P. v. Colon

Filed 2/22/10 P. v. Colon CA5

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

NOT TO BE PUBLISHED IN THE OFFICIAL RECORDS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Kenneth C. Twisselman II, Judge.

Carol A. Navone, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

SEE DISSENTING OPINION

INTRODUCTION

Defendant Bernardo Colon was charged with count 1, possession of a controlled substance, phencyclidine (PCP) (Health & Saf. Code,  11377, subd. (a)); count 2, misdemeanor driving with a suspended or revoked license (Veh. Code,^[1] 14601.1, subd. (b)(1)), with the special allegation that he had three prior convictions for the same offense within the previous five years ( 14601.1, subd. (b)(2)); and count 3, misdemeanor attempting to elude a peace officer ( 2800.1). As to count 1, it was further alleged defendant had two prior serious and/or violent felony convictions within the meaning of the Three Strikes law. (Pen. Code,  667, subds. (c)-(j) & 1170.12).

After a jury trial, defendant was found guilty as charged and the court found true the two prior strike convictions. The court denied defendants motion to dismiss the prior strike convictions pursuant to Penal Code section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), and imposed the third strike term of 25 years to life for count 1, possession of a controlled substance.

On appeal, defendant contends the trial court improperly admitted a criminalists report that the substance seized from him contained PCP, and argues the admission of the report in the absence of the testing criminalists testimony violated his Sixth Amendment right to confront and cross-examine witnesses. Defendant also contends the court abused its discretion when it failed to dismiss one or both prior strike convictions, and the imposition of an indeterminate life term constituted cruel and/or unusual punishment in violation of the United States and California Constitutions. We will affirm.

FACTS

Around 9:50 p.m. on March 12, 2006, Bakersfield Police Officers Dillard and Carruesco were on patrol in a marked squad car on Kentucky Street when they saw a Dodge Neon traveling in the opposite direction. The officers were aware that a Dodge Neon recently had been reported stolen, so Carruesco performed a U-turn and followed the car. The Dodge, which was driven by defendant, made several turns and the officers continued to follow it. The speed limit was 25 miles per hour, but the officers paced defendants car at 35 miles per hour. Defendant accelerated away from the patrol car. The officers activated the patrol cars siren and flashing lights to conduct a traffic stop, but defendant did not pull over.

A brief pursuit ensued for about one mile, as defendant made numerous turns, violated several traffic laws, and accelerated to 45 miles per hour. Defendant was driving on streets which would have easily allowed him to pull to the side of the road, but he failed to heed the patrol cars siren and flashing lights. The pursuit lasted one to two minutes, and ended when defendant turned into a residential area, slowed down, and parked in front of the apartment complex where he lived.

The officers used the patrol cars loudspeaker to order the occupants out of the vehicle. Defendant and two passengers complied with the officers orders and stepped out of the car. Defendant was immediately taken into custody. A woman emerged from the residence and introduced herself as defendants wife.

The officers determined the Dodge was not stolen but that defendant was driving on a suspended or revoked license. Officer Dillard advised defendant of his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436, defendant said he understood and waived his rights, and Dillard asked defendant why he failed to pull over when the officers initiated the siren and lights. Defendant replied that he did not know the officers were trying to pull him over, and he just thought they were trying to go around him. Dillard asked: [S]o when we first turned on our lights and sirens you didnt think we were trying to pull you over? Defendant did not reply.

Officer Carruesco searched defendant and found a small piece of a plastic baggie in defendants right front pants pocket. The baggie contained a white crystalline-like substance about the size of a pencil eraser, not much bigger. Carruesco believed the substance was crystal methamphetamine, which is similar in appearance to PCP. On cross-examination, Carruesco reviewed his report and conceded he might have found the substance in the smaller coin pocket of defendants pants and not the regular pocket. Also on cross-examination, Carruesco acknowledged he did not find any drug paraphernalia on defendant or in the car.

The criminalists trial testimony

At trial, the prosecution introduced evidence that the white crystalline-like substance found in defendants pocket contained PCP, based on the testimony of Jeanne Spencer, the lead criminalist for the drug section of the major crimes unit at the Kern County Regional Crime Laboratory, who supervised the daily operations of the drug section.

Spencer testified extensively about the policies and procedures followed by members of the laboratory to test items for controlled substances. Spencer had personally conducted over one hundred tests to determine if substances consisted of phencyclidine (PCP). Spencer testified the specific testing procedures followed by the criminalists in Kern Countys crime laboratory are standard in the industry. The testing criminalist will open the sealed evidence envelope received from law enforcement, weigh the material, conduct a color test for PCP, and then confirm the results with the micro-crystalline test. The testing criminalist might also conduct an instrument analysis with a gas chromatograph spectrometer. Spencer testified the testing criminalist will make notes as to each stage of the analysis, and explained it was part of laboratory policy to document basically everything we do.

Spencer supervised the daily operations in the laboratorys drug section, and testified Allison Kennedy, another criminalist in the same unit, conducted tests on the substance found in defendants pocket to determine if it was a controlled substance.^[2] Spencer testified that Kennedy took notes about her analysis of the substance and prepared a report about the results. Spencer reviewed Kennedys notes and report, and testified there was no indication that anything unusual occurred during the analysis.

