Filed 4/19/13 opn. following U.S. Supreme Ct. remand

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

ANTONIO BARBA,

Defendant and Appellant.

 B185940

 (Los Angeles County

 Super. Ct. No. SA042750)

APPEAL from a judgment of the Superior Court of Los Angeles County. 

Robert J. Perry, Judge. Affirmed.

Marilee Marshall & Associates and Marilee Marshall, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Joseph P. Lee and Mary Sanchez, Deputy Attorneys General, for Plaintiff and 

Respondent.

__________________________

* Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is 

certified for publication with the exception of part II of the DISCUSSION.
2

Antonio Barba appeals from the judgment entered after a jury convicted him of 

first degree murder. Our three previous decisions affirmed the judgment after rejecting 

Barba‟s contention that the court erred by admitting certain evidence on DNA findings. 

In each, the United States Supreme Court granted certiorari and remanded the matter with 

directions to reconsider our decision in light of that court‟s then-newest decision 

concerning whether evidence of forensic laboratory reports violated a defendant‟s Sixth 

Amendment right to confront and examine adverse witnesses when the laboratory 

personnel who prepared those reports did not testify at trial. After considering the high 

court‟s latest ruling, we once more affirm the judgment.

FACTS AND PROCEDURAL HISTORY1

Cab driver Keum Kim was robbed and stabbed to death by a fare he had driven 

from Santa Monica to Venice in the early morning hours of July 8, 2001. Kim was 

dispatched in response to a phone call from a man identifying himself as Sergio who said 

he needed a ride to Brooks Street in Venice and wondered whether the driver might have 

change for a $50 bill. The murder was witnessed by a man who had stopped his car 

behind Kim‟s parked cab at the 800 block of Brooks Street. The witness saw Kim and 

the passenger struggle and then saw the passenger run from the cab into some nearby 

bushes. According to the witness, the passenger was wearing a blue, hooded sweatshirt 

that was covered with blood. However, the witness did not see the passenger clearly and 

was therefore unable to identify him. A search of the area by the police turned up a 

bloody kitchen knife and a dark sweatshirt covered with blood.

Los Angeles Police Detective Paul Inabu was the primary detective assigned to 

investigate Kim‟s murder. On July 10, 2001, Inabu requested that the knife and 

sweatshirt be sent to a crime lab for DNA analysis. Even though no suspect had as yet 

been identified, Inabu made that request to determine whether those items were even 

1 The statement of facts is taken in large part from our previous decision. (People v. 

Barba (Jan. 23, 2012) [nonpub. opn.].)
3

connected to the crime and, if so, to preserve them in case a suspect was identified later 

on. DNA testing of blood samples from those two items showed the blood was Kim‟s.

On July 25, 2001, Inabu received an anonymous phone call from a woman who 

claimed Antonio Barba had killed Kim. After getting a search warrant, Inabu searched 

Barba‟s apartment, which was right near the spot where “Sergio” asked the taxi 

dispatcher to have Kim pick him up. The search turned up a knife that was identical to 

the murder weapon, but found no physical evidence linking Barba to the crime. Barba 

was arrested on August 2, 2001, and was formally charged with the murder and robbery 

of Kim in October 2002.

A police criminalist removed some hairs from the bloody sweatshirt and sent them 

to Orchid Cellmark (Cellmark), a DNA testing lab. A November 2001 test by Cellmark 

analyst Linda Wong produced no interpretable results from the hair samples. In 

February 2002, a police criminalist retrieved more hairs from the sweatshirt. Although 

they were not initially considered suitable samples for DNA testing, the hair was 

eventually sent on to Cellmark for a testing process that involved combining the hairs. 

When that was accomplished, there was only enough DNA to analyze nine genetic 

locations, not the 13 typically examined by Cellmark. Six of them were consistent with 

Barba‟s DNA profile.2

Barba was tried for murder and robbery, but a hung jury led to a mistrial in 

February 2004. Barba was retried starting in August 2004. Cellmark‟s lab director, 

Dr. Jennifer Reynolds, testified for the prosecution about DNA evidence in general and 

about the results of the tests performed by Wong, who no longer worked for Cellmark. 

Reynolds acknowledged that hair samples sent for testing could, in the abstract, have 

become contaminated from saliva, skin, blood, mishandling by the lab, and the failure to 

wash samples. Such contamination was always a possibility, she testified. Wong‟s notes 

did not indicate that she had washed the hairs that yielded the positive test results for 

2 We state the facts concerning the DNA evidence in more detail in section I., 1. of 

our Discussion, post.
4

Barba‟s DNA. The defense introduced evidence of several unrelated instances of lab 

contamination by police criminalists, along with evidence of 53 reported control 

discrepancies at Cellmark between March 2001 and December 2002.

The jury convicted Barba of first degree murder (Pen. Code, § 187, subd. (a)), but 

deadlocked on the robbery count (Pen. Code, § 211), which was then dismissed. Barba 

was given a sentence of life without possibility of parole, plus one year.

In his original appeal Barba contended: (1) the court committed error by denying 

his motion which charged that the prosecutor peremptorily challenged an AfricanAmerican prospective juror because of his race; (2) the court erred by allowing in 

evidence the anonymous phone tip and portions of Barba‟s jailhouse conversations that 

were recorded by the police; and (3) the DNA evidence was inadmissible because the 

test results were hearsay and because allowing Reynolds to testify about Wong‟s test 

results violated his constitutional right to confront the witnesses against him. In 

November 2007, we issued our first opinion in this matter, affirming the judgment. 

(People v. Barba (Nov. 21, 2007, B185940) [nonpub. opn.] (Barba I).) On June 29, 

2009, the United States Supreme Court granted Barba‟s petition for certiorari, vacated 

our earlier decision, and remanded the case to us with directions to reconsider our 

decision in light of its holding four days earlier in Melendez-Diaz v. Massachusetts

(2009) 557 U.S. 305 (Melendez-Diaz), which concerned a defendant‟s constitutional right 

to confront adverse witnesses where the results of scientific tests were involved.

On remand, we affirmed again, distinguishing this case from Melendez-Diaz

because the disputed DNA test report was admitted as part of the basis for the 

independent opinion of another expert witness. (People v. Barba (Feb. 21, 2009, 

B185940) [nonpub. opn.] (Barba II).) We also concluded that even if the report should 

not have been admitted in evidence, the error was harmless. Even though the only issue 

before us on remand was the applicability of Melendez-Diaz, because our entire decision 

in Barba I had been vacated, we restated our discussion as to the other issues that had 

been before us.
5

On June 28, 2011, the United States Supreme Court granted a new petition for 

certiorari from Barba, vacated our decision in Barba II, and remanded the case to us with 

directions to reconsider our decision in light of its holding in Bullcoming v. New Mexico

(2011) 564 U.S. ___ [131 S.Ct. 2705] (Bullcoming), which considered whether a 

defendant‟s constitutional confrontation rights were violated by having someone other 

than the person who conducted a laboratory analysis testify about the results and report of 

the person who actually conducted the test. On remand, we again affirmed the judgment. 

(People v. Barba (Jan. 23, 2012, B185940 [nonpub. opn.] (Barba III).)

On November 13, 2012, the United States Supreme Court granted Barba‟s petition 

for writ of certiorari in Barba III and asked us to reconsider our decision in light of its 

decision in Williams v. Illinois (2012) 567 U.S. ___ [132 S.Ct. 2221] (Williams). As we 

did in Barba II and Barba III, although the United States Supreme Court has directed us 

to reconsider our decision only in light of its most recent Confrontation Clause decision, 

because it vacated our decision in Barba III, in Part II of our Discussion, we restate our 

analysis and holding from Barba I, Barba II and Barba III as to the issues not implicated 

by Williams.

DISCUSSION

I.

CONFRONTATION CLAUSE ISSUES

1. The DNA Evidence

Hairs from the blood-soaked sweatshirt discarded by Kim‟s killer were sent to 

Cellmark for DNA analysis. Three hair samples taken by the LAPD in September 2001 

matched Kim‟s DNA, not Barba‟s. More hair samples taken from the sweatshirt in 

March 2002 also matched Kim‟s DNA, not Barba‟s.

The hair samples that implicated Barba were removed from the sweatshirt on 

February 21, 2002, by LAPD criminalist Michael Mastrocovo. He found 14 hairs and 

gave them to LAPD criminalist Susan Brockbank, who examined them and concluded 
6

they had telogen roots, which were not suitable for DNA analysis. In May 2002, 

Mastrocovo told the prosecutor those hairs could be combined to produce a testable 

sample, but that doing so would destroy the sample, thereby precluding any further 

testing. The prosecutor said to perform the test, and Mastrocovo sent the 14 hairs to 

Cellmark with instructions to consume the samples if necessary. The LAPD‟s lab 

procedure manual recommended that before DNA testing was performed on hair samples, 

the hairs should be washed to reduce the presence of any contaminants. Mastrocovo did 

not wash these hair samples because he did not extract them.

In June 2002, Cellmark DNA analyst Linda Wong tested the 14 hairs sent by 

Mastrocovo. Wong had performed the previous DNA tests but, unlike those tests, her 

notes did not reflect that she performed the Chelex procedure, which involves washing 

the hairs to remove any contaminants that might have been deposited on them. Wong cut 

and combined the hair shafts and was able to locate only nine genetic locations instead of 

the 13 that were usually present. Of those nine, six were consistent with Barba‟s DNA.

Instead of lab analyst Wong, Dr. Jennifer Reynolds, the director of Cellmark‟s 

Maryland laboratory, testified about the DNA results. Reynolds‟s duties included 

performing technical reviews of case folders created by the lab‟s test analysts, 

independently drawing conclusions from the test results based on her own expertise and 

training, and either cosigning the reports or testifying about them in court. Reynolds 

ended this description of her job duties by stating, “as I have done today.” According to 

Reynolds, the case file for the June 2002 testing included correspondence from the 

LAPD, test data and results, Wong‟s worksheets and handwritten notes, and reports of the 

test‟s conclusions. Analysts complete their lab notes and other documents at or near the 

time of the events. The materials in the file included all of the lab notes and worksheets 

that an analyst would have to fill out in the course of DNA testing. The information in 

the file was detailed enough to allow any qualified scientist to look at the file and 

determine what procedures had been used. For instance, Reynolds testified, the file 

included electropherograms, from which anyone with the proper training could determine 
7

how the testing was done. Those records were kept and maintained in the normal course 

of Cellmark‟s business.

Along with Reynolds‟s testimony, four DNA test reports were admitted in 

evidence: (1) Wong‟s November 27, 2001 report which determined that three hair 

samples taken from the killer‟s sweatshirt contained only Kim‟s DNA (Exhibit 27); 

(2) Wong‟s March 26, 2002 report which determined that another sample taken from the 

sweatshirt contained only Kim‟s DNA (Exhibit 28); (3) Wong‟s June 28, 2002 report 

which determined that the 14 hairs found in the sweatshirt matched Barba‟s DNA 

(Exhibit 29); and (4) A June 10, 2004 report by lab analyst Terrill that another hair 

sample from the sweatshirt belonged to Kim, and not to Barba (Exhibit 35).3

These four reports were prepared in the identical format. Each was on Cellmark 

letterhead, addressed to a police investigator. Each bore the title, “REPORT OF 

LABORATORY EXAMINATION.” Each described the items being tested and the type 

of test performed – polymerase chain reaction (PCR) testing. Under the heading 

“RESULTS,” the reports said that DNA extracts were isolated from the items tested by 

using the “AmpF/STR Profiler Plus and/or AmpF/STR COfiler PCR Amplification Kits.” 

