Opinion
E050471
09-30-2011
THE PEOPLE, Plaintiff and Respondent, v. RUDY JAY FERRER, Defendant and Appellant.
Kenneth H. Nordin, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Lilia E. Garcia and Lynne G. McGinnis, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FVI801904)
OPINION
APPEAL from the Superior Court of San Bernardino County. John B. Gibson, Judge. Affirmed.
Kenneth H. Nordin, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Lilia E. Garcia and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
A jury convicted defendant and appellant Rudy Jay Ferrer of felony possession of methamphetamine (count 1; Health & Saf. Code, § 11377, subd (a)) and being under the influence of methamphetamine (count 2; id., § 11550, subd. (a)). During trial, the People introduced a report from a forensic crime laboratory stating that a white crystalline substance found near defendant was methamphetamine. The person who performed the analysis and came to that conclusion did not testify at trial. Instead, the report was admitted into evidence based on the testimony of a supervisor who did not observe the analyst perform the tests on the substance. The supervisor also testified that, based on his review of the analyst's notes (as well as his own training, education, and knowledge of the crime laboratory's procedures), he would have come to the same conclusion as the analyst.
In a bifurcated court trial, the court found true an allegation that defendant had been convicted of a serious felony (Pen. Code, §§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) and had served a prison term for a prior felony conviction (id., § 667.5, subd. (b)). He was sentenced to five years in prison.
On appeal, defendant contends the conviction on count 1 must be reversed because the admission into evidence of the analyst's report and the related testimony by the supervisor violated his right to confront the witnesses against him under the Sixth Amendment to the federal Constitution. The People initially disagreed with all of defendant's contentions. However, in a supplemental brief filed after the United States Supreme Court's recent decision in Bullcoming v. New Mexico (2011) 564 U.S. _____ [131 S.Ct. 2705] (Bullcoming), the People concede that "it appears the trial court erred" in allowing the analyst's written report into evidence. They continue to assert that the testifying supervisor's testimony was admissible because the supervisor "had a connection to the testing and offered his independent opinion about the test results." The People further assert that any error was harmless.
We hold that the supervisor's testimony, as well as the analyst's report, is testimonial and the court's error in admitting the evidence violated defendant's right under the confrontation clause. We conclude, however, that the error was not prejudicial and therefore affirm the judgment.
II. FACTUAL SUMMARY
San Bernardino County Sheriff's deputies went to a residence on Rambling Road in Apple Valley to serve a search warrant. There were six people inside the house at the time. Deputy Edward Bachman found defendant alone in a bedroom lying on a bed. Deputy Bachman handcuffed defendant and escorted him to the living room where other occupants were being detained by other deputies. He then searched the bedroom where he had found defendant. Inside a dresser drawer, Deputy Bachman found men's clothing, mail with defendant's name on it, and a digital scale of the kind people use when buying or selling controlled substances. The mail with defendant's name did not have the Rambling Road address on it; it had a Hesperia address. On a night stand, Deputy Bachman found a shot glass with a white "crystal-like" substance inside, which he suspected was methamphetamine. There was also a metal item or tool inside the shot glass.
According to Deputy Bachman, the amount of the substance found in the shot glass was a "usable quantity"—at least 0.02 grams. He performed a "Marquis Reagent Number 2" test on the substance, which indicated the presence of amphetamines.
Deputy Bachman noticed that defendant seemed irritated, nervous, fidgety, and agitated. There was a white coating on defendant's tongue and mouth. Deputy Bachman had defendant perform field sobriety tests. Based on his observations and defendant's performance on these tests, Deputy Bachman concluded that defendant was under the influence of a central nervous system stimulant. Methamphetamine is such a stimulant.
While defendant was being taken from the house to jail (and after being advised of his Miranda rights), he told Deputy Bachman he was staying at the Rambling Road house and that clothes and other items in the room were his. Deputy Bachman asked him about the suspected methamphetamine. Defendant said, in Deputy Bachman's words, that "none of the illegal items inside of the room belonged to him." Defendant told Deputy Bachman he had an "addiction problem," that he "used approximately 30 cents of methamphetamine a day," and was attempting to get enrolled in a narcotics program.
Miranda v. Arizona (1966) 384 U.S. 436.
