Opinion
B226037
11-15-2011
THE PEOPLE, Plaintiff and Respondent, v. EDUARD ASLANYAN, Defendant and Appellant.
James Koester, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Joseph P. Lee and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA353667)
APPEAL from a judgment of the Superior Court of Los Angeles County, Judith Champagne, Judge. Affirmed.
James Koester, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Joseph P. Lee and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Defendant Eduard Aslanyan appeals from a judgment of conviction entered after a jury found him guilty of battery with serious bodily injury (Pen. Code, § 243, subd. (d)). The trial court sentenced defendant to the middle term of three years in state prison.
On appeal, defendant contends he was deprived of his right to confront witnesses against him when the trial court allowed introduction into evidence of medical reports containing a doctor's opinion that the victim's injuries were consistent with an assault. We affirm.
FACTS
Prosecution
On the night of June 27, 2008, Ephrem Araya (Araya) was working as a parking attendant at a parking structure located at 8000 West Sunset Boulevard in Los Angeles. He saw defendant get out of the passenger side of a Mercedes parked by the exit and try to twist or break the wooden cross bar blocking the exit. Araya went over to him and offered to help defendant use the automated pay station at the exit. Defendant ordered Araya to "just open the gate." Araya said he could not do that. Defendant returned to his attempt to break the cross bar. Araya told him that if he did not stop, Araya would take down defendant's license plate number and call security.
Defendant's companion got out of the driver's side of the Mercedes, and Araya saw him put something in his pocket. Araya believed the object could be a weapon and realized the situation was out of control. He wrote down the license plate number of the Mercedes and ran toward the security office, with defendant and his companion in pursuit. When he reached the security office, he told the guard, Essanga Amba (Amba), what had happened and that defendant and his companion were trying to attack him.
Defendant and his companion arrived and approached Araya. Amba did not say or do anything. Araya tried to run, but defendant's companion grabbed his arm. Defendant hit him in the face, and Araya felt some of his teeth break. Defendant and his companion then spoke to Amba, who went with them to help them leave the parking structure.
Araya called 911 and told the operator that defendant and his companion were still in the parking structure. He then went to the exit and told defendant and his companion to wait for the police. He put a metal sign at the exit to keep them from leaving, but they drove around it and left.
When the police arrived, Araya told them what had happened. They searched for Amba but were unable to find him. They offered to call an ambulance, but Araya told them he would drive himself to the hospital.
Araya drove to Cedars Sinai Medical Center, where he went to the emergency room. He received X-rays and a CAT scan, which revealed that his jaw had been fractured. The emergency room doctor gave him pain medication and referred him to a specialist, who later performed surgery on Araya's jaw. Araya's jaw was wired shut for about three weeks. He later had dental work to repair his broken teeth and psychiatric treatment due to anxiety caused by the assault. Araya filed a worker's compensation claim for his injuries.
Defense
Amba was working as a security guard at the parking structure on the night of June 27, 2008. Araya came to the door of the security office, yelling and screaming. Defendant and another man approached the office. While Amba spoke to defendant's companion to determine what was going on, defendant started arguing with Araya. While the two were yelling and pointing fingers at one another, Amba never saw any physical contact between the two or between defendant's companion and Araya.
Amba led defendant and his companion to the automated pay station and helped them pay for their parking. He then watched them leave the parking structure. After they left, Amba saw Araya yelling and throwing things to the ground. Amba then returned to his post. He saw Araya talking to the police, but he did not approach them or give them his account of the incident.
DISCUSSION
After Araya finished testifying, the trial court asked defense counsel what his specific objection was to People's Exhibit No. 4, the medical report from Cedars Sinai Medical Center, noting that some of the pages contained irrelevant information on hospital policies. Defense counsel responded that "the defense received this document for the first time on Friday. In reviewing the material regarding the hospital policies, starting with the . . . facial CAT scan, it is giving an expert opinion given an impression mandibular fracture."
The trial court interrupted and asked, "This is a business record. Wouldn't you expect to find an opinion of a doctor as to his findings in a medical business record?" Defense counsel answered, "Yes and no, your honor. If the court looks at the actual report by Dr. Washofsky, it is a two page document. It starts with paragraph 18. I don't know where one through 17 is. [¶] If you go down, it is rendering an opinion without the defense having an opportunity to know about this opinion previously. We need to render our own opinion.
"It says here, 'Are your findings and diagnosis consistent with patient's account of injury or onset of illness?' [¶] That is an opinion I don't expect to find in an emergency room medical record and documentation. I understand that the court may allow this to come in to show results of the fact that a CAT scan was done and an X-ray was done. To go as far as along this late document in the middle of trial to come in as an opinion to give credence to the witness' testimony that his jaw was fractured and the fact as described to the hospital conforms to the injury. [¶] I don't think that is a proper way of getting this in. I think the fact there is such a delay in giving notice to defense about this issue, it should not be allowed to come in at this time."
