Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FSB801097. Ronald M. Christianson, Judge.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P.J.
A jury convicted defendant Manuel Zayas of possessing methamphetamine for sale (Health & Saf. Code, § 11378). In bifurcated proceedings, defendant admitted having suffered six prior convictions for drug offenses, for which he served prison terms (Health & Saf. Code, § 11370.2, subd. (c); Pen. Code, § 667.5, subd. (b)). He was sentenced to prison for 20 years and appeals, claiming evidence was improperly admitted at trial. We reject his contention. He also asks us to review confidential materials that were examined by the trial court in camera as part of his discovery motion and to determine if the trial court’s denial of his motion was proper. We conclude that it was. Therefore, we affirm the judgment. The facts surrounding this crime are irrelevant to this appeal.
Issues and Discussion
1. Admission of Evidence
a. Testimony of Criminalist and Request For Analysis
A criminalist at the San Bernardino County Sheriff’s Office Crime Lab, who was a 28-year veteran of the lab, had been a supervisor for four years and currently supervised the forensic alcohol and controlled substances unit and was “like a custodian of the records[, ]” and had previously qualified as an expert in the analysis of controlled substances, testified about how suspected controlled substances are received in the lab, retained there and checked out, tested and returned by the analyst who tests them. He identified a copy of a Request For Analysis form, which contained the number and a description of the suspected controlled substance in this case. He explained that after the analyst finishes testing the suspected controlled substance, a report is typed on the bottom of the form and the analyst signs it. He said that the report in this case had been done the same day as the testing. He said that such reports are done within the scope and duty of the analyst, who is a public employee and that employee has a set of procedures to follow. Those procedures include having another person do a “technical review” in which the latter “will take a look at the tests that were done, the results recorded for these tests and then determine if the handwritten report on the bottom of the [form] corresponds or draws a correct conclusion based upon the results of the test. If it does, ... the report will then be officially typed, and then the analyst will review the typed report and make sure that it corresponds exactly to what it was at the time. And then [the analyst] signs the bottom of the report....” He said the testing on the suspected controlled substance in this case was done by an analyst, and he described the latter’s education, work and training experience. While the criminalist had supervised the analyst for the last four months, he had not been his supervisor at the time of the testing, which occurred three months before he began supervising him. He was, therefore, familiar with the analyst’s work and had found it to be reliable and that the analyst’s reports had always been done according to established procedure. The criminalist testified that he had reviewed the analyst’s notes before coming to court and they were consistent with how notes should be taken and the report was worded the way it should have been. He said the “analysis records [were] prepared in substantial compliance with procedure[.] [¶]... [¶]... [T]he results and the analysis that [he] reviewed... have... supported [the analyst’s] conclusion about the results” for this case and other cases of the analyst’s he had reviewed. He said the analyst would first describe in his notes the packaging in which the suspected controlled substance was found and the appearance of the substance and its weight. In this case, the substance, without the packaging, weighed 0.17 grams. Then, the analyst would run a color test on the substance-in this case, the analyst ran a Marquis color test, which indicated that the substance was “some sort of phenethylamine... such as methamphetamine or amphetamine....” Next, a thin layer chromatography test is run, in which the suspected controlled substance is compared side by side with a known controlled substance, and, in this case, revealed that the former was methamphetamine. Finally, two microcrystal tests were performed. During those tests, the suspected controlled substance is placed with two different reagents and the crystals that are formed are examined under a microscope. In this case, both tests revealed the suspected controlled substance to be methamphetamine. All three tests were done according to currently-accepted methods in the scientific community. The criminalist testified that it appeared, based on the analyst’s notes, that the latter performed all three tests here in accordance with the training he had received. The analyst’s work had been reviewed by the since-retired supervisor of the controlled substance section of the lab. There was nothing in the notes or the conclusion that the suspected controlled substance contained methamphetamine that made the criminalist believe that either were not prepared in substantial compliance with procedure.
He said that this test is checked each time it is run.