Deputy Bachman submitted a request to the San Bernardino County Sheriff's forensic science laboratory (the crime lab) for an analysis of the substance found in the shot glass. The request was made on a form with the preprinted words: "Sheriff's Department County of San Bernardino[;] Scientific Investigations Division Forensic Science Laboratory[;] Report on the Examination of Controlled Substances[.]" (Capitalization omitted.) The request includes, among other information, defendant's name, the officer's name, and, following the word "OFFENSE," a citation to Health and Safety Code section 11377, subdivision (a). The form indicates the substance was delivered to the crime lab on September 11, 2008. The words, "Baggie w/ Methamphetamine" are written in a space provided for a description of the evidence. Below this is an area of the form designated "FOR LABORATORY USE ONLY," and a space for writing an "ANALYSIS" of the evidence.
John Jermain, an analyst at the crime lab, performed an analysis of the substance. At trial, the prosecution introduced the request for analysis form described above, which includes, in the analysis portion of the form, the following conclusion: "The white crystalline substance (net weight 0.06 gram) contains methamphetamine." Below this is the statement: "I hereby certify the foregoing laboratory analysis to be true under penalty of perjury. [¶] Executed this 16th day of September, 2008, at San Bernardino, California." In the space for the analyst's signature, Jim Vaughn, Jermain's acting supervisor, wrote: "John Jermain by JLV 9-18-08." (We will refer to the completed request for analysis form as the crime lab report, or simply the report.) Neither Jermain (who no longer worked for the County of San Bernardino) nor Vaughn testified at trial.
The crime lab report was introduced through Donald Jones. Jones is a "Supervising Criminalist" and was Jermain's supervisor at the crime lab during a four- month period that included the time Jermain performed the analysis of the substance in this case. When Jones was not supervising Jermain, Vaughn was Jermain's acting supervisor. Jones has worked in the crime lab for 28 years and has been a supervisor for four years. He did not observe Jermain perform his analysis of the substance in this case. According to Jones, Jermain was trained in analyzing controlled substances, worked for the crime lab for more than two years, and followed the procedures for collecting, storing, and analyzing evidence.
Jones described the crime lab's procedures for analyzing controlled substances. According to Jones, evidence submitted to the crime lab is accompanied by a request for analysis form. An analyst will perform certain tests on the evidence and make notes during the tests. The notes are recorded "at or near the time" the analyst actually performs the analysis. The analyst's notes are examined by a reviewer—in this case, Vaughn—who makes sure the notes are thorough, the notes contain enough data to support the analyst's conclusion, and the correct conclusions were drawn from the test results indicated in the notes. If the notes pass this review, they are given to a clerical staff person who types the analyst's conclusion onto the report form. The report is then returned to the analyst for the analyst's review and certification of the typewritten report.
In this case, the analyst, Jermain, was not available to review or sign the typewritten crime lab report. Therefore, Vaughn signed the report for Jermain as described above. According to Jones, this indicates that Vaughn reviewed Jermain's handwritten notes, confirmed that the notes supported Jermain's conclusion, and confirmed that the typewritten report correctly stated the conclusion set forth in the notes. However, Jones did not oversee Vaughn's review of the report and did not have personal knowledge of what Vaughn did to review the report.
Jones testified that he reviewed Jermain's notes "prior to coming to court today." Based on his review, Jones said that Jermain followed the standard procedures used by the crime lab and performed the standard tests used in the industry. These tests include a "marquis test," a "thin layer chromatography test," and two "microcrystal tests." These tests could be performed and the report completed within one hour.
Based on his experience, knowledge, and review of Jermain's notes, Jones testified he would have come to the same conclusion Jermain did—that the substance was 0.06 grams of methamphetamine. Jones also confirmed that Jermain's findings, as reflected in his notes, are identical to the conclusion on the typewritten report.
According to the analyst's report, the methamphetamine weighed 0.06 grams. According to the reporter's transcript, Jones was asked at one point about the weight of the crystalline substance based on Jermain's notes and answered, "[t]he reported weight .006 grams." Later, the court asked Jones about the weight, and he responded (according to the reporter's transcript): "The weight is recorded as 0.0.06 grams." Neither party draws attention to these discrepancies or possible mistranscriptions, and the weight of the substance is not an issue on appeal.
