People v. Dungo, S176886.

• Citation: 286 P.3d 442,55 Cal.4th 608,147 Cal.Rptr.3d 527
• Decision Date: 12 December 2012
• Docket Number: No. S176886.,S176886.
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Reynaldo Santos DUNGO, Defendant and Appellant.

55 Cal.4th 608

286 P.3d 442

147 Cal.Rptr.3d 527

12 Cal. Daily Op. Serv. 13,611

2012 Daily Journal D.A.R. 14,169

The PEOPLE, Plaintiff and Respondent,

v.Reynaldo Santos DUNGO, Defendant and Appellant.

No. S176886.

Supreme Court of California

Oct. 15, 2012.

As Modified on Denial of Rehearing Dec. 12, 2012.^*

See 3 Witkin, Cal. Evidence (5th ed. 2012) Presentation at Trial, § 21 et seq.

Ann Hopkins, under appointment by the Supreme Court, for Defendant and Appellant.

Bartell & Hensel, Donald J. Bartell, Lara J. Gressley; and John N. Aquilina, Riverside, for California DUI Lawyers Association and California Attorneys for Criminal Justice as Amici Curiae on behalf of Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, David A. Rhodes and Daniel E. Bernstein, Deputy Attorneys General; James P. Willett, District Attorney, Edward J. Busuttil, Assistant District Attorney, and Ronald J. Freitas, Deputy District Attorney, for Plaintiff and Respondent.

W. Scott Thorpe; and Albert C. Locher, Assistant District Attorney (Sacramento) for California District Attorneys Association as Amicus Curiae on behalf of Plaintiff and Respondent.

Dolores A. Carr, District Attorney (San Jose) and John Chase, Deputy District Attorney, for California Association of Crime Laboratory Directors as Amicus Curiae on behalf of Plaintiff and Respondent.

KENNARD, J.

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, 147 Cal.Rptr.3d 559, 286 P.3d 469, and People v. Rutterschmidt (2012) 55 Cal.4th 650, 147 Cal.Rptr.3d 518, 286 P.3d 435.

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 Stockton, but his wife and son were staying with his wife's grandparents in Seaside, Monterey County. Defendant's wife viewed this as a temporary separation, and she talked regularly to defendant, but defendant told Pina that he and his wife were divorced.

In April 2006, defendant's friends noticed that he was exhibiting “controlling behavior” towards Pina. Pina told friends and relatives that defendant was “smothering her” and she wanted to end their relationship. That same month, defendant, while at Pina's house, answered a telephonecall to Pina from Isaac Zuniga, who had a prior sexual relationship with Pina; defendant threatened to kill Zuniga if he continued to call Pina. Later, on April 14, Zuniga told Pina about the call. That evening, defendant and Pina went to visit Felipe and Angelique Torres. Pina complained to Angelique that defendant had told Zuniga to stop calling her, and Pina said she was considering raising the issue with defendant.

The next morning, defendant went to see Pina's mother and asked if she knew where Pina was. Defendant said that while he was at Pina's house the previous night, Pina received a telephone call from Zuniga and then left to meet Zuniga. Pina's sport utility vehicle (SUV) was not at her house. Pina's mother then tried repeatedly to reach Pina on her cellphone, without success. That afternoon, the mother called the police.

Local news media reported Pina's disappearance, and they described Pina and her SUV. Thereafter, a Stockton resident told the police that an SUV matching the description was parked on her street. Police officers found Pina's body in the vehicle.

The police arrested defendant, and he eventually admitted killing Pina. He said: After he and Pina left the Torres's home the night of April 14, 2006, they argued at Pina's home. Pina told him to leave and began throwing some of his belongings in a box. She punched defendant lightly on the chin, pushed him, and threw some children's toys at him. He grabbed her by the throat and strangled her. He then wrapped her body in a blanket, put it in her SUV, and drove around aimlessly, eventually abandoning the SUV on the Stockton street where the police later found it.

B. Trial Court Proceedings

Defendant was charged with Pina's murder. Before trial, the prosecution informed the trial court that pathologist George Bolduc, who had performed the autopsy of Pina's body, would not be called as an expert witness. Instead, the prosecution's witness would be forensic pathologist Robert Lawrence, who at the time of trial was Dr. Bolduc's employer.¹ The prosecution did not indicate that Dr. Bolduc was unavailable to testify. Defendant objected to the prosecution's proposed substitution of its expert witness and asked for an evidentiary hearing on the matter. (See Evid.Code, § 402, subd. (b).) The trial court granted the request.

