1 Filed 9/12/13 P. v. Davis CA1/2 Opinion following remand from Supreme Court NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent,

v. JOHN DAVIS, Defendant and Appellant. A120428
(San Francisco County Super. Ct. No. 190226)

I. INTRODUCTION A jury found John Davis guilty of murder (Pen. Code, § 187 1 ) and also found true special circumstance allegations that the murder was committed in the course of rape and burglary (§§ 190.2, subd. (a)(17)(C) & (G)). Davis was sentenced to life in prison without parole. On appeal, Davis contends the judgment mu st be reversed and a new trial ordered because: (1) the jury conducted an unau thorized experiment; (2) the trial court excluded scientific material relevant to the prosecuti on’s DNA evidence; (3) th e jury was told that
Davis exercised his Miranda 2 rights during a police interview; (4) the prosecutor misled the jury during closing argum ent; and (5) Davis was denied his constitutional right to confront witnesses against him.

1 Statutory references are to the Pe nal Code unless otherwise indicated.

2 Miranda v. Arizona (1966) 384 U.S. 436 ( Miranda ).2 In a decision filed September 14, 2010, this court found that juror misconduct and multiple violations of Davis’s constitutional ri ght to confrontation re quired us to reverse the judgment and remand this case for a new trial. Thereafter, the People filed a petition for review and, on December 21, 2010, th e California Supreme Court granted the People’s petition but deferred taking further ac tion in this case pendi ng consideration and disposition of cases already be fore the court which involved the federal constitutional right to confrontation. ( People v. Davis (Dec. 21, 2010) 2010 Cal. LEXIS 13302 (S187515).) On May 22, 2013, the Supreme Court issu ed another order transferring this case
back to this court with in structions to vacate our Se ptember 2010 decision and to reconsider the cause in light of four cases: Williams v. Illinois (2012) ___ U.S. ___ [132 S.Ct. 2221] ( Williams ); People v. Lopez (2012) 55 Cal.4th 569 ( Lopez ); People v. Dungo (2012) 55 Cal.4th 608 ( Dungo ); and People v. Rutterschmidt (2012) 55 Cal.4th 650 ( Rutterschmidt ). ( People v. Davis (May 22, 2013) 2013 Cal. LEXIS 4431 (S187515).)
The four new cases we have been instructed to consider are relevant to only one of the many claims of error advanced on appeal: Davis’s contention that he was denied his constitutional right to confront witnesses ag ainst him. Therefore, we adopt without change and reaffirm in this opinion the part s of our September 2010 opinion that do not pertain to Davis’s constitutional right to confront ation. In the final part of this opinion,
we reconsider Davis’s confrontation claim. As we will explain, the 2012 cases listed above support the conclusion that Davis was denied his constitutiona l right to confront witnesses against him.
II. STATEMENT OF FACTS
A. The December 1985 Murder On December 4, 1985, at approximately 8:30 p.m., Bobby Adams went to meet his girlfriend, Barbara Martz, at her home at 1510 25th Street in the Potrero Hill district of
San Francisco. Adams found the front door to the house open and Martz lying dead on
the floor inside. Martz was nu de and had been sta bbed and cut several times. The police3 found a blood stained knife that had been taken from Martz’s kitchen on a walkway
between her house and the street. An autopsy was performed by a Dr. Duazo whose report stated that Martz died from loss of blood due to multiple stab wounds . According to the autopsy report, sperm were found in smears taken from Martz’s vagi na and perineal area. Bruising on the victim’s arms and legs was consistent with a struggle. Swabs with blood and sperm recovered from Martz’s body were placed in a sealed envelope and stored in a freezer at
the San Francisco Medical Examiner laboratory. In July 1986, a teen ager went into the basement of a public housing project located at 1626 25th Street in San Francisco, in se arch of his younger relatives. In this underground play area, which neighborhood kids referred to as the “shack,” the boy found credit cards that belonged to Martz. He turned them into the police and then
showed the officers th e shack, where they recovered Martz’s purse and wallet.
B. The 2002 Investigation In 2002, the Martz homicide file was a ssigned to San Francisco Police Investigator James Spillane who reopened the case to determine if there was evidence that could be submitted for DNA analysis. Shortly thereaft er, Spillane took possession of the envelope of evidence collected during Martz’s autopsy from the San Francisco Medical
Examiner’s office.
1. The 2002 DNA Testing In March 2002, Dr. Cydne Holt, supervis or of the DNA section of the Forensic Division of the San Francisco Police Depart ment, received a lab request from Spillane to analyze the Martz autopsy evidence. From th e vaginal swabs that were collected during the autopsy, Holt generated a DNA profile of the contributor of th e sperm sample (the DNA donor profile). Using a process called differential extracti on, Holt isolated a “clean” single-source sperm cell fraction from the swabs. She then used a procedure called polymerase chain reaction (PCR) to generate th e DNA donor profile by focusi ng on specific DNA locations on the cell sample. Loci is a scientific te rm for a specific loca tion on a chromosome4 which contains short tandem repeat (STR) stra nds of DNA that have been identified as useful for DNA profiling. In this case, Holt used the PCR meth od to (1) locate STR strands at nine specific loci, (2) amplify just those areas, and (3) assign a type to those areas by means of a computer program which then generate d a string of numbers that comprised the DNA profile. In June 2002, the DNA donor profile was loaded into the California State Combined DNA Index System (C ODIS) database and, a few months later, the computer reported a match with a DNA sample from Davis that had been loaded into the database as an administrative consequence of a prior robbery and burglary conviction. (See § 295, et seq.) Police investigators used the data base match to obtain a warrant pursuant to which they collected a DNA sample from Davis on October 10, 2002. Bonnie Cheng, a criminalist at the Forens ic Division of the San Francisco Police Department, used the PCR process to analyze Davis’s DNA an d develop his DNA profile. Cheng concluded that Davis’s DNA profile matched the DNA donor profile that Holt had generated from the autopsy sp erm sample at all nine loci.
2. The December 2002 Interview In December 2002, Officer Spillane inte rviewed Davis who wa s in prison at the time. Spillane told Davis that he was looking into an old case and wanted to “rule people in or rule people out as the suspects.” Davi s agreed to talk with Spillane and was read
and waived his Miranda rights. In response to questioning, Davis said that he grew up in the Potrero Hill area of San Francisco, that his address was 1710 25th Street and that he had family who still lived there. Using Polaroid photographs for orientation, Spillane e xplained to Davis that the police had found some property under the foundation of a building near the building where Davis grew up. He then showed Davi s pictures of Martz’s purse and wallet and
asked if he had seen them before. Davis re sponded that he had no t. Spillane said the items were found a long time ago and asked if there was any chance Davis might have seen them. Davis responded that “[i]t’s possi ble” and said that the wallet looked “kinda familiar.” Davis confirmed that, when he lived in that area, he and his friends used to go5 into the underground ar eas of those buildings, that they would make forts out there, and that they found all kinds of things under ther e, like syringes, beer cans, knives, a gun, and that they once found a machete. Spillane as ked if there was any chance that Davis may have touched the purse or wallet that were de picted in the photographs. At first, Davis said he did not think so. But, then Davis admitted that if he had found the wallet when he was a kid, he probably would have opened it and that it was possible that happened. Spillane then showed Davis several pictur es of Martz’s buildin g, both inside and out. Davis said he recognized the building but then repeatedly de nied that he ever burglarized that house. Then Spillane showed Davis several pictures of Martz and asked
whether he had ever seen that woman before. Davis said he had not. When Spillane said that Martz had lived in the house depicted in the other photographs, Davis seemed surprised that a white woman lived in that neighborhood. Davi s repeatedly stated that he did not recognize the woman at all. Spillane asked if Davis had had a conversation with the woman 17 years prior, in 19 85, would he remember it. Davis said he did not know,
but that she did not look familiar to him. Spillane then asked Davis several questions about his sexual partners in 1985. At one point, Davis said “What is this all a bout?” to which Spillane responded: “This
woman lived in this house in 1985 and on December the 4th of that year, she was raped
and murdered in her home.” Spillane also said that the “problem” was that the semen from the rapist had been “DNA tested” and th at it matched Davis. Davis responded “Oh
hell no.” Spillane shared his hypothesis that Davi s went into Martz’s house that day with the intent to do a burglary, that he was surprised and scared when the woman came home, which was understandable, and that he took th e knife from her kitchen just to scare her so he could get out. Spillane said he had to go to the District Attorney, but that he wanted to first give Davis a chance to tell his side of the story. Davis said he did not have a side of the story because it wasn’t him and that was all he could say. Davis repeatedly stated that he did not rape anyone. Spillane suggested that Davis had been carrying a “kind of a poison” around with him, that he thought Davis was remorseful a nd felt badly and that6 the woman’s family needed closure. Davis resp onded: “I ain’t got no more to say to you ‘til I can get an attorney, you know. This is fucked up.”
C. The Case Against Davis An August 12, 2003 , three-count indictment char ged Davis with murder with special circumstances, rape and burglary. Shortly thereafter, the rape and burglary charges were dismissed on th e ground that the statute of limitations had expired. In 2005, Bonnie Cheng r eanalyzed both the sperm- cell sample from the Martz autopsy and Davis’s October 2002 DNA sample. Again us ing the PCR method, Cheng
examined four additional STR strands in th e samples so that th e results could be
combined with the earlie r test results to generate 13-lo cus DNA profiles. Cheng then determined that the 13-locus donor profile an d the 13-locus Davis profile matched at all
13 locations. 3 A jury trial commenced Augu st 6, 2007. The Martz au topsy report was admitted
into evidence as a business reco rd, although Dr. Duazo did not appear at trial. Dr. Amy Hart, the San Francisco Medical Examiner at th e time of trial, testified about the autopsy that Dr. Duazo performed, abou t the evidence that was rec overed and preserved during that autopsy and about the victim’s injuries and cause of death. Officer Spillane testified about his Dece mber 2002 interview with Davis and an audiotape recording of that in terview was played for the jury . Thereafter, the prosecutor asked Spillane several questions about the inte rview and his investigation of this case. During that questioning, Spillane stated that , at some point “apar t from the interview”

3 Holt testified at trial that Cheng performed this add itional testing because of a “desire to develop more information.” Accord ing to Holt, experts have identified 13 loci which are particularly useful for DNA typing . In this case, the PCR testing that was performed in 2002 was done with a Profiler Pl us kit which isolates nine STR strands at nine loci on the DNA sample. Then, in 2005, Cheng used a Cofile r kit to look at the additional four STR strands at f our other loci on the samples.7 that was played for the jury, Davis reported that he lived at 1710 25 th Street during the time period in late 1985 to early January 1986. 4 Spillane testified that 1620-1638 25th Street, the complex where Martz’s purse and credit card were found, is located in be tween Davis’s former residence at 1710 25th
Street and Martz’s former resi dence at 1510 25th Street. Spilla ne testified that he walked
from the former Davis residen ce to the buildings where the property was recovered in approximately 70 seconds and from there to the former Martz residence in 35-40 seconds, completing the entire trip at a normal walking pace in “about just under two minutes.” Spillane also testified that he obtained information about Davis’s brothers as part of his investigation, but that he did not sp eak with them or any of Davis’s family. Spillane confirmed that Davis ha s four brothers, two older a nd two younger than him, and that they all used their moth er’s maiden name as their last name, which was not Davis. 5 During the trial in this case, the court permitted the jury to ask questions of the witnesses. At the conclusion of Spillane’s testimony, a juror inquired whether Spillane
had obtained a DNA refe rence sample from anyon e other than Davis. Spillane responded
that he had not.

