P. v. McWhorter

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Filed 10/14/09 IN THE SUPREME COURT OF CALIFORNIA THE PEOPLE, Plaintiff and Respondent, v. RICHARD ALLEN McWHORTER, Defendant and Appellant. ) ) ) ) ) ) ) ) ) ) S068536 Kern County Super. Ct. No. 65352A MODIFICATION OF OPINION THE COURT: The opinion filed August 6, 2009, and published at 47 Cal.4th 318, is modified as follows: At page 367, second full paragraph, delete the first sentence and accompanying citations reading, A trial court s finding that the Kelly foundational requirements have not been met is reviewed for an abuse of discretion. (People v. Jablonski (2006) 37 Cal.4th 774, 805; People v. Venegas (1998) 18 Cal.4th 47, 93.), and substitute the following: As we earlier observed, Kelly requires as a foundational matter that the reliability of a new scientific technique be established by a properly qualified expert. Such expert s qualifications are subject to review for abuse of discretion. (People v. Ashmus (1991) 54 Cal.3d, 932, 971.) We conclude on this record that the trial court did not abuse its discretion in excluding Perle s expert opinion testimony. The modification does not affect the judgment.

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