Opinion
B223335
08-25-2011
THE PEOPLE, Plaintiff and Respondent, v. VELTON BOONE, Defendant and Appellant.
Sally Patrone Brajevich, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels, Michael R. Johnsen, and Joseph P. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA326464)
APPEAL from the Superior Court of Los Angeles County, Larry P. Fidler, Judge. Affirmed in part and reversed in part.
Sally Patrone Brajevich, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels, Michael R. Johnsen, and Joseph P. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Velton Boone of two counts of kidnapping to commit robbery, one count of attempted second degree robbery, one count of second degree burglary and four counts of assault with a firearm. The jury also found true special allegations Boone had personally used a firearm in the commission of each offense. In a bifurcated proceeding the trial court found true special allegations Boone had suffered four prior serious or violent felony convictions. On appeal Boone contends his convictions for aggravated kidnapping are not supported by substantial evidence. He also contends the trial court erred in denying his motion to replace his appointed counsel and his request to represent himself at trial. In addition, he contends expert testimony by forensic technicians who did not perform the forensic tests to which they testified violated his Sixth Amendment right to confrontation. We reverse one of the convictions for aggravated kidnapping and further modify the judgment to correct an unauthorized sentence. In all other respects, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Information
Boone was charged in an amended information with two counts of kidnapping to commit robbery (aggravated kidnapping) (Pen. Code, § 209, subd. (b)(1)) (counts 1 and 2), attempted second degree robbery (§§ 211, 664) (count 3), second degree burglary (§ 459) (count 4), robbery (§ 211) (count 5) and four counts of assault with a firearm (§ 245, subd. (a)(2)) (counts 6 through 9). As to counts 1 through 5 the information specially alleged Boone had personally used a firearm as defined in section 12022.53, subdivision (b). As to counts 6 through 9 the information specially alleged Boone had personally used a firearm as defined in section 12022.5, subdivision (a). As to all counts the information specially alleged Boone had suffered six prior serious felony convictions within the meaning of section 667, subdivision (a), and six prior serious or violent felony convictions within the meaning of the "Three Strikes" law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). Boone pleaded not guilty and denied the special allegations.
Statutory references are to the Penal Code unless otherwise indicated.
2. The Trial
According to the evidence presented at trial, on July 29, 2007 at 2:30 a.m. Boone and another man entered a closed retail supermarket in Los Angeles through an open delivery door at the back of the store. Once inside Boone and his companion, both wearing masks and gloves and armed with handguns, approached Raul Gallardo, a truck driver who was in the back warehouse unloading items from his truck. Boone and the other man knocked Gallardo to the ground and pointed their guns at him. One of the men shoved his gun into Gallardo's chest and ordered him to keep his mouth shut, then took Gallardo's cell phone and tossed it away. The men took Gallardo to an adjacent room in the back of the store, tied his wrists with a cord and left him for five minutes. When they returned, they untied Gallardo, shoved their guns in his ribs and forced him to walk to the front of the store to get the manager.
Micah Green, a warehouse clerk and the acting store manager at the time of the robbery, was helping to unload the truck on the loading dock adjacent to the warehouse when he saw Boone attack Gallardo. Green fled to the front of the store to warn other employees and called the 911 emergency operator. Boone and his confederate found Green in the front of the store, took him and Gallardo by force to a middle aisle of the store where a stock clerk, Esteban Flores, and cleaning worker, Serafin Zarate, had been found while attempting to hide. Brandishing their weapons, the two perpetrators ordered all four employees to lie face down on the floor. After Green was identified as the acting manager, Boone forced Green to return to the front of the store where the safes were located. Green opened the safes and, as directed, placed the contents, $1,800 in cash and coins, in a bag inside a milk crate. Green then took the crate to the warehouse at the other end of the store, as Boone and his partner had directed. Once in the warehouse, the men ordered Green to lie on the ground. Boone and the other gunman walked from the middle of the warehouse to the loading dock where they discovered police had surrounded the store.
Seeing the police, Boone became agitated and ran back into the warehouse where he took off his mask, which allowed Green to see his face. A stand-off with the police ensued. Officers eventually entered the store and found Boone hiding in a storage room. The second perpetrator was never found. A semiautomatic handgun and a revolver, as well as a mask and gloves, were found inside the store. Forensic experts testified Boone's DNA was found on one of the gloves and the mask and his fingerprint was found on a water bottle in the butcher's area of the store. At trial Green identified Boone as one of the gunmen.
The defense did not present any witnesses. The defense theory of the case was that Boone had been present at the store at the time of the robbery but had not been one of the perpetrators.
