P. v. Carruth

Filed 8/19/09 P. v. Carruth CA1/4

Opinion following rehearing

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

In December 2006, the Solano County District Attorney charged appellant Antoine Ramont Carruth with the following offenses set forth in a consolidated information in case Nos. VCR176751 and VCR179180:[1]possessing cocaine base for sale (counts 1 & 2); possessing methamphetamine (count 3); and destroying or concealing evidence (count 4). The information also alleged that appellant suffered a prior conviction for possessing cocaine base for sale; that he served a prior prison term; and was out of custody on bail when he committed the count 2 and 3 offenses.

Appellant admitted the prior conviction and the on-bail enhancement. A jury found appellant guilty as charged. The court sentenced him to seven years four months in prison: the midterm of four years on count 1; a consecutive one year four months (one-third the midterm) on count 2; a concurrent two-year term on count 3; two years for the on-bail enhancement; and three years stayed for the prior sales conviction and prior prison enhancements.

On appeal appellant claims Crawford[2]and evidentiary error; urges reversal without retrial of the count 1 trafficking offense, and asserts error in sealing a portion of the search warrant affidavit which led to his arrest on that count. We affirm.

I. FACTUAL BACKGROUND

A. December 8, 2004 Search

Vallejo police officers arrested appellant on December 8, 2004, as he was leaving his apartment compound on Tuolumne Street by car. Armed with a warrant, the police brought him back to his apartment to be searched.[3] He had $382 in cash upon his person.

On the path leading from appellants car to his apartment, an officer noticed a small bag containing four rocks of cocaine base, individually packaged in plastic. The corner of the bag had been pulled off.

In the apartment the officers found approximately a quarter pound of cocaine base, a digital scale and a cell phone inside a kitchen cabinet. There was another scale on the counter, surrounded by what looked like crumbs of cocaine base, as well as packaging consistent with resale of base cocaine. Plastic baggies with the corners torn off were recovered from the kitchen trash can. Also in the kitchen were three boxes of baking powder and a gross of unused sandwich baggies.

Appellant admitted that the cocaine base was his and that he dropped the baggie with the four rocks found on the sidewalk. Further, he claimed he was a user and that the drugs were for his personal use, not for sale. However, appellant admitted he previously sold cocaine base, gave it away to friends, and previously purchased cocaine.

Corporal Theodore Postolaki testified as an expert in cocaine base identification and sales practices. He gave his expert opinion that the drugs in the kitchen, the residue around the scale, and the drugs on the walkway were cocaine base. Additionally, the packaging was consistent with resale of cocaine base, and the residue on the scale showed that someone was weighing narcotics on the scale. Corporal Postolaki performed an NIK test on the cocaine base. This is a presumptive chemical test; the narcotic tested positive for cocaine.

In the officers opinion, appellant possessed the cocaine for sale. The quantity was close to a quarter pound with a street value of over $11,000. The scales, the plastic baggies and the baking soda all reflected an operation for packaging drugs for sale. Regarding the baggies with the cut-off corners, Corporal Postolaki had this to say: [Y]ou take . . . a rock of cocaine, and a regular sandwich bag. [] Before its cut, put it in the corner, pull the corner, knot it or cut it in place. This type of packaging is only consistent with sales.

The officer was not impressed with appellants assertion that he was a user, not a sellerthere was no paraphernalia on his person or in the apartment.

B. June 11, 2005 Search

Appellant was subject to a second search warrant executed on Kathy Ellen Street on June 11, 2005. It took appellant about a half minute to come to the door. The cuff of his sleeve was wet. Dish rags, wet on the down side and dry on top, were shoved down the disposal. Removing them, the officers found packaged and loose cocaine inside the garbage disposal. In all there were 17 individually packaged rocks, as well as some loose rocks in the disposal area. Many were knotted in sandwich baggie corners that had not yet been torn off the baggies. There was a hanging scale near the kitchen sink and cocaine base on the counter near the scale. In the living room the officers found baggies and $290 in cash.

The cocaine weighed 3.4 grams. As well, a baggie with .5 grams of methamphetamine was found in a purse. No smoking paraphernalia was found.

Appellant admitted the rocks in the sink were cocaine base and were his, and that he put the methamphetaminewhich also was hisin the purse. Again, he said he was a user, not a seller of cocaine.

Highlighting the quantity of rocks, the prepackaged form, the scale, the cash and absence of paraphernalia, Corporal Postolaki testified that the drugs in the sink were cocaine base, which appellant possessed for sale.

C. 1998 Drug Conviction

In 1998, Detective Gilbert Lucero seized two large chunks of cocaine, weighing 56 grams total; two scales; a pay/owe book; a weapon; and $530 in cash from the bedroom of appellants home. Appellant was in bed, fully clothed. Detective Lucero NIK-tested the substance, with positive results. Appellant stipulated at trial that he pleaded no contest to possession for sale of cocaine base in September 1998.