Among other objections, defense counsel asserted that Jones's testimony on this point was inadmissible under Crawford v. Washington (2004) 541 U.S. 36 (Crawford). The court overruled the objections, stating: "I don't see the Crawford analogy at all. That's where an officer is examining a witness"; and "I don't believe the Crawford decision has completely eliminated exceptions to the hearsay rule. I think the Crawford decision was limited to the factual basis it was decided on, and that held with statements that were made by a witness who brought it in under a hearsay exception. I saw nothing in Crawford or [its] progeny which expanded that to the area of government records exception to the hearsay rule." The court then allowed the crime lab report into evidence with all defense objections incorporated.
Other objections were interposed at various points during Jones's testimony. These include speculation and lack of foundation as to Jones's testimony regarding Vaughn's review of Jermain's analysis, hearsay and lack of foundation as to Jermain's qualifications as an analyst, speculation, lack of foundation, and hearsay as to Jones's knowledge of whether Jermain followed standard procedures for the analysis, and lack of foundation as to Jones's testimony concerning the weight of the substance. On appeal, the People do not assert that any of defendant's arguments on appeal were waived for failing to object below.
In addition to the test of the substance, Deputy Bachman arranged for an analysis of defendant's blood. The toxicologist who performed the tests on defendant's blood testified that defendant had 259 nanograms of methamphetamine per milliliter of blood. He testified that this is at the upper end of the normal range for someone who uses or abuses methamphetamine. A written report of the toxicology analysis was authenticated by the toxicologist and admitted into evidence.
The toxicologist explained that a "normal person wouldn't have methamphetamine in their blood. It's not something that's naturally occurring . . . ." A person who is taking a prescription for methamphetamine would be expected to have between 20 and 40 nanograms of methamphetamine per milliliter. Someone with close to 500 nanograms per milliliter "might be a coroner case."
The toxicology analysis also showed the presence of 18 nanograms of amphetamine per milliliter of blood. Amphetamines are found when the body metabolizes, or breaks down, methamphetamine. The higher the ratio of amphetamine to methamphetamine in a person's blood, the toxicologist explained, the more time has passed since the person ingested methamphetamine. In this case, the ratio of approximately 7 percent indicates that defendant used methamphetamine within 12 hours from the time the blood was taken. A person can remain under the influence of methamphetamine for several days after it is taken.
III. ANALYSIS
Defendant contends the admission into evidence of the crime lab report, Jones's testimony regarding the report, and Jones's own opinion about the white substance found in the shot glass violated his constitutional right to confront the witnesses against him. In his opening brief, defendant relied heavily on the United States Supreme Court's decision in Melendez-Diaz v. Massachusetts (2009) 557 U.S. _____ (Melendez-Diaz). In their respondent's brief, the People asserted that Melendez-Diaz is factually distinguishable and that our state Supreme Court's decision in People v. Geier (2007) 41 Cal.4th 555 (Geier) governed the issues. Defendant countered by arguing that Melendez-Diaz effectively overruled Geier. After the briefs were filed in this case, the United States Supreme Court decided Bullcoming, supra, 564 U.S. _____ . We requested that the parties file supplemental briefs addressing the significance of Bullcoming to the issues raised in this appeal. We have received and reviewed those briefs.
Because the law concerning the issues raised in this appeal continues to develop, we first review the recent pertinent California and United States Supreme Court case law. A. Legal Background
A criminal defendant has a federal constitutional right "to be confronted with the witnesses against him . . . ." (U.S. Const., 6th Amend.) In Crawford, supra, 541 U.S. at pages 42, 54, and 68, the United States Supreme Court held that the admission at a trial of out-of-court testimonial statements violates a criminal defendant's right to confrontation, unless the declarant of the statement is unavailable at trial and the defendant has had a prior opportunity to cross-examine him or her.
Though the Crawford court left "for another day any effort to spell out a comprehensive definition of 'testimonial,'" it articulated a "core class of 'testimonial' statements" covered by the confrontation clause. (Crawford, supra, 541 U.S. at pp. 51, 68, fn. omitted.) These include "'ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially,' [citation]; 'extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions,' [citation]; 'statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial,' [citation]." (Id. at pp. 51-52.)
The Supreme Court clarified the nature of a testimonial statement in Davis v. Washington (2006) 547 U.S. 813 (Davis). In Davis, the court considered statements made by victims of domestic violence in two different cases. In one case, the challenged statement was the victim's statement to a 911 operator; in the second case, the challenged statements were made by the victim to officers who responded to a report of a domestic disturbance, and in an affidavit. (Id. at pp. 817, 819.) The high court formulated the following rule to decide both cases: "Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." (Id. at p. 822, fn. omitted.) Applying this rule to the two cases, the court held that the statements to the 911 operator in the first case were not testimonial, and the statements made to the officers and in an affidavit in the second case were testimonial. (Id. at pp. 829-830.)