3. The Verdict and Sentence
The jury acquitted Boone on count 5 (robbery of Gallardo by taking his cell phone) and convicted him on all remaining counts. The jury also found true each of the special firearm allegations on those remaining counts. In a bifurcated proceeding on the prior conviction special allegations, the trial court found Boone had suffered three prior robbery convictions and one prior murder conviction within the meaning of both the Three Strikes law and section 667, subdivision (a)(1). The trial court sentenced Boone to an aggregate state prison term of 262 years to life.
DISCUSSION
1. Boone's Aggravated Kidnapping Convictions
a. Governing law
The crime of kidnapping to commit robbery requires movement of the victim that is "not merely incidental to the commission of" the robbery and "substantially increase[s] the risk of harm over and above that necessarily present in the crime of robbery itself." (People v. Vines (2011) 51 Cal.4th 830, 869 (Vines); accord, People v. Rayford (1994) 9 Cal.4th 1, 12; People v. Daniels (1969) 71 Cal.2d, 1119, 1139; see § 209, subd. (b)(2).) To determine whether movement is incidental, "the jury considers the 'scope and nature' of the movement, which includes the actual distance a victim is moved." (Vines, at p. 870; accord, Rayford, at p. 12.) There is no minimum number of feet that is determinative. (Rayford, at p. 12.) Rather, the critical consideration is the "context of the environment in which the movement occurred." (Ibid.; accord, Vines, at p. 870.)
A movement may substantially increase the risk of harm to the victim beyond that inherent in the robbery if it "decreases the likelihood of detection, increases the danger inherent in a victim's foreseeable attempts to escape, or enhances the attacker's opportunity to commit additional crimes." (People v. Dominguez (2006) 39 Cal.4th 1141, 1152; accord, People v. Rayford, supra, 9 Cal.4th at p. 13.) Whether the risk of danger actually materializes is not dispositive. (See Rayford, at p. 13 ["that these dangers do not in fact materialize does not, of course, mean that the risk of harm was not increased"].) The question is whether the movement could have substantially increased the risk to the victim. (People v. Martinez (1999) 20 Cal.4th 225, 233.) Each case must be considered in the context of its circumstances. (Dominguez, at p. 1152.)
b. Boone's conviction for aggravated kidnapping of Gallardo (count 1) is supported by substantial evidence; his conviction for aggravated kidnapping of Green (count 2) is not
Boone contends his convictions on counts 1 and 2 for the aggravated kidnapping of Gallardo and Green are not supported by substantial evidence because the movement of both employees "within the store premises" was incidental to the robbery and did not increase the risk of harm to either Gallardo or Green beyond that inherent in the robbery. To support his contention, Boone cites several Supreme Court decisions finding, in varying contexts and circumstances, that movement of the victim within a store's premises, without more, is generally insufficient to support aggravated kidnapping. (See, e.g., People v. Daniels, supra, 71 Cal.2d at p. 1140 ["when in the course of a robbery a defendant does no more than move his victim around inside the premises in which he finds him . . . his conduct generally will not be deemed to constitute" aggravated kidnapping]; People v. Williams (1970) 2 Cal.3d 894, 902-904; People v. Smith (1971) 4 Cal.3d 426, 427; People v. Adams (1971) 4 Cal.3d 429, 430-431; In re Crumpton (1973) 9 Cal.3d 463, 466; but see People v. Timmons (1971) 4 Cal.3d 411, 413 ["We explained in Daniels [citation] that when a robber merely moves his victim around inside the premises in which he finds him, 'his conduct generally will not be deemed to constitute the offense proscribed by section 209.' The emphasized qualifier means, however, that there may be circumstances in which a robber can properly be convicted of kidnapping even though he does not take his victim outside the premises in question."].)
In considering a challenge to the sufficiency of the evidence, "we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict—i.e., 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.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.] 'Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]' [Citation.] A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support"' the jury's verdict." (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
In each of the cases cited by Boone there was no evidence the chance for detection or foreseeable escape was affected by the movement. Here, in contrast, Gallardo was first confronted by Boone in a warehouse that was open to public view and from which he had easy and immediate access to the outside, including the loading dock where his vehicle was parked. He was then moved from the open warehouse, tied up and locked in an interior room of the store, a fact the jury could have found substantially increased the risk of harm to him and decreased his chances for detection and foreseeable escape. (See People v. Dominguez, supra, 39 Cal.4th at p. 1152.) Viewed in the light most favorable to the judgment, sufficient evidence supports the jury's finding. (See, e.g., People v. Hill (1971) 20 Cal.App.3d 1049, 1052-1053 [substantial evidence supported aggravated kidnapping where defendant robbing supermarket moved customers from parking lot into market where he could, and did, fire his gun undetected]; People v. James (2007) 148 Cal.App.4th 446, 456-457 [substantial evidence supported aggravated kidnapping where victim was forced from the parking lot of bingo club to inside of club].)