At this point in Spencers testimony, the prosecutor asked the court to admit Kennedys notes and report through Spencers testimony, pursuant to the official records exception to the hearsay rule (Evid. Code,  1280). The court asked defense counsel if she would submit the matter. Defense counsel declined to submit to the admission of the documents until she heard the rest of Spencers testimony. The court reserved ruling on the prosecutors motion and the prosecutor continued with Spencers direct examination.

Spencer testified that according to Kennedys notes and report, the substance seized from defendants pocket contained PCP. Spencer reviewed Kennedys notes which confirmed the chain of custody, that the item being tested was the material seized from defendants pocket. Spencer testified that Kennedy performed color screening tests which showed the substance contained PCP, and then conducted two micro-crystalline tests which confirmed the presence of PCP, all of which were consistent with the laboratorys protocol. Kennedys notes and report stated the substance and packaging seized from defendants pocket weighed 0.20 grams, the substance itself weighed 0.1982 grams, and a portion of the substance contained PCP. Spencer testified the substance was a usable amount that could be handled and manipulated, and it did not simply consist of residue on a baggie. Spencer testified that a photograph was taken of the item of evidence which Kennedy tested.

On cross-examination, defense counsel asked Spencer whether she tested the substance herself or supervised Kennedys work. Spencer testified she did not oversee Kennedys tests, and she did not perform additional tests or analysis of the item found in defendants pocket. Defense counsel asked if there was any material left to conduct another analysis. Spencer testified there was plenty of material left to be re-analyzed, and the remaining amount was returned to the Bakersfield Police Department.

Defense counsel asked Spencer whether the substance consisted of a usable amount of a controlled substance. Spencer explained that a useable amount meant whether the substance had the potential for use or sales.

[Defense counsel] The analysis of this particular item tells you that there is a weight of .1982 grams of a substance and a portion there of it contains phencyclidine. Is that right?

A. Thats correct.

Q. So not everything according to this analysis thats contained in the .1982 grams is in fact phencyclidine?

A. Thats correct.

On redirect examination, the prosecutor asked Spencer about Kennedys training and qualifications. Spencer testified that Kennedy joined the crime laboratory in 1999, she finished her training in 2003, and she had been conducting tests on controlled substances since that time. Spencer again testified that she did not conduct the tests on the substance, but explained that she was responsible for conducting both the technical and administrative reviews of Kennedys tests in this case, and Kennedys work passed the two-step review process. In the technical review, Spencer examined all of the data to make sure it supports the conclusion that was reached. Then administratively I look to see if all the laboratory policies and procedures and protocols were followed, things like that.

At the conclusion of Spencers testimony, the prosecutor moved all the exhibits into evidence, including Kennedys notes and report. Defense counsel did not object and submitted the matter, and the court admitted the exhibits into evidence.

Defense evidence

Cecilia Sandoval testified she lived with defendant. Sandoval testified that on the night of the incident, defendant returned from work, took a shower, and wore a pair of pants which he had just purchased from the Goodwill store on Union Avenue. Sandoval testified defendant had not laundered or worn those pants prior to that evening. Sandoval testified that later in the evening, defendants coworkers arrived at their residence to get paid. Defendant and his friends left for the bank, and defendant intended to withdraw cash from the ATM to pay them.

The defense introduced evidence as to the police departments dispatch records of the pursuit of defendant, and that the attempted traffic stop began at 9:50 p.m. and the patrol units were cleared at 9:51 p.m., which meant the pursuit ended at that time. A defense investigator testified as to defendants route while the officers followed him, and testified that defendant traveled a short distance between the beginning of the pursuit and when he arrived at his residence.

The defendant also introduced evidence about an unrelated incident to question Officer Carruescos credibility. The incident occurred when Carruesco was on patrol at the Kern County Fair. Eric Barefield, an African-American, testified that he was just walking through the fair when Carruesco physically grabbed him, improperly escorted him out of the fair, and used a racial slur against him. In rebuttal, the prosecutor recalled the defense investigator, who testified that he interviewed Barefield about the incident at the fair, and Barefield was unable to identify the officer who made the racial slur. The prosecutor also recalled Officer Carruesco, who testified that Barefield was part of a larger group which was blocking foot-traffic at the fair. Carruesco and his partner tried to break up the group, Barefield became argumentative, and his partner decided to remove Barefield from the fair. Carruesco testified that neither he nor his partner called Barefield any names, and Carruesco was not reprimanded for the incident.

The prosecutors closing argument

In her closing argument, the prosecutor argued the evidence established beyond a reasonable doubt that defendant was guilty of count I, possession of PCP, because defendant had actual possession of the drugs in his pocket. It was actually on his person and we know that he had some ability to control that particular substance that was in his pants pocket. The prosecutor further argued the substance was in an amount sufficient to be used as a controlled substance, and cited to Spencers testimony that the contraband in defendants pocket was indeed PCP and was in a useable amount based on her expertise.

The prosecutor acknowledged that we didnt hear from the actual criminalist who performed the analysis but we heard from someone who supervises her and reviewed the case. And indeed with all those different tests, the screening tests, the confirmatory test, that substance was indeed PCP, an illegal substance.

