Filed 10/28/13 P. v. Johnson CA3
(4/28/09, first opn. filed; 9/22/09, remittitur recalled and opn. vacated; 9/22/09, opn. filed 4/28/09 refiled; 10/20/09,
rehearing ordered; 1/18/11, third opn. filed; 7/3/12, U.S. Supreme Ct. grant of certiorari; 7/31/12, remanded from
U.S. Supreme Ct.; 10/28/13, fourth opn. filed.)

                                          NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     THIRD APPELLATE DISTRICT
                                                    (Sacramento)
                                                            ----


THE PEOPLE,                                                                               C056841

                   Plaintiff and Respondent,                                  (Super. Ct. No. 04F10764)

         v.                                                           OPINION AFTER REMAND BY
                                                                    UNITED STATES SUPREME COURT
WILLIAM JAMES JOHNSON,

                   Defendant and Appellant.




         A jury convicted defendant William James Johnson of murdering Nora Mini and
found to be true two special circumstance allegations, the murder occurred during the
commission of rape and the commission of sodomy. The trial court found defendant had
a prior conviction for a sex offense and had served a prior prison term. Defendant was
sentenced to state prison for life without the possibility of parole, plus a consecutive term
of five years for the prior conviction enhancement.


                                                             1
       On appeal, defendant contends (1) the trial court erroneously allowed the
introduction of testimony of a DNA expert who did not conduct the DNA testing, (2) the
court failed to satisfy its duty of inquiry during a purported Marsden hearing (People v.
Marsden (1970) 2 Cal.3d 118 (Marsden), (3) the prior sex offense conviction
enhancement must be stricken because it is not applicable, and (4) the abstract of
judgment must be amended to reflect that the sentence is to be served concurrently with
other sentences defendant was then serving.

       In a prior opinion, we reversed the true finding on a Penal Code section 667.6,
subdivision (a)1 allegation, struck the consecutive five-year term imposed thereon,
modified the judgment to impose a consecutive one-year term for a prior prison term
enhancement found to be true, and affirmed the judgment as modified. (People v.
Johnson (Apr. 28, 2009, C056841) [nonpub. opn.].)

       Among other things, we held that defendant‟s challenge to the DNA expert
testimony, as purportedly violating the Sixth Amendment to the United States
Constitution as interpreted in Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d
177] (Crawford), failed for reasons stated by the California Supreme Court in People v.
Geier (2007) 41 Cal.4th 555 (Geier).

       Defendant petitioned for rehearing, implying that we should no longer follow
Geier because the subsequent decision in Melendez-Diaz v. Massachusetts (2009)
557 U.S. 305 [174 L.Ed.2d 314] (Melendez-Diaz) required reversal of the judgment. We
granted the petition, vacated our earlier opinion, and the parties submitted supplemental
briefing on the application of Melendez-Diaz. At the time, the issue of how Melendez-
Diaz affected Geier was pending before the California Supreme Court in several cases,
three of which have now been decided. (People v. Dungo (2012) 55 Cal.4th 608 (Dungo)


1 Undesignated statutory references are to the Penal Code.



                                              2
[found no violation of the confrontation clause where a forensic pathologist who did not
perform the autopsy testified, relying on the autopsy report]; People v. Lopez (2012)
55 Cal.4th 569 (Lopez) [found no violation of the confrontation clause where the court
received the blood-alcohol report in evidence without the analyst‟s testimony]; People v.
Rutterschmidt (2012) 55 Cal.4th 650 (Rutterschmidt) [claimed violation of the
confrontation clause where the chief laboratory director and supervising criminalist
testified, rather than the analyst, about a drug analysis was harmless].)

       In an opinion on rehearing, this court proceeded to address the issue rather than
wait for the California Supreme Court to decide the issue and concluded that Melendez-
Diaz did not compel reversal of the judgment. (People v. Johnson (Jan. 18, 2011,
C056841) [nonpub. opn.].) We disposed of the case as this court had done in its initial
opinion prior to rehearing. The California Supreme Court denied review. (Mar. 23,
2011, S190602.)

       Thereafter, the United States Supreme Court decided Williams v. Illinois (2012)
567 U.S. ___ [183 L.Ed.2d 89] (Williams). Defendant‟s petition for writ of certiorari was
granted and the United States Supreme Court vacated the judgment and remanded to this
court for further consideration in light of Williams. We requested supplemental briefing
from the parties on the application of Williams.

       Subsequently, the California Supreme Court decided Lopez, Dungo, and
Rutterschmidt and we requested supplemental briefing from the parties on the
significance, if any, of these three new decisions by the California Supreme Court.
Having considered all the supplemental briefing, we conclude that defendant‟s Sixth
Amendment challenge to the DNA expert testimony as interpreted in Crawford and
subsequently in Williams, fails for reasons stated by the California Supreme Court in
Lopez and Dungo.



