Opinion
NOT TO BE PUBLISHED
APPEAL from judgments of the Superior Court of Los Angeles County No. NA066376 James Pierce, Judge.
Alan Stern, under appointment by the Court of Appeal, for Defendant and Appellant Mathew Moscoe.
John Doyle, under appointment by the Court of Appeal, for Defendant and Appellant Ruben Espinoza.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Michael R. Johnsen, Joseph P. Lee, Lawrence M. Daniels and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
MANELLA, J.
Appellants Ruben Espinoza and Matthew Ryun Moscoe, convicted of attempted murder and robbery, contend on appeal that the trial court erred in permitting the director of a DNA testing laboratory to testify concerning tests and analysis he did not personally perform, in admitting the laboratory’s report as a business record, and in permitting introduction of bloodstain and DNA evidence without sufficient evidence of their chain of custody. In addition, Moscoe separately contends that the court erred in admitting incriminating statements made by Espinoza without giving the jury a limiting instruction. Finally, Espinoza separately contends that the court improperly instructed the jury concerning aider and abettor culpability. We conclude appellants’ contentions lack merit and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Information
Appellants Espinoza and Moscoe were charged with the attempted willful, deliberate, premeditated murder of Rip Clark (Pen. Code, §§ 664 and 187, subd. (a), count one), robbery (§ 211, count two) and carrying a loaded firearm after suffering a conviction (§ 12031, subd. (a)(1), count three). Espinoza was separately charged with evading an officer (Veh. Code, § 2800.2, subd. (a), count four). It was further alleged, as to counts one and two, that a principal personally and intentionally discharged a firearm which caused great bodily injury to Clark within the meaning of section 12022.53, subdivisions (d) and (e)(1); that a principal personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivisions (c) and (e)(1); and that a principal personally used a firearm within the meaning of section 12022.53, subdivisions (b) and (e).
Unless otherwise designated, statutory references are to the Penal Code.
The information also alleged that Moscoe had suffered four prior convictions and Espinoza had suffered one prior conviction for purposes of section 667.5, subdivision (b); that Espinoza had suffered one prior conviction for purposes of sections 1170.12, subdivisions (a) through (d) and section 667, subdivisions (b) through (i); and that Espinoza had suffered a prior serious felony conviction. A special allegation that the attempted murder and robbery were committed for the benefit of a gang was subsequently dismissed. Appellants admitted the allegations concerning the prior convictions for purposes of count three.
B. Evidence at Trial
1. Testimony Concerning The Shooting
As each witness recalled the incident differently, their testimony will be summarized separately. Neither the victim nor any of the witnesses was able to identify or describe the assailant or assailants.
On the evening of June 30, 2005, Rip Clark, having earlier in the day withdrawn funds to pay his rent, had approximately $800 in his possession. Just before 11:00 p.m., Clark went into the Alhambra Bar in San Pedro, where he imbibed five alcoholic beverages. He left the bar around midnight. As he was walking to his nearby residence, he noticed a blue truck stopped on the corner. He also noticed two people walking behind him, at least one of whom was male. Clark did not recall if either person said anything. He saw or felt a gun and was shot behind his left ear. He fell to the ground, crawled a short distance and yelled for help before losing consciousness. At the time of the attack, Clark had his wallet in one pocket and his money in another. He did not recall anyone going through his pockets. He awoke in the hospital where he learned that the bullet had destroyed part of his mandible and much of his ear canal, leaving him deaf in one ear, paralyzed on one side of his face, and with no control over his ability to blink. He has had numerous surgeries and suffers from constant vertigo.
The video from the bar’s security camera showed him in the bar until 12:40 a.m.
Interviewed by police officers after the incident, Clark recalled a man wearing a black mask or black bandana who said: “Give it to me.”
Immediately after the shooting, he told officers a single man wearing a mask or bandana approached him.
David Brownlee, who lived in a second floor apartment near the bar, heard two gunshots at approximately 12:40 a.m. He went downstairs while calling the police. He saw a man lying in the street and an African-American woman standing over him. Both were yelling that the man had been shot. The woman ran away. Brownlee also saw a small, dark-colored truck backing up. Someone who appeared to be male was scrambling to get inside.
Roberto Sanchez, who also lived near the Alhambra Bar, heard two gunshots at approximately 12:30 a.m. and after checking on his children, went to the window to find out what was going on. He observed two men arguing. One said, “if [you] not pay [sic], you going to die [sic]” or “you better pay, mother fucker.” He heard someone else say “hurry up, ... let’s go, ” and saw or heard one of the men get into a vehicle he described as a van.
Nicholas Anthony Pizzale, another nearby resident, saw a man running down the street and heard him yell: “Don’t shoot me. Don’t shoot me.” Pizzale heard gunshots and the man fell, just outside Pizzale’s window. A blue pickup truck was backing toward the man. Pizzale ran out to try to protect him. He saw a young African-American woman standing on the corner. Shortly after the shooting, Pizzale was taken by police officers to view a blue pickup truck, which had been involved in a collision. Pizzale was “[100] percent confident” it was the same truck he had seen exiting the scene of the shooting.
Pizzale believed the events occurred at approximately 3:00 a.m.
