Filed
9/16/13 P. v. Bowman CA5
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
KEVIN ALAN BOWMAN,
Defendant and
Appellant.
F058082
(Super.
Ct. No. BF123975A)
APPEAL from
a judgment of the Superior Court of
Louis P. Etcheverry, Judge.
Richard Jay
Moller, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and
Daniel B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Appellant
Kevin Alan Bowman was convicted after jury trial of
& Saf. Code, § 11379, subd. (a)) and
& Saf. Code, § 11364, a misdemeanor).
He pled guilty to using a false license plate (Veh. Code, § 4462.5,
a misdemeanor) and operating a vehicle with no license plate (Veh. Code,
§ 5200, an infraction). Other
counts and enhancement allegations not relevant to this appeal were dismissed
or found not true. He was sentenced to
the upper term of four years in prison on the felony count, with concurrent
terms on the misdemeanors. The court
imposed various fees and fines, including four assessments totaling $125
pursuant to Government Code section 70373.
Appellant contends that testimony
establishing the nature of the controlled substance was admitted in violation
of his Sixth Amendment right to confront
witnesses. He also asserts, and
respondent concedes, that the assessments imposed pursuant to Government Code
section 70373 are impermissible because his crimes were committed prior to the
statute’s effective date.
In March 2010, this court issued a
partially published opinion rejecting appellant’s
respondent’s concession pertaining to the challenged assessments. At that time, the most recent decisions by
the Supreme Courts of the United States and the State of California addressing
the Sixth Amendment issue were Melendez-Diaz
v. Massachusetts (2009) 557 U.S. 305 (Melendez-Diaz)
People v. Geier (2007) 41
Cal.4th 555 (Geier). We modified the judgment to omit the
challenged fines and affirmed the judgment as modified.
The California Supreme Court
granted review. (See
published at 182 Cal.App.4th 1616, depub. Jun. 9, 2010, upon grant of
review.) On May 22, 2013, it transferred
the case back to this court with instructions to reconsider our original
opinion in light of People v. Lopez
(2012) 55 Cal.4th 569 (Lopez),
v. Illinois (2012) 567 U.S. __ [132 S.Ct. 2221] (Williams). Having conducted
the required reconsideration, we again reject appellant’s Sixth Amendment claim
but conclude that the challenged assessments were properly imposed. The judgment will be affirmed.
As relevant
to this appeal on June 6, 2008, Bakersfield Police Officer Chad Haskins stopped
the vehicle appellant was driving for traffic infractions. Officer Haskins testified that appellant told
him that “he does have some marijuana in the trunk of the vehicle, however, he
had a medical marijuana card.†Appellant
was not able to provide the card to the officer. The car was searched. A digital scale and a police scanner were
found in the center console and a black bag was found in the trunk. The black bag contained three bags of marijuana
and a black canister. The black canister
held a plastic zip-lock baggie containing a crystalline substance that appeared
to be methamphetamine, as well as a clear glass pipe of the type used for
smoking methamphetamine and six empty baggies.
Appellant was searched and $785 was found on his person. Officer Haskins formed the opinion that
appellant was not under the influence of methamphetamine. The items found in the car and on appellant’s
person were seized. The crystalline
substance was sent to the Kern County Regional Crime Lab for analysis.
On the
first day of trial, the prosecutor informed the court that the criminalist who
conducted chemical testing on the crystalline substance was out of the state
for an extended period for training. The
prosecutor requested “that Jeanne Spencer or an alternate substitute
criminalist be used regarding the analysis.â€
When defense counsel was asked by the court whether he objected to the
substitution, counsel responded: “As
long as the person will have first-hand knowledge of the testing
procedure.†The court responded: “I understand the rules of evidence. Whoever testifies is going to have to be able
to -- their testimony will be governed by the Evidence Code.†After further discussion about the nature of
the testimony, the court informed defense counsel that the court did not understand
the objection. Counsel responded: “Nothing else. I have no complaint about it, sir.â€
Spencer
testified that she was a supervisor at the Kern County Regional Crime
Laboratory and described her experience and training. She stated that she had supervised the
training and the current work of Chris Snow, the criminalist who performed the
testing in the present case. Spencer
described the protocols and procedures for testing suspected controlled
substances and for reporting the results of that testing. The prosecutor did not move to have Spencer
qualified as an expert witness.