                                              3
                               FACTUAL BACKGROUND

       About 3:00 p.m. on March 10, 1982, the body of 59-year-old Nora Mini was
discovered in her car parked at a Texaco station in Sacramento on Florin Road at 55th
Street, where she usually parked at night. Mini had been homeless for years, living out of
and sleeping in her car. She was a loner who spoke to few people, collected aluminum
cans, and did not panhandle.

       Mini had been raped and sodomized; she died from cardiac arrhythmia brought on
by the attack, which caused pain from tears to her vagina and anus. The injuries to her
vagina and anus were most likely inflicted at or near the time of her death. She had
coronary artery disease and scarring from a previous heart attack. She died about 18 to
24 hours prior to a preliminary examination conducted at 5:00 p.m. on March 10, 1982,
by Dr. Pierce Rooney. During an autopsy, Dr. Rooney collected forensic swabs from
Mini‟s vagina, rectum, and mouth, and he removed hairs from her body. Mini had
abrasions on her cheek and ear, abrasions and a laceration under her chin, trauma to her
left hand and right arm, abrasions on her right wrist, and a bruised left hip. There were
indications of strangulation, i.e., “zones of hemorrhage” behind her larynx, but not
enough evidence to conclude it was the cause of death. Dr. Rooney believed that the
tears to Mini‟s vagina were caused by a knife or piece of glass, or even “violent sex.”

       The swabs taken from Mini‟s vagina and rectum revealed the presence of sperm.
Eighty percent of the sperm taken from her vagina was intact, meaning there was a head
and tail; only one intact sperm was on the rectal swab. The sperm were deposited
sometime between 5:00 p.m. on March 9, 1982, and 11:00 a.m. on March 10, 1982.

       In 2003, the Sacramento County District Attorney‟s crime laboratory (Sacramento
crime lab) conducted DNA testing on the vaginal swab from Mini, developed a DNA
profile, and sent it to the Department of Justice national data bank. It matched
defendant‟s DNA profile in the data bank. A new sample was taken from defendant in


                                             4
October 2004, and DNA analysis was performed. Defendant‟s DNA profile matched the
DNA profile from both the vaginal swab and rectal swab from Mini. The DNA profile
from the vaginal swab occurs “at random among unrelated individuals in one in 140
quintillion of the African-American population,” “[o]ne in 59 quintillion of the Caucasian
population,” and “one in 760 quintillion of the Hispanic population.” Based on
mitochondrial DNA testing, one of the hairs removed from Mini‟s entroital area could
have originated from defendant.

      Defendant had moved to Sacramento in early 1982, when he was 21 years old.
Interviewed on October 27, 2004, while in custody in state prison for other crimes,
defendant claimed he did not arrive in California until March 28, 1982, and said he
stayed with his brother in Rancho Cordova. When shown a photograph of Mini,
defendant denied having had sex with her and denied having ever seen her car. When
confronted with the DNA evidence, defendant again claimed that he had never had sex
with Mini.

      The prosecution introduced evidence underlying defendant‟s conviction for rape
of a 16-year-old girl in 1977 in Indiana, while she was home alone with her baby.

      Defendant testified as follows at trial. He was 17 years of age when he was
convicted and sentenced to prison for raping the 16-year-old girl. After he was released
from prison, he came to California. He initially believed that he was not in Sacramento
on March 10, 1982, but then admitted he must have been because of the DNA evidence.
He did not recognize Mini from the picture shown to him, he denied having sex with a
person who looked like her, and he denied being involved in Mini‟s death. Defendant
acknowledged having had only vaginal sex with a woman he met at a midtown liquor
store. She told him that she was from either Oklahoma or Oregon. In January 1982, he
was convicted of theft in excess of $150. In March 1983, he was convicted of kidnapping



                                            5
with intent to commit robbery and false imprisonment by fear or menace—crimes
committed on April 1, 1982. He had been in custody since April 1982.

        The defense called Mini‟s son, who testified that Mini was born in Oklahoma.
Shown the coroner‟s report, defendant testified that it did not indicate where Mini was
born.

        After the defense rested, the People introduced evidence that Mini‟s Oklahoma
birth certificate had been provided to defendant‟s attorney. In surrebuttal, defendant
claimed that he had not seen the Oklahoma birth certificate.

                                      DISCUSSION

                                I. DNA Expert Testimony

        Defendant contends the trial court committed reversible error in allowing the
testimony of a DNA expert who did not conduct the DNA testing. Defendant initially
conceded that we were required to follow the holding of Geier, supra, 41 Cal.4th 555, but
raised the issue to preserve it for federal review. Because Geier was controlling on us
(Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), we rejected
defendant‟s claim of error. This court granted rehearing, considered the parties‟
supplemental briefing, and concluded Melendez-Diaz did not undermine the holding in
Geier, noting that four days after filing its opinion in Melendez-Diaz, the United States
Supreme Court denied certiorari in Geier. (Geier v. California (2009) 557 U.S. 934
[174 L.Ed.2d 600].) Now, having considered Williams, Lopez, Dungo and Rutterschmidt,
we conclude that no error occurred in allowing the testimony of a DNA expert who did
not conduct the DNA testing.
                                     A. Background
        Prior to trial, defense counsel filed a motion to exclude the DNA evidence,
arguing, among other things, that the prosecution‟s witness, Mary Hansen, was not the



                                             6
Sacramento crime lab analyst who performed the DNA testing (Jeffrey Herbert) and,
thus, Hansen‟s expert testimony would violate defendant‟s Sixth Amendment right of
confrontation as interpreted in Crawford, supra, 541 U.S. 36 [158 L.Ed.2d 177].

