P. v. Quiroz

















Filed 4/26/13 P. v. Quiroz CA2/4











NOT TO BE PUBLISHED IN THE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opinion has not been certified for publication or ordered published for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



SECOND APPELLATE DISTRICT



DIVISION FOUR












>

THE PEOPLE, Plaintiff and Respondent, v. IVAN QUIROZ, Defendant and Appellant.

B241039 (Los Angeles County Super. Ct. No. NA089299)

APPEAL
from a judgment of the Superior Court of Los Angeles County, Laura Laesecke,
Judge. Affirmed.

Craig
C. Kling, under appointment by the Court of Appeal, for Defendant and
Appellant.

Kamala
D. Harris, Attorney General, Dane R.
Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Susan Sullivan Pithey and Louis W. Karlin, Deputy
Attorneys General, for Plaintiff and Respondent.

introduction

A
jury convicted defendant Ivan Quiroz of burglary (Pen. Code, § 459), finding
the burglary was in the first degree because defendant entered an inhabited
dwelling with the intent to commit larceny.href="#_ftn1" name="_ftnref1" title="">>[1] Quiroz was sentenced to the upper term of six
years in state prison.

Defendant
contends on appeal that the trial court erred by admitting testimony by a href="http://www.fearnotlaw.com/">fingerprint expert that her analysis had
been verified by two other forensic analysts in her laboratory, in violation of
his Sixth Amendment right to confront adverse witnesses. Because we conclude any error in admitting
the testimony was harmless beyond a reasonable doubt, we affirm the judgment.

factual background

Claudia
Sanchez and her four children came to Southern California
for vacation, arriving in Long Beach
the morning of November 4, 2010. She checked into the Hotel Current, room 127,
a corner, ground floor room with two beds and a bathroom. She was given two keycards, which she kept in
her possession. The bathroom window
faced the parking lot behind the hotel where her car was parked. The family put their luggage in the room, had
breakfast, and at around 10:00 a.m.
they prepared to leave for Disneyland. Sanchez made sure the bathroom window was
shut, the lights and air conditioning were turned off, and the front window and
door were closed and locked. As she
drove away, she saw that the bathroom window and screen were undamaged.

The
Sanchez family returned to their hotel room around 1:00 a.m. the following morning. As soon as she parked near the hotel room,
she saw that the lights were turned on in the room, the bathroom window screen
was bent open, and the bathroom window was open. The door to the room was propped open with
the hinge used to lock the door from the inside. Sanchez looked inside the room and saw that
the television set and refrigerator were gone.
The family’s jackets, six packed suitcases, portable DVD player, a DVD
movie, and $300 in cash were also gone.
She notified the front desk and the police were called. She had not given anyone permission to enter
the hotel room.

The
hotel’s general manager said room 127 had recently been renovated, including
replacement of the bathroom window screen.
The manager met Sanchez in the hotel lobby around 1:20
a.m.
and accompanied her and a police officer to room 127. The room had been ransacked; the alarm clock
with an iPod dock was gone, along with the television and refrigerator. The hotel’s electronic reporting system
indicated a housekeeper had entered the room the morning of November 4th using
her magnetic keycard, and no one else had used a magnetic keycard to enter the
room for the rest of the day. At trial,
the manager did not recognize defendant.
Defendant was not employed by the hotel and he was not on the renovation
contractor’s payroll.

Long
Beach Police Officer Vincent Kong responded to the burglary scene. He saw that the bathroom window screen to
room 127 had been pried open. Based on
Sanchez’s assurance that she locked the doors and windows before leaving the room
and due to the lack of damage to the front window and door, Officer Kong concluded
the burglar had entered the room through the rear bathroom window.

Heather
Cochran, a forensic specialist for the City of Long Beach with 16 years of experience
with fingerprint evidence, examined for fingerprints on various surfaces inside
room 127, as well as the bathroom window and screen. She obtained only one fingerprint, from the
bathroom window screen. Cochran
transferred the latent fingerprint onto an exemplar card, and the card was
admitted into evidence at trial.

Nancy
Preston was declared an expert in fingerprint examination at trial. Preston is a forensic specialist with the Long Beach Police
Department’s crime laboratory and has 19 years of experience in the field,
including specialized training. Preston received the fingerprint exemplar
card prepared by Cochran on November 11, 2010 (People’s exhibit 9). Preston ran the print through the Automated Fingerprint
Identification System (AFIS) database to search for potential matches. The AFIS generated a list of 50 possible
candidates for comparison, using a mathematical program to rank the results in
order of the probability of each being a match.
Preston examined the AFIS list by comparing the computer-generated
fingerprints to the print on the exemplar card.
The fourth one on the AFIS list appeared to her to be a potential
match. She therefore generated an
exemplar card of that print. Preston visually compared the
latent print exemplar card to the AFIS exemplar card, using a magnifying glass
and fingerprint pointers, and determined they matched. The AFIS card was a print of defendant’s
right middle finger (People’s exhibit 10).

