Filed 2/25/13 P. v. Gary CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F063769
    Plaintiff and Respondent,
                                                                                (Super. Ct. No. 1256526)
    v.

BUDDY RAY GARY,                                                                          OPINION
    Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Stanislaus County. John D.
Freeland, Judge.
         Matthew H. Wilson, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Charles A. French and John G.
McLean, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
       Following a 2011 jury trial, appellant Buddy Ray Gary was convicted of a first
degree felony murder that occurred in 1976. (Pen. Code, § 187, subd. (a).)1 The trial
court sentenced Gary to a prison term of seven years to life, the allowed sentence in 1976.
The sentence was ordered to run consecutively to a 25-year-to-life prison term that Gary
was already serving.
       On appeal, we reject Gary‟s contention that he was denied his right to confront
adverse witnesses in violation of the Sixth Amendment to the United States Constitution.
We agree with his contention that the imposition of fines under sections 1202.4 and
1202.45 violates the prohibition against ex post facto laws and the matter must be
reversed and remanded for a restitution hearing as described in this opinion. In all other
respects, we affirm.
                   FACTS AND TRIAL COURT PROCEEDINGS
       On the morning of August 30, 1976, Florence Millard, a widow in her 80‟s, was
found semiconscious and crying in the hallway of her home, her hands tied and her face
beaten beyond recognition. She had a nightgown and bloody bra around her neck. There
was blood spattered on the walls in the hallway and on the floor in the bedroom. The
metal lattice was torn away from the front screen door; a hole was punched in the screen
on the back door and a tool had been used to unlock it. Millard died at the hospital on
September 11, 1976.
       Homicide Detective Elvin Thomason, who worked on the case in 1976 and has
now retired, testified that he responded to the scene of the assault and then went to the
hospital where Millard was taken. He described Millard‟s face as badly beaten and
swollen, with two black eyes. She had a two-inch cut on the right side of her chin. He
was not able to observe any other parts of her body. Thomason visited Millard at the
hospital on several subsequent occasions before she died, each time she was unconscious.
1      Further statutory references are to the Penal Code unless otherwise stated.



                                             2.
       During the course of his subsequent investigation, Detective Thomason obtained a
diamond ring from a local pawn shop. The officer suspected the ring came from
Millard‟s house, and Gary became a suspect based on some unnamed association with the
ring. But Gary was just one of four or five suspects at the time, and the case remained
unsolved.
       In 2007, Detective Craig Grogan, assigned to cold cases, learned about a box of
evidence from this case. Grogan sent a number of those items in for DNA testing,
including a throw rug Millard was found lying on and recovered from the scene. At some
point, Grogan met with Gary and took a buccal swab from him. DNA from a semen stain
on the rug was a match to the DNA sample obtained from Gary. The odds that the
sample was not Gary‟s DNA were one in 410 quintillion.
       Dr. Ernoehazy, the coroner who performed the autopsy on Millard, was not alive
at the time of trial. But a forensic pathologist, Dr. Sung-Ook Baik, testified that he
reviewed the photographs of the victim in life and at the scene of the attack, the transcript
of the preliminary hearing, the statements of Millard‟s neighbor, an investigative report
prepared on the day of the attack, the victim‟s death certificate which stated that Millard
died of bronchopneumonia and atelectasis of the lung, the 1976 observations and
notations of the coroner who performed the autopsy, and statements made by a Dr.
William Ricketts. The original coroner‟s diagnosis and conclusions were excluded from
the report reviewed by Dr. Baik.
       Dr. Baik‟s review of the above mentioned documents revealed that when Millard
was found, she was semicomatose and had suffered a cerebral concussion. At the time of
her death, she had bruises on both sides of her face, her left eye, her temples, the right
side of her neck, the front and back of her head, her left shoulder and her upper
extremities. She had a fracture on the left facial bone, three fractured ribs on the left side,
five fractured ribs on the right side, and a fractured sternum. There were hemorrhages on