       At an Evidence Code section 402 hearing, Hansen testified that she was the
supervising criminalist in the biology unit of the Sacramento crime lab and had been
working there for more than 22 years in serology, the identification of biological fluids.
The majority of the cases were sexual assault cases or homicide with sexual components.
She explained (1) semen as one bodily fluid analyzed by the laboratory, (2) the protocol
followed for identifying the same, and (3) the reports generated about whether sperm are
present. Hansen looked at “some prepared slides” in the Mini case. Herbert did the case
work and prepared a report dated December 22, 2005, under Hansen‟s supervision.
Hansen signed the report as the technical reviewer, i.e., the person who reviews the
report, the case notes, and the conclusions generated by the primary analyst and then
verifies the conclusions. Hansen also reviewed the slides with Herbert, and Hansen
conducted the administrative review. Referring to the vaginal swabs, Hansen opined
there was a three plus grading, that is, six to 12 sperm per microscopic field and about 80
percent of the sperm were intact. Based on this quality, Hansen opined the semen was
deposited a minimum of six to 12 hours, and a maximum of 24 hours, prior to its
collection. Since 1998, Hansen had been involved in DNA case work; she not only
supervised others, she conducted her own case work. She was involved in supervision,
technical review, and administrative review on DNA work conducted in the Mini case;
and she had reviewed all of Herbert‟s bench notes and reports in preparation for Hansen‟s
testimony at the preliminary hearing. Her opinions were based on her review of the work
Herbert performed in the case.

       On cross-examination, Hansen said she was in the Sacramento crime lab, but not
looking over Herbert‟s shoulder, as he did the work on the case. Hansen was aware of


                                             7
Herbert‟s knowledge and his qualifications, which is why she assigned the case to him.
Hansen was unaware of whether Herbert had any conversations with officers, the district
attorney, or anyone else involved in the case, or if he had any knowledge that would have
led him to be biased with respect to the outcome. Hansen was aware that Herbert had in
the past spoken over a sample, contaminating it with his own DNA. She did not know
whether Herbert had been talking to anyone while doing DNA testing in this case. In
conducting a technical review and preparing for her preliminary hearing testimony,
Hansen analyzed all the data, including the electronic data, to make sure Herbert‟s
conclusions were correct and accurate. As to her qualifications to express an opinion on
the time of the deposit of a semen sample, Hansen noted she had taken a semen analysis
course from the Serological Research Institute in 1985, had practical application of
analyzing thousands of slides, and had testified as an expert about a dozen times about
the specific issue and 86 times on bodily fluids identification in general. Hansen agreed
with Herbert‟s assessment of a three plus grading. She agreed that a 1982 forensic
science paper mimicked her findings. She explained there is no proficiency test with
respect to forming an opinion as to the time period of deposit, and there is no requirement
for a validation study. The protocols “deal with the identification and grading of
spermatozoa” but not a time period of deposit, which is gained from practical experience.
Hansen had 10 people in her unit conducting bodily fluids identifications. She explained
that “[t]he occurrence of a grading of three plus with intact sperm is a very rare
occurrence in the laboratory.”

       The trial court ruled that Hansen‟s testimony could be introduced at trial because it
is not testimonial under Crawford.

       Hansen then testified before the jury in the same way she had testified at the
Evidence Code section 402 hearing with respect to her employment at the Sacramento
crime lab. She expounded on her training and experience with bodily fluids and DNA


                                             8
identification. At the time of trial, she had 12 people, including Herbert, in her unit.
Hansen trained other professionals about DNA, including deputy district attorneys. She
had previously qualified as an expert in forensic biology about 86 times, including bodily
fluids identification and conventional serology. In the area of DNA testing, she had
qualified as an expert in both polymerase chain reaction testing and the current short
tandem repeats (STR) testing. Her expertise in DNA included statistical significance of
DNA results.

       Hansen testified that the Sacramento crime lab is an accredited laboratory which
has procedures conforming with accepted and standard procedures in the field of forensic
DNA testing and complying with federal guidelines. She explained the protocols in place
to maintain a chain of custody in performing DNA testing. She reviewed Herbert‟s work
and found him to be a competent analyst who sometimes makes a mistake. She also
reviewed the work of criminalists Christy Abbott and Joy Byray. Hansen had reviewed
the work involving the Mini case. She explained DNA and procedures followed in STR
analysis, including DNA extraction from the bodily fluids, amplification, typing, and
interpretation. Hansen reviewed Herbert‟s DNA work in the Mini case, including the
records he generated at or near the time of the testing analysis, and she signed the reports.
The forms included Herbert‟s handwritten notes and other data, including the
electropherogram, which is a printout of analyzed DNA data depicting genetic markers or
locations on the DNA profile.