Defendant contends that the admission of the criminalist’s testimony violated the holding in Melendez-Diaz v. Massachusetts (June 25, 2009, No. 07-591__U.S.__ [129 S.Ct. 2527] (Melendez-Diaz) which was decided after this trial. In Melendez-Diaz, the issue was the propriety of the admission of “affidavits reporting the results of forensic analysis which showed that the material seized by the police and connected to the defendant was cocaine.” (Melendez-Diaz, supra, 129 S.Ct. at p. 2530.) The affidavits only “reported the weight of the seized bags and stated that the bags ‘[h]a[ve] been examined with the following results: The substance was found to contain: Cocaine.’” (Id. at p. 2531.) The United States Supreme Court concluded that the affidavits were testimonial, rendering the affiants “witnesses, ” subject to the defendant’s right of confrontation under the Sixth Amendment. (Ibid.) Finding the affidavits to be “functionally identical to live, in-court testimony, doing ‘precisely what a witness does on direct examination’ [citation]” (id. at p. 2532) the Court concluded that there was little doubt they were testimonial statements. (Ibid.) The defendant was entitled to confront the analysts at trial and the fact that they were unavailable to him rendered the affidavits inadmissible. (Ibid.)
Defendant asserts that he did not waive or forfeit the objection to the criminalist’s testimony he now makes because it would have been futile in light of People v. Geier (2007) 41 Cal.4th 555 (Geier), discussed infra. The People do not take issue with this assertion.
In countering arguments by the four dissenting Justices and the respondent in Melendez-Diaz, its author, Justice Scalia, said something at odds with the California Supreme Court’s rationale in Geier, from which we quote the following, “[T]he prosecution’s DNA expert testified that in her opinion DNA extracted from [the victim] matched a sample of defendant’s DNA.... [Defendant] asserts that her testimony violated his Sixth Amendment confrontation right as construed by the Supreme Court in Crawford v. Washington (2004) 541 U.S. 36 because her opinion... was based on testing that she did not personally conduct.... [¶]... [¶]... [She] oversees testing and supervises the six analysts who conduct the testing.... [¶]... [¶]... [The] record is sufficiently complete that [the expert] or another analyst could reconstruct what the analyst who processed the samples did at every step. [¶]... [¶] She testified further that, based on her review of [the analyst’s] notes, in her opinion the DNA extraction was conducted according to protocol.... [¶]... [¶] Under Crawford, the crucial determination about whether the admission of an out-of-court statement violates the confrontation clause is whether the out-of-court statement is testimonial or nontestimonial.... [¶]... Crawford made it clear that ‘not all hearsay implicates the Sixth Amendment’s core concerns’ [citation].... ‘Most of the hearsay exceptions covered statements that by their nature were not testimonial-for example, business records....’ [Citation.] [¶]... Crawford declined to definitively state what constitutes a ‘testimonial’ statement... but observed: ‘Various formulations of this core class of “testimonial” statements exist: “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]; “extrajudicial statements... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony or confessions, ” [citation]; “statements that were made under circumstances that would lead an objective witness reasonably to believe that the statement would be available for use at a later trial” [citation].’ [Citation.]... [¶] Defendant argues that the DNA report that was the basis of [the expert’s] testimony was a testimonial statement because it was a statement “‘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.] [¶]... [¶]... [S]uch evidence is not testimonial, based on our own interpretation of Crawford and Davis [v. Washington (2006) 547 U.S. 813 [126 S.Ct. 2266]].... [A] 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. [¶]... [¶] It is the second point, the distinction drawn in Davis between the circumstances under which... [the] statement was made-a contemporaneous description of an unfolding event-that is critical here. [Citation.] There is no question that the DNA report was requested by a police agency.... [The analyst was] paid to do work as part of a government investigation; furthermore, it could reasonably have been anticipated that the report might be used at a later criminal trial. [The analyst’s] observations, however, constitute a contemporaneous recordation of observable events rather than the documentation of past events.... [¶]... [¶]... As we read Davis, the crucial point is whether the statement represents the contemporaneous recordation of observable events.... [¶]... [¶]... We conclude therefore that the DNA report was not testimonial for purposes of Crawford and Davis.” (Id. at pp. 593-597, 605, 607.)