Danielle Elliott also lived near the Alhambra Bar. In the early morning hours of July 1, she heard two men arguing outside. She looked out her window and saw one man push another. The second man fell down. She heard a shot. A blue pickup truck with a white or silver pinstripe pulled up. The man on his feet jumped in, and the truck drove away, momentarily blocking her view of the scene. The victim crawled into the street, yelling for someone to call 911. Elliott called 911.
2. Testimony Concerning Earlier Events
Angelika Sillas was a friend of Espinoza’s. On the day of the shooting, she had a conversation with him in which he said he was in trouble due to a drug deal and needed money. He seemed nervous. Sillas asked him for a ride later that evening. They agreed to meet at the Alhambra Bar. At approximately 9:00 p.m., Sillas called Espinoza using the bartender’s cell phone. She and Espinoza met outside and he gave her his cell phone. He told her not to answer it unless the caller identification said “Soldier Boy, ” apparently Espinoza’s nickname. Espinoza was driving a pickup truck. There was a passenger inside the truck, but Sillas did not recognize him or get a good look at him. After approximately two hours, during which time Sillas sat in the bar and observed Espinoza driving back and forth in front of it, Espinoza called Sillas and asked if anyone in the bar appeared to have money and if so, to describe that person. Sillas gave Espinoza a “fake description” and then met him outside near the bar and gave him back his cell phone. Espinoza and his companion walked off, but she did not see where they went. When Sillas left the bar, her friend Tina Sanchez, who was also a friend of Espinoza’s, was inside.
The bartender denied lending Sillas her cell phone.
Sillas later told police the man had a bald or shaved head.
Donna Kaye Cook was acquainted with Clark and was a regular patron of the Alhambra Bar. She saw Clark in the bar the night he was shot. Tina Sanchez was also there. According to Cook, Clark appeared to be in a celebratory mood and bought two rounds of drinks for the bar’s patrons. At one point, Cook told him not to flash his money and advised him to take a cab home. Cook recalled seeing a man in the bar, not a regular, who had a tattoo on his eyebrow that looked like a barcode. She also recalled seeing Clark talking to an African-American woman. When interviewed by police, Cook tentatively identified Moscoe in a photographic lineup as a man she had seen talking to Clark. In court, Cook tentatively identified Moscoe as the man with the tattoo on his eyebrow. The day after Clark was shot, Tina Sanchez and a companion came into the bar. Sanchez seemed to have more money to spend than usual.
Clark denied ever buying a round of drinks at the Alhambra Bar.
Donna Navarrette was the bartender at the Alhambra Bar the night Clark was shot. When Clark ordered his first drink, he put hundreds of dollars in cash on the bar. Navarrette told him not to flash his money. Navarrette subsequently saw Clark talking to an African American woman. He left shortly after the woman did. When Clark left, he was intoxicated. Sillas and Tina Sanchez were also in the bar that night. Sillas engaged in multiple cell phone conversations while wandering around the bar. Shortly after midnight, two men whom Navarrette did not recognize as regulars came into the bar and sat at a table with Sanchez. One was wearing a fishing hat. The other had tattoos and an apparent healing gunshot wound on his arm. The man with the tattoos and wound asked Navarrette if the bar’s security cameras worked. The two men left the bar before Clark.
The bar’s security camera supplied the time. Navarrette was unable to identify either of the men. A detective who viewed the videotape concluded they were appellants.
3. Police Officer Testimony
Officer Anthony Balderama of the Los Angeles Police Department (LAPD) and his partner Officer Ramon Arguelles were on patrol in Wilmington in a marked police car when the shooting occurred. They heard a broadcast describing a blue pickup truck and observed a vehicle that met the description. When the officers pulled behind the truck, the driver accelerated, made a right turn and stopped briefly to let a passenger out. The passenger appeared to have a shaved or bald head. Something hit the ground as the passenger got out. The truck sped away, even though the officers turned on their lights and siren. Officer Balderama and his partner caught up with the truck after it collided with a parked car and arrested its driver -- Espinoza -- who had attempted to flee the scene of the collision. Espinoza had no cash when arrested.
The collision occurred approximately two miles from the shooting. The officers later determined that the truck was registered to Ruben and Micaela Espinoza.
After apprehending Espinoza, the officers went back to the location where they had seen the passenger exit the vehicle. They found a.22 caliber rifle, a live round and a black baseball cap. Officer Arguelles also observed a gun clip on the front seat of the blue pickup truck.
Police investigators found Clark’s wallet and a shell casing at the scene of the shooting. In the blue pickup, they found a black bandana tied in a triangle shape, a blue bandana, two fishing caps, a black glove, two-way radios, a cell phone and a gun clip. The clip contained.32 caliber bullets, some of them with casings similar to the one found at the scene of the shooting. Investigators recovered a spent bullet and fragment from personnel at the hospital where Clark had been treated. The bullet was consistent with a.32 caliber round.
Moscoe was arrested the day after the shooting. He had $5.32 in his possession. At the time of his arrest, he had a shaved head and an injury to his left arm that appeared to be a healing gunshot wound. There were tattoos on his left arm and a tattoo over his eyebrow. He was wearing black boots. There was a visible dark stain on the boots, approximately the size of an eraser tip. The boots were placed inside a cardboard box and frozen so they could be analyzed later.