On December 19, 2011, Preston met with defendant and rolled his fingerprints in
order to create a third exemplar card (People’s exhibit 11). When she compared the AFIS exemplar to the
one she obtained from defendant she determined they matched. She concluded that all three prints were made
by the same person, defendant.

The
prosecutor inquired if Preston’s work was verified or checked by anyone else in her
lab, and she replied in the affirmative.
The prosecutor asked how many people had checked it and defense counsel
objected, saying out of the jury’s presence, “If counsel intends to elicit
testimony from this witness as to the examinations of other people, I’m going
to object as calls for hearsay. I don’t
see how she can just say to this witness did someone else check your work and
was it deemed accurate without putting on that witness and subjecting that witness
to cross-examination.”

The
prosecutor argued Preston’s testimony fell under the business records exception
to the hearsay rule. Defense counsel
responded that the business records exception does not include matters that
require analysis and results of tests without making the other people available
for cross-examination to explore what analysis or techniques they used, what
the results of their comparisons were, and what features they looked at. The trial court indicated that it was a
combination of the business records exception and the principle that an expert
can rely on hearsay as part of his or her opinion; the fact her analysis was
verified by other individuals formed part of her opinion. Defense counsel replied that the other people
did the exact same thing this witness had done, and by allowing her to testify
about what the others did his client was denied the opportunity to
cross-examine the other expert witnesses.

The
trial court ascertained that there was a notation on the exemplar card that the
print was verified, and ruled that was part of the business record. The court stated that it saw no distinction
between this situation and one in which an expert rendered an opinion based on
his or her own observations or calculations as well as consultation with
colleagues or other experts. The court
overruled the objection.

Preston then testified that two
other people verified her work, as was standard procedure in her laboratory as
well as in many other laboratories. This
was done as a quality control measure to ensure no errors were made before a
report was sent to the detectives. Also,
“as in any science it shows that the results can be duplicated and it is an
accepted method to validate your initial findings.” Preston identified the other two reviewers as Pete Pkergil
and Cynthia Watts. Preston’s “latent print CSI
analysis report” was marked as People’s exhibit 12. It contained a notation of “verified by,”
followed by two signatures. Preston stated that in verifying
her work Pkergil and Watts were agreeing with her conclusion. If she had made an erroneous identification
her peers would have alerted her to that fact, as was standard practice in her
industry.

On
cross-examination, Preston stated that her two colleagues did not compare all of
the AFIS candidates prior to comparing the prints in Preston’s report. Preston did not make any notes of why she rejected as matches
the first three candidates on the AFIS-generated list. Once she determined the fourth print was a
match, she did not compare other prints from the AFIS list. She agreed that the fingerprint obtained from
the crime scene was incomplete. It was
less than half of a complete print because the center portion was absent, the
right portion was smeared, and the left portion was too dark to see any
characteristics. Preston specified that she did not
do a direct visual comparison between the card of defendant’s prints that she
rolled herself and the original latent print taken from the crime scene; rather
she compared the print she rolled with the AFIS exemplar card that she
previously determined matched the latent print.
Defense counsel asked if there was an error rate involved with
fingerprint identification, and Preston responded that there was not an established error
rate that she could cite but the amount of errors that had been discovered
indicated the error rate was “very, very, very low.” She agreed that the only way errors could be
discovered in her lab was by the verification process they used. She acknowledged that the colleagues who
checked her work knew when performing their analysis that she had reached the
conclusion the three exemplar cards matched.
She knew from performing verifications herself that they would have done
their own independent comparisons.

On June 6, 2011, defendant was questioned about the November 4, 2010 robbery at the Hotel Current by Police Officer Robert
Bernsen. Defendant waived his >Mirandahref="#_ftn2" name="_ftnref2" title="">>[2] rights. Officer Bernsen took defendant to the hotel
and showed him where the burglar had entered the hotel room. Defendant said he had never been to the hotel
before.

Defendant
did not present any evidence in his defense.

This
timely appeal followed.

discussion

Defendant
contends Preston’s testimony that her fingerprint analysis was verified and
duplicated by two other analysts, Pkergil and Watts, was testimonial hearsay
and violated his Sixth Amendment right to cross-examine witnesses under >Crawford v. Washington (2004) 541 U.S.
36 and its progeny. We conclude that any
error was harmless.href="#_ftn3" name="_ftnref3"
title="">[3]

United
States Supreme Court decisions regarding under what conditions introduction of
forensic analyses such as lab reports violates the Sixth Amendment (>Melendez-Diaz v. Massachusetts (2009)
557 U.S. 305, Bullcoming v. >New Mexico> (2011) 564 U.S. ___ [180 L.Ed.2d 610, 131
S.Ct. 2705], and Williams v. Illinois
(2012) 567 U.S. ___ [183 L.Ed.2d 89, 132
S.Ct. 2221]) have created a “muddled state of current doctrine” that is
difficult to decipher and which we do not attempt to summarize. (People
v. Lopez (2012) 55 Cal.4th 569, 575 (Liu, J., dis.) (Lopez).) Recently, the
California Supreme Court undertook the task in Lopez, supra,> and People
v. Dungo (2012) 55 Cal.4th 608.