                                              3.
the front, back and both sides of her head. She had bronchopneumonia and a collapsed
left lung.
       Dr. Baik noted from the autopsy report that the victim had had severe
arteriosclerotic coronary artery disease and had previously undergone surgery for an
abdominal aortic aneurysm related to her cardiovascular disease. The autopsy made clear
that there was no damage to the surgical repair. According to Dr. Baik, cardiovascular
disease was not unusual for someone 81 years of age.
       Based on his review, Dr. Baik opined that Millard died of blunt-force injury to the
head, face, chest, and upper extremities, which was complicated by bronchopneumonia.
Dr. Baik opined that arteriosclerotic cardiovascular disease was a significant finding, but
was not a contributing factor in Millard‟s death. According to Dr. Baik, it was not
unusual for a hospitalized elderly person to develop pneumonia because they have a
reduced immune system, which is further reduced by trauma, making them more
susceptible to infection.
       The defense presented no witnesses, but Gary‟s defense was that there was
insufficient evidence to prove that he caused Millard‟s death, due to her advanced age,
underlying health problems, and the discrepancies or uncertainties in the medical reports.
Defense counsel urged the jury to discount Dr. Baik‟s testimony since he had to rely on
documents prepared by others many years earlier.
                                      DISCUSSION
I.     RIGHT TO CONFRONT WITNESSES
       Gary contends that he was prejudicially denied his Sixth Amendment right to
confront witnesses against him when the trial court allowed Dr. Baik, who did not
perform the autopsy on Millard, to use the observations and notations from the autopsy
report to testify about the cause of her death. He also contends that Dr. Baik improperly
relied on a police report, which included a statement by Dr. Ricketts concerning the
extent of Millard‟s injuries. In support of his position, Gary relies on several decisions of

                                             4.
the United States Supreme Court, commencing with Crawford v. Washington (2004)
541 U.S. 36 (Crawford). We will discuss Crawford, and its progeny, and determine that
Dr. Baik‟s testimony did not abridge Gary‟s confrontation rights.
       Procedural Background
       Gary was charged with the first degree murder of Millard. Before trial, the
prosecution asked that pathologist Dr. Baik be allowed to testify because the original
pathologist, who conducted the autopsy 35 years earlier, had died. The prosecution
argued that Dr. Baik would not have access to the original pathologist‟s autopsy report,
but would instead have reviewed the preliminary hearing transcript, all exhibits admitted
at the preliminary hearing, the death certificate, various photographs, and police reports.
The prosecution stated that, from that material, Dr. Baik would testify that the cause of
death was pneumonia, which was “secondary” to the injuries sustained in the original
assault. Defense counsel objected to the evidence based on the then recent case of
Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305 (Melendez-Diaz). Defense counsel
argued that, if Dr. Baik looked at “slides, specimens [and] things of that nature, that one‟s
thing. But if he‟s relying on, again, somebody else‟s verbiage, I don‟t believe that‟s
sufficient.” Later, defense counsel again voiced objection to Dr. Baik‟s testimony
derived from reports prepared by others and that were not based on his own direct
observation of “slides, photos [and] medical records.”
       Following an Evidence Code section 402 hearing, in which Dr. Baik testified that
he had in fact read the autopsy report but not the original pathologist‟s findings or
conclusions, the trial court admitted the testimony. At trial, Dr. Baik testified that he had
reviewed the evidence and testimony from the preliminary hearing, including the
statements of Dr. Ricketts, along with the autopsy report, but minus the original
pathologist‟s findings and conclusions. With that information, Dr. Baik opined that the
cause of Millard‟s death was due to multiple blunt force injury, complicated by
pneumonia and arteriosclerosis.

                                             5.
       Applicable Law and Analysis
       In Crawford, supra, 541 U.S. at page 38, the Supreme Court considered the
admissibility at trial of a tape-recorded statement made by the defendant‟s wife to police.
Because the witness did not testify at trial due to a state marital privilege statute, the
defendant argued that admission of his wife‟s out-of-court statement violated his federal
constitutional right under the Sixth Amendment to confront witnesses offering testimony
against him. (Id. at p. 40.) The Supreme Court agreed, stating that “[t]estimonial
statements of witnesses absent from trial [may be] admitted only where the declarant is
unavailable, and only where the defendant has had a prior opportunity to cross-examine.”
(Id. at p. 59, fn. omitted.)
       The two-prong Crawford test of witness unavailability and prior opportunity to
cross-examine applies only to statements that are “testimonial,” not nontestimonial
hearsay. (Crawford, supra, 541 U.S. at p. 68.) Although the Crawford court declined to
“spell out a comprehensive definition of „testimonial,‟” it explained that “[w]hatever else
the term covers, it applies at a minimum to prior testimony at a preliminary hearing,
before a grand jury, or at a former trial; and to police interrogations. These are the
modern practices with closest kinship to the abuses at which the Confrontation Clause
was directed.” (Ibid.)
       In Davis v. Washington (2006) 547 U.S. 813, 817 (Davis), the Supreme Court
considered whether statements made to law enforcement personnel during a 911 call or at
a crime scene are “testimonial” and thus subject to the requirements of the Sixth
Amendment‟s Confrontation Clause. The court concluded that “[s]tatements are
nontestimonial when made in the course of police interrogation under circumstances
objectively indicating that the primary purpose of the interrogation is to enable police
assistance to meet an ongoing emergency,” but “[t]hey are testimonial when the
circumstances objectively indicate that there is no such ongoing emergency, and that the