4. Scientific Evidence
Jennifer Keir, an LAPD forensic print specialist, recovered nine prints from Espinoza’s pickup truck and various items inside it. Many of the prints were Espinoza’s. None were Moscoe’s. Judy Snell, an LAPD forensic print specialist, testified there were no recoverable prints on the rifle, casing or live rounds found in the truck or at the location where the passenger got out.
Espinoza’s blue pickup truck was impounded. On July 14, the detective assigned to the case, David Cortez, observed on the inner passenger door an apparent blood smear, which he had not noticed before. The next day, he accompanied LAPD criminalist Buffy Miller, who collected swabs from the inner passenger door and from two other locations: (1) the exterior passenger door handle and (2) the exterior on the passenger side near the door. Once the swabs had dried, she placed them in individual envelopes and placed those envelopes in a larger envelope, which was sealed and frozen. She labeled the samples with a number and a description.
Cortez had searched the truck on the day of the shooting and again the following day.
LAPD criminalist Jeffrey Alden Thompson obtained the swabs collected by Miller from the evidence locker and performed a phenolphthalein test to determine the presence of blood. The phenolphthalein tests were positive for the samples taken from the vehicle. Thompson sent the swab of the substance taken from the interior passenger door to Orchid Cellmark (Orchid) for DNA testing. Thompson also obtained the black boots from a sealed box in frozen storage and performed phenolphthalein tests on samples of stains on the boots to determine the presence of blood. When stains on the boots tested positive, Thompson prepared additional samples to transmit to Orchid for DNA testing.
According to Thompson, the phenolphthalein test is not conclusive, but detects the possibility that a substance may be blood.
Buffy Miller also performed a phenolphthalein test to determine whether the samples were blood. However, appellants objected to Miller’s testimony concerning the results of the phenolphthalein test because her notes, which she was unable to locate, had not been turned over in discovery. The court agreed that she should not be permitted to testify concerning the phenolphthalein test because of the surprise to the defense. The court further precluded Miller from testifying concerning anything not discussed in her property report, a report which had been preserved and turned over to the defense. Moscoe’s motion for a mistrial based on Miller’s failure to preserve her notes was denied.
Dr. Rick Staub, senior manager of forensics and laboratory director for Orchid, testified concerning the DNA tests the laboratory performed on the samples sent by LAPD personnel. Dr. Staub had not personally analyzed the samples and was not present when they were analyzed. However, he was familiar with the process by which employees of the laboratory analyzed DNA samples and had personally performed the analysis many times in the past. He testified that when samples are received by Orchid, they are logged into the computer system, then given to analysts who extract, quantify and amplify the DNA to create a profile. The analysts’ observations and conclusions are input into the lab’s information management system, a computer program known as LIMS, at the time they are made. More than one analyst contributes content as the samples make their way through the laboratory. Dr. Staub reviewed the case file which contained the results of analyzing the samples tentatively identified as blood sent to Orchid by Thompson and samples of Clark’s saliva. In Dr. Staub’s opinion, the DNA profile of the blood samples taken from Espinoza’s blue pickup truck and Moscoe’s boots matched Clark’s DNA profile. On cross-examination, Dr. Staub acknowledged that in November 2004, a technician from Cellmark had been fired for conducting fraudulent tests and manipulating data.
When Dr. Staub began testifying concerning the contents of the case file, defense counsel objected on hearsay and lack of foundation grounds. The court overruled the objections, stating “this is not unlike coroner’s cases where... one coroner would come in and testify from the notes or records of another coroner. And not only he can testify as to those notes, but the entire record is generally admissible. I’m going to treat this as a business record.”
Detective Cortez obtained the saliva samples from Clark when he was in the hospital and booked them into evidence. The samples were transmitted to Orchid by Thompson.
C. Verdict and Sentencing
The jury found appellants guilty of attempted murder, robbery and carrying a loaded firearm after suffering a conviction (counts one, two and three) and found Espinoza guilty of evading an officer (count four). The jurors further found true that Moscoe personally discharged a firearm which caused great bodily injury and found true that he committed the attempted murder willfully, deliberately and with premeditation. They found the latter allegation not true as to Espinoza.
The court found the three prior prison term allegations to be true as to Moscoe. Espinoza admitted one prior strike conviction and one prior prison term. The court sentenced Moscoe to a term of life, plus 29 years, eight months to life. The court sentenced Espinoza to a term of 27 years, eight months.
DISCUSSION
A. Dr. Staub’s Testimony
1. Confrontation Clause
Appellants contend that the trial court erred in admitting the testimony of Dr. Staub, who described the results of DNA analysis performed by others at Orchid on Clark’s saliva and the blood found on Espinoza’s truck and Moscoe’s boots. Appellants contend that permitting Dr. Staub, who neither performed the DNA analysis nor was present when it was performed, to testify concerning the results violated their right to confrontation as defined by the United States Supreme Court in Crawford v. Washington (2004) 541 U.S. 36 (Crawford) and Melendez-Diaz v. Massachusetts (2009) 557 U.S. __ [129 S.Ct. 2527] (Melendez-Diaz). Appellants contend that we are not bound by the California Supreme Court’s determination in People v. Geier (2007) 41 Cal.4th 555 (Geier) that scientific evidence such as DNA expert testimony and laboratory reports are admissible despite the limitations the confrontation clause places on conventional evidence. We disagree.