The results section said that the DNA loci tested and the types obtained for each sample 

were listed in an attached table.

Under the heading “CONCLUSIONS,” the reports stated whether the DNA 

matched Kim or excluded Barba. A population database and frequency table was 

provided to show the frequency of unrelated individuals having the same DNA results 

depending on whether they were African American, Caucasian, or Hispanic. The third 

page of the reports contained a table identified as “ALLELES DETECTED – PROFILER 

PLUS,” and then set forth certain letter or numerical designations that corresponded to 

certain DNA loci.

3 These reports were not part of the appellate record in either Barba I or Barba II. 

In Barba III, we ordered the record augmented to include these trial exhibits.
8

Exhibits 27, 28, and 35 all stated that Barba was excluded as the source of the 

DNA. Exhibit 29, which implicated Barba, stated in the RESULTS section that “[a] 

portion of the hair shafts adjacent to the roots was used as a control. Any results obtained 

from this hair shaft control are likely due to DNA deposited on the exterior of the hair 

shaft.” Under CONCLUSIONS, the report said that the DNA profile used six of nine loci 

and that Barba could not be excluded as the source. No conclusion about Barba could be 

reached as to the other three loci. The report‟s database frequency table said that only 

one in six million unrelated Hispanics would have the same DNA at those six loci. 

Under the ALLELES DETECTED table on the third page was the following notation: 

“In addition to the profiles obtained from the items referenced in this report, weak results 

were observed. These results may be due to the presence of DNA from more than one 

individual or to technical artifacts, and therefore were not interpreted.” Each report was 

signed by the analyst and by a lab director.

Barba objected that having Reynolds testify instead of Wong violated his 

confrontation rights. Defense counsel said she believed the incriminating hair samples 

had been contaminated while in the LAPD‟s custody before being sent to Cellmark for 

testing, but that Wong‟s testimony was required because there was evidence she had not 

washed the hair samples, which would have eliminated any contamination. Without 

Wong‟s testimony, there would be no explanation of why that happened.

The trial court overruled the objection because it believed Wong‟s reports 

qualified as business records. However, Reynolds was allowed to testify only as to 

procedures that Wong‟s notes showed were actually conducted, or as to what the lab‟s 

standard protocols were. Reynolds was not allowed to speculate as to any procedures not 

reflected in Wong‟s notes, or why they might not have been performed. Reynolds 

testified that, in accord with her job duties, she was in court to give her own independent 

conclusions based on the contents of Wong‟s case file. According to Reynolds, only one 

in six million people would have the same six genetic markers as those that matched 

Barba.
9

Reynolds was vigorously cross-examined about Wong‟s testing procedures. 

Reynolds said that because the notes did not state that Wong had washed the hair samples 

before testing, Wong probably had not done so. Reynolds also testified that even though 

the test results were accurate as to the DNA found on the hair shafts, that did not mean 

the DNA had not been deposited there before testing. Nor could she rule out whether 

such contamination had occurred.

2. Relevant Confrontation Clause Decisions

Under the Sixth Amendment to the United States Constitution, a defendant in a 

criminal trial has the right to confront and cross-examine adverse witnesses (the 

Confrontation Clause). This provision bars the admission at trial of a testimonial 

statement made outside of court against a defendant unless the maker of the statement is 

unavailable at trial and the defendant had a prior opportunity to cross-examine that 

person. (People v. Lopez (2012) 55 Cal.4th 569, 580-581 (Lopez), citing Crawford v. 

Washington (2004) 541 U.S. 36, 59 (Crawford).) To be considered testimonial, the outof-court statement: (1) must have been made with some degree of formality or 

solemnity; and (2) must have a primary purpose that pertains in some fashion to a 

criminal prosecution. However, the United States Supreme Court has been unable to 

agree on a precise definition of those requirements. (Lopez, at p. 581.)

A. The Geier Decision

The defendant in People v. Geier (2007) 41 Cal.4th 555, was convicted of murder 

and rape based in part on DNA evidence tested by Cellmark. The analyst who performed 

the testing did not testify at trial. Instead, a lab director who co-signed the report did, 

and, based on the results and her review of the case file, testified that in her expert 

opinion the incriminating DNA matched that of the defendant. Geier contended his 

constitutional right to confront and cross-examine adverse witnesses was violated 

because the lab analyst did not testify. Our Supreme Court disagreed.
10

After examining disparate state and federal authority on the issue of whether 

scientific test reports were testimonial for purposes of the confrontation clause, the Geier

court relied in large measure on Davis v. Washington (2006) 547 U.S. 813 (Davis), which 

involved two consolidated cases. The first involved the admissibility of a recording of a 

911 phone call by a victim who was describing an attack upon her as it occurred. The 

second arose from the police response to a domestic disturbance call. After arriving at 

the scene and separating the couple, the officers questioned the victim and had her fill out 

and sign an affidavit describing the battery, which was later admitted at her attacker‟s 

trial. The Davis court held that the tape of the 911 call was admissible under the 

Confrontation Clause because the victim was describing events as they occurred and had 

the primary purpose of enabling the police to respond to an ongoing emergency. (Geier, 

supra, 41 Cal.4th at pp. 603-604, citing Davis at pp. 822, 827.) The domestic violence 

victim‟s statements were testimonial, the Davis court held, because they were made after 

an ongoing emergency had ended and their primary purpose was to establish or prove 

past events potentially relevant to a later criminal prosecution. (Ibid., citing Davis at 

pp. 822, 829.)

Based on this, the Geier court concluded a statement was testimonial only if three 

requirements were all met: (1) it was made to a law enforcement officer or by a law 

enforcement officer or agent; (2) it describes a past fact related to criminal activity; and 

(3) it will possibly be used at a later trial. (Geier, supra, 41 Cal.4th at p. 605.) The 

Geier court found the second point determinative. Even though the analyst was working 

for the police and could reasonably anticipate the use of her test results at trial, those 

results “constitute[d] a contemporaneous recordation of observable events rather than the 

documentation of past events.” (Ibid.) As a result, when the analyst recorded the results, 

she was not acting as a witness and was not testifying. (Id. at pp. 605-606.)

The Geier court believed that under Davis, supra, 547 U.S. 813, various types of 

laboratory reports were not testimonial because they were contemporaneous observations 

of recordable events. (Geier, supra, 41 Cal.4th at pp. 606-607.) Even before Davis, the 

Geier court observed, numerous courts looked to the circumstances under which 
11

statements in laboratory reports and other forensic evidence were made in order to 

conclude that they were not testimonial despite their possible use at trial. (Id. at p. 607.)

The circumstances under which the DNA documents at issue in Geier were 

created led that court to conclude that they too were not testimonial. First, they were 

generated as part of a standardized scientific protocol conducted pursuant to the analyst‟s 

employment at Cellmark. Even though the prosecutor hoped to obtain evidence against 

Geier, the analyst‟s work product was part of her job, and was not intended to incriminate 

him. Second, to the extent the analyst‟s notes and reports recounted the procedures used, 

they were not accusatory because DNA analysis can lead to either incriminatory or 

exculpatory results. Third, the accusatory opinions that the DNA evidence matched 

Geier “were reached and conveyed not through the nontestifying technician‟s laboratory 

notes and report, but by the testifying witness, [the lab director].” (Geier, supra,

41 Cal.4th at p. 607.) Accordingly, it was the circumstances under which the DNA report 

and notes were generated that led the Geier court to determine that those documents were 

not testimonial. (Ibid.)

B. The Melendez-Diaz Decision

The defendant in Melendez-Diaz, supra, 557 U.S. 305, was convicted in 

Massachusetts state court of selling cocaine. A substance in the defendant‟s possession 

that was believed to be cocaine was sent to a lab for analysis, and the lab test confirmed it 

was cocaine. At trial, as permitted by Massachusetts law, a sworn affidavit known as a 

certificate of analysis was allowed in evidence in order to prove that the substance tested 

positive as cocaine. The analyst who performed the test did not testify at trial. The 

certificate said nothing more than that the substance was found to contain cocaine. At the 

time of trial, the defendant did not know what tests the analyst performed, whether those 

tests were routine, or whether interpreting their results required the exercise of judgment 

or skills the analyst did not possess.

The Melendez-Diaz court held that the affidavits fell within the core class of 

testimonial statements – such as depositions, prior testimony, declarations, and affidavits 
12

– whose admission violates the confrontation clause. (Melendez-Diaz, supra, 567 U.S. at 

pp. 309-310.) Therefore, the analysts were witnesses and their affidavits were 

testimonial, meaning that the defendant had a right to “confront” them at his trial unless 

the analysts were unavailable for trial and the defendant had a previous opportunity to 

cross-examine them. (Id. at p. 311.) In short, “[t]he Sixth Amendment does not permit 

the prosecution to prove its case via ex parte out-of-court affidavits, and the admission of 

such evidence . . . was error.” (Id. at p. 329, fn. omitted.)

In Barba II we held that Melendez-Diaz did not apply because that decision did 

not consider the scenario present here, where the reports themselves did not contain a 

sworn certificate or affidavit attesting to their genuinness and accuracy and the DNA 

evidence came in through the in-court testimony of an expert witness who used the 

analyst‟s test materials to form her own independent opinion.

C. The Bullcoming Decision

Bullcoming was arrested in New Mexico for drunk driving, and his blood sample 

was sent to a New Mexico state lab for testing. The analyst who tested the sample 

determined that Bullcoming‟s blood alcohol level was .21 grams per hundred millimeters, 

which was very high. The analyst recorded his results on a state-prepared form titled 

“Report of Blood Alcohol Analysis.” The report included a “certificate of analyst,” 

affirming that: the sealed sample he tested was received at the laboratory intact, with the 

seal unbroken; the statements made by the analyst were correct; and that he had followed 

the procedures set out on the back side of the form. Those procedures required analysts 

to retain the sample container and raw data from the analysis and to note anything that 

might affect the integrity of the sample or otherwise affect the validity of the analysis. 

No such notations appeared on the certificate for Bullcoming‟s test results. Finally, 

under the heading “certificate of reviewer,” a state lab examiner who reviewed the 

analysis certified that the person who tested the sample and prepared the report was 

qualified to do so and had followed the established procedures for conducting the test.
13

At Bullcoming‟s trial, the analyst who tested his blood sample did not testify 

because he had been placed on disciplinary leave. Instead, the prosecution called another 

analyst who was familiar with the lab‟s testing procedures but had not participated in or 

observed the test on Bullcoming‟s sample.

The trial court overruled Bullcoming‟s objection that allowing the other lab 

analyst to testify about the report violated his confrontation rights, and he was convicted 

of aggravated drunk driving. The New Mexico Supreme Court affirmed. That court said 

the certifying analyst was a mere scrivener who did nothing more than transcribe the 

results generated by the machine used to conduct the test. The substitute analyst who 

testified at trial was a qualified expert on the use of that machine and provided live, incourt testimony that was subject to cross-examination. As a result, the New Mexico court 

concluded, even though the certificate was testimonial, Bullcoming‟s right of 

confrontation was not violated.

In Bullcoming, supra, 131 S.Ct. 2705, the United States Supreme Court reversed. 

