He, Eliza 11/12/2013 For Educational Use Only People v. Ellis, 213 Cal. pp.!

t" 1##1 $2013% 154 Cal.Rptr.3d 378, 13 Cal. Daily Op. Serv. 2255, 2013 Daily Journal D.A.R. 2 37

! 2013 "#o$%on Reuter%. &o 'lai$ to ori(inal ).S. *overn$ent +or,%.

Revie- *ranted .reviou%ly pu/li%#ed at0 213 Cal.App.4t# 1551 1Cal.Con%t. art. , % 122 Cal. Rule% o3 Court, Rule% 8.500, 8.1105 and 8.1110, 8.1115, 8.1120 and 8.11254 Court o3 Appeal, 5ir%t Di%tri't, Divi%ion 5, Cali3ornia. "#e .6O.76, .lainti33 and Re%pondent, v. De$ea,a 7. 6778S, De3endant and Appellant. A133343 9 5iled 5e/ruary 28, 2013 9 Certi3ied 3or .artial .u/li'ation. :

Synopsis Background: Defendant was convicted in the Superior Court, Alameda County, No. H50155, ichael !. "affey, !., of offenses includin# lewd acts upon a child under the a#e of 1$, procurin# a child under a#e 1% to en#a#e in a lewd act, and first de#ree residential &ur#lary. Defendant appealed.

Holdings: 'he Court of Appeal, (ruiniers, !., held that)

*1+

photo#raphs ta,en in se-ual assault and rape trauma .SA/'0 e-aminations were sufficiently authenticated1 photo#raphs ta,en in SA/' e-aminations were not hearsay1 and Confrontation Clause did not esta&lish a ri#ht for defendant to cross4e-amine photo#rapher.

*2+

*3+

Affirmed. (ruiniers, !., filed concurrin# opinion.

5est Headnotes .60

[1]

Criminal Law

7hoto#raphs and videos

110Criminal 8aw 1109:;;<vidence 1109:;;.70Documentary <vidence 110,$$$Authentication and =oundation 110,$$$.1%7hoto#raphs and videos

'he &urden of the proponent of photo#raph evidence is not to esta&lish validity or ne#ate falsity in a cate#orical fashion, &ut rather to ma,e a showin# on which the trier of fact reasona&ly could find &y a preponderance of the evidence the proffered writin# is authentic. Cal. <vid. Code >> 250, $03.a0.30, 1$00, 1$01.a0.

[2]

Criminal Law

Documentary evidence

110Criminal 8aw 11099;:/eview 11099;:.N0Discretion of 8ower Court 110,1153/eception and Admissi&ility of <vidence 110,1153.11Documentary evidence

Court of Appeal reviews the trial court?s determination of whether photo#raphs were properly authenticated for a&use of discretion. Cal. <vid. Code >> 250, $03.a0.30, 1$00, 1$01.a0.

[3]

Criminal Law

7hoto#raphs and videos

110Criminal 8aw 1109:;;<vidence 1109:;;.70Documentary <vidence 110,$$$Authentication and =oundation 110,$$$.1%7hoto#raphs and videos

7hoto#raphs are typically authenticated &y the testimony of a person who was present at the time the pictures were ta,en, or who is otherwise @ualified to state that the representations are accurate, such as an e-pert on photo#raph alteration, &ut photo#raphs may also &e authenticated &y other means. Cal. <vid. Code >> 250, $03.a0.30, 1$00, 1$01.a0.

[4]

Criminal Law

7hoto#raphs and videos

110Criminal 8aw 1109:;;<vidence 1109:;;.70Documentary <vidence 110,$$$Authentication and =oundation 110,$$$.1%7hoto#raphs and videos

Any evidence that sufficiently esta&lishes that photo#raphs accurately depict what they purport to show is ade@uate to authenticate them as writin#s, includin# circumstantial evidence, content and location. Cal. <vid. Code >> 250, $03.a0.30, 1$00, 1$01.a0.

[5]

Criminal Law
110Criminal 8aw

7hoto#raphs and videos

1109:;;<vidence 1109:;;.70Documentary <vidence 110,$$$Authentication and =oundation 110,$$$.1%7hoto#raphs and videos

'estimony of medical director of hospital?s center for child protection a&out the center?s procedures for recordin# and storin# photo#raphs ta,en in se-ual assault and rape trauma .SA/'0 e-aminations was sufficient to authenticate photo#raphs as accurate depictions of what they purported to show, i.e., ima#es of victim?s #enitalia after the crimes. Cal. <vid. Code >> 250, $03.a0.30, 1$00, 1$01.a0.

[6]

Criminal Law

<-ceptions to hearsay rule, and non4hearsay distin#uished in #eneral

110Criminal 8aw 1109:;;<vidence 1109:;;.N0Hearsay 110,$16Hearsay in "eneral 110,$16.1.100<-ceptions to hearsay rule, and non4hearsay distin#uished in #eneral

7hoto#raphs ta,en in se-ual assault and rape trauma .SA/'0 e-aminations were not hearsay in criminal prosecution, since they were not Aver&al e-pressions,B nor were they made &y a Aperson.B Cal. <vid. Code >> 1C5, 225, 1200.a0.

[ ]

Criminal Law

<-ceptions to hearsay rule, and non4hearsay distin#uished in #eneral

110Criminal 8aw 1109:;;<vidence 1109:;;.N0Hearsay 110,$16Hearsay in "eneral 110,$16.1.100<-ceptions to hearsay rule, and non4hearsay distin#uished in #eneral

Dnly people can #enerate hearsay1 machines, animals, and chemical reactions cannot. Cal. <vid. Code >> 225, 1200.a0.

[!]

Criminal Law

7hoto#raphs and Dther 7ictures

110Criminal 8aw 1109:;;<vidence 1109:;;.70Documentary <vidence 110,$317rivate 5ritin#s and 7u&lications 110,$3E7hoto#raphs and Dther 7ictures 110,$3E.10;n #eneral

7hoto#raphs are demonstrative evidence, depictin# what the camera sees.

["]

Criminal Law

Fse of documentary evidence

110Criminal 8aw 11099'rial 11099.C0/eception of <vidence 110,%%2/i#ht of Accused to Confront 5itnesses 110,%%2.$0Fse of documentary evidence

7hoto#raphs ta,en in se-ual assault and rape trauma .SA/'0 e-aminations were not out4of4court hearsay AstatementsB &y a ApersonB that would implicate a Si-th Amendment confrontation ri#ht, and thus the Confrontation Clause did not esta&lish a ri#ht for defendant to cross4e-amine photo#rapher a&out whether the ima#e was Asu&Gect to distortion &ased on a num&er of factors such as focus, li#htin# and the s,ill of the person shootin# the photo#raphs.B F.S. Const. Amend. %. See 1 5it,in, Cal. <vidence .5th ed. 20120 Hearsay, > 32 et se@.

Superior Court of Alameda County, No. CH50155, #$$orn%ys and Law &irms

ichael !. "affey, !ud#e. .Alameda County Super. Ct. No. H501550

'3!( !anet !. "ray, under appointment &y the Court of Appeal, for Defendant and Appellant. Hamala D. Harris, Attorney "eneral, Dane /. "illette, Chief Assistant Attorney "eneral, "erald A. <n#ler, Senior Assistant Attorney "eneral, /ene A. Chacon and !ulia I. !e, Deputy Attorneys "eneral, for 7laintiff and /espondent. )pinion (ruiniers, !. Demea,a <llis was convicted of se-ual activity with a 13JyearJold #irl, of ma,in# the #irl availa&le to another adult for lewd and lascivious acts, and of encoura#in# and attemptin# to force the #irl to wor, for him as a prostitute. He ar#ues that photo#raphs ta,en durin# the victim?s se-ual assault e-amination were admitted in evidence in violation of his Si-th Amendment confrontation clause ri#hts1 that his ri#ht to present a defense was violated &y e-clusion of a Gournal written &y the victim1 and that he received multiple punishments for a sin#le course of conduct in violation of 7enal Code section %5$.1 5e conclude that the disputed photo#raphs are not testimonial hearsay and were properly admitted. ;n the unpu&lished portion of this opinion, we also find that the court did not a&use its discretion in e-clusion of evidence, and reGect <llis?s challen#e to his sentence.

