1 Filed 4/7/15 CERTIFIED FOR PARTIAL PUBLICATION *

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent,

v. LANCE FORD, Defendant and Appellant. A137422
(San Francisco County Super. Ct. No. 196780)

Lance Ford appeals after a jury convicted him of first degree murder. He argues the trial court erred in admitting certain pros ecution evidence, excluding certain defense evidence, and calculating sentencing credits. In the published portion of this opinion we reject appellant’s challenge to certain evid ence under the confrontation clause. In the unpublished portion, we modify the judgment to correct an error in sentencing credits,
and otherwise affirm.
BACKGROUND In November 1981, Annie Barcelon was fo und dead in the basement of her San Francisco apartment building. Her underw ear or nylons were ar ound her ankles and a pair of jeans was two or three feet away from her body. Her body was taken to the Office of the Chief Medical Examiner for the City and County of San Francisco (Medical Examiner’s office) where an autopsy was performed, photographs were taken, and specimens from Barcelon’s body were coll ected. The Medical Examiner’s office assigned case number 81-1612 to the autops y. Dr. Amy Hart, the Chief Medical

* Pursuant to California Rules of Court, ru les 8.1105(b) and 8.1110, this opinion is certified for publication with the excep tion of part I.B, I.C.2, II, and III.2 Examiner at the time of the 2 012 trial, testified it was her opinion, based on the physical observations in the autopsy report and the autopsy photographs, that Barcelon’s death was a homicide caused by manual strangulation. She also opined, based on physical observations recorded in the autopsy report, that there were injuries consistent with
sexual assault. 1 In 2003, DNA testing was performed on two of the specimens collected at the Barcelon autopsy, a vaginal swab and a rectal swab. Both samples contained sperm and DNA analysis showed the sper m in both samples came from the same person. A suspect
was identified based on this DNA analysis; as a result, an oral swab of appellant was taken for DNA testing. The DNA testing revealed appell ant’s DNA profile matched the DNA profile in the sperm on the Barcelon swabs. In 2011, appellant’s cousin told law en forcement officers that at the time of Barcelon’s murder, appellant was staying le ss than a quarter mile from Barcelon’s apartment building. The People also submitted evidence of prior sexual offenses committed by appellant. Appellant presented evidence relating to the reliability of th e autopsy specimens and DNA analysis, which we set forth below in Part I. Appella nt also presented evidence that certain physical propert y evidence, including Barcelon’s panties and jeans, were misfiled with another case at the police de partment. The error was only discovered in
2005 when the a ttorney representing the defendant in the other case reviewed the contents of the property file. An eyewitness on the night of Barcelon’s murder saw a car that she “didn’t feel right about” outside of Barcelon’s apartment. The eyewitness could see the driver’s silhouette and stated his hair was wavy and do wn to his shoulders. Appellant presented
evidence that his hair at the relevant time did not match this description. Appellant also

1 Additional evidence ab out the autopsy, specimen collecti on, and autopsy report is set forth in Part I, below.3 presented testimony that in 1981 the police interviewed a suspect with long hair who admitted trying to mislead investigators; in rebuttal, the People submitted evidence that DNA analysis showed this su spect could not have contribut ed to the DNA present in the Barcelon autopsy swabs. The jury found appellant guilty of fi rst degree murder (Pen. Code, § 187) 2 and found true a special circumstance allegation that he committed the murder while engaged in the crime of rape (§ 190.2, subd. (a)(17)(C)).
DISCUSSION
I. Autopsy Report and Specimens Appellant challenges the admission of ev idence arising from the 1981 autopsy. Specifically, appellant argues (1) the autopsy specimens should not have been admitted because the People fail ed to lay a proper foundation and to sufficiently establish chain of custody; and (2) the admission of the auto psy report and the labe ls and writings on the autopsy specimens (and related testimony arisi ng from this evidence) violated appellant’s confrontation clause rights. We disagree on both counts.
A. Background
1. Pre-Trial Proceedings Appellant first challenged the admission of this evidence in pr e-trial motions. At an evidentiary hearing on the motions, Dr. Hart testified in relevant part as follows. Dr. Hart began working at the Medical Examine r’s office in 2001. The Barcelon autopsy report indicates that Dr. Norvil Sisson was the responsible autopsy surgeon. 3 Dr. Hart testified she could render an independent opi nion on the cause of death based on autopsy photographs and the physical find ings in the autopsy report. The report documents the autopsy specimens that were collected. Dr. Hart was not aware of written protocols existing in 1981 for conducting autopsies or collecting specimens during an autopsy. Dr. Hart wa s shown photographs of evidence envelopes