At the pretrial evidentiary hearing, Dr. Lawrence testified on cross-examination by the defense that Dr. Bolduc had at one point been a coroner in Kern County but “was fired,” a fact not disclosed in Bolduc's résumé. Also, in his previous employment as a coroner for Orange County, Dr. Bolduc had resigned “under a cloud.” ² As a result of these incidents, Dr. Lawrence said, some newspaper articles asserted that Dr. Bolduc was incompetent, and prosecutors in several counties in California refused to use him as an expert witness in homicide cases. Dr. Lawrence had seen “no evidence that [Dr. Bolduc] ever did anything incompetent.” He said the allegations against Dr. Bolduc were “generated by people who don't know what they're talking about,” and he described much of the criticism of Dr. Bolduc as “ridiculous” and “patently absurd.” Dr. Lawrence agreed with the conclusion in Dr. Bolduc's autopsy report that Pina died from “asphyxia due to neck compression.”

The trial court ruled that at trial the prosecution could have Dr. Lawrence testify about the cause of Pina's death, but that the defense could cross-examine Dr. Lawrence about Dr. Bolduc's qualifications as a pathologist, as this was relevant to the trustworthiness of the facts stated in Dr. Bolduc's autopsy report.

At the jury trial, Dr. Lawrence testified that after reviewing Dr. Bolduc's autopsy report and the accompanying autopsy photographs, he concluded that Pina had died from asphyxia caused by strangulation. He pointed out that Pina had “hemorrhages in the neck organs consistent with fingertips during strangulation” and that she had “pinpoint hemorrhages in her eyes,” indicating a lack of oxygen. Also supporting strangulation as the cause of Pina's death, Dr. Lawrence testified, were “the purple color of her face,” the “absence of any natural disease that can cause death,” and the fact that Pina had bitten her tongue shortly before death. Dr. Lawrence stated that because Pina's hyoid bone was not fractured, Pina was strangled for “more than two minutes.” Had a fracture occurred, Dr. Lawrence explained, death could have occurred sooner.

Dr. Lawrence did not describe to the jury Dr. Bolduc's opinion about the cause of Pina's death; instead, he only gave his own independent opinion as a forensic pathologist. Dr. Lawrence did not say whether his description of Pina's body at the time of the autopsy (the hemorrhages in Pina's face and eyes, the purplish color of the face, the bite marks on the tongue, and the absence of a fracture of the hyoid bone) was based solely on the autopsy photographs, solely on Dr. Bolduc's autopsy report, or on a combination of them. Neither the autopsy photographs nor Dr. Bolduc's autopsy report was admitted into evidence.³ On cross-examination, defense counsel questioned Dr. Lawrence regarding his views about the cause of Pina's death, but not about Dr. Bolduc's qualifications.

Testifying on his own behalf, defendant said that on the night he killed Pina, he told her of his suspicion that she might be resuming her relationship with Isaac Zuniga. Defendant and Pina began swearing at each other, and Pina told defendant: “I'll fuck whoever I want .... [i]f I want to fuck Isaac, if I want to fuck Anul [Pina's husband], I will do whatever I want.” Defendant grabbed Pina's arm, after which Pina punched him on the chin and bit his arm, saying: “You're not even a good father. You're a lousy fucking father ... you're a worthless piece of shit.” Defendant “snapped.” He grabbed Pina's neck and strangled her, saying: “Fuck you, Lucinda.I'm a good dad. I'm a good dad. I'm not a bad father. Fuck you.”

In closing argument, defense counsel conceded defendant's killing of Pina but argued that the murder was without malice as it occurred in a sudden quarrel or heat of passion, and that therefore defendant was guilty only of voluntary manslaughter, not murder.⁴ The prosecutor, citing Dr. Lawrence's testimony that Pina was strangled for “more than two minutes,” argued that defendant could not have been acting in the heat of passion for that length of time, and that therefore the killing was murder rather than manslaughter.

C. Verdict and Appeal

The jury convicted defendant of second degree murder, and the trial court sentenced him to a prison term of 15 years to life.

The Court of Appeal reversed the judgment. It concluded that Dr. Lawrence's...