Lopez

The Sixth Amendment of the United States Constitution grants a criminal defendant the right to confront adverse witnesses. That right is at issue in a trio of cases before us. (The two companion cases are People v. Dungo (2012) 55 Cal.4th 608 [ 147 Cal.Rptr.3d 527 , 286 P.3d 442 ], and People v. Rutterschmidt (2012) 55 Cal.4th 650 [ 147 Cal.Rptr.3d 518 , 286 P.3d 435 ].) Each involves the constitutionality of a prosecution expert’s testimony about certain information in a report prepared by someone who did not testify at trial.

Here, defendant Virginia Hernandez Lopez was charged with vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (b)), after her vehicle collided with another, killing its driver. To prove intoxication, the prosecution at trial introduced into evidence a laboratory analyst’s report on the percentage of alcohol in a blood sample taken from defendant two hours after the accident. The analyst did not testify, but a colleague did. A jury found defendant guilty as charged. The Court of Appeal reversed, holding that admission of the nontestifying analyst’s laboratory report and the colleague’s testimony relating some of the report’s…

I agree with the majority that a laboratory assistant’s logsheet notation recording the identification number assigned to defendant’s blood sample was not made with sufficient formality or solemnity to be deemed a testimonial statement under Crawford v. Washington (2004) 541 U.S. 36 [ 158 L.Ed.2d 177 , 124 S.Ct. 1354 ] and its progeny. (Maj. opn., ante, at p. 584.) I also agree with Justice Corrigan the notation was not made with a primary purpose of creating evidence for trial but was, rather, made for the administration of the laboratory’s own affairs, the notation of an identification number being the most rudimentary step in a laboratory routine, one *586 that would be required no matter what use is anticipated for the ultimate analytic results. (Cone. opn. of Corrigan, J., post, at p. 589.)

In dissent, Justice Liu argues essentially that every record made by a laboratory in the course of a forensic analysis is testimonial because a forensic laboratory’s procedures are regulated by state law and the laboratory’s ultimate purpose of creating criminal evidence permeates every step in a forensic analysis. (Dis. opn. of Liu, J., post, at pp. 599-600, 602.) While the United States…

I fully concur in the majority’s result. However, in concluding that the report of analyst Jorge Peña is not testimonial, I would take a different approach. Rather than focus on the formality issue to resolve this case, I would ground the analysis in the primary purpose prong. Applying that prong, I conclude that most of the annotations in Peña’s report qualify as conventional business records. As we explain more fully below, the annotations are not testimonial hearsay under Crawford v. Washington (2004) 541 U.S. 36 [ 158 L.Ed.2d 177 , 124 S.Ct. 1354 ] (Crawford) and its progeny.

In Crawford , the majority observed that, at common law, “[m]ost of the hearsay exceptions covered statements that by their nature were not testimonial—for example, business records . . . .” ( Crawford, supra, 541 U.S. at p. 56 .) Justice Scalia, writing for the majority, did not further explain that characterization. However, subsequent authority elucidates why, in most cases, that observation is accurate.

*588 As the majority here explains, to qualify as testimonial a statement must be both sufficiently formal and made for a specific primary purpose. (Maj. opn., ante, at p. 582.) The majority…

The nine separate opinions offered by this court in the three confrontation clause cases decided today reflect the muddled state of current doctrine concerning the Sixth Amendment right of criminal defendants to confront the state’s witnesses against them. The United States Supreme Court’s most recent decision in this area produced no authoritative guidance beyond the result reached on the particular facts of that case. (See Williams v. Illinois (2012) 567 U.S._ [ 183 L.Ed.2d 89 , 132 S.Ct. 2221 ] (Williams).) Given the array of possible doctrinal approaches left open by Williams , one can only surmise that the high court will soon weigh in again.

In the meantime, it is incumbent upon this court to analyze Williams together with precedents that remain binding on us to identify, as best as we can, the governing principles in this evolving area of law. In discharging that obligation, today’s opinion articulates a two-part definition of testimonial hearsay. “First, to be testimonial the out-of-court statement must have been made with some degree of formality or solemnity.” (Maj. opn., ante, at p. 581.) “Second, all nine high court justices agree that an out-of-court statement is…

Filed 10/15/12 (lead case; see companion cases, S176886 & S176213, also filed 10/15/12)

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

) Plaintiff and Respondent, ) ) S177046 v. ) ) Ct.App. 4/1 D052885

VIRGINIA HERNANDEZ LOPEZ, )

) San Diego County Defendant and Appellant. ) Super. Ct. No. SCE274145 ____________________________________)

The Sixth Amendment of the United States Constitution grants a criminal defendant the right to confront adverse witnesses. That right is at issue in a trio of cases before us. (The two companion cases are People v. Dungo (Oct. 15, 2012, S176886) ___ Cal.4th ___, and People v. Rutterschmidt (Oct. 15, 2012, S176213) ___ Cal.4th ___.) Each involves the constitutionality of a prosecution expert‘s testimony about certain information in a report prepared by someone who did not testify at trial. Here, defendant Virginia Hernandez Lopez was charged with vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (b)), after her vehicle collided…