The prosecutor addressed the other elements of count I, as to whether defendant knew of the presence and narcotic nature of the substance in his pocket. The prosecutor argued defendants evasion of the officers constituted the most telling evidence that he knew PCP was in his pocket. The prosecutor conceded defendant did not lead the officers on a lengthy high-speed chase, but what we know is that both officers believed that the defendant was indeed trying to evade them, and he failed to yield or stop after the officers activated the patrol cars siren and flashing lights. Defendants failure to stop just doesnt make any sense . He knew that this PCP was in his pocket and he was thinking on his feet. How was he gonna get out of this? How was he gonna get out of this? Until it became apparent to him he wasnt gonna be able to get out of this. The prosecutor argued defendants evasive conduct also showed he knew the item in his pocket was a controlled substance [b]ecause he was trying to get away from the police and not get caught.

The prosecutor also addressed the testimony of defendants girlfriend, that he was wearing pants that he just purchased from a thift store, and challenged the defenses suggested inference that you get free dope with your jeans from second-hand stores. That drug users are gonna leave their drugs in their pants before they give them away to charity. Thats just not reasonable.

Defense counsels closing argument

Defense counsel used closing argument to challenge the credibility of the officers as to whether defendant tried to elude them during the brief pursuit, or he was just trying to drive home. Counsel noted that defendant did not accelerate to high speeds, he traveled less than one mile, and the entire sequence did not exceed sixty seconds. Counsel argued that once defendant parked his car, he was completely cooperative and his actions were consistent with his statements to the officers, that he did not realize they were trying to pull him over and instead thought the patrol car wanted to pass him.

Defense counsel argued defendant did not know the item was in his pocket and cited the testimony of defendants girlfriend, that defendant just purchased the pants from a second-hand store and had never worn or laundered them. Counsel noted her testimony about the pants was uncontroverted and she had no reason to commit perjury. Defense counsel also cited conflicts in Officer Carruescos testimony as to whether he found the item of suspected contraband in defendants right front pants pocket or the smaller coin pocket, and noted that even Carruesco described the item as no bigger than the pencil on an eraser. Counsel argued Carruesco was wrong about the drug, and wrong about its location, presumably referring to Carruescos testimony that he thought the item was in the front pants pocket and it was methamphetamine. (Italics added.)

Defense counsel argued it was reasonable to conclude that defendant did not know such a small item was in the coin pocket of his newly-purchased pants because it was uncontroverted that this item is very small . . . about the size of a pencil eraser. Counsel noted defendant did not possess any drug paraphernalia, which also supported the conclusion that he did not know the item was in the pocket.

Defense counsel reminded the jury that as to count I, possession of PCP, that [j]ust because its in his pocket is not enough. He must know its in his pocket.

There was an argument that the whole reason why there is this process of not stopping is because hes thinking on his feet. And I tell you that that argument holds no water and this is why. Theres two other individuals in this car. If hes taking this time to evade because hes thinking on his feetthinking on his fee[t] would have been taking it out of the coin pocket, tossing it somewhere else in the car where you can claim that it was from somebody else. Thats not thinking on his feet.

Defense counsel cited the defense evidence as to defendants route and the distance he traveled, and argued it was reasonable to conclude defendant did not pull over for the officers, either because he did not realize the officers were there right away, or he knew he was driving on a suspended or revoked license and he was trying to get home and park the car. Its a fact uncontroverted that his pants were second-hand, new to him. Its a fact uncontroverted that this item is very small, smaller than the tipabout the size of a pencil eraser. Counsel concluded there was reasonable doubt as to the elements of the offense.^[3]

DISCUSSION

I. Admission of the Criminalists Report

Defendant contends the prosecutions evidence that the substance in his pocket contained PCP was testimonial within the meaning of Crawford v. Washington (2004) 541 U.S. 36 (Crawford), and his Sixth Amendment rights were violated because Spencer, the supervising criminalist who testified in this case, did not conduct the tests on the substance, and Kennedy, the testing criminalist, did not testify at trial and was not available for cross-examination.

A. Crawford, Geier, and Melendez-Diaz

The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that [i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him. (U.S. Const., amend. VI.) The admission of an unavailable witnesss out-of-court statements against a criminal defendant was previously governed by Ohio v. Roberts (1980) 448 U.S. 56 (Roberts), which held that such statements could be admitted consistent with the confrontation clause only when the evidence fell within a firmly rooted hearsay exception, or the statements contained particularized guarantees of trustworthiness such that adversarial testing would add little to the statements reliability. (Id. at p. 66.)

In Crawford v. Washington, supra, 541 U.S. 36 (Crawford), the United States Supreme Court repudiated Roberts and held testimonial out-of-court statements offered against a criminal defendant are inadmissible under the Sixth Amendment unless the witness is unavailable to testify and the defendant had a prior opportunity for cross-examination. (Id. at pp. 59, 68.) Where nontestimonial hearsay is at issue, evidence is exempt from Confrontation Clause scrutiny altogether and may be admitted pursuant to the hearsay law. (Id. at p. 68.)

Crawford left for another day any effort to spell out a comprehensive definition of testimonial, but held that [w]hatever 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. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed. (Crawford, supra, 541 U.S. at p. 68.)^[4]

In Davis v. Washington (2006) 547 U.S. 813 (Davis), the court expanded upon Crawford and offered the following explanation of testimonial statements under the Sixth Amendment:

Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. (Davis, supra, 547 U.S. at p. 822.)

