P. v. Benitez

 

 

 

 

 

 

 

 

 

 

Filed 9/18/13  P. v. Benitez CA4/3

 

 

 

 

 

 

 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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

 

FOURTH APPELLATE
DISTRICT

 

DIVISION THREE

 

 
>

THE PEOPLE,         Plaintiff and Respondent,                     v.   SAMUEL BENITEZ,         Defendant and Appellant.

G041201            (Super. Ct. No. FWV034195)            O P I N I O N

                        Appeal from a judgment
of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">San
Bernardino County, Raymond L. Haight, III, Judge.  Affirmed in part and reversed in part.

                        Lewis A. Wenzell, under
appointment by the Court of Appeal, for Defendant and Appellant.

                        Kamala D. Harris, Attorney
General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland,
Assistant Attorney General, Lynne McGinnis, Andrew Mestman and Steve Oetting,
Deputy Attorneys General, for Plaintiff and Respondent.

 

*                      *                      *

                        A jury found defendant
Samuel Benitez guilty of resisting an officer (Pen. Code, § 69), href="http://www.fearnotlaw.com/">possession of methamphetamine (Health
& Saf. Code, § 11377, subd. (a)), and misdemeanor resisting an officer
(Pen. Code, § 148, subd. (a)).  The
court sentenced him to 3 years probation plus 180 days in custody to be served
on weekends. 

After defendant
objected on the ground of hearsay, the acting supervisor of the county’s crime
laboratory testified, based on notes made by an analyst, that a substance in
defendant’s possession was methamphetamine. 
A report produced by the analyst to the same effect was introduced into
evidence.  The analyst who conducted the
tests did not testify.  The supervisor
described the laboratory’s procedures and attested to the analyst’s
expertise.  

                        Defendant’s appeal
raises a single issue:  was he denied his
constitutional right to confrontation when the supervisor was permitted to
testify, using another’s analysis of the substance.  We previously issued an opinion affirming
defendant’s conviction based upon the decision of the California Supreme Court
in People v. Geier (2007) 41
Cal.4th 555 (Geier).  Geier
held that reports of DNA test results were not testimonial and therefore the
admission of such evidence was not prohibited by Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354, 158
L.Ed.2d 177] (Crawford).  (Geier,
supra, 41 Cal.4th at p. 605.)

                        Defendant filed his
first petition for review and while that petition was pending, the United
States Supreme Court decided Melendez-Diaz
v. Massachusetts (2009) 557 U.S. 305 [129 S.Ct. 2527, 174 L.Ed.2d 314] (>Melendez-Diaz).  In Melendez-Diaz
the court held that technicians’ certificates analyzing suspected illegal
substances constituted testimonial statements “rendering the affiants
‘witnesses’ subject to the defendant’s right of confrontation under the Sixth
Amendment.”  (Id. at p. 307.) 

                        The California Supreme
Court granted defendant’s petition for review and transferred the cause back to
our division with directions to vacate our judgment and reconsider the matter
in light of Melendez-Diaz.  After the parties submitted supplemental
briefs we reconsidered the matter as directed. 
We then reversed defendant’s conviction of possession of
methamphetamine. 

                        Thereafter, the Attorney
General petitioned the California Supreme Court for review.  The Supreme Court issued a grant and hold
order.  Subsequently, the Supreme Court
transferred the matter to us under California Rules of Court, rule 8.528(d)
with directions to vacate our decision and to reconsider the cause in light of >People v. Lopez (2012) 55
Cal.4th 569 (Lopez), >People v. Dungo (2012) 55
Cal.4th 608 (Dungo), >People v. Rutterschmidt (2012) 55
Cal.4th 650 (Rutterschmidt), and
Williams v. Illinois (2012) 567 U.S.
___ [132 S.Ct. 2221, 183 L.Ed.2d 89] (Williams).


                        The parties again
submitted briefs dealing with these cases. 
And, having reconsidered the cause in the light of the new cases, we
again reverse defendant’s conviction of possession of methamphetamine.  We affirm the remainder of the judgment.

 

FACTS

 

                        Vaughn, the managing
supervisor of the analyst who conducted the analysis and created the report,
testified based on the analyst’s notes that the substance in defendant’s
possession was 0.02 grams of methamphetamine. 
These notes were not introduced into evidence.  Vaughn produced a single page form entitled
“Request for Analysis” (RFA), which was introduced.  The RFA contains chain of custody information
and identifies material apparently submitted with the form as “Susp.
Methamphetamine.”  The “analysis” portion
of the RFA states, “The white crystalline substance (net weight 0.02 gram)
contains methamphetamine.”  The RFA was
signed by John Jermain, identified as “analyst,” under the statement “I hereby
certify the foregoing laboratory analysis to be true under penalty of perjury”
and contained an entry of the date and place of execution.  The place to enter the “date and time logged”
by the laboratory was left blank. 

