THE PEOPLE v. STEVEN HYUN KWON

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. STEVEN HYUN KWON, Defendant and Appellant.

B224094

Decided: March 30, 2011

Laura S. Kelly, by appointment of the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr. and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Joseph P. Lee and Stephanie C. Brenan, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Appellant Steven Hyun Kwon was charged with the murder of Min Woo Cho, a friend and former roommate, following a night of drinking.   He was convicted of second degree murder (Pen.Code, § 187, subd. (a)), with findings that he personally used a firearm (Pen.Code, § 12022.53, subd. (b)), that he personally and intentionally discharged a firearm (Pen.Code, § 12022.53, subd. (c)), and that in doing so he caused great bodily injury and death (Pen.Code, § 12022.53, subd. (d)).

Kwon's appeal rests on a single contention:  that his Sixth Amendment right to confront witnesses against him was violated by the admission at his trial of testimony of an expert witness about steps in the DNA profiling process that the witness did not herself perform, and the admission of the documentary DNA test results.   We find no error.

Facts

Under applicable standards of appellate review, we view the facts in the light most favorable to the judgment of conviction, and presume the existence of every fact to support the judgment that the jury could reasonably have found from the evidence.  (People v. Barnes (1986) 42 Cal.3d 284, 303;  People v. Neufer (1994) 30 Cal.App.4th 244, 247.)   We review rulings by the trial court on the admissibility of evidence for abuse of discretion.  (City of Ripon v. Sweetin (2002) 100 Cal.App.4th 877, 900.)   We set forth the relevant facts in accordance with these principles.

Kwon and Cho had met at a boarding house, and had at one time roomed together there.   On the evening of June 10, 2008 (a Tuesday), they went to watch a basketball game at a bar.   In a 1:00 a.m. phone conversation on June 11, Cho—apparently very drunk—told his girlfriend that Kwon would drop him off at his room.

At about 2:00 a.m. Cho's neighbor responded to Kwon's knock on the door, and pointed out to Kwon which room was Cho's.

At about 3:30 a.m. on June 11, Kwon arrived at the Wa Bar, where he was employed (but had been off that night).   Kwon told his co-workers that he had taken a friend home after a night of drinking, and had dropped in on his way home when he noticed that the bar was still open.   But by then the employees' card game was over, so they all left after only about five minutes.

Cho's girlfriend tried to reach Cho all day June 11 and 12, without success.   Cho did not respond to her knocks on his apartment door, he did not answer his cell phone, and his car was not in his apartment parking lot.   On Thursday morning Kwon told her he had taken Cho home, very drunk, and had helped him into bed.   When she had a locksmith open Cho's apartment, however, she found that Cho was not there, nor was his passport, and that he did not appear to have slept there.1

Cho's girlfriend contacted Cho's aunt, and the two women again consulted Kwon, who responded to their questions with evasive answers.   Cho's girlfriend and aunt then contacted the police to report Cho missing.

On June 13 Cho's girlfriend and aunt found Cho's car parked in front of Kwon's apartment.   When they had it opened by a locksmith, they found that the glove box, which ordinarily contained many receipts, was empty.   They also found debris on the car's front seats.

On June 17, personal items belonging to Cho, including a checkbook, a payment book, and a Korean passport, were found in a dumpster behind the Wa Bar, along with car keys, a garage door opener, credit cards and a cell phone.   Kwon's fingerprint, of unknown age, was found on the payment book.

On July 12, Cho's body was found near Dodger stadium.   Cho's girlfriend identified the clothes on the body, and an autopsy revealed that the cause of his death was a gunshot wound to the head, with both entry and exit wounds.

Kwon was interviewed by the police on June 23, and again on October 15, 2008.   Kwon was arrested at the end of the October 15, 2008 interview.

In September 2008 a police department criminologist determined that certain stains on the carpet of a car Kwon had been using until June 2008 were blood stains.   Pieces of the carpet, and swabs from a toothbrush from Cho's apartment, and apparently a bone marrow sample from the body that had been found, were packaged and sent to a DNA testing laboratory in Virginia.2  DNA testing revealed that the blood from the carpet, and the bone sample, matched the DNA profile from the toothbrush to a very high degree of statistical significance.

After Kwon's arrest, a duffel bag containing a revolver with five .38–caliber bullets was found in a hotel room Kwon had checked into that day.   And in the hotel parking structure a Toyota Tundra pickup truck was found that had been reported stolen in June 2008, from the boarding house where Kwon lived at the time.   The truck bed contained eight suitcases and duffel bags with Kwon's name on them, along with various other items in Kwon's name.   It also contained a long-expired temporary 24–Hour Fitness gym membership in Cho's name.

