People v. Dungo

THE PEOPLE,

Plaintiff and Respondent,

v.

REYNALDO SANTOS DUNGO,

Defendant and Appellant.

No. S176886

Ct.App. 3 C055923

San Joaquin County

Super. Ct. No. SF100023A

California Supreme Court

Filed December 12, 2012

ORDER MODIFYING OPINION AND

DENYING PETITION FOR REHEARING

THE COURT:

The opinion in this case, filed October 15, 2012, and appearing at 55 Cal.4th 608, is modified as follows:

1.  The third full paragraph of text on page 613 of 55 Cal.4th is modified to read:

The police arrested defendant, and he eventually admitted killing Pina.  He said:  After he and Pina left the Torres?s home the night of April 14, 2006, they argued at Pina?s home.  Pina told him to leave and began throwing some of his belongings in a box.  She punched defendant lightly on the chin, pushed him, and threw some children?s toys at him.  He grabbed her by the throat and strangled her.  He then wrapped her body in a blanket, put it in her SUV, and drove around aimlessly, eventually abandoning the SUV on the Stockton street where the police later found it.

2.  Footnote 5, at page 620 of 55 Cal.4th, is modified to read: 

Defendant contends that even if the statements in nontestifying Dr. Bolduc?s autopsy report lacked the requisite formality, the Sixth Amendment?s confrontation right also applies to what Justice Thomas called ? ?technically informal statements? ? if those statements were ? ?used to evade the formalized process.? ?  (Williams, supra,567 U.S. at p. ___, fn. 5 [132 S.Ct. at p. 2260, fn. 5] (conc. opn. of Thomas, J.).)  Defendant argues that this exception applies here.  We need not decide the issue, however.  Justice Thomas has made clear, in the language quoted above, that any such exception applies only to the formality requirement for testimonial out-of-court statements.  But formality is not enough to make an extrajudicial statement testimonial; the statement must also have a primary purpose pertaining to the investigation and prosecution of a crime.  (People v. Lopez, supra, 55 Cal.4th 569, 582 [?all nine high court justices agree that an out-of-court statement is testimonial only if its primary purpose pertains in some fashion to a criminal prosecution? (italics added)].)  As we will explain (see text discussion, post), the autopsy statements upon which Dr. Lawrence relied for his opinions had no such primary purpose.

These modifications do not affect the judgment.

The petition for rehearing is denied.

Corrigan, J., is of the opinion the petition should be granted.