In a plurality opinion, the court held that the analyst‟s certificate was a testimonial 

statement that could not be introduced unless the analyst was unavailable for trial and the 

defendant had a prior opportunity to confront that witness. Justice Ginsburg delivered the 

four-part decision. However, part IV did not command a majority, and the concurring 

opinion of Justice Sotomayor, who also declined to join in part IV, sets the parameters of 

Bullcoming’s reach. (Panetti v. Quarterman (2007) 551 U.S. 930, 949 [if no majority 

opinion, the narrower holding controls]; Marks v. United States (1977) 430 U.S. 188, 193 

(Marks) [in plurality decision, court‟s holding is viewed as the position taken by the 

justices who concurred on the narrowest grounds].)

Part I of the Bullcoming decision contained the facts and procedural history. 

Part II explained why the surrogate analyst was an inadequate substitute for the analyst 

who performed the test. The court noted that the analyst‟s certification reported more 

than a machine-generated number. It also included the analyst‟s certification that he 

received the blood sample intact with the seal unbroken, that he had properly followed 

certain specified procedures, and that nothing happened to affect the integrity or validity 
14

of the testing process. (Bullcoming, supra, 131 S.Ct. at p. 2714.) Even so, the 

comparative reliability of an analyst‟s testimonial report derived from machine-generated 

data does not overcome the confrontation clause, and analysts who write reports that the 

prosecution puts in evidence must be made available for examination at trial. (Id. at 

p. 2715.)4

Surrogate testimony by someone who qualified as an expert regarding the machine 

used and the lab‟s procedures could not convey what the actual analyst knew or observed 

when testing Bullcoming‟s blood sample, and cross examination would not expose “any 

lapses or lies” by the certifying analyst, the Bullcoming court held. This was especially 

significant because the analyst was on disciplinary leave, but was not declared 

unavailable by the prosecution. As a result, Bullcoming‟s lawyer could not question the 

analyst to determine whether he was incompetent or dishonest. (Bullcoming, supra,

131 S.Ct. at pp. 2715-2716.) In short, if the Sixth Amendment is violated, “no substitute 

procedure can cure the violation.” (Id. at p. 2716.)

Part III of Bullcoming, which commanded a majority of the court, explained why 

the analyst‟s certificate was testimonial for purposes of the confrontation clause. The 

court rejected New Mexico‟s contention that the report was not adversarial or 

inquisitorial because it contained nothing more than the observations of an independent 

scientist created pursuant to a nonadversarial public duty. As the Melendez-Diaz court 

held, a document created solely for an evidentiary purpose in aid of a police investigation 

is testimonial. (Bullcoming, supra, 131 S.Ct. at pp. 2716-2717.)

Even though the analyst‟s certificate was not signed under oath, as was the case in 

Melendez-Diaz, the two documents were similar in all material respects, the Bullcoming

4 In Part II of Bullcoming, footnote 6 mentioned Melendez-Diaz’s observation that 

business and public records are generally admissible absent confrontation because they 

are usually created in order to administer an entity‟s affairs, not to prove a fact at trial. 

(Bullcoming, supra, 131 S.Ct. at p. 2714, fn. 6.) Although a majority of the court signed 

off on Part II of Bullcoming, Justices Ginsburg and Thomas did not join in footnote 6, 

and it is therefore part of the plurality holding only.
15

court held. (Bullcoming, supra, 131 S.Ct. at p. 2717.) As in Melendez-Diaz, a police 

officer provided a sample to a lab for testing to assist in a police investigation. An 

analyst tested the sample and prepared a certificate concerning the results. Finally, the 

certificate was formalized in a signed document that was sufficient to qualify the 

analyst‟s statements as testimonial despite the absence of notarization present in 

Melendez-Diaz. In short, the certificate was testimonial. (Bullcoming, at p. 2717.)

Part IV explained why the court did not believe that application of its holding 

would impose an undue burden on the prosecution by requiring it to produce the analyst 

who actually conducted a test and prepared a report. (Bullcoming, supra, 131 S.Ct. at 

pp. 2717-2719.)

Justice Sotomayor‟s concurring opinion had two express purposes: (1) to explain 

why the analyst‟s report was testimonial; and (2) “to emphasize the limited reach of the 

court‟s opinion.” (Bullcoming, supra, 131 S.Ct. at p. 2719 (conc. opn. of Sotomayor, J).)

As to her first purpose, Justice Sotomayor reaffirmed the principle that a statement 

is testimonial if its primary purpose was evidentiary – to create an out-of-court substitute 

for trial testimony. (Bullcoming, supra, 131 S.Ct. at pp. 2719-2720 (conc. opn. of 

Sotomayor, J).) She agreed with the majority that the lab analyst‟s certificate was 

sufficiently formal to suggest its evidentiary purpose despite the absence of an 

affirmation under oath that was present in Melendez-Diaz. However, she noted that 

formality is not the only test to determine whether a report is testimonial. (Id. at 

pp. 2720-2721.)

As to her second purpose, Justice Sotomayor pointed out four circumstances not 

present in Bullcoming. First, this was not a case where the state suggested an alternate 

primary purpose for the report, such as medical reports created while treating a patient. 

(Bullcoming, supra, 131 S.Ct. at p. 2722 (conc. opn. of Sotomayor, J.).)

Second, because the surrogate analyst testified that he had no part in producing 

any portion of the report and did not observe the testing process, “this is not a case in 

which the person testifying is a supervisor, reviewer, or someone else with a personal, 

albeit limited, connection to the scientific test at issue.” (Bullcoming, supra, 131 S.Ct. at 
16

p. 2722 (conc. opn. of Sotomayor, J.).) For example, a supervisor who observed an 

analyst conducting the test might be allowed to testify about the results. Justice 

Sotomayor did not address the precise degree of involvement necessary to justify 

testimony by someone other than the analyst because the surrogate analyst who testified 

at Bullcoming‟s trial had no involvement in the test and report. (Ibid.)

Third, this was “not a case in which an expert witness was asked for his 

independent opinion about underlying testimonial reports that were not themselves 

admitted into evidence. [Citation.]” (Bullcoming, supra, 131 S.Ct. at p. 2722 (conc. opn. 

of Sotomayor, J.).) That scenario would present a different question, Justice Sotomayor 

explained. 

Fourth, the case did not involve only machine-generated results. Instead, the 

prosecution introduced the analyst‟s statements about the results of the test, the 

procedures used, and their validity and integrity. Therefore, the decision did not consider 

whether the prosecution could introduce raw, machine-generated data in conjunction with 

expert witness testimony. (Bullcoming, supra, 131 S.Ct. at p. 2722 (conc. opn. of 

Sotomayor, J.).)

In Barba III, we again affirmed, holding that as to Reynolds‟s testimony alone, it 

fell under the exception for the independent opinion of an expert witness based on 

underlying testimonial reports not placed in evidence, as suggested in Justice 

Sotomayor‟s concurring opinion. As for admitting in evidence the three DNA reports 

that excluded Barba as a DNA donor, we held that any error was harmless beyond a 

reasonable doubt. As for admitting in evidence the one report that found a “match” with

Barba‟s DNA, we held that the error was harmless because: (1) it contained no 

affirmations that all testing procedures had been correctly followed; (2) Reynolds was 

forced to concede that Wong had not washed the hair samples, which confirmed the key 

defense claim against Cellmark‟s handling of the samples; (3) Reynolds conceded on 

cross examination that she could not rule out the possibility that the samples had been 

contaminated; and (4) the report was virtually meaningless without Reynold‟s expert 

testimony.
17

D. The Williams Decision

Williams arose from the kidnap, rape, and robbery of a Chicago woman in 

February 2000. Vaginal swabs were taken as part of a sexual assault examination and the 

Illinois State Police sent those swabs to a Cellmark lab for DNA analysis. Cellmark 

tested the swabs and produced a DNA profile of the semen donor. Defendant Williams 

had not been identified as the perpetrator and was not considered a suspect in that crime 

when the Cellmark DNA profile was created. Williams was arrested in August 2000 on 

unrelated charges. A sample of his blood was taken at that time, from which the state 

police lab created a DNA profile. Sometime later, state police crime lab analyst Sandra 

Lambatos conducted a computer search of DNA profiles in the state police database to 

see if any matched the DNA profile that Cellmark had produced from the rape victim‟s 

vaginal swabs. Lambatos determined that the Cellmark profile from the vaginal swabs 

matched the state crime lab‟s DNA profile of Williams produced from his August 2000 

blood sample. Williams then took part in a lineup where the rape victim identified him as 

her attacker. At trial, Lambatos testified about her conclusions based on the Cellmark 

DNA report, but the report itself was not in evidence.

Williams was found guilty at a bench trial and the Illinois Court of Appeals and 

Supreme Court each affirmed that judgment. At issue in those appeals was whether 

Lamabtos‟s testimony concerning the match between the state police lab and Cellmark 

DNA profiles violated Williams‟s Sixth Amendment confrontation rights.

The United States Supreme Court affirmed the judgment, yet remained as 

fractured as it had in Bullcoming. In a plurality opinion written by Justice Alito, the court 

set forth two independent grounds why Lambatos‟s expert testimony did not violate the 

Confrontation Clause. In the first of these, Justice Alito said that the testimony was not 

admitted for its truth. Instead, the prosecution expert‟s references to the underlying DNA 

reports had the limited purpose of explaining the basis of Lambatos‟s independent expert 

conclusion that Williams‟s DNA from the state police lab profile matched the profile that 

Cellmark produced from the victim‟s vaginal swabs. (Williams, supra, 132 S.Ct. at 
18

p. 2228 (plur. opn. of Alito, J.).) Because this was a bench trial, it was far more likely 

that the trial judge was able to evaluate this evidence for this limited purpose. (Id. at 

pp. 2236-2237.)

The plurality‟s alternative ground rested on the conclusion that the Cellmark DNA 

report was not testimonial for purposes of Confrontation Clause analysis. The Williams

plurality reasoned that the confrontation clause had not been violated because the 

Cellmark report was prepared for the primary purpose of finding a dangerous rapist who 

was still at large, not for the primary purpose of targeting an accused individual. 

(Williams, supra, 132 S.Ct. at p. 2243 (plur. opn. of Alito, J.).)5

Justice Thomas wrote a separate concurring opinion, concluding that even though 

Lambatos‟s testimony about the Cellmark DNA report went to the truth of that report, the 

report was not testimonial because it “lack[ed] the solemnity of an affidavit or 

deposition.” (Williams, supra, 132 S.Ct. at p. 2260 (conc. opn. of Thomas, J.).) Justice 

Kagan, joined by Justices Scalia, Ginsburg, and Sotomayor, dissented. According to the 

dissent, testimony about the Cellmark DNA by Lambatos (who was not affiliated with 

Cellmark) violated Williams‟s right to confront the Cellmark analyst who prepared the 

report because the expert‟s statements went to the truth of that report. (Id. at p. 2276 (dis. 

opn. of Kagan, J.).)

E. Post-Williams Decisions of the California Supreme Court

(i) People v. Lopez

On October 15, 2012, the California Supreme Court issued a trio of companion 

cases interpreting Williams: Lopez, supra, 55 Cal.4th 569; People v. Dungo (2012) 

55 Cal.4th 608 (Dungo); and People v. Rutterschmidt (2012) 55 Cal.4th 650 

(Rutterschmidt).