*+ B#C,-.)/01

'he victim, !ane Doe, was a 13JyearJold middle school student in arch 2010, when the underlyin# events too, place. Her mother, ".(., wor,ed full time, and Doe re#ularly called her mother when she #ot home from school. Doe usually told her mother she was #oin# to the li&rary, which was across the street from their apartment, and usually was comin# home from the li&rary when ".(. arrived home at a&out $)$5 p.m. Dn arch 10, 2010, Doe did not call ".(. after school and was not home when ".(. #ot home from wor,. ".(. loo,ed for Doe at the li&rary and was told they had not seen her. After searchin# the nei#h&orhood without success, ".(. called the police. Dn arch 12, 2010, at a&out 6)30 p.m., ".(. received a phone call from Doe, who was cryin# and as,ed to &e pic,ed up. A woman then #ot on the phone and told ".(. to come #et Doe A K&ecause he?s cho,in# her.? B 'he woman as,ed ".(. to meet her at a CJ<leven convenience store. At the CJ<leven, the woman told ".(. that AtheyB .apparently, Doe and another person0 were drivin#. ".(. reported the situation to the police and returned home. ".(. received another call from Doe. ".(. then saw Doe runnin# toward their home. Doe was @uiet and cryin# and was wearin# clothes that did not &elon# to her. ".(. called the police a#ain and an officer came to their home. =remont 7olice Dfficer ichael "ilfoy interviewed Doe shortly after she returned home. Doe told him that she had &een ,idnapped &y 10 men, who #ra&&ed her and threw her in a car. 'hree of the men #ot into the car with her and the others ran off. Doe said she was cho,ed, that the three men smo,ed mariGuana, and that they too, her to a house at the end of Chapel Street, which was a description of <llis?s home. 'he driver too, off all of her clothes, touched her everywhere, made her touch his penis, put his penis in her mouth, and put his penis in her va#ina. She protested &ut he punched her in the arm. He then #ave her L20. 'he driver?s name was AShoo#B .also spelled ASu#eB in the record1 hereafter Su#e0. "ilfoy e-amined Doe?s nec, and arms and saw no cho,e '3!1 mar,s or &ruises and he told her that the story did not ma,e sense. Doe then revised her story and said that when she left the li&rary the men offered her a ride home, #ra&&ed her and threw her in the car. "ilfoy @uestioned this story as well and Doe #ave him a third version. At some point, Doe?s sister told "ilfoy that Doe lies a lot and Doe?s &rother told him she had previously run away. 8ater that ni#ht, when Doe went with "ilfoy to a hospital, she told him a different version of what had happened to her. Accordin# to "ilfoy, Doe said she had &een with a man she ,new as Su#e, whom she later identified as <llis. Doe ac,nowled#ed she had had se- with him and said she did not want him to #et in trou&le. Doe was later interviewed at the Child A&use 8istenin# and ;nterview Center .CA8;CD0 and provided an account of the events. Still later, she was ta,en out of class at school to identify <llis from a photo#raphic array, and she provided a new account in writin#. At trial, Doe provided the followin# account of what she e-perienced from arch 10, 2010, to arch 12, 2010. Dn arch 10, she went to the li&rary after school. 5hile she was usin# a computer in the li&rary, she noticed that a man she did not ,now was standin# close to her. She identified this man as <llis. <llis started tal,in# to Doe in a friendly manner and Doe was friendly &ac,. Doe willin#ly left the li&rary with him, and they drove to the house of a man she came to ,now as Slim. Slim, Slim?s wife, and another man were in the home, and Doe watched television while the three men smo,ed mariGuana. Doe then willin#ly went with <llis to an apartment she &elieved was his home. A man and woman in their $0?s were in the apartment watchin# television downstairs. <llis led Doe upstairs to his &edroom and closed the door &ehind them. He played rap music on his laptop computer and sat facin# Doe, who was sittin# on the &ed. Doe touched <llis?s #enitals throu#h his clothin# and he touched her &reasts with her consent. 'hey each too, off all of their own clothes and they lay down ne-t to each other. <llis then ,nelt &etween Doe?s le#s. At first, Doe testified that <llis did not touch her from that position and that he eventually lay down ne-t to her, where they remained for the rest of the ni#ht without touchin# each other. After she was confronted with her preliminary hearin# testimony that <llis had touched her va#ina from the ,neelin# position, she chan#ed her testimony. She testified that <llis touched her va#ina and moved his fin#ers in and out of her va#ina while he ,nelt &etween her le#s. She did not remem&er what happened ne-t, &ut at some point he was lyin# ne-t to her. She #ot on her ,nees and willin#ly performed fellatio on <llis without promptin#. 'hey then lay ne-t to each other without touchin# and fell asleep. Doe was a#ain impeached with her preliminary hearin# testimony that <llis had inserted his penis in her va#ina while he was ,neelin# &etween her le#s. She ac,nowled#ed the prior testimony was true. ;n still later testimony, Doe said that after she removed her clothes <llis ru&&ed lotion over her whole &ody. Doe spent the ne-t day . ar. 11, 20100 with <llis in the apartment. She did not try to call her mother &ecause she was happy to &e with <llis. At a&out 10)00 p.m., she left the apartment with <llis, thin,in# they were #oin# to &uy food. ;nstead, <llis drove her to a otel % and led her into a motel room. After Doe watched television for a while, an older white man arrived, tal,ed to <llis outside the room for a few minutes, and then entered the room. He sat ne-t to Doe and s@ueeMed her &reasts with his hands. She tried to i#nore him and after a few minutes went to the &athroom. She returned and '3!2 watched television. 'he white man remained in the room for a couple of hours &ut did not touch her a#ain. Doe initially testified that