2 All undesignated section refere nces are to the Penal Code.

3 Dr. Sisson was deceased at the time of trial.4 and test tubes containing the Barcelon spec imens. She testified the packaging and labeling was consistent with that used in Medical Examiner’s offi ce autopsies conducted in the 1980s. Two of the specimens had la bels on them that did not belong to the Medical Examiner’s office. Although Dr. Hart did not know who put those labels on, it was not uncommon to see additional labeling placed on evidence af ter it was released
from the Medical Examiner’s office. Dr. Hart had no personal knowledge of how or by whom the autopsy specimens were collected and labeled; if the specimens were air dried before being placed in glass tubes and, if so , where they were dried; how the unlabeled swabs were tracked prior to be ing placed in test tubes; and when the labels were placed
on the tubes.
Dr. Hart was not aware of a Medical Examiner’s office log documenting the location or movement of specimens in the 1980s. If evidence was released, a notation may have been made on the coroner’s regist er. In this case, the coroner’s register
indicated that evidence was released to Forensic Scienc e Associates, but there is no notation recording its return. At an earlier evidentiary hearing, th e trial court heard evidence of the DNA analysis of the Barcelon specimens. Matth ew Gabriel, an expert in forensic DNA analysis, performed a DNA analysis on a vagi nal specimen and a rectal specimen from the Barcelon autopsy, as well as a reference sample he had been provided from the Barcelon autopsy and a reference sample fo r appellant. The re sults showed sperm present in both the vaginal and rectal specimens; the sper m from both specimens contained the same DNA profile, which matc hed appellant’s DNA profile. DNA in the non-sperm portions of each sample matche d the DNA profile fo und in the Barcelon reference sample. 4 Gabriel followed established protocols in conducting this analys is and took steps to safeguard against contamination. Ther e were no indications of contamination or

4 At trial, Gabriel testified that appellant ’s DNA was also found in the non-sperm portion of the vaginal swab.5 ambiguous or inaccurate results. To the contrary, Gabriel test ified there were indications that the specimens were not contaminated or misidentifie d because of the consistency between the two specimens. He explained, “t here were two different items, one from the vaginal swab, one from the rectal swab that went forward with DNA analysis. . . . [E]ach one of those samples had [semen] fractions or components, so th e results between the semen donor component was the same for both of those samples. [¶] Likewise, the results for the non-sperm . . . fraction from both of t hose samples was also consistent. The nonsperm fraction was consistent with coming from Ms. Barcelon. The semen donor profile was consistent with coming from [appellant]. . . . [¶] So conceivabl y, let’s say for the purpose of argument, one of those two samp les was mixed with another sample case,
. . . . I wouldn’t have seen th at consistency within this cas e for those four independent samples.” The trial court denied appellant’s motion to exclude the specimens and the autopsy report. With respect to appellant’s argument that the People failed to lay an adequate foundation or establish chain of custody, the tr ial court found: “At this juncture, there is
no evidence before the Court th at the Court would conclude th at there is a significant gap in the chain of custody. While there ar e not individuals who were there when the samples were taken, the Court notes that Anni e Barcelon’s blood that was labeled to have
been taken from Annie Barcelon was tested and that there is a commonality between the actual specimens and the victim in this case, and that is that her DNA is on the swabs. There’s also other DNA, but her DNA is ther e, and that links it up. There’s a case number. [¶] . . . [T]he Court believes that any do ubt that will be appropriate for the jury to weigh in this case as to whether or not they believe that those samples were in fact taken from Ms. Barcelon and were properly maintain ed in custody, but again, it goes to the weight. The Court is satisfied that the Pe ople have established their burden regarding chain of custody. And for that reason, I’m denying the due process argument.” The trial court also rejected appellan t’s confrontation clause argument, finding admission of the autopsy specimens and the obs ervations—but not the cause of death—in the autopsy report would not violate appe llant’s confrontation clause rights.6 2. Trial Testimony Appellant renewed his objections with a sta nding objection at trial and a post-trial
motion for a new trial.
Dr. Hart and Gabriel testified consisten tly with their pre-tr ial testimony. The autopsy report, with the diagnosis and ca use of death redacted, was admitted into
evidence. 5
Winefredo Mendoza was a clinical laborat ory scientist who work ed at the Medical
Examiner’s office from 1978 to 2005. 6 Mendoza did not par ticipate in conducting autopsies or collecting autopsy specimens. Mendoza picked up specimens from the morgue at the end of the day and brought them to the lab where he processed them. The doctors wrote the case numbers on the specimens. Swabs were sometimes left out overnight to dry. Mendoza had no personal knowledge of the Barcelon autops y or how Dr. Sisson prepared for autopsies. Mendoza confirmed that test tubes and test tube labels identifying the specimens inside as from th e Barcelon autopsy were the type of test tubes and labels used by the Medical Examiner’s office in the 1980s. Writing on the labels included case number 1612, Barcelon’s name, the autopsy date, and the doctor’s initials. Mendoza identified the handwriting of Dr. Sisson and Dr. Stevens on the labels. Mendoza also identified a specimen that he referred to as a “blood spot.” Mendoza explained that during an autopsy, the doctor wo uld typically drip a little of the decedent’s blood onto a cotton cloth. Mendoza did not recogniz e initials or handwriting from a Medical
Examiner’s office staff member on the blood spot cloth. However, there were notations of the case number, Barcelon’s name, and th e autopsy date that Mendoza believed may have been written by an inves tigator in the crime lab. When the DNA analysis was conducted, this blood spot was used as the Barcelon reference sample.