                                               6.
primary purpose of the interrogation is to establish or prove past events potentially
relevant to later criminal prosecution.” (Id. at p. 822, fn. omitted.)
       In Melendez-Diaz, supra, 557 U.S. 305, the United States Supreme Court
addressed whether notarized certificates by lab analysts describing the existence and
quantity of contraband (cocaine) in bags found in the defendant‟s possession were
“testimonial,” making their admission into evidence violative of the Confrontation
Clause. The certificates were prepared nearly a week after the tests of the contraband
were performed. (Id. at p. 315.) The court concluded that the certificates, which
constituted affidavits, fell within the “„core class of testimonial statements‟” proscribed
by Crawford (Melendez-Diaz, supra, at p. 310), and that they were “functionally
identical to live, in-court testimony, doing „precisely what a witness does on direct
examination.‟ [Citation.]” (Id. at pp. 310-311.) The court therefore held that “[a]bsent a
showing that the analysts were unavailable to testify at trial and that [the defendant] had a
prior opportunity to cross-examine them, [the defendant] was entitled to „“be confronted
with”‟ the analysts at trial. [Citation.]” (Id. at p. 311, quoting Crawford, supra, 541 U.S.
at p. 54, fn. omitted.)
       In Bullcoming v. New Mexico (2011) 564 U.S.___[131 S.Ct. 2705] (Bullcoming),
the Supreme Court considered the admission of a laboratory report of a forensic analyst
who tested the defendant‟s blood sample and certified that the blood alcohol
concentration (BAC) in the sample was 0.21 grams per hundred milliliters, “an
inordinately high level,” which supported the defendant‟s conviction of aggravated drunk
driving. (Id. at pp. 2710-2711.) The Supreme Court held that the admission of the report
violated the Confrontation Clause because “[t]he accused‟s right is to be confronted with
the analyst who made the certification, unless that analyst is unavailable at trial, and the
accused had an opportunity, pretrial, to cross-examine that particular scientist.” (Id. at
p. 2710.) In so holding, the court rejected the New Mexico Supreme Court‟s conclusion
that the live testimony of another analyst satisfied the constitutional requirement of

                                              7.
confrontation, noting that the testifying analyst, who had neither participated in nor
observed the blood test “could not convey what [the certifying tester] knew or observed
about the events his certification concerned, i.e., the particular test and testing process
employed.” (Id. at p. 2715, fn. omitted.) Neither could the testifying analyst “expose any
lapses or lies on the certifying analyst‟s part.” (Ibid., fn. omitted.)
       In the recent case of Williams v. Illinois (2012) 567 U.S. ___ [132 S.Ct. 2221]
(Williams)2, the Supreme Court considered a forensic DNA expert‟s testimony that
included her reliance on a DNA profile from a rape victim produced by an outside
laboratory in the expert‟s matching of that profile to a DNA profile the state laboratory
produced from the defendant‟s blood sample. (Id. at pp. 2222-2223.) Justice Alito
writing with the concurrence of three justices and with Justice Thomas concurring in the
judgment, concluded that the expert‟s testimony did not violate the defendant‟s
confrontation rights. The plurality held that the outside laboratory report, which was not
admitted into evidence (id. at pp. 2230, 2235), was “basis evidence” to explain the
expert‟s opinion, was not offered for its truth, and therefore did not violate the
Confrontation Clause. (Id. at pp. 2239-2240.) The Supreme Court concluded further
that, even had the report been offered for its truth, its admission would not have violated
the Confrontation Clause, because the report was not a formalized statement made
primarily to accuse a targeted individual. (Id. at pp. 2242-2244.) Applying an objective
test in which the court looks “for the primary purpose that a reasonable person would
have ascribed to the statement, taking into account all of the surrounding circumstances”
(id. at p. 2243), the Court found that the primary purpose of the outside lab report “was to
catch a dangerous rapist who was still at large, not to obtain evidence for use against [the
defendant], who was neither in custody nor under suspicion at that time.” (Ibid.)