she saw the man wad up money and put it in his poc,et when he was leavin#. She was impeached with her preliminary hearin# testimony that she saw him ta,e a few &ills out of his poc,et &efore he left the room and that <llis entered the room ri#ht after he left. She then testified at trial that she saw the older man ta,e twenty dollar &ills out of his poc,et when he left the room and also saw him put the &ills &ac, in his poc,et, and that <llis entered the room hours after the older man left. At a&out midni#ht, Slim came into the motel room, as,ed if she was o,ay, and left. <llis was Gust outside the door at the time. Doe did not try to contact her mother that ni#ht &ecause she was still happy to &e with <llis. She spent the ni#ht with <llis in the motel room, &ut they slept on separate &eds and no se-ual activity occurred &etween them. Dn the followin# day . ar. 12, 20100 in the ni#httime, <llis and Doe left the motel and drove to an apartment &uildin#. 5hile they were sittin# to#ether in <llis?s car outside the &uildin#, <llis said to her in an an#ry tone, A K; want you to ma,e me some money.? B She understood his comment to mean that he wanted her to A&e a ho,B that is, A*s+leep around with peopleB for money. 'his was the first time <llis had &rou#ht up this su&Gect, which made her feel uncomforta&le. 5hen she said, ANo,B <llis reached over and cho,ed her, cuttin# off her &reath for more than a minute. Doe stru##led, #ot <llis?s hands off her throat, and left the car. Doe testified that she then wal,ed up to an older woman who was standin# &y a stairway near a downstairs apartment and as,ed if she could use her phone. 'he woman a#reed. Doe called her mother and as,ed to &e pic,ed up, &ut could not descri&e where she was. 5hen Doe wal,ed out of the woman?s apartment, <llis was standin# &y the door, loo,in# an#ry and starin# at her. <llis then drove her home. Doe later testified that after she entered the older woman?s apartment, <llis &an#ed on the door, Doe started cryin#, and the older woman tossed Doe her phone so she could call her mother. <llis then pulled Doe out of the house, sayin#, A K*(+itch, she my ho.? B 'he older woman called Doe?s mother, and <llis drove Doe home. Doe was impeached with her preliminary hearin# testimony that, after she #ot away from <llis in the car, she hid &ehind the door to the apartment &uildin# and did not enter any of the apartments. <llis found her, as,ed if she wanted to #o home, and too, her home. Doe testified that in each of her statements, includin# her preliminary hearin# testimony and her trial testimony, she was only partially truthful. "ilfoy testified that durin# his initial interview with Doe on the day she returned home, Doe a#reed to lead him to the apartment where the driver or Su#e had ta,en her. She led "ilfoy to an apartment on "rimmer (oulevard, and she later led the detective assi#ned to the case, Dfficer ichael "e&hardt, to the same location. 5hen Doe arrived at the apartment with "e&hardt, she immediately started so&&in# and was una&le to tal, for five to si- minutes. "e&hardt later determined that (etty oore 8a (lanc . oore0 lived in the apartment and that <llis often stayed there. (ased on information he received from oore, "e&hardt created a photo#raphic lineup that included <llis?s ima#e. (oth oore and Doe identified <llis in the array as Su#e. oore also identified Doe &y photo#raph. Doe was medically e-amined at Children?s Hospital in Da,land. Dr. !ames '3!3 CrawfordJ!a,u&ia,, medical director of the Center for Child 7rotection .Center0 at Children?s Hospital, testified that photo#raphs ta,en of Doe late on arch 12 or early on arch 13, 2010, durin# a se-ual assault and rape trauma .SA/'0 e-amination showed an a&rasion on her hymen. He opined that the a&rasion could only have &een caused &y penetration of the va#ina and that the a&rasion was one to four days old. Daniel <spindola, assistant #eneral mana#er of the otel % at 5%01 owry Avenue in Newar,, testified that <llis rented room 2$2 at the motel from arch 11 to arch 12, 2010, payin# cash. 7er motel policy, the lod#er must produce picture identification, which is reviewed &y the front des, cler, &efore the transaction is completed. oore testified that <llis, whom she ,new as Su#e, was li,e an adopted son to her. <llis ,ept his thin#s in her apartment and was often in the apartment. She thou#ht <llis was a&out 16 years old. 2 ;n a&out arch 2010, <llis &rou#ht Doe over to the apartment and oore let them #o upstairs. A&out a half hour later, she chec,ed to ma,e sure their door was not closed and saw them sittin# at the foot of the &ed, hu##in# and holdin# hands. A&out a half hour later, they left the apartment. A couple of wee,s later, <llis &rou#ht Doe &ac, and they a#ain went upstairs. A&out a half hour later, she went upstairs and they were listenin# to music on the laptop. 'ony Cotton, who used the nic,name Slim, testified that <llis came to his house with Doe in arch 2010. She appeared to &e a&out 15 years old. Cotton?s #irlfriend and another male were also present and everyone pro&a&ly was smo,in# mariGuana. After a&out 20 minutes, <llis and the #irl left. A few days later, Cotton saw the #irl in a motel room with <llis and a white

man a&out 30 years old. He had seen the white man at <llis?s house on a prior occasion. Cotton had #one to the motel to #et some mariGuana from <llis and when he ,noc,ed on the door, <llis opened it. Cotton wanted to use the &athroom, &ut he saw that the #irl was in there. 'he white man was also in the &athroom. Cotton noticed in the room mariGuana, a mariGuana pipe, and a towel that loo,ed li,e it had &lood and dirt on it. After he #ot his mariGuana from <llis, he left. At the time Cotton testified, he was on pro&ation for a misdemeanor theft, he had at least si- prior felony convictions for theft and &ur#lary, and he had spent time in prison. ichelle 'aylor testified that she lived in a downstairs apartment at an apartment comple- fre@uented &y <llis, whom she ,new as Su#e. Dn arch 11 or 12, 2010, she saw <llis and a youn# #irl sittin# in a car outside the apartment &uildin#. Dn arch 12, the #irl, loo,in# scared, shoc,ed and teary4eyed, came up to her and as,ed to use the &athroom in her apartment. 'aylor noticed that <llis was outside. After the #irl used the &athroom, 'aylor as,ed her what was wron#. 'he #irl said she wanted to call her mother and 'aylor handed her a phone. 'he #irl as,ed her mother to come #et her, then handed the phone to 'aylor and the mother as,ed 'aylor to descri&e Doe?s location. 'aylor told the mother that Doe had &een cho,ed and she arran#ed to meet the mother at a near&y CJ<leven. ;n the meantime, <llis wal,ed up to 'aylor?s front door and said, A KCome out, &itch? B in a loud, very rou#h, an#ry voice. 'he #irl left the apartment, either wal,in# out or &ein# pulled out &y <llis. 'he Gury convicted <llis of committin# lewd acts upon a child under the a#e of 1$ '3!4 .> 2EE, su&d. .a01 counts one, three01 oral copulation of a child under the a#e of 1$ and more than 10 years youn#er than himself .> 2EEa, su&d. .c0.101 count two01 se-ual penetration &y forei#n o&Gect of a child under 1$ .> 2E6, su&d. .G01 count four01 panderin# &y encoura#ement .> 2%%i, su&d. .a0.201 count si-01 procurin# a child under a#e 1% to en#a#e in a lewd act .> 2%%G1 count seven01 and first de#ree residential &ur#lary .> $56, count ei#ht0. 'he Gury found true an alle#ation that the &ur#lary was committed when a person, not an accomplice, was present in the residence. 'he court sentenced appellant to a total term of 1C years and four months in state prison.

**+ 1*SC/SS*)0 <llis challen#es his convictions on two #rounds. =irst, he contends that the trial court erred in admittin# the SA/' photo#raphs of Doe, upon which Dr. CrawfordJ!a,u&ia, relied in renderin# his opinion. <llis ar#ues the photo#raphs were not properly authenticated and that he had no opportunity to cross4e-amine the photo#rapher in violation of his confrontation clause ri#hts. Second, <llis ar#ues the court erred in e-cludin# a Gournal written &y Doe, which he sou#ht to use to impeach her credi&ility. <llis also ar#ues his sentence on the panderin# char#e should have &een stayed under section %5$.

#+ SART Photographs 1+ Authentication <llis ar#ues the photo#raphs were not properly authenticated.3 5e disa#ree.
[1] [2]

7hoto#raphs are considered Awritin#s.B .<vid.Code, > 2501 see Jones v. City of Los Angeles .16630 20 Cal.App.$th $3%, $$0, 2$ Cal./ptr.2d 52E *videotape+.0 'o &e admissi&le in evidence, they must &e authenticated. .<vid.Code, > 1$01, su&d. .a0.0 'hat is, there must &e evidence that they are accurate depictions of what they purport to show. . <vid.Code, > 1$001 see People v. Mayfield .166C0 1$ Cal.$th %%E, C$C, %0 Cal./ptr.2d 1, 62E 7.2d $E5 *videotape+.0 'he proponent of the evidence has the &urden of producin# evidence to esta&lish authenticity. .<vid.Code, > $03, su&d. .a0.301 People v. Marshall .166%0 13 Cal.$th C66, E32, 55 Cal./ptr.2d 3$C, 616 7.2d 12E0.0 'his &urden Ais not to esta&lish validity or ne#ate falsity in a cate#orical fashion, &ut rather to ma,e a showin# on which the trier of fact reasona&ly could *find &y a preponderance of the evidence+ the proffered writin# is authentic.B .People v. Valdez .20110 201 Cal.App.$th 1$26, 1$3C, 135 Cal./ptr.3d %2E1 People v. Marshall, at pp. E32JE33, 55 Cal./ptr.2d 3$C, 616 7.2d 12E0 .0 5e review the trial court?s determination of this issue for a&use of discretion. .People v. Williams .166C0 1% Cal.$th 153, 16C, %% Cal./ptr.2d 123, 6$0 7.2d C10.0
[3] [4]

7hoto#raphs are typically authenticated A&y the testimony of a person who was present at the time the picture*s+ *were+ ta,en, or who is otherwise @ualified to state that the representation*s+ *are+ accurateB . People v. Bo ley .16%30 56 Cal.2d E55, E%2, 31 Cal./ptr. $C1, 3E2 7.2d 561 . '3!5 Bo ley 00, such as an e-pert on photo#raph alteration . id. at p. E%0, 31 Cal./ptr.

