Filed
2/25/13 P. v. Gary CA5
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
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Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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as specified by rule 8.1115(b). This
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
BUDDY RAY GARY,
Defendant and Appellant.
F063769
(Super.
Ct. No. 1256526)
APPEAL from
a judgment of the Superior Court of
County. John D. Freeland, Judge.
Matthew H.
Wilson, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Charles A. French and John G.
McLean, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Following a 2011 jury trial, appellant Buddy Ray Gary was
convicted of a first degree felony murder that occurred in 1976. (Pen. Code, § 187, subd. (a).)
term of seven years to life, the allowed sentence in 1976. The sentence was ordered to run consecutively
to a 25-year-to-life prison term that Gary was already serving.
On appeal,
we reject Gary’s contention that he was denied his right to confront adverse
witnesses in violation of the Sixth
Amendment to the United States Constitution. We agree with his contention that the
imposition of fines under sections 1202.4 and 1202.45 violates the prohibition
against ex post facto laws and the
matter must be reversed and remanded for a restitution hearing as described in
this opinion. In all other respects, we
affirm.
FACTS AND TRIAL COURT PROCEEDINGS
On the
morning of August 30, 1976, Florence Millard, a widow in her 80’s, was found
semiconscious and crying in the hallway of her home, her hands tied and her
face beaten beyond recognition. She had
a nightgown and bloody bra around her neck.
There was blood spattered on the walls in the hallway and on the floor
in the bedroom. The metal lattice was
torn away from the front screen door; a hole was punched in the screen on the
back door and a tool had been used to unlock it. Millard died at the hospital on September 11,
1976.
Homicide
Detective Elvin Thomason, who worked on the case in 1976 and has now retired,
testified that he responded to the scene of the assault and then went to the
hospital where Millard was taken. He
described Millard’s face as badly beaten and swollen, with two black eyes. She had a two-inch cut on the right side of
her chin. He was not able to observe any
other parts of her body. Thomason
visited Millard at the hospital on several subsequent occasions before she
died, each time she was unconscious.
During the
course of his subsequent investigation, Detective Thomason obtained a diamond
ring from a local pawn shop. The officer
suspected the ring came from Millard’s house, and Gary became a suspect based
on some unnamed association with the ring.
But Gary was just one of four or five suspects at the time, and the case
remained unsolved.
In 2007,
Detective Craig Grogan, assigned to cold cases, learned about a box of evidence
from this case. Grogan sent a number of
those items in for DNA testing, including a throw rug Millard was found lying
on and recovered from the scene. At some
point, Grogan met with Gary and took a buccal swab from him. DNA from a semen stain on the rug was a match
to the DNA sample obtained from Gary.
The odds that the sample was not Gary’s DNA were one in 410
quintillion.
Dr.
Ernoehazy, the coroner who performed the autopsy on Millard, was not alive at
the time of trial. But a forensic
pathologist, Dr. Sung-Ook Baik, testified that he reviewed the photographs of
the victim in life and at the scene of the attack, the transcript of the
preliminary hearing, the statements of Millard’s neighbor, an investigative
report prepared on the day of the attack, the victim’s death certificate which
stated that Millard died of bronchopneumonia and atelectasis of the lung, the
1976 observations and notations of the coroner who performed the autopsy, and
statements made by a Dr. William Ricketts.
The original coroner’s diagnosis and conclusions were excluded from the
report reviewed by Dr. Baik.
Dr. Baik’s
review of the above mentioned documents revealed that when Millard was found,
she was semicomatose and had suffered a cerebral concussion. At the time of her death, she had bruises on
both sides of her face, her left eye, her temples, the right side of her neck,
the front and back of her head, her left shoulder and her upper
extremities. She had a fracture on the
left facial bone, three fractured ribs on the left side, five fractured ribs on
the right side, and a fractured sternum.
There were hemorrhages on the front, back and both sides of her
head. She had bronchopneumonia and a
collapsed left lung.