5 However, as we discuss in detail in our analysis, the plurality‟s language veered 

from this limiting language and signaled a far broader holding.
19

The defendant in Lopez was found guilty of vehicular manslaughter while 

intoxicated. (Pen. Code, § 191.5, subd. (b).) At trial, a sheriff‟s department criminalist 

testified that he had reviewed a lab report – made by a colleague – which showed that the 

defendant‟s blood alcohol level was .09 percent two hours after the collision. The 

criminalist testified that based on his own separate abilities he too concluded that the 

defendant‟s blood alcohol level was .09 percent. The criminalist testified that he had 

worked at the lab for 17 years, knew its procedures for processing and testing blood 

samples, had trained the analyst who actually tested the defendant‟s blood, and that all 

lab technicians receive the same training. The report was also allowed in evidence.

After the Court of Appeal affirmed the judgment, our Supreme Court granted 

review and ordered the appellate court to reconsider its holding in light of MelendezDiaz. The Court of Appeal then reversed the judgment, and the California Supreme 

Court granted review. The Lopez court noted Geier’s holding that the DNA evidence at 

issue in that case was not testimonial because it was a contemporaneous recordation of 

observable events. (Lopez, supra, 55 Cal.4th at pp. 577, 581.) However, the MelendezDiaz and Bullcoming courts held that the lab reports at issue in those cases were 

testimonial even though they contained near-contemporaneous observations of a 

scientific test. (Ibid. citing Melendez-Diaz, supra, 557 U.S. at p. 315, and Bullcoming, 

supra, 131 S.Ct. at pp. 2714-2715.)

To resolve this issue, the Lopez court looked to Crawford, Melendez-Diaz, 

Bullcoming, and Williams. (Lopez, supra, 55 Cal.4th at p. 581.) It held that the portions 

of the lab report that contained nothing other than the machine-generated results of the 

test performed were not sufficiently formal or solemn to be testimonial under the 

Confrontation Clause because they lacked any attestations or assertions of validity, and 

because there was no way to cross-examine the machine that generated those results. (Id. 

at pp. 582-583.) The same was true as to portions of the report that functioned like a 

chain of custody report by showing that it was the defendant‟s sample being tested. 

Those notations, on a chart captioned “FOR LAB USE ONLY”, were instead nothing 

more than an informal record of data for internal purposes. (Id. at pp. 583-584.)
20

(ii) People v. Dungo

The defendant in Dungo, supra, 55 Cal.4th 608, was convicted of murder. A 

prosecution forensic pathologist testified that the victim had been strangled. That 

expert‟s opinion testimony was based on objective facts concerning the condition of the 

body that another pathologist observed and recorded in the autopsy report. The report 

itself was not placed in evidence. The Court of Appeal reversed the judgment, 

concluding that the defendant‟s Confrontation Clause rights had been violated.

The Dungo court reversed. Justice Kennard‟s lead opinion, in which four other 

justices concurred, determined that the autopsy report was not testimonial under the 

Confrontation Clause. First, the expert testified as to only the physical observations 

recorded in the autopsy report, not as to the conclusions reached by the pathologist who 

conducted the autopsy and prepared the report. Such observations lack the formality 

required under the Confrontation Clause. (Dungo, supra, 55 Cal.4th at pp. 619-620.)

Second, the court held that autopsy reports do not have the primary purpose of 

targeting an accused individual. Autopsy reports are required by law for certain types of 

deaths – some related to criminal activities and some not. (Dungo, supra, 55 Cal.4th at 

p. 620.) Such reports therefore serve many purposes: to allow a decedent‟s family to 

learn whether a wrongful death action is warranted; for insurance companies to determine 

whether a death is covered under one of its policies; and to provide answers to grieving 

family members or satisfy the public‟s interest in the death of newsworthy persons. (Id.

at p. 621.) Although autopsy reports are sometimes prepared for criminal investigations, 

their primary purpose is to provide an official explanation for an unusual death. Such 

official records are not ordinarily testimonial. (Ibid.)

Justice Chin wrote a concurring opinion, which was joined by three other justices. 

In it, he amplified the lead opinion‟s reasoning in light of the plurality opinion in 

Williams. According to Justice Chin, the autopsy report did not have the primary purpose 

of accusing the defendant or any other targeted individual of having committed a crime. 
21

Instead, its primary purpose was to describe the condition of the victim‟s body. (Dungo, 

supra, 55 Cal.4th at p. 630 (conc. opn. of Chin, J.).)6

(iii) People v. Rutterschmidt

The court in Rutterschmidt, supra, 55 Cal.4th 650, considered the appeal of a 

murder conviction from a trial where a lab director testified as a prosecution expert that, 

based on lab tests conducted by others, the victims had been drugged. The Rutterschmidt

court declined to address whether a Confrontation Clause violation occurred, opting 

instead to affirm on the ground that any error was harmless beyond a reasonable doubt 

based on other overwhelming evidence of the defendants‟ guilt. (Id. at p. 661.)

F. Post- Williams Decisions By the California Court of Appeal

(i) People v. Huynh

The defendant in People v. Huyhn (2012) 212 Cal.App.4th 285 (Huynh) was 

charged with drugging and murdering one man, and with drugging and sexually 

assaulting another. The surviving victim had no memory of what occurred and was taken 

to a medical facility, where a sexual assault exam was performed. The nurse who 

conducted that exam observed and photographed various signs that the victim had been 

sodomized and otherwise sexually assaulted. That nurse was unavailable to testify at 

defendant‟s trial, so her supervisor testified about the examination results in her stead, 

opining based on the photographs that the victim‟s anus showed signs of significant 

trauma.

Division 1 of the Fourth District rejected the defendant‟s claim that the substitute 

witness‟s testimony violated the Confrontation Clause. After discussing recent United 

States Supreme Court Confrontation Clause decisions, including Williams, along with the 

California Supreme Court‟s ruling in Dungo, the Huynh court found Dungo most 

6 We explain Justice Chin‟s reasoning in greater detail in section I., 5. of our 

DISCUSSION, post, where we analyze Williams and its applicability to this case.
22

analogous. Because the defendant was not a suspect and was not the target of a criminal 

investigation when the exam was performed, the court held that the primary purpose of 

the sex assault exam and the photographs was to show the condition of the victim‟s body, 

not to accuse a targeted individual. (Huynh, supra, 212 Cal.App.4th pp. 320-321.)

(ii) People v. Holmes

In People v. Holmes (2012) 212 Cal.App.4th 431 (Holmes), Division Six of this 

court considered a case similar to ours: a defendant convicted of burglary, robbery, and 

murder challenged the judgment under the Confrontation Clause because lab supervisors 

testified about DNA results found on evidence at the crime scene, not the analysts who 

conducted those tests. Relying on Dungo, the appellate court held that no Confrontation 

Clause violation occurred because the unsworn and uncertified lab reports lacked the 

formality required to find such a violation. (Id. at pp. 437-438.)

(iii) People v. Westmoreland

The court in People v. Westmoreland (2013) 213 Cal.App.4th 602 affirmed the 

murder and robbery convictions of a defendant who claimed his Confrontation Clause 

rights were violated when a forensic expert testified based on both the observations and 

conclusions contained in an autopsy report prepared by someone else. The appellate 

court noted that the case was unlike Dungo because the expert testified about someone 

else‟s conclusions, not just his observations, and because the autopsy report itself was 

placed in evidence. Even so, no Confrontation Clause violation occurred, the court held, 

because Dungo’s conclusion about the primary purpose of autopsy reports extended 

beyond the more limited facts of that case. (Id. at pp. 623-624.)

(iv) People v. Steppe

The court in People v. Steppe (2013) 213 Cal.App.4th 1116 affirmed a conviction 

for attempted murder against the defendant‟s contention that his Confrontation Clause 

rights were violated when a laboratory‟s technical reviewer gave her own independent 
23

opinion that the defendant‟s DNA matched that retrieved from certain evidence, as 

opposed to having the technician who performed the tests testify at trial. Interpreting 

both Williams and Lopez, the Steppe court held that no Confrontation Clause violation 

occurred.

First, as to the testimony referring to the raw data generated from the tests, such 

machine-generated results are not testimonial under Lopez. (Steppe, supra,

213 Cal.App.4th at p. 1126.) As to the reviewer‟s testimony that she reached the same 

conclusion about a DNA match as did the analyst who performed the test, the court found 

no Confrontation Clause violation for the following reasons: (1) there had already been 

testimony that the lab would not issue a report unless a reviewer concurred in the 

analyst‟s finding, meaning that the jury already knew that the analyst and the reviewer 

had reached the same conclusion; (2) under Williams and Lopez, such reports are not 

formal and solemn enough to be testimonial; and (3) the reviewer‟s brief reference to the 

analyst‟s report and her reliance on the raw data it contained were proper under 

California law because “such items are reasonably relied on by experts in the field of 

DNA analysis in forming their opinions.” (Id. at pp. 1126-1127, citing to People v. 

Gardeley (1996) 14 Cal.4th 605, 618, for the third reason.) 

3. How To Interpret Williams

In Barba III, we interpreted Bullcoming in accord with Justice Sotomayor‟s 

concurring opinion under the rule that a fragmented court‟s holding may be viewed as 

that position taken by a majority of justices who concurred on the narrowest grounds. 

(Marks, supra, 430 U.S. at p. 193.) When the California Supreme Court set out to 

interpret Williams, however, it found that rule ill-suited to the disparate reasoning 

employed by the plurality and Justice Thomas‟s concurring opinion.

In Dungo, supra, 55 Cal.4th 608, the court held that one pathologist could testify 

about an autopsy report prepared by another because such reports had multiple purposes 

and therefore did not have the primary purpose of serving as testimony at trial. Justice 

Kennard wrote the lead opinion, which was joined by Chief Justice Cantil-Sakauye and 
24

Justices Werdegar, Baxter, and Chin. However, Justice Chin wrote a concurring opinion, 

joined by the Chief Justice and Justices Baxter and Werdegar, that amplified the 

reasoning of the lead opinion.

Justice Chin‟s first task was to stake out the analytic guideposts for a decision as 

fractured as that in Williams. Because Justice Thomas‟s concurring opinion at least 

partly contradicted the Williams plurality, it could not be a logical subset of the plurality 

opinion, thereby making the Marks rule inapplicable. (Dungo, supra, 55 Cal.4th at p. 628 

(conc. opn. of Chin, J.).) However, a legal opinion that commanded a majority of the 

Supreme Court is not required to find that court‟s reasoning. Instead, we need find 

nothing more than a legal standard which, when applied, will necessarily produce a result 

with which a majority of that court would agree. (Ibid, citing U.S. v. Williams (9th Cir. 

2006) 435 F.3d 1148, 1157.)

Justice Chin explained that under this interpretive rule, the result in Williams

allowed a majority of our Supreme Court in Dungo to discern a standard that would 

command the support of a majority of the Williams court. Because a majority of that 

court found no Confrontation Clause violation, albeit for different reasons, if such a 

ruling in Dungo would comport with the reasoning of both the plurality and concurring 

opinions in Williams, then an affirmance was possible. (Dungo, supra, 55 Cal.4th at 

p. 628 (conc. opn. of Chin, J.).) “Accordingly, we must determine whether there was a 

confrontation clause violation under Justice Thomas‟s opinion and whether there was a 

confrontation clause violation under the plurality‟s opinion. If there were no violation 

under both opinions, then the result (finding no confrontation clause violation) would 

command the support of a majority from the high court‟s Williams case. Such a test 

satisfied the requirements of both the plurality opinion and Justice Thomas‟s 

concurrence.” (Id. at pp. 628-629, original italics.)7

7 Even if Justice Chin‟s concurring opinion does not rise to the level of binding 

precedent, we may rely on it because it was signed by four of the court‟s seven justices. 