5 The trial court found the autopsy report ad missible under the official records exemption to the hearsay rule (Evid. Code, § 1280). Appellant does not ch allenge this ruling on appeal.

6 Mendoza testified in part through an interpreter.7 Dr. Edward Blake testified that in Dece mber 1981, he received from the Medical
Examiner’s office a number of swabs in test tubes identifie d with case number 81-1612. Dr. Blake did not receive a blood spot on a cloth, but he did receive a bottle of blood from the autopsy that was identified as coming from Barcelon. Dr. Blake made his own
notations on the test tube labels. Dr. Bl ake found sperm on several vaginal swabs, as well as low levels of sperm on two rectal swab s. He returned the swabs to the Medical
Examiner’s offi ce in 1983. As part of appellant’s case, a videotap ed examination of Dr. Michael Slade was played for the jury. Dr. Sl ade worked as a forensic t oxicologist at the Medical
Examiner’s office from 1979 to 1993. He testified that multiple autopsies were often performed on any given day. Containers for specimens would be lined up in the autopsy suite. In the early 1980s there were no pr otocols in place describing how autopsy specimens should be labeled. There were al so no procedures at that time for keeping track of autopsy specimens or documenting th e chain of custody. People who worked in the coroner’s office, investig ators, and people from funera l homes who had business in
the coroner’s office all had access to the st orage areas where specimens were held. Doctor Slade was personally aware of tw o incidents in which biological evidence collected at autopsies in the early 1980s was mislabeled. In one incident, a blood sample showed a high level of alcohol but a samp le of fluid from the decedent’s eye was negative for alcohol. It was determined that the blood sample was mislabeled and came
from another case. In the s econd incident, the decedent showed indications of carbon monoxide pois oning but his blood sample tested nega tive for carbon monoxide. Again, it was determined the blood sample was mi slabeled and came from another autopsy performed the same day. Appellant also presented the testim ony of Brian Harmon, who performed DNA analysis on a vaginal slide fro m the Barcelon autopsy in 2006 . The slide contained sperm and non-sperm cells, but Harmon was unable to obtain good results. The vaginal slide did not have an airtight s eal, exposing the DNA to the su rrounding environment. Under8 such conditions, DNA can degrade; once degrad ed, it cannot be genetically typed very
well. In the non-sperm portion of the slide, Harmon found DNA from more than one person. One of the DNA profiles in the non -sperm portion of the slide did not match either appellant or Barcelon. This differe nt profile could have resulted from somebody touching the slide or from contamination in storage. Harmon could not tell if the different profile was deposited on the slide at the same time as the other profiles. The sperm portion of the slide contained only one DNA profile. The sperm could have been contributed by appellant; however, becaus e the DNA profile was incomplete, the probability of a match was one in 35 for African-Americans.
B. Foundation and Chain of Custody Appellant argues his due process rights were violated by the admission of the Barcelon autopsy specimens because the Pe ople failed to sufficiently establish a
foundation for the evidence and an adequate chain of custody. Specifically, appellant argues there was insufficient ev idence regarding who collected the specimens; how they were collected, packaged, and labeled; wh ere and how they we re stored; and who
accessed them. “In a chain of custody claim, ‘ “[t]he bu rden on the party o ffering the evidence is
to show to the satisfaction of the trial court that, taking all the circumstance s into account including the ease or difficulty with which the particular evidence could have been altered, it is reasonably certain that ther e was no alteration. [¶] The requirement of reasonable certainty is not met when some vital link in the chain of possession is not accounted for, because then it is as likely as not that th e evidence analyz ed was not the evidence originally received. Left to such speculation the court must exclude the evidence. [Citations.] Conv ersely, when it is the barest speculation that there was tampering, it is proper to admit the eviden ce and let what doubt remains go to its weight.” ’ ” ( People v. Catlin (2001) 26 Cal.4th 81, 134 ( Catlin ).) “While a perfect chain of custody is desirable, gaps will not re sult in the exclusion of the evidence, so long
as the links offered connect the evidence with the case and raise no serious questions of9 tampering.” (Mendéz, Cal. Evidence (1993) § 13.05, p. 237; accord, Catlin, supra, at p. 134.) “The trial court’s exercise of disc retion in admitting the evid ence is reviewed on appeal for abuse of discretion.” ( Catlin, supra, at p. 134.) We agree with appellant that there are s ubstantial evidentiary gaps in relation to the autopsy specimens. Nonetheless, the tr ial court did not abuse its discretion in admitting the evidence. First, there was evidence linking th e specimens to the Barcelon autopsy. The specimens were packaged in tubes labeled with the case number assigned by the Medical Examiner’s office to Barcel on’s autopsy, the victim’s name, and the autopsy date. The non-sperm portion of bo th samples contained DNA from the same person, which matched DNA found in a blood spot on a cloth. Although it was not clear whether the blood spot had been labeled at the time of Barcelon’s autopsy, there was evidence that, at the time of the autopsy, autopsy surgeons would typica lly drip a little of
