathologist’s observations about the condition of the victim’s
body are not testimonial because the ‘primary purpose’ of recording such facts does not
relate to a criminal investigation. [Citation.] [The court] also described these statements,
which ‘merely record objective facts,’ as being ‘less formal than statements setting forth
a pathologist’s expert conclusions’ about the victim’s cause of death.” (People v.


                                              17
Trujeque (2015) 61 Cal.4th 227, 276, italics omitted.) The Dungo court held that this
type of testimony was properly admitted, notwithstanding Crawford, supra, 541 U.S. 36,
and Melendez-Diaz, supra, 557 U.S. 305. (Dungo, supra, 55 Cal.4th at p. 621.)
          The Dungo court majority reasoned that the statements in an autopsy report
describing the condition of the body “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.” (Dungo, supra, at p. 619.) The court also noted that “[t]he usefulness of
autopsy reports . . . is not limited to criminal investigation and prosecution; such reports
serve many other equally important purposes.” (Id. at p. 621.) Thus, the court held that
the testifying pathologist’s description of the victim’s injuries, which was based on the
autopsy report, was admissible even though the autopsy had been performed by a
different physician who was not subject to cross-examination. (Ibid.)
          In People v. Leon (2015) 61 Cal.4th 569, the Supreme Court reiterated that Dungo,
supra, 55 Cal.4th 608, found no confrontation clause violation when a testifying
pathologist expressed forensic opinions based on the medical observations in the
nontestifying pathologist’s autopsy report. The court noted, however, that the report
itself had not been admitted into evidence in Dungo. (Leon, at p. 604.) In Leon, the
entire autopsy report was admitted, and the testifying pathologist’s testimony recited the
observations and conclusions contained therein. (Ibid.) Rather than deciding whether
admission of the report violated the defendant’s confrontation right, the court held that
even if the testimony and report were erroneously admitted, the error was harmless
beyond a reasonable doubt because the cause of the victim’s death was undisputed.
(Ibid.)
          While the Leon court did not directly rule on the admissibility of autopsy reports,
the court did affirm that the admission of autopsy photographs does not violate the
confrontation clause. The court reasoned: “Hearsay is defined as an out-of-court
‘statement.’ [Citation] A statement is defined for this purpose as an ‘oral or written
verbal expression or . . . nonverbal conduct of a person’ intended as a substitute for oral


                                               18
or written expression. [Citation.] Only people can make hearsay statements; machines
cannot.” (Leon, supra, 61 Cal.4th at p. 603, first italics in original, second and third
italics added.) Further, the court explained, “[i]t is also clear that testimony relating the
testifying expert’s own, independently conceived opinion is not objectionable, even if
that opinion is based on inadmissible hearsay. [Citations.] A testifying expert can be
cross-examined about these opinions. The hearsay problem arises when an expert simply
recites portions of a report prepared by someone else, or when such a report is itself
admitted into evidence. In that case, out-of-court statements in the report are being
offered for their truth. Admission of this hearsay violates the confrontation clause if the
report was created with sufficient formality and with the primary purpose of supporting a
criminal prosecution.” (Ibid.) As to autopsy reports themselves, the Leon court noted “a
majority of this court [in Dungo, supra, 55 Cal.4th 608] has distinguished between
statements that set forth anatomical and physiological observations and those that relate
the pathologist’s conclusions as to cause of death.” (Ibid.)
       While defendant asserts the confrontation clause bars essentially all of the DNA
evidence admitted in this case, Leon affirms the principle that physical evidence is
nontestimonial. Additionally, the confrontation clause was not implicated by the expert
witnesses’ testimony because they were all subject to cross-examination at trial. Further,
the autopsy report itself, unlike the report at issue in Leon, supra, 61 Cal.4th 569, did not
contain testimonial statements because Stephens’s opinions regarding the victim’s
diagnosis and cause of death were redacted. Accordingly, defendant’s confrontation
clause argument fails.
       We also reject defendant’s argument that the chain of custody testimony was
inadequate to provide a foundation for the specimen swabs. “In a chain of custody claim,
‘ “[t]he burden on the party offering the evidence is to show to the satisfaction of the trial
court that, taking all the circumstances into account including the ease or difficulty with
which the particular evidence could have been altered, it is reasonably certain that there
was no alteration. [¶] The requirement of reasonable certainty is not met when some
vital link in the chain of possession is not accounted for, because then it is as likely as not


                                              19
that the evidence analyzed was not the evidence originally received. Left to such
speculation the court must exclude the evidence. [Citations.] Conversely, when it is the
barest speculation that there was tampering, it is proper to admit the evidence and let
what doubt remains go to its weight.” [Citations.]’ [Citations.] The trial court’s exercise
of discretion in admitting the evidence is reviewed on appeal for abuse of discretion.”
(People v. Catlin (2001) 26 Cal.4th 81, 134.)
       The only putative weakness in the chain of custody was Stephens’s collection,
labeling, and storage of the original evidence. Before trial, however, Hart testified
extensively as to the standard methods of collecting evidence and keeping records in
1976, and established that those methods were identical to ones currently in use. Once
evidence was admitted showing that Stephens performed the autopsy and that all of the
specimen evidence was labeled in accordance with standard protocol, the initial chain of
custody was established. Defendant does not raise any other issues with respect to the
chain of custody of the DNA evidence.
                                     DISPOSITION
       The judgment is affirmed.




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                            _________________________
                            DONDERO, J.


We concur:


_________________________
HUMES, P.J.


_________________________
MARGULIES, J.




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A140801




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