Boone contends Gallardo had been in a back storage room and was thus not "outside" in public view when confronted by Boone. The People, in contrast, insist Gallardo was "outside" on the loading dock when Boone found him. In fact, the record reflects Gallardo had been unloading grocery pallets in the back storage room adjacent to the loading dock when he was accosted by Boone and his partner. As demonstrated in the photographs introduced at trial, when the warehouse door is open, as the evidence shows it was, the storage room is open to the outside. For this reason, the district attorney argued in closing argument, without objection, that Gallardo had been "moved from an open loading dock area, which is open to the outside, to an interior room and tied up . . . increasing his risk of physical and psychological harm."
In contrast to Gallardo, Green was inside the store when he was confronted by Boone and his accomplice. Although Green was moved by force or threat of force to various locations in the store—from the front of the store to the middle aisle to confirm his identity with other employees, then back to the front to open the safe, and finally to the warehouse to deposit the money for Boone and his partner to take upon their escape—all that movement inside the store's premises, intended solely to obtain the store's valuables, was incidental to the robbery. (See People v. Washington (2005) 127 Cal.App.4th 290, 298 ["robbery of a business owner or employee includes the risk of movement of the victim to the location of the valuables owned by the business that are held on the business premises"; "where movement occurred entirely within the premises of the bank and each victim [was] moved the shortest distance between their original location and the vault room, there was no excess or gratuitous movement of the victims over and above that necessary to obtain the money in the vault"]; People v. Adame (1971) 4 Cal.3d 417, 418-419 [insufficient evidence of aggravated kidnapping where defendants caused two employees to move from the market's check stand and manager's office to the safe]; see also People v. Hoard (2002) 103 Cal.App.4th 599, 602, 607 [herding of jewelry store employees in back office to give defendant free access to jewelry did not increase risk of harm to victims beyond that inherent in robbery].)
The People argue Boone did much more than move Green to the location of the store's valuables. Rather, they assert Boone forcibly moved Green from the front of the store, where he had a chance to escape, to the middle aisle where there was little chance of detection. This characterization is not supported by the record. The store was closed to the public; and there was no basis for the jury to find any location inside the store more amenable to public access or escape than anywhere else. Without some evidence of a risk of harm beyond that inherent in the robbery itself, Boone's conviction for aggravated kidnapping of Green cannot stand.
2. The Trial Court Did Not Abuse Its Discretion in Denying Boone's Marsden Motion To Replace Appointed Counsel
People v. Marsden (1970) 2 Cal.3d 118 addresses the circumstances under which a criminal defendant has a right to have his or her appointed counsel replaced and the procedures to be used by the trial court in determining whether those circumstances exist.
a. Relevant proceedings
On December 21, 2007 Boone appeared at a hearing to continue the trial date. Attorney Suzanne Schwartz stood in for Boone's appointed attorney, Ludlow B. Creary II, because Creary was engaged in trial in Riverside. Boone waived his speedy trial rights under section 1382 and the California and United States Constitutions. He also requested a Marsden hearing. Because Creary was not present in court, the court scheduled the Marsden hearing for the following week when Creary would be available.
On December 28, 2007, the date of the scheduled Marsden hearing, Boone appeared with Creary. Having observed Creary and Boone talking prior to the hearing, the court began the hearing by asking whether Boone's concerns had been satisfied or whether he wanted to continue with the Marsden hearing. Boone replied he had partially resolved his differences with Creary, but was still troubled that Creary had not given him a copy of the preliminary hearing transcript and police reports. The court explained to Boone it may not be in his best interests to obtain those documents. Boone told the court he understood but, in light of the prison time he was potentially facing, was prepared to assume the risk. Creary told the court he was working with the prosecutor to redact the police reports and would give them to Boone and would also provide him with the preliminary hearing transcript. His concerns apparently satisfied, Boone once again waived his speedy trial rights. He did not renew his request for a Marsden hearing, and no Marsden hearing was held.
The court explained that attorneys generally believe it is not in the best interests of their incarcerated clients to have copies of the preliminary hearing transcript and police reports: "[S]omeone else who shares the cell with you or someone else who gains access to this, reads it, become[s] educated as to the facts of your case and then says that you've confessed to him or something like that. . . . That has happened many times. And for that reason, generally speaking, attorneys do not want their clients to have that information in their possession."