The prosecutor responded that "the People have been subpoenaing and providing medical documents all along. I do not believe there is any surprise the fact that the victim went to the emergency room. That was even mentioned at the preliminary hearing. He sought emergency treatment that evening."
The trial court asked what medical documents had been provided to the defense, and the prosecutor pointed out there was another document from Cedars Sinai describing the same injury. The trial court then noted that in the report, the doctor stated that Araya's injuries were consistent with his account of the injuries, but the information in the report was also consistent with Araya's testimony. Additionally, the trial court told defense counsel that "this could hardly be a surprise. You did represent [defendant] at the preliminary hearing. Sometime before that, I assume, you began your relationship. It is almost a year. During that time if there was some request that went ignored, then please tell me about that. [¶] Certainly, the fact that he was treated, that he had a fractured jaw, all that is in the records that are in the court file that [is] available to counsel; I assumed turned over as they were coming in. To say this was a big surprise is a little bit of an overstatement."
Defense counsel responded that he had been requesting discovery all along, and the case had even been continued to await receipt of medical records. He had received documents from Cedars Sinai, and he had a document from the custodian of records "depicting production of records from that hospital that does not contain any one of those documents that was received [on] Friday. . . . [¶] . . . The defense was definitely surprised by this production."
After further discussion over whether there were any significant differences between the report and other records the defense had received, and whether defense counsel should have raised an objection on Friday after receiving the report, the trial court ruled that it would be admitted. Defense then asked "the court to delete paragraph one. That is an expert opinion that should not come in at this stage of the trial. It is a last minute opinion, that the doctor cannot be questioned or cross-examined." The court responded that "[e]very medical record contains a doctor's opinion. Since that doctor is a trained expert, that could be characterized as an expert opinion. That would not be a basis to exclude it."
Defendant contends that admission of the report containing the doctor's opinion deprived him of his right to confront witnesses against him under Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354, 158 L.Ed.2d 177]. Crawford held that under the Confrontation Clause, out-of-court statements by witnesses that are testimonial are barred unless witnesses are unavailable and defendants had prior opportunity to cross-examine witnesses, regardless of whether such statements are reliable. (Id. at p. 68.)
Initially, the People argue that defendant's Crawford claim has been forfeited by failing to raise a Confrontation Clause objection in the trial court. Defendant claims that his contention was preserved when his counsel stated, "It is a last minute opinion, that the doctor cannot be questioned or cross-examined."
Reviewing the colloquy regarding the medical report containing Dr. Washofsky's opinion, it is clear that defense counsel's objection was based on late receipt of the report and the lack of time to respond to it. The reference to the inability to question or cross-examine the doctor related to the late receipt of the report, not to a violation of the Confrontation Clause. Defendant's Crawford claim therefore has been forfeited. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1028, fn. 19; People v. Burgener (2003) 29 Cal.4th 833, 869.)
Moreover, even if we were to consider defendant's Confrontation Clause claim and find a violation, any error was harmless beyond a reasonable doubt. The prosecution never relied on Dr. Washofsky's statement in the medical report. The prosecutor never even mentioned it in argument.
We also note the recent decision in People v. Davis (Oct. 12, 2011, C061536) ______ Cal.App.4th ____ , holding that medical records are not testimonial in nature and therefore are not made inadmissible by the Crawford rule. (Id. at p. _________ .)
Additionally, there was never a question that Araya's injuries were consistent with an assault, as Dr. Washofsky stated in the report. As defense counsel stated in his argument, "This case is about one thing. Did [defendant] punch, hit, Mr. Araya in the face? I want to focus on that. If I go to the injuries, there [are] medical records, there is documentation that shows there was some fracture around his face."
Defense counsel later discussed Araya's injuries and how, at the time Araya went into the emergency room, he initially said that he did not think he had suffered a work injury, and his insurance would not cover it. He then said it was a work injury. Defense counsel then focused on other inconsistencies in Araya's testimony and the fact that Araya was the only witness against defendant. Counsel concluded by telling the jury, "You will see that the People have not met their burden. Mr. Araya was not assaulted by [defendant] that night, and he is making up that story because he has a workers' comp claim, and that Mr. Amba is a more believable witness."
It is clear that Dr. Washofsky's statement in the medical report that Araya's injuries were consistent with an assault played no part in defendant's conviction; the prosecution did not rely on it, it was not inconsistent with the defense, and the statement was borne out by the medical records documenting Araya's injuries. Thus, any error was harmless beyond a reasonable doubt. (People v. Vargas (2009) 178 Cal.App.4th 647, 662-663; People v. Mitchell (2005) 131 Cal.App.4th 1210, 1225.)
DISPOSITION
The judgment is affirmed.
JACKSON, J. We concur:
PERLUSS, P. J.
WOODS, J.