Opinion
NOT TO BE PUBLISHED
Solano County Super Ct. Nos. VCR176751, VCR179180
Reardon, Acting P.J.
In December 2006, the Solano County District Attorney charged appellant Antoine Ramont Carruth with the following offenses set forth in a consolidated information in case Nos. VCR176751 and VCR179180: possessing cocaine base for sale (counts 1 & 2); possessing methamphetamine (count 3); and destroying or concealing evidence (count 4). The information also alleged that appellant suffered a prior conviction for possessing cocaine base for sale; that he served a prior prison term; and was out of custody on bail when he committed the count 2 and 3 offenses.
Case No. VCR176751 has been designated as the lead case.
Appellant admitted the prior conviction and the on-bail enhancement. A jury found appellant guilty as charged. The court sentenced him to seven years four months in prison: the midterm of four years on count 1; a consecutive one year four months (one-third the midterm) on count 2; a concurrent two-year term on count 3; two years for the on-bail enhancement; and three years stayed for the prior sales conviction and prior prison enhancements.
On appeal appellant claims Crawford and evidentiary error, and urges reversal without retrial of the count 1 trafficking offense. We affirm.
Crawford v. Washington (2004) 541 U.S. 36.
I. FACTUAL BACKGROUND
A. December 8, 2004 Search
Vallejo police officers arrested appellant on December 8, 2004, as he was leaving his apartment compound on Tuolumne Street by car. Armed with a warrant, the police brought him back to his apartment to be searched. He had $382 in cash upon his person.
Prior to obtaining the search warrant, the police had conducted a controlled buy of drugs from appellant.
On the path leading from appellant’s car to his apartment, an officer noticed a small bag containing four rocks of cocaine base, individually packaged in plastic. The corner of the bag had been pulled off.
In the apartment the officers found approximately a quarter pound of cocaine base, a digital scale and a cell phone inside a kitchen cabinet. There was another scale on the counter, surrounded by what “looked like crumbs” of cocaine base, as well as packaging consistent with resale of base cocaine. Plastic baggies with the corners torn off were recovered from the kitchen trash can. Also in the kitchen were three boxes of baking powder and “a gross” of unused sandwich baggies.
Appellant admitted that the cocaine base was his and that he dropped the baggie with the four rocks found on the sidewalk. Further, he claimed he was a user and that the drugs were for his personal use, not for sale. However, appellant admitted he previously sold cocaine base, gave it away to friends, and previously purchased cocaine.
Corporal Theodore Postolaki testified as an expert in cocaine base identification and sales practices. He gave his expert opinion that the drugs in the kitchen, the residue around the scale, and the drugs on the walkway were cocaine base. Additionally, the packaging was consistent with resale of cocaine base, and the residue on the scale showed that someone was weighing narcotics on the scale. Corporal Postolaki performed an “NIK” test on the cocaine base. This is a presumptive chemical test; the narcotic tested positive for cocaine.
In the officer’s opinion, appellant possessed the cocaine for sale. The quantity was close to a quarter pound with a street value of over $11,000. The scales, the plastic baggies and the baking soda all reflected an operation for packaging drugs for sale. Regarding the baggies with the cut-off corners, Corporal Postolaki had this to say: “[Y]ou take... a rock of cocaine, and a regular sandwich bag. [¶] Before it’s cut, put it in the corner, pull the corner, knot it or cut it in place. This type of packaging is only consistent with sales.”
The officer was not impressed with appellant’s assertion that he was a user, not a seller—there was no paraphernalia on his person or in the apartment.
B. June 11, 2005 Search
Appellant was subject to a second search warrant executed on Kathy Ellen Street on June 11, 2005. It took appellant about a half minute to come to the door. The cuff of his sleeve was wet. Dish rags, wet on the down side and dry on top, were shoved down the disposal. Removing them, the officers found packaged and loose cocaine inside the garbage disposal. In all there were 17 individually packaged rocks, as well as some loose rocks in the disposal area. Many were knotted in sandwich baggie corners that had not yet been torn off the baggies. There was a hanging scale near the kitchen sink and cocaine base on the counter near the scale. In the living room the officers found baggies and $290 in cash.