Spencer
testified that she regularly reviewed the contemporaneous notes required to be
taken by her criminalists as they performed various steps of the testing, and
that she had reviewed the notes in this case as part of her regular supervision
of Snow’s work. The notes contained no
indication that anything unusual occurred in the testing. Spencer identified Snow’s laboratory report
concerning his test results and stated that it appeared to be in standard
format. She stated laboratory reports
are made near the time the results of the testing become known and that they
are reliable and trustworthy.
The
prosecutor asked Spencer: “And what were
the results of the analysis of the evidence submitted?†Defense counsel objected on the basis the
answer called for hearsay and that there was not sufficient foundation to
permit the testimony. The court
overruled the objections. Spencer then
testified the “material that was examined contained methamphetamine.†Counsel interposed similar objections when
Spencer was asked about the weight and usable quantity of the substance. The objections were overruled. Spencer was not asked, and did not testify,
that based on her own separate abilities, she too concluded that the substance
at issue contained methamphetamine.
On
cross-examination, Spencer acknowledged that she did not personally perform any
of the weighing or testing of the suspect substance. She testified, however, that in her review of
Snow’s notes and his laboratory report, she “would make sure that the results
he put down for his tests basically support the conclusion he drew from those
results.†Defense counsel then questioned
Spencer about several steps in the analysis.
He closed the examination by having Spencer reiterate that she had not
personally conducted the testing. After
brief redirect, Spencer was excused as a witness.
At the
close of the People’s case, the prosecutor attempted to move the laboratory
report into evidence. Defense counsel
renewed his hearsay and lack-of-foundation objections. The court stated those objections would not
be sustained but it had a practice of not allowing laboratory reports into
evidence.
The next
day, defense counsel moved to strike Spencer’s testimony based on the
witnesses. He said the Sixth Amendment
guaranteed appellant the right to cross-examine the analyst who had performed
the testing. The court stated: “I allowed that evidence in because there had
been proper foundation given as to business records. And you did have the opportunity to
cross-examine the person who reviewed that particular document and you
did. So -- but I will note that
objection for the record and overrule it.â€
On June 13,
2013, this court granted appellant’s request to augment the record with the
laboratory report and case notes that were prepared by Snow and reviewed by
Spencer but not introduced into evidence (People’s exhibit No. 2). People’s exhibit No. 2 consists of a one-page
“Report of Laboratory Analysis†(laboratory report) and a one page “Kern County
Laboratory Analysis Note Sheet†(note sheet).
Both documents are unsigned.
Neither document has any certification or attestation affixed to
it.
The note
sheet reflects that on June 13, 2008, analyst Chris Snow tested item No. 4,
which was 13.66 grams of “white crystalline material in clear plastic ziplock,â€
to determine if the material contains methamphetamine. Two screening tests are listed: marquis and nitroprusside. The color “orange-brown†appears after the
marquis test and the color “deep blue†appears after the nitroprusside
test. Two confirmatory tests are
listed: gold chloride and hexachloroplatinic. The phrase “roach legs†appears after the
gold chloride test and the phrase “feathery plumes†appears after the
hexachloroplatinic test. The note sheet
reflects that no amount of the material was retained after testing.
The
laboratory report reflects that the drug analysis conducted by Chris Snow on
item No. 4 produced the result: item
contains “methamphetamine (schedule II).â€
A typed notation on the bottom of the laboratory report provides: “Report reviewed by Jeanne Spencer on 6/13/2008
at 4:31:05 PM.â€
DISCUSSION
I. Appellant’s
Confrontation Right Was Not Infringed By Spencer’s Testimony About The Results
Of Tests That Snow Performed.
“Under the
Sixth Amendment to the United States Constitution, a defendant in a criminal
trial has the right to confront and cross-examine adverse witnesses (the
Confrontation Clause). This provision
bars the admission at trial of a testimonial statement made outside of court
against a defendant unless the maker of the statement is unavailable at trial
and the defendant had a prior opportunity to cross-examine that person. [Citations.]â€
(People v. Barba (2013) 215
Cal.App.4th 712, 720 (Barba).)