       Hansen explained that in the Mini case, there were 15 different markers.
Beginning work on September 11, 2003, Herbert developed a DNA profile from the
vaginal swab sample, using a differential extraction, “separat[ing] out sperm cell DNA
from epithelial cell DNA which is primarily from the vaginal cavity, the epithelial cells
[(E-cells)].” The E-cells came from Mini. Herbert sent the DNA major male profile




                                              9
from the sperm fraction to the Department of Justice national data bank. At the time,
Herbert did not have anyone to compare with the profile.

       The Department of Justice notified the Sacramento crime lab that there was a
“cold hit,” forwarded identifying information for the person, and recommended that a
new reference sample be obtained and analyzed. A new reference sample was obtained
from defendant. Herbert performed the DNA analysis and recorded his observations,
preparation, and results. Hansen testified that Herbert followed the laboratory‟s protocol
and that Hansen reviewed Herbert‟s records. She also reviewed the raw data
electropherograms herself. She testified that the notes and records of the analyst were for
the purpose of ensuring accuracy of the testing. Herbert developed a DNA profile and
compared defendant‟s DNA profile with the DNA profile of the sperm donor from the
vaginal swab. Hansen opined that the “male donor on the vaginal swab matches the
reference profile of [defendant] at every location, at all 15 locations” and that the random
match probability frequency for the profile “occurs at random among unrelated
individuals in one in 140 quintillion of the African-American population,” “[o]ne in 59
quintillion of the Caucasian population,” and “one in 760 quintillion of the Hispanic
population.”

       With respect to the rectal swab taken from Mini and Herbert‟s analysis, Hansen
opined that the donor of the sperm cell fragment matched the reference sample of
defendant, and the E-cells matched Mini‟s reference profile. The oral swabs matched
Mini and no one else.

       Hansen also opined that based on the three plus grading, i.e., six to 12 sperm per
field examined under the microscope with about 80 percent intact, the semen was
deposited in Mini‟s vaginal cavity at a minimum of six to 12 hours, and no more than 24
hours, from the time it was collected, i.e., between 5:00 p.m. on March 9, 1982, and
11:00 a.m. on March 10, 1982.


                                             10
       On cross-examination, Hansen admitted that the 15-loci profile could not alone
explain when the DNA was deposited, and she agreed there was very little DNA from the
rectal swab, in that Herbert had to combine two swabs to obtain the profile. Hansen
explained that her opinion regarding the time period for deposit of the semen in Mini‟s
vaginal cavity was based in part on an article from Forensic Science International dated
1982. Hansen conceded that there were several articles written about the issue and a
range of time periods and that she received no swabs of fluids taken from inside the car.
                                        B. Analysis
       Crawford held that out-of-court “testimonial” statements, such as “[s]tatements
taken by police officers in the course of interrogations,” are barred by the Sixth
Amendment‟s confrontation clause unless the declarant is unavailable and the defendant
had a prior opportunity to cross-examine the declarant. (Crawford, supra, 541 U.S. at
pp. 38, 42, 51-52, 59, 68 [158 L.Ed.2d at pp. 184, 187, 193, 197, 203].) Crawford did not
define “testimonial” but did state the following: “ „Testimony,‟ . . . is typically „[a]
solemn declaration or affirmation made for the purpose of establishing or proving some
fact.‟ [Citation.] An accuser who makes a formal statement to government officers bears
testimony in a sense that a person who makes a casual remark to an acquaintance does
not. The constitutional text, like the history underlying the common-law right of
confrontation, thus reflects an especially acute concern with a specific type of out-of-
court statement. [¶] 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‟; „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



                                              11
reasonably to believe that the statement would be available for use at a later trial.‟ ” (Id.
at pp. 51-52 [158 L.Ed.2d at pp. 192-193].)

       The issue in Melendez-Diaz was whether certificates of analysis, sworn before a
notary public (affidavits) and stating that the substance seized from the defendant was
cocaine, were testimonial statements. The affidavits, created to serve as evidence at trial,
“reported the weight of the seized bags and stated that the bags „[h]a[ve] been examined
with the following results: The substance was found to contain: Cocaine.‟ ” (Melendez-
Diaz, supra, 557 U.S. at p. 308 [174 L.Ed.2d at p. 320].)

       Melendez-Diaz held “the analysts‟ affidavits were testimonial statements, and the
analysts were „witnesses‟ for purposes of the Sixth Amendment. Absent 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.” (Melendez-Diaz, supra, 557 U.S. at p. 311 [174 L.Ed.2d at
p. 322].) In other words, “[t]he Sixth Amendment does not permit the prosecution to
prove its case via ex parte out-of-court affidavits, and the admission of such evidence . . .
was error.” (Id. at p. 329 [174 L.Ed.2d at p. 332].)