Davis relied upon and applied these distinctions to two factual situations to determine when statements made to law enforcement personnel during a 911 call or at a crime scene are testimonial and thus subject to the requirements of the Sixth Amendments Confrontation Clause. (Davis, supra, 547 U.S. at p. 817.) Davis held the tape recording of a domestic disturbance victims telephone call to a 911 operator was admissible and not testimonial under Crawford, even though the 911 operator asked the victim questions about the incident, because a 911 call is ordinarily not designed primarily to establis[h] or prov[e] some past fact, but to describe current circumstances requiring police assistance. (Davis, supra, 547 U.S. at pp. 827, 817-819.) The victim on the 911 call was speaking about events as they were actually happening, rather than describ[ing] past events [citation]. (Id. at p. 827, italics in original.) In contrast, Davis held that in the companion case, a domestic violence victims statements to police officers, given in the course of their investigation, were testimonial and inadmissible in the absence of the victims trial testimony, because the victim spoke to officers about the assault after the incident happened, she gave her statements to the officers as part of an investigation into possible past criminal conduct, there was no emergency in progress, and no immediate threat to the victim. (Id. at pp. 829-830, 819-821.)

In People v. Geier (2007) 41 Cal.4th 555 (Geier), the California Supreme Court held an expert could testify about the results of DNA tests, even if that expert did not conduct the actual tests, without violating Crawford and the defendants Sixth Amendment rights. The prosecutions expert in Geier was the laboratory director for an accredited private laboratory that performed DNA tests for both the prosecution and defense, and the director reviewed the work performed by the analyst who conducted the actual tests. Defendant objected to the experts testimony and argued the evidence violated his Sixth Amendment rights because the expert did not conduct the tests. (Geier, supra, 41 Cal.4th at pp. 593-596.)

Geier reviewed Crawford and Davis as to the determination of whether a statement is testimonial under the Sixth Amendment and held: [W]hat we extract from those decisions is that a statement is testimonial if (1) it is made to a law enforcement officer or by or to a law enforcement agent and (2) describes a past fact related to criminal activity for (3) possible use at a later trial. Conversely, a statement that does not meet all three criteria is not testimonial. (Geier, supra, 41 Cal.4th at p. 605.)

Based on this interpretation, Geier held the circumstances under which the testing analyst prepared the DNA report meant such evidence was not testimonial under Crawford and Davis. (Geier, supra, 41 Cal.4th at p. 607.) Geier held the report was not testimonial because it contained the analysts observations as she actually performed the tests and thus constituted a contemporaneous recordation of observable events rather than the documentation of past events. (Id. at p. 605, italics added.) Geier acknowledged the DNA report was requested by a police agency and the laboratorys employees were paid for their work as part of a government investigation. (Ibid.) However, Geier held the proper focus [about whether an out-of-court statement is testimonial] is not on the mere reasonable chance that an out-of-court statement might later be used in a criminal trial. [Citations.] (Ibid.)

In our view, under Davis, determining whether a statement is testimonial requires us to consider the circumstances under which the statement was made. As we read Davis, the crucial point is whether the statement represents the contemporaneous recordation of observable events. (Id. at p. 607, italics added.)

Geier held the analysts notes were admissible because they were made during a routine, non-adversarial process meant to ensure accurate analysis. [Citations.] In simply following [the laboratorys] protocol of noting carefully each step of the DNA analysis, recording what she did with each sample received, [the analyst] did not bear witness against defendant. [Citation.] Records of laboratory protocols followed and the resulting raw data acquired are not accusatory. Instead, they are neutral, having the power to exonerate as well as convict. [Citation.] (Geier, supra, 41 Cal.4th at p. 607.) In the alternative, Geier held that even if the testifying experts reliance on the DNA report violated defendants Sixth Amendment rights, any error was harmless given other evidence which clearly connected defendant to the crime. (Id. at p. 608.)

In Melendez-Diaz v. Massachusetts (2009) __ U.S. __ [129 S.Ct. 2527] (Melendez-Diaz), a case decided after defendant was convicted but while the instant appeal was pending, the United States Supreme Court held that documentary evidence stating that certain contraband tested positive for cocaine constituted testimonial evidence, and was inadmissible in the absence of the trial testimony of the analysts who performed such tests, pursuant to the Confrontation Clause of the Sixth Amendment. (Id. at p. 2532.) The petitioner was found in possession of bags containing a substance that resembled cocaine. (Id. at p. 2530.) The prosecution introduced three notarized certificates of analysis which showed the results of forensic analysis performed on the seized substances. The certificates reported the weight of the seized bags, and that the substances were examined and found to contain cocaine. The certificates complied with state law and were sworn to before a notary public by analysts from the states crime laboratory, but no analysts testified at trial. (Id. at p. 2530-2531.) The petitioner objected to the certificates and argued the evidence was testimonial and violated his Sixth Amendment rights under Crawford, but the trial court overruled the objection and held the analysts who tested the contraband were not required to appear at trial. (Id. at p. 2531.)