What Justice Scalia said in Melendez-Diaz about the importance of the fact that the report is the contemporaneous recordation of observable events was the following, “The dissent... contends that ‘... [the] analyst’s report contains near-contemporaneous observations of the test.’ [Citation.]... [T]he dissent misunderstands the role that ‘near-contemporaneity’ has played in our case law. The dissent notes that that factor was given ‘substantial weight’ in Davis, ... but in fact that decision disproves the dissent’s position. There the Court considered the admissibility of statements [the victim] made to police officers [concerning a crime]. By the time officers arrived the [crime] had ended, but the victim’s statements-written and oral-were sufficiently close in time to the [crime] that the trial court admitted [the victim’s] affidavit as a ‘present sense impression.’ [Citation.] Though the witness’s statements in Davis were ‘near-contemporaneous’ to the events she reported, we nevertheless held that they could not be admitted absent an opportunity to confront the witness. [Citation.]” (Melendez-Diaz, supra, 129 S.Ct. at p. 2535.)
The question then is whether this language in Melendez-Diaz effectively “overruled” the holding in Geier that the contemporaneity of the recordation of observable facts is crucial in determining whether the Request for Analysis form here was testimonial and, therefore, as defendant contends, required that the analyst, rather than the criminalist, testify.
The issue of how Melendez-Diaz affects Geier is presently pending before the California Supreme Court in four cases: People v. Rutterschmidt (2009) 176 Cal.App.4th 1047 [98 Cal.Rptr.3d 390], review granted December 2, 2009, S176213); People v. Gutierrez (2009) 177 Cal.App.4th 654 [99 Cal.Rptr.3d 369], review granted December 2, 2009, S176620); People v. Dungo (2009) 176 Cal.App.4th 1388 [98 Cal.Rptr.3d 702], review granted December 2, 2009, S176886 and People v. Lopez (2009) 177 Cal.App.4th 202 [98 Cal.Rptr.3d 825], review granted December 2, 2009, S177046.
First, the above-cited language was not part of the holding of the case, but was merely part of a rebuttal to issues raised by the dissent and the respondent. Melendez-Diaz did not hold that defendant’s right to confrontation was violated by the admission of the criminalist’s testimony. Menlendez-Diaz was a five to four opinion, with Justice Thomas as one of the five. In a concurrence, he wrote, “I write separately to note that I continue to adhere to my 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.’ [Citations.] I join the Court’s opinion in this case because the documents in this case ‘are quite plainly affidavits’.... As such, they ‘fall within the core class of testimonial statements’ governed by the Confrontation Clause. [Citation.]” (Melendez-Diaz, supra, 129 S.Ct. at p. 2543 (conc. opn. of Thomas, J.).) Therefore, the fifth Justice in the majority did not endorse the comments made by the author that contradict the holding in Geier. “When a fragmented Court decides a case and no single rationale explaining the results 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....’ [Citation.]” (Marks v. United States (1977) 430 U.S. 188, 193; see also Panetti v. Quarterman (2007) 551 U.S. 930, 949; DelMonte v. Wilson (1992) 1 Cal.4th 1009, 1023.) By supplying the fifth vote on grounds narrower than those adopted by the majority, Justice Thomas’ position takes on a heightened significance in interpreting Melendez-Diaz. (See Romano v. Oklahoma (1994) 512 U.S. 1, 9; United States v. Brown (5th Cir. 2008) 553 F.3d 768, 783; People v. Rios (2009) 179 Cal.App.4th 491, 501, 502, 503; Tily B., Inc. v City of Newport Beach (1999) 69 Cal.App.4th 1, 16; Blanco v. Baxter Healthcare Corp. (2008) 158 Cal.App.4th 1039, 1050, fn. 7.)
Second, the United States Supreme Court denied certiorari in Geier days after it issued its opinion in Melendez-Diaz (June 29, 2009, No. 07-7770, ) thus implying that the former was not inconsistent with the latter.
Finally, there were significant differences, in terms of defendant’s Sixth Amendment rights, between Melendez-Diaz and this case. In Melendez-Diaz, there was no witness for the defense to cross-examine, to possibly uncover inept work or false conclusions, a point deemed important by Justice Scalia when discussing the objections to the majority’s holding advanced by the dissent and the respondent. (Melendez-Diaz, supra, 129 S.Ct. at pp. 2536, 2537.) In Melendez-Diaz, the defendant “did not know what tests the analysts performed, whether those tests were routine, and whether interpreting their results required the exercise of judgment or the use of skill the analysts may not have possessed.” (Ibid.) Here, the jury was told what tests were performed, how they were performed and how the analyst came to the conclusion he did.
