Dellinger

Concurring and Dissenting.

I

“If a witness is testifying as an expert, his [or her] testimony in the form of an opinion is limited to such an opinion as is: ... [fj (b) Based on matter . . . perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his [or her] testimony relates, ...” (Evid. Code, § 801, italics added.) “Frequently, a controlled experiment may be conducted in an effort to have a particular circumstance of a case replicated. An expert may then testify about the results. Based on those results, the expert may further offer an opinion regarding how the actual circumstance of the case occurred. In such a situation, ‘[t]he relevancy of experimental evidence ordinarily depends upon a showing that the conditions of the experiment were substantially similar to those which gave rise to the issue on which the evidence is offered.’ [Citation.]” (People v. Guillebeau (1980) 107 Cal.App.3d 531, 550-551 [ 166 Cal.Rptr. 45 ].)

The crux of Dr. Ward’s testimony concerned the experiment she conducted…

A jury found appellant, Leland Dellinger, guilty of first degree murder of his two-year-old stepdaughter, Jaclyn. The trial court denied Dellinger’s motion for a new trial, but reduced the conviction to second degree murder. Since several of the errors pointed out by Dellinger prejudiced his ability to receive a fair trial, the conviction must be reversed.

On May 29, 1979, Dellinger picked up Jaclyn from a babysitter. When Diana Dellinger Pena (Pena), her mother, arrived home from work shortly after 6 p.m., Dellinger called for her to hurry. From the top of the stairs she saw Dellinger talking on the telephone and bending over Jaclyn, who was lying unconscious on the kitchen counter. A pan was on the stove and the gate above the stairs was open. Pena asked if Jaclyn was breathing. Dellinger began to cry, banged the counter with his fist, and said, “Jackie, why are you doing this to me?”

Paramedics arrived at the apartment at 6:13 p.m. Dellinger was administering mouth to mouth resuscitation. The paramedics rushed Jaclyn to the hospital where she died at 7:45 p.m.

*290 The police questioned Dellinger about Jaclyn’s injuries. He stated that after returning home with…

A jury found appellant, Leland Dellinger, guilty of first degree murder of his two-year-old stepdaughter, Jaclyn. The trial court denied Dellinger's motion for a new trial, but reduced the conviction to second degree murder. Since several of the errors pointed out by Dellinger prejudiced his ability to receive a fair trial, the conviction must be reversed.

On May 29, 1979, Dellinger picked up Jaclyn from a babysitter. When Diana Dellinger Pena (Pena), her mother, arrived home from work shortly after 6 p.m., Dellinger called for her to hurry. From the top of the stairs she saw Dellinger talking on the telephone and bending over Jaclyn, who was lying unconscious on the kitchen counter. A pan was on the stove and the gate above the stairs was open. Pena asked if Jaclyn was breathing. Dellinger began to cry, banged the counter with his fist, and said, "Jackie, why are you doing this to me?"

Paramedics arrived at the apartment at 6:13 p.m. Dellinger was administering mouth to mouth resuscitation. The paramedics rushed Jaclyn to the hospital where she died at 7:45 p.m.

The police questioned Dellinger about Jaclyn's injuries. He stated that after returning home…