       In Bullcoming v. New Mexico (2011) 564 U.S. ___ [180 L.Ed.2d 610]
(Bullcoming), the defendant was convicted of aggravated driving while intoxicated. (Id.
at p. ___ [180 L.Ed.2d at pp. 617-618].) A certificate signed by a laboratory analyst that
the defendant‟s blood-alcohol concentration was 0.21 grams per 100 milliliters, created
solely for use at trial, was introduced into evidence by the prosecution as allowed under
New Mexico law. (Id. at pp. ___ [180 L.Ed.2d at pp. 616-618, 623, 624].) The analyst
who tested the blood sample did not testify at trial. Instead, another analyst, who did not
sign the certificate or participate in or observe the test, testified about the lab‟s testing
device and procedures but offered no opinion about—just read—the defendant‟s test
results. (Id. at pp. ___ [180 L.Ed.2d at pp. 616-619, 629].) Even though the certificate


                                               12
was not sworn before a notary public as in Melendez-Diaz, Bullcoming held that the
certificate was “ „formalized‟ in a signed document” that “referr[ed] to municipal and
magistrate courts‟ rules that provide for the admission of certified blood-alcohol
analyses.” (Id. at p. ___ [180 L.Ed.2d at pp. 623-624].) Bullcoming found that the
certificate was testimonial and inadmissible unless the analyst who performed the test
was unavailable for trial and the defendant had a prior opportunity to confront and cross-
examine that analyst. (Id. at p. ___ [180 L.Ed.2d at pp. 616, 619].)

       In Williams, supra, 567 U.S. ___ [183 L.Ed.2d 89] (plur. opn. of Alito, J.), the
defendant was convicted of, inter alia, aggravated sexual assault. (Id. at p. ___
[183 L.Ed.2d at pp. 100, 102].) A state police lab forensic expert testified that analysts
from an outside lab (Cellmark) produced a DNA profile from semen on vaginal swabs
taken from the victim. Cellmark sent a report with the profile to the police lab. (Id. at
p. ___ [183 L.Ed.2d at pp. 100, 101].) The defendant‟s DNA profile was obtained when
he was arrested on an unrelated crime. (Id. at p. ___ [183 L.Ed.2d at p. 100].) The expert
opined that the Cellmark profile and the defendant‟s DNA profile matched. (Id. at p. ___
[183 L.Ed.2d at p. 101].) A Cellmark analyst did not testify and the Cellmark report was
not introduced into evidence. (Id. at p. ___ [183 L.Ed.2d at pp. 100, 101].) A plurality
opinion concluded the evidence was not “testimonial.” The out-of-court statements
related by the expert to explain the assumptions for her opinion were not offered for their
truth and thus did not violate the confrontation clause. (Id. p. ___ [183 L.Ed.2d at p. 99].)
In the alternative, the Cellmark report was not “testimonial” because it was not prepared
for the primary purpose of accusing a targeted individual but to find a rapist at large,
noting that the defendant had not been identified as a suspect when the report was
produced. (Ibid.) Concurring in the result, Justice Thomas rejected the plurality‟s
reasoning and concluded that the Cellmark report “lacked the requisite „formality and
solemnity‟ to be considered „ “testimonial.” ‟ ” (Id. at p. ___ [183 L.Ed.2d at pp. 129,



                                             13
133-134].) The dissent concluded the evidence constituted inadmissible testimonial
hearsay, agreeing with Justice Thomas‟s criticism of the plurality but disagreeing with his
conclusion that the report was admissible. (Id. at p. ___ [183 L.Ed.2d at pp. 138, 139,
142-143, 147-148, 151] (dis. opn. of Kagan, J., joined by Scalia, Ginsburg, and
Sotomayor, JJ.).)

       In Lopez, supra, 55 Cal.4th 569, the defendant was charged with vehicular
manslaughter while intoxicated. (Id. at p. 573.) At trial, the prosecution introduced a
laboratory analyst‟s report that the defendant‟s blood-alcohol content was 0.09 percent.
(Id. at pp. 573, 574.) The analyst who prepared the report did not testify at trial. (Ibid.)
Instead, another analyst testified about the lab‟s testing procedures for blood alcohol
about which he was familiar, reviewed the report and the defendant‟s test results, and
reached the same conclusion, that is, the defendant‟s blood-alcohol content was 0.09
percent. (Id. at p. 574.) The report and testimony were admitted into evidence over the
defendant‟s objection. (Ibid.) Finding no error, Lopez concluded the “critical portions of
that report were not made with the requisite degree of formality or solemnity to be
considered testimonial.” (Id. at p. 582.) Distinguishing Melendez-Diaz and Bullcoming,
Lopez noted that the report was not sworn to before a notary by the testing analysts nor
was it formalized in a signed document which referred to court rules providing for its
admissibility. (Id. at pp. 584-585.)

       In Dungo, supra, 55 Cal.4th 608, the defendant was convicted of murder. (Id. at
p. 615.) An expert (forensic pathologist) opined as to the cause of death based on an
autopsy report that was not introduced into evidence. (Id. at pp. 613-615.) The report
contained objective facts observed and recorded by another pathologist who did not
testify. (Id. at pp. 618-619.) Dungo did not find any violation of the defendant‟s right to
confrontation because observations recorded in an autopsy report are not testimonial,




                                             14
lacking the requisite formality (id. at pp. 619-620, 621), and autopsy reports do not have
the primary purpose of targeting an accused individual (id. at pp. 620-621).