4 On appeal, Davis contends that ther e was no evidence regarding his place of residence at the time of the murder. Howe ver, he overlooks the following colloquy from Spillane’s testimony: “Q. Did Mr. Davis report to you his addr ess at that time period in late 1985 to early January 1986? “A. Yes. “Q. What was the address? “A. 1710 25th Street. “Q. That was apart from th e interview that we heard? “A. Yes.”

5 Contrary to the People’s assumption/co ntention, this testimony by Spillane does not establish that Davis’s brothers were half-b rothers. We have no t located any evidence to warrant that assumption.8 The prosecution introduced its DNA evid ence through the testimony of Dr. Holt who, by that time, was the Director of th e San Francisco Police Department’s Forensic
Services Division. Holt testified about the DNA testing she performed in 2002 and also
about the tests that Bonnie Ch eng conducted in 2002 and 2005 . Cheng did not testify at trial. Holt told the jury that the 13-loc us DNA donor profile and the 13-locus Davis profile matched. Holt also testified that Bonnie Cheng ha d performed a statistic al analysis which established that the probability that a “r andom unrelated person” would by chance possess the same male DNA prof ile detected on the sperm fra ctions recovered during the autopsy was “one in seven quintillion for U.S. Caucasia ns, one in 25 quadrillion for African-Americans, one in 52 quintillion for California Hispanics, and one in 99 quintillion for the general Asian population.” The trial judge asked Holt the followin g question, which had been asked by a member of the jury: “If Dr. Holt were able to test Mr. Da vis’ brother’s DNA, would she expect to see matches, and if so how, a pproximately how many markers or loci?” Holt gave the following response: “I can’t say ab solute numbers for that. I can say that the amount of similarity between siblings is expe cted to be closer than between unrelated people. I can say that the amount of sim ilarity between full sibling, meaning both biological parents are the same, would be hi gher than between siblings where only one parent is shared. [¶] And I don’t know par ticulars here necessarily, so I can’t say the number that is likely. I mean those could be estimated, but I haven’t done that type of statistical analysis in this case.” The jury began deliberations on Augu st 17, 2007, and returned a verdict on August 27, finding Davis guilty of murder and that both special circum stance allegations
were true. The trial court denied a motion for new trial and sentenced Davis to life in prison without parole.9 III. DISCUSSION
A. Jury Misconduct
1. Issue Presented and Standard of Review In his motion for a new trial, Davis ar gued, among other things, that the jury committed misconduct during deliber ations by using evidence from outside the record and the expertise of one particular juror to calculate the likelihood that one of Davis’s
brothers matched the 13-locus D NA donor profile. In this cour t, Davis contends that the lower court erred by denying him a new trial on this ground.
“The trial court is vested with broad disc retion to act upon a motion for new trial. [Citation.] When the motion is based upon juror misconduct, the reviewing court should accept the trial court’s factual findings and credibility determinations if they are supported by substantial evid ence, but must exercise its independent judgment to determine whether any misconduct was prejudicial.” ( People v. Dykes (2009) 46 Cal.4th 731, 809.) In the present case, it app ears that the trial court did not make any factual findings or credibility determinations. Indeed, we ha ve been unable to confirm that the court conducted a hearing regarding the alleged misconduct before it denied the motion for
new trial. We do have befo re us, however, pleadings and declarations relating to the juror misconduct motion, all of which were filed under seal in the lower court and subsequently unsealed by orde r of this court. We assu me, absent evidence or any contention to the contrary, that the trial court considered thes e declarations in reaching its conclusion that no prejudici al misconduct occurred. 6

6 Portions of the juror decl arations that pertained to statements made or conduct that occurred in the jury room were ad missible under Evidence Code section 1150, subdivision (a). Those statem ents “are evidence of objectiv ely ascertainable overt acts that are open to sight, hearing, and the other senses and are therefore subject to corroboration.” ( People v. Steele (2002) 27 Cal.4th 1230, 1259-1267 ( Steele ).)10 2. The Juror Declarations Davis’s evidence that an improper expe riment was performed consisted of the declaration of a juror we refer to herein as C.D. 7 C.D. stated that “[a] number of jurors mentioned that they were troubled that no
calculation of the likelihood of a brother of John Davis being the source of the sperm was made,” and that several jurors attempted to calculate that lik elihood, some of whom used their calculators. According to C.D., one juror shared his opinion, which was based on his “own personal medical experience,” that wh atever the odds were that a brother was a match, “it was a very large number.” This ju ror gave the others “a lot of information about genetics that had not been discussed in trial.” The jury used this information and their own personal experience to discuss “statis tical experiments” that could be done to address the concern of several jurors that there was no independent evidence regarding
the likelihood of a match with a brother. C.D. also stated that one juror calculate d the odds of a brother being a match as one in eight million and told th e others that this was a cons ervative estimate. According to C.D., “[i]n the end, we chose the one-in-ei ght million calculation as the “best estimate we could come up with for us e in our deliberations.” In its opposition to the new trial motion, the prosecution argued that “[a]lthough jurors did estimations of the likelihood of a brother having the same DNA profile as Defendant, these actions do not rise to the leve l of misconduct recognized by the courts.” It reasoned that the jury calculations were proper because they di d not utilize extrinsic
evidence but based their estima tes on evidence presented at trial. The prosecution attempted to support this claim with declarations from several jurors. All of the jurors who submitted declarations in this case confirmed that the jury spent time discussing the likelihood that one of Davis’s brothers might share his DNA profile, although many downplayed the significa nce of this issue and insisted that the
calculations were based on the ev idence presented at trial.