In Crawford, the defendant had objected to the introduction of the tape-recorded statement of a witness he had had no opportunity to cross-examine. The Supreme Court held that the defendant’s Sixth Amendment right to be confronted by the witnesses against him had been violated and that the confrontation clause did not allow admission of “testimonial statements” of a witness who did not appear at trial “unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” (Crawford, supra, 541 U.S. at pp. 51-54.) The court did not precisely define the term “testimonial statements, ” but described the “core class” as including “‘ex parte in-court testimony or its functional equivalent -- that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially, ’ [citation]; ‘statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial, ’ [citation].” (Id. at pp. 51-52, italics omitted.) Subsequently, in Davis v. Washington (2006) 547 U.S. 813 (Davis), the court considered whether the admission of (1) a recording of a 911 call made by a victim of domestic violence or (2) a statement made by a second victim of domestic violence to officers violated the confrontation clause. The court concluded that the statements the first victim made to the 911 operator were not testimonial, but that the statement given to the officers by the second victim was testimonial. The court explained: “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.” (547 U.S. at p. 822.) The court further noted that in speaking to the 911 operator, the victim “was speaking about events as they were actually happening, rather than ‘describ[ing] past events’ [citation].” (Id. at p. 827, italics omitted.)
In the wake of Crawford and Davis, the California Supreme Court considered whether the “admission of scientific evidence, like laboratory reports, constitutes a testimonial statement that is inadmissible unless the person who prepared the report testifies or Crawford’s conditions -- unavailability and a prior opportunity for cross-examination -- are met.” (Geier, supra, 41 Cal.4th at p. 598.) The defendant in Geier had been convicted of rape and murder. Key evidence against him included DNA obtained from vaginal swabs of one victim analyzed by a private laboratory. The evidence had been introduced via the testimony of the director of the laboratory -- a person in a similar position to Dr. Staub in that she had not personally been involved in the analysis but was familiar with the laboratory’s procedures. The Supreme Court extracted from Crawford and Davis the rule that a statement is testimonial only if “(1) it is made to a law enforcement officer or by or to a law enforcement agent and (2) described a past fact related to criminal activity for (3) possible use at a later trial.” (41 Cal.4th at p. 605.) A statement not meeting all three criteria “is not testimonial.” (Ibid.) Applying the rule to the case before it, the court concluded that the report concerning the DNA found on the vaginal swabs was not testimonial due to the following factors: “[The technician’s] report and notes were generated as part of a standardized scientific protocol that she conducted pursuant to her employment at [the lab]. While the prosecutor undoubtedly hired [the lab] in the hope of obtaining evidence against defendant, [the technician] conducted her analysis, and made her notes and report, as part of her job, not in order to incriminate defendant. Moreover, to the extent [the technician’s] notes, forms and report merely recount the procedure she used to analyze the DNA samples, they are not themselves accusatory, as DNA analysis can lead to either incriminatory or exculpatory results. Finally, the accusatory opinions in this case -- that defendant’s DNA matched that taken from the victim’s vagina and that such a result was very unlikely unless defendant was the donor -- were reached and conveyed not through the nontestifying technician’s laboratory notes and report, but by the testifying witness, Dr. Cotton.” (41 Cal.4th at p. 607.)
Appellants do not dispute that under Geier, Dr. Staub’s testimony -- and the lab report itself -- was admissible. They contend, however, that the United States Supreme Court’s recent decision in Melendez-Diaz, supra, 129 S.Ct. 2527, undermines the reasoning of Geier and that we are no longer bound to follow it. (See People v. Superior Court (Williams) (1992) 8 Cal.App.4th 688, 702-703 [California appellate courts are bound by decisions of the California Supreme Court on questions of federal law “‘unless the United States Supreme Court has decided the question differently.’”].) In Melendez-Diaz, the court addressed the admissibility of “certificates of analysis, ” sworn affidavits prepared by lab analysts reporting the results of forensic testing. A four-judge plurality held that “the documents at issue... fall within the ‘core class of testimonial statements’” described in Crawford, noting that the description of “‘core class’” found in Crawford specifically mentioned affidavits. (129 S.Ct. at p. 2532.) The plurality emphasized that the affidavits in question were “functionally identical to live, in-court testimony, doing ‘precisely what a witness does on direct examination.’” (Ibid., quoting Davis, supra, 547 U.S. at p. 830.) Moreover, “not only were the affidavits ‘“made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial”’” (Melendez-Diaz, quoting Crawford, supra, 541 U.S. at p. 52), “but under Massachusetts law the sole purpose of the affidavits was to provide ‘prima facie evidence of the composition quality and the net weight’ of the analyzed substance.’” (Melendez-Diaz, supra, 129 S.Ct. at p. 2532, quoting Mass. Gen. Laws, ch. 111, § 13.) Responding to arguments made by the dissent -- that the analysts preparing the affidavits were not “‘conventional witnesses’” for confrontation clause purposes because they reported “‘near-contemporaneous observations of [a] test’” rather than “‘events observed in the past’” and “‘observe[d] neither the crime nor any human action related to it, ’” and because the affidavits “were not provided in response to interrogation” (129 S.Ct. at p. 2535) -- the plurality noted that the domestic abuse victim’s statement to officers found to be inadmissible in Davis was “‘near-contemporaneous’” and that a police officer’s report describing the crime scene would fit the dissent’s definition because it was not an observation of the crime or any human action related to it, yet was clearly inadmissible absent an opportunity to cross-examine the officer. (Ibid.) The plurality observed: “If an affidavit submitted in response to a police officer’s request to ‘write down what happened’ suffices to trigger the Sixth Amendment’s protection (as it apparently does, see Davis, 547 U.S. at [pp.] 819-820...), then the analysts’ testimony should be subject to confrontation as well.” (129 S.Ct. at p. 2535.) Responding to the dissent’s suggestion that “‘neutral scientific testing’” should not be subject to the same rules as more conventional evidence, the plurality further stated: “Forensic evidence is not uniquely immune from the risk of manipulation.... A forensic analyst responding to a request from a law enforcement official may feel pressure -- or have an incentive -- to alter the evidence in a manner favorable to the prosecution. [¶] Confrontation is one means of assuring accurate forensic analysis.” (Id. at p. 2536.)