Appellant
contends that the trial court infringed his Sixth Amendment right to
confrontation by permitting Spencer to testify about the results of tests that
were conducted by Snow. Respondent
argues, inter alia, that the laboratory report and note sheet lack sufficient
formality and solemnity to be testimonial.
Therefore, appellant’s confrontation rights were not implicated by
Spencer’s testimony which was based, in part, on the contents of these
documents. We agree with respondent on
this point and reject appellant’s constitutional challenge for this reason.
United States and the State of
California.
To what
extent the Confrontation Clause
permits witnesses to testify in criminal trials about the results of scientific
testing that they did not personally conduct has been the subject of several
recent decisions by the United States Supreme Court and the California Supreme
Court. The courts have fractured on the
issue, producing a complicated array of majority, plurality and dissenting
opinions.
The
relevant line of authority begins with Crawford
v. Washington (2004) 541 U.S. 36, in which “the United States Supreme Court
held that the introduction of ‘testimonial’ hearsay statements against a
criminal defendant violates the Sixth Amendment right to confront and cross-examine
witnesses, unless the witness is unavailable at trial and the defendant has had
a prior opportunity for cross-examination.â€
(People v. Vargas (2009) 178
Cal.App.4th 647, 653.) “Under
about whether the admission of an out-of-court statement violates the
confrontation clause is whether the out-of-court statement is testimonial or
nontestimonial.†(Geier, supra, 41 Cal.4th at p. 597.) While the court did not define or state what
constitutes a testimonial statement for purposes of the confrontation clause,
it observed:
“Various formulations of this 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 ... 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].†(
51-52.)
In
California Supreme Court held that the Confrontation Clause did not prohibit a
laboratory director from testifying about the results of DNA tests that were
conducted by another analyst. “[T]he
testimonial only if three requirements were all met: (1) it was made to a law enforcement officer
or by a law enforcement officer or agent; (2) it describes a past fact related
to criminal activity; and (3) it will possibly be used at a later trial.†(Barba,
supra, 215 Cal.App.4th at p. 721.)
Next, in
United States Supreme Court considered whether the admission of a sworn and
notarized affidavit known as a “certificate of analysis†was properly allowed
in evidence in order to prove that a substance tested positive as cocaine. “The Melendez-Diaz
court held that the affidavits fell within the core class of testimonial
statements—such as depositions, prior testimony, declarations, and
affidavits—whose admission violates the Confrontation Clause. [Citation.]
Therefore, the analysts were witnesses and their affidavits were
testimonial, meaning that the defendant had a right to ‘confront’ them at his
trial unless the analysts were unavailable for trial and the defendant had a
previous opportunity to cross-examine them.â€
(Barba, supra, 215 Cal.App.4th
at pp. 722-723.)
In
__ [131 S.Ct. 2705] (Bullcoming), the
United States Supreme Court considered one of the issues left open in
conducted a laboratory analysis could testify about the results and report of
the person who actually conducted the test.
Bullcoming involved testing of
blood for alcohol level. “The analyst
recorded his results on a state-prepared form titled ‘Report of Blood Alcohol
Analysis.’ [Citation] The report included a ‘certificate of
analyst,’ affirming that the sealed sample he tested was received at the
laboratory intact, with the seal unbroken; the statements made by the analyst
were correct; and that he had followed the procedures set out on the back side
of the form.... [U]nder the heading ‘certificate of reviewer,’ a state lab examiner
who reviewed the analysis certified that the person who tested the sample and
prepared the report was qualified to do so and had followed the established
procedures for conducting the test.†(
723.) At trial, an analyst who was
familiar with the laboratory’s procedures but had not participated in or
observed the testing on Bullcoming’s sample testified about the testing results
and report. (Ibid.)
Justice
Ginsberg delivered a four-part plurality opinion holding that the analyst’s
certificate was a testimonial statement.
Part III of the Bullcoming
decision, which commanded a majority of the court, explained why the analyst’s
certificate was testimonial. “Even
though the analyst’s certificate was not signed under oath, as was the case in
similar in all material respects .... As
in Melendez-Diaz, a police officer
provided a sample to a lab for testing to assist in a police
investigation. An analyst tested the
sample and prepared a certificate concerning the results. Finally, the certificate was formalized in a
signed document that was sufficient to qualify the analyst’s statements as
testimonial despite the absence of notarization present in Melendez-Diaz.†(
725.)