A couple of times in his brief, defendant refers to facts that occurred at trial, but does not cite to the relevant portion of the record, as is required by the rules of court. (Ca. Rules of Court, rule 8.204(a)(1)(C).) In connection with this issue, he states that the prosecutor introduced the Request for Analysis under Evidence Code section 1280, but he fails to cite the record in support of this assertion. In connection with his second argument, defendant states that the prosecutor received permission from the trial court to introduce evidence of his prior convictions only if he testified. He fails to cite any portion of the record in support of this statement. He also fails to include in his brief what the trial court said immediately after this ruling, leaving an inaccurate impression of what actually occurred below.
b. Defendant’s Prior Convictions
Before trial began, defendant moved in limine to exclude evidence of his prior convictions unless he testified. During a hearing on the motion, the prosecutor said that these convictions, which had been set out in the Information, were crimes of moral turpitude with which defendant could be impeached should he testify. Defense counsel said he was concerned about the prosecution using the priors to prove that defendant was aware of the narcotic character of the methamphetamine involved in this case. The prosecutor said he did not intend to introduce evidence of the priors during his case in chief. Defendant said he wanted to testify. The trial court told defendant that if he testified, he could be impeached with “at least some of those prior convictions[.]” Defendant said he would wait until after the prosecution put on its case in chief to decide whether to testify. After the trial court ordered trial of the priors to be bifurcated from the trial of the charged offense, it ruled that no further mention be made of the priors. The prosecutor asked how the court was going to deal with the priors if defendant took the stand. The court responded that all the priors involved moral turpitude, so it was just an issue of whether all or some should come in under Evidence Code section 352. The court added, “In this particular case, though, they’re also going to be relevant on the issue of intent and knowledge. So I guess it kind of would depend on how the testimony plays out as to how many of the priors come in for impeachment purposes or other reasons.” Defense counsel said nothing.
Defense counsel said, “Well, I’m objecting to impeaching my client with crimes of moral turpitude if he takes the stand. I was a bit concerned about using some of his priors to prove the element of knowledge of the narcotic character of the material involved in this case.” It is fairly apparent that defense counsel either misspoke himself during the first sentence, or the reporter failed to report the word “not” after “I’m” and before “objecting.”
See footnote 4, ante, page 11.
After the People rested, defendant said he would be testifying. The court stated that the prosecutor had asked to be allowed to impeach defendant with all six priors which were listed in the Information. Defense counsel stated that it was his understanding that the trial court was only going to admit the three most recent possession for sale convictions, but he was still objecting. The trial court noted that five of the six priors were for possession for sale of cocaine or cocaine base. The court ruled that it would allow impeachment of the defendant with the three most recent priors, which were to be referred to as possession for sale of a controlled substance, rather than specifying the substance. The court explained that although all six priors were for crimes of moral turpitude and therefore relevant to defendant’s credibility, it was exercising its discretion under Evidence Code section 352 to exclude three since all were similar to the charged offense here. The court added, “They are also, however, relevant to the issue of intent and possession[, ]” but, at that point, using the priors to impeach defendant was what was being discussed.
During direct examination of defendant by his attorney, he testified that he had been convicted of “some dope crimes in the past[.]” Defense counsel solicited from defendant his representation that in those prior cases, defendant had taken a deal, whereas, here, he had gone to trial because this time he was not guilty in that he had not possessed the methamphetamine. During cross examination, when asked whether he told a detective that the packaging was his, he responded, “Yes, I did. I didn’t really because of my priors. I knew they were going to say it was mine.” At the end of cross-examination, the prosecutor asked defendant if he had been convicted in 1997 of possession of narcotics for sale and possession for sale of a controlled substance in 1997 and 1994. Immediately after defendant admitted he had been, the prosecutor asked him, “but the drugs found in this case were not yours?” Defense counsel did not object. On redirect, defense counsel asked defendant, “Now, with your background you realize it might be difficult for some jurors to necessarily believe you, correct?” Defendant insisted he had told the truth. Defense counsel then said, “So that’s why for the first time you’re going to trial ‘cause this time you’re not guilty, correct?