(People v. Retanan (2007) 154 Cal.App.4th 1219, 1231 [rejecting appellant‟s reliance on 

a Supreme Court concurring opinion because no other justices joined in].) At a 
25

4. The Williams Plurality’s Holding Regarding the Primary Purpose of DNA Testing 

Under the interpretive rule announced in Dungo, we may affirm if we can find that 

there was no confrontation clause violation under the rationales employed by both the 

plurality and Justice Thomas‟s concurring opinion in Williams. In our view, Justice 

Thomas would likely affirm because the DNA reports created by Wong for this case were 

not sworn or certified declarations of fact that attested to their accuracy and reliability, 

and were therefore not sufficiently formal or solemn enough to invoke the protections of 

the Confrontation Clause. (Williams, supra, 132 S.Ct. at p. 2260 (conc. opn. of 

Thomas, J.).)8 We must then determine whether the Williams plurality would have 

reached the same result, albeit for different reasons.

The alternative ground for the Williams court‟s plurality opinion was the 

determination that the Confrontation Clause would not have been violated even if the 

Cellmark DNA report had been admitted in evidence. According to the plurality, the 

report in that case did not have the primary purpose of targeting an accused individual 

and therefore was not testimonial. (Williams, supra, 132 S.Ct. at pp. 2242-2243 (plur. 

opn. of Alito, J.).) Barba understandably latches onto this language because he was not 

only a suspect in Kim‟s death when the DNA tests were conducted, he was in custody 

after having been charged with the crime. However, as we indicated earlier, we believe 

the Williams plurality has a broader reach.

 

minimum, we consider it persuasive authority and a reliable indicator of how a majority 

of the court would rule.

8 Barba contends that Justice Thomas would view the DNA reports as sufficiently 

formalized and solemn to be considered testimonial because, if they were falsified, a 

felony would have been committed under Penal Code section 134. We reject that 

contention.

Penal Code section 134 states that it is a felony to prepare any false document or 

object with the intent that it be produced at trial for any fraudulent purpose. That 

provision would apply with equal force to documents that are not testimonial under the 

Confrontation Clause, such as the autopsy reports in Lopez and Dungo. That would not 

make them testimonial just because they had been falsified.
26

We begin by setting forth in full the Williams plurality‟s rationale for concluding 

that DNA test reports were not testimonial under the Confrontation Clause. In describing 

the holding that would appear later in the decision, the plurality noted that the “Cellmark 

report is very different from the sort of extrajudicial statements, such as affidavits, 

depositions, prior testimony, and confessions, that the Confrontation Clause was 

originally understood to reach. The report was produced before any suspect was 

identified. The report was sought not for the purpose of obtaining evidence to be used 

against petitioner, who was not even under suspicion at the time, but for the purpose of 

finding a rapist who was on the loose. And the profile that Cellmark provided was not 

inherently inculpatory. On the contrary, a DNA profile is evidence that tends to 

exculpate all but one of the more than 7 billion people in the world today. The use of 

DNA evidence to exonerate persons who have been wrongfully accused or convicted is 

well known. If DNA profiles could not be introduced without calling the technicians 

who participated in the preparation of the profile, economic pressures would encourage 

prosecutors to forgo DNA testing and rely instead on older forms of evidence, such as 

eyewitness identification, that are less reliable. [Citation.] The Confrontation Clause 

does not mandate such an undesirable development. This conclusion will not prejudice 

any defendant who really wishes to probe the reliability of the DNA testing done in a 

particular case because those who participated in the testing may always be subpoenaed 

by the defense and questioned at trial.” (Williams, supra, 132 S.Ct. at p. 2228 (plur. opn. 

of Alito, J.).)

When the Williams plurality turned to its analysis and discussion of this issue, it 

noted that the Melendez-Diaz and Bullcoming courts did not hold that all forensic reports 

were testimonial statements. In those cases, the reports violated the Confrontation Clause 

“because they were the equivalent of affidavits made for the purpose of proving the guilt 

of a particular criminal defendant at trial. There was nothing resembling an ongoing 

emergency, as the suspects in both cases had already been captured, and the tests in 

question were relatively simple and can generally be performed by a single analyst. In 

addition, the technicians who prepared the reports must have realized that their contents 
27

(which reported an elevated blood-alcohol level and the presence of an illegal drug) 

would be incriminating.

“The Cellmark report is very different. It plainly was not prepared for the primary 

purpose of accusing a targeted individual. In identifying the primary purpose of an outof-court statement, we apply an objective test. [Citation.] We look for the primary 

purpose that a reasonable person would have ascribed to the statement, taking into 

account all of the surrounding circumstances. [Citation.]

“Here, the primary purpose of the Cellmark report, viewed objectively, was not to 

accuse petitioner or to create evidence for use at trial. When the [state police] lab sent the 

sample to Cellmark, its primary purpose was to catch a dangerous rapist who was still at 

large, not to obtain evidence for use against petitioner, who was neither in custody nor 

under suspicion at that time. Similarly, no one at Cellmark could have possibly known 

that the profile it produced would turn out to inculpate petitioner – or for that matter, 

anyone else whose DNA profile was in a law enforcement database. Under these 

circumstances, there was no „prospect of fabrication‟ and no incentive to produce 

anything other than a scientifically sound and reliable profile. [Citation.]

“The situation in which the Cellmark technicians found themselves was by no 

means unique. When lab technicians are asked to work on the production of a DNA 

profile, they often have no idea what the consequences of their work will be. In some 

cases, a DNA profile may provide powerful incriminating evidence against a person who 

is identified either before or after the profile is completed. But in others, the primary 

effect of the profile is to exonerate a suspect who has been charged or is under 

investigation. The technicians who prepare a DNA profile generally have no way of 

knowing whether it will turn out to be incriminating or exonerating – or both.

“It is also significant that in many labs, numerous technicians work on each DNA 

profile. . . . When the work of a lab is divided up in such a way, it is likely that the sole 

purpose of each technician is simply to perform his or her task in accordance with 

accepted procedures.
28

“Finally, the knowledge that defects in a DNA profile may often be detected from 

the profile itself provides a further safeguard. In this case, for example, [police 

laboratory analyst] Lambatos testified that she would have been able to tell from the 

profile if the sample used by Cellmark had been degraded prior to testing. As noted 

above, moreover, there is no real chance that „sample contamination, sample switching, 

mislabeling, [or] fraud‟ could have led Cellmark to produce a DNA profile that falsely 

matched petitioner. Post, at [2275], (Kagan, J., dissenting). At the time of the testing, 

petitioner had not yet been identified as a suspect, and there is no suggestion that anyone 

at Cellmark had a sample of his DNA to swap in by malice or mistake. And given the 

complexity of the DNA molecule, it is inconceivable that shoddy lab work would 

somehow produce a DNA profile that just so happened to have the precise genetic 

makeup of petitioner, who just so happened to be picked out of a lineup by the victim. 

The prospect is beyond fanciful.

“In short, the use at trial of a DNA report prepared by a modern, accredited 

laboratory „bears little if any resemblance to the historical practices that the 

Confrontation Clause aimed to eliminate.‟ [Citation.]” (Williams, supra, 132 S.Ct. at 

pp. 2243-2244 (plur. opn. of Alito, J.).)

5. The Dungo Court’s Analysis of Williams

We next examine Justice Chin‟s concurring opinion in Dungo, supra, 55 Cal.4th 

608, which commanded a majority of the court. Justice Chin concluded that the autopsy 

report statements relied on at trial by the expert witness were not testimonial because 

their primary purpose was to describe the condition of the victim‟s body. In doing so, 

Justice Chin stated that “there was no prospect of fabrication or incentive to produce 

anything other than a scientifically reliable report. The purpose of this part of the autopsy 

report is „simply to perform [the pathologist‟s] task in accordance with accepted 

procedures.” (Dungo, supra, 55 Cal.App.4th at p. 630 (conc. opn. of Chin, J.), quoting 

Williams, supra, 132 S.Ct. at p. 2244.)
29

Justice Chin‟s concurring opinion went on to observe that “practical 

considerations” helped to inform the Williams plurality, pointing to the plurality‟s 

statement that economic pressures would likely cause prosecutors to forego the use of 

DNA testing if they had to call the technicians who helped prepare a DNA profile. 

Similar considerations were at play for autopsy reports, Justice Chin wrote. (Dungo, 

supra, 55 Cal.4th at p. 631 (conc. opn. of Chin, J.), citing Williams, supra, 132 S.Ct. at 

p. 2228.)

Justice Chin acknowledged that the circumstances in Dungo supported the 

contention that the autopsy report‟s primary purpose was to accuse the defendant in that 

case of a crime. “Unlike the situation in Williams, defendant was a suspect at the time 

the autopsy report was prepared. An investigator was present during the autopsy, and the 

pathologist had been told of defendant‟s confession before the autopsy report was 

written.” (Dungo, supra, 55 Cal.4th at p. 632 (conc. opn. of Chin, J.).) Even so, he did 

not believe that the Williams plurality intended to allow evidence of DNA reports only 

when there was no identified suspect at the time the report was prepared. “Although the 

plurality in Williams stated that the defendant in that case happened not to be a suspect or 

in custody at the time the report was prepared, nothing in its opinion suggests that this is 

a requirement rather than merely one of „the surrounding circumstances‟ of which the 

court must take account.” (Ibid. citing Williams, supra, 132 S.Ct. at p. 2243, original 

italics.)

The key distinction for Justice Chin was that the opinion concerning the manner of 

death came from the testifying expert who was subject to full cross examination, and not 

from the report, which was not placed in evidence. (Dungo, supra, 55 Cal.4th at p. 632 

(conc. opn. of Chin, J.).) In forming his opinion, the testifying expert relied on 

statements in the autopsy report concerning the condition of the victim‟s body. Such 

statements “are objective observations of the type routinely placed into autopsy reports, 

whether or not a specific suspect exists. They are not statements with a primary purpose 

of accusing defendant, or anyone else, of criminal conduct. The fact that the larynx and 

hyoid bone were not broken, like most of the other observations memorialized in the 
30

report, „was not inherently inculpatory.‟ [Citation.] There was no prospect of fabrication 

or incentive to produce anything other than an accurate description of the state of the 

body.” (Dungo, supra, 55 Cal.4th at p. 632 (conc. opn. of Chin, J.), citing Williams, 

supra, 132 S.Ct. at pp. 2228, 2244.)

A majority of the California Supreme Court therefore interprets the Williams

plurality to mean that a DNA profile report is not necessarily testimonial simply because 

the defendant had been identified as a suspect when the report was prepared. Instead, 

according to Justice Chin‟s concurring opinion in Dungo, that is merely a factor to 

consider when evaluating the circumstances under which reports of forensic test results 

are prepared.