On April 7, 2008 the court announced trial would begin the next day. Boone made a second Marsden motion. The court immediately held a Marsden hearing in which Boone explained he and Creary were not "seeing eye to eye on anything." He informed the court Creary had not communicated with him and had only visited him once in jail in eight months. Creary acknowledged he had only made a single visit to Boone in jail in the eight months the case had been pending, but insisted he had communicated with him repeatedly at every hearing, including explaining, on more than one occasion, that he was awaiting discovery from the district attorney concerning DNA results. Moreover, although Creary had not visited Boone more than once in jail, Creary's investigator had visited him several times in the county jail. Creary advised the court Boone's dissatisfaction appeared to be rooted in Creary's denial of Boone's requests for things that Creary thought unhelpful to the defense, such as a live lineup. Boone denied he had asked for a live lineup but acknowledged he had requested a Pitchess motion directed to the forensic pathologist who analyzed the crime scene evidence. The court explained to Boone there was no basis for a Pitchess -type motion directed to the forensic pathologist and reminded Boone it was improper to file "frivolous motions." While the court expressed some concern that Creary had only visited Boone in jail once in eight months, it found there had been adequate communication at the several pretrial hearings. Finding no other basis to replace Creary, the court denied Boone's Marsden motion.
In Pitchess v. Superior Court (1974) 11 Cal.3d 531 the Supreme Court held a criminal defendant's fundamental right to a fair trial entitled him or her to discover relevant information in a peace officer's personnel records relating to citizen complaints. Motions for discovery of peace officer personnel files under the subsequently enacted statutory scheme (see §§ 832.7, 832.8; Evid. Code, §§ 1043, 1045) are still referred to as Pitchess motions. (See Galindo v. Superior Court (2010) 50 Cal.4th 1, 5.)
The court stated, "Although from my standpoint, I would have preferred . . . that there had been more visitation at the county jail," "there has been adequate opportunities and, in fact, adequate communications between the attorney and client, and there is no other basis for me to grant this motion. Therefore, the motion is denied."
b. Governing law on Marsden motions
When a criminal defendant seeks replacement of appointed counsel because of inadequate representation, a trial court must give the defendant a hearing and an opportunity to explain the reasons for the request. (People v. Marsden (1970) 2 Cal.3d 118, 120; accord, People v. Chavez (1980) 26 Cal.3d 334, 347 ["'A trial judge is unable to intelligently deal with a defendant's request for substitution of attorneys unless he [or she] is cognizant of the grounds which prompted the request. The defendant may have knowledge of conduct and events relevant to the diligence and competence of his attorney which are not apparent to the trial judge from observations within the four corners of the courtroom. . . . A judicial decision made without giving a party an opportunity to present argument or evidence in support of his contention "is lacking in all the attributes of a judicial determination."'"].)
A Marsden hearing is not a full-blown adversarial proceeding but rather an informal hearing in which the court determines the nature of the defendant's concerns about his or her counsel's representation and decides whether the allegations have sufficient substance to warrant counsel's replacement. (People v. Gutierrez (2009) 45 Cal.4th 789, 803.) "Although no formal motion is necessary, there must be 'at least some clear indication by defendant that he wants a substitute attorney.'" (People v. Mendoza (2000) 24 Cal.4th 130, 156-157; accord, People v. Dickey (2005) 35 Cal.4th 884, 920.)
"Replacing counsel lies within the court's discretion. 'The court does not abuse its discretion in denying [a Marsden] motion unless the defendant has shown that a failure to replace counsel would substantially impair the defendant's right to assistance of counsel.'" (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1003; accord, People v. Smith (2003) 30 Cal.4th 581, 604.)
c. The trial court did not abuse its discretion in denying Boone's Marsden motion.
Boone contends the court abused its discretion in waiting until April 7, 2008, the day before trial, to hold the Marsden hearing he had requested on December 21, 2007. In fact, the court was prepared to hold the hearing on December 28, 2007, the earliest possible time following the December 21 request when Boone's counsel could be present. At that hearing the court inquired whether Boone and his counsel had resolved their differences. Boone replied they had in part, but he still wanted copies of the preliminary transcript and the redacted police report. Counsel assured the court he would provide those items to Boone. Boone, apparently satisfied, did not renew his request and gave no indication he still wanted to proceed with the hearing at that time. Because Boone had abandoned his request for a Marsden hearing, the court did not err in failing to hold a full hearing on December 28, 2007. (See People v. Mendoza, supra, 24 Cal.4th at pp. 156-157 [there must be some indication defendant wants to replace appointed counsel to trigger Marsden hearing].)
The trial court impliedly determined the short delay (only four court days because of the weekend and the Christmas holiday) in holding the Marsden hearing would not prejudice Boone, and Boone does not argue to the contrary. He does suggest, however, that Creary's absence was seen by the court as a "repeated problem," emphasizing that, when asked where Creary was and informed Creary was engaged in trial in Riverside, the court responded, "that sounds familiar." Contrary to Boone's insistence that the court's remarks evidence Creary's repeated absences, the court's response appears to be simply an acknowledgment that it had been advised Creary would be engaged in trial on that hearing date.
