Opinion
G056908
02-26-2020
THE PEOPLE, Plaintiff and Respondent, v. STEVEN CRUZ, Defendant and Appellant.
William Paul Melcher, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Lance E. Winters, Assistant Attorneys General, Susan Sullivan Pithey, Joseph P. Lee and Michael J. Wise, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16NF1182) OPINION Appeal from a judgment of the Superior Court of Orange County, Gary S. Paer, Judge. Affirmed. William Paul Melcher, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Lance E. Winters, Assistant Attorneys General, Susan Sullivan Pithey, Joseph P. Lee and Michael J. Wise, Deputy Attorneys General, for Plaintiff and Respondent.
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After Steven Cruz was involved in a deadly traffic collision, he was transported to a hospital for treatment, which included taking his blood for analysis. The results of those tests showed he had a high level of alcohol in his blood at the time of the collision. Following a jury trial, Cruz was convicted of vehicular manslaughter, driving under the influence, and driving with a blood alcohol level of 0.08 and causing bodily injury.
Cruz contends the admission of his hospital medical records, including the blood test results, violated his Sixth Amendment right to confrontation. We disagree because the statements in the medical records lacked the requisite degree of formality and the primary purpose for creating those records was to treat Cruz, and not for later use at trial. Accordingly, we affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
A. Underlying Offense
At around noon on May 10, 2015, Cruz was speeding when he drove his pickup truck into a sedan. Cruz, who was not wearing a seatbelt, hit his head on the windshield and was ejected from his truck. The sedan's driver died immediately. The sedan's two passengers, Ruby and Debbie P., sustained multiple bone fractures and were hospitalized for several days.
When Buena Park Police Officer Richard Pino interviewed Cruz at the scene of the collision, Cruz admitted he sped up to make a yellow light and collided with a car that had pulled out in front of him. Cruz also admitted he had consumed two beers before the collision.
Cruz was transported to Western Medical Center, and was admitted to the hospital at 12:35 p.m. A blood sample was drawn, and a doctor ordered the blood tested for eight chemicals and for ethanol. The tests were conducted by the hospital's laboratory. The result showed Cruz had a blood serum alcohol concentration of 0.11. The doctor who ordered the blood tests, the phlebotomist who drew the blood, and the laboratory personnel who performed the tests did not testify.
Terri Beday testified that at the direction of a police officer, she drew a second blood sample at 2:31 p.m., and sent it to the Orange County Crime Laboratory (OCCL). Fernando Manaloto, an OCCL forensic scientist, testified he tested the second blood sample and determined its whole blood alcohol concentration was 0.067 percent. Cruz does not challenge the admission of this second blood test result or the expert testimony based on this second blood test.
Manaloto explained blood serum tests would show a higher concentration of alcohol than whole blood tests because blood serum does not contain all the components of blood. Based on how the human body eliminates alcohol over time and the blood serum result for the first sample converted to a whole blood result, Manaloto opined that Cruz's blood alcohol content (BAC) was between 0.105 percent and 0.115 percent at the time of the collision. Based on the second whole blood test, Manaloto opined Cruz's BAC was between 0.095 percent and 0.105 percent at the time of the collision. Manaloto further opined that all drivers are impaired above 0.08 percent BAC.
Law enforcement retrieved crash data from the event data recorder in Cruz's truck. The data showed the truck was traveling approximately 91 m.p.h. three seconds before impact, 87 m.p.h two seconds before impact, and 70 m.p.h. one second before impact.
Buena Park Police Officer Jeffrey Vu testified he conducted a traffic investigation of the collision. Vu spoke with witnesses and other officers, and he viewed surveillance video from nearby businesses. He observed the skid marks, the debris field and the impacted vehicles. Vu noted the speed limit for the area was 45 miles per hour. Vu concluded Cruz's truck was traveling at an extremely high rate of speed when it struck the victim's car, which had just exited the driveway of a restaurant. Vu opined the primary causes of the collision were Cruz's "driving under the influence of alcohol and high speed, and an associated factor of [the victim's] failing to yield when exiting a driveway." B. Charges, Jury Verdict and Sentence
Cruz was charged with vehicular manslaughter with gross negligence while intoxicated (Pen. Code, § 191.5, subd. (a); count 1), driving under the influence of alcohol causing bodily injury (Veh. Code, § 23153, subd. (a); count 2), and driving with a BAC of 0.08 percent causing bodily injury (Veh. Code, § 23153, subd. (b); count 3). As to counts 2 and 3, it was alleged the victims Ruby P. and Debbie P. sustained great bodily injury (GBI) (§ 12022.7, subd. (a)).
All further statutory references are to the Penal Code, unless otherwise stated.
A jury found Cruz guilty as charged, and found true the GBI allegations. The trial court sentenced Cruz to a term of eight years, eight months in state prison.
II
DISCUSSION
Cruz contends "admission of the Western Medical records violated [his] confrontation rights as the records were admitted for their truth and as [his] blood test was taken under circumstances where he was detained by police and under suspicion of having committed a crime." We disagree.
The Sixth Amendment's confrontation clause provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." (U.S. Const., 6th Amend.) In Crawford v. Washington (2004) 541 U.S. 36 (Crawford), the United States Supreme Court clarified that "the principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused." (Id. at p. 50.) Crawford held the Sixth Amendment bars the admission of "testimonial hearsay" against a criminal defendant at trial unless the declarant is unavailable to testify and the defendant had a previous opportunity to cross-examine the witness or forfeited the right by his own wrongdoing. (Id. at pp. 68-69; see People v. Sanchez (2016) 63 Cal.4th 665, 680 (Sanchez).)