the victim’s blood onto a cotto n cloth, and this blood spot was stored with the other Barcelon autopsy specimens. Moreover, it is exceedingl y unlikely the specimens were mislabeled. Because the same DNA profile was found in all three specim ens, all three would have to have been mislabeled. On the day of the Barcelon au topsy, no swabs were taken in any other autopsy. Moreover, because appellant’s DNA was found in sperm from the swab specimens, any specimen switch wo uld have to have been w ith an autopsy involving a decedent appellant had recently had intercourse with. Th e implausibility of such a
scenario is manifest. Appellant’s suggestion the specimens were contaminated or tampered with is similarly unlikely. Both swab specimens w ould have to have b een contaminated or tampered with. As appellant’s DNA was found in the sperm and non-sperm portions of the vaginal swab, that swab would have to have been contaminated with both sperm and non-sperm cells from appellant. In addition, the autopsy report do cuments the presence of “many spermatozoa” in vaginal smears but only one DNA profile was found in the sperm portion of the swabs; therefore, any c ontamination or tampering with the vaginal swab would apparently have required removal of the sperm originally present and10 replacement with appellant’s sperm. We note also that the likelihood of tampering or contamination is further reduced because appella nt was not identified as a suspect in this case until after the DNA analysis of the sw ab specimens had been conducted. Appellant contends th is case is similar to People v. Jimenez (2008) 165 Cal.App.4th 75 ( Jimenez ). We disagree. In Jimenez, the defendant was identified as a bank robbery suspect based on eyewitness identification. ( Id. at p. 78.) The police subsequently requested a comparison of swab s from a bicycle used as a getaway vehicle
with swabs from the defe ndant obtained after a prior conviction. ( Id. at pp. 79–80.) The DNA from the samples matched. ( Id. at p. 79.) The Court of Appeal found the evidence “fail[ed] to resolve key fou ndational issues about the chai n of custody,” including how and by whom the swabs were labeled, sealed, stored, and transferred. ( Id. at p. 80.) The court continued: “The woefully inadequate ch ain of custody here ra ises grave concerns
about whether the reference sa mple with which the crimina list compared the handlebar
swabs came from Jimenez’ s cheek or from some altogether different source with no connection to him at all.” ( Id. at p. 81.)
Jimenez is distinguishable. First, the defenda nt was identified as a suspect prior to the DNA analysis. Moreover, there were only two samples bei ng compared to each other, each with only one DNA profile. As a result, in Jimenez there was “no reasonable certainty that the DNA sample purportedly obtained from the defendant and the crime
scene DNA had not been substitute d for one or the other.” ( People v. Hall (2010) 187 Cal.App.4th 282, 296; see id. at p. 297 [distinguishing Jimenez because “Hall’s claim of alteration is speculative at best”].) Dobson v. Industrial Acc. Com. (1952) 114 Cal.App.2d 782, cited by appellant, in whic h there was testimony that a blood sample contained alcohol but “no proof that the bl ood sample the doctor analyzed was [the plaintiff’s] blood,” is sim ilarly distinguishable. ( Id. at p. 785.)
This is not a case in which “ ‘ “it is as likely as not that the evidence analyzed was not the evidence origina lly received.” ’ ” ( Catlin, supra, 26 Cal.4th at p. 134.) Instead,
“the links offered connect the evidence with the case and raise no serious questions of11 tampering.” (Mendéz, Cal. Evidence, supra, § 13.05, p. 237; accord, Catlin, supra, at p. 134.) The trial court di d not abuse its discretion.
C. Confrontation Clause Appellant next contends admission of the autopsy report and specimen labels violated his Sixth Amendment right to con frontation absent his opportunity to crossexamine Dr. Sisson or anyone else who pers onally participated in the autopsy or specimen collection. This argument is inconsistent with current case law. “[T]he United States Supreme Court has said that generally the Sixth Amendment’s confrontation right bars the admi ssion at trial of a testimonial out-of-court statement against a criminal defendant unless the maker of the statement is unavailable to testify at trial and the defe ndant had a prior opportunity for cross-examination.” ( People v. Lopez (2012) 55 Cal.4th 569, 580–581 ( Lopez ).) “Although the high court has not agreed on a definition of ‘testimonial,’ te stimonial out-of-court statements have two critical components. First, to be testimoni al the statement must be made with some degree of formality or solemnity . Second, the statement is te stimonial only if its primary purpose pertains in some fashion to a criminal prosecution. The hi gh court justices have not, however, agreed on what the statem ent’s primary purpose must be.” ( People v. Dungo (2012) 55 Cal.4th 608, 619 ( Dungo ).) “On appeal, we i ndependently review
whether a statement was testimonial so as to implicate the constitutional right of confrontation.” ( People v. Nelson (2010) 190 Cal.Ap p.4th 1453, 1466.)
1. The Autopsy Report
