P. v. Guzman

























Filed 3/21/13 P. v. Guzman CA4/3













>NOT TO BE PUBLISHED IN OFFICIAL REPORTS





California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.







IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA



FOURTH
APPELLATE DISTRICT



DIVISION THREE




>

THE PEOPLE, Plaintiff and Respondent, v. JESUS GUZMAN, Defendant and Appellant.

G045627 (Super. Ct. No. 10NF1748) O P I N I O N

Appeal from a judgment
of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, John Conley, Judge.
Affirmed.

Jerry D. Whatley, under
appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, Scott Taylor and Marissa Bejarano, Deputy
Attorneys General, for Plaintiff and Respondent.

* * *

Defendant Jesus Guzman
was found guilty of assault with intent
to commit sexual offense; rape, as charged in count one of the
information. The court conducted a trial
on the prior allegation, and found the prior to be true. The court sentenced defendant to seven years
in state prison.

In his appeal, defendant
contends the trial court erred in allowing an expert witness to testify about
the results of DNA testing performed by nontestifying analysts. Alternatively he argues that, in the event
this court concludes defense counsel failed to preserve his confrontation
issue, then he received ineffective assistance of counsel. He further contends the trial court erred in
imposing a one-year enhancement due to his failure to remain free from custody
for five years prior to committing this crime.
We are not persuaded by any of defendant’s arguments and affirm.

I

FACTS

On Sunday August 5, 2007, 18-year-old Adriana
attended church with her mother in Fullerton. Afterward, her mother went to work, and
Adriana walked home alone, carrying her Bible.
It was broad daylight and there was a lot of activity on the
street. Someone bumped into her and “he
like grabbed my butt while passing me.”

Adriana described what
happened next: “And then while walking
away from him I felt like he was following me.
So at that moment I tried to walk faster.” She picked up a three-inch rock. Adriana described what happened at the point
of an underpass and steps: “He tries to
block me to where I was walking home.
And I tried to tell him to move out of my way, and he wouldn’t
move. And at that point he grabbed me
and threw me on the stairs.” She
added: “He has one hand on my shoulders,
trying to struggle to unzip his pants.”
She pleaded with him to leave her alone, and threw the rock in his
face. Adriana testified: “I can remember scratching him, and that’s
how they got the DNA tests from my fingernails.” She was screaming and he struck her near her
jaw with his fist. She tried to bite
him. At some point when she was in the
midst of fighting him off, he left.

A man and a woman pulled
over in their car and offered assistance.
The man was off-duty Los Angeles County Sheriff Richard Adams. Adams was driving and
his wife alerted him that it looked as if a girl was in trouble. He heard a woman screaming.

Vicki Adams described
what she saw: “I just happen[ed] to look
over and I saw an altercation between a man and a woman on that concrete
staircase. And he was straddling her. And it was just a drive-by, so it wasn’t very
long. But just her face is something, I
will never forget the terrified look on her face. And him straddling her and like struggling
with her. And I don’t know if he heard
my car or what drew his head around, but we locked eyes.” She added:
“I saw him straddling this young woman, and he was either hitting her or
pulling on her clothing or — there was a struggle going on.” In 2010, a detective from the Fullerton
Police Department contacted Vicki Adams to say “they had now a hit to DNA they
found underneath Adriana’s fingernail.”



>Fingernail Scrapings

> Cindee
Lozano is a crime scene investigator.
She was called to the scene. She
took photographs and scraped the victim’s fingernails. The fingernail evidence was marked with a
Fullerton Police Department No. 07-61690.


Forensic scientist
Corrie Maggay works at the Orange County
crime laboratory (OCCL). Maggay
described the procedure for handling evidence received sent to OCCL by police
agencies. Maggay was the person who
received the evidence taken from the victims fingernails. The evidence bore the Fullerton Police
Department No. 07-61690 and was assigned another number at OCCL, FR No.
07-52405.

Maggay described what
happened to the evidence after it was taken in by OCCL: 1) She removed the evidence from the freezer
area and examined the specimens; 2) She documented the contents, and “with this
case there were two smaller manila envelopes that were sealed that were labeled
‘right hand’ and ‘left hand’”; 3) In each envelope, there were fingernail scraping
sticks, and she sent the sticks off for extraction which is “where we want to
remove the DNA or the cells” from the “fingernail scraping sticks”; 4) At that
point OCCL, but not Maggay personally, “break[s] them open so that we can
obtain the DNA”; 5) Then OCCL, but not Maggay personally, isolates the
DNA.

The following questions
and answers occurred between the prosecutor and Maggay:

“Q: And did you do that in this case with this
evidence?

“A: I did not do that on this case.

“Q: Well, you didn’t do the extraction, but you
sent it to extraction?

“A: Yes, I did.

“Q: And that extraction is done within your crime
lab; is that correct?

“A: Yes, ma’am.”