7 For privacy sake, we will refer to jurors by their initials rather than their names.11 Juror P.F. disclosed in his declaration th at he proposed a form ula to the jury for calculating the likelihood that a brother might have the same DNA profile as Davis. P.F.’s juror questionnaire, which is part of the appellate record, reflects that he is a psychology professor with a medical degree. In his declaration, P.F. stated that he us ed the “fact that we inherit one allele from
our mother and one allele from our father at each of the 13 locations” to formulate the expression of “1/4 to the 13th power.” P.F. stated that he then “did simple multiplication by hand in the jury deliberation room in front of my fellow ju rors (1/4 times 1/4 times 1/4 times 1/4 . . .).” P.F. recalled that he described his estimate to other jurors as conservative, although he never referred to it as the best estimate. P.F also explained that he proposed this formula after he failed to dissuade a particular juror from speculating that if defe ndant had a brother, that brother might have the same DNA profile. P.F. stated that he “addressed this juror’s speculation using high school level biology and high sc hool level math to estimate fo r this juror the likelihood of a hypothetical brother with the same mother and father as the defendant having the same 13 loci profile as John Davis.” Other jurors from whom the prosecution obtained declara tions made statements to the effect that the jury accepted P.F.’s formul a as valid and that they used it to calculate
the likelihood of brothers with matching DNA. For example, juror J.A. stated that “we
did a numerical calculation based on the evid ence at trial to estimate the chances of a brother having the same DNA,” and that “several of us” did the calcu lation by hand “after
we realized that the calculato rs on our phones would not work for this calculation.” Another juror, N.L., stated: “Since no sta tistical information was giving [sic] on the chances of two brothers matching at all 13 locations, we used the trial testimony that a person inherits one of their mother’s two alle les and one of their father’s two alleles at each location. This gives a 1 in 4 chance that the brothers would have a ma tch at any one location. We then multiplied that number to the 13th power since th ere were 13 locations
tested. I remember the result of the calculati on being around either 1 in 8 million or 1 in 16 million. I do not recall any ju ror using a calculator.”12 Some jurors also acknowledged that one or two of the jurors shared specialized knowledge during deliberations. Juror P.S. st ated that there was a doctor and a nurse on the jury, “but they did not bring their independent knowledge to bear on the
deliberations—other than clarification of the evidence.” Juror J.S. stated that “[t]here were jurors with specialized k nowledge in various fields that applied to the case. While they did use their expertise to analyze certain evidence presented at trial, at no time did any of the jurors express an opinion based on specialized information obtained from
outside sources alone.”
3 Analysis “It is not improper for a juror, regardless of his or her educational or employment background, to express an opinion on a technica l subject, so long as the opinion is based
on the evidence at trial. Jurors’ views of the evidence, more over, are necessarily informed by their life experi ences, including their educati on and professional work. A juror, however, should not discuss an opini on explicitly based on specialized information
obtained from outside sources. Such injection of external in formation in the form of a juror’s own claim to expertise or specia lized knowledge of a matter at issue is misconduct. [Citations.]” ( In re Malone (1996) 12 Cal.4th 935, 963 ( Malone ).)
In Malone, the court found that a juror in a murder trial committed misconduct by expressing to her fellow jurors “negative opinions on the reliability of petitioner's polygraph evidence, based on her own pr ofessional study of psychology.” ( Malone
, supra , 12 Cal.4th at p. 963.) Th e court acknowledged that stat ements by this juror which merely reflected the ev idence and argument presented at trial were “less egregious,” but nevertheless found that the juror’s asserti on that her views were “drawn from her own professional knowledge . . . was an improper injection of extrajudicial specialized
information into the deliberations.” ( Id. at p. 963, fn. 16.)
In contrast to Malone , there was no improper injecti on of extrajudicial specialized information into the ju ry deliberations in Steele, supra , 27 Cal.4th at pages 1259, 1265-
1267. Steele was a death penalty case in which appe llant contended that four jurors with experience in the military a nd in Vietnam committed misc onduct by offering their13 expertise to the other jurors. The Steele court disagreed, finding that the views that were allegedly shared by the jurors in question “were not contrary to, but came within the range of, permissible interpretations” of the evidence presented at trial regarding appellant’s military training and experience in Vietnam and its potential effect on his crimes. ( Id. at p. 1266.)
The Steele court reasoned that there was exte nsive trial evidence pertaining to these issues, much of which was “susceptible to various interpretations.” ( Steele, supra
, 27 Cal.4th at p. 1266.) The court found th at “[a]ll the jurors, including those with relevant personal backgrounds, were entitled to consider this evidence and express opinions regarding it.” ( Ibid .) As the Steele court explained, “it would be an impossibly high standard to permit thes e jurors to express an opin ion on this evidence without relying on, or mentioning, their pe rsonal experience and background.” ( Id . at p. 1267.) The court also acknowledged, however, that “[a] fine line exists between using one’s background in analyzing the evidence, which is appropri ate, even inevitable, and injecting ‘an opinion explic itly based on specialized info rmation obtained from outside sources,’” which constitu tes misconduct under Malone, supra , 12 Cal.4th at page 963. ( Steele, supra , 27 Cal.4th at p. 1266.) Applying these principles to the presen t case, we conclude misconduct occurred. There is no dispute that the jury perform ed a calculation in order to estimate the
likelihood of a DNA match amo ng brothers. Furthermore, the evidence clearly shows that the jurors used a formula to conduct this calculation that was not part of the evidence presented at trial. That formula was supplie d to the jury by one of its members, juror P.F., who had specialized know ledge and expressly identified himself as a specialist to his fellow jurors. Indeed, P.F. admitted th at he shared his fo rmula with the other members of the jury for the ex press purpose of dissuading them from “speculating” as to whether a brother might have perpetrated these crimes. This was not simply an interpretation of ambiguous evidence, as occurred in Steele , but an injection of extrinsic evidence by a specialist.14 The People contend that there was no misc onduct because the jury relied solely on the trial evidence and their own general knowle dge to estimate the possibility that one of Davis’s four brothers shared his DNA profile. This contention is si mply not supported by
the record before us. Several jurors, including, P.F., stated that the jury used the trial evidence that a person inherits one of their mo ther’s two alleles and one of their father’s two alleles at each loci. However, this partic ular piece of evidence was not the formula that the jury used to calcu late the likelihood that brot hers’ DNA would match at the 13-
loci that were tested in this case. That formula was supp lied to the jury by one of its members, not by a trial witness. In other words, in cont rast to the situation in Steele, juror P.F. did not simply use his specialized knowledge to inte rpret the trial evidence. Rath er, he used it to construct a formula that had no support in the trial record . His formula filled an evidentiary void that was expressly acknowledged by the prosecution’ s expert witness, Dr. Holt. As reflected in our foregoing factual summa ry, Dr. Holt testified that it was possible to estimate the likelihood of a matching DNA prof ile among brothers, but that she did not perform that analysis in this case.
4. Prejudice “A juror’s misconduct raises a presumpti on of prejudice, which may be rebutted by proof no prejudice actually resulted. [Citations .] ‘A judgment adverse to a defendant
in a criminal case must be reversed or vacated “whenever . . . the court finds a substantial
likelihood that the vote of one or more jurors was influenced by exposure to prejudicial matter relating to the defendant or to the case its elf that was not part of the trial record on which the case was submitted to the jury.” [C itations.] . . . [¶] “The ultimate issue of influence on the juror is re solved by reference to the su bstantial likelihood test, an objective standard. In effect, the court must examine the extrajudicial material and then judge whether it is inherently likely to have influenced the juro r.” ’ [Citation.] ( Malone,

supra , 12 Cal.4th at pp. 963-964.) “ ‘Such “prejudice analysis” is differen t from, and indeed less tolerant than, “harmless-error analysis” for or dinary error at trial. Th e reason is as follows: Any15 deficiency that undermines the integrity of a trial—which requires a proceeding at which the defendant, represented by counsel, may present evidence and argument before an impartial judge and jury—introduces the tain t of fundamental unfairness and calls for reversal without consideration of actual prej udice. [Citation.] Su ch a deficiency is threatened by jury misconduct . When the misconduct in question supports a finding that
there is a substantial likelihood that at least one juror was im permissibly influenced to the defendant’s detriment, we are compelled to conclude that th e integrity of the trial was undermined: under such circumstances, we cann ot conclude that the jury was impartial. By contrast, when the misconduct does not su pport such a finding, we must hold it nonprejudicial.’ [Citations.]” ( Malone, supra , 12 Cal.4th at p. 964.)
The Malone court found that the prosecution rebutted a presumption of prejudice resulting from the fact that a juror injected specialized kno wledge regarding polygraph evidence into the deliberations by “showing the externally deri ved information was substantially the same as evid ence and argument presented to the jury in court.” (12 Cal.4th at p. 964.) As the court explaine d, “Because [the juror’s] assertions were substantially the same as evid ence and argument presented at trial, her error was much less egregious than similar misc onduct we have found warrant ed reversal. [Citations].
Viewed in context of the evid ence at trial, the misconduct here does not support a finding that at least one juror was improperly influenced to petitioner’s detriment. ( Id. at p. 965.) In the present case, the formula proposed by juror P.F. and adopted by the jury during deliberations was not substantially the sa me as evidence presented at trial. Rather, as discussed above, the formula was proposed and adopted in order to fill an evidentiary void with respect to an issue that the jurors expressly iden tified as relevant to their deliberations. Furthermore, th e juror declarations compel th e conclusion that at least one juror, and likely many more than that, were improperly influenced by the misconduct to
Davis’s detriment. The People argue the misconduct that occu rred in this case should be overlooked for two reasons. First, they contend that th e entire matter was simply irrelevant. The People reason that, since there was absolutely no ev idence that a brother was responsible16 for these crimes, the jury’s experiment coul d not have prejudiced Davis. However, the evidence regarding Davis’s brothers, t hough brief, was not irrelevant and it unquestionably had an impact on this jury. As reflected above, one juror asked Officer Spillane whether other DNA profiles had been tested. There was also a question from a juror as to whether the prosecution’s DNA e xpert had calculated the likelihood of a DNA match among brothers. The prosecution’s tac tical decision not to explore or more fully
address these issues at trial certainly cannot be used to render them irrelevant. Alternatively, the People argue that Davis was not prejudiced because the jury
over-estimated the likelihood of a DNA ma tch between brothers and, thus, the unauthorized experiments inured to Davis’s be nefit. Not surprisingly, Davis’s appellate counsel argues the opposite is true, i.e., that the jury under-estimated the likelihood that
brothers could ha ving matching DNA. As we have already established, the tr ial record does not contain any evidence regarding the likelihood that one of Davis’s brothers matched his DNA. Nevertheless, both parties spend significant time proposing and defending formulas for making that calculation. At least Davis’s appellate counsel attempts to ground his proposed formula in the record of pre-trial proceedings pertai ning to the DNA evidence, which is before us on appeal. The People, by contrast, base their analysis on scientific reports and theories that were never presented to the lower court and that are not a part of the appellate record. For this reason, Davis has moved to strike the People’s analysis from their appellate brief. The People attempt to justif y their decision to provide th is court with what they characterize as “the correct formulae, and va riables to insert into those formulae” by pointing out that they provided citations to the formulae and data “which are readily accessible as public, published materials.”
We would be inclined to grant the motion to strike if not for the fact that the competing formulas and analys es proposed by these parties on appeal reinforce our conclusion that Davis was prejudiced by the una uthorized jury experiment. The parties’ lengthy and complex discussions undermine the People’s efforts to ch aracterize the jury’s unauthorized experiment as nothing more than a high school level math problem. Like17 appellate counsel on both sides of this case, the jury went outside th e trial record for an answer they believed was relevant to the que stion of guilt. The resulting prejudice to Davis requires a reversal of this judgment.
B. Evidence Pertaining to the Arizona Database
Davis contends the trial court erred by excluding evidence of a report titled
“Arizona Nine Plus Locus Match Su mmary Report” (the Arizona Report).
1. Background