The cocaine weighed 3.4 grams. As well, a baggie with.5 grams of methamphetamine was found in a purse. No smoking paraphernalia was found.
Appellant admitted the rocks in the sink were cocaine base and were his, and that he put the methamphetamine—which also was his—in the purse. Again, he said he was a user, not a seller of cocaine.
Highlighting the quantity of rocks, the prepackaged form, the scale, the cash and absence of paraphernalia, Corporal Postolaki testified that the drugs in the sink were cocaine base, which appellant possessed for sale.
C. 1998 Drug Conviction
In 1998, Detective Gilbert Lucero seized two large chunks of cocaine, weighing 56 grams total; two scales; a “pay/owe” book; a weapon; and $530 in cash from the bedroom of appellant’s home. Appellant was in bed, fully clothed. Detective Lucero “NIK-tested” the substance, with positive results. Appellant stipulated at trial that he pleaded no contest to possession for sale of cocaine base in September 1998.
D. Chemical Testing
Shana Meldrum is a forensic toxicologist with the Contra Costa County crime lab. She conducted two tests on the cocaine base and the methamphetamine seized on June 11, 2005. First, she conducted presumptive color tests “which indicate a class of family that a substance might be positive for.” The positive results on the presumptive color tests were then confirmed with an instrumental analysis using the gas chromatograph/mass spectrometer. These technologies are generally accepted in the scientific community. The tests confirmed that the drugs seized from the two searches were cocaine base and methamphetamine.
Meldrum’s colleague, Denise Allen, tested the substances seized from appellant’s kitchen on December 8, 2004. However, she was unavailable at trial because she was on a training excursion. Meldrum, the custodian of records for the Contra Costa County crime lab, testified over objection to Allen’s curriculumvitae and about the nature of the report she generated. The report was admitted into evidence. Allen’s tests confirmed that the substance was cocaine base.
II. DISCUSSION
A. Admission of Denise Allen’s Report
Appellant assails the admission of Allen’s lab report, contending his constitutional right to confrontation as elucidated in Crawford, supra, 541 U.S. 36 was violated. The Crawford court held that the confrontation clause renders out-of-court, testimonial statements offered against a criminal defendant inadmissible unless the declarant is unavailable at trial and the defendant has had a prior opportunity to cross-examine. (Id. at p. 59.) The court explained: “Where testimonial evidence is at issue,... the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.... [¶] Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.” (Id. at pp. 68-69, fn. omitted.)
Going forward from Crawford, the key determinate implicating a confrontation clause violation is whether the out-of-court statement is testimonial. However, the court in Crawford did not announce a definitive characterization that would enable courts to sift out testimonial from nontestimonial statements: “We leave for another day any effort to spell out a comprehensive definition of ‘testimonial.’ Whatever 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.” (Crawford, supra, 541 U.S.at p. 68, fn. omitted.)
Subsequently, our Supreme Court has weighed in on the issue of whether scientific evidence, such as lab reports, are testimonial statements that are inadmissible unless the person who prepared the report testified or the Crawford conditions of unavailability and a prior opportunity for cross-examination have been met. (People v. Geier (2007) 41 Cal.4th 555, 598, petn. for cert. pending, petn. filed Nov. 14, 2007, No. 07-7770 (Geier).) In Geier, the defendant objected to a witness’s testimony about DNA analysis because the witness did not actually perform the tests herself. After surveying the various approaches adopted by other jurisdictions that have addressed the issue, the Geier court concluded that scientific evidence memorialized in routine forensic reports is not testimonial. (Id. at pp. 605-606.) A statement is testimonial if the following criteria are met: “(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.” (Id. at p. 605.) If all criteria are not satisfied, the statement is not testimonial. (Ibid.)
