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					Filed 3/30/11 P. v. Kwon CA2/1
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE

THE PEOPLE,                                                          B224094

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA347805)


         Defendant and Appellant.

         APPEAL from judgment of the Los Angeles Superior Court. George G. Lomeli,
Judge. Affirmed.
         Laura S. Kelly, by appointment of the Court of Appeal, for Defendant and
         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

         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

         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.

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

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.

       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

2     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.

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. 51−52.)
       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

3      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.

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

4      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.

       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.
       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.
       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.

       The judgment is affirmed.

                                                                CHANEY, J.
We concur:

              MALLANO, P. J.

              ROTHSCHILD, J.

5      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.)


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