Boone also contends the court abused its discretion in not granting his April 7, 2008 Marsden motion. Boone reported at that hearing Creary had had only minimal communication with him, had visited him in jail once in eight months and had even failed to contact Boone's family to obtain for Boone proper clothes for trial. The court considered all Boone's objections and determined most were expressions of frustration over Creary's tactical choices, a finding Boone does not contest on appeal. (See People v. Crandell (1988) 46 Cal.3d 833, 859-860 ["disagreement concerning tactics is . . . insufficient to compel the discharge of appointed counsel, unless it signals a complete breakdown in the attorney-client relationship"]; People v. Hart (1999) 20 Cal.4th 546, 604 [trial counsel's decision not to provide defendant with copies of police reports was a tactical decision made in defendant's best interests"].) The court also determined that, while it would have preferred additional visits between Boone and Creary, Creary and Boone had communicated at several pretrial hearings. Boone's investigator had also met "extensively" with Boone in jail. The trial court concluded Boone had not demonstrated a sufficient breakdown in the relationship to suggest he would be deprived of effective assistance of counsel unless his motion to replace counsel was granted. That ruling was well within the court's discretion. (See Hart, at p. 604 [no abuse of discretion in denying Marsden motion; "'[t]he number of times one sees his attorney, and the way in which one relates with his attorney, does not sufficiently establish incompetence'"]; People v. Silva (1988) 45 Cal.3d 604, 622 [same].)
The court agreed Boone would be more comfortable in his own clothes than clothes Creary said he would provide for him. The court continued the trial to the next day to allow Creary to contact Boone's family to obtain clothes for him.
3. The Trial Court Did Not Abuse its Discretion in Denying Boone's Untimely Motion for Self-representation at Trial
Boone contends the court also erred in denying his motions to represent himself at trial, which he made for the first time on the eve of trial immediately following the trial court's denial of his Marsden motion on April 7, 2008. The court declared the motion untimely and inquired whether Boone was ready to proceed to trial that day. The court denied the motion after Boone responded he was not ready to proceed and would need a continuance.
A criminal defendant has the right under the Sixth and Fourteenth Amendments to the United States Constitution to waive his or her right to counsel and to represent himself or herself. (Faretta v. California (1975) 422 U.S. 806, 819 [95 S.Ct. 2525, 45 L.Ed.2d 562] ["[t]he Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense"]; People v. Koontz (2002) 27 Cal.4th 1041, 1069 ["'A defendant in a criminal case possesses two constitutional rights with respect to representation that are mutually exclusive. A defendant has the right to be represented by counsel at all critical stages of a criminal prosecution. [Citations.] At the same time . . . because the Sixth Amendment grants to the accused personally the right to present a defense, a defendant possesses the right to represent himself or herself.'"].)
A defendant's right to self-representation, however, is absolute only if he or she invokes that constitutional right a reasonable time prior to the start of trial. (People v. Windham (1977) 19 Cal.3d 121, 127-128 ["in order to invoke the constitutionally mandated unconditional right of self-representation a defendant in a criminal trial should make an unequivocal assertion of that right within a reasonable time prior to the commencement of trial"]; accord, People v. Lawrence (2009) 46 Cal.4th 186, 191-192.) "'"When a motion for self-representation is not made in a timely fashion prior to trial, self-representation no longer is a matter of right but is subject to the trial court's discretion." [Citation.] In exercising this discretion, the trial court should consider factors such as "'the quality of counsel's representation of the defendant, the defendant's prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay which might reasonably be expected to follow the granting of such a motion.'"'" (People v. Valdez (2004) 32 Cal.4th 73, 103.)
Citing federal cases, Boone contends the motion was timely because it was made before the jury had been impaneled. (See Moore v. Calderon (9th Cir. 1997) 108 F.3d 261, 264 [articulating bright-line rule that Faretta request is timely if made before jury is empanelled unless it is shown to be a tactic to secure delay]; People v. Rudd (1998) 63 Cal.App.4th 620, 627 [noting federal rule].) That bright-line rule, articulated by the Ninth Circuit but not adopted by the United States Supreme Court, "is not, and has never been, the law in California." (People v. Jackson (2009) 45 Cal.4th 662, 690.) Controlling precedent from the California Supreme Court characterizes a request as untimely, and thus subject to the trial court's discretion, if not made within a reasonable time before trial. (People v. Clark (1992) 3 Cal.4th 41, 99.) Here, the request, quite literally made on the eve of trial, was plainly untimely. (See ibid. [request for self-representation made on eve of trial untimely; court had discretion to deny motion]; People v. Lynch (2010) 50 Cal.4th 693, 722-723 [citing cases holding that self-representation motion made days before trial untimely]; People v. Valdez, supra, 32 Cal.4th at p. 102 [motion for self-representation made moments before jury selection set to begin deemed untimely].)