It appears that we have yet another example of either misstatements or incorrect reporting by the court reporter. (See fn. 5, ante, p. 11.) Most likely, defendant meant or testified, “Yes, I did. I did it really because of my priors.”
Defendant did not request a jury instruction on evidence admitted for a limited purpose and such an instruction was not given. During argument to the jury, the prosecutor said that along with two other circumstances which suggested that the methamphetamine was defendant’s, was the fact that he had been convicted three times of possessing narcotics for sale. Defense counsel did not object. The prosecutor also argued that defendant’s prior convictions, along with other things, suggested that he was aware of the nature and character of the methamphetamine seized as a controlled substance. Again, defense counsel did not object. In his argument to the jury, defense counsel suggested that just because someone has priors does not mean they are guilty of the charged crime. During closing argument, the prosecutor said, “... [C]ommon sense tells you that this was drugs possessed for sale, and [defendant] possessed it. He’s a seller. A convicted three times possession for sale.” The prosecutor then mentioned another item of evidence indicating that defendant possessed the methamphetamine for sale. Again, defense counsel did not object.
The jury was instructed, “If you find that a witness has been convicted of a felony, you may consider that fact only in evaluating the credibility of the witness’s testimony. The fact of a conviction does not necessarily destroy or impair a witness’s credibility. It is up to you to decide the weight of that fact and whether that fact makes the witness less believable.”
To summarize the above, it was defense counsel, not the prosecutor, who first mentioned the priors in connection with defendant’s guilt in this case. The second mention of a tie-in between his priors and his guilt of the charged offense was made by defendant himself, during cross-examination by the prosecutor. The next mention, made by the prosecutor, was not objected to by defense counsel, who then made the fourth reference to them. Defense counsel did not request an instruction limiting the jury’s consideration of defendant’s priors to only the issue of his credibility as a witness and counsel did not object to the remarks made by the prosecutor to the jury. In fact, he mentioned the priors to the jury and argued that just because they existed did not mean defendant was guilty now. Therefore, the trial court, contrary to defendant’s contention, did not “permit... the prosecution to introduce evidence of [defendant’s] past drug convictions substantively[.]” The trial court never made a definitive ruling about the use of the priors for anything other than to impeach defendant’s credibility. Moreover, it was defendant, himself, who first tied his priors to his guilt of the current crime. Thereafter, defendant either again tied the two together or failed to object when the prosecutor did and did not request an instruction prohibiting the jury from considering the priors substantively. This was not an error made by the trial court. Nor, as defendant asserts, did the prosecutor exceed the scope of the permitted use of this evidence because there was no definitive ruling that it could not be used substantively and because it was defendant, himself, who opened the door to such use.
Defendant states he does not take issue with the use of the priors to impeach his credibility.
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
Before trial, defendant moved pursuant to, inter alia, Pitchess and Evidence Code section 1045, subdivision (a) for disclosure of complaints or documents concerning dishonesty, false arrest, fabrication of charges, falsification of evidence, planting evidence, falsifying police reports, creative report writing, perjury or lying during testimony by seven San Bernardino police officers connected with this case. The trial court limited its in-camera review to the records of one of those officers and, after conducting that review, denied disclosure of those records. Defendant here asks this court to review the sealed documents to determine whether the trial court properly denied defendant’s Pitchess motion. We have reviewed those documents and conclude that the trial court did not abuse its discretion in denying defendant’s motion. (See People v. Mooc (2001) 26 Cal.4th 1216, 1229.)
Disposition
The judgment is affirmed.
I concur: McKINSTER, J.
KING, J., Dissenting.
I agree with the majority’s discussion relative to the admission into evidence of the defendant’s prior convictions. I disagree, however, with the analysis that the testimony of the criminalist did not violate the defendant’s Sixth Amendment rights.
Under our facts, the crime lab report was “testimonial, ” within the context of Crawford v. Washington (2004) 541 U.S. 36 (Crawford). Furthermore, by way of exhibit 8 and the testimony of criminalist Donald Jones, the contents of the report came before the jury for their truth. As a result, defendant’s right to confront witnesses against him was violated.