The certificates in question stated that the substance taken from certain bags, including one found in the back of a police car in which the defendant had been transported to the police station, was cocaine.
Had the decision in Melendez-Diaz expressed the views of a majority of the United States Supreme Court, we would agree that it casts doubt on the continued vitality of Geier. The reasoning in Geier was based in large part on the dissimilarity between evidence reporting the results of scientific testing and conventional witness testimony concerning the actions of the defendant or the facts surrounding criminal activity -- a distinction rejected by the plurality in Melendez-Diaz. However, the fifth vote in Melendez-Diaz came from Justice Thomas, who concurred based on his position that “‘the Confrontation Clause is implicated by extrajudicial statements only insofar as they are contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions.’” (Melendez-Diaz, supra, 129 S.Ct. at p. 2543.) “When a fragmented [Supreme] Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.’” (Marks v. United States (1977) 430 U.S. 188, 193; accord, Del Monte v. Wilson (1992) 1 Cal.4th 1009, 1023.) Justice Thomas’s concurrence did not indicate he agreed with the analysis of the plurality concerning the lack of significant difference between scientific evidence and conventional evidence, except as it related to formalized testimonial materials such as the certificates in Melendez-Diaz. Accordingly, we will continue to abide by Geier’s holding that reports prepared in laboratories by analysts and technicians in the ordinary course of their employment are not “testimonial statements.”
In People v. Vargas (2009) 178 Cal.App.4th 647, 659, this court held that certain statements of a rape victim to a forensic nurse were testimonial. While noting that the plurality in Melendez-Diaz was “inconsistent with the primary rationale relied upon by the California Supreme Court in Geier to uphold the introduction of the DNA report, ” we observed that “the limited nature of Justice Thomas’s concurrence” rendered the precedential value of the plurality’s analysis unclear “as applied to a laboratory analyst’s report or a similar forensic report.” (Ibid.)
Ours will not be the last word on this issue. The effect of Melendez-Diaz on Geier is currently pending before the California Supreme Court. (See, e.g., People v. Rutterschmidt (2009) 176 Cal.App.4th 1047, review granted December 2, 2009, S176213; People v. Gutierrez (2009) 177 Cal.App.4th 654, review granted Dec. 2, 2009, S176620; People v. Dungo (2009) 176 Cal.App.4th 1388, review granted Dec. 2, 2009, S176886; People v. Lopez (2009) 177 Cal.App.4th 202, review granted December 2, 2009, S177046.)
2. Foundation
Moscoe contends that Dr. Staub was unqualified to establish and failed to provide sufficient information to establish the foundational facts necessary to admit the Orchid report containing the DNA analysis as a business record. We disagree. Evidence Code section 1271 permits admission of business records to establish the truth of the matters contained therein if: “(a) The writing was made in the regular course of a business; [¶] (b) The writing was made at or near the time of the act, condition, or event; (c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and (d) The sources of information and method and time of preparation were such as to indicate its trustworthiness.” “[A]ny ‘qualified witness’ who is knowledgeable about the documents may lay the foundation for introduction of business records -- the witness need not be the custodian or the person who created the record.” (Jazayeri v. Mao (2009) 174 Cal.App.4th 301, 324.) “The witness need not have been present at every transaction to establish the business records exception; he or she need only be familiar with the procedures followed....” (Id. at p. 322.) As Dr. Staub, the director of the lab, was familiar with the procedures for generating the reports and had performed similar analyses himself in the past, he easily fell within the category of “qualified witness.” Dr. Staub testified that the reports were generated in the regular course of Orchid’s business and that the information they contained was recorded by a person with personal knowledge at or near the time of the acts or events recorded. This met Evidence Code section 1271’s essential foundational requirements.