In Geier, there was no question that a police agency requested the DNA report, and it reasonably could have been anticipated that the report might be used at a later criminal trial. However, the second criterion could not be met. The court reasoned that the circumstances in which the DNA report was generated constituted “a contemporaneous recordation of observable events rather than the documentation of past events.” (Geier, supra, 41 Cal.4th at p. 605.) Deciding whether a given statement is testimonial requires a court to consider the circumstances under which it is made. (Id. at p. 607.) The reports and notes in question were generated as part of standard scientific protocol. The biologist conducted her analysis and made the notes and reports as part of her job, not in order to incriminate the defendant. To the extent the notes, forms and report merely recounted the procedures used to analyze the DNA samples, they were not themselves accusatory because DNA analysis can lead to incriminatory or exculpatory results. The actual accusatory opinion was given by the testifying witness. In other words, “[r]ecords of laboratory protocols followed and the resulting raw data acquired are not accusatory. ‘Instead, they are neutral, having the power to exonerate as well as convict.’ [Citation.]” (Ibid.)
There is no meaningful distinction between the DNA tests in Geier and the drug tests here. Meldrum, the custodian of records, testified that the report of controlled-substances examination was generated by the county’s crime lab. The entries were made at or near the time of the event that they describe. Submitting that Geier was “wrongly decided,” appellant delves into the case at length in order to preserve his confrontation clause issue for further review. We, however, are bound by Geier. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) There was no Crawford error here.
The issue currently is pending before the United States Supreme Court. (Melendez-Diaz v. Massachusetts, cert. granted Mar. 17, 2008, (No. 07-591) [128 S.Ct. 1647].) And, as noted above, certiorari is pending in Geier.
Should the United States Supreme Court decide that scientific reports such as the lab report in question are testimonial under Crawford, appellant’s confrontation clause challenge would still fail because any error is harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) A confrontation clause violation is subject to Chapman harmless error analysis. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 681; Geier, supra, 41 Cal.4th at p. 608.) Nonetheless, appellant intimates that Crawford error is “structural,” citing United States v. Gonzalez-Lopez (2006) 548 U.S. 140, 145-146. That decision does not intimate any such thing. To the contrary, appellant alludes to the portion of the opinion that distinguishes Sixth Amendment violations of the right to counsel of choice or confrontation from claims such as ineffective assistance of counsel which are subject a two-part test requiring prejudice to establish any constitutional error.
Notwithstanding appellant’s assertion that Meldrum’s testimony was the only evidence that the substance was controlled, there was overwhelming evidence that cocaine base was found in appellant’s apartment on December 8, 2004. Corporal Postolaki testified as an expert in the area of “recognition of cocaine base.” He performed the “NIK” test with positive results on the substance seized on December 8, 2004. This is a presumptive chemical color-changing test that identifies the presence and type of narcotic based on a color response. Meldrum explained that the color tests can give the same color test results for other substances, so a confirmation is necessary.
In this case, Corporal Postolaki also offered his expert opinion that the substance was cocaine base. He has observed cocaine base “well over 500 times” through his work on the street. The presumptive “NIK” examination gave initial positive test results. Further, he pointed to the method of packaging for sale, with individual rocks knotted into the corner of a sandwich bag. The baking powder found in the kitchen is used to “make the [base] cocaine go further.” Additionally, his identification of the substance seized on June 11 was confirmed by Meldrum’s testing, going to the accuracy of his earlier identification.
Significantly, appellant admitted that he possessed the cocaine base seized on December 8, 2004. He told the police he knew cocaine base was in the apartment, and it was his, as were the four rocks found on the sidewalk. He also said he was a user of cocaine, and had purchased cocaine two days prior to the event.