$C1, 3E2 7.2d 5610. However, and contrary to <llis?s ar#ument on appeal, photo#raphs may also &e authenticated &y other means. Any evidence that sufficiently esta&lishes the photo#raphs accurately depict what they purport to show is ade@uate, includin# A*c+ircumstantial evidence, content and location.B . People v. !i"son .20010 60 Cal.App.$th 3C1, 3E3, 10E Cal./ptr.2d E06 *writin#s authenticated as writin#s &y defendant &y content .defendant?s alias and details corro&orated &y other evidence0, location .in defendant?s residence0, and a&sence of evidence they were written &y any&ody else+1 accord, People v. Valdez, s#pra, 201 Cal.App.$th at p. 1$35, 135 Cal./ptr.3d %2E *photo#raph posted on social media internet pa#e authenticated &y content .ima#e matched defendant?s appearance0, circumstantial evidence .same social media pa#e included messa#es addressed to names and desi#nations that could &e matched with defendant and listed interests that matched defendant?s interests0, and a&sence of evidence that photo#raph was not #enuine+.0
[5]

;n order to render his medical opinion at trial, Dr. CrawfordJ!a,u&ia, accessed a&out 30 photo#raphs that were ta,en durin# Doe?s se-ual assault e-amination. 'he prosecution offered the photo#raphs as &usiness records. $ ;n addition to offerin# his e-pert medical evaluation, Dr. CrawfordJ!a,u&ia, testified as custodian of records for the Center. He testified that as medical director of the Center, he was personally and solely responsi&le for the Center?s system of ima#e stora#e, and that he was Aintimately familiarB with how the ima#es are entered into the computer system. He testified that e-aminers at the Center ta,e pictures of any Aphysical findin#sB they ma,e durin# a se-ual assault e-amination. 7hoto#raphs of a patient?s internal #enital anatomy are ta,en with a colposcopic instrument, which provides ma#nification and additional li#ht to create ima#es that are then captured with a di#ital camera. 5 'he e-aminers use a separate memory card for each patient and they include on the memory card pictures of the patient, the patient?s uni@ue medical record num&er and the date in addition to pictures of their physical findin#s. 'he e-aminers then put the memory card in a sealed envelope, write the patient?s medical record num&er on the outside of the envelope, and place the envelope in a loc,ed ca&inet. <very mornin#, the Center?s secretary removes envelopes from the loc,ed ca&inet, ta,es them to the Center?s computer, and downloads ima#es from each memory card in the envelopes to the computer hard drive. <ach computer file containin# the ima#es of one memory card is named usin# the patient?s medical record num&er and the date the photo#raphs were ta,en. 'he num&er is chec,ed a#ainst the ima#es to ma,e sure the medical record num&er in the ima#es matches the medical record num&er in the computer file name. ;t is part of Dr. CrawfordJ!a,u&ia,?s responsi&ilities to review the entire record of each e-amination, includin# the photo#raphs, in order to render an independent opinion of the e-amination results, and he did so here. Dr. CrawfordJ!a,u&ia, retrieved the ima#es ta,en durin# Doe?s e-amination from the computer, matchin# them with her uni@ue medical record num&er, and he copied the photo#raphs '3!6 onto a stora#e dis, that he &rou#ht with him to court. 'he testimony of Dr. CrawfordJ!a,u&ia, was more than sufficient to allow a trier of fact to find &y a preponderance of evidence that the SA/' photo#raphs accurately depicted what they purported to show, i.e., ima#es of Doe?s #enitalia on arch 12J13, 2010. 'herefore, the trial court did not a&use its discretion in admittin# the photo#raphs in evidence.

2+ The Confrontation Clause <llis contends that admission of the SA/' photo#raphs violated his confrontation clause ri#hts. He ar#ues, A'he manner, time, identity of the photo su&Gect and other circumstances surroundin# the creation of these photo#raphs are all su&Gect to *the Si-th Amendment ri#ht to confrontation and+ cross4e-amination,B and contends the circumstances here are analo#ous to confrontation clause cases involvin# admission of forensic la&oratory reports without testimony &y the person actually conductin# the tests. 'he confrontation clause provides that A*i+n all criminal prosecutions, the accused shall enGoy the ri#ht ... to &e confronted with the witnesses a#ainst him.B .F.S. Const., %th Amend.0 ;n Cra ford v. Washington .200$0 5$1 F.S. 3%, 12$ S.Ct. 135$, 15E 8.<d.2d 1CC .Cra ford 0, the Fnited States Supreme Court Aadopted a fundamentally new interpretation of the confrontation ri#ht, holdin# that K*t+estimonial statements of witnesses a&sent from trial *can &e+ admitted only where the declarant is unavaila&le, and only where the defendant has had a prior opportunity to cross4e-amine.? *Citation.+B . Williams v. $llinois .20120 5%C F.S. JJJJ,132 S.Ct. 2221, 2232, 1E3 8.<d.2d E6 .plur. opn. of Alito, !.0 . Williams 01 see also People v. %#ngo .20120 55 Cal.$th %0E, %1%, 1$C Cal./ptr.3d 52C, 2E% 7.3d $$2 .%#ngo 0.0 Cra ford did not, however, adopt a particular definition of Atestimonial.B . Cra ford, at p. 52, 12$ S.Ct. 135$, 15E 8.<d.2d 1CC 1 see also %#ngo, at p. %1%, 1$C Cal./ptr.3d 52C, 2E% 7.3d $$2.0 <fforts &y &oth the Fnited States Supreme Court and our own Supreme Court to more precisely define the contours of the confrontation clause, and to determine what is testimonial hearsay have proven challen#in# and pro&lematic, with no clear maGority view in many of the recent Fnited States Supreme Court decisions, and multiple concurrin# and dissentin# opinions

