P. v. Arauz
Filed 7/3/13 P. v. Arauz CA2/6
NOT TO BE PUBLISHED IN
THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL
OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and
Respondent,
v.
ROBERTO ARAUZ,
Defendant and
Appellant.
2d Crim. No. B242843
(Super. Ct.
No. BA364023)
(Los
Angeles County)
Deoxyribonucleic acid
(DNA) evidence may or may not be testimonial under Crawford v. Washington (2004) 541 U.S. 36. It depends on
the circumstances. Here we hold that a
DNA report is not testimonial because defendant was not a suspect when the
report was produced.
A
jury found Roberto Arauz guilty of forcible
oral copulation (Pen. Code, § 288a, subd. (c)(2); count 1), forcible
sodomy (§ 286, subd. (c)(2), count 2) and forcible rape (§ 261, subd.
(a)(2), count 3).
title="">[1] The jury also found true as to each count
that Arauz inflicted great bodily injury on the victim (§ 12022.7) and
committed the offenses during the commission of a
subds. (a), (b) & (d)(4)).
On
appeal, Arauz contends that the DNA evidence admitted in this case constitutes
testimonial hearsay. Thus, he argues its
admission violated the Confrontation Clause of the Sixth Amendment to the
States Constitution (Confrontation Clause).
We affirm.
FACTS
On
July
18, 1999, Arcenia M. lived in an
apartment with her cousin and her husband.
Arcenia was home alone when she heard a knock on the door. She saw a man through the peephole. The man said he was looking for her
cousin. When Arcenia told the man her
cousin was not home, he asked for a glass of water.
Arcenia
opened the door and gave the man a glass of water. He drank the water and pushed his way inside
the apartment. He continually hit
Arcenia on her face and head. She tried
to run away, but he knocked her down.
When Arcenia was on the floor, he pulled down her underwear and
penetrated her rectum with his penis. He
ejaculated. He put a chair on top of her
and threatened to kill her if she said anything. He left the apartment and Arcenia called the
police.
An
ambulance took Arcenia to the hospital.
A nurse took swab samples from her anus and vagina and collected her
underwear. The samples were sealed in a
sexual assault kit and given to a police officer. Arcenia was unable to identify her attacker.
In
October 2001a police department criminalist sent a sample from the rectal swab
to Reliagene Laboratory for DNA testing.
The DNA profile was placed in the combined DNA Index System (CODIS).
In
2009 Arauz was arrested in an unrelated matter.
The police obtained a DNA sample from him. The sample matched the DNA profile of the man
who attacked Arcenia.
Linton Von Beroldingen
Linton
Von Beroldingen is a criminalist manager with the California Department of
Justice (DOJ). He is the administrator
for CODIS. He described the process in
which a DNA profile of an unknown person is matched to a CODIS profile.
A
DNA sample of an unknown suspect is derived from biological material collected
by local authorities at the crime scene.
The local authorities take the biological material to an accredited
laboratory where a DNA profile is created.
That profile is compared with DNA profiles contained in the CODIS
computer system. The profiles in the
CODIS computer system are derived from people who are legally required to
provide samples. If the computer finds a
match, the DOJ laboratory verifies the match and notifies the local
authorities. Verification involves
retesting the DNA sample the person was legally required to give.
Von
Beroldingen testified that the 2002 DNA profile developed in Arcenia's case was
uploaded to CODIS in 2002 and a match between that profile and a profile
developed from buccal swabs taken from Arauz in 2009 was found. Von Beroldinger did not perform any of the
tests himself. Instead, his testimony
was based on the report of the Reliagene DNA profile provided in 2002 and a
document entitled "Notification of California Cold Hit Program Database
Hit 0828S."
Because
the offenses occurred more than 10 years prior to the filing of charges against
Arauz, there was a question concerning the statute of limitations. To avoid the bar of the statute of
limitations, the People had to prove the biological evidence was analyzed for
DNA type no later than January 1, 2004. (§ 803, subd. (g)(1).) The 2002 Reliagene DNA report and the
notification of a cold hit were both admitted into evidence over Arauz's
objection.
Roger's Testimony
Aimee Rogers is a DNA analyst for Cellmark. Orchid Cellmark acquired Reliagene in 2008.
Rogers testified Cellmark received from police department
criminalists anal and vaginal swabs taken from Arcenia. Cellmark also received a buccal sample taken
from Arauz.
Rogers explained the DNA analysis process at Cellmark. First, a technician receives the evidence,
inspects the package to ensure the seals are intact and assigns an
identification number. Rogers did not have any contact with the evidence during this
phase of the process.
The
second phase is the extraction. Rogers personally extracted the DNA from cells taken from the
vaginal swab, but not any other items.