6. The Absence of An Identified Suspect Is Not Required Under the Williams 

Plurality’s Analysis of the Primary Purpose of DNA Testing

We agree with Justice Chin‟s concurring opinion in Dungo that the Williams

plurality did not make the absence of a targeted individual a requirement for finding that 

a DNA test report is not testimonial. Even though the Williams plurality can be plausibly 

read as limited to situations where no suspect had been identified when a DNA profile 

was produced, that narrow language actually serves as the jumping off point for a broader 

interpretation.

As we explained above, the Williams plurality said that when the police sent the 

samples to Cellmark for DNA testing, its primary purpose was to identify and catch the 

rapist. The same was true for the Cellmark technicians, who could not have known that 

their test results would point to the defendant or anyone else with a DNA profile in the 

state‟s database. However, the plurality then said in essence that the Cellmark 

technicians who tested the incriminating samples that were later linked to Williams were 

no different from DNA lab technicians in general, who never know whether their work 

will incriminate or exonerate someone whether or not that person has been identified as a 

suspect or charged with a crime. (Williams, supra, 132 S.Ct. at p. 2244 (plur. opn. of 

Alito, J.).)
31

The Williams plurality elsewhere extolled the virtues of DNA testing in general, 

noting that its use “to exonerate persons who have been wrongfully accused or convicted

is well known.” (Williams, supra, 132 S.Ct. at p. 2228 (plur. opn. of Alito, J.), italics 

added.) The plurality warned that requiring testimony from the technicians who prepared 

DNA profiles would encourage prosecutors to forego the use of DNA testing and resort 

to less reliable forms of identification evidence, an “undesirable development” that the 

Confrontation Clause did not require. (Ibid.) A safeguard for defendants existed because 

those who “really wishe[d] to probe the reliability of the DNA testing done in a particular 

case” may always subpoena those who took part in the testing and question them at trial. 

(Ibid.)

Finally, the Williams plurality ended by stating that DNA reports prepared by 

modern accredited laboratories bear little or no resemblance to the kinds of testimonial 

statements covered by the Confrontation Clause.

If, as Barba contends, the Williams plurality is limited to DNA testing conducted 

only in the absence of an identified suspect, why did Justice Alito contrast that scenario 

with DNA testing in general, pointing out in broadly favorable language how such testing 

can exonerate as well as implicate someone already charged with a crime? And why 

conclude the analysis by stating that DNA testing is essentially exempt from the 

Confrontation Clause without specifying that this was so only when the test was 

performed at a time when no suspect had yet been identified? The answer must be – as 

Justice Chin wrote for a majority of four justices in Dungo – that the absence of a 

targeted individual is not required by the Williams plurality in order to find that a DNA 

test report is not testimonial under the Confrontation Clause.

The practicality of this conclusion is borne out by the facts of this case. Two days 

after Kim‟s murder and more than two weeks before an anonymous tipster identified 

Barba as his killer, lead detective Inabu asked that the bloody knife and sweatshirt found 

at the scene be tested in order to determine the killer‟s identity. Under Barba‟s reasoning, 

any DNA test results obtained during that period would not be testimonial under the 

Williams plurality. However, once Barba had been targeted as a suspect, reports 
32

concerning the results of any testing done after that time became testimonial. The 

benefits of DNA testing praised by the Williams plurality would not simply disappear 

upon the discovery of a possible suspect. In either case, the same objects would be tested 

using the same methods by lab technicians who, as Justice Alito observed, have no idea 

whether their work will exonerate or implicate someone who has been “charged or is 

under investigation.” (Williams, supra, 132 S.Ct. at p. 2244 (plur. opn. of Alito, J.).)

7. Barba’s Confrontation Rights Were Not Violated

Making sense out of the case law in this area is to some extent an exercise in 

tasseomancy. The Williams plurality believes that DNA reports themselves are not 

testimonial. A majority of the justices in Dungo, as represented by Justice Chin‟s 

concurring opinion, reads that opinion to mean that its rationale may apply even if the 

reports were prepared when a suspect had been identified or charged. Those same four 

justices concluded that the autopsy report evidence at issue in that case did not violate the 

Confrontation Clause because it came in through the testimony of the expert witness, who

was subject to cross-examination.

Meanwhile, the two post-Williams decisions by the Court of Appeal that concern 

DNA evidence have taken somewhat different approaches. The court in Holmes, supra,

212 Cal.App.4th 431, concluded that DNA reports were not testimonial because they 

lacked the requisite formality and solemnity. (Id. at pp. 437-438.) The court in Steppe, 

supra, 213 Cal.App.4th 1116 found no Confrontation Clause violation on facts similar to 

those here for three reasons: (1) there had already been testimony that the lab would not 

issue a report unless a reviewer concurred in the analyst‟s finding, meaning that the jury 

already knew that the analyst and the reviewer had reached the same conclusion; 

(2) under Williams and Lopez, such reports are not formal and solemn enough to be 

testimonial; and (3) the reviewer‟s brief reference to the analyst‟s report and her reliance 

on the raw data it contained were proper under California law because “such items are 

reasonably relied on by experts in the field of DNA analysis in forming their opinions.” 
33

(Id. at pp. 1126-1127, citing to People v. Gardeley (1996) 14 Cal.4th 605, 618, for the 

third reason.)

In some ways, the end of this lengthy exposition takes us back to the beginning 

and the California Supreme Court‟s decision in Geier, supra, 41 Cal.4th 555. Although 

the Geier court used the label “contemporaneous recordation of observable events” to 

describe why DNA test results were not testimonial (id. at pp. 606-607), it did so through 

the prism of “the circumstances under which [a] statement [was] made.” (Ibid.)

There were three circumstances that led the Geier court to conclude the DNA 

results at issue in that case were not testimonial. First, the results were generated as part 

of a standardized scientific protocol conducted pursuant to the analyst‟s employment at 

Cellmark. Although the prosecutor hoped to obtain evidence against Geier, the analyst‟s 

work product was part of her job, and was not intended to incriminate him. Second, to 

the extent the analyst‟s notes and reports recounted the procedures used, they were not 

accusatory because DNA analysis can lead to either incriminatory or exculpatory results. 

Third, the accusatory opinions that the DNA evidence matched Geier “were reached and 

conveyed not through the nontestifying technician‟s laboratory notes and report, but by 

the testifying witness, [the lab director].” (Geier, supra, 41 Cal.4th at p. 607.)

This reasoning overlaps that of the Williams plurality. When determining the 

primary purpose of an out-of-court statement, the plurality took into account all the 

surrounding circumstances. Just like the lab technicians who worked on the defendant‟s 

samples in Williams, DNA lab technicians in general perform their tasks in accordance 

with accepted procedures and have no idea beforehand whether their work will exonerate 

or inculpate a known suspect. (Williams, supra, 132 S.Ct. at pp. 2243-2244 (plur. opn. of 

Alito, J.).)

Not addressed by the Williams plurality is the Geier court‟s third factor: that the 

DNA evidence was conveyed through the independent opinion of the DNA expert who 

testified at trial. This thread is picked up by Justice Chin‟s concurring opinion in Dungo, 

where he wrote that the autopsy evidence was not testimonial because it came from the 

expert who testified at trial, and whose opinion was based on the non-accusatory 
34

statements about the victim‟s physical condition that were contained in the report, not 

from the report itself. (Dungo, supra, 55 Cal.4th at p. 632 (conc. opn. of Chin, J.).) 

Although Geier’s continued validity has been questioned in light of later United States 

Supreme Court decisions, it has never been abrogated by the United States Supreme 

Court, which denied a petition for certiorari in that case just four days after deciding 

Melendez-Diaz. Nor has the California Supreme Court overruled Geier, which cited it 

without qualification in Lopez, supra, 55 Cal.4th at pages 576-577, 581, 585.

We therefore arrive at a jurisprudential crossroads. The United States Supreme 

Court has asked us to reconsider our decision in Barba III in light of Williams. We 

believe that a majority of that court would approve of an affirmance here for two reasons. 

Justice Thomas would approve because DNA reports lack the solemnity and formality 

required to be deemed testimonial. The plurality would approve because, at least as we 

read the opinion, DNA test reports are not testimonial in part due to practical 

considerations, and in part because their primary purpose is not to accuse a targeted 

individual. The former rationale squares with at least part of our analysis in Barba III, 

where we distinguished the Cellmark DNA reports from the affidavit-like documents at 

issue in Melendez-Diaz and Bullcoming. It also aligns with the reasoning in Holmes, 

supra, 212 Cal.App.4th 431 and part of the analysis relied on in Steppe, supra,

213 Cal.App.4th 1116.

It appears likely that at least four justices of the California Supreme Court – as 

represented in Justice Chin‟s concurring opinion in Dungo – would agree that the primary 

purpose of the DNA test materials produced by Cellmark were not testimonial under the 

Williams plurality‟s primary purpose test and would reach that conclusion without regard 

to whether the police had identified a suspect. However, their admissibility would be 

proper only through the testimony of expert witness Reynolds.

The somewhat competing analyses represented by the Williams plurality and the 

Dungo concurrence are almost fully reconciled by the reasoning of Geier. The primary 

purpose of the DNA reports was not testimonial because: (1) they were generated by a 

lab technician pursuant to standardized procedures; (2) even though Barba had been 
35

charged with the crime, lab technicians such as Wong have no idea what their results 

might show, and DNA testing is routinely used to inculpate or exonerate those charged 

with crimes; and (3) the accusatory opinions came from expert witness Reynolds, who 

was subject to vigorous cross-examination.9

As for the practical considerations that motivated the plurality in Williams, we 

agree that it makes no sense to exclude evidence of DNA reports if the technicians who 

conducted the tests do not testify. So long as a qualified expert who is subject to cross 

examination conveys an independent opinion about the test results, then evidence about 

the DNA tests themselves is admissible. Finally, as the Williams plurality observed, 

defendants who question the validity of DNA test results have an additional safeguard 

available through their power to subpoena anyone who took part in the DNA testing 

process. Accordingly, we hold that Barba‟s confrontation rights were not violated by 

Reynolds‟s testimony.10

9 We question whether Geier’s “contemporaneous recordation of observable events” 

analysis is viable, given the holdings in Melendez-Diaz and Bullcoming. Underlying that 

analysis, however, is a principle that squares with the Williams plurality: examining the 

totality of the circumstances under which a DNA test report was generated. We rely on 

the latter.

10 Barba‟s supplemental brief on Williams and its progeny splits time between each 

of the Williams plurality‟s alternative grounds. We do not believe the first ground – that 

the reports were not in evidence for their truth – is applicable on the facts of this case. 

The dispute in Williams concerned the expert‟s testimony that Cellmark‟s DNA profile 

from the rape victim‟s vaginal swabs matched the DNA profile of Williams that the state 

police obtained in a separate incident. The focus of the argument was on the assumption 

in the prosecutor‟s question that the DNA tested by Cellmark in fact came from the 

victim‟s vaginal swabs. (Williams, supra, 567 U.S. at p. ___, 132 S.Ct. at pp. 2236-2237 

(plur. opn. of Alito, J.).)

As Justice Alito pointed out, Justice Kagan agreed in her dissent that there would 

be no problem asking the expert whether the two DNA profiles matched, without 

reference to the source of the DNA materials that were tested. (Williams, supra, 567 U.S. 

at p. ___, 132 S.Ct. at p. 2237.) The expert did not testify about anything that was done 

at Cellmark‟s lab and did not vouch for the quality of Cellmark‟s work. (Id. at p. 2235.) 