&y our own Supreme Court Gustices. ;n Williams, for e-ample, a forensic specialist at the ;llinois State 7olice la&oratory, testified that she matched a DNA profile produced &y an outside la&oratory, Cellmar,, from va#inal swa&s of a se-ual assault victim to a profile the state la&oratory produced usin# a sample of the petitioner?s &lood. . Williams, s#pra, 132 S.Ct. at p. 222C .plur. opn. of Alito, !.0.0 At trial, the outside la&oratory report was not introduced into evidence, and no analyst from that la&oratory testified. .$d. at p. 2230.0 A maGority of the Gustices found that the e-pert?s testimony did not violate the defendant?s confrontation clause ri#hts. .$d. at p. 22$$.0 (ut, as our Supreme Court o&served in %#ngo, the Williams four4one4four opinion reflected Awidely diver#ent views, none of which was a&le to #arner maGority support.B . %#ngo, s#pra, 55 Cal.$th at p. %1E, 1$C Cal./ptr.3d 52C, 2E% 7.3d $$2.0 ;ndeed, our own Supreme Court?s analyses in three recent confrontation clause cases decided on the same dayN%#ngo, People v. Lopez .20120 55 Cal.$th 5%6, 1$C Cal./ptr.3d 556, 2E% 7.3d $%6 .Lopez 0, People v. &#tters'hmidt .20120 55 Cal.$th %50, 1$C Cal./ptr.3d 51E, 2E% 7.3d $35 .&#tters'hmidt 0N#enerated nine separate opinions, evidencin# what !ustice 8iu characteriMed as the Athe muddled '3! stateB of current doctrine in this area. . Lopez, at p. 560, 1$C Cal./ptr.3d 556, 2E% 7.3d $%6 .dis. opn. of 8iu, !.0.0 'he consistent principle that is articulated in &oth the federal and state hi#h court cases is that the confrontation clause is not implicated unless there is evidence presented of a hearsay statement, i.e. a statement from a Awitness a&sent from trial,B which is Atestimonial.B% .Williams, s#pra, 132 S.Ct. at p. 2232 .plur. opn. of Alito, !.01 %#ngo, s#pra, 55 Cal.$th at p. %1%, 1$C Cal./ptr.3d 52C, 2E% 7.3d $$21 Lopez, s#pra, 55 Cal.$th at pp. 5E0J5E1, 1$C Cal./ptr.3d 556, 2E% 7.3d $%6 .0 'he photo#raphs at issue here fail to meet the threshold hearsay re@uirement.

3+ Photographs are Not Hearsay [6] [ ] Hearsay is an out4of4court Astatement that was made other than &y a witness while testifyin# at the hearin# and that is offered to prove the truth of the matter stated.B .<vid.Code, > 1200, su&d. .a0, italics added.0 A AstatementB is oral or written ver&al e-pression or nonver&al conduct of a person that is intended to &e a su&stitute for oral or written ver&al e-pression. .<vid.Code, > 225.0 'he SA/' di#ital photo#raphs are not Aver&al e-pressions,B nor are they made &y a Aperson.B C ADnly people can #enerate hearsay. achines, animals, chemical reactions cannot. .See Simons, Cal. <vidence anual .2012 ed.0 > 2.2, pp. C$JC5.0B .%#ngo, at pp. %$%J%$C, 1$C Cal./ptr.3d 52C, 2E% 7.3d $$2 .dis. opn. of Corri#an, !.0.0 ;n Lopez, s#pra, 55 Cal.$th 5%6, 1$C Cal./ptr.3d 556, 2E% 7.3d $%6 , our Supreme Court confirmed that raw machine #enerated data is not a hearsay statement. 'he defendant in Lopez was char#ed with vehicular manslau#hter while into-icated .> 161.5, su&d. .&00. 'o prove into-ication, the prosecution at trial introduced into evidence a la&oratory analyst?s report on the percenta#e of alcohol in a &lood sample ta,en from defendant followin# the fatal accident. 'he analyst who conducted the testin# did not testify, &ut a collea#ue did. . Lopez, at p. 5C3, 1$C Cal./ptr.3d 556, 2E% 7.3d $%6 .0 'he testifyin# criminalist said that he had reviewed a la&oratory report &y the criminalist who had analyMed defendant?s &lood sample. A copy of the si-4pa#e la&oratory report was admitted into evidence over defense o&Gection. 'he second pa#e of the report was a printout of the #as chromato#raphy machine?s cali&rations on the day of the test. 7a#es $ and 5 of the report showed two computer4 #enerated numerical results ..060% and .060E0 of two la&oratory analyses of the defendant?s &lood sample. . $d. at pp. 5E2J 5E3, 1$C Cal./ptr.3d 556, 2E% 7.3d $%6.0 7a#es 3 and % were reports of A@uality control runs.B 'he court held that pa#es 2 throu#h % of the report, consistin# entirely of data #enerated &y a #as chromato#raphy machine, were not AstatementsB of the analyst. .$d. at p. 5E3, 1$C Cal./ptr.3d 556, 2E% 7.3d $%6 .0E 'he court ac,nowled#ed '3!! that the Fnited States Supreme Court has not yet considered whether the prosecution?s use at trial of a machine printout violates a defendant?s ri#ht to confront and cross4e-amine the machine?s operator where the printout contains no statement from the operator attestin# to the validity of the data shown. However, the Lopez court upheld the use of such printouts citin# with approval federal appellate court opinions. .Lopez, at p. 5E3, 1$C Cal./ptr.3d 556, 2E% 7.3d $%6 , citin# (.S. v. Moon .Cth Cir.200E0 512 =.3d 356, 3%2 *Athe instruments? readouts are not Kstatements,? so it does not matter whether they are Ktestimonial? B+1 (.S. v. Washington .$th Cir.200C0 $6E =.3d 225, 231 *Athe raw data #enerated &y the machines do not constitute Kstatements,? and the machines are not Kdeclarants? B+.0 'he court held that A(ecause, unli,e a person, a machine cannot &e cross4e-amined, here the prosecution?s introduction into evidence of the machine4#enerated printouts ... did not implicate the Si-th Amendment?s ri#ht to confrontation.B .Lopez, at p. 5E3, 1$C Cal./ptr.3d 556, 2E% 7.3d $%6.0
[!]

5e &elieve the same is true of the di#ital camera ima#es presented here. A7hoto#raphs ... are demonstrative evidence, depictin# what the camera sees. *Citations.+B . People v. Cooper .200C0 1$E Cal.App.$th C31, C$%, 5% Cal./ptr.3d % .Cooper 0.0 'he California Supreme Court lon# a#o reGected the view that photo#raphs are essentially e-pressions of a witness?s testimony. ;n Bo ley, the court first set forth conflictin# views a&out the nature of photo#raphic evidence) AAccordin# to 7rofessor 5i#more, a photo#raph is no more than the nonver&al e-pression of the witness upon whose

foundation testimony its authenticity rests. *Citations.+ ;t is merely that witness? testimony in illustrated form1 a Kpictorial communication of a @ualified witness who uses this method of communication instead of or in addition to some other method.? *Citation.+ ... *O+ Dther authorities disa#ree. 'hey ur#e that once a proper fo#ndation has &een esta&lished as to the accuracy and authenticity of a photo#raph, Kit spea,s with a certain pro&ative force in itself.? *Citation.+B . Bo ley, s#pra, 56 Cal.2d at pp. E56JE%0, 31 Cal./ptr. $C1, 3E2 7.2d 561.0 'he court then adopted the latter view, e-plainin#) A'here is no reason why a photo#raph or film, li,e an 94ray, may not, in a proper case, &e pro&ative in itself. 'o hold otherwise would illo#ically limit the use of a device whose memory is without @uestion more accurate and relia&le than that of a human witness. ;t would e-clude from evidence the chance picture of a crowd which on close e-amination '3!" shows the commission of a crime that was not seen &y the photo#rapher at the time. ;t would e-clude from evidence pictures ta,en with a telescopic lens. ;t would e-clude from evidence pictures ta,en &y a camera set to #o off when a &uildin#?s door is opened at ni#ht. *Citations.+ 5e hold, therefore, that a photo#raph may, in a proper case, &e admitted into evidence not merely as illustrated testimony of a human witness &ut as pro&ative evidence in itself of what it shows.B . $d. at p. E%1, 31 Cal./ptr. $C1, 3E2 7.2d 561.06
["]

