P. v. Green

Filed 3/11/10 P. v. Green CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. Barbara R. Johnson, Judge. Affirmed.

Robert Booher, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Jason Lamar Green appeals from a judgment entered after a jury convicted him of possession for sale of phencyclidine (PCP) in violation of Health and Safety Code section 11378.5.[1] The trial court accepted defendants admission that he sustained one prior conviction for possessing cocaine base for sale ( 11370.2, subd. (a)) and three prior convictions for a serious or violent felony. (Pen. Code, 667.5, subd. (b).)

The trial court sentenced defendant to six years in state prison as follows: the low term of three years for the possession for sale conviction plus a three-year enhancement for the prior conviction ( 11370.2, subd. (a)), plus a one-year term as to each of the three prior convictions for a serious or a violent felony to run concurrently with the sentence imposed in count 1. (Pen. Code, 667.5, subd. (b).)

Defendant contends that: (1) admission of the criminalists notes violated his right to confrontation; (2) the trial court did not understand its sentencing discretion; and (3) the prosecutor presented the jury with a legally incorrect theory in closing argument.

We affirm the judgment.

FACTS AND PROCEDURAL HISTORY

On October 1, 2008, Los Angeles Police Department (LAPD) Officer Jennifer Grasso (Grasso) and her partner were on patrol when she noticed defendant walking with a female companion. Defendant looked over his shoulder, made eye contact with the officers, and appeared startled. Grasso observed that defendant was clutching something tightly in his right hand. Defendant turned and walked briskly toward an apartment complex, putting his right hand deep into his pocket. As defendant approached the locked gate to the apartment complex, he loudly demanded that the gate be opened. Two or three women were standing inside the gated area, but did not open the gate. Grasso approached defendant and asked him if he lived at the apartment complex. Defendant replied that he did not. Grassos partner then searched defendant and recovered $177 from his right pocket. As Grassos partner walked defendant toward the police car, a glass vial fell from defendants pant leg and onto the street. Defendant kicked the vial under the police car. Grasso recovered the vial, which was the size of a half-dollar in diameter, about three to four inches in length, and capped with a black plastic stopper. The vial was almost completely full of an amber-colored liquid.

Criminalist Cheryl Will (Will), the supervisor of the LAPD narcotics laboratory, testified that one of the laboratory analysts, Veronica Chiquillo (Chiquillo), determined that the glass vial recovered from defendant contained 21.63 grams of liquid in which the presence of PCP was detected. Will testified that Chiquillo had a bachelors degree in biology and a masters degree in criminalistics chemistry. Chiquillo had been trained to analyze controlled substances in the laboratory and had been working in the narcotics analysis unit for two years. Chiquillo conducted an analysis on October 3, 2008, and on December 17, 2008. On October 3, 2008, Chiquillo weighed the liquid and performed four chemical tests. The first two screening tests produced a positive result. The third and fourth microcrystal tests were conducted independently and confirmed that the liquid contained PCP. Will testified that Chiquillo wrote notes while analyzing the liquid. On December 17, 2008, Chiquillo performed a test using a scientific instrument that identified the presence of PCP in the liquid. Will testified that after conducting the tests, the analysts generate a hard copy of the data resulting from the tests.

LAPD Detective Frank Lyga (Lyga), who testified as an expert witness, opined that the amount of PCP found on defendant was consistent with 540 doses. A typical user puts one drop, or 1/20th of a millimeter of PCP onto a cigarette, per dose. He opined that the quantity was sufficient for sales. He also stated that most and in fact all users are sellers at one point because they exchange and share drugs with their friends.