Discussion

At Kwon's trial the prosecution offered the testimony of Lindsay Murray, a DNA analyst at the laboratory of Bode Technology in Lorton, Virginia.   Murray's testimony linked the DNA taken from the bone sample and the bloodstains found in the carpet of the car Kwon had been using at the time of Cho's disappearance to the sample taken from Cho's toothbrush.   The defense objected to the admission of Murray's testimony, on the ground that in testing the DNA from Cho's toothbrush, and perhaps the bone sample, one or more of the steps in the four-step process had been done by someone at Bode Technology other than Murray, the testifying witness.   Because Murray did not personally perform all the elements of the DNA profiling process, the defense argued, the admission of her testimony about the results of that process—the comparison of DNA from Cho's toothbrush to that taken from other samples—deprived Kwon of his right under the Sixth Amendment of the United States Constitution to confront the witnesses against him.

The Sixth Amendment confrontation clause provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ․ to be confronted with the witnesses against him․”  (U.S. Const., 6th Amend.)   In the recent case of Melendez–Diaz v. Massachusetts (2009) 557 U.S. _ [129 S.Ct. 2527, 174 L.Ed.2d 314] (Melendez–Diaz ), the defendant had been convicted of distributing cocaine in an amount of 14 to 28 grams, based on evidence of forensic analysis that established the weight of the seized bags, and that their contents was cocaine.  (Melendez–Diaz, supra, 129 S.Ct. at pp. 2530–2531.)   The Supreme Court majority ruled in Melendez–Diaz that the report of the forensic analysis constituted testimonial statements offered to prove facts essential to the prosecution.   Because the analysts who had tested the bags' contents to determine the amount of cocaine they contained were neither present to testify at the defendant's trial nor shown to be unavailable, and because the defendant had had no prior opportunity to cross-examine them, the admission of their test results—a critical element of the charged crime—violated the defendant's right to confrontation under Crawford v. Washington (2004) 541 U.S. 36, 59.  (Melendez–Diaz, supra, 129 S.Ct. at pp. 2532 [maj. opn.]   & 2543 [Thomas, J., conc.].)

Crawford v. Washington, supra, 541 U.S. at p. 59, had held that testimonial out-of-court statements offered against a criminal defendant are rendered inadmissible by the Sixth Amendment's confrontation clause unless the witness is unavailable at trial and the defendant has had a prior opportunity for cross-examination.   The key test is whether the out-of-court statement is “testimonial”such as “ ‘affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially,’ [citation];  ‘extrajudicial statements ․ contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions,’ [citation];  ‘statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial,’ [citation].”  (Crawford, supra, 541 U.S. at pp. 5152.)

Shortly before the decision in Melendez–Diaz, the California Supreme Court had reached a result opposite to that in Melendez–Diaz, on facts that were at least somewhat similar.   In People v. Geier (2007) 41 Cal.4th 555, it held that it was not error to admit the testimony of the director of a DNA testing laboratory regarding the match between the defendant's DNA and that found on the victim, based on testing and documentation that had been done by another analyst at the laboratory.  (Id. at pp. 594–597.)   Under the circumstances of that case, the court held, the challenged evidence was not testimonial, and was admissible as a business record.  (Id. at pp. 605–607.)   It concluded that the admission of the laboratory director's testimony, and the report of the non-testifying analyst on which it was based, did not violate the defendant's Sixth Amendment right to confront the witnesses against him.  (Id. at p. 607.)

Whether the reasoning of People v. Geier survives the decision of the United States Supreme Court in Melendez–Diaz is a question that is now before our Supreme Court in a number of cases.3  But that question is not before us here.   As far as the record shows here (unlike in People v. Geier, Crawford v. Washington, and Melendez–Diaz ), the challenged testimony did not contain or rely on the testimonial expressions of anyone other than the testifying witness.   Here the testifying witness had herself conducted the required analysis of the DNA samples, and had herself reached the conclusions to which she testified:  that the DNA from Cho's toothbrush was highly consistent with that of the blood found in the car and the bone sample.   As far as the record shows, the witness's testimony did not rely upon testimonial statements of any other person involved in the testing process.