Justice
Sotomayor authored a concurring opinion in which she noted that formality is
not the only test to determine whether a document is testimonial. She pointed to four additional circumstances
demonstrating that the analyst’s certificate was testimonial. First, the state did not suggest an alternate
primary purpose for the report, such as contemporaneous medical reports. Second, the person testifying about the
analyst’s certificate did not supervise the analyst or review the testing. Third, the testifying witness was not an
expert who was asked for his or her independent opinion about underlying
testimonial reports that were not themselves admitted into evidence. Fourth, the testing did not involve only
machine generated results. (
725-726.)
Next, in
2221], the United State Supreme Court considered whether the Confrontation
Clause prohibited admission of testimony by a police laboratory forensic
specialist who conducted a computer search of DNA profiles in the state police
database to see if any matched the DNA profile of the semen donor from a rape
victim’s vaginal swabs. Williams’s DNA
profile, which had been created from a blood sample taken in conjunction with
an arrest on unrelated charges, matched the semen donor’s DNA profile. A nontestifying analyst, who was employed by
Cellmark, tested the vaginal swabs and produced the semen donor’s DNA profile. The forensic specialist testified about her
conclusions based on a DNA report produced by the Cellmark analyst. The report itself was not entered into
evidence. (Id. at pp. ___-___ [32 S.Ct. at pp. 2222-2223; Barba, supra, 215 Cal.App.4th at p. 727.)
The
conviction. Justice Alito authored a
plurality opinion holding that testimony about the DNA tests did not violate
the confrontation clause for two reasons:
(1) testimony about the report was not admitted for its truth but only
to explain the basis of the analyst’s independent expert opinion that
Williams’s DNA profile matched the sperm donor’s profile; and (2) the report
was not testimonial because it was prepared for the primary purpose of finding
a rapist who was still at large, not for targeting an accused individual. (Barba,
supra, 215 Cal.App.4th pp. 727-728.)
Justice Thomas’ concurring opinion reasoned that the report was not
testimonial, even though the analyst’s testimony was premised on the truth of
the Cellmark Labs report, because the report “‘lack[ed] the solemnity of an
affidavit or deposition.’
[Citation.]†(
In 2012,
the California Supreme Court issued a trio of companion cases interpreting the
supra, 55 Cal.4th 608, Rutterschmidt,
supra, 55 Cal.4th 650.
In
lab report, created by a colleague whom he had trained, concluding that the
defendant’s blood alcohol level was 0.09.
The criminalist testified that, based on his own separate abilities, he
too concluded the defendant’s blood alcohol level was 0.09. The lab report was admitted into
evidence. Justice Kennard authored the
lead opinion, in which four justices concurred.
It reasoned, “[W]e need not consider the primary purpose of
nontestifying analyst Peña’s laboratory report on the concentration of alcohol
in defendant’s blood because, ... the critical portions of that report were not
made with the requisite degree of formality or solemnity to be considered
testimonial.†(Lopez, supra, at p. 582.)
“[T]he portions of the lab report that contained nothing
other than the machine-generated results of the test performed were not
sufficiently formal or solemn to be testimonial under the Confrontation Clause
because they lacked any attestations or assertions of validity, and because
there was no way to cross-examine the machine that generated those
results. [Citation.] The same was true as to portions of the
report that functioned like a chain of custody report by showing that it was
the defendant’s sample being tested.
Those notations ... were ... nothing more than an informal record of
data for internal purposes.†(
729.)
In
pathologist gave expert witness testimony that the victim had been
strangled. His opinion was based on
facts contained in an autopsy report, which had been prepared by another
pathologist. The report itself was not
placed in evidence. As in
opinion, in which four justices concurred, holding that the autopsy report was
not testimonial. She reasoned that “the
expert testified as to only the physical observations recorded in the autopsy
report, not as to the conclusions reached by the pathologist who conducted the
autopsy and prepared the report. Such
observations lack the formality required under the Confrontation Clause.†(Barba,
supra, 215 Cal.App.4th at p. 730.)