DISCUSSION

I. Admission of the criminalists notes did not violate defendants right to confrontation

A. Crawford v. Washington (2004) 541 U.S. 36 (Crawford) claim

Defendant contends for the first time on appeal that the trial court violated his Sixth Amendment confrontation right by admitting into evidence the chemical and instrumental laboratory reports prepared by Chiquillo, who did not testify at trial. We reject defendants argument on the merits and affirm the judgment.[2]

Citing the United States Supreme Courts recent decision in Melendez-Diaz v. Massachusetts (2009) 557 U.S. __ [129 S.Ct. 2527] (Melendez-Diaz), defendant contends that the United States Supreme Court in Melendez-Diaz clearly subsumed the California Supreme Courts analysis in [People v. Geier (2007) 41 Cal.4th 555]. [3]

The Sixth Amendments confrontation clause provides that, [i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him. In Crawford, the U.S. Supreme Court concluded that a lower court violated the defendants Sixth Amendment confrontation right when it admitted a statement made by the defendants wife to police officers where the wife was not subject to cross-examination at trial. It held: Testimonial statements of witnesses absent from trial [may be] admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.[4](Crawford, supra, 541 U.S. at p. 59.) The U.S. Supreme Court declined to spell out a comprehensive definition of testimonial, but noted that [w]hatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed. (Id. at p. 68.)

In Davis v. Washington (2006) 547 U.S. 813 (Davis), the U.S. Supreme Court explained what it considered to be testimonial statements. The admissibility of two out-of-court statements made by declarants who were not present at the defendants trial was at issue in Davis. The first statement was a 911 recording in which the declarant described the events of a domestic disturbance to the emergency operator as they unfolded before her. (Id. at pp. 817-819.) The second was a statement made to police officers in which the declarant answered questions about a domestic disturbance that had already occurred. (Id. at pp. 819-820.) The U.S. Supreme Court held that the first statement was not testimonial primarily because the declarant was speaking [to the emergency operator] about events as they were actually happening, rather than describ[ing] past events, Lilly v. Virginia (1999) 527 U.S. 116, 137. (Davis, at p. 827.) In contrast, the second statement was testimonial because the declarant was providing a narrative of past events [to the police, which] was delivered at some remove in time from the danger she described. (Id. at p. 832.)

In People v. Geier (2007) 41 Cal.4th 555 (Geier), the Supreme Court addressed the issue of whether results from DNA testing were admissible at trial where the person who conducted the testing was not subject to cross-examination. In Geier the defendant was charged with murder and forcible rape. Seminal fluid recovered from the victims body matched the defendants DNA. At trial, the supervisor of the laboratory which conducted the DNA testing testified about the results of the testing, and further testified that the analyst who conducted the testing recorded her observations while the testing took place. (Id. at p. 596.) The Supreme Court held that although the DNA testing was requested by a police agency and would likely be used at a later criminal trial, the DNA results admitted into evidence were not testimonial because the analysts observations . . . constitute[d] a contemporaneous recordation of observable events rather than the documentation of past events. (Geier, supra, at p. 605.) That is, she recorded her observations regarding the receipt of the DNA samples, her preparation of the samples for analysis, and the results of that analysis as she was actually performing those tasks. (Id. at pp. 605-606.) Accordingly, in the Supreme Courts view, the DNA results were like the contemporaneous statement made to the 911 operator as the crime unfolded in Davis, and unlike the narrative made to police officers after the crime had already taken place. (Geier,supra, at pp. 605-606.) The Supreme Court emphasized that the crucial point is whether the statement represents the contemporaneous recordation of observable events and not whether it might reasonably be anticipated [that the statement] will be used at trial. (Id. at pp. 606-607.)

The U.S. Supreme Court recently revisited the issue of out-of-court testimonial statements in Melendez-Diaz. In that case, authorities arrested the defendant in possession of bags containing a substance that resembled cocaine. (Melendez-Diaz, supra, 129 S.Ct. at p. 2530.) At trial, the prosecution placed into evidence the bags seized from the defendant and submitted three certificates of analysis showing the results of the forensic analysis performed on the seized substances. The certificates, which were prepared almost a week after the testing of the substance occurred, reported the weight of the seized bags and stated that the substance inside the bags was found to contain: Cocaine. (Id. at pp. 2531, 2535.) The certificates were sworn to before a notary public by analysts at the states department of health laboratory, as required by Massachusetts law. (Ibid.) Further, 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 . . . . (Id. at p. 2532.)