The underlying facts are undisputed.   DNA typing is a comparison of DNA profiles extracted from different samples.   There are four steps involved in the process:  extraction, quantification, amplification, and analysis.   Extraction is the process by which the DNA is removed from the cell nuclei in the samples (the swabs and pieces of carpet) sent by the Los Angeles Police Department to Bode Technology.   Quantification is the procedure used to determine how much DNA has been extracted (measured in nanograms), in order to know how much amplification of the DNA is required in order to have a quantity sufficient for analysis.   Amplification is the chemical process by which the extracted DNA is copied, millions of times, in order to obtain a usable quantity.   Analysis, the final step in the process, involves chemical analysis of the amplified DNA, and computer analysis comparing the profile with that from another sample.

Murray herself conducted the amplification and analysis portions of the process with respect to all of the tested samples—those taken from the car carpet, the bone, and the toothbrush.   With respect to the car carpet and bone samples, Murray conducted the extraction, amplification, and analysis portions of the process.   With respect to the sample taken from Cho's toothbrush, she did the amplification and analysis.   The extraction step for the toothbrush sample, and the quantification step for all the samples, were done by another analyst at Bode Technology.   Murray did the analysis of the DNA profiles from all the samples, and the comparison of those profiles with one another, reaching the conclusions to which she testified.   Those conclusions—that the samples from two of the carpet cuttings and the bone sample closely match the sample taken from Cho's toothbrush—also appear in exhibits 61 and 62, Murray's reports.4

As far as the record shows, although the extraction and quantification procedures are necessary steps in the testing process, their importance is in enabling the analysis;  they do not affect the results to which Murray testified.   Murray testified (as a qualified expert) that if the quantification and amplification steps are not properly performed, the result would be inadequate amplification of the DNA—”a profile that doesn't have enough information in it,” or that contains “artifacts.”   When questioned about her need to rely on her coworkers to properly extract and quantify the DNA, she testified that her amplification of the DNA using her colleagues' quantification, “gave me the expected results”:  a useable amount of DNA to analyze.

In arguing the admissibility of Murray's testimony, the prosecution represented to the court that Murray would be testifying “to analysis that she personally conducted and give conclusions based on the analysis that she personally conducted,” without relying on anyone else's analysis.   Murray's testimony confirmed that representation;  although she responded to defense questioning about how the quantification (as well as the amplification) process is done, nothing in her testimony indicated that it was necessary for her to rely on any testimonial result from that process in order to reach the conclusions to which she testified.   To provide her expert opinion analyses and comparisons of the various DNA profiles, she did not need to refer to or to testify about the extraction or quantification steps that were done by other analysts (nor, for that matter, about the amplification step she had done) with respect to some samples.   Nothing in the extraction or quantification steps constituted evidence that was used by Murray, or the prosecution, to prove any fact essential to the prosecution, as was the case in Melendez–Diaz, supra, 129 S.Ct. at p. 2532.

The court in Melendez–Diaz held that it is the prosecution's obligation to establish facts such as the chain of custody, authenticity of the sample, or accuracy of the testing device, but “this does not mean that everyone who laid hands on the evidence must be called․  It is up to the prosecution to decide what steps in the chain of custody are so crucial as to require evidence;  but what testimony is introduced must (if the defendant objects) be introduced live.”  (Melendez–Diaz, supra, 129 S.Ct. at p. 2532, fn. 1.)

In Melendez–Diaz, the testimonial statement of the absent witness who had determined the amount of cocaine in the sample was critical to the prosecution, but it was presented through the submission of notarized certificates.   (Melendez–Diaz, supra, 129 S.Ct. at pp. 2532 [maj. opn.]   & 2543 [Thomas, J., conc.].) Here, unlike the testimony at issue in Melendez–Diaz, Murray's testimony did not include any statement of any absent witness about any fact or conclusion necessary to the prosecution's case against Kwon. There was no absent witness to any necessary fact.   The witness who testified to the connection between the various DNA samples was the person who had personally analyzed and compared the DNA profiles from those samples, and who had personally drawn the conclusions to which she testified.   Her testimony for the prosecution identified the portions of the procedures that had been done by other analysts, but it did not include any results or conclusions (testimonial or otherwise) of any non-testifying analyst.   She was personally present in court, and was subject to confrontation and examination by the defense.

