Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BA 317341, Mary H. Strobel, Judge.
William L. Heyman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Yun K. Lee and Laura J. Hartquist, Deputy Attorneys General, for Plaintiff and Respondent.
ROTHSCHILD, Acting P. J.
William Ellis appeals from his conviction on one count of selling cocaine. We modify the judgment to strike certain sentencing enhancements that the trial court declined to impose, and we otherwise affirm.
BACKGROUND
The second amended information charged Ellis with one count of selling cocaine in violation of Health and Safety Code section 11352, subdivision (a). It further alleged that he had served three prior prison terms within the meaning of Penal Code section 667.5, subdivision (b). It also alleged pursuant to section 11370.2, subdivision (a), that he had suffered three prior convictions under section 11352. Ellis pleaded not guilty and denied the allegations. After a trial at which Ellis appeared in propria persona and his codefendant was represented by counsel, a jury convicted Ellis on the count of selling cocaine, and he then admitted the truth of the prior conviction allegations. The court sentenced Ellis to seven years in state prison, calculated as follows: the midterm of 4 years, plus 3 years pursuant to section 11370.2. The court imposed but stayed both an additional 3-year enhancement pursuant to section 11370.2 and three 1 year enhancements pursuant to Penal Code section 667.5, subdivision (b). The court also imposed various statutory fines and fees and credited Ellis with 386 days of presentence custody (258 days of actual custody and 128 days of conduct credits).
All subsequent statutory references are to the Health and Safety Code unless otherwise indicated.
In a previous opinion we affirmed the conviction of Ellis’ codefendant. (People v. Ware (Dec. 4, 2008, B200018) [nonpub. opn.].)
The evidence introduced at trial showed the following facts: On February 14, 2007, a police officer using binoculars observed Ellis and his codefendant, Willie Ware, on a sidewalk in downtown Los Angeles. There was a black duffle bag on the sidewalk near Ware’s left foot. A woman walked up to Ellis, spoke to him for one or two seconds, and gave him some money. Ellis put the money in his pants pocket, and Ware reached into his own shirt pocket, took out two off-white objects that appeared to be rock cocaine, and handed them to Ellis, who handed them to the woman. The woman briefly inspected the objects and then walked away. Officers detained Ware, Ellis, and the woman, and they searched the duffel bag. Laboratory analysis revealed that the objects Ellis gave the woman, as well as a substance found in the duffel bag, contained cocaine. The record contains no evidence that any drugs were found on Ellis’ person.
DISCUSSION
I. The Faretta Motion
On the first day of trial, Ellis asked to be relieved of court-appointed counsel and to be permitted to represent himself. Ellis believed that there was a particular witness (one of the arresting officers) who could offer helpful testimony if asked the right questions, but Ellis’ court-appointed lawyer, who had interviewed the witness, disagreed. In the course of advising Ellis of his rights and of the grave risks posed by self-representation, the court said the following to Ellis: “I am trying to let you know if you base your decision to represent yourself on that alone, we are already in trial, you are not going to get any additional time, so I am asking you do you understand?” Ellis responded, “I am not asking for additional time.” Later, the court reminded Ellis that “the court won’t give you a continuance,” and the court asked whether Ellis was “absolutely ready to go today, to start picking a jury[.]” Ellis responded, “If necessary.” The court then explained that jury selection was going to proceed “today” and asked Ellis, “Are you ready to proceed with picking a jury today?” Ellis responded, “Yes, I am.” The court ultimately granted Ellis’ request to represent himself.
On appeal, Ellis argues that the trial court “was required to give [him] some time to prepare for trial, and failure to do so constituted a denial of due process and denial of effective assistance of counsel.” We disagree. It was the court, not Ellis, that first raised the issue of possibly allowing additional time, and Ellis immediately replied that he was not asking for additional time. He never asked for a continuance and never gave any reason why a continuance might be justified. On appeal too, he never explains why or how a continuance might have been necessary or beneficial, let alone points to any facts of which the trial court was aware that might have indicated the need for a continuance.
We conclude that under all of the circumstances—Ellis’ express insistence that he was “not asking for additional time,” his failure to request a continuance, and the absence of any showing either in the trial court or on appeal that a continuance was needed—the trial court’s failure to continue the trial did not violate Ellis’ rights. (See People v. Jenkins (2000) 22 Cal.4th 900, 1039-1040 [holding that “not every denial of a request for more time... violates due process” and that the “answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge”].)