<llis nevertheless ar#ues the photo#raphs should not have &een admitted in evidence unless and until he had the opportunity to confront and cross4e-amine the photo#rapher to Ae-plor*e+ the possi&ility that she lac,ed proper trainin#, had actually ta,en photos of the complainin# witness, as well as ... *whether+ the photo#raphic ima#e *was+ su&Gect to distortion &ased on a num&er of factors such as focus, li#htin# and the s,ill of the person shootin# the photo#raphs.B 'his, however, is essentially a challen#e to the authentication of the photo#raphs, and a claim, which we have already reGected, that photo#raphs must &e authenticated throu#h the testimony of the person who too, the photo#raphs. <llis cites no authority that he has a confrontation clause ri#ht to demand that the photo#raphs &e authenticated in a particular manner, and as we have discussed ante, no AstatementsB &y the photo#rapher were admitted in evidence in this case. ;n fact, Dr. CrawfordJ!a,u&ia,?s testimony clearly shows that the raw data contained in the photo#raphs themselves would have &een meanin#less to any nonmedical o&server without the e-pert interpretation which he provided. Conse@uently, <llis was never denied the ri#ht to confront a AwitnessB who testified a#ainst him. 'he properly authenticated photo#raphs were themselves pro&ative demonstrative evidence of a physical trauma suffered &y Doe. As Ademonstrative evidence,B the photo#raphs were not out4of4court hearsay AstatementsB &y a ApersonB that would implicate a Si-th Amendment confrontation ri#ht. .Cooper, s#pra, 1$E Cal.App.$th at p. C$%, 5% Cal./ptr.3d %.0

B+2C+''

***+ 1*S3)S*4*)0 'he Gud#ment is affirmed.

5e concur) !ones, 7.!. Simons, !. (ruiniers, !., concurrin#. ; write separately from the maGority opinion ; have authored to e-press my view that even if the di#ital photo#raphs at issue here could somehow &e characteriMed as out4of4court AstatementsB of a Aperson,B '3"( they still would not &e considered AtestimonialB under the confrontation clause, as articulated &y our Supreme Court in People v. %#ngo .20120 55 Cal.$th %0E, 1$C Cal./ptr.3d 52C, 2E% 7.3d $$2 .%#ngo 0. AAlthou#h the hi#h court has not a#reed on a definition of Ktestimonial,? testimonial out4of4court statements have two critical components. =irst, to &e testimonial the statement must &e made with some de#ree of formality or solemnity. Second, the statement is testimonial only if its primary purpose pertains in some

fashion to a criminal prosecution.B .%#ngo, s#pra, 55 Cal.$th at p. %16, 1$C Cal./ptr.3d 52C, 2E% 7.3d $$2.0 A'he @uestion of what out4of4court statements are and are not testimonial has divided the Gustices of the Fnited States Supreme Court, whose decisions have not yet yielded a clear definition or test. (ut the Gustices have consistently considered two factors in decidin# whether a #iven statement sufficiently resem&les the <n#lish court a&uses that #ave rise to the confrontation clause, primarily the use at trial of witness statements o&tained throu#h e- parte e-amination) .10 the de#ree of formality or solemnity with which the statement was made and .20 the de#ree to which it was produced for use at trial. 'he more a statement resem&les the K Asolemn declaration or affirmationB ? that is testimony, commonly understood, and the more it was e-pected, when made, K Ato &e used prosecutoriallyB ... Aat a later trial,B ? the more centrally it is located within the Kcore class of AtestimonialB statements.? *Citation.+B . $d. at p. %22, 1$C Cal./ptr.3d 52C, 2E% 7.3d $$2 .conc. opn. of 5erde#ar, !.01 see also Williams v. $llinois .20120 5%C F.S. JJJJ,132 S.Ct. 2221, 22$2, 1E3 8.<d.2d E6 .plur. opn. of Alito, !.0 . Williams 0 *Aa&uses that the Court has identified as promptin# the adoption of the Confrontation Clause shared the followin# two characteristics) .a0 they involved out4of4court statements havin# the primary purpose of accusin# a tar#eted individual of en#a#in# in criminal conduct and .&0 they involved formaliMed statements such as affidavits, depositions, prior testimony, or confessionsB+.0 ; would hold that the photo#raphs at issue here lac, the re@uisite de#ree of formality or solemnity, and that they do not meet the Aprimary purposeB test.

*+ Formality or Solemnity 'o &e testimonial the out4of4court statement must have &een made with some de#ree of formality or solemnity . %avis v. Washington .200%0 5$C F.S. E13, E30JE31 P fn. 5, 12% S.Ct. 22%%, 1%5 8.<d.2d 22$ , *Aformality is indeed essential to testimonial utteranceB+ 0, althou#h the de#ree of formality re@uired remains a su&Gect of dispute in the Fnited States Supreme Court. .People v. Lopez .20120 55 Cal.$th 5%6, 5E1J5E2, 1$C Cal./ptr.3d 556, 2E% 7.3d $%6 .Lopez 0.0 ;n Cra ford v. Washington .200$0 5$1 F.S. 3%, 12$ S.Ct. 135$, 15E 8.<d.2d 1CC .Cra ford 0, the Supreme Court defined AtestimonyB for confrontation clause purposes as A K*a+ solemn declaration or affirmation made for the purpose of esta&lishin# or provin# some fact.? B .Cra ford, at p. 51, 12$ S.Ct. 135$, 15E 8.<d.2d 1CC .0 'he Fnited States Supreme Court has addressed the application of this standard to forensic evidence in two recent cases. . Melendez)%iaz v. Massa'h#setts .20060 55C F.S. 305, 126 S.Ct. 252C, 1C$ 8.<d.2d 31$ .Melendez)%iaz 0 and B#ll'oming v. *e Me+i'o .20110 5%$ F.S. JJJJ, 131 S.Ct. 2C05, 1E0 8.<d.2d %10+ .B#ll'oming 0.0 ;n Melendez)%iaz, the trial court admitted in evidence affidavits that certified the results of la&oratory tests on su&stances that had &een seiMed &y police, verifyin# they were controlled su&stances. . Melendez)%iaz, s#pra, 55C F.S. at pp. 30CJ30E, 126 S.Ct. 252C.0 'he Supreme Court held '3"1 that the affidavits fell Awithin the Kcore class of testimonial statements? B su&Gect to the confrontation clause. .$d. at p. 310, 126 S.Ct. 252C.0 A'he fact in @uestion *was+ that the su&stance found in the possession of *the defendants+ was, as the prosecution claimed, cocaineNthe precise testimony the analysts would &e e-pected to provide if called at trial .... *O+ ... * +oreover, ... the affidavits *were+ K Amade under circumstances which would lead an o&Gective witness reasona&ly to &elieve that the statement would &e availa&le for use at a later trial,B ? *citation+ .... *O+ ... A&sent a showin# that the analysts were unavaila&le to testify and that *the defendant+ had a prior opportunity to cross4 e-amine them, *the defendant+ was entitled to K A&e confronted withB ? the analysts at trial. *Citation.+B . $d. at pp. 310J311, 126 S.Ct. 252C.0 'he court stressed that the la&oratory certificates at issue were A@uite plainly affidavits) Kdeclaration*s+ of facts written down and sworn to &y the declarant &efore an officer authoriMed to administer oaths.K *Citation.+B . $d. at 310, 126 S.Ct. 252C.0 ;n B#ll'oming, the trial court admitted a la&oratory report of the alcohol level in a defendant?s &lood sample throu#h the testimony of an analyst who wor,ed in the la&oratory where the tests were performed, &ut who had not personally performed or o&served the specific tests at issue. . B#ll'oming, s#pra, 131 S.Ct. at p. 2C06 .0 'he Supreme Court held the evidence was admitted in violation of the defendant?s confrontation ri#hts. . $d. at pp. 2C13J2C1C.0 Distin#uishin# Arepresentations, relatin# to past events and human actionsB from Araw, machine4produced dataB . id. at p. 2C1$0, the hi#h court emphasiMed that the la&oratory certificate containin# those representations was A KformaliMed? in a si#ned document ... referrin# to ... rulesB that made the document admissi&le in court.B .$d. at p. 2C1C1 see Lopez, s#pra, 55 Cal.$th at p. 5E1, 1$C Cal./ptr.3d 556, 2E% 7.3d $%6.0 At issue in %#ngo were certain statements in an autopsy report, where the testifyin# patholo#ist had not conducted the