       People v. Holmes (2012) 212 Cal.App.4th 431 did not find any violation of the
defendant‟s right to confrontation, holding that the forensic data and reports relied on by
DNA experts were not “sufficiently formal to be testimonial.” (Id. at pp. 433, 434, 436,
438-439.) The data and reports were “unsworn, uncertified records of objective fact” and
“lacked formality.” (Id. at p. 438.) None of the experts, who were supervising
criminalists, personally performed any of the DNA tests and “reached his or her own
conclusions based, at least in part, upon the data and profiles generated by other
analysts.” (Id. at p. 434.)

       People v. Barba (2013) 215 Cal.App.4th 712 (Barba) held that the defendant‟s
confrontation right was not violated, finding that four DNA reports by Cellmark relied on
by an expert, the director of a Cellmark lab in Maryland, lacked the requisite formality
and solemnity and the primary purpose of the reports was not to accuse a targeted
individual. (Id. at pp. 718-720, 742-743.)
                                      C. Conclusion
       We conclude that Hansen‟s testimony was not “testimonial.” Herbert‟s report of
his findings was not introduced into evidence. Contrary to defendant‟s claim, Herbert‟s
bench notes and report that formed, at least in part, the basis of Hansen‟s testimony
lacked the requisite degree of formality or solemnity to be considered testimonial.
(Lopez, supra, 55 Cal.4th at p. 582.) While Herbert‟s bench notes and report were used
by Hansen as basis evidence for her expert opinion (treated as factual and admitted for
their truth), defendant‟s confrontation right was not implicated because Herbert‟s
statements were not “testimonial” under Crawford. There is no evidence that the bench
notes and report were sworn before a notary as in Melendez-Diaz or were signed




                                             15
documents that referred to court rules expressly providing for their admissibility as in
Bullcoming. (Lopez, supra, 55 Cal.4th at pp. 584-585.)

          Despite defendant‟s reliance upon Bullcoming, Hansen reviewed Herbert‟s bench
notes and report and expressed her opinion as to the DNA analysis and the “cold hit”
identifying defendant, unlike the analyst who merely read the test results and expressed
no opinion in Bullcoming. Hansen testified that she personally analyzed the DNA
profiles. Her conclusions were based on her own analysis. Defendant had an opportunity
to cross-examine a live witness unlike the defendant in Melendez-Diaz. (Melendez-Diaz,
supra, 557 U.S. at p. 320 [174 L.Ed.2d at p. 327].) Further, Hansen explained the
procedures in DNA testing. There was no explanation of the testing in Melendez-Diaz.
(Ibid.)

          Hansen reviewed the electropherogram, a printout of analyzed DNA data
depicting genetic markers or locations on the DNA profile. Lopez held that “machine-
generated printouts . . . did not implicate the Sixth Amendment‟s right to confrontation,”
citing with approval federal appellate court opinions which have found that printouts are
not statements and the machines are not declarants. (Lopez, supra, 55 Cal.4th at p. 583.)
Likewise, machine-generated DNA profiles do not implicate the Sixth Amendment right
of confrontation.

          In the alternative, like the Cellmark report in Williams and the autopsy report in
Dungo, Herbert‟s bench notes and report were not prepared for the primary purpose of
targeting an accused individual. (Williams, supra, 567 U.S. at p. ___ [183 L.Ed.2d at
p. 99]; Dungo, supra, 55 Cal.4th at pp. 620-621.) Defendant was not a suspect when
Herbert developed a male DNA profile from the vaginal swabs taken from the victim,
which resulted in the “cold hit” from the Department of Justice identifying defendant.
(Williams, supra, 567 U.S. at p. ___ [183 L.Ed.2d at p. 99]; and see Barba, supra,
215 Cal.App.4th at pp. 738-740 [the absence of targeted individual not required by


                                               16
Williams].) Further, Herbert‟s bench notes recorded objective facts. (Dungo, supra,
55 Cal.4th at p. 619.) Hansen‟s testimony did not violate defendant‟s Sixth Amendment
right to confrontation.

       Defendant claims there was no limiting instruction regarding the jury‟s
consideration of any part of Hansen‟s testimony and that the jury was instructed that the
basis evidence was admitted for its truth. Defendant‟s claim of instructional error for the
first time on appeal is forfeited. There was no objection to CALCRIM No. 332 on the
evaluation of expert testimony or any request for modification.2 Even on the merits
(§ 1259 [permitting appellate review of instruction even in absence of objection where a
defendant‟s substantial rights are affected], defendant cannot establish error in view of
our foregoing conclusions; the instruction properly informed the jury on the manner in
which to evaluate an expert‟s opinion and did not affect defendant‟s substantial rights.