In Dungo , our Supreme Court considered whether an autopsy report was testimonial. The court began by noting “[a]n autopsy report typically contains two types of statements: (1) statements describing the pathologist’s anatomic al and physiological observations about the condition of the body , and (2) statements setting forth the pathologist’s conclusions as to the cause of the victim’s death.” ( Dungo, supra, 55 Cal.4th at p. 619.) Only the former type of statement was at issue in Dungo . The court held that such statements, “which merely record objective facts, are less formal than statements setting forth a path ologist’s expert conclusions. They are comparable to12 observations of objective fact in a report by a physician who, after examining a patient, diagnoses a particular injury or ailment and determines the appropri ate treatment. Such observations are not testimonial in nature.” ( Ibid. ) The court also considered the primary purpose of autopsy reports, concluding that “criminal investigation was not the primary purpose for the autopsy report’s description of the condition of [the victim’s] body; it was only one of several purposes.” ( Id. at p. 621; see also ibid. [noting purposes of autopsy reports include helping relatives decide “wheth er to file an action for wrongful death”; helping insurance companies de termine “whether a particular death is covered by one of its policies”; “satisfy[ing] th e public’s interest in know ing the cause of death”; and “provid[ing] answers to grieving family members”].) The court concluded the defendant’s confrontation rights were not vi olated by his inability to cross-examine the autopsy report’s author. ( Ibid. ) Appellant argues Dungo was wrongly decided and relies on the analysis of the dissenting opinion. We are, of cour se, bound to follow the majority. ( Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Appellant next attempts to distinguish Dungo . Appellant contends that, although the trial court redacted the diagnosis and cause of death from the autopsy report, the redacted report nonetheless contained “con clusions.” The only example cited by appellant is the following stat ement: “There are superficial stretch type abrasions across the anterior portions of the clitoris, its sheath and in the area of the external urethra.”
This statement falls within Dungo ’s category of “observations ”—“statements describing the pathologist’s anatomical and physiological observations about the condition of the body”—rather than conclusion s—“statements setting forth th e pathologist’s conclusions as to the cause of the victim’s death.” ( Dungo, supra, 55 Cal.4th at p. 619.) Contrary to appellant’s suggestion, Dr. Hart’s testim ony that the injuries described above are
consistent with sexual assault does not tr ansform the statement into a conclusion. Appellant also notes that in Dungo , it was unclear whether the testifying pathologist relied “solely on th e autopsy photographs, solely on [the] autopsy report, or on a combination of the two.” ( Dungo, supra, 55 Cal.4th at p. 619.) Appellant contends13 that Dr. Hart’s testimony as to the cause of death and likelihood of sexual assault was based solely on the autopsy report; in fact, wi th respect to the cause of death, Dr. Hart testified her opinion was based on both the au topsy photographs and the physical findings in the autopsy report. In any event, appella nt fails to explain the significance of the difference. The only relevance in Dungo of the possibility that th e testifying pathologist relied on the photographs appears to be that, if the photographs were the sole basis for the testimony, the confrontation clause would not be implicated. (See id. at p. 647 (dis. opn. of Corrigan, J.) [“to the extent [the testifyi ng pathologist] had used properly authenticated autopsy photographs to explain his testimony , he would not have disclosed testimonial hearsay”].) This has no bearing on wh ether the autopsy report is testimonial. Appellant notes the testifying pathologist in Dungo worked with the author of the autopsy report (see Dungo, supra, 55 Cal.4th at p. 613), wher eas Dr. Hart did not work with Dr. Sisson and had no personal knowled ge of his autopsy procedures. Again, appellant does not explain why this distinc tion—which may bear on the trustworthiness of the report’s statements—is relevant to th e analysis of the report’s testimonial nature. Finally, appellant points out that the autopsy report was admitted into evidence. In Dungo , the court noted the “autopsy report was not introduced into ev idence. Thus, we
need not decide whether that entire report is testimonial in nature.” ( Dungo, supra, 55 Cal.4th at p. 619.) The relevance of this fact in Dungo appears to rest on the court’s
distinction between observati ons and conclusions. As the trial court redacted the conclusions from the autopsy report admitted in appellant’s case , we do not find the difference significant. In any event, any e rror in admitting the redacted autopsy report— as opposed to having Dr. Hart “describe to the jury the condition of [the victim’s] body at the time of the autopsy” based on the observati ons set forth in the autopsy report, as was
the case in Dungo ( id. at p. 619)—was harmless be yond a reasonable doubt. ( Chapman v. California (1967) 386 U.S. 18, 24.)
Under Dungo , the trial court’s decision to admit the autopsy report was correct and did not violate appellant’s c onfrontation clause rights..14 This case directly poses the “absent pathol ogist” problem: if statements in autopsy reports are testimonial under the United Stat es Supreme Court’s confrontation clause jurisprudence, how is cause of death esta blished when the pathologist has died or
otherwise becomes unavailable before trial? This issue is a small but significant subset of the problems in determining the admissibility under the con frontation clause of expert testimony relating the contents of reports prepared by absent experts that serve as a basis for the witness’s opinion. The significance of the autopsy piece was well captured by Justice Breyer in his concurring opinion in Williams v. Illinois (2012) 567 U.S. ___ [132 S.Ct. 2221]: “Autopsies are typically con ducted soon after death. And when, say, a victim’s body has decomposed, re petition of the autopsy may not be possible. What is to happen if the medical examiner dies before trial? [Citati ons.] Is the Confrontation Clause ‘effectively’ to function ‘ “as a statute of limitations for murder” ’?” ( Williams,