a. The Arizona Report In or around July 2005, Bicka Barlow, a deputy public defender in the San Francisco Public Defender’s officer, filed a d eclaration in this case, seeking issuance of an out-of-state subpoena. In her declara tion, Barlow explained that she had become aware that an employee of the Convicted Offe nder Section of the Arizona Department of Public Safety had di scovered multiple instances in whic h a pair of individuals whose DNA samples were included in the Arizona Da tabase matched each other at nine of
thirteen loci. Barlow stated that she had contacted that employee and requested that she “memorialize her findings” in a letter. That request was declined. After consulting experts, Barlow had concluded that the Arizona data was relevant to this case because, among other things, it would “d emonstrate the fallibility of the statistical calculations” that were done by the San Francisco Crime laboratory. On August 24, 2 005, the Honorable Ma ry Morgan, judge of the San Francisco Superior Court, issued a certificate for th e production of out-of-state documents (see § 1334) requesting that a judge of the superi or court for the State of Arizona, Maricopa County, issue an order directing the custodia n of records of the Arizona Department of Public Safety, DNA Data Base Unit, to produce documents in this case including “[r]ecords of any matches within the Arizon a state convicted offender database between two individuals of nine (9) or more loci within the thirteen (13) loci tested using Profiler Plus and Cofiler kits or the fifteen (15) locus Identifier kit.” On September 22, the Honorable James H. Keppel of the Maricopa County Superior Court acted upon Judge18 Morgan’s Certificate by issuing an order to sh ow cause to the custodian of records of the Arizona Department of Public Safety, Product Documents/DNA Database Unit. The custodian of records in Arizona produc ed the Arizona Report to the defense in this case. Although characterized as a report, the five-page document is a spread sheet of data unaccompanied by substantive analysis or any written explanation. The following statement appears at the bottom of each page of this report: “Prepared as a special report by court order. This report is not generated for or used by the Arizona Department of Public Safety Crime Laboratory for any statistical analyses. This report is property of the Arizona Department of Public Safety. Use of this document beyo nd the limitation of the court order by Judge Keppel is not authorized.”
b. The Discovery Motion
The defense used the Arizona Report as support for a pr e-trial motion to discover
the California database that first identified Davis as a match to the DNA donor profile.
Bicka Barlow testified on behalf of the defense at the disc overy hearing. Barlow, who has a background in genetics, identified herself as an attorney-consult ant to the defense in
this case. Barlow testified that the Arizona Report showed that a study of the Arizona database of 65,000 people, pr oduced 122 pairs of people wh o had DNA that matched at nine loci, 20 pairs of people who matched at 10 loci, one pair of people who matched at 11 loci, and one pair, who turned out to be siblings, who matched at 12 loci. Barlow testified that many experts in the field belie ved that the Arizona Study cast doubt on the validity of the random match probability methodology that wa s used in this case. She further testified that many experts believe d they would find a 13-loci match among
unrelated individuals in the California Data base if they had access to it. At the conclusion of the lengthy discov ery proceeding, Judge Morgan denied the defense motion
to discover the California Database. That ruling is not at issue in this appeal.

c. Dr. Holt’s Trial Testimony Before the prosecutor called Dr. Holt to testify, she mo ved to prohibit the defense from questioning Holt about the Arizona Report . She argued the report was irrelevant and unduly prejudicial under Ev idence Code section 352. The defense maintained that19 the report was relevant because it undermin ed or at least called into question the reliability of the so-called “product rule,” which was used to calc ulate the statistical
likelihood of a random match between Davis and the DNA donor profile. The trial court took the matter under submission and proceeded with the trial. Thereafter, the court interrupted Dr. Holt’s trial tes timony in order to conduct an Evidence Code section 402 hearing. During the section 402 hearing, defense counsel cross-examined Holt about the Arizona Report outside the presence of the jury . Counsel stated that he had sent Holt a copy of the report and asked whether she had looked at it. Holt responded that she had
not. Holt testified that she had heard of the Arizona Report, but that she had not seen or
read it and that she could not authenticate th e document that defense counsel showed her. During questioning by the prosecutor, Holt tes tified that she was not aware of any study that concluded the Arizona Repo rt cast any doubt on the re liability of the “product rule” methodology that was used to calculate the random match probability statistics in this case. The defense stipulated that the product rule was generally accepted in the scientific community.
Defense counsel then asked Holt to revi ew the Arizona Report “between now and Monday morning.” The prosecutor objected and the trial court re sponded it would not “allow” that. The court explained: “As I i ndicated off the record, I think that what you really need to do is to bri ng in your own expert. This witness has not reviewed, relied upon, considered the informati on that you had asked her to. She did not, she is not basing her opinion on it in any way. And in order to get this testimony in, I believe that you’re gonna need to bring in your own expert.” Thereafter, the defense called its “investig ator” in this case, Bicka Barlow, to testify as an expert on the “intersection of the legal fi eld and DNA evidence in the courtroom . . . .” Barlow has a masters degr ee in genetics and developmental biology and a law degree, and has previously been empl oyed as a consultant expert in numerous criminal cases. She does not purport to be nor has she ever been qua lified as an expert in the field of population genetics as it relate s to human forensic identification.20 Barlow testified that the Arizona Report co nsists of a “set of data” that can be and has been analyzed by expert s who conduct statistical inte rpretation of DNA data. She also testified that experts had concluded that the Arizona Report undermines the established scientific procedures used to calculate population frequency statistics for human forensic DNA profiles. Barlow admitted, however, that she was not an expert in
that area. As the trial day drew to a close, the c ourt indicated that it wa s “not impressed” by Barlow’s testimony thus far. Defense counse l responded that his other expert was in
Southern California and that it would be impossible to have him in court by the following Monday morning. Defense counsel suggested that he could ask Barlow to communicate with the other expert and ob tain a detailed declaration from him. The court responded
that there would need to be an opportunity to cross-examine the ex pert and the problem was that the defense had failed to lay a proper foundation for the Report. Thereafter, the defense elicited additional testimony from Ba rlow about the content of the Arizona Report, but it did not produce another expert. After the matter was submitted, the trial c ourt ruled that “the study is not relevant in this particular case and any discussion or testimony through Ms. Holt, particularly would only . . serve to conf use the jury, would constitute an undue consumption of time and under [Evidence Code section] 352, it will . . . not be referred to or provide the basis of any questioning to Ms. Holt.” The court reiterated that Dr. Holt had not referred to, considered or relied on the Arizona Report in formulating her opinions and that the report
had not otherwise been establis hed as a reliable publication. On its face, the court found, the document appeared unreliable because it wa s prepared during the course of some other litigation. Furthermore, the court foun d it was inappropriate for Barlow to act as co-counsel, investigator and also an expert witness in the same proceeding and that it would not give her te stimony much weight. When defense counsel argued that it shoul d have wide attitude to cross-examine Holt, the court responded that the defense was attempting to “boot strap” by getting an irrelevant summary before th e jury. The court clarified that it would not prevent the21 defense from presenting its own expert, but that it could not get the summary into evidence through its examin ation of Dr. Holt.
d. The Mueller Declaration The day after Dr. Holt completed her trial testimony, the defense sought clarification of the court’s ruling regardin g the admissibility of the Arizona Report. Outside the jury’s presence, defense counsel stated that it was his understanding from an
off-the-record discussion with the court that the finding that the report was irrelevant would “preclude the defense from bringing its own witness to affirmatively testify regarding those matters,” and asked if that wa s a “fair statement.” The court responded: “I found based on what you put before me at this time that it is irrelevant, that that particular study is irrelevant.” The court also reiterated that it was “not excluding you from presenting an expert witness.” It explained again that, based on the defense presentation, the court concluded that the report was not relevant. It also reiterated that if defense counsel believed it could change the c ourt’s mind, it was free to try, outside the presence of the jury. The following day, the defense filed a “Declaration of Dr. Laurence Mueller.” Mueller, a professor of Ecology and Evolutionary Biology at the University of California, Irvine, stated that he was fam iliar with the Arizona Report. Mueller further stated that he
had reviewed documentation which led him to conclude that the Arizona Department of Public Safety searched for DNA matches in its database by using the same 13 loci that
were used to test the evidence in the present case. Furtherm ore, Mueller stated he had no reason to question the authenticity of the Arizona Report and that the report ‘is the type of material that experts in this field generally rely upon.” Mueller opined that the results of that st udy “are scientifically relevant to every case in which DNA evidence is presented in conjunction with the standard Random Match Probability (RMP) statistica l analysis.” He also stated that the study undermined an essential underlying assumption of the RMP methodology and assessment. Mueller further stated that he had sp oken with several “experts” wh o agreed with him that the Arizona Report was relevant and useable for purposes of statistical analysis.22 During a break in the trial proceedings, the trial court inquired whether defense
counsel wished to disc uss the Mueller declaration which had been filed that morning. Counsel stated: “I simply want to indicate as the Court know s this witness is down in the Los Angeles area. So I, given the Court’s ru lings and my previous statements, I wanted to make sure there was a comple te record as to what the ba sis for our requesting to bring
this evidence in.” The prosecutor objected to the declaration and reques ted that it not be admitted into evidence on the gr ound that she had not had the opportunity to cross-examine Mueller. Defense counsel responded that he thought the pro ffer was “perfectly acceptable” under the circumstances, explai ning that “if Dr. Mueller were in San
Francisco we would have him come in. But given the Court’s ruling, it seemed unlikely
since the Court had indicated that the evidence was not relevant—if the Court believes that this makes it relevant, then I will, we can proceed from there.”
The matter was submitted and the trial cour t issued the followi ng ruling: “The Court cannot accept this declaration for the truth of matter assert ed. It is hearsay. There
is no cross-examination of the declarant. [¶] The Court did review the document and has allowed the defense to file it to preserve any i ssues if there is an appeal. And the Court’s ruling does not change.”
2. Analysis In their appellate briefs, the parties spend significant time debating whether the Arizona Report can properly be us ed to attack the validity of the statistical methodology that was used in this case, a methodology which indisputably has been generally accepted in the scientific community. We will not resolve this debate because questions of relevance and admissibility simply cannot be answered in a vacuum. The question before us is not whether the Arizona Report could be relevant , but rather whether relevance and admissibility were established in this partic ular case. To answer this question, we
consider the evidence that was before the trial court. We will not analyze or address evidence that was presented only to Judge Morgan or that the parties have culled from
sources outside this record.23 In this particular case, the only method by which the defense attempted to present evidence of the Arizona Report to this jury was thro ugh its cross-examination of Dr. Holt. Evidence Code section 721, subdivision (b) (section 721(b)) states: “If a witness testifying as an expert testifies in the form of an opinion, he or she may not be crossexamined in regard to the c ontent or tenor of any scientif ic, technical, or professional text, treatise, journal or similar publication unless any of the followi ng occurs: [¶] (1) The witness referred to, cons idered, or relied upon such publication in arriving at or forming his or her opinion. [¶] (2) The publication has been admitted in evidence. [¶] (3) The publication has been establishe d as a reliable author ity by the testimony or admission of the witness or by other expert testimony or by judicial notice. . . .” By its plain language, section 721(b) pr ecludes cross-examination of an expert about a report unless one of the exceptions set fo rth in that statute ap ply. In the present case, our review of the record confirms thatno exception authorized the defense to crossexamine Holt about th e Arizona Report. The section 721(b)(1) exception did not a pply because, as the trial court found, Holt’s testimony during the section 402 heari ng established that she did not refer to, consider or rely on the Arizona Report in arriving at her opi nion. As reflected above,
Holt testified that she had heard of the report but that she did not read it. Davis contends that section 721(b)(1) was satisfied notwithstanding the fact that Holt did not rely on the Arizona Report. He cites Jefferson’s California Evidence Benchbook (Cont.Ed.Bar 3d ed. 1982) section 29.72, pages 644-645, for the proposition that an expert may be cross-ex amined about a report of a nonw itness expert if “the expert
witness testifies that he or sh e considered or referred to, but did not rely, on” the report.
But the record establishes that Holt did not consider or refer to the Arizona Report. Indeed, she did not even look at it. Davis argues that Holt “can be deemed to have ‘considered’ the Arizona Report”
because she testified that she was familiar wi th some aspects of it. This argument is unsupported by reason or relevant authority. Davis also argues that, even if “the witness must actually have read the publication, rather than merely have heard about it, in order24 to be cross-examined on it, th en the trial court erred when it ordered Dr. Holt not to read the Arizona report.” That is not what happ ened. Rather, the court precluded the defense from ordering Holt to read a report that had not been properly authen ticated and that she had not previously consider ed in reaching her expert opinion in this case. Turning to section 721(b )(2), which authorizes cross- examination of an expert regarding a report that has been admitted in to evidence, this ex ception did not apply because the Arizona Report was not admitted into evidence at trial. On appeal, Davis contends the Report should ha ve been admitted because it was relevant. However, as best we can determine, Davis’s trial counsel never actually offered the Arizona Report
into evidence. In any event, Davis fails to convince us that he made a sufficient showing that the Arizona Report was relevant in this case. Pr eliminarily, we reiterate that this showing
cannot now be made with evid ence that was presented only to Judge Morgan at the pretrial proceeding. Beyond that, Davis contends that Mueller’s declaration establishes that the Arizona Report was relevant and argues that the only reason he did not call Mueller to San Francisco to testify was that the court refused to change its prior ruling that the Report was not relevant. First, the trial court ruled that the Mueller declaration was inadmissible hearsay, a ruling Davis does not dispute on appeal. Second, the court did not preclude Davis from calling Mu eller or any other expert to testify about the Arizona Report; indeed it urged the de fense to do just that. Finally, section 721(b)(3), which authorizes cross-examination of an expert about a report if it has been established as reliabl e by the testimony or admission of any expert or by judicial notice, did not apply in this case. As the trial court noted, the document appeared unreliable on its face because it wa s not published and was accompanied by the disclaimer that it had been pr epared for litigation and produced pursuant to a court order for a very limited purpose. Furthermore, Barl ow’s testimony was insufficient to establish reliability because she was attempting to act as both defense counsel and an expert in the same case. Furthermore, Barlow did not even purport to be an expert at calculating
random match statistics. Nor could the defe nse properly use Barlow to introduce hearsay25 opinions of actual experts on that subject. Finally, as noted above, the court properly
excluded the Mueller declaration because he was not present and available for crossexamination. 8 Therefore, there simply was no ex pert testimony before this trial court establishing the reliability of the Arizona Report. To summarize, the appellate record estab lishes that Dr. Holt did not consider, refer to or rely on the Arizona Report, that report was not ad mitted or even offered into evidence at trial, and the re liability of the report was not otherwise established. Therefore, Evidence Code section 721 precl uded the defense from cross-examining Holt about the Arizona Report. Furthermore, as a purely factual matter, the defense was not precluded from presenting its own expert to testify about the content and import of the Arizona Report.
C. The Prosecutor’s Comment During her closing argument to the ju ry, the prosecutor made the following
comment: “The defendant did su ggest during the trial that th ere was some issue with the
statistics. There is no evid ence however that there was a ny issue with the statistics. None. [¶] Every crime lab in the United States of Americ a, every single one, uses the
same method to calculate these statistics.” Davis argues, as he did in the trial c ourt, that this comment was misconduct because “the sole reason” that contrary sta tistical evidence was not introduced at trial “was because the prosecutor succeeded in excluding it.” According to Davis, the prosecutor’s comment was an improper half-tru th because she blamed the defendant for failing to produce evidence wh en she was the one who prevented him from doing so. To support his conclusion that the comment was misconduct, Davis directs our attention to People v. Frohner (1976) 65 Cal.Ap p.3d 94, 103 ( Frohner ).