The court held in >Lopez:
“Under this quartet of cases [Crawford,> Melendez-Diaz, Bullcoming, and Williams]
. . . , the prosecution’s use at trial of testimonial
out-of-court statements ordinarily violates the defendant’s right to confront
the maker of the statements unless the declarant is unavailable to testify and
the defendant had a prior opportunity for cross-examination. Although the high court has not agreed on a
definition of ‘testimonial,’ a review of the just-mentioned four decisions
indicates that a statement is testimonial when two critical components are
present. [¶] First, to be testimonial the out-of-court
statement must have been made with some degree of formality or solemnity. [Citations.]
The degree of formality required, however, remains a subject of dispute
in the United States Supreme Court.
[Citations.] [¶] Second, all nine high court justices agree that
an out-of-court statement is testimonial only if its primary purpose pertains
in some fashion to a criminal prosecution, but they do not agree on what the
statement’s primary purpose must be. For
instance, in this year’s Williams
decision, Justice Alito’s plurality opinion said that the Cellmark laboratory’s
report at issue was not testimonial because it had not been prepared ‘for the
primary purpose of accusing a targeted
individual.’ (Williams, supra, 567 U.S.
at p. ___ [132 S.Ct. at p. 2243] (plur. opn. of Alito, J.), italics
added.) Justice Thomas’s concurring
opinion criticized that standard, describing it as lacking ‘any grounding in
constitutional text, in history, or in logic.’
(Id. at p. ___ [132 S.Ct. at
p. 2262] (conc. opn. of Thomas, J.).)
Instead, for Justice Thomas, the pertinent inquiry is whether the
statement was ‘primarily intend[ed] to establish some fact with the
understanding that [the] statement may be used in a criminal prosecution.’ (Id.
at p. ___ [132 S.Ct. at p. 2261] (conc. opn. of Thomas, J.).) And under the Williams dissent, the pertinent inquiry is whether the report was
prepared ‘for the primary purpose of establishing “past events potentially
relevant to later criminal prosecution”—in other words, for the purpose of providing
evidence.’ (Id. at p. ___ [132 S.Ct. at p. 2273] (dis. opn. of Kagan, J.),
joined by Justices Scalia, Ginsburg, and Sotomayor.)” (Lopez,> supra, 55 Cal.4th at pp. 581-582; see also Dungo, supra,> 55 Cal.4th at p. 619.)

In >People v. Rutterschmidt (2012) 55
Cal.4th 650, 661, decided the same day as Lopez
and Dungo, the court declined to decide whether, under the >Lopez formulation, the trial court erred
in admitting the testimony of a laboratory director who relied on reports he
did not prepare to testify that testing of the murder victim’s blood samples at
his laboratory determined the presence of drugs that could have caused
drowsiness. (Id. at p. 652.) The
court instead determined that any error was harmless beyond a reasonable
doubt. (Id. at p. 661.)

Like
the court in Rutterschmidt,> we decline to decide whether Preston’s testimony that her
fingerprint analysis was verified and duplicated by Pkergil and Watts violated the Sixth
Amendment, because any error was harmless beyond a reasonable doubt. It is true that the only evidence connecting
defendant to the burglary was Preston’s opinion that defendant’s latent print matched one
at the crime scene. However, Preston personally and
independently performed her own fingerprint comparison, testified to that
comparison, and was available for cross-examination. When asked whether her conclusion was
“verified or checked by anyone else in [her] lab,” she testified without
objection that it was; it was only when the prosecutor asked how many people
had checked it that defense counsel objected.
From that testimony alone the jury knew that someone had verified her
results. As for the hearsay objection,
it is clear that under California law an expert can rely on
out-of-court statements to form their opinion, and that is what the expert did
here—the verifications were part of the evidence she considered in giving her
expert opinion. Preston’s testimony was also a
relevant, accurate description of the process used in her laboratory. Her report, which was admitted into evidence,
was signed by the two other experts as “verification signatures.”

Defendant
was free to cross-examine Preston about all of the topics that he suggests on
appeal might have cast doubt on her
opinion—why she did not take notes regarding why the first three AFIS prints
did not match the one at the crime scene, why she did not examine any of the
other AFIS prints after defendant’s, the nature of the crime scene print as
only partial, and other like topics.
Moreover, there is nothing to suggest that cross-examination of the two
people who verified Preston’s results would have been helpful in evaluating Preston’s opinion. Further, defendant presented no evidence
whatsoever, and in particular no expert testimony challenging Preston’s comparison. Under these circumstances, any error in
admitting Preston’s testimony that Pkergil and Watts verified and duplicated her
work was harmless beyond a reasonable doubt.
(Chapman v. California (1967)
386 U.S. 18, 24.)

disposition

The
judgment is affirmed.



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS







SUZUKAWA,
J.



We concur:







EPSTEIN, P.
J.







MANELLA, J.