Following
extraction, the DNA profile is completed by robots, which are supervised by the
automation team. Rogers is not a member of the automation team.
Finally,
the DNA profile is analyzed by two analysts, one of whom was Rogers. Rogers found the DNA profile developed from material taken from
Arcenia's body matched the profile developed from Arauz's buccal swab.
Rogers testified the "most conservative" random match
probability of seeing the same profile in unrelated individuals is one in 1.278
quintillion. A quintillion is a million
times a billion. The Cellmark report was
not entered into evidence.
DISCUSSION
Arauz
contends his right to confront witnesses against him was violated by the admission
of expert testimony based on DNA analyses reported by non-testifying
declarants.
The
Confrontation Clause provides that "[i]n all criminal prosecutions, the
accused shall enjoy the right to be confronted with the witnesses against him .
. . ." This right applies to both
federal and state prosecutions. (
401, 406.)
In
Crawford v. Washington,
prosecution may not rely on "testimonial" hearsay
unless the witness is unavailable to testify and the defendant had a
prior opportunity for cross-examination.
The
court in Crawford did not define
testimonial, but stated: "'Testimony,' . . .
is typically '[a] solemn declaration or affirmation made for the purpose of
establishing or proving some fact.' [Citation.] An accuser who makes a formal statement to
government officers bears testimony in a sense that a person who makes a casual
remark to an acquaintance does not. The
constitutional text, like the history underlying the common-law right of
confrontation, thus reflects an especially acute concern with a specific type
of out-of-court statement. [¶]
core class of 'testimonial' statements exist:
'ex parte in-court testimony or its functional equivalent-that
is, material 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 . . .
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 v. Washington, supra,
541 U.S. at pp. 51-52.)
In Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305, the defendant
was charged with cocaine distribution.
As allowed under Massachusetts law, the prosecution introduced into
evidence certificates prepared by a laboratory analyst and sworn before a
notary public. The certificates stated
the substance found in plastic bags was cocaine.
The Supreme Court held
the certificates constituted testimonial hearsay, and were inadmissible
under Crawford. (Melendez-Diaz
v. Massachusetts, supra,
557 U.S. at p. 310.) The Court
stated the certificates were: "[1]
a '"solemn declaration or affirmation made for the purpose of
establishing or proving some fact[,]'" [2] functionally identical to
live, in-court testimony, [3] '"made under circumstances which would lead
an objective witness reasonably to believe that [it] would be available for use
at a later trial,"' [and [4] created] to provide 'prima facie evidence of
the composition, quality, and the net weight' of the . . . substance [found in
the plastic bags seized from the defendant's car.]" (Id. at
pp. 310 & 311.)
In Bullcoming v. New Mexico (2011) 564 U.S. __, [131 S.Ct. 2705; 180
L.Ed.2d 610] the defendant was charged with driving under the influence of
alcohol. As allowed under the law of New
Mexico, the prosecution introduced into evidence a laboratory analyst's
certificate stating that a blood sample taken from the defendant showed an
illegal level of alcohol.
The Supreme Court noted
that the certificate was not sworn before a notary public, as in
in a signed document that made reference to court rules providing for its
admission. The court concluded that the
"formalities" were more than adequate to qualify the certificate as
testimonial. (Bullcoming v. New Mexico,
supra, 131 S.Ct. at p. 2709.)
Most recently, in
[132 S.Ct. 2221; 183 L.Ed.2d 89], the defendant was charged with rape. Vaginal swabs containing semen were sent to a
Cellmark laboratory. At trial, a police
laboratory expert testified Cellmark analysts derived a DNA profile of the man whose
semen was on the swabs and sent the profile to the police laboratory. In the expert's opinion, the Cellmark DNA
profile matched the police laboratory's DNA profile obtained from the defendant
when he was arrested for an unrelated offense.
The Cellmark report was not introduced into evidence and no Cellmark
analyst testified.
Justice Samuel A. Alito,
Jr., wrote the plurality opinion in Williams. (Conc. Roberts, J., Kennedy, J. and Breyer,
J.) The opinion concluded the evidence
was not testimonial hearsay for alternative reasons. First, out-of-court statements related by an
expert solely for the purpose of explaining the assumption on which the opinion
rests are not offered for their truth. (
not testimonial because it was not prepared for the primary purpose of accusing
a targeted individual. The defendant was
not a suspect at the time the report was produced. (Ibid.)
Justice Thomas rejected
the plurality's reasoning but concurred in the result. Justice Thomas concluded that the evidence
did not violate the Confrontation Clause solely because the Cellmark report
lacked the requisite "solemnity" to be considered testimonial. (Williams
v. Illinois, supra, 183 L.Ed.2d
at pp. 133-134.)