Scientific testing is not essential to prove the narcotic identity of a substance. “[T]he nature of a [narcotic] substance, like any other fact in a criminal case, may be proved by circumstantial evidence. [Citations.] It may be proved, for example, by... [citations],... the expert opinion of the arresting officer [citation], and by the conduct of the defendant indicating consciousness of guilt. [Citation.]” (People v. Sonleitner (1986) 183 Cal.App.3d 364, 369.) Here, Corporal Postolaki’s expert testimony, the presumptive test, appellant’s admissions and his prior experience with cocaine base provided overwhelming confirmation that the substance seized on December 8 was cocaine base. Any error in admitting Allen’s lab report was harmless beyond a reasonable doubt.
B. No Inadmissible Hearsay
Allen’s lab report was offered as a business record by Meldrum, the custodian of records. Appellant maintains that the report was inadmissible hearsay as offered through Meldrum. Specifically, he complains that Meldrum did not provide a sufficient foundation because she was not present at the time Allen performed the tests and analysis, and thus could not “testify to what she actually did that day, except for relying on [her] notes.” Not so.
Evidence Code section 1271 states that a document is admissible as a business record if: “(a) The writing was made in the regular course of business; [¶] (b) The writing was made at or near the time of the act, condition, or event; [¶] (c) The custodian... 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.” The trial court enjoys wide discretion in deciding whether a sufficient foundation has been laid to qualify evidence as a business record. (People v. Beeler (1995) 9 Cal.4th 953, 978.)
Appellant misunderstands the foundation requirements for admitting a business record into evidence. First, Evidence Code section 1271 does not require that the person who prepared the business record testify as to its contents. (People v. Beeler, supra, 9 Cal.4th at p. 979.) Second, the statute does not require that the custodian or other qualified witness who testifies to the identity and mode of preparation of the business record be physically present to observe the actual entrant record data in the document. It is enough that such person testifies about the relevant business practices of the enterprise and that the other elements of Evidence Code section 1271 are satisfied.
The object of Evidence Code section 1271 is to eliminate the need to call each witness who plays a role in the preparation of the record, and in its place substitute the actual record of the transaction. (County of Sonoma v. Grant W. (1986) 187 Cal.App.3d 1439, 1451.) Regarding the conduct of the business and affairs of a company, we presume that the regular course of business is followed, and that its books and records truly reflect facts set forth in such books. (Ibid.)
Meldrum was familiar with the accreditation standards for the laboratory, the quality control mechanisms in place, the requirements for employment as a forensic toxicologist as well as the duties, and the training and proficiency examinations that each forensic analyst must undergo. She related the standard procedures that are followed in the normal course of business when testing controlled substances, including notation of the date of receiving the sample, the types of tests conducted, and preparing notes at or near the time of analyzing the sample, with indication of the time on the notes page.
According to Meldrum, pursuant to standard procedure Allen’s report was date-stamped indicating that Allen received and tested the samples on December 21, 2004. Meldrum recognized Allen’s handwriting. The report was prepared and maintained in the ordinary course of business, with entries made at or near the time of the event described.
The trial court concluded that Meldrum had provided an adequate foundation and admitted Allen’s report. The court did not abuse its discretion in admitting the report. From Meldrum’s testimony that the laboratory had strict protocols in place, with a system of internal audits required for accreditation, the court reasonably could infer that the records in question were prepared in the usual manner and regular course of the business of the lab. Therefore, the procedures were sufficiently trustworthy and reliable to qualify as an admissible business record under Evidence Code section 1271.
C. Sufficient Evidence Supports the Conviction for the December 2004 Trafficking Offense
Finally, appellant presses for reversal with prejudice of the December 8, 2004 conviction for possession of cocaine base, due to failure of proof. Appellant’s argument seems to be that once the purportedly inadmissible evidence is excised, double jeopardy would bar retrial because the “the state chose to present [that evidence] instead of moving to continue for Allen’s availability.” Appellant’s argument is not clear to this court. However, our decision today that the trial court did not commit Crawford error—let alone prejudicial Crawford error—or abuse its discretion in admitting Allen’s report as a business record defeats any assertion that he is entitled to reversal.
III. DISPOSITION
The judgment is affirmed.
We concur: Sepulveda, J., Rivera, J.