Citing Evidence Code section 1280, subdivision (b), Daniels v. Department of Motor Vehicles (1983) 33 Cal.3d 532, and Zanone v. City of Whittier (2008) 162 Cal.App.4th 174, Moscoe contends the report was inadmissible because there was no evidence it was made “‘at or near the time of the act, condition or event, ’ attested to by the document’s author.” (Italics added.) Evidence Code section 1280 governs admission of official records or records made by a public employee; subdivision (b) states only that to be admissible the writing must be made “at or near the time of the act, condition, or event.” It does not state that the writing must be attested to by its author. As we stated above, the “‘qualified witness’” testifying to the foundational facts that the writing was prepared in the ordinary course of business and describes contemporaneous acts, conditions or events need not be the document’s author. (Jazayeri v. Mao, supra, 174 Cal.App.4th at p. 324; see People v. Beeler (1995) 9 Cal.4th 953, 979 [“Evidence Code section 1271... states no requirement that the person who prepared the business record testify regarding its contents.”]; People v. Geier, supra, 41 Cal.4th at p. 596.) Daniels held that accident reports prepared by ordinary citizens and transmitted to the D.M.V. were not admissible as business records because “[a]lthough it may be the regular course of business for the D.M.V. to receive the report, it undoubtedly is not in the regular course of business for the citizen author to make such a report”; the fact that “the report is made an ‘official record’ of the D.M.V. does not suffice to create a greater degree of competency, reliability or trustworthiness in the preparation of the report.” (Daniels v. Department of Motor Vehicles, supra, 33 Cal.3d at pp. 537, 539.) In Zanone, where the issue was the admissibility of exit questionnaires prepared by peace officers on the eve of departing their employment and summaries of exit interviews of the departing officers prepared by other employees, the court stated with respect to the questionnaires: “Clearly, the departing officers were neither employees acting on behalf of the Department nor acting in the ordinary course of their own business when they completed their exit questionnaires, an infrequent event.” (Zanone v. City of Whittier, supra, 162 Cal.App.4th at p. 191.) With respect to the interview summaries, the court stated: “[T]he employees who prepared them did not have firsthand knowledge of the events recorded and the officers, who did have firsthand knowledge, were not under a business duty to accurately report the facts pertaining to their departure.” (Id. at p. 192.) Here, the reports were prepared by Orchid analysts with firsthand knowledge of the facts recorded in the regular course of their employment. Accordingly, the holdings in Daniels and Zanone have no bearing here.
Moscoe contends that a “threshold requirement[]” for admission of the report was not met because the prosecution did not establish that the author or authors of the report were unavailable. Unavailability of the person who prepared the document is not a prerequisite for admission under the business records rule. (Evid. Code, § 1271; People v. Beeler, supra, 9 Cal.4th at pp. 979-980.)
Finally, Moscoe contends that the report was untrustworthy because it was stored as “non-secure data on [Orchid’s] public-access server” subject to “compromise[] by someone other than the authors given its availability to anyone at [Orchid]....” Under Evidence Code section 1271, subdivision (d), to be admissible, “[t]he sources of information” for the business record and the “method and time of preparation” must be such “as to indicate [the business record’s] trustworthiness.” A trial court has broad discretion to determine whether the foundational requirements of Evidence Code section 1271 have been met, including the requirement of trustworthiness. (People v. Hovarter (2008) 44 Cal.4th 983, 1011.) “On appeal, we will reverse a trial court’s ruling on such a foundational question only if the court clearly abused its discretion.” (Ibid.) Business records are generally considered trustworthy because they are prepared by persons who are personally or through their employment invested in accurate recordkeeping. (See 1 Witkin, Cal. Evidence (4th ed. 2000) Hearsay, § 226, p. 943.) Dr. Staub testified concerning the importance of accurate analysis and recordkeeping to Orchid and the procedures utilized to ensure the accuracy of the final report. Moscoe raises only speculation concerning the possibility that someone at Orchid tampered with the report after the analysts input their conclusions and observations. The trial court did not abuse its discretion in finding the report trustworthy. (See People v. Parker (1992) 8 Cal.App.4th 110, 117 [trustworthiness of lab report satisfied by testimony detailing the tests and procedures used by criminalists employed by laboratory]; People v. Beeler, supra, 9 Cal.4th at p. 979 [autopsy report preparer’s prior misconduct was for trial court to consider, and “did not mandate a finding that the autopsy report... was untrustworthy”].)
Because we do not find that the report was untrustworthy or otherwise inadmissible, we do not reach Moscoe’s contention that Dr. Staub’s opinion testimony was inadmissible because it relied on the report.
B. Chain of Custody
Appellants contend the DNA evidence obtained from Espinoza’s blue pickup truck should not have been admitted because there was insufficient evidence of proper chain of custody. Appellants raise two contentions in this regard: (1) Detective Cortez and other police officers on the scene failed to take sufficient precautions to ensure that they themselves did not transfer the victim’s blood to the pickup; and (2) the fact that the bloodstains were not observed or sampled until after the pickup had been impounded for two weeks suggested the possibility of tampering.