Nothing before the trial court suggests that the results of Murray's analysis of the various DNA profiles could have been affected by the extraction or quantification procedures that other analysts had used in order to prepare the DNA profiles that Murray analyzed;  Murray testified, as an expert, that they could not.   On this record, we cannot speculate or assume that the results of the extraction and quantification steps of the process were critical elements of the prosecution's case, such that evidence of them was required to be presented to the jury through the testimony of live witnesses (or at all).   Nor can we reject the prosecution's determination that they were not.   As the court said in Melendez–Diaz, not everyone whose testimony would be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must necessarily appear as part of the prosecution's case.   It is the prosecution's obligation to determine what facts must be proved, and “what testimony is introduced must (if the defendant objects) be introduced live.”  (Melendez–Diaz, supra, 129 S.Ct. at p. 2532, fn. 1.) 5

Murray personally analyzed the DNA. She personally drew the conclusions that were presented as part of the prosecution's case.   She was personally present in court and was subject to confrontation and examination by the defense.   The prosecution's evidence in this case was neither insufficient to prove its case against Kwon, nor rested on testimonial statements of absent witnesses.   The admission of Murray's testimony, and reports, therefore did not violate Kwon's Sixth Amendment right to confrontation.

Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED.

We concur:

FOOTNOTES

FN1. Cho's girlfriend was concerned initially that the missing passport indicated that Cho had gone to Korea to visit a former girlfriend..  FN1. Cho's girlfriend was concerned initially that the missing passport indicated that Cho had gone to Korea to visit a former girlfriend.

FN2. The record reveals only that the bone sample was labeled “John Doe,” and that it was received and tested by the laboratory in Virginia;  it fails to show that the bone sample came from the body found near the stadium.   That defect in the record apparently was inadvertent, however, for everyone in the trial court plainly assumed that the “John Doe” bone sample came from the body, and the briefs submitted on behalf of both the prosecution and the defense simply assume as much.   The defect is, in any event, of no consequence;  the body was sufficiently identified by the testimony of Cho's girlfriend..  FN2. The record reveals only that the bone sample was labeled “John Doe,” and that it was received and tested by the laboratory in Virginia;  it fails to show that the bone sample came from the body found near the stadium.   That defect in the record apparently was inadvertent, however, for everyone in the trial court plainly assumed that the “John Doe” bone sample came from the body, and the briefs submitted on behalf of both the prosecution and the defense simply assume as much.   The defect is, in any event, of no consequence;  the body was sufficiently identified by the testimony of Cho's girlfriend.

FN3. People v. Rutterschmidt (2009) 176 Cal.App.4th 1047, review granted December 2, 2009, S176213;  People v. Dungo (2009) 176 Cal.App.4th 1388, review granted December 2, 2009, S176886;  People v. Lopez (2009) 177 Cal.App.4th 202, review granted December 2, 2009, S177046;  People v. Gutierrez (2009) 177 Cal.App.4th 654, review granted December 2, 2009, S176620;  People v. Miller (2010) 187 Cal.App.4th 902, review granted November 10, 2010, S186758;  see People v. Smith (2011) 193 Cal.App.4th 1..  FN3. People v. Rutterschmidt (2009) 176 Cal.App.4th 1047, review granted December 2, 2009, S176213;  People v. Dungo (2009) 176 Cal.App.4th 1388, review granted December 2, 2009, S176886;  People v. Lopez (2009) 177 Cal.App.4th 202, review granted December 2, 2009, S177046;  People v. Gutierrez (2009) 177 Cal.App.4th 654, review granted December 2, 2009, S176620;  People v. Miller (2010) 187 Cal.App.4th 902, review granted November 10, 2010, S186758;  see People v. Smith (2011) 193 Cal.App.4th 1.

FN4. Because these reports were not included in the record presented for this appeal (Cal. Rules of Court, rule 8.224), we obtained them from the Superior Court file for examination.   That examination reveals that they were prepared by Murray, and do not appear to contain testimonial documentation from any other analyst..  FN4. Because these reports were not included in the record presented for this appeal (Cal. Rules of Court, rule 8.224), we obtained them from the Superior Court file for examination.   That examination reveals that they were prepared by Murray, and do not appear to contain testimonial documentation from any other analyst.

FN5. The conclusion that not every fact on which Murray might have relied must be independently proved by live testimony is consistent with the rule that an expert witness's opinion may rest on inadmissible material that is of a type reasonably relied upon by such experts, but the expert's reliance on it does not transform the inadmissible material into independent proof of any fact.  (Evid.Code, § 801, subd. (b);  People v. Gardeley (1996) 14 Cal.4th 605, 618–619, and cited authorities.).  FN5. The conclusion that not every fact on which Murray might have relied must be independently proved by live testimony is consistent with the rule that an expert witness's opinion may rest on inadmissible material that is of a type reasonably relied upon by such experts, but the expert's reliance on it does not transform the inadmissible material into independent proof of any fact.  (Evid.Code, § 801, subd. (b);  People v. Gardeley (1996) 14 Cal.4th 605, 618–619, and cited authorities.)

MALLANO, P. J. ROTHSCHILD, J.