Also, autopsy reports serve several purposes and do not have the primary
purpose of targeting an accused individual.
Justice Chin authored a concurring opinion, joined by three justices, in
which he explained that the primary purpose of the autopsy report was to
describe the condition of the victim’s body.
(Ibid.)
Finally, in
Rutterschmidt, supra, 55 Cal.4th 650,
a lab director gave expert witness testimony that, based on lab tests conducted
by others, the victims had been drugged.
The court unanimously concluded that any possible Confrontation Clause
error was harmless beyond a reasonable doubt due to overwhelming evidence that
the defendants murdered the victims. (
730-731.)
B. Appellate court decisions applying this
line of authority.
Several
districts of the California Court of Appeals have published decisions applying
the line of authority developed by the United States Supreme Court and the
California Supreme Court. These
decisions include People v. Holmes
(2012) 212 Cal.App.4th 431 (Holmes),
1116 (Steppe) and
In
appellate court decided that the Confrontation Clause did not bar testimony by
“[t]hree supervising criminalists from these labs [who] offered opinions at
trial, over defense objection, based on DNA tests that they did not personally
perform. They referred to notes, DNA
profiles, tables of results, typing summary sheets, and laboratory reports that
were prepared by nontestifying analysts.
None of these documents was executed under oath. None was admitted into evidence. Each was marked for identification and most
were displayed during the testimony.
Each of the experts reached his or her own conclusions based, at least
in part, upon the data and profiles generated by other analysts.†(Id.
at p. 434.) The Holmes court concluded that these documents were not testimonial,
reasoning: “The forensic data and
reports in this case lack ‘formality.’
They are unsworn, uncertified records of objective fact. Unsworn statements that ‘merely record
objective facts’ are not sufficiently formal to be testimonial.†(Id.
at p. 438.)
In
a laboratory technical reviewer’s independent opinion that the defendant’s DNA
profile matched DNA that was retrieved from certain evidence. The Steppe
court reasoned that, under Williams
and Lopez, the DNA report was not
formal enough to be testimonial. Also,
the raw data and DNA report are materials that are reasonably relied on by
experts and the jury knew that the nontestifying analyst and the reviewer
reached the same conclusion. (
Similarly,
in Barba, supra, 215 Cal.App.4th 712, the appellate court held that admission
of four DNA test reports that were prepared by nontestifying analysts and
testimony by a laboratory director about the test results did not infringe
Barba’s confrontation right. It provided
three reasons for this determination.
First, the “DNA reports lack the solemnity and formality required to be
deemed testimonial.†(Id. at p.
742.) Second, the primary purpose of the
DNA test materials was not an accusation of a targeted individual. Finally, the accusatory opinions were made by
the director, who was qualified as an expert and conveyed an independent
opinion about the test results. (
laboratory report and note sheet lack the formality and solemnity required to
be testimonial.
The Barba court
aptly observed that “[m]aking sense out of the case law in this area is to some
extent an exercise in tasseomancy.â€
name="_ftnref2" title="">[2] (Barba,
supra, 215 Cal.App.4th at p.
740.) Yet, recent appellate decisions
have distilled and applied a principle that is agreed upon by a majority of the
justices of the Supreme Courts of the United States and California Supreme
Court: a document containing the results
of scientific testing is considered testimonial for purposes of the
Confrontation Clause only if it
possesses the attributes of formality and solemnity. (Holmes,
supra, 212 Cal.App.4th at p. 436; Steppe,
supra, 213 Cal.App.4th at p. 1125; Barba,
supra, 215 Cal.App.4th p. 742.) The
Supreme Court has extracted two critical components from the ‘widely divergent’
views of the United States Supreme Court justices. [Citations.]
To be ‘testimonial,’ (1) the statement must be ‘made with some degree of
formality or solemnity,’ and (2) its ‘primary purpose’ must ‘pertain[] in some
fashion to a criminal prosecution.’
[Citations.]... [¶] It is now settled in California that a statement is
not testimonial unless both criteria are met.â€
(Holmes, supra, at pp. 437-438.)