II. The Evidence of the Location of the Observation Post
At trial, the officer who had watched the drug transaction through binoculars refused to identify the precise location of his observation post, citing the official information privilege under Evidence Code section 1040. The court then conducted an in camera hearing to determine the merits of the privilege claim; the only persons present at the hearing were the judge, the witness, and the court reporter. After the hearing, the court announced in open court its determination that “this is a proper assertion of the privilege under [Evidence Code section] 1040” and that the “need to preserve the confidentiality of the information... outweighs any necessity to disclose it.”
On appeal, Ellis argues that this court should review the sealed transcript of the in camera hearing and determine whether the trial court abused its discretion. We have reviewed the transcript of the in camera hearing (as well as the reporter’s transcript of the trial) and conclude that the trial court did not abuse its discretion in sustaining the claim of privilege. (See People v. Lewis (2009) 172 Cal.App.4th 1426, 1432-1437 [summarizing the case law holding that the exact location of a surveillance post is covered by the privilege under Evidence Code section 1040].)
III. The Peremptory Challenge on Allegedly Racially Discriminatory Grounds
During voir dire, prospective juror 3 said that she had served on a criminal jury before and that the jury on which she had served had reached a verdict. The court asked her “How long ago was that, ma’am?”, and she replied “Maybe six years ago.” The court then asked “And do you remember what the charges were in that case?” She answered “No.” The court then asked “Do you remember if they were related to drug charges or drug sale?”, and she said “No.” The court followed up by asking “No, they were not?”, and she said “No, they were not.”
The prosecutor later exercised a peremptory challenge to strike prospective juror 3. Ware’s counsel objected and, at a hearing outside the presence of the prospective jurors, presented the following argument: “Juror 3 is Black. Both defendants in this case are Black. The jury is not a typical—and I hate to say typical, because there is no such thing, but not a typical venire. I tried to count and got four or five Blacks out of a pool of 55. In the central district that is very low. [¶] And, therefore, I think that we are entitled to make a challenge to the challenge because of the limited number of Blacks on the jury and possibility it could be discriminatory, even if the prosecutor didn’t mean it as discriminatory. I think we are entitled to have some type of neutral reason.”
The court stated “I will find a prima facie case and ask for information.” The prosecution then responded: “With regard to juror 3, when questioned about her prior jury experience, she—the way she answered with respect to what the charges were was—she didn’t really remember, but then she said, well, maybe, but then she didn’t remember. It was like she didn’t pay attention and it wasn’t that long ago, five, maybe six years ago. Several other jurors had jury experiences much longer ago and they didn’t have a problem remembering that. That was part of my reason. [¶] The other part of my reason is, frankly, her orange hair color which indicates to me she is not really one to conform with others. I don’t think she will get along well with the other jurors or be able to agree with them.”
The court then ruled as follows: “I am satisfied on both of those grounds that is a race neutral reason for the challenge, and the motion is denied. She will be excused.”
On appeal, Ellis argues that the trial court abused its discretion by rejecting his objection to the prosecution’s peremptory challenge of prospective juror 3. We disagree.
Respondent argues that Ellis forfeited the issue because he did not personally object at trial; only Ware’s counsel did. We are not persuaded. The reporter’s transcript reflects that Ware’s counsel said “we are entitled to make a challenge” and “we are entitled to have some type of neutral reason.” Counsel’s use of the word “we” suggested that counsel was raising the objection on behalf of both defendants. Thus, regardless of whether that was counsel’s intention, the use of the word “we” presumably led Ellis to believe that he did not have to state an express joinder in the objection. We therefore decline to treat the issue as forfeited.