                        Vaughn explained the
analyst’s notes in terms of their determinative significance and affirmed the
results were “all consistent with that substance being methamphetamine” and
“appear[ed] to be valid and unexceptional.” 
Vaughn testified that he knew the analyst complied with required
procedures, and that although he “was not there physically to observe” the
analyst create his notes, “procedures require us to write [our observations] at
or near the time [of analysis].” 
Throughout Vaughn’s testimony the defense maintained a “standing hearsay
objection.” 

 

DISCUSSION

 

>1. 
Sixth Amendment Background

                        A criminal defendant’s
Sixth Amendment right “[i]n all criminal prosecutions . . . to be
confronted with the witnesses against him” (U.S. Const., 6th Amend.) has been
implemented by the corresponding rule that “[t]estimonial statements of
witnesses absent from trial have been admitted only where the declarant is
unavailable, and only where the defendant has had a prior opportunity to
cross-examine.”  (Crawford, supra, 541 U.S. at p. 59.)  Until the United States Supreme Court’s
decision in Crawford, earlier cases
held a witness’s out-of-court statement may be admitted so long as it has
adequate indicia of reliability, i.e., falls within a “firmly rooted hearsay
exception” or bears “particularized guarantees of trustworthiness.”  (Ohio
v. Roberts (1980) 448 U.S. 56, 66 [100 S.Ct. 2531, 65 L.Ed.2d 597]) (>Roberts).  Crawford,
a decision by seven justices, concurred in by two others, held that the
Confrontation Clause of the Sixth Amendment precluded introduction into
evidence of a statement made by a witness, unable to appear in person, in
response to a police interrogation.  The
court stated “[t]he Constitution prescribes a procedure for determining the
reliability of testimony in criminal trials, and we, no less than the state
courts, lack authority to replace it with one of our own devising.”  (Id.
at p. 67.)  And thus, “[w]here
testimonial evidence is at issue, however, the Sixth Amendment demands what the
common law required:  unavailability and
a prior opportunity for cross-examination.” 
(Id. at p. 68.)  Unfortunately, the court added “[w]e leave
for another day any effort to spell out a comprehensive definition of
‘testimonial.’”  (Ibid.)  And therein lies the
rub.  Chief Justice Rehnquist (joined by
Justice O’Connor), although concurring in the Crawford decision, dissented to the extent the opinion overruled >Roberts. 
He noted that the majority opinion, “casts a mantle of uncertainty over
future criminal trials in both federal and state courts.”  (Crawford,
supra, 541 U.S. at p. 69 [124
S.Ct. 1354] (conc. opn. of Rehnquist, C. J.)

 

>2. 
Cases Following Crawford

                        Cases following >Crawford, both in the United States
Supreme Court and in the California Supreme Court have struggled with the
“mantle of uncertainty” noted by Chief Justice Rehnquist in determining what is
and what is not “testimonial evidence.” 
Three United States Supreme Court decisions dealing with “testimonial
evidence” followed Crawford:  Melendez-Diaz,
supra, 557 U.S. 305, Bullcoming v.
New Mexico (2011) 564 U.S. __ [131 S.Ct. 2705, 180 L.Ed.2d 610] (>Bullcoming) and Williams, supra, 567 U.S. __ [132 S.Ct. 2221].

                        In Melendez-Diaz, the United States Supreme Court held, five to four,
that laboratory analyses contained in sworn “‘certificates of analysis’”
identifying a substance found in defendant’s possession as “‘[c]ocaine,’” were
not admissible under the rule announced in Crawford.  (Melendez-Diaz,
supra, 577 U.S. at pp. 308, 311.)  >Bullcoming, another five to four
decision, came to a similar result in holding that a laboratory analyst’s
certificate should not have been admitted. 
(Bullcoming, supra, 564 U.S.
at p. __ [131 S.Ct. at p. 2713].)  But in
Williams, the court concluded, again
five to four, that a DNA profile obtained from vaginal swabs of rape victim,
subsequently used to identify the defendant, were not subject to the >Crawford exclusion.  (Williams,
567 U.S. at p. __ [132 S.Ct. at p. 2240].)

                        Although all three cases
were decided by a majority of five justices, the justices individual rationales
for the decisions did not mesh.  Justice
Thomas consistently expressed his view that “‘the Confrontation Clause is
implicated by extrajudicial statements only insofar as they are contained in
formalized testimonial materials, such as affidavits, depositions, prior
testimony, or confessions.’”  (>Melendez–Diaz, supra, 557 U.S. at p. 329
(conc. opn of Thomas, J.)  This view is
not shared by any other justice.  Those
who agreed with Crawford, considered
a number of factors in addition to the formality or solemnity of the statement
at issue, including evidence that is “functionally identical to live, in-court
testimony” (id. at pp. 310-311),
evidence that was “‘made under circumstances which would lead an objective
witness reasonably to believe that [it] . . . would be available for use at a
later trial’” (id. at p. 311), and
evidence that was created to “provide ‘prima facie evidence’” of a fact to be
proved at the trial (ibid).