8 The parties spend significant time debating the merits of Mueller’s expertise and opinions regarding perceived flaws in the random match probability methodology that was used in this case. We decline to address these issues in light of the fact that Mueller did not appear as an expe rt in this case.26 The Frohner court reversed appellant’s drug co nviction because it found his case was severely prejudiced by (1) the prosecuto r’s failure to make a reasonable effort to
locate the state’s informant and (2) the trial court’s refusal to reopen the case after jury
deliberations commenced once th e informant was located. ( Frohner, supra , 65 Cal.App.3d at p. 110.) The court also noted that other trial errors had occurred including that the prosecutor committed misconduct du ring closing argument by telling the jury that, if the defense had wanted the jury to see the People’s in formant, he could have used a subpoena to bring him in. ( Id . at p. 108.) This comment was inexcusable, the court found, because the prosecu tor knew that a subpoena could not be served on the informant and “[t]he only apparent reason for the commen t” was to improperly “suggest to the jury that defendant had purposely failed to ca ll [the informant] as a witness.” ( Id . at p. 109.) Davis contends that the prosecutor in this case made the same type of comment
that the Frohner court characterized as misconduct. We disagree. The Frohner prosecutor’s comment was improper because he erroneousl y blamed the defendant for failing to produce a witness who was unavaila ble because the prosec utor had failed his duty to make a reasonable effort to locate th at witness. In this case, by contrast, the prosecutor did not violate any duty by objec ting to defense efforts to admit the Arizona Report via its cross-examination of the pros ecution’s expert witness. Thus, there was nothing erroneous or misleading about the pros ecutor’s observation to the jury that the defense challenged the prosecutor’s statistics but failed to produce contrary statistical
evidence. Davis insists that the prosecutor’s co mment was erroneous because she “urged a conclusion–that there was no contrary statis tical evidence–which was wrong, and which the prosecutor knew was wrong.” This cont ention hinges on the premise that the Arizona Report constituted competent cont rary statistical evidence, a premise that the prosecutor rejected and that the defense failed to substan tiate in the trial court. Our review of the
record before us confirms that there was no co ntrary statistical evidence presented at trial and the prosecutor’s re mark to that effect was fair comment.27 Davis intimates that a prosecutor co mmits misconduct by commenting on the
absence of evidence to which he or she successfully objecte d even if that objection was sound. Case law holds otherwise. ( People v. Lawley (2002) 27 Cal.4th 102, 152-156 ( Lawley ).) Misconduct means “the use of dece ption or reprehensible methods to persuade the jury. [Citation.]” ( Id. at p. 156.) Thus, a prosecutor may commit misconduct by improperly capitalizing on errone ous evidentiary rulings during closing argument. However, when “the prosecutor’s argument constituted fa ir comment on the evidence, following ev identiary rulings we have uphe ld, there was no misconduct.” ( Ibid .)
D. Miranda/Doyle Error As reflected in our factual summary above , the jury heard an audiotape recording of Spillane’s December 2002 interview of Da vis which conc luded with the following statement by Davis: “I ain’t got no more to say to you ‘til I can get an attorney you know. This is fucked up.” On appeal, Davis objects to the admission of this quoted statement, contending that th e fact that he implicitly in voked his right to silence by requesting an attorney sh ould not have been used against him. (Citing Miranda, supra, 384 U.S. at p. 468 and Doyle v. Ohio (1976) 426 U.S. 610 ( Doyle ).) Davis forfeited this claim of error by fa iling to raise it in the trial court. ( People v. Huggins (2006) 38 Cal.4th 175, 198-199 ( Huggins ); People v. Ramos (1997) 15 Cal.4th 1133, 1171.) Although Davis’ s trial counsel did move to exclude the entire December 22 interview on the ground that his Miranda rights were violated, the defense never objected that the specific comment quot ed above was inadmissible. Nevertheless, we will address the merits of this argument because Davis c ontends that, if this issue was not properly preserved, he was denied the e ffective assistance of counsel.
In Doyle, supra , 426 U.S. at page 618, the Unite d States Supreme Court held that “it would be fundamentally unfair and a depriv ation of due process to allow the arrested person’s silence to be used to impeach an explanation subseque ntly offered at trial.” As the court explained, “while it is true that the Miranda warnings contain no express28 assurance that silence will ca rry no penalty, such assurance is implicit to any person who receives the warnings.” ( Ibid .) 9
The Doyle rule rests “on the fundamental unfai rness presented by a breach of the implicit promise that the prosec ution will not use at trial a defendant’s sile nce: ‘The point of the Doyle holding is that it is fundamentally un fair to promise an arrested person that his silence will not be used against him and thereafter to breach that promise by using the silence to impeach his trial testimony.’ [Citations.]” ( People v. Quartermain (1997) 16 Cal.4th 600, 619.) Our Supreme Court has acknowle dged that the rationale of
the Doyle rule applies with equal force to comme nts which penalize the exercise of the right to counsel. ( Huggins, supra , 38 Cal.4th at pp. 198-199.) In the present case, eviden ce of Davis’s invocation of his right to counsel was admitted as part of the December 22 interview. However, it does not appear to us that the prosecutor ever made any reference to that invocation during the trial itself. Indeed, it appears the comment was incl uded simply to signify wh en the interview ended. Nevertheless, Davis is adamant that introducing any evidence that he invoked his right to
counsel or silence constituted automatic error. Evidence of the invocation all by itself, Davis reasons, could lead the ju ry to infer that the defendant has something to hide. We reject this proposed automatic error ru le for several reasons. First, Davis fails to cite authority which either articulates or applies such a per se rule. Second, Davis ignores authority holdi ng that it is not always “error to permit evidence that a defendant exercised his right to counsel.” ( Huggins, supra , 38 Cal.4th at p. 198.) Indeed, claims of Doyle error have repeatedly been rejected when, as here, “ ‘the prosecutor did not invite the jury to draw any adverse inference from either the fact or the timing of defendant’s