Under Batson v. Kentucky (1986) 476 U.S. 79, and People v. Wheeler (1978) 22 Cal.3d 258, “[b]oth the federal and state Constitutions prohibit any advocate’s use of peremptory challenges to exclude prospective jurors based on race.” (People v. Lenix (2008) 44 Cal.4th 602, 612 (Lenix).) In determining the merits of a criminal defendant’s Wheeler/Batson objection, the trial court follows a three-step procedure: “First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge based on race. Second, if the showing is made, the burden shifts to the prosecutor to demonstrate that the challenges were exercised for a race-neutral reason. Third, the court determines whether the defendant has proven purposeful discrimination. The ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike. [Citation.]” (Lenix, supra, 44 Cal.4th at pp. 612-613.) At the third step, the trial court seeks to determine only whether the prosecutor’s proffered reasons are nondiscriminatory and genuine (as opposed to pretextual). “The justification need not support a challenge for cause, and even a ‘trivial’ reason, if genuine and neutral, will suffice. [Citations.]” (People v. Arias (1996) 13 Cal.4th 92, 136.) “‘[T]he issue comes down to whether the trial court finds the prosecutor’s race-neutral explanations to be credible.’” (Lenix, supra, 44 Cal.4th at p. 613, quoting Miller-El v. Cockrell (2003) 537 U.S. 322, 339.)
“Review of a trial court’s denial of a Wheeler/Batson motion is deferential, examining only whether substantial evidence supports its conclusions.” (Lenix, supra, 44 Cal.4th at p. 613.) “We review a trial court’s determination regarding the sufficiency of a prosecutor’s justifications for exercising peremptory challenges ‘“with great restraint.”’ [Citation.] We presume that a prosecutor uses peremptory challenges in a constitutional manner and give great deference to the trial court’s ability to distinguish bona fide reasons from sham excuses. [Citation.] So long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal. [Citation.]” (People v. Burgener (2003) 29 Cal.4th 833, 864.)
Ellis argues, however, that in this case there are two reasons why our review should not be deferential. First, he argues that the trial court made no explicit finding that the prosecutor’s reasons were genuine, so “there was no finding to defer to.” Ellis cites no authority for the proposition that because the court did not make an express finding of genuineness, the court’s ruling is not entitled to deference. We are aware of none, and relevant Supreme Court case law suggests the proposition is incorrect. For example, in People v. Ervin (2000) 22 Cal.4th 48, the Court described the trial court’s ruling on a Wheeler/Batson motion as follows: “[T]he court denied defendant’s motion, expressly finding that the prosecutor’s explanations were ‘reasonably specific and neutral’ and sufficiently related to the case, and that defendant demonstrated no prosecutorial ‘group bias.’” (Id. at p. 74.) The Court gave no indication that the trial court made an express finding of genuineness, but the Court still reviewed the ruling with the customary deference. (Id. at pp. 74-75.)
In Ervin, as in this case, the trial court’s denial of the defendant’s motion includes an implicit finding of genuineness. Like the Supreme Court, we will therefore apply the usual deferential standard of review to that finding.
Second, Ellis argues that the reasons the prosecutor gave for striking prospective juror 3 “suffered from several facial flaws that should have alerted the trial court to carefully consider their authenticity.” In particular, Ellis argues that (1) the prosecutor mischaracterized the colloquy concerning prospective juror 3’s prior jury experience, (2) the prosecutor overstated the extent to which prospective juror 3’s failure to remember the charges in the case in which she had previously served distinguished her from other prospective jurors, and (3) reference to prospective juror 3’s hair color as indicating that she would not get along well with other jurors was suspect because other facts tended to show the opposite. On the basis of those alleged problems, Ellis argues that the trial court was obligated to make more detailed findings concerning genuineness, and that the court’s failure to do so means that the court’s ruling is not entitled to deference. We are not persuaded.
When referring to prospective juror 3’s failure to remember the charges at issue in her previous jury service, the prosecutor said “[prospective juror 3] didn’t really remember, but then she said, well, maybe, but then she didn’t remember.” In fact, prospective juror 3 first said she did not remember the charges. Second, she was asked whether she remembered if they were drug related, and she answered “No.” Third, she was asked “No, they were not?”, and she answered “No, they were not.” The second question and answer were ambiguous, and the prospective juror’s answer could reasonably have been interpreted as meaning that she did not remember whether the charges were drug related. If the prosecutor heard the answer that way, then the third answer could have sounded like prospective juror 3 was changing her story—first she said she did not remember whether they were drug related, but then she said she did remember they were not. In describing this exchange later, the prosecutor mixed up the temporal order, saying that the prospective juror “said, well, maybe, but then she didn’t remember.” There is no reason why this trivial error, if the trial court was aware of it, should have indicated to the trial court that more detailed findings on genuineness were necessary.
