Dungo

The Sixth Amendment to the United States Constitution grants a criminal defendant the right to confront adverse witnesses. This is the second in a trio of cases before us involving that right. The two companion cases are People v. Lopez (2012) 55 Cal.4th 569 , and People v. Rutterschmidt (2012) 55 Cal.4th 650 .

At defendant Reynaldo Santos Dungo’s murder trial, a forensic pathologist testifying for the prosecution described to the jury objective facts about the condition of the victim’s body as recorded in the autopsy report and accompanying photographs. Based on those facts, the expert gave his independent opinion that the victim had died of strangulation. Neither the autopsy report, which was prepared by another pathologist who did not testify, nor the photographs were introduced into evidence. Unlike the Court of Appeal, we conclude that the expert’s testimony did not give rise to a right by defendant to question the preparer of the autopsy report.

I

A. Facts

Defendant and Lucinda Correia Pina became romantically involved in 2005. Pina lived in Stockton, San Joaquin County, and was in the process of divorcing her husband. Defendant and his daughter also lived in…

I concur in the reasoning and result of the majority opinion, which I have signed. I write separately to explain in more *622 detail why the anatomical and physiological observations recorded by a forensic pathologist in an autopsy report should not be considered testimonial, as that term has been used in Crawford v. Washington (2004) 541 U.S. 36 [ 158 L.Ed.2d 177 , 124 S.Ct. 1354 ] (Crawford) and its progeny.

As the majority explains (maj. opn., ante, at p. 619), the autopsy report by Dr. George Bolduc, who conducted the autopsy but did not testify at trial, was not admitted into evidence; the question of whether the autopsy report itself was testimonial is thus not before us. In addition, the testifying pathologist, Dr. Robert Lawrence, gave his own expert opinions as to the cause and manner of death rather than relaying those reached by Dr. Bolduc; hence, the question of whether such recorded conclusions are testimonial is also not before us. Like the majority, therefore, I focus exclusively on Dr. Lawrence’s repetition to the jury of anatomical and physiological observations Dr. Bolduc recorded in his report, upon which Dr. Lawrence based his conclusions. Of these, the most…

I concur fully in the majority opinion, which I have signed. I write separately to explain why Dr. Lawrence’s testimony did not violate defendant’s federal confrontation rights under the United States Supreme Court’s recent decision in Williams v. Illinois (2012) 567 U.S._ [ 183 L.Ed.2d 89 , 132 S.Ct. 2221 ] (Williams).

*628 Unfortunately, as the majority opinion explains (maj. opn., ante, at p. 618), the high court had a majority for its result in Williams , but there was no majority explanation for this result. It took a combination of two opinions— each containing quite different reasoning-—to achieve the majority result: (1) the plurality opinion authored by Justice Alito and joined by Chief Justice Roberts and Justices Kennedy and Breyer, and (2) Justice Thomas’s opinion concurring in the judgment. Neither the plurality’s nor Justice Thomas’s reasoning gained majority support. Indeed, a majority of the court (Justice Thomas and the four dissenters) disagreed with the plurality’s reasoning. (See People v. Lopez (2012) 55 Cal.4th 569 [discussed in maj. opn., ante, pp. 618-619].) This situation makes it difficult to determine what to make of that decision.

“When a fragmented…

I respectfully dissent. I would hold that Dr. George Bolduc’s autopsy report was sufficiently formal and primarily made for an evidentiary purpose, as the United States Supreme Court has explicated those terms to date. Dr. Bolduc’s report contained anatomical observations about which another forensic pathologist testified. High court authority compels the conclusion that admitting this testimony violated defendant’s confrontation rights.

Dr. Bolduc performed an autopsy on Lucinda Pina and prepared an autopsy report with accompanying photographs. We have taken judicial notice of that report, which is not certified. The prosecution did not call Dr. Bolduc as a witness, presenting instead Dr. Robert Lawrence. The prosecution did not indicate that Dr. Bolduc was unavailable, and defendant objected to the witness substitution. Defense counsel’s hearsay objection to Dr. Lawrence’s testimony was overruled.

Dr. Lawrence told the jury that he relied on Dr. Bolduc’s autopsy report and accompanying photographs as a basis for his testimony. Neither the report nor photographs were admitted in evidence. Although he had not been present during the procedure, Dr. Lawrence testified about the…

Filed 10/15/12 (see lead case, S177046, and companion case, S176213, also filed 10/15/12)

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

) Plaintiff and Respondent, ) ) S176886 v. ) ) Ct.App. 3 C055923

REYNALDO SANTOS DUNGO, )

) San Joaquin County Defendant and Appellant. ) Super. Ct. No. SF100023A ____________________________________)

The Sixth Amendment to the United States Constitution grants a criminal defendant the right to confront adverse witnesses. This is the second in a trio of cases before us involving that right. The two companion cases are People v. Lopez (Oct. 15, 2012, S177046) ___ Cal.4th ___, and People v. Rutterschmidt (Oct. 15, 2012, S176213) ___ Cal.4th ___. At defendant Reynaldo Santos Dungo‘s murder trial, a forensic pathologist testifying for the prosecution described to the jury objective facts about the condition of the victim‘s body as recorded in the autopsy report and accompanying photographs. Based on those facts, the expert gave his…