Dr. Baik
noted from the autopsy report that the victim had had severe arteriosclerotic
coronary artery disease and had previously undergone surgery for an abdominal
aortic aneurysm related to her cardiovascular disease. The autopsy made clear that there was no
damage to the surgical repair. According
to Dr. Baik, cardiovascular disease was not unusual for someone 81 years of
age.
Based on
his review, Dr. Baik opined that Millard died of blunt-force injury to the
head, face, chest, and upper extremities, which was complicated by
bronchopneumonia. Dr. Baik opined that
arteriosclerotic cardiovascular disease was a significant finding, but was not
a contributing factor in Millard’s death.
According to Dr. Baik, it was not unusual for a hospitalized elderly
person to develop pneumonia because they have a reduced immune system, which is
further reduced by trauma, making them more susceptible to infection.
The defense
presented no witnesses, but Gary’s defense was that there was insufficient
evidence to prove that he caused Millard’s death, due to her advanced age, underlying
health problems, and the discrepancies or uncertainties in the medical
reports. Defense counsel urged the jury
to discount Dr. Baik’s testimony since he had to rely on documents prepared by
others many years earlier.
DISCUSSION
I. RIGHT TO CONFRONT WITNESSES
Gary
contends that he was prejudicially denied his Sixth Amendment right to confront
witnesses against him when the trial court allowed Dr. Baik, who did not
perform the autopsy on Millard, to use the observations and notations from the
autopsy report to testify about the cause of her death. He also contends that Dr. Baik improperly
relied on a police report, which included a statement by Dr. Ricketts
concerning the extent of Millard’s injuries.
In support of his position, Gary relies on several decisions of the
United States Supreme Court, commencing with Crawford v. Washington (2004) 541 U.S. 36 (
did not abridge Gary’s confrontation rights.
Background
Gary was charged with the first
degree murder of Millard. Before trial,
the prosecution asked that pathologist Dr. Baik be allowed to testify because
the original pathologist, who conducted the autopsy 35 years earlier, had
died. The prosecution argued that Dr.
Baik would not have access to the original pathologist’s autopsy report, but
would instead have reviewed the preliminary
hearing transcript, all exhibits admitted at the preliminary hearing, the
death certificate, various photographs, and police reports. The prosecution stated that, from that
material, Dr. Baik would testify that the cause of death was pneumonia, which
was “secondary†to the injuries sustained in the original assault. Defense counsel objected to the evidence
based on the then recent case of Melendez-Diaz
v. Massachusetts (2009) 557 U.S. 305
(Melendez-Diaz). Defense counsel argued that, if Dr. Baik
looked at “slides, specimens [and] things of that nature, that one’s
thing. But if he’s relying on, again,
somebody else’s verbiage, I don’t believe that’s sufficient.†Later, defense counsel again voiced objection
to Dr. Baik’s testimony derived from reports prepared by others and that were
not based on his own direct observation of “slides, photos [and] medical
records.â€
Following
an Evidence Code section 402 hearing, in which Dr. Baik testified that he had
in fact read the autopsy report but not the original pathologist’s findings or
conclusions, the trial court admitted the testimony. At trial, Dr. Baik testified that he had
reviewed the evidence and testimony from the preliminary hearing, including the
statements of Dr. Ricketts, along with the autopsy report, but minus the
original pathologist’s findings and conclusions. With that information, Dr. Baik opined that
the cause of Millard’s death was due to multiple blunt force injury,
complicated by pneumonia and
arteriosclerosis.
Law and Analysis
In
the Supreme Court considered the admissibility at trial of a tape-recorded
statement made by the defendant’s wife to police. Because the witness did not testify at trial
due to a state marital privilege statute, the defendant argued that admission
of his wife’s out-of-court statement violated his federal constitutional right
under the Sixth Amendment to confront witnesses offering testimony against
him. (Id. at p. 40.) The Supreme
Court agreed, stating that “[t]estimonial statements of witnesses absent from
trial [may be] admitted only where the declarant is unavailable, and only where
the defendant has had a prior opportunity to cross-examine.†(Id.
at p. 59, fn. omitted.)