D. Chemical Testing

Shana Meldrum is a forensic toxicologist with the Contra Costa County crime lab. She conducted two tests on the cocaine base and the methamphetamine seized on June 11, 2005. First, she conducted presumptive color tests which indicate a class of family that a substance might be positive for. The positive results on the presumptive color tests were then confirmed with an instrumental analysis using the gas chromatograph/mass spectrometer. These technologies are generally accepted in the scientific community. The tests confirmed that the drugs seized from the two searches were cocaine base and methamphetamine.

Meldrums colleague, Denise Allen, tested the substances seized from appellants kitchen on December 8, 2004. However, she was unavailable at trial because she was on a training excursion. Meldrum, the custodian of records for the Contra Costa County crime lab, testified over objection to Allens curriculumvitae and about the nature of the report she generated. The report was admitted into evidence. Allens tests confirmed that the substance was cocaine base.

II. DISCUSSION

A. Admission of Denise Allens Report

Appellant assails the admission of Allens lab report, contending his constitutional right to confrontation as elucidated in Crawford, supra, 541 U.S. 36 was violated. The Crawford court held that the confrontation clause renders out-of-court, testimonial statements offered against a criminal defendant inadmissible unless the declarant is unavailable at trial and the defendant has had a prior opportunity to cross-examine. (Id. at p. 59.) The court explained: Where testimonial evidence is at issue, . . . the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. . . . [] Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation. (Id. at pp. 68-69, fn. omitted.)

Going forward from Crawford, the key determinate implicating a confrontation clause violation is whether the out-of-court statement is testimonial. However, the court in Crawford did not announce a definitive characterization that would enable courts to sift out testimonial from nontestimonial statements: We leave for another day any effort to spell out a comprehensive definition of testimonial. Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. (Crawford, supra, 541 U.S.at p. 68, fn. omitted.)

After the completion of appellate briefing in this case, on June 25, 2009,[4] the United States Supreme Court issued its decision in Melendez-Diaz v. Massachusetts (2009) ___ U.S. ____ [174 L. Ed.2d 314] (Melendez-Diaz), holding that certificates of analysis sworn by lab analysts were testimonial statements and their admission at trial implicated the defendants Sixth Amendment confrontation rights. (Id. at p. ___ [174 L. Ed.2d at pp. 319, 332-333].) There, the prosecution submitted three certificates of analysis, sworn before a notary public, showing the results of forensic analysis performed on substances seized by the police, and reporting that the substances were found to contain cocaine. (Id. at p. ___ [174 L. Ed.2d at p. 319].) The certificates were admitted over objection as prima facie evidence to prove an element of the offense. The court had no trouble finding Crawford error: This case involves little more than the application of our holding in Crawford . . . . The Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits, and the admission of such evidence against Melendez-Diaz was error. (Id. at p. ___ [174 L. Ed.2d at p. 332].)

Here, as in Melendez-Diaz, Allens lab report was admitted for the truth of the matter stated therein, namely that the substance tested was cocaine base. The prosecution did not elicit Meldrums expert opinion as to the narcotic nature of the drugs based on that lab report. She merely attested to Allens curriculum vitae and as the custodian of records for the report. We therefore conclude, under Melendez-Diaz, that admission of Allens report violated appellants confrontation rights. In response to our invitation for supplemental letter briefing, the Attorney General concedes the error in light of Melendez-Diaz.

Appellant intimates that the error is structural, citing United States v. Gonzalez-Lopez (2006) 548 U.S. 140, 145-146. That decision does not intimate any such thing. To the contrary, appellant alludes to a portion of the opinion that distinguishes Sixth Amendment violations of the right to counsel of choice or confrontation from claims such as ineffective assistance of counsel which are subject to a two-part test requiring prejudice to establish any constitutional error. In any event, a confrontation clause violation is subject to harmless error analysis under Chapman v. California (1967) 386 U.S. 18, 24. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 681; People v. Geier (2007) 41 Cal.4th 555, 608.) Moreover, we point out that the court in Melendez-Diazremanded the case for a determination as to whether the error was harmless. (Melendez Diaz, supra, ___ U.S. ___, at p. ___, fn. 14 [174 L. Ed.2d, at p. 333, fn. 14].) Further, the Melendez-Diaz court explained that in connection with the issue of harmless error, it disagreed with the dissents contention . . . that only an analysts testimony suffices to prove [the] fact that the substance is cocaine. Todays opinion, while insisting upon retention of the confrontation requirement, in no way alters the type of evidence (including circumstantial evidence) sufficient to sustain a conviction. (Ibid.)