Melendez-Diaz held the admission of the certificates, in the absence of the trial testimony of the analysts who tested the contraband, violated petitioners Sixth Amendment rights because there was little doubt the certificates fell within the core class of testimonial statements subject to the Sixth Amendment restrictions described in Crawford. (Melendez-Diaz, supra, 129 S.Ct. at p. 2532.) The certificates are functionally identical to live, in-court testimony, doing precisely what a witness does on direct examination. [Citation.] (Ibid.) While state law described the documents as certificates, Melendez-Diaz held they were quite plainly affidavits and 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.] (Ibid.) Moreover, the sole purpose of the affidavits under state law was to provide prima facie evidence of the composition, quality, and the net weight of the analyzed substance [citation]. (Ibid., italics in original.)

Melendez-Diaz noted that its decision involved little more than the application of our holding in Crawford. (Melendez-Diaz,supra, 129 S.Ct. at p. 2542.) In short, under our decision in Crawford the analysts affidavits were testimonial statements, and the analysts were witnesses for purposes of the Sixth Amendment. Absent a showing that the analysts were unavailable to testify at trial and that petitioner had a prior opportunity to cross-examine them, petitioner was entitled to be confronted with the analysts at trial. [Citation.] (Melendez-Diaz, supra, 129 S.Ct. at p. 2532, italics in original.) Melendez-Diaz noted the affidavits submitted by the analysts contained only the bare-bones statement that [t]he substance was found to contain: Cocaine. [Citations.] At the time of trial, petitioner did not know what tests the analysts performed, whether those tests were routine, and whether interpreting their results required the exercise of judgment or the use of skills that the analysts may not have possessed. (Melendez-Diaz, supra, 129 S.Ct. at pp. 2537-2538.)

Melendez-Diaz maintained that it was not holding that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecutions case, or that everyone who laid hands on the evidence must be called. (Melendez-Diaz, supra, 129 S.Ct. at p. 2532, fn. 1.) The court explained that gaps in the chain [of custody] normally go to the weight of the evidence rather than its admissibility. It is up to the prosecution to decide what steps in the chain of custody are so crucial as to require evidence; but what testimony is introduced must (if the defendant objects) be introduced live. Additionally, documents prepared in the regular course of equipment maintenance may well qualify as nontestimonial records. [Citation.] (Ibid., first italics in original, second italics added.)

Justice Scalias plurality opinion in Melendez-Diaz was joined by three other justices. Justice Thomas filed a short concurring opinion, which stated that he joined the courts opinion because the documents at issue in this case are quite plainly affidavits, [citation]. As such, they fall within the core class of testimonial statements governed by the Confrontation Clause. [Citation.] (Melendez-Diaz, supra, 129 S.Ct. at p. 2543 (conc. opn. of Thomas, J.), italics added.)^[5]

At the time the United States Supreme Court decided Melendez-Diaz, a petition for writ of certiorari in Geier was pending before the court. The court denied certiorari in Geier, without comment, four days after deciding Melendez-Diaz. (Geier v. California (2009) __ U.S. __ [129 S.Ct. 2856].)

On the same day the court denied certiorari in Geier, it granted review in another case which involved a similar issue, Magruder v. Commonwealth (2008) 275 Va. 283 [657 S.E.2d 113], cert. granted sub. nom. Briscoe v. Virginia (2009) __ U.S. __ [129 S.Ct. 2858].) In that case, the Virginia Supreme Court held a defendants Sixth Amendment rights were protected under a statutory procedure which allowed the prosecution to introduce certificates of analysis as to the results of laboratory tests performed on contraband, and also provided the defendant with the right to call the forensic analyst as an adverse witness to testify about the results. The Virginia Supreme Court held such a procedure allowed the defendant to confront and cross-examine the forensic analyst, and further held the defendants failure to call the analyst as an adverse witness resulted in a waiver of any Sixth Amendment objection under Crawford. (Magruder v. Commonwealth, supra, 275 Va. at pp. 295, 297-302, 304-305 [657 S.E.2d at pp. 119, 120-123, 124-125].)

In January 2010, the United States Supreme Court heard oral argument in the case but just two weeks later, it summarily vacated the judgment of the Virginia Supreme Court and remanded the matter for further proceedings not inconsistent with the opinion in Melendez-Diaz, without issuing an opinion. (Briscoe v. Virginia (2010) No. 07-11191 __ U.S. __ [__ S.Ct. __, 2010 U.S. Lexis 767 [2010 WL 246152]].)

B. Competing views of Melendez-Diaz

The potential conflict between Melendez-Diaz and Geier is pending before the California Supreme Court, which has granted petitions for review in a series of appellate decisions which reached different conclusions on the issue. (See People v. Rutterschmidt (2009) 176 Cal.App.4th 1047 [98 Cal.Rptr.3d 390] review granted Dec. 2, 2009, S176213 [Melendez-Diaz did not overrule Geier]; People v. Gutierrez (2009) 177 Cal.App.4th 654 [99 Cal.Rptr.3d 369] review granted Dec. 2, 2009, S176620 [Melendez-Diaz did not overrule Geier]; cf. People v. Lopez (2009) 177 Cal.App.4th 202 [98 Cal.Rptr.3d 825] review granted Dec. 2, 2009, S177046 [Melendez-Diaz overruled Geier]; People v. Dungo (2009) 176 Cal.App.4th 1388 [98 Cal.Rptr.3d 702] review granted Dec. 2, 2009, S176886 [Melendez-Diaz overruled Geier].)