The U.S. Supreme Court, in a 5-4 decision, held that these certificates of analysis were quite plainly affidavits and thus, within the core class of testimonial statements, subject to the confrontation restrictions in Crawford. (Melendez-Diaz, supra, 129 S.Ct. at p. 2532.) Because the certificates were testimonial in nature, the defendant was entitled to confront the analysts who signed them absent a showing that the analysts were unavailable to testify at trial and that the defendant had a prior opportunity to cross-examine them. (Ibid.) At the conclusion of its decision, the majority noted that its holding in Melendez-Diaz was little more than the application of [its] holding in Crawford v. Washington, 541 U.S. 36 because the certificates in question were simply ex parte out-of-court-affidavits, which the prosecution could not rely on to prove its case. (Melendez-Diaz, supra, 129 S.Ct. at p. 2542.)

Four days after issuing its decision in Melendez-Diaz, the U.S. Supreme Court denied certiorari in Geier. (Geier, supra, 41 Cal.4th 555, cert. den. sub nom. Geier v. California (2009) __ U.S.__ [129 S.Ct. 2856].)

B. Geier is not controlled by Melendez-Diaz

We are thus faced with the question of whether, as defendant puts it, Melendez-Diaz clearly subsumed Geier. In our view, there are two significant differences between Melendez-Diaz and Geier.

In Geier, the director of the laboratory where the DNA testing occurred testified that she supervised the work of six analysts in the laboratory, including Yates, the analyst who matched the DNA found on the victims body to the defendants DNA. (Geier, supra, 41 Cal.4th at p. 594.) The director testified that she reviewed the testing conducted by Yates and determined that it was according to protocol. (Id. at p. 596.) It was in the context of this testimony by the director, which was subject to the defendants cross-examination, that the trial court admitted the results of the DNA testing performed by Yates.

On the other hand, no live testimony was offered in Melendez-Diaz on the composition of the seized substance. Rather, the admitted evidence consisted only of affidavits. The U.S. Supreme Court emphasized that the affidavits contained only the bare-bones statement that the seized substance contained cocaine, and 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 skills that the analysts may not have possessed. (Melendez-Diaz, supra, 129 S.Ct. at p. 2537.) Unlike a live witness, these affidavits were not subject to cross-examination and the prosecution, under state law, could use them as prima facie evidence of the composition, quality, and the net weight of the analyzed substance . . . . (Id. at p. 2532.)

In addition, the DNA results in Geier constitute[d] a contemporaneous recordation of observable events rather than the documentation of past events. (Geier, supra, 41 Cal.4th at p. 605.) In contrast, the affidavits in Melendez-Diaz were prepared a week after the actual testing occurred. (Melendez-Diaz, supra, 129 S.Ct. at p. 2535.) In this sense, the affidavits in Melendez-Diaz were much more like the narrative of past events to police officers deemed testimonial in Davis.

We conclude that Geier is distinguishable from Melendez-Diaz on the two bases discussed above, and it is still controlling in this state.

C. The chemical and instrument tests were admissible under Geier

We turn now to whether the results of the chemical and instrumental analyses in this case are admissible. Unlike the affidavits held inadmissible in Melendez-Diaz, there was live testimony in this case by an expert about the analysts qualifications, how the analyst was trained in laboratory procedures, and how the analyst performed the chemical and instrumental analyses. Defense counsel was free to cross-examine the witness on any of these issues. Like the DNA results held admissible in Geier, the results of the substance analyses performed in this case were recorded contemporaneously, i.e., at the same time that the analysis [was] conducted, and during the regular course of business. Because the chemical and instrumental analyses conducted by the analyst in this case were clearly contemporaneous recordation[s] of observable events rather than the documentation of past events, they were admissible as nontestimonial statements under Geier, supra, 41 Cal.4th at page 605.