9 The Doyle rule was foreshadowed in Miranda itself, where the Court stated: “In accord with our decision today, it is impe rmissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute, or claimed his privilege in the face of accusation.” ( Miranda, supra, 384 U.S. at p. 468, fn. 37.)29 exercise of his constitutional right.” ( Id. at p. 199; see also People v. Crandell (1988) 46 Cal.3d 833, 878 ; People v. Hughes (2002) 27 Cal.4th 287, 332, fn. 4.) There may be a case in which the circumst ances raise a legitimate concern that the jury may have drawn an improper inference from evidence that the defendant invoked his
Miranda rights even though the prosecutor did not comment on that invocation. But Davis does not identify any such ci rcumstance in the present case. Under the circumstances presented here , where the invocation of the right to counsel was admitted as part of a recorded statement that was otherwise admissible, where there was no objection raised in the tr ial court, and where the prosecutor did not
use the invocation to invite th e jury to draw an adverse in ference or, indeed, make any reference to the comment at all, we conclude there was no Doyle error. E. Confrontation Clause Rights
1. Issues Presented
Davis contends that the trial court viol ated his constitutional right to confront witnesses against him by admitting evidence of statements made by two non-testifying witnesses: Dr. Duazo, the pathologist wh o prepared the Martz autopsy report, and Bonnie Cheng, the criminalist who performed a significant portion of the DNA testing and analysis that was used to link Davis to these crimes. As noted in our Introduction to this opi nion, the California Supreme Court transfer
order directs us to consider four Confrontatio n Clause cases that were decided in 2012: Williams, supra, 132 S.Ct. 2221; Lopez, supra , 55 Cal.4th 569; Dungo , supra, 55 Cal.4th
608 and Rutterschmidt
, supra , 55 Cal.4th 650. To put these cases in perspective, we begin with a summary of the core principles elucidated in fe deral cases that were decided prior to 2012. We then expl ore how these principles were applied in the four cases referenced in the transfer order. Finally, wi th the guidance of th ese recent decisions, we
will reconsider the confrontation claims that Davis advances in this appeal.
2. Guiding Principles
The Sixth Amendment to the United States Constitution, made applicable to the states via the Fourteenth Amendment, states : “In all criminal pros ecutions, the accused30 shall enjoy the right . . . to be confronted with the witnesses against him . . . .” In Crawford v. Washington (2004) 541 U.S. 36, 68 ( Crawford ), the United States Supreme
Court held that a defendant’s Sixth Amendment right of confr ontation is violated by theadmission of testimonial statements of a witness who was not subject to crossexamination at trial, unless the witness was unavailable to testify and the defendant had a prior opportunity for cross-examination. Crawford overruled Ohio v. Roberts (1980) 448 U.S. 56, 57, which previously held that evidence with “particularized gua rantees of trustworthiness” was admissible
without confrontation. As the Crawford court explained, “[t]o be sure, the Clause’s ultimate goal is to ensure relia bility of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cr oss-examination. . . . [¶] Dispensing with confronta tion because testimony is obvi ously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes.” ( Crawford, supra , 541 U.S. at pp. 61-62.)
The Crawford court declined to “spell out a comprehensive definition of ‘testimonial.’ ” The court anticipated (corr ectly) that its refusal to do so would cause interim uncertainty. ( Crawford, supra , 541 U.S. at p. 68.) In 2009, the high court revisited the question of what cons titutes a testimonial statement in Melendez-Diaz v.
Massachusetts (2009) 557 U.S. 305 ( Melendez-Diaz ). The Melendez-Diaz defendant was convicted of distributing and trafficking cocai ne based, in part, on “ ‘certificates of analysis’ ” that were introduced into evidence at trial. ( Id . at p. 308.) These certificates, which were mandated by and prepared in acco rdance with state law, reported that the results of forensic analysis showed that ma terial the police had seized from the defendant was cocaine. ( Ibid .) The Melendez-Diaz court held that the certif icates were testimonial statements because they were declarations made for the pu rpose of establishing a fact
made under circumstances which would lead the affiant to be lieve or in fact know that the statements would later be used at trial. ( Id . at pp. 310-311.) Therefore, the analysts31 who made the statements were witnesses for purposes of the Sixth Amendment. ( Id . at p. 311.) In reaching its decision, the Melendez-Diaz court made several important points regarding the nature of a testimonial statemen t requiring confrontation. First, a statement
need not be “ ‘accusato ry’ ” for the Confrontation Clause to apply; if the statement is being used against the defendant, it is a dverse testimony even if the individual who prepared it is not a direct accuser. ( Melenzez-Diaz, supra, 557 U.S. at pp. 313-314.) Second, the confrontation requirement is not limited to st atements made by “ ‘conventional’ ” witnesses. ( Id . at p. 315.) Thus, statements are not exempt simply because they (a) recoun t “ ‘near contemporaneous’ ” obse rvations as opposed to recalling
events observed in th e past, (b) do not pertain to observations of the crime or any human action related to it, or (c) were not prov ided in response to interrogation. ( Id. at pp. 315- 317.) Third, statements pertaining to alle gedly “ ‘neutral’ ” scie ntific tests are not excepted from the requirements of the Confrontation Clause. ( Id . at p. 317.) Carving out an exception for scientific testing would, the court explained, resurrect an overruled line of authority which previously held that evidence with “ ‘particularized guarantees of
trustworthiness’ ” was admissibl e without confrontation. ( Ibid .) Fourth, “business records” are subject to the Confrontation Clau se if they are testimonial statements, i.e., statements made for the purpose of establis hing or proving some fact at trial. ( Id . at pp. 321-324.) In this regard, the court expre ssly declined to approve a purported common law rule that coroner’s reports are admissible without confrontation. ( Id. at p. 322.) 10

10 The Melendez-Diaz court also clarified the re lationship between the business records exception to the h earsay rule and the Confront ation Clause, as follows: “Business and public records are generally admissible absent confrontation not because they qualify under an excep tion to the hearsay rules, bu t because—having been created for the administration of an entity’s affair s and not for the purpose of establishing or proving some fact at trial—they are not te stimonial. Whether or not they qualify as business or official records, the analysts’ st atements here—prepared specifically for use at petitioner’s trial—were testimony against petitioner, and the analysts were subject to confrontation under the Sixth Amendment.” ( Melendez-Diaz, supra , 557 U.S. at p. 324.)32 Finally, the Melendez-Diaz court cautioned that the requirements of the
Confrontation Clause cannot be relaxed to ac commodate the “ ‘ “necessities of trial and the adversary process.” ’ ” ( Melendez-Diaz, supra , 557 U.S. at p. 325.) As the court explained, notwithstanding the fact that it ma y make the prosecution of criminal trials more burdensome, the Confront ation Clause “is binding, and we may not disregard it at our convenience.” ( Ibid .) In 2011, the United States Supreme Cour t affirmed the principles it previously
elucidated in Melendez-Diaz in Bullcoming v. New Mexico (2011) 564 U.S. ___ [131 S.Ct. 2705] ( Bullcoming ). In that case, the defendant was convicted of driving while intoxicated (DWI) based in part on “a forens ic laboratory report certifying that [his]
blood-alcohol concentration was well above the threshold for aggravated DWI.” ( Ibid .) At trial, the prosecutor did not call the analys t who prepared and signed the lab report as a witness. Instead, evidence of the report wa s admitted through the testimony of another analyst who was familiar with the blood test procedure but who did no t participate in or
observe the test of the defendant’s blood.
The Bullcoming court held that the defendant was denied his right to confrontation. (131 S.Ct. at p. 2705.) Th e court reasoned that the blood alcohol report was a testimonial statement ( id . at pp. 2716-2717) and that the defendant’s right to confront the analyst who gene rated that report was not satisfied by the live testimony of a surrogate analyst who did not prepare the report or certify that it was accurate. ( Id . at pp. 2714-2716.) In reaching this conclusion, the court rejected the contention that the bloodalcohol report was distinguishable from the Melendez-Diaz certificates because it was an “unsworn” report and was not certified under oath. ( Bullcoming at p. 2717.) Finding that the lab report resembled the Melendez-Diaz certificates in “all material respects,” the court refused to adopt or approve “any cons truction of the Confro ntation Clause that would render inadmissible only sworn ex parte affidavits, while leaving admission of formal, but unsworn statements ‘perfectly OK.’ [Citation.]” ( Ibid .)33 3. Recent Developments ( Cases Referenced in the Transfer Order ) In June 2012, a divided United States Supreme Court decided Williams, supra
, 132 S.Ct. 2221. The Williams defendant was convicted of ra pe based in part on expert testimony that the defendant’s DNA profile ma tched a DNA profile which had previously been developed for semen recove red from the victim’s body. ( Id . at pp. 2227-2228.)
Before the defendant was iden tified as a suspect, that semen sample had been sent to Cellmark Diagnostic Laboratory, a private company that generated the DNA profile for the donor sample. At trial, the analyst who developed the defe ndant’s DNA profile and the scientist who confirmed the presence of semen on vaginal swabs taken from the victim appeared and were s ubject to confrontation. ( Id . at pp. 2229-2230.) However, the Cellmark analyst who developed the DNA donor profile did not testify at trial and the analyst’s report was not ad mitted into evidence. ( Id . at pp. 2230-2231.) Instead,
evidence about the content of the Cellmark report was admitted through the testimony of the People’s DNA expert.
The Williams court held that expert testimony about the content of the Cellmark report did not violate the defendant’s right to confrontation. (132 S.Ct. 2221.) Four justices approved a plurality opi nion which offered tw o independent justifications for this conclusion: (1) the expert’s testimony abou t the Cellmark report was not admitted for its truth, but solely to explain assumptions underlying the testifyi ng expert’s opinion ( id . at p. 2228); and (2) the Cellmark report was no t “testimonial” because it was not prepared “for the primary purpose of accu sing a targeted individual.” ( Id . at p. 2243.) Justice Thomas wrote a separate opinion pursuant to which he concurred in the judgment. ( Williams, supra , 132 S.Ct at pp. 2255- 2264 [conc. & dis. opn. of Thomas, J.].) Justice Thomas agreed with the conclu sion of the plurality opinion th at there was no violation of the Confrontation Clause, but rejected its reasoning. ( Id . at p. 2255.) Instead, Justice Thomas found that the Cellmark report did not require confrontation “solely because34 Cellmark’s statements lacked the requisite ‘fo rmality and solemnity’ to be considered ‘ “testimonial” for purposes of the Confrontation Clause.” ( Ibid .) 11 In October 2012, the California Suprem e Court decided three cases addressing “the constitutionality of a prosecution expert’s testimony about certain information in a report prepared by someone who did not testify at trial.” ( Lopez, supra , 55 Cal.4th at p. 573; see also Dungo, supra , 55 Cal.4th 608; Rutterschmidt, supra , 55 Cal.4th 650.) In all three cases, the pivotal issue for the court wa s whether information in a report constituted a “testimonial statement” for purposes of the Confrontation Clause. In Lopez, supra , 55 Cal.4th at pages 581-583, the first of this tr io of decisions, the court acknowledged that the federal high court had not agreed on a definition of “testimoni al,” but nevertheless
concluded that federal cases indicate that there are at least “two critical components”
which make a statement testimoni al, and it used those components to formulate this test: An out of court statement is testimonial if (1 ) it is made with “some degree of formality or solemnity” and (2) its “primary purpose pe rtains in some fashion to a criminal prosecution . . . .” ( Id. at pp. 581-582.) 12

11 The plurality opinion in Williams, supra , 132 S.Ct. 2221, was authored by Justice Alito and joined by Chief Justice Roberts and Jus tices Kennedy and Breyer. ( Id

. at p. 2227.) Justice Kagen filed a dissenting opinion which was joined by Justices Scalia, Ginsburg, and Sotomayor. ( Id . at p. 2264.)