The prosecutor also said that “[s]everal other jurors had jury experiences much longer ago and they didn’t have a problem remembering that[,]” but Ellis points out that only one (rather than several) of the prospective jurors who had undergone voir dire at that point fit the prosecutor’s description (i.e., had served on a jury longer ago than prospective juror 3 but remembered the charges). Again, there is no reason why the trial court should have seen this trivial error as a red flag. The prosecutor’s point was that prospective juror 3’s prior service was not very long ago but she could not remember the charges. The point is strengthened by the presence in the jury pool of another juror who served longer ago but did remember the charges. The point is not undermined by the absence of additional jurors who fit that description.
The prosecutor also adverted to prospective juror 3’s orange hair as indicating that “she is not really one to conform with others.” As already noted, even “trivial” reasons can be sufficient as long as they are genuine and race-neutral. (People v. Arias, supra, 13 Cal.4th at p. 136.) Moreover, hairstyle has been recognized as a sufficient reason, as long as the particular hairstyle is not peculiar to a particular race. (See People v. Wheeler, supra, 22 Cal.3d at p. 275; Purkett v. Elem (1995) 514 U.S. 765, 769.) Ellis is correct that other facts tended to show that prospective juror 3 could get along with other people. Nonetheless, the prosecutor’s reliance on hair color did not require the trial court to make a more searching inquiry into the authenticity of the prosecutor’s reasons, and it does show that the trial court’s determination is not entitled to deference.
In sum, we are not persuaded by any of Ellis’ arguments for the conclusion that the trial court’s ruling on his Wheeler/Batson motion is entitled to less than the customary degree of deference. Accordingly, we apply the deferential standard of review described ante.
On the merits, the heart of Ellis’ argument is a comparison of the prosecution’s treatment of prospective juror 3 with the prosecution’s treatment of other prospective jurors. Ellis did not present such a comparative analysis to the trial court.
California law on the permissibility of undertaking comparative juror analysis for the first time on appeal has recently changed. Previously, it was prohibited: “When such an analysis was not presented at trial, a reviewing court should not attempt its own comparative juror analysis for the first time on appeal....” (People v. Johnson (2003) 30 Cal.4th 1302, 1325.) Last year, however, the California Supreme Court eliminated that prohibition. Because “comparative juror analysis is but one form of circumstantial evidence that is relevant, but not necessarily dispositive, on the issue of intentional discrimination,” “evidence of comparative juror analysis must be considered in the trial court and even for the first time on appeal if relied upon by the defendant and the record is adequate to permit the urged comparisons.” (Lenix, supra, 44 Cal.4th at p. 622.) The Court emphasized nonetheless that “comparative juror analysis on a cold appellate record has inherent limitations. [Citation.]” (Ibid.) Moreover, “appellate review is necessarily circumscribed. The reviewing court need not consider responses by stricken panelists or seated jurors other than those identified by the defendant in the claim of disparate treatment. Further, the trial court’s finding is reviewed on the record as it stands at the time the Wheeler/Batson ruling is made. If the defendant believes that subsequent events should be considered by the trial court, a renewed objection is required to permit appellate consideration of these subsequent developments.” (Lenix, supra, 44 Cal.4th at p. 624.)
Ellis does not claim that he (or Ware) renewed the Wheeler/Batson objection in the trial court on the basis of developments that took place after the court rejected it. Accordingly, our review is limited to (1) the comparisons identified by Ellis that (2) derive from portions of the voir dire that had occurred before the trial court ruled.