2     On July 2, 2012, this Court asked the parties for supplemental briefing addressing
Williams, which was decided June 18, 2012, after briefing in this case was completed.



                                               8.
Further, the Court found that no one at the outside laboratory could have possibly known
that the profile it generated would result in inculpating the defendant, and there was
therefore no prospect for fabrication and no incentive for developing something other
than a scientifically sound profile. (Id. at pp. 2243-2244.)
       Two even more recent California Supreme Court cases merit discussion.3 In
Lopez, supra, 55 Cal.4th 569, the defendant challenged on Confrontation Clause grounds
the introduction of a nontestifying laboratory analyst‟s report indicating the percentage of
alcohol present in the defendant‟s blood sample drawn two hours after a fatal traffic
accident; in admitting the evidence, the prosecution utilized the testimony of a colleague
of the analyst who had prepared the report. (Id. at p. 573.) Our high court in Lopez
distilled Crawford, supra, 541 U.S. 36 and its progeny as requiring the presence of “two
critical components” in order for a statement to be “„testimonial‟” for purposes of the
Confrontation Clause. (Lopez, supra, at p. 581.) Those components are that (1) “the out-
of-court statement must have been made with some degree of formality or solemnity”
(id. at p. 581), and (2) the statement‟s “primary purpose pertains in some fashion to a
criminal prosecution” (id. at p. 582). Because it concluded that the lab analyst‟s report
did not have the required formality or solemnity, the court concluded that it was not
testimonial. (Id. at p 582.)
       In Dungo, supra, 55 Cal.4th 608, which is most akin to the situation here, our
Supreme Court addressed whether the defendant‟s confrontation rights were violated
where a forensic pathologist testified concerning the cause of death of the victim
(strangulation), utilizing facts taken from an autopsy report prepared by a nontestifying
pathologist and photographs of the victim. (Id. at p. 614.) The court rejected the

3      On January 18, 2013, this Court asked the parties for supplemental briefing
addressing People v. Lopez (2012) 55 Cal.4th 569 (Lopez) and People v. Dungo (2012)
55 Cal.4th 608 (Dungo), both decided October 15, 2012, after briefing in this case was
completed.



                                             9.
defendant‟s claim, holding that neither of the two requisite components of a testimonial
statement were present. The court concluded that the statements contained in the autopsy
report – which was not introduced into evidence – were (1) “less formal than statements
setting forth a pathologist‟s expert conclusions” and were akin to a physician‟s
nontestimonial “observations of objective fact” in diagnosing a patient‟s injury or malady
and indicating the appropriate treatment for it (id. at p. 619); and (2) “criminal
investigation was not the primary purpose for the autopsy report‟s description of the
condition of [the victim‟s] body; it was only one of several purposes.” (Id. at p. 621).
“The autopsy report itself was simply an official explanation of an unusual death, and
such official records are ordinarily not testimonial.” (Id. at p. 621, citing Melendez-Diaz,
supra, 557 U.S. at p. 324.)
       Here, the facts from the autopsy report that Dr. Baik related to the jury were not so
formal and solemn as to be considered for testimonial purposes of the Sixth
Amendment‟s confrontation right, and criminal investigation was not the primary
purpose for recording the facts in question, it was only one of several purposes. (Dungo,
supra, 55 Cal.4th at p. 621.) Thus, drawing upon our high court‟s recent Dungo decision,
Dr. Baik‟s description to the jury of objective facts about the condition of victim
Millard‟s body, facts he derived, in part, from the coroner‟s autopsy report4 and its
accompanying photographs, as well as the evidence and testimony from the preliminary
hearing, did not give Gary a right to confront and cross-examine the original coroner
himself. Thus, Gary‟s Sixth Amendment right was not violated by Dr. Baik‟s testimony.
       As for Dr. Baik‟s reliance on Dr. Rickett‟s statements regarding Millard‟s broken
ribs, we note first that Detective Thomason, who made the report which contained those


4      Unlike Dungo, in which the autopsy report was not introduced into evidence, the
autopsy report here was introduced into evidence by the defense in order to highlight
what it argued were inconsistencies between it and the certificate of death.