12 In adopting this test, the Lopez court acknowledged that its prior decision in People v. Geier (2007) 41 Ca l.4th 555 ( Geier ) is no longer controlling precedent. ( Lopez, supra, 55 Cal.4th at p. 581.) In Geier , supra, 41 Cal.4th 555, an analyst who compared DNA recovered from inside a rape victim with the defendant’s DNA prepared a report of her findings but did not testify at trial. Instead, the substance of the DNA report was conveyed to the jury through the te stimony of the People’s expert. The Geier court held that the DNA report was not a testimonial statement under Crawford, supra , 541 U.S. 36, because it was a contemporaneous recorda tion of observable events rather than documentation of past events re lating to criminal activity. ( Geier at pp. 605-606.) As the Lopez court acknowledged, two years after Geier was decided, “the high court in Melendez-Diaz said that a laboratory report may be testimonial, and thus inadmissible even if it ‘ “contains near contemporaneous observations of [a scientific] test.” ’ [Citations.]” ( Lopez, supra , 55 Cal.4th at p. 581.)35 The Lopez court applied this test to a statemen t in a laboratory report regarding the percentage of alcohol in a defendant’s blood. ( Lopez, supra , 55 Cal.4th at pp. 583-584.)
At the Lopez defendant’s trial for vehicular mansla ughter while intoxicated, the lab report
was admitted into evidence and its content was described to th e jury by an expert who did not conduct the test or prepare the report. ( Id. at pp. 573-574.) Following her conviction,
the Lopez defendant claimed that she was denied her constitutional right to confront the author of the lab report. Preliminarily, the Lopez court determined that most of the information in the lab report did not implicat e the Confrontation Clause at all because it consisted of machine-genera ted printouts of data. ( Id. at p. 583.) The Lopez court held that computer data does not, by itself, imp licate the Confrontation Clause because a machine cannot be subject to cross-examination. Secondar ily, the court declined to decide whether the non-testifying analys t’s conclusion regarding the blood alcohol
concentration in the defendant’s blood was a testimonial statement because it found that the prosecutor’s trial expert gave his independent opinion on that subject based on his direct review of the computer data. ( Id . at p. 584.) Thus, the Lopez court found that the only “stateme nt” in the lab report that raised a confrontation concern was a notation by a la b assistant that linked the defendant to certain machine generated results. ( Lopez, supra, 55 Cal.4th at pp. 583-584.) The court held that this notation, thou gh indisputably admitted for it s truth, did not constitute a testimonial statement because it was “not pr epared with the form ality required by the high court for testimonial statements.” ( Id . at p. 584.) The Lopez court reasoned that, although both the non-testifyi ng analyst and his non-testifying assistant had placed their initials near the notation, neither of them “signe d, certified, or swore to the truth” of the statement. ( Ibid .)
In Dungo, supra , 55 Cal.4th 608, the court addr essed whether a specific type of information in an autopsy report is a testim onial statement requiring confrontation. At
the Dungo defendant’s murder trial, a forensic pathologist opined that the victim was strangled. ( Id . at p. 614.) The expert testified th at his opinion was based on information gleaned from an autopsy report prepared by a different pathologist who did not testify at36 trial. The expert used the au topsy report to describe the co ndition of the victim’s body to the jury and then gave his independent opini on regarding the victim’s cause of death. ( Id

. at pp. 613-614.)
The Dungo court found that two “significan t points” limited the constitutional inquiry regarding the defendant’s right to co nfrontation in that case: (1) the autopsy report was not admitted into evidence; and (2) the testifying expert did not relay to the jury the opinion of the non-te stifying pathologist regarding th e victim’s cause of death. ( Dungo, supra, 55 Cal.4th at pp. 618-619.) Th us, the sole issue before the Dungo court was whether the expert’s testimony about “objec tive facts” recorded in the autopsy report
entitled the defendant to confront and cross-examine the author of that report. To answer this question, the court empl oyed the test it announced in Lopez, supra , 55 Cal.4th at page 581, for determining whet her a statement is testimonial.
The Dungo court concluded that statements in an autopsy report describing the “pathologist’s anatomical and physiologica l observations about the condition of the body” are not testimonial under either prong of the Lopez test. ( Dungo, supra , 55 Cal.4th at p. 619.) The court reasoned that “statement s, which merely record objective facts, are less formal than statements setting forth a pa thologist’s expert conclusions. They are comparable to observations of objective fact in a report by a physician who, after examining a patient, diagnoses a particular injury or ailment and determines the appropriate treatment.” ( Id . at p. 619.) In addition, the court found that the primary purpose of recording such objective facts did not pertain to a criminal investigation. ( Id

. at pp. 619-621.) Rutterschmidt, supra , 55 Cal.4th 650, the third of th e trio of Confrontation Clause cases that our Supreme Court decided in Oc tober 2012, pertained to expert testimony regarding the test results of a sample of a murder victim’s blood. The Rutterschmidt defendants were convicted of murdering tw o men by running them over with a car. The
evidence showed that each vic tim held life insurance policie s naming the defendants as beneficiaries. ( Id. at pp. 652-653.) To support the prosecution theory that one of the victims was drugged before he was killed, the prosecutor elicited testimony from a lab37 director regarding the results of testing of the victim’s blood sample. The witness based his testimony on two reports prepared by no n-testifying analysts at his lab. ( Id. at pp. 652 & 659.) Defendants maintained they had been denied the co nstitutional right to confront and cross-examine the analysts who prepar ed the two toxicolo gy reports. The
Rutterschmidt court declined to decide whether the tr ial court erred by allowing the lab director to testify about the c ontent of the toxicology reports. ( Id . at p. 661.) The court reasoned that any error associated with th at testimony was harmle ss beyond a reasonable doubt in light of the overwhe lming evidence of guilt. ( Ibid .) In our opinion, these recent cases re garding the Confront ation Clause do not establish new or fundamentally different legal pr inciples. Instead, the cases referenced in the Supreme Court transfer order guide our analysis by highlighting the crucial inquiry, i.e., whether evidence of a testimonial statement has been admitted in to evidence without affording an opportunity for confr ontation, and by establishing the Lopez test for determining whether a given statement is test imonial and requires confrontation. With this guidance, we turn to the two sets of st atements that gave rise to Davis’s claim of
confrontation error. 4. Dr. Duazo The first category of statements were ma de by Dr. Duazo. As reflected in our factual summary, Dr. Duazo conducted the Martz autopsy and prepared the autopsy report. Although Dr. Duazo did not testify at trial, her statements were admitted into evidence through two dis tinct avenues. First, the Martz autopsy report was admitted into
evidence as a business record. Second, Dr. Amy Hart testified about the content of the Martz autopsy report.

a. The Autopsy Report If the Martz autopsy report was a testimonial statement, Davis was denied his right
to confrontation as there is no contention on appeal that Dr. Duazo was unavailable or subject to prior cross-examination. ( Crawford, supra , 541 U.S. at p. 68.) Under Lopez , a statement is testimonial if (1) it is made w ith “some degree of formality or solemnity”38 and (2) its “primary purpose pert ains in some fashion to a cr iminal prosecution . . . .” ( Lopez, supra , 55 Cal.4th at pp. 581-582.)
Under Dungo, supra , 55 Cal.4th 608, statements in an autopsy report describing the “pathologist’s anatomical and physiol ogical observations about the condition of the body” are not testimonial statements because they do not satisfy either prong of the Lopez test. According to the Dungo court, statements of this nature which merely record objective facts are not sufficiently solemn or formal because they (1) “are less formal than statements setting forth a pathologist’s e xpert conclusions” and (2) “are comparable to observations of objective fact in a report by a physician who, after examining a patient, diagnoses a particular injury or ailment a nd determines the approp riate treatment.” ( Id . at p. 619.) Furthermore, the primary purpose of recording these types of observations is not criminal investigation. However, the statements at issue in th is case are not limited to Dr. Duazo’s
observations about the condition of the victim ’s body. An autopsy report “typically contains two types of statements: (1) statem ents describing the pathologist’s anatomical and physiological observations about the cond ition of the body, and (2) statements setting forth the pathologists conclu sions as to the cause of the victim’s death.” ( Dungo, supra , 55 Cal.4th at p. 619.) Here, Dr. Duazo ma de both types of statements in the Martz autopsy report. Importantly, that entire report was admitted into evid ence at trial; Dr. Duazo’s findings and conclusi ons, including her findings rega rding the manner and cause of death, were admitted into evidence without affording the defendant the op portunity to
cross-examine the doctor about the basis for those conclusions. Dungo, supra, 55 Cal.4th at page 619, supports the conclusion that statements in an autopsy report setting forth a pathologist’s expert conclusions are sufficiently formal to satisfy the Lopez test. As the Dungo court found, such statem ents are substantively
more formal than r ecorded physiological observations. ( Ibid .) Furthermore, such findings are clearly not analogous to a medi cal record generated for the purpose of facilitating medical treatment of a live person especially when, as here, those expert findings pertain to the circumstances and cause of a murder victim’s death. In the present39 case, there can be no doubt that Dr. Duazo understood that she was performing an autopsy on a murder victim and that a primar y function of her expert conclusions was to generate evidence for use at a criminal trial. Thus, applying the test announced by our Supreme Court in Lopez, supra , 55 Cal.4th at pages 581-582, we conclude that Davis was denied his constitutional right to confront Dr. Duazo because the autopsy report contains statements that Duazo made (1 ) with “some degree of forma lity or solemnity” and (2) for a “primary purpose” which pertained “in some fashion to a criminal prosecution . . . .” ( Lopez, supra , 55 Cal.4th at pp. 581-582.) In a Supplemental Respondent’s Brief, the People contend that Dungo, supra , 55 Cal.4th 608, “squarely substan tiates” arguments the People have previously advanced in this case that an autopsy re port is admissible “as a nontestimonial business record.” We strongly disagree. As reflected above, the autopsy report at issue in Dungo was not admitted into evidence at trial and the People’s expert in that case did not repeat the conclusions of the non-testifying pat hologist who prepared the report. ( Id. at pp. 618- 619.) Therefore, the Dungo court expressly declined to decide the issue presented here, i.e., whether an entire autopsy repo rt is testimonial in nature. ( Ibid .) 13 Furthermore, neither Dungo nor any of the other cases we have been instructed to consider supports the People’s persistent contention that business records are exempt from the requirements of the Confrontation Clau se. As reflected in our factual summary, the autopsy report was admitted into evidence at Davis’s tr ial as a business record. Evidence Code sections 1271 and 1280 provi de that business records are not made inadmissible by the hearsay rule, but they do not and, indeed, could not except a testimonial statement from the requireme nts of the Confrontation Clause. ( MelendezDiaz, supra , 557 U.S. at pp. 321-324.) The Melendez-Diaz court acknowledged that