Under Crawford, testimonial statements of an absent witness are admissible at trial only when the declarant is unavailable to testify and when the defendant has had a prior opportunity to cross-examine the declarant. (Crawford, supra, 541 U.S. at p. 59.) The confrontation clause “applies to ‘witnesses’ against the accused-in other words, those who ‘bear testimony.’ [Citation.] ‘Testimony, ’ in turn, is typically ‘[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.’ [Citation.]” (Id. at p. 51.) Among the type of statements viewed as “testimonial” are those “‘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....’” (Id. at p. 52; see also Melendez-Diaz v. Massachusetts (2009) 577 U.S. at p. ___ [129 S.Ct. 2527, 2532] (Melendez-Diaz).) Statements made in response to police interrogation are “testimonial when the circumstances objectively indicate... that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” (Davis v. Washington (2006) 547 U.S. 813, 822, fn. omitted.)
John Jermain, the criminalist who performed the underlying analysis, did not testify at the preliminary hearing and there was no showing as to his unavailability at trial.
Here, there can be no dispute that the sole purpose of the crime lab analysis and compilation of the report was done for purposes of the present criminal prosecution. Criminalist Jermain was employed by the sheriff’s crime lab. His overall responsibilities were to identify marijuana and controlled substances. As to this particular case, the San Bernardino Police Department submitted the substance for analysis with defendant’s name noted on the paperwork. Clearly, the report was the functional equivalent of a statement by criminalist Jermain prepared for use at a later trial. Its primary purpose was to record the nature of the substance for future use in a criminal prosecution.
Although the report itself and its contents may be “testimonial, ” the confrontation clause “does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.” (Crawford, supra, 541 U.S. at p. 59 fn. 9, citing Tennessee v. Street (1985) 471 U.S. 409, 414.) As with state evidentiary rules, “out-of-court statements offered to support an expert’s opinion are not hearsay because they are not offered for the truth of the matter asserted. Instead, they are offered for the purpose of assessing the value of the expert’s opinion.” (People v. Dean (2009) 174 Cal.App.4th 186, 193 [Fourth Dist., Div Two], citing People v. Thomas (2005) 130 Cal.App.4th 1202, 1209-1210 [Fourth Dist., Div Two].) Generally speaking, when an expert witness uses statements, even testimonial ones, to support his or her expert opinion at trial, those statements do not implicate the confrontation clause because they are not used for the truth of the matter asserted. However, while an expert may use out-of-court statements to support his opinion, he may not detail the content of those statements on direct examination.
As stated in People v. Campos (1995) 32 Cal.App.4th 304, “[a]n expert may not, on direct examination, reveal the content of reports prepared or opinions expressed by nontestifying experts. ‘“‘The reason for this is obvious. The opportunity of cross-examining the other doctors as to the basis for their opinion, etc., is denied the party as to whom the testimony is adverse.’”’[Citations.]” (Id. at p. 308, italics added.) Here, criminalist Jones did not rely upon the contents of the report for purposes of supporting his opinion. Rather, he testified to the details of the report. As appears in the reporter’s transcript:
“A... And in this case he [criminalist Jermain] got the characteristic crystals for methamphetamine in each of these two microcrystal reagents. [¶]... [¶]
“Q And what was the weight of the crystalline powder?
“A The weight was zero point one seven grams. [¶]... [¶]
“Q So based off the notes in the file and the end analysis, the green sheet, did-was there an opinion generated as to what the substance was that was analyzed in this case?
“A Yes, sir.
“Q And what was that?
“A That the white crystalline substance contains methamphetamine.”
As is evident, the expert expressed no opinions of his own, he simply placed before the jury the contents of the lab report.
The matter is further complicated by the fact that the crime lab report itself was admitted into evidence and the jury was not given a limiting instruction that the matters on which the criminalist expressed his opinion were admitted only to show the basis of his opinion and not for their truth. (See, e.g., People v. Coleman (1985) 38 Cal.3d 69, 92.)