Ellis points out that before prospective juror 3 was excused, two other prospective jurors said they had previously served on juries but failed to identify the subject matter of their cases. According to Ellis, “the prosecutor’s failure to test the recollection” of those jurors casts doubt on her sincerity in relying on prospective juror 3’s lack of recollection as a reason for excusing her. We disagree. In each of those instances, the prospective jurors were questioned by the court, not by the prosecution. That is, the court asked prospective juror 3 if she could remember the charges in the case in which she had previously served, but the court did not ask that question of the other two prospective jurors. The prosecution’s failure to follow up on the court’s questioning on that point does not indicate bias. The court’s questioning of prospective juror 3 revealed information that suggested to the prosecutor that prospective juror 3 might be inattentive; the court’s questioning of the other two prospective jurors did not. It is possible that the prosecutor’s observation of the other prospective jurors’ other responses, demeanor, or other nonverbal cues convinced her that they would not be inattentive, thus obviating the need for follow-up questioning on the issue. Given both the “inherent limitations” of “comparative juror analysis on a cold appellate record” (Lenix, supra, 44 Cal.4th at p. 622) and the deference to which the trial court’s ruling is entitled, we conclude that the prosecution’s failure to pursue such a line of questioning does not show the trial court’s ruling was not supported by substantial evidence.
The prosecutor ultimately exercised a peremptory challenge to one of those two prospective jurors, perhaps because he expressed the belief that the drug laws are too strict.
Ellis also argues that prospective juror 3’s failure to remember the charges might have resulted from something other than inattentiveness, and that “the prosecutor could have asked juror 3 a few questions that would have cleared up any potential misunderstanding.” Be that as it may, the prosecutor was still entitled to draw reasonable inferences from prospective juror 3’s lack of recollection, even if the prosecutor’s reasonable inferences were not the only possible reasonable inferences. The prosecutor’s drawing of one reasonable inference rather than others, and her failure to ask follow-up questions that would have narrowed the possibilities, do not show bias.
Ellis also argues that after learning that prospective juror 10 was in favor of legalizing the sale of drugs, the prosecutor aggressively pursued that issue via follow-up questioning of other prospective jurors, revealing that several others felt some degree of ambivalence or opposition to the drug laws. On that basis, Ellis argues that the prosecutor’s professed concern about prospective juror 3’s lack of recollection of the charges in her previous case seems to have been pretextual—the prosecutor followed up vigorously on issues that actually concerned her (such as attitudes toward the drug laws), but she did not follow up with other prospective jurors who had previously served on juries to find out whether they remembered what their cases were about. We are not persuaded. The charges against Ellis and his codefendant were possession and sale of illegal drugs. It was natural and reasonable for the prosecutor to have been acutely concerned about prospective jurors’ attitudes to the drug laws, and the only way to find out about those attitudes was to ask. Although it was also natural and reasonable for the prosecutor to have been concerned about prospective jurors’ attentiveness, we have already explained that the prosecutor could have obtained information on that issue in any number of other ways, such as the prospective jurors’ nonverbal behavior or responses to other questions. Again, it was the court, not the prosecutor, who chose to ask prospective juror 3, but not certain other prospective jurors, about her recollection of the charges in her previous case. Prospective juror 3’s answer conveyed to the prosecutor that prospective juror 3 was inattentive. In order to get a sense of the other prospective jurors’ attentiveness, the prosecutor did not have to pose that specific question to each of them—she could have learned about it in numerous other ways.
The remaining portions of Ellis’ comparative juror analysis concern developments subsequent to the trial court’s ruling on the Wheeler/Batson motion. They are therefore beyond the scope of our review. (Lenix, supra, 44 Cal.4th at p. 624.)
For all of the foregoing reasons, we reject Ellis’ challenge to the trial court’s denial of his Wheeler/Batson motion.
IV. Prosecutorial Misconduct and Evidence of a Prior Crime
Three days before trial began, the prosecution moved under Evidence Code section 1101, subdivision (b), to admit evidence of Ellis’ prior conviction for drug possession. The court heard the motion on the first day of trial, before jury selection and before Ellis began representing himself. At the hearing, the prosecution argued that the prior conviction was relevant to show intent and knowledge, as follows: “Defendant Ellis wasn’t seen with any narcotics on him. He was only accepting money. The 1101 evidence showing is similar. Since there is no drugs found on him in the current case, the 1101 would tend to show that he had knowledge of the total transaction going on and what was being transacted were those narcotics.” Ellis’ counsel argued against admission of the evidence. In the process, counsel stated, “It’s true Mr. Ellis didn’t have drugs on his possession.” The court then turned to other matters without ruling on the evidentiary issue.