13 The court had another opportunity adopt the People’s position in People v. Pearson (2013) 56 Cal.4th 393, 463, but declined to do so. In that case, which squarely raised the question whether the admission oftwo autopsy reports authored by a nontestifying witnesses violated the Confrontati on Clause, the court found that any error in the admission of the autopsy reports and ex pert testimony about them was harmless beyond a reasonable doubt. ( Ibid .)40 many business records will be ad missible absent confrontation because they were created for the administration of an entity’s busin ess affairs and not for the purpose of establishing or proving a fact at trial. ( Melendez-Diaz, supra , 557 U.S. at pp. 321-324.) Furthermore, under the Lopez test, a statement is not testimonial unless its “primary purpose pertains in some fashion to a criminal prosecution . . . .” ( Lopez, supra , 55 Cal.4th at p. 582.) However, if a business record embodies the essential components of a testimonial statement, it is subject to th e requirements of the Confrontation Clause. ( Melendez-Diaz, supra , 557 U.S. at pp. 321-324.) The People also continue to intimate that autopsy reports should fall outside the scope of the Confrontation Clause because they are prepared pursuant to statutory
mandates and in accordance with standardized medical protocol which make them particularly reliable. First, perceived gu arantees of trustworthiness do not justify violating the Confrontation Clause. ( Crawford, supra , 541 U.S. at pp. 61-62; MelendezDiaz, supra , 557 U.S. at p. 318.) Second, the Un ited States Supreme Court has expressly rejected the contention that coroner’s reports are exempt from the requirements of the Confrontation Clause. ( Melendez-Diaz, supra , 557 U.S. at p. 322.) Third, the fact that autopsy reports are prepared pursuant to st atutory mandates and in accordance with standardized protocol only reinforces that the expert conclusion s contained in such reports are sufficiently solemn and form al to satisfy the first prong of the Lopez test. For all these reasons, we hold that the trial court erred by admitting the entire autopsy report into evid ence at Davis’s trial.
b. Dr. Hart’s Testimony
Dr. Duazo’s statements we re also admitted into ev idence through the expert testimony of Dr. Hart. As reflected in our factual summary, Dr. Hart, the Chief Medical Examiner at the time of trial, testified about the content of Martz autopsy report. During the course of her testimony, Dr. Hart described Mart z’s physical condition and injuries based on her review of the autops y report. For example, Hart testified that the report disclosed that Martz was stabbed th ree times. Hart also answered questions
about the nature of those stab wounds by repeating statements in the autopsy report. For41 example, Hart testified that Dr. Duazo concl uded that the direction of one of the stab
wounds was from th e decedent’s front to her back.
Dr. Hart also testified about Dr. Duazo ’s conclusions regarding the manner and cause of death. At one point during Hart’s testimony, the prosecutor asked whether Dr.
Duazo had ascertained which of the three stab wound was fatal. Dr. Hart responded that the “mechanism of death” was exsanguination or bleeding to death, that the report
indicated that all three stab wounds had cont ributed to that bleeding, and that “I don’t recall any specific stab wound that is singled out as lethal unless I missed something in the report.” Near the end of her direct tes timony, when Hart was asked to repeat the cause and manner of death, she testified as follows: “The mechanism of death is exsanguination or bleeding to death. The actual cause of death was certified as multiple
stab and incised wounds.” Hart also testified about findings Dr. Duazo made during a rectal and vaginal exam and about evidence sample s collected from Martz’s body during that examination. During this part of her testimony, Hart tes tified that the report indicated that several “smears” were prepared during the autopsy. Dr. Hart did not personally review those smears but she testified that the report indicate d that Dr. Duazo reviewed them. Dr. Hart then proceeded to testify about Dr. Duazo’s findings. For example, she testified that “[a]ccording to the report” sper matozoa were found in the victim’s vagina. Based on her review of the autopsy report as well as photos taken at the autopsy and at the crime scene, Dr. Hart offered the opinion that the sexual penetration most likely occurred before the injuries that produced the blood. As discussed above, the expert pathologist who testified at the Dungo trial offered his independent conclusions regarding the ca use and manner of deat h and did not repeat any of the conclusions of th e non-testifying pathologist. ( Dungo, supra , 55 Cal.4th at pp. 618-619.) Under those circumstances, the Dungo court held that expert testimony about “objective facts” recorded in an autopsy report does not require confrontation of the author of the report. ( Ibid .)42 In the present case, our summary of Dr. Hart’s testimony demons trates that she did offer some independent expert opinions, most notably the opinion that the victim was raped before she was murdered. However, we are simply not conv inced that Dr. Hart offered her own independent opinion regardin g the manner and cause of death. By contrast, Dr. Hart clearly did repeat Dr. Duazo ’s expert conclusions on that subject. Thus, we hold that Dr. Hart’s testimony abou t Dr. Duazo’s conclusions deprived Davis of his constitutional right to conf ront witnesses against him.
5. Bonnie Cheng Applying the principles outlin ed above, we also find th at the trial court admitted
evidence of at least one test imonial statement made by Bonnie Cheng and that Davis was denied his constitutional right to confront an d cross-examine Cheng about that statement when the court permitted Dr. Cydne Holt to testify about Cheng’s conclusions. As reflected in our factual summary, Ms. Cheng developed the 13-locus DNA profiles that were used to link Davis to thes e crimes. Dr. Holt testified about how those profiles were generated. Furthermore, it appear s that Holt used data in Cheng’s reports to explain Cheng’s conclusion that the DNA profile created for Davis matched the DNA donor profile for the sperm sample recovere d from Martz’s body. Recorded data in Cheng’s various DNA reports was likely not testimonial in nature. Such data is substantively analogous to the machine generated blood test data at issue in Lopez, supra , 55 Cal.4th at pages 538-584 . Under the reasoning of Lopez , this type of data does not implicate the Confrontation Clause becau se machines are not subject to crossexamination. ( Ibid .) Furthermore, although Dr. Holt’s trial testimony is not as clear as we would like it to be, it does appear that she reached an independent conclusion regarding the DNA match by co nducting her own visual co mparison of the pertinent
DNA data. However, Dr. Holt also testified about the rarity of the DNA donor profile for the sperm sample and the statistical “ ‘probability that a random unrelated person by chance would possess the same DNA profile detected on the sperm fractions’ ” used to generate the DNA donor profile. Our review of the tr ial record compels the conclusion that this43 testimony was not Dr. Holt’s independent ex pert opinion, but was instead Bonnie Cheng’s testimonial statement. Indeed, Dr. Holt expressly acknowledged that Cheng performed the statistical analys is and, when asked to testif y regarding the rarity of the profile, Holt stated: “I would like to read from the report the way it was reported officially in the record, if that’s okay, Your Honor.” The court granted that request and Holt proceeded to quote directly from Bonnie Cheng’s report. Bonnie Cheng’s conclusions regarding the rarity of a DNA match were testimonial
statements under the Lopez test. ( Lopez, supra , 55 Cal.4th pp. 581-582.) First, Holt herself treated those findings as formal conclu sions and characterized them as part of the official record. Second, there is no question those conclusions were made for the primary if not sole purpose of use at trial to estab lish facts necessary to convict Davis. Further,
the record does not reflect that Cheng was unavailable at the time of trial or that she was subject to prior cross-examination by Davi s. Therefore, we hold that Davis’s confrontation rights were violated when D r. Holt was permitted to testify about the
content of testimonial statemen ts made by Bonnie Cheng.
6. Prejudice
Violations of the Confrontation Clause require reversal of the judgment unless they are harmless beyond a reasonable doubt. (See Delaware v. Van Arsdall (1986) 475 U.S. 673, 681; Rutterschmidt, supra, 55 Cal.4th at p. 661.) In the present case, we have already concluded that the judgment must be reversed because of jury misconduct. Therefore, we need not address whether ev idence admitted in violation of Davis’s confrontation rights was prejudici al. We do note, however, that the jury misc onduct that occurred in this case pertained to Bonnie Che ng’s conclusions regarding the rarity of the DNA match, and that this testimonial evidence appears to us to have been crucial to the People’s case against Davis.44 IV. DISPOSITION The judgment is reversed and this case is remanded for further proceedings
consistent with this decision.

_ ____________ ____________ Haerle, J.

We concur:

_____________ ____________ Kline, P.J.

_____________ ____________ Richman, J.