supra, 567 U.S. at p.___ [132 S.Ct. at p. 2251] (conc. opn. of Breyer, J.).) Challenges to expert basis evidence consisting of out-of-court statements are particularly concerning for se veral reasons. As with all such issues, the ultimate
determination as to whether statements are “t estimonial” is lodged with the federal, not the California Supreme Court. Unfortunate ly, the United States Supreme Court seems firmly deadlocked in a 4-4-1 sp lit on this issue, and that split ha s, so far, defied efforts to find a rationale that commands a majority. (Compare Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305 and Bullcoming v. New Mexico (2011) 564 U.S. ___ [131 S. Ct. 2705] with Williams v. Illinois, supra, 567 U.S. ___ [132 S.Ct. 2221]

. ) The California Supreme Court has expressly r ecognized this dilemma. ( People v. Banks (2014) 59 Cal.4th 1113, 1167; Dungo, supra, 55 Cal.4th at p. 616.) But, in attempting to resolve it, our high court has occasionally engaged in line drawing that may prove challenging to apply. Our analysis refl ects this. For example, Dungo distinguishes a pathologist’s observations and conclusions in analyzing wh ether statements in the autopsy report are
testimonial. This distinction may prove difficult to defend ov er time and is hardly selfevident. (See Dungo, supra, 55 Cal.4th at pp. 639–640 (dis. opn. of Corrigan, J.).) And basing the distinction on the de termination that observations are less “formal and solemn”15 lacks any basis in the United States Suprem e Court’s cases and is inconsistent with previous discussions of formality by the California Supreme Court. (See People v.
Blacksher (2011) 52 Cal.4th 7 69, 812–818.) Finally, it is arguable whether Lopez’s determination that the autopsy was not con ducted for the primary purpose of gathering evidence for trial is correct. (See Dungo, supra, 55 Cal.4th at pp. 644–645 (dis. opn. of Corrigan, J.).)
It is unknown if or when the United States Supreme Court will articulate a
definition of testimonial that clarifies the ad missibility of expert basis evidence contained in an autopsy report prepared by an absent pathologist. While a change in opinion by one or more members of the court is possible, it may well require a change in the composition
of the court for that to occur. Because autopsies continue to take place there is a need for a prompt modification of the autopsy protocol that will pr oduce both a more reliable record and one designed to su rvive even a broad definition of testimonial. Suggesting the details of such a procedure is beyond both th e scope of this opinion and our expertise. But organizations like the National Associati on of Medical Examiners, which prepares Forensic Autopsy Perfo rmance Standards ( Dungo, supra, 55 Cal.4th at p. 624 (conc. opn. of Werdegar, J.)), working in conjunction with appropri ate representatives of the prosecution and criminal defense ba r, should undertak e this task.
2. Specimen Labels Appellant also argues admission of the la bels on the specimens, which linked the specimens to the Barcelon autopsy by case number and victim’s name, violated his confrontation clause rights.
In Lopez , the California Supreme Court considered whether a “notation linking [the] defendant’s name to blood sample No. 070-7737” in a laboratory report was testimonial. ( Lopez, supra, 55 Cal.4th at p. 584.) The court answered the question in the negative. As Justice Corrigan explained in a concu rring opinion written for a majority of the court, the United States Supreme Court has concluded that “ ‘[b]usiness and public records are generally admissible absent con frontation . . . because—having been created for the administration of an entity’s affair s and not for the purpose of establishing or16 proving some fact at trial—th ey are not testimonial.’ ” ( Lopez, supra, at p. 589 (conc. opn. of Corrigan, J.).) This opinion concludes: “Entries of the lab number assigned to each sample and the dates on which the sample was received and tested are made ‘for the administration of an entity’s affairs.’ [Cita tion.] The laboratory could not conduct its business were it unable to identify samples a nd track them through the course of their processing. Records of routine tracking an d foundational information are kept by the business to facilitate its ongoin g organization a nd operation.” ( Ibid. (conc. opn. of Corrigan, J.).)
There was evidence that the purpose of writing the case number on the specimen labels was to ensure the specimens were pr operly tracked by Medical Examiner’s office personnel. As in Lopez, the Medical Examiner’s office “could not conduct its business were it unable to identify [specimens] and track them through the course of their processing.” ( Lopez, supra, at p. 589 (conc. opn. of Corr igan, J.).) As the notations on
the labels were business records made “ ‘for the administration of [the Medical Examiner’s office’s] affairs and not for the pu rpose of establishing or proving some fact at trial,’ ” they are not testimonial. ( Ibid. ) As the specimen labels were not tes timonial, their admission did not violate appellant’s confrontation clause rights.
II. DNA Laboratory Incidents In pre-trial motions, the parties disagr eed about the admissibility of, and defense access to, evidence relating to th e crime laboratory which perfo rmed the DNA analysis in this case (hereafter, DNA lab or lab). First, appellant sought to admit evidence of a 2008 DNA lab incident in which a sample was pla ced out of order during processing (referred to by appellant as a “sample switch”), and in cidents in 2008 and 2010 in which samples were contaminated with the DNA of lab empl oyees. Second, appellant moved to compel the People to disclose a 2010 memorandum from Rockne Harmon (Harmon memorandum) to the San Francisco District A ttorney’s office. Appellant challenges the trial court’s adverse rulings on both issues. We affirm.17 A. “Sample Switch” and Co ntamination Incidents
1. Background Gabriel, the DNA lab employee who an alyzed the Barcelon specimens and appellant’s reference sample, testified at a pr e-trial evidentiary hearing. He was the DNA technical manager and forensic biology section supervisor at the DNA lab in 2008, when DNA lab analyst Tahnee Nelson found a test tube in the wrong order in a test tube rack while she was processing samples. Nelson gave Gabriel “quite a bit of information about how she was moving the samples around, and sh e felt very confident that the temporary misordering of these samples was between th e reagent blank [a control sample] and the last crime scene sample in the rack.” Gabriel testifie d he was “confident in her descriptions” identifying which samples were misordered, and told Nelson to reorder the test tubes and “put[] benchmarks in place as she moved forward with the analysis process