The
two-prong Crawford test of witness
unavailability and prior opportunity to cross-examine applies only to
statements that are “testimonial,†not nontestimonial hearsay. (Crawford,
supra, 541 U.S. at p. 68.) Although
the Crawford court declined to “spell
out a comprehensive definition of ‘testimonial,’†it explained that “[w]hatever
else the term covers, it applies at a minimum to prior testimony at a
preliminary hearing, before a grand jury, or at a former trial; and to police
interrogations. These are the modern
practices with closest kinship to the abuses at which the Confrontation Clause
was directed.†(Ibid.)
In
817 (Davis), the Supreme Court
considered whether statements made to law enforcement personnel during a 911
call or at a crime scene are “testimonial†and thus subject to the requirements
of the Sixth Amendment’s Confrontation Clause.
The court concluded that “[s]tatements are nontestimonial when made in
the course of police interrogation under circumstances objectively indicating
that the primary purpose of the interrogation is to enable police assistance to
meet an ongoing emergency,†but “[t]hey are testimonial when the circumstances
objectively indicate that there is no such ongoing emergency, and that the
primary purpose of the interrogation is to establish or prove past events
potentially relevant to later criminal prosecution.†(Id.
at p. 822, fn. omitted.)
In
United States Supreme Court addressed whether notarized certificates by lab
analysts describing the existence and quantity of contraband (cocaine) in bags
found in the defendant’s possession were “testimonial,†making their admission
into evidence violative of the Confrontation Clause. The certificates were prepared nearly a week
after the tests of the contraband were performed. (Id.
at p. 315.) The court concluded that the
certificates, which constituted affidavits, fell within the “‘core class of
testimonial statements’†proscribed by Crawford (Melendez-Diaz,
supra, at p. 310), and that they were “functionally identical to live,
in-court testimony, doing ‘precisely what a witness does on direct
examination.’ [Citation.]†(
showing that the analysts were unavailable to testify at trial
opportunity to cross-examine them, [the defendant] was entitled to ‘“be
confronted withâ€â€™ the analysts at trial.
[Citation.]†(
omitted.)
In
U.S.___[131 S.Ct. 2705] (Bullcoming),
the Supreme Court considered the admission of a laboratory report of a forensic
analyst who tested the defendant’s blood sample and certified that the blood
alcohol concentration (BAC) in the sample was 0.21 grams per hundred
milliliters, “an inordinately high level,†which supported the defendant’s
conviction of aggravated drunk driving.
(Id. at pp. 2710-2711.) The Supreme Court held that the admission of
the report violated the Confrontation Clause because “[t]he accused’s right is
to be confronted with the analyst who made the certification, unless that
analyst is unavailable at trial, and the accused had an opportunity, pretrial,
to cross-examine that particular scientist.â€
(Id. at p. 2710.) In so holding, the court rejected the New
Mexico Supreme Court’s conclusion that the live testimony of another analyst
satisfied the constitutional requirement of confrontation, noting that the testifying
analyst, who had neither participated in nor observed the blood test “could not
convey what [the certifying tester] knew or observed about the events his
certification concerned, i.e., the particular test and testing process
employed.†(Id. at p. 2715, fn. omitted.)
Neither could the testifying analyst “expose any lapses or lies on the
certifying analyst’s part.†(
In the
recent case of Williams v. Illinois
(2012) 567 U.S. ___ [132 S.Ct. 2221] (Williams)
the Supreme Court considered a forensic DNA expert’s testimony that included
her reliance on a DNA profile from a rape victim produced by an outside
laboratory in the expert’s matching of that profile to a DNA profile the state
laboratory produced from the defendant’s blood sample. (Id.