Instead, the expert was simply making a permissible assumption upon which to base her 

opinion. (Id. at p. 2236.) In this case, however, Reynolds did essentially vouch for the 
36

8. Admission of the Reports Was Harmless Error

Although the plurality opinion in Williams could arguably be read to allow DNA 

reports in evidence without expert testimony, both Geier and Justice Chin‟s concurring 

opinion in Dungo endorsed reference to forensic test reports in part because evidence 

about them came by way of expert testimony. We need not reach that issue, however, 

because even if the one DNA report that implicated Barba should not have been allowed 

in evidence, we conclude the error was harmless. (People v. Loy (2011) 52 Cal.4th 46, 

69-70 [confrontation clause violations subject to harmless error analysis, where we ask 

whether it is clear beyond a reasonable doubt that a rational jury would have reached the 

same verdict without the error].)11

The report contained nothing remotely approaching a direct affirmation that 

certain correct procedures had been properly followed. The key defense theory at trial 

was that the hair samples had been contaminated by the police before being sent to 

Cellmark, and that Wong‟s failure to wash the samples explained why Barba‟s DNA was 

on the hairs. However, Reynolds was not allowed to speculate about procedures Wong 

might have performed. Although she could testify about the lab‟s usual protocols, the 

jury was told that it did not mean the protocols were followed unless it was reflected in 

Wong‟s notes. As a result, Reynolds was forced to concede that Wong had not washed 

the hair samples that implicated Barba, even though that was usually done in order to 

eliminate a DNA result from genetic material that had been deposited on the hair shaft.

According to Reynolds, the hair shaft does not contain DNA, but the root does. 

The shaft was tested separately and was found to have Barba‟s DNA on it, meaning that 

it had been deposited there somehow. On direct-examination, Reynolds testified that if 

the hair had belonged to someone other than Barba, but his DNA had been deposited on 

 

accuracy and reliability of Cellmark‟s DNA testing. Accordingly, we choose not to apply 

Justice Alito‟s analysis that evidence from the DNA reports was not admitted for its truth.

11 As for the other three Cellmark reports, because they concluded that the samples 

did not contain Barba‟s DNA, their admission was also harmless.
37

the hair, then the test results would have shown a mixture – meaning the DNA of two 

separate persons was present. No mixture was present, she testified. However, on crossexamination, she conceded that she could not rule out the possibility of contamination 

before Cellmark received the hair samples, and could not say with certainty that the test 

results came from the hair donor or were deposited there. The report itself noted that in 

addition to the listed profile results, “weak results” were obtained that could have come 

from someone else.

In short, even if the report should not have been admitted into evidence, it was 

virtually meaningless without Reynolds‟s testimony to explain it. Had the report itself 

been excluded, Reynolds‟s opinion would have still been before the jury. Also, the 

court‟s order preventing Reynolds from speculating about test procedures that did not 

appear in Wong‟s notes allowed defense counsel to perform a skillful and thorough crossexamination that allowed the jury to doubt the reliability of the test results. And, as 

noted, the report itself stated that weak results were obtained, possibly due to another 

DNA donor. Finally, the jury did not ask to see the report during its deliberations, and 

the report was not the focus of the parties‟ arguments to the jury. We therefore conclude 

that it is clear beyond a reasonable doubt that a rational jury would have reached the same 

verdict even if the report had not been admitted into evidence. (People v. Loy, supra, 

52 Cal.4th at pp. 69-70.)

II.

NON-CONFRONTATION CLAUSE ISSUES

1. Business Record Foundational Challenges

Barba also contends the trial court erred by admitting the DNA test results 

themselves under the business records exception to the hearsay rule (Evid. Code, 

§ 1270)12 because those results reflected Wong‟s opinions and were not recording an 

12 All further undesignated section references are to the Evidence Code.
38

“act, condition, or event.” (People v. Campos (1995) 32 Cal.App.4th 304, 309.) He also 

challenges the admissibility of Reynolds‟s testimony because the prosecution failed to 

establish two of the statutory predicates under the business records exception: (1) that 

Reynolds was Cellmark‟s custodian of records or was otherwise qualified to testify to the 

report‟s identity and method of preparation (§ 1271, subd. (c)); and (2) because there was 

evidence that Wong did not follow the proper testing protocols, the evidence was not 

sufficiently trustworthy (id., subd. (d)). As to the first, no such objection was raised 

below and the issue is therefore waived. (§ 353, subd. (a); People v. Pollock (2004) 

32 Cal.4th 1153.)13

Regardless of whether the reports were independently admissible, however, as just 

discussed, Reynolds was still free to offer an expert opinion based on those reports if they 

were the proper basis for such testimony. (§ 804, subd. (d); Geier, supra, 41 Cal.4th at 

p. 608, fn. 13 [DNA expert witness was free to rely on the analyst‟s report to form her 

own opinions about the DNA match]; People v. Gardeley (1996) 14 Cal.4th 605, 618.) 

Because Reynolds could rely on (and be examined about the basis of) those reports, and 

because Reynolds‟s independent opinions were the lynchpin of the incriminating DNA 

evidence, any error in admitting the reports as business records was harmless.

13 At oral argument upon remand to this court, Barba‟s counsel said objections about 

the report were made as “to everything,” suggesting to us that an objection had been 

made under section 1271, subdivision (c). We have reviewed the record and determined 

that no such objection was made. Were we to reach that issue we would find no error. 

Reynolds testified that she had a doctoral degree in human genetics, that part of her job 

duties included performing technical reviews of the lab analysts‟ case files and 

independently drawing her own conclusions about the results, that the file Wong prepared 

was kept in the normal course of business, and that Wong‟s notes and other records were 

made at or near the time of the events and were sufficiently detailed that any qualified 

scientist could interpret them. Accordingly, she did testify to the identity and mode of 

preparation of the report.
39

2. Claimed Jury Selection Error

A. Applicable Law and Standard of Review

Group bias is bias against members of an identifiable group distinguished on 

racial, religious, ethnic, or similar grounds. When a prosecutor uses peremptory 

challenges to strike prospective jurors because of group bias, she violates a criminal 

defendant‟s right to trial by a jury drawn from a representative cross-section of the 

community under both the Fourteenth Amendment to the United States Constitution and 

article I, section 16 of the California Constitution. (People v. Bell (2007) 40 Cal.4th 582, 

596 (Bell).) The federal constitutional right was established by Batson v. Kentucky

(1986) 476 U.S. 79 (Batson) and the California counterpart was recognized by People v. 

Wheeler (1978) 22 Cal.3d 258 (Wheeler). (Bell, at p. 596.) The right applies not only to 

racial and ethnic minorities, but to gender discrimination as well. (People v. Jurado

(2006) 38 Cal.4th 72, 104.) The defendant need not be a member of the targeted group. 

(Bell, at p. 597.) 

When a Batson-Wheeler motion is made, the trial court conducts a three-part 

inquiry. First, the defendant must make out a prima facie case by showing that the 

totality of the circumstances gives rise to an inference of discriminatory purpose. 

Second, if the defendant does so, the burden shifts to the prosecution to adequately 

explain its peremptory challenges by offering group bias-neutral justifications for the 

strikes. Third, if such an explanation has been given, the trial court must decide whether 

the defendant has proven purposeful discrimination. (Bell, supra, 40 Cal.4th at p. 596.)

At the time of trial in August 2004, California‟s courts had interpreted Batson‟s 

requirement of an inference of discrimination to establish a prima facie case to mean a 

showing of a strong likelihood of discrimination. (People v. Box (2000) 23 Cal.4th 1153, 

1188, fn. 7, disapproved on another ground in People v Martinez (2010) 47 Cal.4th 911, 

948, fn. 10; Wheeler, supra, 22 Cal.3d at pp. 280-281.) In June 2003, our Supreme Court 

attempted to reconcile the two terms by holding that a prima facie case under BatsonWheeler required a showing that it was more likely than not that group bias had 
40

motivated a prosecutor‟s peremptory challenges. (People v. Johnson (2003) 30 Cal.4th 

1302 (Johnson I).) In Johnson v. California (2005) 545 U.S. 162 (Johnson II), however, 

the United States Supreme Court reversed Johnson I and held that a prima facie case 

required no more than evidence or circumstances that gave rise to an inference of 

discrimination.

Because the trial occurred before Johnson II was decided, and because nothing in 

the trial court‟s comments indicates that it applied the correct standard, Barba contends, 

and respondent does not dispute, that we must review the matter de novo, examining the 

entire record of voir dire to determine the legal question whether the record supports an 

inference that the prosecutor excused a juror due to prohibited group bias. (Bell, supra, 

40 Cal.4th at p. 597.) We agree.

B. The Wheeler Motion

Barba‟s Wheeler motion came in response to the prosecutor‟s 18th peremptory 

challenge, to prospective Juror No. 61, who was an African-American. Voir dire was 

initially conducted by the court, with counsel then permitted to ask questions if they 

wished. The court began its voir dire of Juror No. 61 by greeting him, to which 

Juror No. 61 replied, “What‟s up?” Juror No. 61 lived in Hollywood and had worked for 

Home Depot for five years. He did not know his job title, but was “supposed to do 

customer service.” Juror No. 61 was single, had never been on a jury, and had one year 

of college education. The prosecutor asked Juror No. 61 no questions, and initially 

accepted the jury with him on it. After defense counsel exercised her 13th peremptory 

challenge, however, the prosecutor peremptorily challenged Juror No. 61.

Defense counsel then made her Wheeler motion, stating her belief that the 

prosecutor had earlier challenged another African-American juror and that Juror No. 61 

had said nothing to justify a peremptory challenge. When defense counsel claimed that 

three of the jurors who had voted not guilty at Barba‟s first trial had been AfricanAmerican, the court said it did not think that was a factor for it to consider. Defense 

counsel argued that it “demonstrates that the reason, the only reason she‟s asked to 
41

excuse juror number 61 is because he‟s African-American male. Also, I would note that 

there are no African-American males seated on the jury panel right now, seated in the box 

right now.” The court replied, “All right,” and asked defense counsel if she had any other 

arguments to make. Defense counsel pointed out that a White juror, No. 57, had a 

background similar to Juror No. 61 but had not been excused by the prosecutor. The 

court said: “Yeah, I don‟t find a prima facie case. The prosecution has exercised 17 

peremptory challenges. I felt that she has been kicking off people that are both sexes and 

all races. I don‟t feel that there is a prima facie case of exclusion of one particular race. I 

felt that this particular juror whose [sic] being challenged now as to whether or not they 

were excused, says he‟s been working at Home Depot for five years. He seemed a little, I 

don‟t know, casual in his approach. He greeted the court with a „what‟s up.‟ [¶] Were I 

trying the case, I don‟t think I would have kept him, but that‟s – I don‟t know. That‟s not 

an appropriate consideration for the court, but I just don‟t see that there is a prima facie 

case.”

Later, during jury deliberations, the court provided counsel with a summary of the 

racial composition of all prospective jurors who had been peremptorily challenged by 

both sides, and of the jury that was finally selected to hear the case.14 The court noted 

that Juror No. 7, who was the prosecutor‟s third peremptory challenge, was a darkskinned man from Honduras that the court perceived was Hispanic and not AfricanAmerican. Even so, for purposes of its Wheeler prima facie analysis, the court 

considered Juror No. 7 to have been African-American. Of the prosecutor‟s 17 other 

peremptory challenges, 9 were Hispanic, 7 were White, and 1 was Asian. Two AfricanAmericans were eventually selected to sit on the jury.