"Throughout its evolution of the Crawford doctrine, the high court has offered various formulations of what makes a statement testimonial but has yet to provide a definition of that term of art upon which a majority of justices agree." (Sanchez, supra, 63 Cal.4th at p. 687.) "A majority in [several cases] adopted the distinguishing principle of primary purpose. Testimonial statements are those made primarily to memorialize facts relating to past criminal activity, which could be used like trial testimony. Nontestimonial statements are those whose primary purpose is to deal with an ongoing emergency or some other purpose unrelated to preserving facts for later use at trial." (Id. at p. 689.) "Instead of the primary purpose test, Justice Thomas has consistently applied a test turning solely on whether the proffered statement was sufficiently formal to resemble the disapproved civil law procedure, inter alia, in the 'Marian statutes' that permitted use of an ex parte examination to establish facts.'" (Ibid.) The degree of formality required includes questioning resulting from a "'formalized dialogue'" or the taking of statements "'sufficiently formal to resemble the Marian examinations" but not "'a mere conversation between a witness or suspect and a police officer.'" (Id. at pp. 689-690, quoting Davis v. Washington (2006) 547 U.S. 813, 838, 840.)
Here, the Western Medical records were admitted into evidence and prosecution expert witness Manaloto relied on the Western Medical records, specifically the blood serum alcohol concentration test, to opine Cruz had a BAC between 0.105 percent and 0.115 percent at the time of the collision. Cruz contends the Western Medical records constituted testimonial hearsay. Cruz, however, does not contend the Western Medical records are sufficiently formal to be considered testimonial by Justice Thomas. As Cruz acknowledges, the California Supreme Court has concluded a nontestifying analyst's laboratory report on the concentration of alcohol in a defendant's blood lacked the requisite degree of formality to render it testimonial. (People v. Lopez (2012) 55 Cal.4th 569, 582.) The Western Medical records likewise lack the requisite formality.
Cruz argues, however, the primary purpose of the statements in the Western Medical records was to memorialize facts for later use at a criminal trial. He notes that when he was transported to the hospital, he was under police suspicion for committing a crime (driving under the influence (DUI)) and he was detained before the blood samples were drawn. Cruz's argument is unavailing. As the United States Supreme Court has noted in a case challenging the admissibility of certified statements by state laboratory analysts under Crawford, "medical reports created for treatment purposes . . . would not be testimonial under our decision today." (Melendez-Diaz v. Massachussets (2009) 557 U.S. 305, 312, fn. 2.)
People v. Dungo (2012) 55 Cal.4th 608 (Dungo) is instructive. There, the California Supreme concluded "criminal investigation was not the primary purpose for the autopsy report's description of the condition of [the victim's] body; it was only one of several purposes. The presence of a detective at the autopsy and the statutory requirement that suspicious findings be reported to law enforcement do not change that conclusion. The autopsy continued to serve several purposes, only one of which was criminal investigation." (Dungo, supra, 55 Cal.4th at p. 621.) Thus, despite the fact the victim's autopsy was conducted after the police suspected the defendant had murdered the victim, the Dungo court concluded the statements in the autopsy report were nontestimonial. (Id. at pp. 620-621.) Here, the record supports the trial court's implicit conclusion that the primary purpose of the Western Medical records was for treatment because a medical doctor ordered Cruz's blood tested shortly after he was admitted to the hospital following a deadly collision, the blood was tested for chemicals other than just alcohol, and hospital-affiliated personnel performed the tests. The fact Cruz was under suspicion of committing a DUI and detained when the blood samples were drawn does not render the statements in the medical records testimonial because even if the blood tests might be used in a criminal investigation, criminal investigation was only one of several purposes for the blood tests. (Dungo, supra, 55 Cal.4th at p. 621.) In sum, the admission of the Western Medical records and Manaloto's testimony relaying the contents of those records did not violate Cruz's confrontation rights.
III
DISPOSITION
The judgment is affirmed.
ARONSON, ACTING P. J. WE CONCUR: THOMPSON, J. GOETHALS, J.
I concur because I must pursuant to the dictates of Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d. 450. The California Supreme Court has ruled on the hearsay issue raised here by appellant in People v. Lopez (2012) 55 Cal.4th 569. We, of course, are bound by that decision. This case nonetheless gives me an opportunity to briefly express a concern regarding the analysis underlying Lopez and other similar cases that largely rely on the line of cases issued by the United States Supreme Court following its landmark decision in Crawford v. Washington (2004) 541 U.S. 36. Those cases have created an analytical framework related to Sixth Amendment confrontation issues which requires trial judges to determine whether a proffered piece of hearsay evidence is "testimonial" or "non-testimonial." To answer that question today judges are required, among other things, to ascertain the degree of formality that was associated with the creation of the evidence.
As my colleagues point out, our Supreme Court not long ago observed "[t]hroughout its evolution of the Crawford doctrine, the high court has offered various formulations of what makes a statement testimonial but has yet to provide a definition of that term of art upon which a majority of justices agree." (People v. Sanchez (2016) 63 Cal.4th 665, 687.)
And therein lies the problem. After more than fifteen years of struggling with this difficult constitutional issue, it remains largely unresolved. I suggest it will remain so as long as trial courts are required to base their analysis and their rulings on the directives of plurality opinions such as Williams v. Illinois (2012) 567 U.S. 50. The judges of California deserve better.
GOETHALS, J.