As such, I would find that the report and its contents were “testimonial” and that they were submitted to the jury for the truth of the matters. The defendant’s Sixth Amendment confrontation rights were violated.
The majority relies on People v. Geier (2007) 41 Cal.4th 555 for the proposition that the lab report is not “testimonial, ” and thus the Sixth Amendment is not implicated. In Geier, the court was confronted with the question of whether a DNA report was “testimonial.” In concluding that it was not, the court focused its analysis on three facets of DNA tests: (1) the nonaccusatory nature of the results of scientific tests; (2) the fact that the test results represented the contemporaneous recordation of observable events; and (3) the admissibility of the test results under the business records exception to the hearsay rule. (Id. at pp. 605-607.)
I believe the continuing validity of Geier is in doubt. In Melendez-Diaz, the United States Supreme Court held that a certificate of forensic drug analysis issued under Massachusetts law was testimonial and therefore inadmissible under the confrontation clause. (Melendez-Diaz, supra, 129 S.Ct. at p. 2532.) The certificates, the court explained, were “functionally identical to live, in-court testimony, doing ‘precisely what a witness does on direct examination.’ [Citation.]” (Ibid.) The Melendez-Diaz court specifically rejected the argument that scientific “analysts are not subject to confrontation because they are not ‘accusatory’ witnesses....” (Id. at pp. 2533-2534.) The Melendez-Diaz court also emphasized that whether the statement is a contemporaneous recordation of observable events must be viewed in the context of whether an objective witness would reasonably believe that the statement would be available for use at a later trial. Lastly, the court rejected the argument that the certificates were outside the scope of the confrontation clause “because they are ‘akin to the types of official and business records admissible at common law.’” (Melendez-Diaz, supra, at p. 2538.) After reiterating the Crawford court’s comment that coroner’s reports have not been accorded any special status for purposes of the confrontation clause, the Melendez-Diaz court explained that business records are nontestimonial only if they were “created for the administration of an entity’s affairs and not for the purpose of establishing or proving some fact at trial....” (Melendez-Diaz, supra, at pp. 2539-2540.) To the extent that Melendez-Diaz conflicts with Geier, we are bound to follow Melendez-Diaz. (Chesapeake & O. Ry. Co. v. Martin (1931) 283 U.S. 209, 220-221; General Motors Corp. v. City of Los Angeles (1995) 35 Cal.App.4th 1736, 1749.)
As indicated in Crawford and Melendez-Diaz, the confrontation clause applies to witnesses who “bear testimony”-that is, those statements that are for the purpose of “establishing or proving some fact.” There is no requirement that they be “accusatory.”
For example, in Davis v. Washington, supra, 547 U.S. 813, the witness was reporting an ongoing incident of which the primary purpose was to seek assistance, not preserve an observation for the purpose of a criminal trial.
I would therefore reverse the matter based on a violation of the defendant’s Sixth Amendment right to confront witnesses.
On the first day of trial, in response to defense counsel’s in limine motion that marijuana seized at defendant’s home not be mentioned at trial, the prosecutor said, “I do have a little bit of an issue with that, because the People are unsure whether they are going to be able to bring in a specific analyst or his supervisor in this case.... [W]hat was sent to the crime lab for analysis has both marijuana and the methamphetamine on the record. So depending on what kind of testimony came out, if it was like a Parker situation or something akin to that, then we have a situation where the document that would be admitted mentions the marijuana.” Defense counsel responded, “In this situation why do we need to admit the documentation at all? If the criminalist or the criminal lab is going to testify they tested such and such an item that contained methamphetamine and it had this particular DR number and lab report number and leave the lab report out. The prosecutor said, “If counsel is offering to somehow stipulate or come to an agreement as to what foundation needs to be laid in the case, that we don’t actually have the analyst who analyzed it-” He was cut off by defense counsel, who said, “I’m not suggesting that.... [I]f the court’s going to let in testimony regarding someone else... doing the lab work, granted defense will object. Defense is also aware that there is some case law indicating that persons other than the person who actually did the lab work itself can testify. So I expect the court would, over defense objection, ... allow it in.” Later, the criminalist testified about the Request for Analysis form and still later, it was entered into evidence without any further objection as to its admissibility, except for what had been mentioned previously.