Later the same day, after Ellis’ request to represent himself had been granted but still before jury selection, the court returned to the evidentiary issue and asked Ellis if he wanted to be heard on it. Ellis pointed out that the incident on which the prior conviction was based occurred on February 28, not February 2 (as the court had incorrectly stated), but that was the only point he wished to make. The court then ruled that the evidence of the prior crime could be admitted, reasoning as follows: “It seems to me that it is relevant on the issue of intent and knowledge and it’s properly admitted under 1101.B, that the probative value in this case, especially in light of the particular circumstances here where Mr. Ellis received money from a third party, but did not in fact or wasn’t observed actually handling the narcotics, as I understand the People outlined the case. That this prior incident would be probative and outweighs the prejudicial value.”
On the third day of trial, after jury selection but before opening statements, the prosecutor raised the issue again. She explained that “[u]pon closer reading of [her] file over the weekend,” she found that Ware had handed the drugs to Ellis, who handed them to the buyer, so she wanted to correct any misimpression she had previously given the court that “Mr. Ellis received money and that is the only part of his participation in the transaction.” When the court asked about “the facts of the prior,” the prosecutor answered as follows: “An unidentified person gave money to Mr. Ellis. Mr. Ellis gave that money to Mr. Wigfall, and Mr. Ellis gave the drugs to the unidentified person.” The prosecutor again argued that the evidence of the prior incident was relevant to knowledge and intent, and the court again ruled the evidence admissible, over Ellis’ objection.
The prosecutor then described the facts of the prior incident in her opening statement. In his opening statement, Ellis too discussed the incident and pointed out that he had originally been charged with sale of illegal drugs but was convicted only of possession.
After the presentation of evidence began, the prosecutor informed the court outside the presence of the jury that she “just found out over lunch” that “there might be [an Evidence Code section] 1040 issue with regard to” the evidence of the prior incident. The court indicated that it consequently might need to revisit the admissibility of the evidence. Later that day, the court heard further argument from all parties on the issue; the prosecutor continued to maintain that the evidence was admissible, and both Ware (through counsel) and Ellis argued to the contrary. Ellis claimed that he was arrested for the sale by accident, because the arresting officer mistook him for someone else, and he said that was the reason why the charge was ultimately reduced to possession. The court stated that it would get the file from the prior case, review it, and “reserve a ruling on this until tomorrow morning[.]”
The following morning, the trial court announced its ruling that it was excluding the evidence of the prior incident under Evidence Code section 352. The court described at length its analysis of the evidence’s probative value and the risk of prejudice and undue consumption of time, and the court expressly relied in part on Ellis’ own explanation of the prior incident (i.e., that the sales charge was merely a result of mistaken identity, which is why it was ultimately reduced to possession).
The jury instructions informed the jury that statements made by the attorneys or by “Mr. Ellis on his own behalf” in both opening statements and closing arguments “are not evidence.” The instructions further stated: “You may have heard in opening statements that certain evidence would be presented. Such evidence may or may not have been received in the trial. You can only consider those matters for which competent evidence was received in the trial.”
On appeal, Ellis argues that the prosecutor committed misconduct by (1) misinforming the court of the relevant facts at the first hearing on the admissibility of the evidence of the prior crime, and (2) failing to alert the court to the Evidence Code section 1040 issue until after the presentation of evidence had begun. We disagree.
“Under California law, a prosecutor commits reversible misconduct if he or she makes use of ‘deceptive or reprehensible methods’ when attempting to persuade either the trial court or the jury, and it is reasonably probable that without such misconduct, an outcome more favorable to the defendant would have resulted. [Citation.] Under the federal Constitution, conduct by a prosecutor that does not result in the denial of the defendant’s specific constitutional rights—such as a comment upon the defendant’s invocation of the right to remain silent—but is otherwise worthy of condemnation, is not a constitutional violation unless the challenged action ‘“so infected the trial with unfairness as to make the resulting conviction a denial of due process.”’ [Citations.]” (People v. Riggs (2008) 44 Cal.4th 248, 298.)