at pp. 2222-2223.) Justice Alito writing
with the concurrence of three justices and with Justice Thomas concurring in
the judgment, concluded that the expert’s testimony did not violate the
defendant’s confrontation rights. The
plurality held that the outside laboratory report, which was not admitted into
evidence (id. at pp. 2230, 2235), was
“basis evidence†to explain the expert’s opinion, was not offered for its
truth, and therefore did not violate the Confrontation Clause. (Id.
at pp. 2239-2240.) The Supreme Court
concluded further that, even had the report been offered for its truth, its
admission would not have violated the Confrontation Clause, because the report
was not a formalized statement made primarily to accuse a targeted individual. (Id.
at pp. 2242-2244.) Applying an objective
test in which the court looks “for the primary purpose that a reasonable person
would have ascribed to the statement, taking into account all of the
surrounding circumstances†(id. at p.
2243), the Court found that the primary purpose of the outside lab report “was
to catch a dangerous rapist who was still at large, not to obtain evidence for
use against [the defendant], who was neither in custody nor under suspicion at
that time.†(Ibid.) Further, the Court
found that no one at the outside laboratory could have possibly known that the
profile it generated would result in inculpating the defendant, and there was
therefore no prospect for fabrication and no incentive for developing something
other than a scientifically sound profile.
(Id. at pp. 2243-2244.)
Two even
more recent California Supreme Court cases merit discussion.
supra, 55 Cal.4th 569, the defendant challenged on Confrontation Clause
grounds the introduction of a nontestifying laboratory analyst’s report
indicating the percentage of alcohol present in the defendant’s blood sample
drawn two hours after a fatal traffic accident; in admitting the evidence, the
prosecution utilized the testimony of a colleague of the analyst who had
prepared the report. (
supra, 541 U.S. 36 and its progeny as requiring the presence of “two
critical components†in order for a statement to be “‘testimonial’†for
purposes of the Confrontation Clause. (
out-of-court statement must have been made with some degree of formality or
solemnity†(id. at p. 581), and
(2) the statement’s “primary purpose pertains in some fashion to a criminal
prosecution†(id. at p. 582). Because it concluded that the lab analyst’s
report did not have the required formality or solemnity, the court concluded
that it was not testimonial. (
In
Dungo, supra, 55 Cal.4th 608, which is most akin to the situation here, our
Supreme Court addressed whether the defendant’s confrontation rights were
violated where a forensic pathologist testified concerning the cause of death
of the victim (strangulation), utilizing facts taken from an autopsy report
prepared by a nontestifying pathologist and photographs of the victim. (Id.
at p. 614.) The court rejected the
defendant’s claim, holding that neither of the two requisite components of a
testimonial statement were present. The
court concluded that the statements contained in the autopsy report – which was
not introduced into evidence – were (1) “less formal than statements setting
forth a pathologist’s expert conclusions†and were akin to a physician’s
nontestimonial “observations of objective fact†in diagnosing a patient’s
injury or malady and indicating the appropriate treatment for it (
investigation was not the primary
purpose for the autopsy report’s description of the condition of [the victim’s]
body; it was only one of several purposes.â€
(Id. at p. 621). “The autopsy report itself was simply an
official explanation of an unusual death, and such official records are
ordinarily not testimonial.†(
324.)
Here, the
facts from the autopsy report that Dr. Baik related to the jury were not so
formal and solemn as to be considered for testimonial purposes of the Sixth
Amendment’s confrontation right, and criminal
investigation was not the primary purpose for recording the facts in
question, it was only one of several purposes.
(Dungo, supra, 55 Cal.4th at
p. 621.) Thus, drawing upon our high
court’s recent Dungo decision, Dr.
Baik’s description to the jury of objective facts about the condition of victim
Millard’s body, facts he derived, in part, from the coroner’s autopsy report
the evidence and testimony from the preliminary hearing, did not give Gary a
right to confront and cross-examine the original coroner himself. Thus, Gary’s Sixth Amendment right was not
violated by Dr. Baik’s testimony.
As for Dr.