One of the cases currently pending before the California Supreme Court is particularly noteworthy because of the courts limited grant of review. In People v. Rutterschmidt, supra, 98 Cal.Rptr.3d 390,the Second District, Division 5, addressed contentions raised by two codefendants, Rutterschmidt and Golay, as to whether Melendez-Diaz overruled Geier. Melendez-Diaz had not been decided at the time of the defendants joint jury trial. The trial court admitted the testimony of a toxicology expert about tests conducted on a homicide victim, but that expert did not conduct the actual tests. At trial, Golay raised a Sixth Amendment objection but Rutterschmidt did not object.

On appeal, both defendants argued the experts testimony violated the Sixth Amendment and Melendez-Diaz, which was decided after defendants were convicted. The court held one defendant, Rutterschmidt, failed to preserve the Sixth Amendment issue for appellate review because she did not raise a confrontation clause objection to the evidence during trial, whereas the defendant in Melendez-Diaz raised a timely Sixth Amendment objection the introduction of the certificates in that case. In addition, the court found there were no extraordinary circumstances to excuse Rutterschmidts failure to raise a confrontation clause objection at trial, and declined to address her Sixth Amendment contentions on appeal. (People v. Rutterschmidt, supra, 98 Cal.Rptr.3d 390 at pp. 408, 410, 412 & fn. 13.) The court also rejected defendant Rutterschmidts belated attempt to argue that defense counsel was ineffective for failing to object, because she did not raise the ineffective assistance claim in her opening brief on appeal and only raised it for the first time in her reply brief. (Id. at p. 410 & fn. 12.) In contrast, the court held that codefendant Golay preserved the Melendez-Diaz issue for appellate review because she made a Sixth Amendment objection when the toxicology evidence was introduced at trial. The court ultimately held that Melendez-Diaz did not overrule Geier.

Both defendants in Rutterschmidt filed petitions for review and argued Melendez-Diaz overruled Geier. The California Supreme Court granted defendant Golays petition for review on the Sixth Amendment issue. However, the court denied without comment the petition for review filed by codefendant Rutterschmidt, who had failed to make a Sixth Amendment objection at trial or a timely ineffective assistance argument on appeal. (People v. Rutterschmidt, supra, 98 Cal.Rptr.3d 390.)

C. Analysis.

Defendant contends that as in Melendez-Diaz, his Sixth Amendment rights were violated in this case because the prosecutions evidence that the substance in his pocket contained PCP was testimonial, the testifying criminalist, Spencer, did not conduct the actual tests, and the testing criminalist, Kennedy, was not called as a witness and was not subject to cross-examination.

We reject defendants contentions for three reasons: defense counsel failed to object and waived review of the Sixth Amendment issue, counsels failure to object was based on a tactical decision, and, even if the issue was preserved for review, the evidence was properly admitted.

Waiver

It is undisputed that defendant failed to raise a Sixth Amendment objection to the criminalists trial testimony. No procedural principle is more familiar to this Court than that a constitutional right, or a right of any other sort, may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it. [Citation.] (U.S. v. Olano (1993) 507 U.S. 725, 731.) A claim that the introduction of evidence violated the defendants rights under the confrontation clause must be timely asserted at trial or it is waived on appeal. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1028, fn. 19; People v. Burgener (2003) 29 Cal.4th 833, 869; People v. Catlin (2001) 26 Cal.4th 81, 138, fn. 14; People v. Mitcham (1992) 1 Cal.4th 1027, 1044 [failure to object waives appellate review of alleged error based on Bruton v. United States (1968) 391 U.S. 123 and People v. Aranda (1965) 63 Cal.2d 518]; People v. Chaney (2007) 148 Cal.App.4th 772, 777-779.) As we will explain, we find defense counsel waived a Sixth Amendment objection in this case.^[6]

Melendez-Diaz itself specifically addressed the defendants obligation to preserve review of confrontation clause issues, and held [t]he defendant always has the burden of raising his Confrontation Clause objection . (Melendez-Diaz, supra, 129 S.Ct. 2527, 2541, italics in original.) Melendez-Diaz further held that [t]he right to confrontation may, of course, be waived, including by failure to object to the offending evidence . (Id. at p. 2534, fn. 3.) It is up to the prosecution to decide what steps in the chain of custody are so crucial as to require evidence; but what testimony is introduced must (if the defendant objects) be introduced live. (Id. at p. 2532, fn. 1, first italics in original, second italics added.)

Defendant argues that his failure to object should be excused because Geier was the controlling precedent at the time of trial, and Melendez-Diazs analysis of the Sixth Amendment could not have been anticipated. We note that Crawford was retroactively applied to cases which were pending on direct appeal when it was decided, because it repudiated Roberts and announced a new rule on the effect of the confrontation clause on hearsay statements. (See, e.g., Schriro v. Summerlin (2004) 542 U.S. 348, 351; Griffith v. Kentucky (1987) 479 U.S. 314, 328; People v. Cage (2007) 40 Cal.4th 965, 970; People v. Sisavath (2004) 118 Cal.App.4th 1396, 1400; cf. Whorton v. Bockting (2007) 549 U.S. 406, 409, 421 [Crawford not retroactive to cases on collateral review].) A defendant who failed to raise a Sixth Amendment trial objection prior to the decision in Crawford did not waive review of the issue on direct appeal, since the United States Supreme Courts opinion in Roberts was the governing law at the time and afforded scant grounds for objection. [Citation.] (People v. Johnson (2004) 121 Cal.App.4th 1409, 1411, fn. 2.)