At the initial hearing on the evidentiary issue, the prosecutor stated that “Defendant Ellis wasn’t seen with any narcotics on him.” Ellis’ counsel agreed that “Mr. Ellis didn’t have drugs on his possession.” Both statements are ambiguous, but each might have been intended to express only the true claim that no drugs were found on Ellis’ person—the drugs were recovered from the buyer and from the duffel bag. Later that day the court, rather than the prosecutor or defense counsel, unequivocally stated that Ellis “did not in fact or wasn’t observed actually handling the narcotics.” It thus appears that the court misunderstood counsels’ true statements that no drugs were found on Ellis’ person, and the court arrived at the false conclusion that Ellis had never even handled the drugs in the course of the transaction. The prosecutor corrected the court’s misimpression before opening statements, clarifying that in both the prior case and the present case Ellis had allegedly handed the drugs to the buyer. We see no indication that the prosecutor deliberately sought to deceive the court. Moreover, any prejudice was cured by the prosecutor’s clarification, and Ellis’ counsel did not render ineffective assistance by failing to clarify the matter sooner. We likewise see no indication that the prosecutor committed misconduct by failing to apprise the court of the Evidence Code section 1040 issue until after the presentation of evidence began. The prosecutor stated that she had just learned of the issue, and the record contains no evidence to the contrary.
Ellis further argues that the trial court prejudicially abused its discretion by failing to reverse its ruling on the evidentiary issue until after opening statements, in which both the prosecutor and Ellis referred to the prior incident. We are not persuaded. The court instructed the jury that opening statements are not evidence and that opening statements sometimes refer to evidence that ultimately may or may not be introduced, but the jury must base its decision only on the evidence actually admitted. Jurors are presumed to follow the court’s instructions. (People v. Hardy (1992) 2 Cal.4th 86, 208.) Thus, assuming for the sake of argument that the trial court abused its discretion, any possible prejudice was cured by the jury instructions.
V. The Admission of the Laboratory Reports
On the third day of trial, outside the presence of the jury, Ware’s counsel informed the court that the “chemist” who performed the tests on the substances recovered from the buyer and the duffel bag was “on vacation, not available,” and that the prosecutor intended “to put on the chemist’s supervisor to testify about what the chemist did.” Counsel objected that admission of the chemist’s reports in such a manner would be “a 6th Amendment violation.” The court proposed not to “make any ruling on this” at the moment and instead to conduct an Evidence Code section 402 hearing and then “rule tomorrow morning after counsel and Mr. Ellis have had an opportunity to argue.” The court then excused the jury for the day and conducted the hearing, at which the chemist’s supervisor, Richard Raffel, testified. The following morning, after hearing argument, the court ruled as follows: “I am going to allow the People to proceed with the chemist. I believe that they may be able to establish the admissibility of the lab reports as business records. I don’t believe that under... existing case law that admission of those business records is going to violate the confrontation rights of the defendants in this case.”
Given the court’s express indication that it was treating the Sixth Amendment objection as having been raised by both Ware’s counsel and Ellis, we reject respondent’s contention that Ellis forfeited the issue. There is no reason Ellis should have been required expressly to join in the objection after the court invited him to present argument on its merits.
Raffel then testified before the jury. He testified that he is a supervisor of the narcotics unit of the crime lab of the Los Angeles Police Department. He has bachelor’s and master’s degrees in chemistry. He identified People’s exhibits 9 and 10 as copies of reports that were created at the time that certain lab tests were performed on the substances recovered from the buyer and the duffel bag in this case. Raffel described the procedure by which the tests are performed and by which the reports are prepared. The reports in exhibits 9 and 10 reflect that they were prepared by criminalist Wubayehu Tsega, who works in the lab with Raffel, has worked there since 2000, and was trained by Raffel. Raffel described the tests that, according to the reports, Tsega performed. Raffel further testified that the tests are generally accepted in the scientific community and that the reports reflect that the tests showed that the substances tested contained cocaine in the form of cocaine base.
At trial the prosecution introduced evidence showing that the identification numbers of the substances described in the reports were the same as the identification numbers under which the substances that were recovered from the buyer and the duffel bag were booked. On appeal Ellis does not deny that they were the same substances.
After hearing further argument outside the presence of the jury, the court admitted exhibits 9 and 10 into evidence.
Ellis argues that the admission of Tsega’s reports without requiring the prosecution to produce Tsega as a witness violated Ellis’ confrontation rights under the Sixth Amendment. We disagree.