 

>3. California Cases

                        This absence of a single
majority statement of the rules to be applied to determine what is
“testimonial” under Crawford has also
resulted in the expression of a large number of viewpoints by members of the
California Supreme Court.  But,
fortunately, a majority of the members of the court have agreed to apply a
fairly straightforward rule in deciding these issues.  In each majority opinion in the three cases (>Lopez, Dungo, and Rutterschmidt),
all authored by Justice Kennard, the court expresses the view that there are
two criteria that must be satisfied to invoke the sixth Amendment’s
Confrontation Clause:  “First, to be
testimonial the out-of-court statement must have been made with some degree of
formality or solemnity.”  (>Lopez, supra, 55 Cal.4th at p.
581)  “Second, . . . an out-of-court
statement is testimonial only if its primary purpose pertains in some fashion
to a criminal prosecution.”  (Id.
at p 582.)  Dungo is to the same effect. (See Dungo, supra, 55 Cal.4th at p. 619. 
Although Rutterschmidt noted
the same issues (see Rutterschmidt,
supra, 55 Cal.4th at p. 660), the decision did not decide whether the
particular report was improperly admitted because the court concluded that
“[i]n light of the overwhelming evidence against defendant,” any error would
have been harmless.  (>Id. at p. 661.)  Although there may be questions about the
formula expressed by the majority (see dissent of Justice Liu in >Lopez, supra, 55 Cal.4th at pp. 590-607
and Justices Corrigan and Liu in Dungo,
supra, 55 Cal.4th at pp. 633-649), Auto
Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, requires us
to follow the law as stated by a majority of our high court.

 

>4. 
The Report was Erroneously Admitted

                        As we noted, a form
entitled “Request for Analysis” (RFA), was introduced into evidence.  The “analysis” portion of the RFA states,
“The white crystalline substance (net weight 0.02 gram) contains
methamphetamine.”  The RFA was signed by
John Jermain, identified as “analyst,” under the statement “I hereby certify
the foregoing laboratory analysis to be true under penalty of perjury” and
contains an entry of the date and place of execution.  The RFA provides the prima facie evidence
that the substance found on defendant was in fact a prohibited substance.

                        Using the two-step analysis
of the California Supreme Court cases, it is obvious that both criteria are
met.  The statement was made “with some
degree of formality or solemnity.”  (>Lopez, supra, 55 Cal.4th at p.
581.)  It was a declaration under penalty
of perjury, the equivalent of an affidavit. 
Furthermore, the primary purpose for its preparation “pertains in some
fashion to [defendant’s] criminal prosecution.” 
There was no purpose for the preparation of the RFA except to provide
the necessary evidence to establish defendant was guilty of possessing
cocaine.  Furthermore, the type of report
involved in this case was essentially equivalent to the certificate in >Melendez-Diaz, supra, 557 U.S. at p. 308. 
There the court held “[t]here is little doubt that the documents at issue
in this case fall within the ‘core class of testimonial statements.’”  (Id.
at p. 310.)

 

4.  No Harmless Error

Confrontation
Clause violations are subject to harmless error analysis under >Chapman v. California (1967) 386 U.S.
18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705]. 
This standard provides that “an otherwise valid conviction should not be
set aside if the reviewing court may confidently say, on the whole record, that
the constitutional error was harmless beyond a reasonable doubt.  [Citations.]” 
(Delaware v. Van Arsdall
(1986) 475 U.S. 673, 681 [106 S.Ct. 1431, 89 L.Ed.2d 674].)  Factors to consider “include the importance
of the witness’ testimony in the prosecution’s case, whether the testimony was
cumulative, the presence or absence of evidence corroborating or contradicting
the testimony of the witness on material points, the extent of
cross-examination otherwise permitted, and, of course, the overall strength of
the prosecution’s case.  [Citations.]”  (Id.
at p. 684.)

Here, the
admission of the RFA and Vaughn’s testimony were crucial to establishing the
substance was methamphetamine.  It cannot
be said that, beyond a reasonable doubt, the conviction would have ensued
irrespective of the error in admitting the evidence.  The Attorney General
argues the error was harmless because Vaughn, the managing supervisor of the
analyst who prepared the RFA testified based on other notes prepared by the
analyst.  These notes were not introduced
into evidence.  Although Vaughn testified
in some detail about the procedures used by the laboratory, his conclusion that
these procedures resulted in the substance being identified as methamphetamine
were solely based on the analyst’s report. 
They were the conclusions of the analyst and not of Vaughn.  Defendant preserved his objection to this
evidence by relying on the hearsay rule.

No similarly
determinative evidence was properly introduced to establish that the substance found on defendant’s person was
methamphetamine.  It is obvious the jury
gave substantial weight to the scientific testing performed.  Thus, admission of the RFA and
Vaughn’s testimony based on the analyst’s laboratory notes was not harmless
error.  Accordingly, the conviction for possession of
methamphetamine must be reversed.

 

DISPOSITION

 

                        The portion of the
judgment finding defendant guilty of possession of methamphetamine is
reversed.  The judgment is affirmed in
all other respects.

 

 

 

 

                                                                                    RYLAARSDAM,
J.

 

WE CONCUR:

 

 

 

O’LEARY, P.
J.

 

 

 

BEDSWORTH, J.