autopsy. .%#ngo, s#pra, 55 Cal.$th at pp. %1EJ%16, 1$C Cal./ptr.3d 52C, 2E% 7.3d $$2 .0 'he court found no confrontation clause violation in part &ecause the particular statements at issue, which descri&ed o&Gective facts, were not the sort of formal testimony that implicated the confrontation clause. . $d. at pp. %16J%21, 1$C Cal./ptr.3d 52C, 2E% 7.3d $$2 .0 Specifically, the court held that Astatements descri&in# the patholo#ist?s anatomical and physiolo#ical o&servations a&out the condition of the &odyB were not formal testimony su&Gect to the confrontation clause. . $d. at p. %16, 1$C Cal./ptr.3d 52C, 2E% 7.3d $$2 .0 A'hese statements, which merely record o&Gective facts, are less formal than statements settin# forth a patholo#ist?s e-pert conclusions. 'hey are compara&le to o&servations of o&Gective fact in a report &y a physician who, after e-aminin# a patient, dia#noses a particular inGury or ailment and determines the appropriate treatment. Such o&servations are not testimonial in nature. .Melendez)%iaz, s#pra, 55C F.S. at p. 312, fn. 2, 126 S.Ct. 252C *Kmedical reports created for treatment purposes ... would not &e testimonial under our decision today?+.0B . %#ngo, at pp. %16J%20, 1$C Cal./ptr.3d 52C, 2E% 7.3d $$21 see also id. at p. %21, 1$C Cal./ptr.3d 52C, 2E% 7.3d $$2 *Afacts that Dr. 8awrence related to the Gury were not so formal and solemn as to &e considered testimonial for purposes of the Si-th Amendment?s confrontation ri#htB+.0 Similarly, the Supreme Court in Lopez found identifyin# information, notations and results contained on a la&oratory report on analysis of &lood samples, entered &y a la&oratory assistant and &y the e-aminin# analyst, to &e admissi&le over a confrontation '3"2 $ clause o&Gection &ecause the report lac,ed the formality re@uired to &e considered testimonial. . Lopez, s#pra, 55 Cal.$th at pp. 5E2J5E5, 1$C Cal./ptr.3d 556, 2E% 7.3d $%6.0 At least one other California appellate court has recently applied %#ngo and Lopez in concludin# that notes, DNA profiles, and la&oratory reports prepared &y nontestifyin# witnesses, and relied upon &y testifyin# criminalists, were merely Aunsworn, uncertified records of o&Gective fact,B lac,in# sufficient formality to &e considered testimonial. . People v. ,olmes .20120 212 Cal.App.$th $31, $3%, $3E, 150 Cal./ptr.3d 61$ .,olmes 0.01 'he %#ngo maGority opinion did not separately address the admissi&ility of the autopsy photo#raphs, &ut made no su##estion that reliance &y the witness on the photo#raphs would &e su&Gect to a different AtestimonialB analysis. .See %#ngo, s#pra, 55 Cal.$th at p. %16, 1$C Cal./ptr.3d 52C, 2E% 7.3d $$2 *ADr. 8awrence?s ... description *to the Gury of the condition of the victim?s &ody at the time of autopsy+ was &ased on *his+ review of Dr. (olduc?s autopsy report and its accompanyin# photo#raphs,B and the record did not indicate whether that description was &ased solely on the photo#raphs, solely on the report, or a com&ination of the two+.0 ;n my view, the Aunsworn, uncertifiedB photo#raphs ta,en durin# the SA/' medical e-amination depict only o&Gective physical conditions, and are not Aformal testimonyB for Si-th Amendment purposes. . %#ngo, s#pra, 55 Cal.$th at p. %16, 1$C Cal./ptr.3d 52C, 2E% 7.3d $$2.0

**+ Primary Purpose ;n addition to lac,in# the formality and solemnity associated with testimonial statements, the %#ngo court noted that criminal investi#ation, while one purpose of the autopsy, was not the primary purpose for recordin# the facts in @uestion. . %#ngo, s#pra, 55 Cal.$th at pp. %20J%21, 1$C Cal./ptr.3d 52C, 2E% 7.3d $$2 .0 'o ma,e an e-traGudicial statement testimonial, the statement must also have a primary purpose pertainin# to the investi#ation and prosecution of a crime. . Lopez, s#pra, 55 Cal.$th at p. 5E2, 1$C Cal./ptr.3d 556, 2E% 7.3d $%6 *Aall nine hi#h court Gustices a#ree that an out4of4court statement is testimonial only if its primary purpose pertains in some fashion to a criminal prosecutionB+1 see Williams, s#pra, 132 S.Ct. at pp. 22$3J22$$ .plur. opn. of Alito, !.0 *even if e-pert witness testimony relyin# on Cellmar, DNA report had &een admitted for the truth of the matter asserted, the report was not testimonial &ecause it was not prepared Afor the primary purpose of accusin# a tar#eted individualB+1 id. at p. 22C3 .dis. opn. of Ha#an, !.0 *pertinent in@uiry is whether the report was prepared Afor the primary purpose of esta&lishin# Kpast events potentially relevant to later criminal prosecution?Nin other words, for the purpose of providin# evidenceB+.0 A*'+he o&Gective forensic autopsy, with its findin#s includin# to-icolo#ical tests, special tests, microscopic e-amination, etc. ... does not resem&le the e- parte e-aminations of historical e-ample or the structured police interro#ations of Cra ford and %avisv. Washington, s#pra, 5$C F.S. E13, 12% S.Ct. 22%%, 1%5 8.<d.2d 22$. '3"3 'hou#h there is a structure to the autopsy e-amination process, it is lar#ely that of a medical e-amination, not an interro#ation.B . %#ngo, s#pra, 55 Cal.$th at p. %2$, 1$C Cal./ptr.3d 52C, 2E% 7.3d $$2 .conc. opn. of 5erde#ar, !.0.02 Similarly the evidence &efore the trial court here confirmed that the primary purpose of the e-amination conducted on Doe

was medical, and not forensic.3 Dr. CrawfordJ!a,u&ia, testified that Doe Ahad a thorou#h medical e-amination. *O+ ... *O+ 5e do a medical evaluation in the conte-t of some&ody who?s disclosin# se-ual assault.B 5hen specifically as,ed the purpose of his review of the e-amination results, he said, A'he SA/' e-am is a medical evaluation is how ; would refer to it, not a SA/' e-am, provides a num&er of different purposes. *O+ 'he most important is to ma,e sure in the conte-t of how some&ody presents, that they #et the medical care that they need. ;f they were e-posed to &iolo#ical material that could potentially #et you sic,, could potentially #et some&ody pre#nant, that care is provided to esta&lish whether or not that?s an issue. edications can &e provided to prevent those thin#s. ;f inGuries are identified that need care, that?s part of the evaluation. *O+ Simultaneous with that ... there?s a component where forei#n material, if present, can &e collected ....B Doe was provided medical care, includin# medications. As with the autopsy report in %#ngo, the physical e-amination conducted of Doe served several purposes, only one of which was criminal investi#ation. A'he record does not show or su##est that *the SA/' e-aminer+ was ... #uided in *her+ conduct and documentation of the *e-amination+ &y anythin# other than professional medical practices and standards.B . %#ngo, s#pra, 55 Cal.$th at p. %2C, 1$C Cal./ptr.3d 52C, 2E% 7.3d $$2 .conc. opn. of 5erde#ar, !.0.0 =urther, the court in %#ngo specifically analo#iMed the physical autopsy findin# to Ao&servations of o&Gective fact in a report &y a physician who, after e-aminin# a patient, dia#noses a particular inGury or ailment and determines the appropriate treatment,B statin# that A.s0uch o&servations are not testimonial in nature. . Melendez)%iaz, s#pra, 55C F.S. at p. 312, fn. 2, 126 S.Ct. 252C *Kmedical reports created for treatment purposes ... would not &e testimonial under our decision today?+.0B . %#ngo, at pp. %16J%20.,1$C Cal./ptr.3d 52C, 2E% 7.3d $$2, fn. omitted.0 '3"4 ; find nothin# AtestimonialB in the use of the medical e-amination photo#raphs under any standard articulated &y the Fnited States Supreme Court or &y the California Supreme Court, and thus nothin# which would implicate <llis?s %th Amendment confrontation ri#hts. ; concur. 3arall%l Ci$a$ions , 13 Cal. Daily Dp. Serv. 2255, 2013 Daily !ournal D.A./. 2%3C =ootnotes
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7ursuant to California /ules of Court, rules E.1105.&0 and E.1110, this opinion is certified for pu&lication with the e-ception of parts ;;.( and ;;.C. All statutory references are to the 7enal Code unless otherwise indicated. 'he parties stipulated that <llis was 26 years old in arch 2010.