The error here was harmless beyond a reasonable doubt.[5] There was overwhelming evidence that cocaine base was found in appellants apartment on December 8, 2004. Corporal Postolaki testified as an expert in the area of recognition of cocaine base. He performed the NIK test with positive results on the substance seized on December 8, 2004. This is a presumptive chemical color-changing test that identifies the presence and type of narcotic based on a color response. Meldrum explained that the color tests can give the same color test results for other substances, so a confirmation is necessary.

Corporal Postolaki also offered his expert opinion that the substance was cocaine base. He has observed cocaine base well over 500 times through his work on the street. The presumptive NIK examination gave initial positive test results. Further, he pointed to the method of packaging for sale, with individual rocks knotted into the corner of a sandwich bag. The baking powder found in the kitchen is used to make the [base] cocaine go further. Additionally, his identification of the substance seized on June 11 was confirmed by Meldrums testing, going to the accuracy of his earlier identification.

Significantly, appellant admitted that he possessed the cocaine base seized on December 8, 2004. He told the police he knew cocaine base was in the apartment, and it was his, as were the four rocks found on the sidewalk. He also said he was a user of cocaine, and had purchased cocaine two days prior to the event.

Scientific testing is not essential to prove the narcotic identity of a substance. [T]he nature of a [narcotic] substance, like any other fact in a criminal case, may be proved by circumstantial evidence. [Citations.] It may be proved, for example, by . . . [citations], . . . the expert opinion of the arresting officer [citation], and by the conduct of the defendant indicating consciousness of guilt. [Citation.] (People v. Sonleitner (1986) 183 Cal.App.3d 364, 369.) Here, Corporal Postolakis expert testimony, the presumptive test, appellants admissions and his prior experience with cocaine base provided overwhelming confirmation that the substance seized on December 8, 2004, was cocaine base. Any error in admitting Allens lab report was harmless beyond a reasonable doubt.

B. Sufficient Evidence Supports the Conviction for the December 2004 Trafficking Offense

Appellant also presses for reversal with prejudice of the December 8, 2004 conviction for possession of cocaine base, due to failure of proof. Appellants argument seems to be that once the purportedly inadmissible evidence is excised, double jeopardy would bar retrial because the the state chose to present [that evidence] instead of moving to continue for Allens availability. Appellants argument is not clear to this court. However, our decision today that the confrontation clause error under Crawford and Melendez-Diaz was not prejudicial defeats any assertion that he is entitled to reversal.

C. No Error in Denying Appellants Motion to Unseal the Search Warrant Affidavit

Appellant moved unsuccessfully to unseal, quash, and/or traverse the search warrant in Case No.VCR 176751, which led to his December 2004 arrest. On appeal he maintains that the trial court should have unsealed the sealed portion of the search warrant affidavit, and that if and when this court reviews the sealed materials, his right to quash or traverse the warrant will be revealed. Not so.

In People v. Hobbs (1994) 7 Cal.4th 948 (Hobbs), our Supreme Court delineated the procedures that should be followed when, due to the sealing of all or a part of a search warrant affidavit, the defendant cannot reasonably be expected to make the preliminary showing required . . . [citation] to initiate a subfacial challenge (by moving to traverse the warrant), or otherwise make an informed determination whether sufficient probable cause existed for the search (in consideration of a motion to quash the warrant) . . . . (Id. at pp. 971-972, fn. omitted.) Hobbs directs that the trial court conduct an in camera hearing to initially determine whether grounds exist for maintaining the confidentiality of the informant, and whether the extent of sealing is justified to that end. If the affidavit has been properly sealed, the court proceeds to examine the affidavit for possible inconsistencies or insufficiencies as to the showing of probable cause, and when the defendant has moved to traverse the warrant, whether his or her general allegations of material misrepresentations or omissions are supported by the sealed record. (Id. at pp. 972-974.)

We have reviewed the sealed record of the trial courts in camera hearing, as well as the sealed search warrant affidavit and attachment to it. We are satisfied that the trial court conducted a proper Hobbs review and appropriately found that nothing sealed should be released; there was sufficient evidence to support a finding of probable cause and no evidence showing inconsistencies or insufficiencies regarding probable cause; and the sealed affidavit and attachment revealed no discoverable or exculpatory evidence. Accordingly, the trial court acted within its sound discretion in denying appellants motion.

III. DISPOSITION

The judgment is affirmed.

_________________________

Reardon, Acting P.J.

We concur:

_________________________

Sepulveda, J.

_________________________

Rivera, J.

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[1] Case No. VCR176751 has been designated as the lead case.

[2] Crawford v. Washington (2004) 541 U.S. 36.

[3] Prior to obtaining the search warrant, the police had conducted a controlled buy of drugs from appellant.

[4] We granted rehearing on our own motion on July 8, 2009.

[5] Because we have concluded that confrontation clause error did occur, there is no need to address appellants separate argument that Allens lab report was inadmissible hearsay and therefore should have been excluded.