Baik’s reliance on Dr. Rickett’s statements regarding Millard’s broken ribs, we
note first that Detective Thomason, who made the report which contained those
statements, testified at trial and was cross-examined by the defense. But to the extent that the statements by Dr.
Ricketts, which consisted only of the statement that Millard’s finjuries to her
ribs consisted of three rib fractures on the left side and five rib fractures
on the right side, were improperly relied upon by Dr. Baik, its admission was
harmless “‘“beyond a reasonable doubt.â€â€™
[Citation.]†(
571.)
The jury
was instructed, pursuant to CALCRIM No. 620, in pertinent part as follows:
“There may be more than one cause of death. An act causes death only if it is a
substantial factor in causing the death.
A substantial factor is more
than a trivial or remote factor.
However, it does not need to be the only factor that causes the
death.â€
Aside from
Dr. Baik’s testimony, the evidence at trial was that Millard was
self-sufficient and in excellent health prior to the attack; when she was
found, she was tied up, crying and beaten beyond recognition; when officers
arrived, she was semiconscious with blood spattered on the walls; the detective
who visited Millard in the hospital over the course of several days spoke to
her briefly the first day, but she was unconscious on each of the other occasions;
and Millard died 11 days after the attack.
In addition, aside from the reports of Drs. Ernoehazy and Ricketts, Dr.
Baik also relied on photographs of Millard prior to and after the attack, the
transcript of the preliminary hearing (aside from Dr. Ricketts statements), and
the statements of Millard’s neighbor in arriving at his opinion on the cause of
Millard’s death.
Any error
in the admission of Dr. Baik’s testimony regarding the reports of Drs.
Ernoehazy and Ricketts was harmless beyond a reasonable doubt.
II. IMPOSITION OF FINES
At
sentencing, the trial court imposed a $10,000 fine pursuant to section 1202.4
and a suspended parole revocation fine in the same amount under section
1202.45. Gary contends, and the People
agree, that the $10,000 parole revocation fine imposed pursuant to section
1202.45 must be stricken, and the $10,000 restitution fine imposed pursuant to
section 1202.4 must be vacated and the matter remanded to the trial court for a
hearing on Gary’s ability to pay restitution.
We agree as well.
Gary
committed the offense in this case before the January 1, 1984, operative date
of amended Penal Code section 1202.4 and the August 3, 1995, operative date of
Penal Code section 1202.45. Thus, these
fines cannot be imposed without violating the constitutional prohibition
against ex post facto laws. (See, e.g.,
667, 676, 678 [§ 1202.45]; People v.
Downing (1985) 174 Cal.App.3d 667, 672 [§ 1202.4].)
But, as
Gary acknowledges, the version of Government Code section 13967
that a restitution fine of at least $10 but not to exceed $10,000 should be
imposed after the trial court inquired into the defendant’s present ability to
pay and the economic impact of the fine on the person’s dependents. (Stats. 1973, ch. 1144, § 2, p. 2351;
see also People v. McCaskey (1985)
170 Cal.App.3d 411, 414.) Thus, this
matter should be remanded for a hearing which complies with the version of
Government Code section 13967 in effect at the time of the murder in this case,
and to determine Gary’s ability to pay and the effect of any fine on Gary’s
dependents, if there are any.
There was
no version of section 1202.45 in effect at the time of the murder in this
case. The parole revocation fine imposed
pursuant to that section must be stricken.
The parole revocation fine imposed pursuant to section
1202.45 is stricken. The restitution
fine imposed pursuant to section 1202.4 is vacated and this matter is remanded
for a restitution hearing as described in this opinion. In all other respects, the judgment is
affirmed.
_____________________
Franson, J.
WE CONCUR:
_____________________
Kane, Acting P.J.
_____________________
Poochigian, J.
name="_ftn1" title="">[1] Further
statutory references are to the Penal Code unless otherwise stated.
name="_ftn2" title="">[2] On
July 2, 2012, this Court asked the parties for supplemental briefing addressing
Williams, which was decided June 18,
2012, after briefing in this case was completed.