Defendants extension of this argument to Melendez-Diaz, however, lacks merit based on the Supreme Courts own characterization of its ruling. Crawford announced that Roberts had been overruled and the sufficient indicia of reliability test abandoned. Davis clarified aspects of Crawford and further defined testimonial hearsay. In contrast, Melendez-Diaz repeatedly emphasized its holding was not new, that it was faithfully applying Crawford to the facts of this case, and rejected the dissents assertion that it was overruling 90 years of settled jurisprudence. It is the dissent that seeks to overturn precedent by resurrecting Roberts a mere five years after it was rejected in Crawford. (Melendez-Diaz, supra, 129 S.Ct. at p. 2533.)

Melendez-Diaz specifically stated that its ruling involves little more than the application of our holding in Crawford. (Melendez-Diaz, supra, 129 S.Ct. at p. 2533.) [U]nder our decision in Crawford the analysts affidavits were testimonial statements, and the analysts were witnesses for purposes of the Sixth Amendment, and there was little doubt that the documents at issue fell within the core class of testimonial statements described in Crawford. (Id. at p. 2532.)

We note that the dissent relies on People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval) to argue that defendant did not forfeit or waive review of the Sixth Amendment issue in this case, because defense counsel could not have foreseen the development of law in Melendez-Diaz, contrary to controlling authority at the time of trial. This argument is based upon the proposition that Melendez-Diaz overruled Geier. As we will explain, post, we respectfully disagree that Geier has been overruled. Moreover, the important principle discussed in Sandoval was relevant to the situation where a defendant failed to make a Sixth Amendment objection at trial, and Crawford was decided while the case was pending on appeal. In that case, a defendants failure to object did not result in waiver of the Sixth Amendment issue on appeal since the United States Supreme Courts opinion in Roberts was the governing law at the time and afforded scant grounds for objection. [Citation.] (People v. Johnson, supra, 121 Cal.App.4th 1409, 1411, fn. 2.)

In the case before us, however, we cannot ignore the express language of Melendez-Diaz, as discussed ante, which repeatedly stated that its holding was not new, it was faithfully applying Crawford to the facts of this case, and its ruling involves little more than the application of our holding in Crawford. (Melendez-Diaz, supra, 129 S.Ct. at p. 2533.)

Melendez-Diaz thus leads to the conclusion that defendants failure to raise a Sixth Amendment objection to Spencers testimony and Kennedys notes necessarily waived review of the confrontation clause issue in this case because, as we will discuss, post, the record strongly indicates defense counsel made a tactical decision on this point.

Ineffective Assistance

Defendant raises the alternative argument that counsels failure to object constituted ineffective assistance of counsel. In order to demonstrate ineffective assistance, a defendant must first show counsels performance was deficient because the representation fell below an objective standard of reasonableness under prevailing professional norms. [Citation.] Second, he must show prejudice flowing from counsels performance or lack thereof. Prejudice is shown when there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citation.] (People v. Williams (1997) 16 Cal.4th 153, 214-215.)

If counsels omissions resulted from an informed tactical choice within the range of reasonable competence, the conviction must be affirmed. [Citation.] When, however, the record sheds no light on why counsel acted or failed to act in the manner challenged, the reviewing court should not speculate as to counsels reasons. To engage in such speculations would involve the reviewing court in the perilous process of second-guessing. [Citation .] Because the appellate record ordinarily does not show the reasons for defense counsels actions or omissions, a claim of ineffective assistance of counsel should generally be made in a petition for writ of habeas corpus, rather than on appeal. [Citation.] (People v. Diaz (1992) 3 Cal.4th 495, 557-558.) If the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267; People v. Kraft (2000) 23 Cal.4th 978, 1068-1069.)

The failure to object is considered a matter of trial tactics as to which we will not exercise judicial hindsight. [Citation.] (People v. Kelly (1992) 1 Cal.4th 495, 520.) We defer to counsels tactical decisions in examining ineffective assistance claims and there is a strong presumption that counsels conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. [Citation]. (Strickland v. Washington (1984) 466 U.S. 668, 689; People v. Lucas (1995) 12 Cal.4th 415, 436-437.) Reviewing courts will reverse convictions on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission. [Citation.] (People v. Zapien (1993) 4 Cal.4th 929, 980.)

Defendant contends his defense counsel should have raised a Sixth Amendment objection to Spencers testimony and Kennedys report. At the time of defendants trial in January 2008, Crawford and Davis had been decided, and Geier was the controlling authority in this state as to the application of Crawford to laboratory test results. However, Geier itself noted a division among state courts as to the application of Crawford to scientific evidence. (Geier, supra, 41 Cal.4th at pp. 604-607.) Moreover, a petition for writ of certiorari in Geier was pending before the United States Supreme Court at the time of defendants trial. (Geier v. California, supra, ___ U.S. ___ [129 S.Ct. 2856] [petition for writ of certiorari denied Nov. 21, 2007].)