                                   II. Marsden Motion

       Defendant next contends the trial court failed to satisfy its duty of inquiry under
Marsden, and the matter must be remanded for further hearing on the Marsden motion.
We find no reversible error.




2 The trial court instructed the jury in the language of CALCRIM No. 332 as follows:
“Witnesses are allowed to testify as experts and to give opinions. You must consider the
opinions, but you are not required to accept them as true or [correct]. The meaning and
importance of any opinion are for you to decide. In evaluating the believability of an
expert witness, follow the instructions about the believability of witnesses generally. In
addition, consider the expert‟s knowledge, skill, experience, training, and education, the
reasons the expert gave for any opinion, and the facts or information on which the expert
relied in reaching that opinion. You must decide whether information on which the expert
relied was true and accurate. You may disregard any opinion that you find unbelievable,
unreasonable, or unsupported by the evidence.”


                                             17
                                      A. Background
       On the date set for sentencing, the trial court conducted what it called a Marsden
hearing. Noting that defendant had retained his attorney, the court advised defendant that
if the Marsden motion was denied, his attorney would remain on the case, and that if
defendant still did not want his attorney, he could represent himself. The court stated
tentatively that it would not grant a continuance of the case. Defendant said he wanted
new counsel to pursue a motion for a new trial. He identified numerous complaints about
defense counsel and cited legal principles and headnotes to decisional authority. Defense
counsel responded to some of defendant‟s complaints.

       Concluding defendant‟s attorney had made a “superb argument,” the court stated
that defense counsel‟s performance had not fallen below the standard expected of a
competent attorney and that “the only conclusion that I draw from all of this is that it is
for purposes of delay.”

       The court then told defendant that he could “fire” his attorney if he wanted to.
Defendant did so.

       When the court reiterated it would not continue the proceeding, and said it would
not appoint new counsel to represent defendant (since the so-called Marsden motion was
made solely for the purpose of delay), defendant confirmed that he wanted to proceed
with the hearing representing himself.

       After going through with defendant the points he had raised as the basis for
seeking a new trial, the court ruled: “The motion for new trial is denied.”
                                         B. Analysis
       The Sixth and Fourteenth Amendments to the United States Constitution and
article I, section 15 of California‟s Constitution guarantee the right to counsel. “The right
to the effective assistance of counsel „encompasses the right to retain counsel of one‟s
own choosing.‟ ” (People v. Courts (1985) 37 Cal.3d 784, 789.)


                                             18
       The procedure specified by Marsden for discharging appointed counsel and
appointing new counsel for an indigent defendant does not apply when defense counsel
has been retained. (People v. Ortiz (1990) 51 Cal.3d 975, 986 (Ortiz).) This is so
because “[t]he right of a nonindigent criminal defendant to discharge his retained
attorney, with or without cause, has long been recognized in this state.” (Id. at p. 983,
italics added.)

       “A nonindigent defendant‟s right to discharge his retained counsel, however, is not
absolute. The trial court, in its discretion, may deny such a motion if discharge will result
in „significant prejudice‟ to the defendant [citation], or if it is not timely, i.e., if it will
result in „disruption of the orderly processes of justice.‟ ” (Ortiz, supra, 51 Cal.3d at
p. 983.)

       Defendant wisely does not claim the trial court should not have allowed him to
discharge retained counsel, or that the court should have appointed counsel for him after
he discharged retained counsel, or that defendant should have been granted a continuance
to retain new counsel, or that he was inadequately advised about representing himself, or
that retained counsel rendered ineffective assistance. Such contentions would fail in light
of the record in this case.

       “Defendant simply claims the trial court failed to perform its duty to inquire at the
Marsden hearing. The contention lacks merit because the court had no duty to conduct a
Marsden inquiry in that defendant was represented by retained counsel. (See Ortiz,
supra, 51 Cal.3d at p. 986.) Defendant suggests that by nonetheless electing to conduct a
Marsden hearing, the court was required to make the inquiry required by Marsden. We
disagree. Indeed, a Marsden inquiry was not appropriate because defendant had the right
to discharge his appointed counsel with or without good cause. (Ortiz, supra, 51 Cal.3d
at p. 986.)



                                                 19
         Although the trial court should not have conducted a Marsden hearing, defendant
was invited to discharge his retained attorney and did so. Thus, there was no reversible
error.

                                III. Sex Crime Enhancement

         Defendant correctly contends that the trial court erred in imposing a section 667.6,
subdivision (a) enhancement because the enhancement does not apply to a conviction for
murder with rape and sodomy special circumstances.

         Section 667.6 states in pertinent part: “(a) Any person who is convicted of an
offense specified in subdivision (e) and who has been convicted previously of any of
those offenses shall receive a five-year enhancement for each of those prior convictions.”