                                             10.
statements, testified at trial and was cross-examined by the defense. But to the extent that
the statements by Dr. Ricketts, which consisted only of the statement that Millard‟s
finjuries to her ribs consisted of three rib fractures on the left side and five rib fractures
on the right side, were improperly relied upon by Dr. Baik, its admission was harmless
“„“beyond a reasonable doubt.”‟ [Citation.]” (Lopez, supra, 55 Cal.4th at p. 571.)
       The jury was instructed, pursuant to CALCRIM No. 620, in pertinent part as
follows:

       “There may be more than one cause of death. An act causes death only if it
       is a substantial factor in causing the death. A substantial factor is more
       than a trivial or remote factor. However, it does not need to be the only
       factor that causes the death.”
       Aside from Dr. Baik‟s testimony, the evidence at trial was that Millard was self-
sufficient and in excellent health prior to the attack; when she was found, she was tied up,
crying and beaten beyond recognition; when officers arrived, she was semiconscious with
blood spattered on the walls; the detective who visited Millard in the hospital over the
course of several days spoke to her briefly the first day, but she was unconscious on each
of the other occasions; and Millard died 11 days after the attack. In addition, aside from
the reports of Drs. Ernoehazy and Ricketts, Dr. Baik also relied on photographs of
Millard prior to and after the attack, the transcript of the preliminary hearing (aside from
Dr. Ricketts statements), and the statements of Millard‟s neighbor in arriving at his
opinion on the cause of Millard‟s death.
       Any error in the admission of Dr. Baik‟s testimony regarding the reports of Drs.
Ernoehazy and Ricketts was harmless beyond a reasonable doubt.
II.    IMPOSITION OF FINES
       At sentencing, the trial court imposed a $10,000 fine pursuant to section 1202.4
and a suspended parole revocation fine in the same amount under section 1202.45. Gary
contends, and the People agree, that the $10,000 parole revocation fine imposed pursuant
to section 1202.45 must be stricken, and the $10,000 restitution fine imposed pursuant to

                                              11.
section 1202.4 must be vacated and the matter remanded to the trial court for a hearing on
Gary‟s ability to pay restitution. We agree as well.
       Gary committed the offense in this case before the January 1, 1984, operative date
of amended Penal Code section 1202.4 and the August 3, 1995, operative date of Penal
Code section 1202.45. Thus, these fines cannot be imposed without violating the
constitutional prohibition against ex post facto laws. (See, e.g., People v. Callejas (2000)
85 Cal.App.4th 667, 676, 678 [§ 1202.45]; People v. Downing (1985) 174 Cal.App.3d
667, 672 [§ 1202.4].)
       But, as Gary acknowledges, the version of Government Code section 139675 in
effect at the time of Gary‟s crime provided that a restitution fine of at least $10 but not to
exceed $10,000 should be imposed after the trial court inquired into the defendant‟s
present ability to pay and the economic impact of the fine on the person‟s dependents.
(Stats. 1973, ch. 1144, § 2, p. 2351; see also People v. McCaskey (1985) 170 Cal.App.3d
411, 414.) Thus, this matter should be remanded for a hearing which complies with the
version of Government Code section 13967 in effect at the time of the murder in this
case, and to determine Gary‟s ability to pay and the effect of any fine on Gary‟s
dependents, if there are any.
       There was no version of section 1202.45 in effect at the time of the murder in this
case. The parole revocation fine imposed pursuant to that section must be stricken.




5       At the time, Government Code section 13967 provided: “Upon a person being
convicted of a crime of violence committed in the State of California resulting in the
injury of death of another person, if the court finds that the defendant has the present
ability to pay a fine and finds that the economic impact of the fine upon the defendant‟s
dependents will not cause such dependents to be dependent on public welfare the court
shall, in addition to any other penalty, order the defendant to pay a fine commensurate
with the offense committed, and with the probable economic impact upon the victim, but
not to exceed ten thousand dollars ($10,000)….”



                                             12.
                                      DISPOSITION
       The parole revocation fine imposed pursuant to section 1202.45 is stricken. The
restitution fine imposed pursuant to section 1202.4 is vacated and this matter is remanded
for a restitution hearing as described in this opinion. In all other respects, the judgment is
affirmed.



                                                                  _____________________
                                                                               Franson, J.
WE CONCUR:


 _____________________
Kane, Acting P.J.


 _____________________
Poochigian, J.




                                             13.