to make sure that what she described was cons istent with the subsequent results that were generated.” Gabriel did not direct Nelson to re tain any original note s about this incident; he did not believe any notes ha d been generated and, at the time, it was lab policy that such notes were discarded after being transc ribed into a computer system. In 2009, a laboratory audit report by an international accreditation organization directed the DNA lab to change this policy and retain original notes even after entr y into a computer. During a 2010 audit, Gabriel was not asked about, and did not recall telling auditors about, the Nelson incident. Keith Inman, an expert in forensic DNA te sting, testified for the defense. In his opinion, a laboratory should never destroy or iginal notes. He further opined that reordering misordered samples was not appr opriate because it “ignore[s] the possibility of other kinds of problems within the sample set.” The trial court ruled, “while there is some relevance, this incident happened so far after the testing in M r. Ford’s case, and while there is some relevance, [it would involve] the undue consumption of time . . . . It would become so confusing to this jury. It would be a trial within a trial, and so the Court is going to exclude the evidence under [Evidence18 Code section] 352, but with th e caveat if Mr. Gabriel opens the door, he’s going to be
cross-examined on this issue.”
The contamination evidence involved three DNA lab in cidents in 2008 and 2010
in which water control swab s—swabs with only water, used to detect contamination— were found to contain DNA pr ofiles of DNA lab employees. None of the three incidents involved analysts who worked on appellant’s case. The tr ial court excluded this evidence
under Evidence Code section 352: “It become s putting the lab on trial. If there’s
evidence that there was some contamination in the lab and other irregularities a year before and a year after, that seems to be a relevant time period, but the further we get away from the testing in this case, it becomes less relevant to a point where the relevance is marginalized, because we need to concern ourselves or the Court needs to concern itself under 352 with not confusing the jury a nd having evidence, rea lly a trial within a trial, as to all these separate events and wh at happened, and why th ey would be relevant to something that ha ppened in 2004.”
2. Discussion Appellant contends the trial court erred in excluding this evidence under Evidence Code section 352. “ ‘When an objection to evidence is raised under Evidence Code section 352, the trial court is required to we igh the evidence’s probative value against the dangers of prejudice, confusion, and undu e time consumption. Unless these dangers “substantially outweigh” probative value, the objection must be overruled. [Citation.] On appeal, the ruling is reviewed for abuse of discretion.’ ” ( People v. Hart (1999) 20 Cal.4th 546, 606.) We need not decide whether the trial court erred because any error
was harmless. Appellant argues the prejudice should be measured by constitutional standards
because exclusion of this evid ence violated his right to du e process. “In general, the ‘ “[a]pplication of the ordinary rules of evid ence . . . does not impermissibly infringe on a defendant’s right to present a defense.” [Cita tions.]’ [Citations.] We have recognized, however, that Evidence Code sect ion 352 must yield to a defe ndant’s due process right to a fair trial and to the right to present all relevant evidence of significant probative value to19 his or her defense. [Citation.] [¶] Although the complete exclusion of evidence intended to establish an accused’s defense may impair hi s or her right to due process of law, the
exclusion of defense evidence on a minor or s ubsidiary point does not interfere with that constitutional right. [Citation.] Accordingly su ch a ruling, if erroneous, is ‘an error of law merely,’ which is governed by th e standard of review announced in People v. Watson (1956) 46 Cal.2d 818, 836.” ( People v. Cunningham (2001) 25 Cal.4th 926, 998–999 ( Cunningham ).) We disagree with appellant’s character ization of the excluded evidence as having significant probative value. Appellant argue s the sample switch ev idence was probative with respect to Gabriel’s credibility, partic ularly as to his testimony that he followed proper procedures in analyzing the sample s in appellant’s case. The sample switch evidence is at best equivocal regarding wh ether Gabriel followed proper procedures. Gabriel was following the DNA lab’s procedur es by not directing Ne lson to retain her original notes after they were transcribed into the computer system, although there was evidence these procedures were contrary to international standards. While appellant presented opinion testimony that Gabriel’s direction to reorder the samples was not appropriate, appellant has not poi nted to evidence of a specific policy or procedure that
this act violated. Appellant contends evidence of both the sample switch and contamination incidents was probative to call into question the quality of the wo rk performed by the DNA lab. We do not find the probative value in this regard to be significant. First, the incidents involved errors by diffe rent DNA lab analysts (while Gabriel supervised Nelson at the time of the sample switch, there is no evidence that he contributed to the misordering itself). More significantly, the same or similar incidents could not have taken place in appellant’s case. The sample switch involved only one test tube out of place, whereas all three of the Barcelon specime ns would have to have been misplaced.
The contamination incidents all involved sa mples contaminated with the DNA of lab employees. We note that the trial court di d not preclude appellant from presenting any
evidence on the reliab ility of the DNA lab’s work. Appe llant presented evidence that a20 specimen from the Barcelon autopsy cont ained a third DNA profile—other than appellant’s or Barcelon’s—that could have resulted from contamination. As the excluded sample switch and cont amination evidence lacked significant probative value, any error is reversible only if it is reasonably probable that a more favorable result would have resulted absent the error. ( Cunningham, supra, 25 Cal.4th at p. 999.) As discussed above, it is difficult to conceive a realistic scenario in which the specimens here were switched or contaminat ed. It is not reasonably probable that admission of the minimally probative evidence of the sample switch or contamination
incidents would have resulted in a more favorable result.
B. Harmon Memorandum
1. Background The People provided appellant with page six of the Harmon memorandum. Appellant moved to compel disclosure of the preceding five pages. The People opposed the motion, arguing in part that th e Harmon memorandum was protected by the deliberative process privilege and that pages on e to five were not material to appellant’s
defense under Brady v. Maryland (1963) 373 U.S. 83 ( Brady ). The People submitted the
Harmon memorandum under seal for the court’s in camera review. The trial court denied appellant’s motion. “I’ve reviewed the [Harmon memorandum], and it doesn’t contain any—othe r than the Page 6 I believe that has previously been disclosed, th e rest of the memo, it is deli berative process, which I know
if it were Brady that would fall by the wayside, but it’s not Brady material and has little if any relevance. I would go so far as to say it has no relevance in this case whatsoever
because of the discussions and wh at the memo pertains to.”
2. Discussion Appellant asked this court to cond uct in camera review of the Harmon memorandum; the People did not object to such review. We received from the trial court the sealed copy of the co mplete Harmon memorandum. Having reviewed the Harmon memorandum in camera, we affirm the trial cour t’s finding that pages one through five of
the memorandum contain no Brady material. As Brady was the only ground on which21 appellant sought to obtain the Harmon memora ndum, we need not decide whether the memorandum is protected by the deliberative process privilege. 7