Lisa Winter is also a
forensic scientist at OCCL. She is
assigned to the DNA unit. Winter was the
case manager for the sample marked FR No. 07-52405. She described what a case manager does: “A case manager is someone who would be the
one that would put all the evidence together at the end of the case, look at
the DNA typing results, come to the conclusion, because sometimes we get
mixtures, you have to interpret that.
Sometimes there are standards you have to compare it to. So the case manager is the one that kind of
pulls the case together at the end, writes the report, and submits the report.” She explained how the process of DNA testing
works, and how a buccal swab was obtained from the victim.

Testing of the specimen
taken from under the victim’s right hand fingernails revealed male DNA. Winter explained, “At that point the right
hand fingernail profile would be put into a database.” OCCL was notified by the Department of
Justice there was a match with a standard specimen in the database.

Winter explained the
next step: “Then we need to confirm that
in our laboratory. So, we would want a
sample from the suspect.” At some point,
Winter received buccal swabs taken from defendant. The procedure was to confirm that the
standard in the database for a person is the same DNA as the same as the sample
taken from a suspect.

Winter personally
performed the comparison testing on the standard for defendant and the actual
sample taken from defendant. She
said: “The results were that the same
profile that was found under the right hand fingernail scrapings, were the same
as Mr. Guzman.”

Exhibit 22 is a chart
titled “ORANGE COUNTY SHERIFF-CORONER
[¶] FORENSIC SCIENCE SERVICES [¶]
REPORT OF EVIDENCE EXAMINATION and DNA TYPING.”
It lists three items, the victim’s DNA, the DNA for the scrapings from
her right hand and the DNA for scrapings from her left hand. The reported numbers for the victim’s DNA and
the scrapings from her left hand fingernails match across the chart, but the
DNA for the scrapings from her right hand do not.

Exhibit 23 is a chart
titled “OC CRIME LAB [¶] County Executive
Office-District Attorney-Sheriff [¶]
REPORT OF EVIDENCE EXAMINATION AND DNA TYPING.”
It lists two items, defendant’s DNA and the DNA taken from the victim’s
fingernails on her right hand. The
categories match across the chart.

OCCL has a computer that
analyzes the statistics of a particular match.
In this case, the analysis showed one in one trillion it is Mr. Guzman’s
DNA under Adriana’s right hand fingernails.


Defense counsel asked
only one question of Maggay. When the
time came to cross-examine Winter, defense counsel stated: “No questions, your Honor.”







>Court Trial on Prior

To prove defendant
committed the prior alleged crime, the prosecutor offered two documents which
were received into evidence. Exhibit No.1 is a certificate of record from the
Department of Justice. The second
exhibit is defendant’s rap sheet.

Within the two exhibits
is evidence defendant was arrested for possessing methamphetamine for sale in
1996, in 1997 he pled guilty to conspiracy to distribute methamphetamine, he
was sentenced to 87 months in prison to be followed by five years of supervised
release, he was sent to a federal prison in 1998, and he was on supervised
release on July 27, 2006.

II

DISCUSSION

>Right to Confrontation

Defendant contends: “The trial court committed prejudicial error
in allowing an expert witness to testify about the results of DNA testing
performed by non-testifying analysts, where the defendant has no opportunity to
confront the actual analysts in violation of [defendant’s] Sixth Amendment
right to confrontation.” Alternatively,
defendant contends that if this court concludes trial counsel failed to
preserve the confrontation issue, he received ineffective assistance of
counsel.

Despite the fact that
trial counsel did not object to the admission of DNA evidence here, and did not
cross-examine Winter, we address the merit of defendant’s argument.

Admission of testimonial
out-of-court statements is barred by the confrontation clause of the href="http://www.fearnotlaw.com/">Sixth Amendment unless the witness is
unavailable and the defendant had a prior opportunity to cross-examine the
witness. (Crawford v. Washington (2004) 541 U.S. 36, 68-69.) In Melendez-Diaz
v. Massachusetts (2009) 557 U.S. 305, the prosecution proved a substance
recovered by police was cocaine by submitting sworn certificates of analysis
rather than live testimony. (>Id. at p. 307.) The court concluded the analysts’ statements,
prepared specifically for trial against Melendez-Diaz, were testimony against
him and the analysts were subject to confrontation under the Sixth
Amendment. (Id. at p. 324.)

A few months ago, the
California Supreme Court issued three cases of importance here. In People
v. Lopez (2012) 55 Cal.4th 569, the defendant was charged with vehicular
manslaughter while intoxicated, and the prosecution introduced into evidence a
laboratory analyst’s report on the percentage of alcohol in a blood sample
taken two hours after the accident. (>Id. at p. 573.) The analyst wrote a notation on the report
linking defendant’s name to the sample number.
(Id. at p. 585.) The court stated that for a statement to be
testimonial, it must be made with some degree of formality or solemnity, and
its primary focus must pertain in some fashion to a criminal prosecution. (Id. at
pp. 581-582.) The court held the
laboratory report, even with the analyst’s notation, was not testimonial in
nature. (Id. at p. 585.)

