PEOPLE v. SALINAS

Filed 1/12/07

CERTIFIED FOR PARTIAL PUBLICATION^*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

            APPEAL from a judgment of the Superior Court of Kern County.  Sidney P. Chapin and Stephen P. Gildner, Judges.

            Burton R. Loehr, under appointment by the Court of Appeal, for Defendant and Appellant.

            Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, J. Robert Jibson and Judy Kaida, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

            In Crawford v. Washington (2004) 541 U.S. 36, at p. 68, the United States Supreme Court held the admission of testimonial out-of-court statements is barred by the confrontation clause of the Sixth Amendment unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness.  The defendant in this case challenges the admission of evidence that rocks seized from him contained methamphetamine.  The evidence came in through the testimony of a supervising criminalist who reviewed the report of another laboratory employee, who did not testify.  We hold that admission of this evidence does not violate the Crawford decision since the laboratory report is not testimonial; it was not offered as a substitute for live testimony; and the defendant had a full opportunity to cross-examine the supervising criminalist. 

In the unpublished portion of this opinion, we conclude there were no instructional errors and that no additional records are relevant to defendant's excess force claims.

The judgment is affirmed.

Procedural History

            Appellant Ricky J. Salinas was convicted by jury of possessing methamphetamine (Health & Saf. Code, §  11377, subd.  (a), count 1); two counts of felony resisting arrest (Pen. Code,^[1] §  69, counts  2 & 3); battery on a peace officer causing injury (§  243, subd.  (c)(2), count 4); and being under the influence of a controlled substance (Health & Saf. Code, §  11550, subd.  (a), count 5).  Salinas was sentenced to the middle term of two years on count  1, plus a consecutive term of eight months for each of counts  2 and 3 (one-third the mid-term) for a total term of three years and four months in state prison.  The court stayed pursuant to section  654 a middle term of two years on count  4.  A concurrent term of 90 days in county jail was imposed on count  5.

Factual HISTORY

            In the early morning hours of April  6, 2005, Delano Police Officer Navarrette stopped Salinas because the bicycle Salinas was riding did not have proper lighting.  Salinas responded in anger and accused the officer of harassing him.  When Navarrette asked for identification, Salinas handed his identification to the officer, but let it fall to the ground.  Navarrette told Salinas he was going to search for weapons and ordered Salinas to place his hands behind his back.  Salinas refused and became more agitated.  When Navarrette tried to control Salinas, Salinas attempted to pull away.  A scuffle ensued with Navarrette ending up on top of Salinas.  Salinas tried to roll over Navarrette, who called for back-up.

Officer Rutledge responded and assisted Navarrette in bringing Salinas under control.  During the struggle, Salinas threatened both officers.  At one point, he said he was going to â€