III. Custody Credits The trial court awarded appellant cred it for 3,172 days in actual custody but
denied conduct credits under section 2933.2. Appellant contends, and the People agree,
that section 2933.2 does not apply to appellant. Section 2933.2, which precludes the ac crual of custody credit for persons convicted of murder, “shall only apply to murd er that is committed on or after the date on which this section becomes operative.” (§ 2933.2, subd. (d).) The statute’s operative date is June 2, 1998. ( People v. Herrera (2001) 88 Cal.App.4th 1353, 1366–1367.) Section 2933.2 does not apply to appe llant’s 1981 murder of Barcelon. The parties agree that under the operativ e version of section 4019, appellant is entitled to 1,586 days of conduct credit. We shall direct the trial court to modify the judgment accordingly.
DISPOSITION The judgment is modified to reflect th e addition of 1,586 days of conduct credit and, as so modified, is affirmed. The trial court is ordered to prepare and forward to the California Department of Corrections and Rehabilitation an abstract of judgment modified accordingly.

7 Appellant argues the trial errors he has identified were cumulatively prejudicial and require reversal, even if they were individually harmless. We disagree. To the extent we have assumed error for purposes of analysis, th e cumulative impact of any such errors did not prejudice appellant or deprive him of due process and a fair trial. ( People v. Thomas (2011) 51 Cal.4th 449, 508.)22 SIMONS, Acting P.J.

We concur.

NEEDHAM, J.

BRUINIERS, J.23 Superior Court of the City and County ofSan Francisco, No. SC196780, Hon. AnneChristine Massullo, Judge.

Danalynn Pritz, under appointment by the Cour t of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney Ge neral, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorn ey General, Gregg E Zywicke and Allen R. Crown, Deputy Attorneys General, for Plaintiff and Respondent.