Boone asserts his motion should not have been deemed untimely because he effectively made it at his earliest opportunity. He explains he was in lock-up and therefore unable to assert his Faretta rights during a number of pretrial proceedings. Although true, Boone was, in fact, present and in the courtroom on several other occasions. Despite these several opportunities, Boone did not assert his right to represent himself until the eve of trial, after his Marsden motion was denied and it was clear trial would begin the next day.
The record shows 15 pretrial proceedings occurred prior to April 7, 2008, most of which involved Boone's waiver of statutory time for trial. The minute orders reflect Boone was present in the courtroom or "present in lock-up" during those hearings as follows: September 27, 2007 (in lock-up); September 28, 2007 (in lock-up); October 12, 2007 (in lock-up); November 16, 2007 (in courtroom); December 4, 2007 (in courtroom); December 20, 2007 (in lock-up); December 21, 2007 (in courtroom); December 28, 2007 (in courtroom); January 15, 2008 (in lock-up); January 29, 2008 (in courtroom); February 13, 2008 (in courtroom); March 10, 2008 (in courtroom); March 27, 2008 (in lock-up); April 1, 2008 (in lock-up); and April 4; 2008 (in lock-up). The record does not disclose the reasons Boone was in lock-up on these occasions, but nothing suggests it was due to any obstreperous behavior on his part. (See generally People v. Welch (1999) 20 Cal.4th 701, 735 ["[a] trial court must undertake the task of deciding whether a defendant is and will remain so disruptive, obstreperous, disobedient, disrespectful or obstructionist in his or her actions or words as to preclude the exercise of the right to self-representation"].)
Because the motion was untimely, the court had discretion to consider whether granting of the motion would cause undue disruption and delay of the proceedings. (People v. Burton (1989) 48 Cal.3d 843, 852; People v. Jackson, supra, 45 Cal.4th at p. 689.) In response to the court's inquiry, Boone informed the court he was not prepared to represent himself and still go to trial the next day. Having determined counsel was present and ready for trial and that the request for self-representation was essentially a delay tactic to continue the trial, the court denied the motion. That decision was well within the trial court's discretion. (Jackson, at p. 690 [no abuse of discretion in denying Faretta request made during voir dire because granting motion would have caused undue delay]; People v. Valdez, supra, 32 Cal.4th at pp. 102-103 [not abuse of discretion to deny Faretta motion when records shows untimely motion, accompanied by request for continuance, made as part of effort to cause delay in trial].)
Although Boone describes as part of the procedural history of the case a second Faretta request following the close of the People's case, Boone does not raise the denial of that motion as an issue on appeal.
4. The Admission of Forensic Evidence in Violation of Boone's Sixth Amendment Right to Confrontation Was Harmless Beyond a Reasonable Doubt
At trial Wanda Kuperus, associate director at the laboratory that performed the DNA analysis and the supervisor of the analyst who performed the DNA tests in this case, testified about the test results placing Boone at the crime scene. Kuperus explained she supervises DNA analysts by reviewing their written report once it is completed and comparing the analyst's conclusions with her own analysis of the raw data the analyst presents to her. If, after reviewing the raw data and the report, she reaches the same conclusion as the analyst, she signs the report, as she did in this case. Kuperus testified without objection on Sixth Amendment grounds that, based on a report she signed, the DNA profile on the mask and glove found in the store matched the DNA profile obtained from Boone.
Boone did object on hearsay grounds.
The investigator who had retrieved the fingerprint from the bottle found inside the store was ill at the time of trial and unable to testify. Instead, the People presented the testimony of Arthur Gerio, a forensic print specialist. Gerio testified he had compared Boone's fingerprints, which he had personally printed during trial, to the fingerprint found at the crime scene. Gerio opined Boone's print matched the print taken from the crime scene. Boone's hearsay objection was overruled.
Boone contends the admission of Kuperus's and Gerio's testimony violated his Sixth Amendment right to confrontation as articulated in Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354, 158 L.Ed.2d 177] (Crawford). Because Boone did not object to that evidence on Sixth Amendment grounds, he has forfeited the challenge on appeal. (See People v. Partida (2005) 37 Cal.4th 428, 435 [defendant on appeal "may not argue that the court should have excluded the evidence for a reason different from his trial objection"]; People v. Williams (1997) 16 Cal.4th 153, 250 [constitutional objections not properly raised are forfeited]; People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1028, fn. 19 [hearsay objection insufficient to preserve constitutional claim].) In any event, Boone's claim that admission of the forensic testimony requires reversal is without merit.