5e @uestion whether <llis has preserved this ar#ument. Durin# discussion of counsel?s confrontation o&Gection, defense counsel insisted that if Dr. CrawfordJ!a,u&ia, were allowed to offer an opinion &ased on the photo#raphs Athey have to come into evidence.B Defense counsel herself then offered them into evidence. Collo@uy &y the court with counsel at the close of testimony indicates that the photo#raphs .<-hi&it 1CA0 were admitted without o&Gection. However, since this issue has not &een raised or &riefed &y the parties, we do not decide it and we address the merits of the claim. Dnly three of the 30 photo#raphs were actually received in evidence. 'he printed ima#es from photo#raphs stored on di#ital media are presumed to &e accurate representations of the ima#es they purport to represent. .<vid.Code, > 1553, su&d. .a0.0 'he photo#raphs are ta,en &y a Ni,on di#ital camera connected to the colposcope, with the colposcope servin# as the camera lens. ;t ta,es no measurements, and re@uires no cali&ration. A five4Gustice maGority of the hi#h court and at least si- of the seven Gustices on the California Supreme Court appear to a#ree that, for purposes of the confrontation clause, out4of4court statements admitted as &asis evidence durin# e-pert testimony are admitted for their truth if treated as factual &y the e-pert and, thus, implicate confrontation ri#hts if the statements are testimonial. .See Williams, s#pra, 132 S.Ct. 22211 Lopez, s#pra, 55 Cal.$th 5%6, 1$C Cal./ptr.3d 556, 2E% 7.3d $%6.0 A K7erson? includes a natural person, firm, association, or#aniMation, partnership, &usiness trust, corporation, limited lia&ility

company, or pu&lic entity.B .<vid.Code, > 1C5.0

E

Lopez separately addressed the admissi&ility of the information contained on the first pa#e of the report, consistin# of a Achain of custody lo# sheetB and a chart showin# the results of nine &lood samples, includin# defendant?s, with the identifyin# num&er assi#ned &y the la&oratory to each sample. 'he chart contained information filled in &y hand &y a la&oratory assistant .A(oo,in# R ,B A8a& Num&er,B ASample Sealed,B ASu&Gect?s Name,B and AArrestin# DfficerB0 for each &lood sample. ;nformation as to the date the &lood was analyMed and the test result, with the correspondin# identifyin# la& num&er assi#ned &y the la&oratory assistant, was entered &y the analyst. . Lopez, s#pra, 55 Cal.$th at pp. 5E2J5E$, 1$C Cal./ptr.3d 556, 2E% 7.3d $%6 .0 'he court found the notations entered &y the la&oratory assistant, particularly those lin,in# defendant?s name to the assi#ned &lood sample la& num&er, a Amore difficult @uestion.B .Lopez, s#pra, 55 Cal.$th at p. 5E3, 1$C Cal./ptr.3d 556, 2E% 7.3d $%6.0 'hey were clearly statements &y a person. However, acceptin# that such information was &ein# offered for the truth of the matter asserted, the court found that the report containin# the statements lac,ed the formality re@uired to &e considered testimonial. . $d. at pp. 5E3J5E5, 1$C Cal./ptr.3d 556, 2E% 7.3d $%6.0 <llis did not challen#e in the trial court Dr. CrawfordJ!a,u&ia,?s use of the e-aminer4assi#ned identifiers to connect the photo#raphs to Doe, and ma,es no such challen#e here. 5e are aware that the Supreme Court has #ranted review in two cases addressin# the admissi&ility of computer4#enerated red li#ht camera photo#raphs, video and data. .See People v. !oldsmith .20120 203 Cal.App.$th 1515, 13E Cal./ptr.3d 305 , review #ranted ay 6, 2012, S201$$31 People v. Borza-ian .20120 203 Cal.App.$th 525, 13% Cal./ptr.3d CC2 , review #ranted, ay 6, 2012, S201$C$.0 ;n !oldsmith, the Second District Court of Appeal held that red li#ht camera enforcement photo#raphs, video, and data imprinted on them were not hearsay. ;n Borza-ian, a different division of the Second District reversed a conviction for a traffic infraction &ased on an automated camera enforcement system, &ut did so &ased on a lac, of proper authentication and foundation. Amon# the issues to &e &riefed and ar#ued &efore the Supreme Court is whether such automated traffic enforcement evidence is hearsay and, if so, whether any e-ceptions apply. See footnote Q, ante. 'he court found the Aprimary purposeB of the reports to pertain to criminal prosecution &ecause the procedures were underta,en at the &ehest of police to identify a suspect in a homicide case, and some of the analysis was performed after the defendant was tar#eted as a suspect. .,olmes, s#pra, 212 Cal.App.$th at p. $3E, 150 Cal./ptr.3d 61$ .0 Since the reports lac,ed formality, the court found the primary purpose to &e immaterial under Lopez and %#ngo. .,olmes, at p. $3E, 150 Cal./ptr.3d 61$.0 See also %#ngo, s#pra, 55 Cal.$th at p. %30, 1$C Cal./ptr.3d 52C, 2E% 7.3d $$2 .conc. opn. of Chin, !.0) A'he out4of4court statements in the autopsy report that Dr. 8awrence relied on to form his opinion are not testimonial under *the primary purpose+ test. 'hey did not have the primary purpose of accusin# defendant or any other tar#eted individual of en#a#in# in criminal conduct. 'he primary purpose of the portions of the report that Dr. 8awrence relied on was to descri&e the condition of the &ody.... ;n descri&in# the condition of the &ody, there was no prospect of fa&rication or incentive to produce anythin# other than a scientifically relia&le report.B 'he Second District Court of Appeal, in a decision rendered prior to %#ngo and in a sli#htly different factual conte-t, reached a contrary conclusion in People v. Vargas .20060 1CE Cal.App.$th %$C, 100 Cal./ptr.3d 5CE .Vargas 0. 'he court there found that the statements of a se-ual assault victim to a forensic nurse e-aminer were testimonial and inadmissi&le, concludin# that the nurse Aacted as an a#ent of law enforcementB in e-aminin# and @uestionin# the victim. . $d. at p. %%0, 100 Cal./ptr.3d 5CE.0 Aside from the fact that the testimony presented as to the primary p#rpose of the e-amination differed si#nificantly in this case from that in Vargas .cf. id. at pp. %%0J%%2, 100 Cal./ptr.3d 5CE0, the photo#raphs here, as we have discussed, are statements of neither Doe nor the SA/' nurse. Vargas is thus distin#uisha&le.

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5nd o6 1ocum%n$

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