14 We found this summary very helpful and appreciate the trial judge‟s effort in 

making a complete record.
42

C. No Wheeler Error Occurred

In determining whether the trial court erred in finding that no prima facie of group 

bias had been made, we examine the totality of all the relevant circumstances, including 

the entire record of voir dire of the challenged jurors. However, the other relevant 

circumstances must do more than indicate that the record would support neutral reasons 

for the questioned challenges. (Williams v. Runnels (9th Cir. 2006) 432 F.3d 1102, 

1108.) The defense may show that the prosecutor struck most or all of the members of 

the identified group from the venire or used a disproportionate number of her 

peremptories against the group. The defendant may also show that the challenged jurors 

share only one common characteristic -- their group membership -- and in all other 

respects are as heterogeneous as the community as a whole. The showing may be 

supplemented when appropriate by such circumstances as the prosecutor‟s failure to ask 

the jurors anything other than desultory questions on voir dire, or the failure to ask them 

any questions at all. (Bell, supra, 40 Cal.4th at p. 597.)

Barba contends that a prima facie case exists because: (1) the prosecutor had a 

motive to exclude African-American jurors based on the results of the first trial; (2) jurors 

with backgrounds similar to Juror No. 61 were allowed to remain; and (3) the prosecutor 

asked Juror No. 61 no questions. We find no prima facie case.

First, whether the prosecutor might have had a motive does not by itself establish a 

prima facie case of discrimination. Barba cites no authority for such a proposition and 

the existence of such a potential motive does not relieve Barba of showing at least some 

of the permissible factors set forth above when reviewing the trial court‟s finding that no 

prima facie case existed. Second, Barba‟s defense counsel compared Juror No. 61 to just 

one other juror with a supposedly similar background -- Juror No. 57, who was White. 

Although Juror Nos. 57 and 61 were both single, they were otherwise dissimilar. Juror 

No. 61 worked at Home Depot in customer service and had one year of college 

education, while Juror No. 57 had an AA degree and some postgraduate education and 

worked as a teaching assistant at a community college. Third, although the prosecutor 
43

asked Juror No. 61 no questions after the trial court‟s initial voir dire, the prosecutor did 

not question several other prospective White and Hispanic prospective jurors who were 

peremptorily challenged.15 We take this to mean that it was the prosecutor‟s practice not 

to question many of the jurors she planned to challenge regardless of their racial or ethnic 

identities, and it is therefore not indicative of group bias. Fourth, the prosecutor did not 

use a disproportionate number of peremptory challenges against African-Americans. 

Instead, Juror No. 61 was the first and only African-American juror she excused.16 

Finally, the prosecutor agreed to a jury that eventually included two African-American 

members, which is a factor we may consider. (People v. Ward (2005) 36 Cal.4th 186, 

203.) On this record, we hold that the trial court correctly determined that there was no 

prima facie showing of a Wheeler violation.

3. The Phone Tip and Jailhouse Conversation Evidence

A. The Disputed Evidence and the Parties’ Appellate Arguments

After obtaining a warrant, the police recorded Barba‟s jailhouse conversations 

with various visitors. Portions of those recordings were introduced in evidence. The first 

was a conversation with his sister where she tells Barba that his godfather, David, “got a 

report.” Barba answers, “I know, I know,” then said the report had been shown to 

“Gordy” and “Abel.” When the sister says she has not seen the report, she asks to see it. 

Barba then asks whether his godfather talked to her “about that?” When she says yes, 

15 These were prospective Juror Nos. 17, 28, 34, 45, 49, 58, and 63.

16 The trial court decided for purposes of its analysis that it would consider Juror 

No. 7 – the subject of the prosecutor‟s third peremptory challenge – to have been 

African-American, and the parties have argued the issue on that basis. However, the trial 

court believed that Juror No. 7, who said he was from Honduras, was in fact Hispanic. 

Because we review the trial court‟s order de novo, the trial court‟s analysis is not binding. 

Its factual findings concerning a prospective juror‟s true racial identity are relevant. 

Regardless, Barba did not contend below and does not contend on appeal that Juror No. 7 

was improperly challenged. In short, we are dealing with a Wheeler claim as to only one

prospective juror.
44

Barba says, “The person that . . . when -- I was at the house -- the person he came in 

with.” When the sister agrees, Barba says, “Had to be. Had to be.” The following 

exchange then took place:

“[The sister]: Yeah. I went -- I went over there because I needed 

brakes. I went over there, and I saw him.

“[Barba]: It had to be. No other -- no -- there was nobody else.

“[The sister]: I know, but Steve [Barba‟s defense counsel] said that 

it shouldn‟t --

“[Barba]: Oh, I know because it‟s -- it‟s --

“[The sister]: -- anonymous.

“[Barba]: Yeah, yeah.

“[The sister]: So --

“[Barba]: But still, though, that -- that -- that -- that --

“[The sister]: He‟s upset -- Gordy is upset about that.17

“[Barba]: That . . . just jumps, you know?

“[The sister]: Gordy is upset about that.

“[Barba]: It gave him a green light pretty much.

“[The sister]: Not really because you didn‟t tell him. As long as -- I 

don‟t know, but Gordy - -

“[Barba]: The way it went down.

“[The sister]: Way after.

“[Barba]: I told him.

“[The sister]: Way after.” 

The second was a conversation between Barba and his aunt where she said: 

“When -- when you want to do -- tell them something, write it down and show it to him 

17 Gordy is Barba‟s brother.
45

or he writes and -- it to you here. And that‟s it. Don‟t -- about anything, okay.” Barba 

replied, “No, well, about that, no one.” 

The third was a conversation with a woman named Karla where Barba said, “I 

know I got everybody behind me, you know? I know that already. I just feel like, damn, 

I fucked up. It‟s like I let everybody down.”

These conversations were admitted on the theory that they were adoptive 

admissions by Barba. (§ 1221.) In connection with this evidence, the court allowed a 

police detective to testify about the anonymous phone tipster who identified Barba as 

Kim‟s killer. The court instructed the jury that the phone tip evidence was not to be 

considered for the truth of the tipster‟s statement, but was to be used solely in order to 

explain subsequent actions by the police and to explain the context of Barba‟s jailhouse 

conversations.

In his opening appellate brief, Barba contends the trial court erred by admitting 

evidence of the anonymous phone tip because it was inadmissible to explain subsequent 

conduct by the police in response to the tip. (People v. Scalzi (1981) 126 Cal.App.3d 

901, 907.) He contends the jailhouse conversations were not admissible as adoptive 

admissions because there was no showing that he knew of the contents of the anonymous 

call when his conversations were recorded. (People v. Maki (1985) 39 Cal.3d 707, 712.) 

The conversation where he told his sister he had “fucked up” and “let everybody down” 

was not admissible, Barba contends, because it is not a clear admission of anything and 

bears no relationship to the anonymous phone tip. Respondent conceded in its brief that 

the phone tip was not admissible to explain later actions by the police and that the three 

jailhouse conversations did not qualify as adoptive admissions. According to respondent, 

evidence of the phone tip was admissible for a nonhearsay purpose on the alternate 

ground that it explained the jailhouse conversation concerning an anonymous report, and 

that all three conversations were admissible on a ground not raised at trial: they qualified 

as hearsay exceptions because they were statements of a party. (§ 1220.) 

In his reply brief, Barba renews his attack on the admissibility of the phone tip to 

explain police conduct, but does not address respondent‟s contention that the evidence 
46

was properly admitted to give context to at least one of his jailhouse conversations. He 

does, however, renew his contention that there was no showing he knew of the phone tip 

when his conversations were recorded. He also contends that respondent cannot attempt 

to justify admission of the jailhouse conversations under section 1220 because that issue 

was not raised below, and that allowing the jailhouse conversations and phone tip into 

evidence violated his constitutional witness confrontation rights under Crawford v. 

Washington (2004) 541 U.S. 36.

B. The Phone Tip Evidence Was Properly Admitted

The anonymous phone tip evidence was admitted in part for a nonhearsay purpose: 

to give context to Barba‟s jailhouse conversations. It was therefore admissible on that 

basis and did not violate his constitutional witness confrontation rights. (People v. 

Turner (1994) 8 Cal.4th 137, 189-190, overruled on another ground by People v. Griffin 

(2004) 33 Cal.4th 536, 555, fn. 5, overruled on another ground in People v Riccardi 

(2012) 54 Cal.4th 758, 824, fn. 32; People v. Cooper (2007) 148 Cal.App.4th 731, 747.) 

Because Barba referred to an anonymous report in his conversation with his sister, as 

well as to some other person he talked to about “[t]he way it went down,” we reject his 

contention that the prosecution failed to show he knew about the anonymous phone tip at 

the time of that conversation. In any event, if error occurred at the time the evidence was 

admitted because the prosecution failed to make that foundational showing, it was 

rendered harmless because the jury was instructed that in order to consider the jailhouse 

conversations as adoptive admissions, it first had to find that Barba knew about the phone 

tip.

C. The Jailhouse Conversations Were Properly Admitted

Even if the trial court erred by admitting the jailhouse conversations in evidence as 

adoptive admissions, we will find no error if the evidence was admissible under 

section 1220. (People v. Horning (2004) 34 Cal.4th 871, 898.) Under that section, 

“[e]vidence of a statement is not made inadmissible by the hearsay rule when offered 
47

against the declarant in an action to which he is a party. . . .” (§ 1220.) In order to 

qualify under section 1220, the statement does not have to be an admission, and the 

section covers all statements by a party. (Horning, at p. 898.) If a party has made an outof-court statement that is relevant and not excludable as unduly prejudicial under section 

352, the statement is admissible under section 1220. (People v. Castille (2005) 

129 Cal.App.4th 863, 875.)18 All three jailhouse conversations meet this standard.19 To 

the extent those statements might be considered ambiguous, that affected only the weight 

to be accorded the evidence, not its admissibility. (People v. Guerra (2006) 37 Cal.4th 

1067, 1122, disapproved on another ground in People v. Rundle (2008) 43 Cal.4th 76, 

151, which was disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 

390, 421, fn. 22.)

DISPOSITION

The judgment is affirmed.

RUBIN, J.

I CONCUR:

BIGELOW, P. J.

18 Barba‟s trial counsel objected that the anonymous phone tip evidence was unduly 

prejudicial under section 352, but did not make the same objection as to the jailhouse 

conversations. On appeal, Barba did not renew the section 352 objection.

19 The statement that Barba knew he “fucked up” and “let everybody down” could be 

interpreted as an acknowledgement of wrongdoing. We have some concerns about the 

conversation where Barba indicates he will write down things he wants to say, rather than 

speak them out loud. The prosecution contended this showed a consciousness of guilt, 

while the defense contended it was ambiguous and might have reflected nothing more 

than defense counsel‟s instructions to say nothing about the case. If error occurred in 

admitting this one statement, it is frankly so ambiguous that its admission was harmless.
1

People v. Barba

B185940

J. Flier, Concurring

I concur in the judgment because People v Lopez (2012) 55 Cal.4th 569 and 

People v. Dungo (2012) 55 Cal.4th 608 require finding the admission of Dr. Reynold‟s 

testimony did not violate the Confrontation Clause.

FLIER, J.