In People v. Geier (2007) 41 Cal.4th 555 (hereafter Geier), the California Supreme Court held that the admission of certain laboratory reports did not violate the confrontation clause because the reports “constitute[d] a contemporaneous recordation of observable events rather than documentation of past events” and hence were not testimonial. (Id. at p. 605.) Earlier this year, the United States Supreme Court decided a case involving a similar confrontation clause issue and concluded that notarized affidavits concerning the results of laboratory analysis are testimonial if they are merely “near contemporaneous” (the affidavits in question were executed nearly one week after the analysis was performed). (Melendez-Diaz v. Massachusetts (2009) 557 U.S. ___ [129 S.Ct. 2527] (hereafter Melendez-Diaz).
We have held that Geier is still good law after Melendez-Diaz. (People v. Gutierrez (Sept. 9, 2009, B211622) ___ Cal.App.4th ___ [p. 14].) We distinguished Geier on the grounds that it involved contemporaneous (rather than merely “near contemporaneous”) recordation of observable events and that the supervisor of the analysts who prepared the reports testified at trial (no similar live testimony was introduced in Melendez-Diaz). (People v. Gutierrez, supra, ___ Cal.App.4th at p.___ [p. 14].)
The question before us, then, is whether this case is controlled by Geier or by Melendez-Diaz. We conclude that Geier controls. Here, as in Geier, the supervisor of the analyst who prepared the reports testified at trial, described the tests reflected in the reports, confirmed that those tests are generally accepted within the scientific community, and was fully subject to cross-examination by the defense. Here, as in Geier, the reports were prepared at the time the tests were conducted, not “almost a week after the tests were performed,” as in Melendez-Diaz. (Melendez-Diaz, supra, 557 U.S. at p. ____ [129 S.Ct. at p. 2535].) This is therefore a Geier case, not a Melendez-Diaz case. The reports consequently were not testimonial, so their admission did not violate Ellis’ confrontation rights.
VI. The Sentence Enhancements
The information alleged three 3-year sentence enhancements pursuant to section 11370.2, subdivision (a), on the ground that Ellis had suffered three prior convictions under section 11352, as well as three 1-year enhancements for prior prison terms within the meaning of Penal Code section 667.5, subdivision (b). Ellis admitted the truth of all of the enhancement allegations. At sentencing, the court imposed one 3-year enhancement for one of the allegations, imposed but stayed a second 3-year enhancement for another, and did not expressly address the third. The trial court also stayed the three 1-year enhancements under Penal Code section 667.5, subdivision (b).
On appeal, respondent argues that the case should be remanded for the trial court either to strike or to impose (but not stay) the enhancements. Ellis argues that it is evident from the court’s remarks at sentencing that the court wished to strike the enhancements, and that its failure to do so was merely inadvertent. On that basis, Ellis argues that we should strike the enhancements that were either stayed or not imposed at all. We agree with respondent that the trial court should have either stricken or imposed (but not stayed) the enhancements (People v. McCray (2006) 144 Cal.App.4th 258, 267), but we agree with Ellis that the relevant enhancements should be stricken.
At sentencing, the court acknowledged having read “the sentencing memoranda submitted by the People in which they requested 12 years state prison, mid[]term of four years, plus 2 of the 3 year priors under Health and Safety Code section 11370.2, plus 2 of the 667.5 1-year priors.” The court’s reference to “2 of the 3 year priors” and “2 of the 667.5 1-year priors” demonstrates the court’s awareness that there were more than two such priors under both section 11370.2 and Penal Code section 667.5, subdivision (b). Moreover, the court clearly expressed its desire to sentence Ellis to seven years rather than the 12 years requested by the prosecution, and the court justified the exercise of its sentencing discretion on the ground that “the facts of the instant case involv[e] a small amount of narcotics.” The record thus leaves no doubt that the court was aware of all of the enhancements that had been alleged and admitted, and that the court exercised its discretion to impose only the one 3-year enhancement. We accordingly order that the remaining enhancements be stricken. (See People v. Jefferson (2007) 154 Cal.App.4th 1381, 1388.)
DISPOSITION
The judgment is modified to strike the 3-year sentence enhancements based on case number SCD123858 and case number SCD132113, as well as the 1-year enhancements based on case number BA074772, case number BA190081, and case number BA298899. As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment, corrected as stated above, and to forward a certified copy to the Department of Corrections and Rehabilitation.
We concur: CHANEY, J., FERNS, J.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.