In Crawford, supra, 541 U.S. 36, the United States Supreme Court held a criminal defendant's Sixth Amendment right to confront witnesses precludes the admission of testimonial hearsay against a defendant in a criminal trial unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination, even if the hearsay statement falls within a recognized exception to the hearsay rule. (Id. at pp. 53-54.) Without providing an exhaustive classification of all conceivable statements, in Davis v. Washington (2006) 547 U.S. 813 [126 S.Ct. 2266, 165 L.Ed.2d 224] the Court offered some guidance for determining when statements are testimonial: "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." (Id. at p. 822.)
In People v. Geier (2007) 41 Cal.4th 555 the California Supreme Court reviewed Crawford, Davis and other confrontation clause cases to determine whether it was a violation of the Sixth Amendment for the prosecution's DNA expert to testify based on her analysis of DNA test results obtained by another analyst who was not available for cross-examination at trial. (Geier, at p. 596.) The Court concluded a hearsay 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." (Id. at p. 605.) The Court held reports of DNA testing do not meet the second criterion because they "constitute a contemporaneous recordation of observable events rather than the documentation of past events." (Ibid.) Additionally, when analysts performing DNA testing contemporaneously record their actions, observations and test results, they are not acting to incriminate a defendant because their reports have the potential to be either inculpatory or exculpatory. Therefore, even though analysts may be working for the police and can reasonably anticipate the use of the test results at trial, they are not acting as accusatory witnesses and are not testifying when they prepare their reports. (Id. at pp. 605-607.) Accordingly, the Court held the DNA testing report was not testimonial and its admission without the ability to cross-examine the analyst who prepared it did not conflict with Crawford or violate the defendant's Sixth Amendment rights. (Geier, at pp. 605-607.) After Geier the United States Supreme Court held in Melendez-Diaz v. Massachusetts (2009) 557 U.S. _____ [129 S.Ct. 2527, 174 L.Ed.2d 314] that the Sixth Amendment precluded the People from introducing into evidence at trial affidavits, sworn to by government laboratory analysts before a notary public, showing that forensic analysis of a seized substance determined it was cocaine. (Id. at pp. _____ [129 S.Ct. at pp. 2531-2532].) The Supreme Court held the affidavits were testimonial statements because they were the functional equivalent of live, in-court testimony and were "'"made under circumstances which would lead an objective witness reasonably to believe that the statement[s] would be available for use at a later trial."'" (Ibid.) Additionally, the Court concluded the analysts were accusatory witnesses because the affidavits proved facts necessary to the prosecution's case. (Id. at pp. _____ [129 S.Ct. at pp. 2533-2534].) Thus, the Court implicitly rejected much of the Geier Court's reasoning that reports of DNA testing are not testimonial, including its explanation that the "near-contemporaneity" of the analysts' observations and recording of events eliminated any Sixth Amendment concerns. (Melendez-Diaz, at p. _____ .)
The California Courts of Appeal have disagreed whether Geier remains good law after Melendez-Diaz, a question currently pending before the California Supreme Court. In arguing Geier survives Melendez-Diaz, the People emphasize that in Geier a witness subject to cross-examination was allowed to rely on data in reports prepared by others to offer an expert opinion she was qualified by training and experience to give, while in Melendez-Diaz the prosecution sought to admit a document written by an analyst who was not subject to cross-examination
The Supreme Court has granted review in People v. Rutterschmidt (2009) 176 Cal.App.4th 1047, review granted December 2, 2009, S176213 (Geier survives and is distinguishable from Melendez-Diaz ); People v. Gutierrez (2009) 177 Cal.App.4th 654, review granted December 2, 2009, S176620 (Geier survives and is distinguishable from Melendez-Diaz); People v. Dungo (2009) 176 Cal.App.4th 1388, review granted December 2, 2009, S176886 (expert's testimony based on another expert's report inadmissible under Melendez-Diaz); and People v. Lopez (2009) 177 Cal.App.4th 202, review granted December 2, 2009, S177046 (Geier disapproved by Melendez-Diaz), in addition to several others in which it has deferred briefing pending its decision in the these cases.
Whether that distinction—the availability of a live witness subject to cross-examination—is sufficient to satisfy the confrontation clause appears to have been answered by the United States Supreme Court's recent decision in Bullcoming v. New Mexico (June 23, 2011, No. 09-10876) __ U.S. __ [131 S.Ct. 2705, 180 L.Ed.2d 610] (Bullcoming), filed while this appeal was pending. In Bullcoming the defendant was charged for driving while intoxicated (DWI). The principal evidence against the defendant was a forensic laboratory report certifying that the defendant's blood-alcohol concentration was well above the threshold for an aggravated DWI. At trial the prosecution did not call the technician who signed the certification. Instead, the prosecution called another analyst who was familiar with the laboratory's procedures but had not participated in nor observed the test on the defendant's blood sample. The Court held the "in-court testimony of a scientist who did not sign the certification or perform or observe the test reported in the certification" did not satisfy the Sixth Amendment right to confrontation. (Id. at p. _____ .) "The accused's right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist." (Id. at p. _____ .)