The entirety of the record demonstrates defense counsel made a tactical decision not to raise a Sixth Amendment objection to Spencers testimony. In closing argument, defense counsel framed the contested issue as whether defendant knew about the presence and nature of the small item in his pocket. Counsel had developed evidence to support this theory, based upon the testimony of defendants girlfriend, that he just bought the pants from a second-hand store, and he had not laundered or worn the pants prior to that night. The defense theory was further bolstered by defense counsels vigorous cross-examination of Officer Carruesco as to his search of defendant and where he found the item. Carruesco reviewed his report and conceded the substance might have been in the small coin pocket of defendants pants rather than the larger front pocket. Defense counsel also seized upon Carruescos description of the substance as being as small as the eraser on the tip of the pencil. Carruescos description was confirmed by the photograph of the item itself, which the prosecution introduced into evidence as part of Kennedys report about the laboratory analysis, all without objection by defense counsel.

Defense counsel relied upon all of this evidence to make the reasonable argument that defendant did not know such a small item, which weighed less than 0.2 grams, was in the small coin pocket of pants he had just purchased from a second-hand store. While the prosecutor pointed to defendants evasive driving as further evidence that he knew the PCP was in his pocket, defense counsel confronted this evidence, and asserted the circumstances of defendants arrest supported the opposing inference that defendant did not know the substance was in his pocket. Defense counsel introduced evidence that the actual pursuit lasted about one minute and for one mile, defendant stopped at his own residence, two other people were in the vehicle, and defendant did not possess any drug paraphernalia. Counsel argued that if defendant was evading the officers because he knew about the PCP in his pocket, he had plenty of time to dispose of the item by tossing it from the car or giving it to one of his passengers. Instead, counsel argued a more reasonable explanation for defendants alleged evasion of the officers was because he knew he was driving without a license. While defense counsel presented the jury with a tenable theory of the case, the trier of fact was entitled to and, in fact did, reject it.

Moreover, defense counsel did not initially concede the admissibility of Spencers testimony and Kennedys report. During Spencers direct examination, the prosecutor asked introductory questions about the nature and circumstances of Kennedys tests and the laboratory protocols, and then moved to introduce Kennedys report into evidence. Defense counsel refused to submit the matter until she conducted cross-examination of Spencer. Counsel questioned Spencer about Kennedys qualifications and whether Spencer supervised Kennedys work and/or reviewed the results. Counsel apparently accepted Spencers testimony and submitted the matter when the prosecutor again attempted to move Kennedys report into evidence. Counsels submission of the matter effectively amounted to a stipulation that the substance in defendants pocket was PCP. But counsel relied upon the criminalists report to further attack the accuracy of Officer Carruescos testimony, since Carruesco thought the substance was methamphetamine whereas the test results showed it was PCP.

The entirety of the record thus demonstrates that defense counsel was not eager to focus the jurys attention on the fact that defendant was found in possession of PCP, and she made the tactical decision not to renew her objections to Spencers testimony or Kennedys report. Indeed, Melendez-Diaz acknowledged that defense attorneys routinely make tactical decisions not to raise Sixth Amendment objections to scientific evidence:

Defense attorneys and their clients will often stipulate to the nature of the substance in the ordinary drug case. It is unlikely that defense counsel will insist on live testimony whose effect will be merely to highlight rather than cast doubt upon the forensic analysis. Nor will defense attorneys want to antagonize the judge or jury by wasting their time with the appearance of a witness whose testimony defense counsel does not intend to rebut in any fashion. . . . Given these strategic considerations, and in light of the experience in those States that already provide the same or similar protections to defendants, there is little reason to believe that our decision today will commence the parade of horribles [the State] and the dissent predict. (Melendez-Diaz, supra, 129 S.Ct. at p. 2542.)

Melendez-Diaz further observed that it did not expect defense attorneys to refrain from zealous representation of their clients. We simply do not expect defense attorneys to believe that their clients interests (or their own) are furthered by objections to analysts reports

Melendez-Diazs comment upon reasonable defense tactics anticipated exactly what happened in this case. Defense counsel refused to stipulate to the prosecutors initial attempt to introduce Kennedys report. Instead, she questioned Spencer about the nature and circumstances of the tests performed by Kennedy, and made the reasonable tactical decision not to challenge the admissibility of the evidence to avoid focusing the jurys attention on the PCP found in defendants pocket. Moreover, counsel conducted a vigorous defense and developed the theory that defendant did not know the item was in his pocket, based on cross-examination of the prosecution witnesses and the introduction of defense evidence. The dissent states we cannot speculate about defense counsels tactical decisions and the record does not demonstrate she intentionally refrained from objecting to the introduction of this evidence. (Dis. opn. of Dawson, J. at p. 2.) We respectfully disagree given our review of the procedural history of this case.

We thus conclude defense counsel was not ineffective for failing to raise a Sixth Amendment objection to Spencers testimony and Kennedys report. Defense counsel made the tactical decision not to further challenge evidence that was not favorable to the defendant and proceeded with a theory supported by the evidence, that defendant did not know what was in the pockets of a pair of pants he just purchased from a thrift store.

Melendez-Diaz and Geier

Finally, even if defense counsels failure to object did not waive the Sixth Amendment issue, or counsel was ineffective for failing to object, we find counsels omission was not prejudicial because Melendez-Diaz did not overrule Geier. There are important distinctions between the cases.