II. The trial court understood its sentencing discretion

Defendant contends that the trial court was not aware of its discretion to strike his prior conviction allegation and the matter must be remanded for resentencing based on a statement by the trial court that the minimum that you could be sentenced to would be six years, which would be low term, plus three years for the three-year prior of 1998. We conclude that defendant has waived this issue on appeal.

Pursuant to Penal Code section 1385, subdivision (a), [t]he judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. According to the Supreme Court, A defendant has no right to make a motion, and the trial court has no obligation to make a ruling, under section 1385. But he or she does have the right to invite the court to exercise its power by an application to strike a count or allegation of an accusatory pleading, and the court must consider evidence offered by the defendant in support of his assertion that the dismissal would be in furtherance of justice. (People v. Carmony (2004) 33 Cal.4th 367, 375.) And [w]hen the balance falls clearly in favor of the defendant, a trial court not only may but should exercise the powers granted to him by the Legislature and grant a dismissal in the interests of justice. [Citation.] Nonetheless, any failure on the part of a defendant to invite the court to dismiss under [Penal Code] section 1385 following [People v. Superior Court (Romero) (1996) 13 Cal.4th 497] waives or forfeits his or her right to raise the issue on appeal. [Citation.] (People v. Carmony, at pp. 375-376; People v. Scott (1994) 9 Cal.4th 331, 356 [complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal].) The waiver doctrine applies because counsel is charged with understanding, advocating, and clarifying permissible sentencing choices at the hearing. Routine defects in the courts statement of reasons are easily prevented and corrected if called to the courts attention. As in other waiver cases, we hope to reduce the number of errors committed in the first instance and preserve the judicial resources otherwise used to correct them. (People v. Scott, supra, at p. 353.)

The trial courts decision whether or not to strike enhancements under Penal Code section 1385 is subject to its discretionary power. (Romero, supra, 13 Cal.4th at p. 530.) Here, the record shows that defense counsel had ample opportunity to apply to the trial court to exercise its discretion to dismiss a prior conviction pursuant to Penal Code section 1385. Defense counsel was aware that before trial, the trial court explained to defendant that the Peoples offer of four years was fair, and less than the minimum exposure he faced if he were to be convicted. The trial court stated that the minimum sentence was six years, which would be low term, plus three years for the three-year prior of 1998. It is true that the trial court did not give a statement of reasons why it was not exercising its discretion in refusing to strike the priors, but the waiver doctrine [applies] to claims involving the trial courts failure to properly make or articulate its discretionary sentencing choices including the failure to state any reasons. (People v. Scott, supra, 9 Cal.4th at p. 353; People v. Gillispie (1997) 60 Cal.App.4th 429, 433 [sentencing court is not affirmatively required to state on the record what discretionary power it has and how it chooses to exercise that discretion].)

We conclude that defendant waived the issue of whether the trial court exercised its discretion in failing to strike the prior convictions.

III. The prosecutor did not present the jury with a legally incorrect theory

Defendant contends that the prosecutor presented the jury with a legally incorrect theory that a user is necessarily a seller. We disagree.

[W]hen the prosecution presents its case to the jury on alternate theories, some of which are legally correct and others legally incorrect, and the reviewing court cannot determine from the record on which theory the ensuing general verdict of guilt rested, the conviction cannot stand. (People v. Green (1980) 27 Cal.3d 1, 69, superseded by statute on other grounds as set forth in Pen. Code, 190.2, subd. (a)(17)(M).) Defendant urges that the prosecutor presented the jury with a legally incorrect theory in closing argument when she stated that defendant is a user who exchanges PCP with other addicts. Defendants objection is that the jury could have relied on the legally incorrect theory that all one must prove to establish intent to sell is that the defendant was a user of the relevant drug. In support of his argument, defendant references testimony by Lyga that most users arein fact, all users are sellers at one point or another and that users share with their friends, hoping their friends will share with them in the future.