Appellant
argues that lack of formality is not determinative and one must “look at the
process that produced the statements ... in order to discern not only the
statements’ ‘form’ but also their ‘function’ and ‘purpose.’†This argument fails because it is based on
the dissenting opinions in Williams and
Lopez. (Williams,
supra, 567 U.S. at p. ____ [132 S.Ct. at p. 2276] (dis. opn. of Kagan, J.);
Lopez, supra, 55 Cal.4th at p. 598
(dis. opn. of Liu, J.).) “That a
statement is prepared for use at trial is not alone sufficient to render it
‘testimonial’ under any formulation of that term yet adopted by a majority of
the United States Supreme Court justices or the California Supreme Court. It must also be ‘formalized.’ [Citation.]â€
(Holmes, supra, 212
Cal.App.4th at p. 436.)
Documents
containing the results of scientific testing that have been deemed sufficiently
formal and solemn to be testimonial include a chemical analyst’s affidavit and
a blood alcohol report that included a signed analyst’s certificate. (Melendez-Diaz,
supra, 557 U.S. 305; Bullcoming,
supra, 564 U.S. ____ [131 S.Ct. 2705].)
In contrast, the California Supreme Court concluded that an autopsy
report and a laboratory report analyzing blood alcohol concentration data were
not testimonial due to lack of formality.
(Dungo, supra, 55 Cal.4th at
p. 621; Lopez, supra, 55 Cal.4th at
p. 582.) Several California appellate
courts reached this same conclusion with respect to unsigned and uncertified
DNA test reports. (Holmes, supra, 212 Cal.App.4th at p. 438; Steppe, supra, 215 Cal.App.4th at pp. 1126-1127;
742.)
In this case, the lab report and
note sheet that Spencer referred to during her testimony do not contain any of
the following: (1) the analyst’s signature; (2) the analyst’s initials; (3) any
assertion of validity or accuracy; (4) any certification; (5) any attestation;
or (6) any oath. Neither of these
documents was an affidavit or other formalized testimonial material. The lab report and note sheet are closely
analogous to unsworn and uncertified materials that were deemed insufficiently
formal to be testimonial in Williams,
Lopez, Dungo, Holmes,
applying these decisions, we hold that the lab report and case notes are not
testimonial. Consequently, Spencer’s testimony
about scientific testing performed by Snow did not infringe appellant’s Sixth
Amendment confrontation right.
Government Code Section 70373 Assessments Were Properly Imposed.
Appellant’s crimes were committed
in 2008. He was convicted of these
offenses in March 2009. At sentencing,
the court imposed four assessments totaling $125 pursuant to Government Code
section 70373.
Appellant argues that these
assessments are impermissible because his crimes were committed before the
effective date of Government Code section 70373. This point has been settled adverse to
appellant’s position. (
Cal.App.4th 1410, 1413-1415; People v.
Davis (2010) 185 Cal.App.4th 998, 1000-1001.)
Government Code section 70373,
which became effective January 1, 2009, provides for assessments on every
conviction in order to provide funding for court facilities projects. (People
v. Castillo, supra, 182 Cal.App.4th at pp. 1412-1413.) The history and substance of this statute
demonstrate that it is not a penal statute, in terms or effect. Therefore, “the rules against
application of a new statute are not offended where the offense was committed
before the effective date but the plea, verdict or sentence occurred after that
date.†(People v. Davis, supra, 185 Cal.App.4th at p. 1000.) Since appellant’s convictions occurred after
the statute’s effective date, the challenged assessments were properly imposed.
(Castillo,
supra, at pp. 1413-1415.)
DISPOSITION
The
judgment is affirmed.
_____________________
LEVY, Acting P.J.
WE CONCUR:
_____________________
GOMES, J.
_____________________
KANE, J.
name="_ftn1" title="">[1] Respondent contends appellant waived any Sixth Amendment
claim by failing to object on this basis when Spencer testified. In our initial opinion, we decided to resolve
this issue on the merits because: (1) the record was somewhat ambiguous; (2)
the court ruled on the merits of the motion to strike; and (3) to forestall
future proceedings claiming constitutional ineffectiveness of trial
counsel. We adhere to this
determination.
name="_ftn2" title="">[2] Tasseomancy is a divination or fortune-telling method that
interprets patterns in tea leaves, coffee grounds or wine sediments.