Detective Cortez testified that he wore gloves at the crime scene, but that neither he nor any other officer at the scene wore booties.
“In a chain of custody claim, ‘“[t]he burden on the party offering the evidence is to show to the satisfaction of the trial court that, taking all the circumstances into account including the ease or difficulty with which the particular evidence could have been altered, it is reasonably certain that there was no alteration. [¶] The requirement of reasonable certainty is not met when some vital link in the chain of possession is not accounted for, because then it is as likely as not that the evidence analyzed was not the evidence originally received.... Conversely, when it is the barest speculation that there was tampering, it is proper to admit the evidence and let what doubt remains go to its weight.” [Citations.]’” (People v. Catlin (2001) 26 Cal.4th 81, 134, quoting People v. Diaz (1992) 3 Cal.4th 495, 559.) “‘While a perfect chain of custody is desirable, gaps will not result in the exclusion of the evidence, so long as the links offered connect the evidence with the case and raise no serious questions of tampering.’” (People v. Catlin, supra, 26 Cal.4th at p. 134, quoting Mendez, Cal. Evidence (1993) § 13.05, p. 237.)
Preliminarily, we agree with respondent that any objection to the samples taken from the pickup truck on chain of custody grounds was not preserved for appeal, as appellants did not raise such an objection at trial. (Evid. Code, § 353, subd. (a); People v. Baldine (2001) 94 Cal.App.4th 773, 779 [“Objections related to the chain of custody are waived if not timely asserted.”].) Moreover, although not challenged to do so, the prosecution did provide ample chain of custody evidence. Detective Cortez testified that he had Espinoza’s truck impounded and taken to the impound lot on the night of the shooting. He further testified that he spotted what appeared to be a blood smear while the truck was in the lot. Miller testified that she observed two additional possible blood smears when she was brought in to obtain samples. Miller also testified concerning the care she took in obtaining and labeling the samples, which were preliminarily tested by Thompson for the presence of blood and transmitted to Orchid for DNA analysis. Although the defense obtained a concession from Detective Cortez that he had not worn booties while at the crime scene, opening up the possibility that some of the victim’s blood could have gotten on his shoes, the blood smears were not found in locations likely to have come into contact with the detective’s shoes. The defense was free to argue that the evidence should be disregarded, but the discrepancies noted with respect to protecting the truck from contamination and the timing of finding the blood smears went to the weight of the evidence, not its admissibility.
C. Sillas/Espinoza Conversation
As discussed, Sillas testified concerning a conversation with Espinoza on the day preceding the shooting, in which he stated he was in dire need of money. Sillas also testified concerning the cell phone conversations she had with Espinoza while she was in the bar, including Espinoza’s request that Sillas identify anyone in the bar who appeared to have money. Prior to trial, Moscoe objected to the testimony on hearsay, Sixth Amendment and Aranda-Bruton grounds. The court deemed Moscoe’s objections a request to exclude the testimony and denied it. During trial, when Sillas began to testify concerning her conversations with Espinoza, Moscoe’s counsel objected on Sixth Amendment and hearsay grounds. The court overruled the objections and stated that they would be deemed continuing. On appeal, Moscoe contends Espinoza’s statements were hearsay as to him and should not have been admitted, or that a limiting instruction should have been given.
Bruton v. United States (1968) 391 U.S. 123; People v. Aranda (1965) 63 Cal.2d 518.
Preliminary, we reject respondent’s contention that Moscoe forfeited his hearsay objection because he “made no attempt to clarify his objection to the trial court” or explain that it was “distinct from his objection based on Aranda-Bruton.” Moscoe’s counsel asserted that Espinoza’s statements to Sillas were “hearsay, ” which as to him they clearly were. No further explanation was necessary to preserve the issue for appeal. (See People v. Morris (1991) 53 Cal.3d 152, 187-188, disapproved on another ground in People v. Stansbury (1995) 9 Cal.4th 824 [“No particular form of objection or motion is required; it is sufficient that the presentation contain a request to exclude specific evidence on the specific legal ground urged on appeal.”].)
With respect to admissibility of the statements, it has long been the rule that in a joint trial, the prosecution may introduce evidence of a confession obtained from one defendant. (See Aranda, supra, 63 Cal.2d at p. 524 and cases cited therein.) Formerly, if the confession inculpated a codefendant against whom it was not admissible, the codefendant was entitled to a limiting instruction. (Ibid.) The rationale was that “a jury will comprehend and apply instructions to limit the effect of a confession to the particular declarant.” (Ibid.) In Aranda, our Supreme Court held that where one defendant’s confession implicates a codefendant, their trials must be separate, unless the confession can be effectively redacted or sanitized to remove reference to the codefendant. The United States Supreme Court reached a similar conclusion in Bruton, supra, 391 U.S. at pp. 135-136, finding that to permit admission of the confession of a codefendant in a joint trial would violate the nondeclarant’s right under the Confrontation Clause to cross-examine the witnesses against him. Neither Aranda nor Bruton is relevant here. Espinoza’s statements, as described by Sillas, did not implicate Moscoe. Espinoza did not mention Moscoe’s name or otherwise refer to him. Although the statements suggest a motive for robbery and an attempt to identify a likely victim, Espinoza did not suggest that Moscoe or any other third party was involved in the planning or execution of the robbery or had a similar motive. Accordingly, the statements were admissible despite the joint trial.