         Subdivision (e) provides that a section 667.6, subdivision (a) enhancement “shall
apply to the following offenses: [¶] (1) Rape, in violation of paragraph (2), (3), (6), or
(7) of subdivision (a) of Section 261. [¶] (2) Spousal rape, in violation of paragraph (1),
(4), or (5) of subdivision (a) of Section 262. [¶] (3) Rape, spousal rape, or sexual
penetration, in concert, in violation of Section 264.1. [¶] (4) Sodomy, in violation of
paragraph (2) or (3) of subdivision (c), or subdivision (d) or (k), of Section 286. [¶] (5)
Lewd or lascivious act, in violation of subdivision (b) of Section 288. [¶] (6) Continuous
sexual abuse of a child, in violation of Section 288.5. [¶] (7) Oral copulation, in
violation of paragraph (2) or (3) of subdivision (c), or subdivision (d) or (k), of Section
288a. [¶] (8) Sexual penetration, in violation of subdivision (a) or (g) of Section 289.
[¶] . . . [¶] (10) . . . an offense committed in another jurisdiction that includes all of the
elements of an offense specified in this subdivision.”

         Thus, the offenses listed in subdivision (e) of section 667.6 are all sex crimes,
including rape and sodomy. They do not include the crime of murder, for which
defendant was convicted.



                                               20
       Nonetheless, the People argue that the enhancement should apply because
defendant was charged with murder with two special circumstances: The victim was
murdered during the commission of rape and during the commission of sodomy, which
are sex offenses listed in subdivision (e) of section 667.6. In the People‟s view, the intent
of the Legislature in enacting section 667.6 to penalize recidivist sex offenders would be
thwarted if the enhancement is found not to apply. We disagree.

       The fundamental rule of statutory construction is to discern legislative intent and
effectuate it. In determining legislative intent, we look to the language of the statute.
“When the language is clear and unambiguous, there is no need for construction.”
(People v. Woodhead (1987) 43 Cal.3d 1002, 1007-1008.)

       By the plain meaning of its terms, the five-year enhancement of section 667.6
applies when a defendant is “convicted” of a sex offense specified in subdivision (e) of
the section and previously has been convicted of any of these sex offenses.

       Here, defendant was not charged with or convicted of the crime of rape or
sodomy, which would have been subject to a statute of limitations claim. Rather, he was
charged with, and convicted of, murder committed during rape and sodomy—which does
not constitute separate charges and convictions for murder, rape, and sodomy. (See
People v. Williams (1988) 44 Cal.3d 883, 925-927 & fn. 22.) If the Legislature had
intended the section 667.6, subdivision (a) enhancement to apply to such a murder, it
would have explicitly included in subdivision (e) the crime of murder committed with
said special circumstances. It did not, and we have no authority to write into the statute
something left out by the Legislature. Indeed, the Legislature may have recognized it is
unnecessary to attach a five-year sentencing enhancement to a crime punishable by life
without the possibility of parole.

       Because the five-year enhancement does not apply, we must modify the judgment
by striking that finding and sentence.

                                             21
       We note however that, citing People v. Jones (1993) 5 Cal.4th 1142 at pages
1144-1145 and 1153, the trial court did not impose the one-year prior prison term
enhancement (§ 667.5, subd. (b)) because it had imposed the section 667.6 five-year
enhancement for the conviction that was the basis for the prior prison term. (See also
People v. Flournoy (1994) 26 Cal.App.4th 1695, 1700-1702.) Since the trial court made
clear it would have imposed a consecutive one-year enhancement had it not been for the
five-year enhancement, we shall modify the sentence to include the section 667.5,
subdivision (b) enhancement.

                                      IV. Sentencing

       Lastly, defendant contends, and the People concede, that the trial court did not
specify whether the term of life without the possibility of parole for the special
circumstances murder was to be served consecutively or concurrently with the life
sentence that defendant was already serving; thus, the abstract of judgment must be
amended to reflect that the sentence imposed in this case is to be served concurrently
with the existing prison term. (§ 669.)

                                 V. Presentence Credits

       Pursuant to this court‟s miscellaneous order No. 2010-002, filed March 16, 2010,
we deem defendant to have raised the claim that amendments to section 4019, effective
January 25, 2010, apply retroactively to his pending appeal and entitle him to additional
presentence credits. However, the amendments do not apply to him because he was
convicted of a violent and serious felony. (§§ 1192.7, subd. (c)(1), 667.5, subd. (c)(1),
former 4019, subds. (b), (c) [Stats. 2009-2010, 3d Ex. Sess., ch. 28, § 50], 2933 [as
amended by Stats. 2010, ch. 426, § 1, eff. Sept. 28, 2010].)




                                             22
                                      DISPOSITION

       The true finding on the section 667.6, subdivision (a) allegation is reversed, the
consecutive five-year term imposed thereon is stricken, and the judgment is modified to
impose a consecutive one-year term for the section 667.5, subdivision (b) enhancement
found to be true. As modified, the judgment is affirmed. The trial court is directed to (1)
amend the abstract of judgment accordingly, (2) further amend the abstract to reflect that
the term of life without the possibility of parole for the murder with special circumstances
is to run concurrently with the term then being served by defendant, and (3) send a
certified copy of the amended abstract to the Department of Corrections and
Rehabilitation.




                                                             BUTZ                     , J.



We concur:



             NICHOLSON             , Acting P. J.



             HULL                  , J.




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