We do not find that there is a reasonable likelihood that the jury construed the challenged statement to mean that all users are sellers and that therefore the People need not establish intent to sell. The prosecutor argued that defendant possessed enough PCP for 540 doses; that a typical user uses one or two drops of PCP on their cigarette; that one hit from the cigarette is a dose; and that one cigarette would take one to two days to consume.[5] She concluded that the amount defendant possessed could only be used for sale. After defense counsel impugned the credibility of Lyga, and urged that defendant possessed the PCP for his own use, the prosecutor conceded in rebuttal that defendant could have used some of the PCP for his own use. But, she then argued that the amount was too much for one person to use, and that in order for defendant to finance his PCP habit, he would have had to sell some of it. She then made the statement that defense counsel now finds objectionable, that addicts exchange between themselves to help each other out, but that exchanging some of the PCP for value constitutes a sale. This exchange for value, the prosecutor contended, constitutes possession with intent to sell.

First, as defendant concedes, section 11378.5 prohibits sales not only for cash but for transfers of other than money. (People v. Lazenby (1992) 6 Cal.App.4th 1842, 1845.) Thus, the prosecutor properly stated the law. Second, in the context of the entire argument and jury instructions, it is not reasonable that the jury would have construed the prosecutors statements to mean that all users are necessarily sellers so that the People did not need to prove intent to sell. That is, the jury was instructed with CALCRIM No. 2302 that the People must prove, among other things, that when the defendant possessed the PCP, he intended to sell it. The jury was also instructed with CALCRIM No. 225, that the People must prove that the defendant acted with a particular intent or mental state. And, the jury was also constructed with CALCRIM No. 2304, the lesser included offense of possession for sale, which omits the intent to sell element. We presume the jury followed the jury instructions, and defendant has not rebutted this presumption. (People v. Boyette (2002) 29 Cal.4th 381, 453, overruled on other grounds as stated in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) And, by convicting defendant of the greater crime, the jury found that he possessed the additional element of intent to sell and rejected the notion that he merely possessed the PCP for his personal use.

We conclude that the prosecutor did not present the jury with a legally incorrect theory.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

________________________, J.

CHAVEZ

We concur:

__________________________, P. J.

BOREN

__________________________, J.

ASHMANN-GERST

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[1] All further statutory references are to the Health and Safety Code unless otherwise indicated.

[2] Defendant concedes that he did not object to Wills testimony or the admission of the laboratory reports below. The People contend that he has forfeited his confrontation claim on appeal. Generally, a defendant waives his right to claim error under the Sixth Amendments confrontation clause on appeal by failing to object below. (People v. Lewis (2006) 39 Cal.4th 970, 1028, fn. 19 [We reiterate that defendants have forfeited this confrontation clause claim by failing to raise it below]; People v. Alvarez (1996) 14 Cal.4th 155, 186 [Defendant has not preserved his claim for review. . . . There was neither a specific nor timely objection below predicated on the Sixth Amendments confrontation clause].) Defendant contends that any objection would have been futile at the time because the U.S. Supreme Court had not yet issued its decision in Melendez-Diaz. We need not decide the forfeiture issue because we conclude that defendants argument fails on the merits.

[3] To distinguish between the two high courts, we will hereinafter refer to the United States Supreme Court as the U.S. Supreme Court, and the California Supreme Court as the Supreme Court.

[4] In doing so, the court overruled its decision in Ohio v. Roberts (1980) 448 U.S. 56, which held that an out-of-court statement was admissible if it fell under a firmly rooted hearsay exception or bore particularized guarantees of trustworthiness. (Id. at p. 66.)

[5] The prosecutor argued: Hes going to use some of the [PCP] for himself and then pass it along to his friends in exchange for maybe one day he doesnt have PCP but they will. They exchange PCP. This is the way addicts work, you know. You scratch my back one day; I scratch your back another day. But its still exchanging for value. Whether he is exchanging it for money or for PCP for another day doesnt matter. Thats still possession with the intent to sell. And that is why Mr. Greene is guilty beyond a reasonable doubt.