The prosecution proved
its murder case with the testimony of a forensic pathologist, who did not
prepare the autopsy report or take the photographs he testified about, in >People v. Dungo (2012) 55 Cal.4th 608 at
page 612. The court concluded the
witness’s testifying about objective facts concerning the condition of the
victim’s body, which facts he derived from the autopsy report prepared by
another pathologist, did not give the defendant the right to confront and
cross-examine the pathologist who prepared the report and took the
photographs. (Id. at p. 621.)

In People v. Rutterschmidt (2012) 55 Cal.4th 650, two elderly women
were convicted of murdering two men in order to collect life insurance
proceeds. (Id. at p. 652.) To prove its
theory one of the victims was drugged before he was killed, the prosecution
presented the testimony of a laboratory director who, relying on reports not
prepared by him, testified that testing of the victim’s blood samples by
analysts at his laboratory had determined the presence of drugs that could have
caused drowsiness. (Ibid.) The court concluded
it did not need to decide whether the trial court erred in allowing the
laboratory director’s testimony because the evidence of guilt was
overwhelming. (Id. at p. 661.)

Since the California
Supreme Court issued its three opinions on this issue, People v. Holmes (2012) 212 Cal.App.4th 431 was decided. In Holmes,
a defendant who was convicted of murder, robbery and burglary, complained that
testifying DNA experts did not personally perform all the testing upon which
they relied in reaching their opinions.
(Id. at p. 433.) The Holmes
court found the analysis in Lopez, particularly
persuasive. Referring to the two steps
set forth in Lopez, the >Holmes court stated: “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.]” (>People v. Holmes, supra, 212 Cal.App.4th at p. 436.)

Here, while the DNA
analysis was done in preparation for prosecuting defendant, it was not
formalized in any way, and amounted to analysis and recordation of objective
facts. The case manager, who testified, interpreted the objective data recorded
by others, and performed the ultimate comparison of the sample taken from under
the victim’s fingernails and the one taken from defendant by the Fullerton
Police Department. Based upon existing
precedent from both the United States Supreme Court and the California Supreme
Court, we conclude the analysis performed by nontestifying DNA experts in this
case was not testimonial, and defendant’s right to confront witnesses against
him was not violated.



>Sufficient Evidence to Prove Prior

Defendant next argues
the “evidence did not establish beyond a reasonable doubt that [defendant] had
not been free of prison custody for five years before the commission of the
offense on August 5, 2007,” as required by Penal Code section 667.5.

In
addressing challenges to the sufficiency of evidence, “the reviewing court must
examine the whole record in the light most favorable to the judgment to
determine whether it discloses substantial evidence—evidence that is
reasonable, credible and of solid value—such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt. [Citation.]
The appellate court presumes in support of the judgment the existence of
every fact the trier could reasonably deduce from the evidence. [Citations.]
The same standard applies when the conviction rests primarily on
circumstantial evidence.
[Citation.] Although it is the
jury’s duty to acquit a defendant if it finds the circumstantial evidence
susceptible of two reasonable interpretations, one of which suggests guilt and
the other innocence, it is the jury, not the appellate court that must be
convinced of the defendant’s guilt beyond a reasonable doubt. [Citation.]
‘“If the circumstances reasonably justify the trier of fact’s findings,
the opinion of the reviewing court that the circumstances might also reasonably
be reconciled with a contrary finding does not warrant a reversal of the
judgment. [Citation.]”’ [Citation.]”
(People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.) The reviewing court must presume the
existence of every fact the fact finder could reasonably deduce from the
evidence. (People v. Johnson (1980) 26
Cal.3d 557, 576.)

Here the evidence shows
the October 31, 1997 judgment stating he was sentenced to 87 months
imprisonment, and that defendant was delivered to federal prison in Lompoc on
January 20, 1998. The judgment also
states: “Upon release from imprisonment,
the defendant shall be placed on supervised release for a term of five (5)
years . . . .”
Defendant’s federal rap sheet states:
“Date in Custody 2003-01-14 [¶]
Correction Action STATUS—SUPERVISED
RELEASE [¶] Corrections Agency US
PROBATION LOS ANGELES.” The next item on the rap sheet states: “Date in Custody 2006-07-27 [¶] Correction Action STATUS—SUPERVISED RELEASE EARLY TERMINATED.”
The instant crime was committed on August 5, 2007. Under the circumstances we find in this
record, we conclude sufficient evidence supports the court’s imposition of
punishment because defendant did not remain free from custody for five years
before he committed the instant crime.

III

DISPOSITION

As we have reviewed
defendant’s contentions on the merits, we do not address his ineffective
assistance of counsel argument based on counsel’s failure to preserve issues
for appeal. The judgment is affirmed.







MOORE,
J.



WE CONCUR:







O’LEARY, P.
J.







THOMPSON, J.