Because the statements made by Espinoza did not implicate Moscoe, his contention that the court should have given a limiting instruction directing the jury to use Espinoza’s statements only against him lacks merit. There is no reasonable possibility that the jury could have construed the statements as supporting Moscoe’s guilt. Moreover, any claim of error is forfeited. Moscoe did not request a limiting instruction and the trial court had no duty to give one sua sponte. (Evid. Code, § 355; italics added [“When evidence is admissible... for one purpose and is inadmissible... for another purpose, the court upon request shall restrict the evidence to its proper scope and instruct the jury accordingly.”]; People v. Hernandez (2004) 33 Cal.4th 1040, 1051 [“[A]lthough a court should give a limiting instruction on request, it has no sua sponte duty to give one.”].) Moscoe contends any request for a limiting instruction would have been futile “[i]n light of the trial court’s ruling.” The trial court overruled Moscoe’s objections to the introduction of the evidence. Nothing in the court’s statement indicated that it would not entertain a request for a limiting instruction.
D. Accomplice Culpability
“[A] person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.” (People v. Beeman (1984) 35 Cal.3d 547, 561.) An aider and abettor is chargeable as a principal. (People v. Sully (1991) 53 Cal.3d 1195, 1227.) “‘Whether defendant aided and abetted the crime is a question of fact, and on appeal all conflicts in the evidence and reasonable inferences must be resolved in favor of the judgment.’” (People v. Campbell (1994) 25 Cal.App.4th 402, 409, quoting People v. Mitchell (1986) 183 Cal.App.3d 325, 329.)
In closing, the prosecutor argued that Moscoe was the shooter and Espinoza an aider and abettor to the attempted murder. The jury was instructed, pursuant to CALCRIM No. 402, that to prove the defendants guilty of attempted murder, “the People must prove that: [¶] 1. The defendant is guilty of robbery; [¶] 2. During the commission of robbery a coparticipant in that attempted murder [sic] committed the crime of attempted murder; and [¶] 3. Under all of the circumstances, a reasonable person in the defendant Espinoza’s position would have known that the commission of attempted murder was a natural and probable consequence of the commission of the robbery.” The jury was further informed that “[a] natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes.” During deliberations, the jurors informed the court by note that they needed clarification or further explanation of the term “‘natural and probable.’” Over Espinoza’s objection, the court provided the following additional instruction to the jurors: “The test for ‘natural and probable’ in this case becomes: [¶] Is the attempted murder a reasonably foreseeable act of the robbery in this particular case? [¶] If yes, then it is ‘natural and probable.’ [¶] If no, then it is not ‘natural and probable.’ [¶] Other words for ‘foreseeable’ include ‘expected, ’ ‘anticipated, ’ and/or ‘contemplated.’ [¶] The issue is not a question of law to be determined by definition, but rather, the issue is a factual question to be resolved by the jury in light of all the circumstances surrounding this particular robbery.” The jurors continued deliberations and found Espinoza guilty of attempted murder.
We note that in part 2 of the instruction, the court inadvertently inserted a reference to attempted murder, the non-target offense, where the pattern instruction calls for insertion of a reference to the target offense -- here, robbery. (See CALCRIM No. 402 - Natural and Probable Consequences Doctrine (Target and Non-Target Offenses Charged).) Appellant Espinoza does not assign error to this misstatement, and we find no basis to conclude the jury was misled in view of the remaining instructions given.
The court also learned at that time that the jury had reached verdicts on all of the charges except the attempted murder charge against Espinoza.
Espinoza contends that the court’s supplemental instruction wrongly permitted the jury to convict based on reasonable foreseeability, which he equates to a negligence standard, rather than proof beyond a reasonable doubt. Espinoza concedes that this issue has been decided unfavorably to him by the California Supreme Court. (See, e.g., People v. Avila (2006) 38 Cal.4th 491, 564 [“Like a conspirator, an aider and abettor is guilty not only of the offense he intended to encourage or facilitate, but also of any reasonably foreseeable offense committed by the perpetrator he aids and abets.”]; People v. Croy (1985) 41 Cal.3d 1, 12, fn. 5 [“[An aider and abettor’s] knowledge that an act which is criminal was intended, and his action taken with the intent that the act be encouraged or facilitated, are sufficient to impose liability on him for any reasonably foreseeable offense committed as a consequence by the perpetrator.”].) He contends, however, that the issue should be given a fresh look in view of the United States Supreme Court’s decision in Apprendi v. New Jersey (2000) 530 U.S. 466 that the jury must find beyond a reasonable doubt any fact, other than a prior conviction, that increases the maximum penalty for a crime. We are bound by our Supreme Court’s holdings (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), and conclude that neither Apprendi nor its progeny undermines the court’s determination that an aider and abettor is culpable, along with the perpetrator, of any reasonably foreseeable offense committed during pursuit of the original criminal goal.
DISPOSITION
The judgments are affirmed.
We concur: EPSTEIN, P. J., SUZUKAWA, J.