The California Supreme Court has requested supplemental briefing on the significance, if any, of Bullcoming on the pending cases identified in footnote 13, above.
Boone contends the forensic testimony of Kuperus and Gerio violated his right to confrontation under the Sixth Amendment because neither witness performed nor participated in the tests that were the bases for their expert opinion. Whether or not the admission of the testimony was error, the forensic evidence was cumulative. The fingerprint evidence placed Boone at the scene of the crime. Yet, Boone's presence in the store was otherwise well-established: Boone was found hiding inside the store when police arrived at the scene. Similarly, while the DNA on the mask and gloves was intended to identify Boone as one of the perpetrators, Green saw Boone's face during the robbery after Boone removed his mask and unequivocally identified Boone as the perpetrator. Under the circumstances, any error in the admission of the forensic testimony in this case, if one occurred at all, was harmless beyond a reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705]; People v. Geier, supra, 41 Cal.4th at p. 608 ["[c]onfrontation clause violations are subject to federal harmless-error analysis"]; see also Delaware v. Van Arsdall (1986) 475 U.S. 673, 684 [106 S.Ct. 1431, 89 L.Ed.2d 674] [whether confrontation clause error is harmless beyond reasonable doubt depends upon a number of factors, including the importance of the witness's testimony, whether the testimony was cumulative, the presence or absence of corroborating or contradictory testimony on material points, the extent of cross-examination otherwise permitted and the overall strength of the prosecution's case]; People v. Villatoro, supra, 194 Cal.App.4th at p. 262 [where testimony in violation of confrontation clause was cumulative, error harmless beyond reasonable doubt].)
Unlike the forensic analyst who testified in Bullcoming, supra, _____ U.S. _____ , Kuperus signed the report after making her own independent evaluation of the raw data, albeit data obtained by the analyst without her participation. We need not decide whether this distinction is sufficient under Bullcoming to satisfy the Sixth Amendment right to confrontation because, as we explain, any error in admitting any of the forensic testimony in this case was harmless beyond a reasonable doubt.
5. Boone's Sentence Must Be Modified To Strike the Firearm Enhancement in Count 4
The amended information specially alleged, and the jury found true, Boone had personally used a firearm within the meaning of section 12022.53, subdivision (b), in connection with count 4 (second degree burglary). At sentencing the trial court stayed imposition of sentence on count 4 under section 654. As the People acknowledge, section 12022.53, subdivision (a), does not include second degree burglary in the list of felonies to which it applies. Accordingly, the judgment is modified to strike, rather than stay, that enhancement. (See People v. Scott (1994) 9 Cal.4th 331, 354 [imposition of an unauthorized sentence, one that "could not lawfully be imposed under any circumstance in the particular case[,]" is reviewable on appeal absent an objection in trial court "because such error is 'clear and correctable' independent of any factual issues presented by the record at sentencing"].)
The combined result of our decision to reverse the conviction on count 2 and strike the firearm-use enhancement in count 4 is an aggregate state prison term of 195 years to life, calculated, using the trial court's methodology, as follows: For count 1 (aggravated kidnapping of Gallardo), a Three Strike sentence of 37 years to life plus 30 years: An indeterminate life term with a minimum parole eligibility date calculated as seven years plus 10 years for the firearm enhancement, plus five years for each of the four prior conviction enhancements, and an additional and consecutive 30-year determinate term (see People v. Williams (2004) 34 Cal.4th 397, 403 [in addition to their use in calculating the minimum term of the indeterminate life sentence under option three of the Three Strikes law, the enhancements are also aggregated to impose a separate, consecutive determinate term]). For each of counts 8 and 9 (assault with a firearm on Flores and Sarafin) a Three Strike sentence of 34 years to life plus 30 years: An indeterminate life term with a minimum parole eligibility date calculated using the upper term of four years for the assault, plus 10 years for firearm use, plus 20 years for the four prior conviction enhancements and an additional and consecutive 30 year determinate term. Imposition of sentence on counts 3, 4, 6 and 7 was stayed pursuant to section 654.
DISPOSITION
The conviction on count 2 for aggravated kidnapping is reversed. The judgment is further modified to strike the 10-year firearm-use enhancement under section 12022.53, subdivision (b), as to the burglary offense in count 4. In all other respects the judgment is affirmed. The trial court is directed to prepare a corrected abstract of judgment and to forward it to the Department of Corrections and Rehabilitation.
PERLUSS, P. J.
We concur:
WOODS, J.
ZELON, J.