Justice Kagan's
dissenting opinion (conc. Scalia, J., Ginsburg, J. and Sotomayor, J.) concluded
the evidence constitutes inadmissible testimonial hearsay. The dissent agreed with Justice Thomas's
criticism of the plurality. Testimony
relating to the Cellmark report was admitted for its truth, and a report may be
testimonial even if it was not prepared for the purpose of accusing a targeted
individual. The dissent disagreed,
however, with Justice Thomas's conclusion that the report was admissible
because it lacked formality in that it was neither sworn nor a certified
declaration of fact. The dissent
described Justice Thomas's view as giving constitutional significance to
minutia. (Williams v. Illinois, supra,
183 L.Ed.2d at p. 151 (dis. opn. Kagan, J.)
The California Supreme
Court considered testimonial hearsay in People
v. Lopez (2012) 55 Cal.4th 569.
There, the defendant was charged with vehicular manslaughter while
intoxicated. (§ 191.5, subd.
(b).) The prosecution introduced into
evidence a laboratory analyst's report on the defendant's blood-alcohol
level. The analyst who prepared the
report did not testify. Instead, a
colleague testified that he knew the proper procedure for testing for
blood-alcohol, that he was familiar with the procedure the analyst uses, and
that the report shows a blood alcohol concentration of 0.09 percent. The report and testimony were admitted over
the defendant's objection.
Our Supreme Court
concluded the evidence was properly admitted because the report was "not
made with the requisite degree of formality or solemnity to be considered
testimonial. [Citation.]" (People
v. Lopez, supra, 55 Cal.4th at p.
582.) The court distinguished
certificates were sworn to before a notary by the testing analysts. (Id. at
p. 585.) The court distinguished
formalized in a signed document that expressly referred to the court rules
providing for its admissibility. (
In People v. Dungo (2012) 55 Cal.4th 608, an expert's opinion
testimony as to the cause of death was based on objective facts observed by
another pathologist and recorded in an autopsy report. The report itself was not placed into evidence. Our Supreme Court concluded the Confrontation
Clause was not implicated for two reasons.
First, observations recorded in an autopsy report lack the requisite
formality. (Id. at pp. 619-620.) Second,
autopsy reports do not have the primary purpose of targeting an accused
individual. (Id. at p. 620.)
In People v. Holmes (2012) 212 Cal.App.4th 431, we held that the
forensic analysis relied on by DNA experts was not testimonial because the
unsworn, uncertified reports lacked formality.
Most recently, in
712, the trial court admitted into evidence four DNA reports and the testimony
of an expert based on the reports. The
testifying expert did not produce any of the reports. The Court of Appeal determined that the
evidence did not implicate the Confrontation Clause for two reasons. First, the reports lack the requisite
formality. Second, the primary purpose
of the report was not to accuse a targeted individual.
Like the blood-alcohol
report in Lopez, the report and
notification that formed the basis of Von Beroldingen's testimony lacked the
"requisite degree of formality or solemnity" to qualify as
testimonial. (People v. Lopez, supra,
55 Cal.4th at p. 582.) The documents
were not sworn before a notary as in Melendez-Diaz. (Id.
at p. 585.) Nor were the documents
formalized as signed documents that expressly referred to court rules expressly
providing for their admissibility, as in Bullcoming. (Ibid.)
In the alternative, like
the autopsy report in Dungo, the
report and notification here were not prepared for the primary purpose of
targeting an accused individual. (
In fact, as the plurality pointed out in Williams, the defendant (here Arauz) was not a suspect at the time
the report was produced. (
The DNA report Rogers
referred to in her testimony was not admitted into evidence. Rogers testified that after the DNA is
extracted, a machine produces the DNA profiles.
Our Supreme Court held that machine-generated printouts of blood alcohol
analyses do not implicate the Confrontation
Clause. (People v. Lopez, supra,
55 Cal.4th at p. 583.) Machine readouts
are not "'statements'" and machines are not
"'declarants.'" (
F.3d 225, 231.) For the same reasons,
machine-generated DNA profiles do not implicate the Confrontation Clause. Finally, Rogers did not testify to what some
other analyst concluded. Instead, Rogers
testified she personally analyzed the DNA profiles. Her conclusions were based on her own
analysis. Rogers's testimony does not
implicate the Confrontation Clause.
The
judgment is affirmed.
NOT
TO BE PUBLISHED.
GILBERT,
P. J.
We concur:
YEGAN,
J.
PERREN,
J.
Laura F. Priver, Judge
Superior Court County of Los Angeles
______________________________
Vanessa
Place, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Linda C. Johnson,
Supervising Deputy Attorney General, Toni R. Johns Esta Ville, Deputy Attorney
General, for Plaintiff and Respondent.
name="_ftn1" title=""> [1]
All statutory references are to the Penal Code
unless otherwise stated.