The California Supreme Court considered the application of the confrontation clause to forensic laboratory reports in Geier, supra, 41 Cal.4th 555. In that case, Dr. Robin Cotton testified regarding the results of DNA tests that linked the defendant to a rape and murder. (Id. at pp. 593-596.) Dr. Cotton is the director of Cellmark, a company that performs DNA testing. (Id. at p. 594.) She supervises analysts at Cellmark who conduct the DNA testing for the company. (Ibid.) One of these analysts, Paula Yates, performed the tests of samples relevant to the defendant's case. (Id. at p. 596.) Dr. Cotton reviewed the forms Yates filled out and Yates's handwritten notes, as well as other data. (Ibid.) Cotton and Yates both signed the DNA report. (Ibid.) Yates did not testify.
Dr. Cotton testified as to the procedure and protocol for DNA testing at Cellmark and stated that analysts may not deviate from that protocol without permission. (Geier, supra, 41 Cal.4th at pp. 594-595.) She also testified that, "based on her review of Yates's notes, in her opinion the DNA extraction was conducted according to protocol. Viewing the genetic profiles generated by Yates, she testified that, in her opinion, . . . DNA extracted from the vaginal swabs [taken from the victim] matched DNA samples taken from [the victim] and from defendant." (Id. at p. 596.) The defendant objected to this testimony "on the grounds that [Dr.] Cotton 'didn't actually run the tests herself.' He argued that the test results were inadmissible unless Paula Yates testified." (Ibid.)
The issue, as framed by the California Supreme Court, was "whether the admission of scientific evidence, like laboratory reports, constitutes a testimonial statement that is inadmissible unless the person who prepared the report testifies or Crawford's conditions—unavailability and a prior opportunity for cross-examination— are met." (Geier, supra, 41 Cal.4th at p. 598.) After an extended review of Crawford and its progeny, including Davis, the Geier court declared that "in this case, involving the admission of a DNA report, . . . a statement is testimonial if (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. Conversely, a statement that does not meet all three criteria is not testimonial." (Geier, supra, at p. 605.) The court placed particular emphasis on the issue of contemporaneity—"the crucial point is whether the statement represents the contemporaneous recordation of observable events." (Id. at p. 607.)
In applying its three-part rule to the facts before it, the Geier court quickly disposed of the first and third criteria, which supported a finding that Yates's report was testimonial: Cellmark was paid to do its work as part of a government investigation and "it could reasonably have been anticipated that the report might be used at a later criminal trial." (Geier, supra, 41 Cal.4th at p. 605.) "It is the second point," the court stated, "that is critical here." (Ibid.) "Yates's observations," the court stated, "constitute a contemporaneous recordation of observable events rather than the documentation of past events. 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.) The court further explained that "Yates conducted her analysis, and made her notes and report, as part of her job, not in order to incriminate defendant. Moreover, to the extent Yates's notes, forms and report merely recount the procedures she used to analyze the DNA samples, they are not themselves accusatory, as DNA analysis can lead to either incriminatory or exculpatory results. Finally, the accusatory opinions in this case—that defendant's DNA matched that taken from the victim's vagina and that such a result was very unlikely unless defendant was the donor—were reached and conveyed not through [Yates's] notes and report, but by the testifying witness, Dr. Cotton." (Id. at p. 607.)
The United State Supreme Court took up the issue of the admissibility of forensic reports under the confrontation clause in Melendez-Diaz, supra, 557 U.S. _____ . In that case, the defendant was arrested after being found in possession of four plastic bags containing a substance resembling cocaine. (Id., 129 S.Ct. at p. 2530.) At his trial on charges of distributing cocaine and trafficking in cocaine in violation of Massachusetts law, the prosecution introduced "three 'certificates of analysis' showing the results of the forensic analysis performed on the seized substances." (Id. at pp. 2530-2531.) The certificates reported the weight of the bags and that the bags were "'examined with the following results: The substance was found to contain: Cocaine.'" (Id. at p. 2531.) Under Massachusetts law, such certificates provide "'prima facie evidence of the composition, quality, and the net weight' of the analyzed substance . . . ." (Id. at p. 2532.) The certificates were completed "almost a week after the tests were performed" (id. at p. 2535) and, as required by Massachusetts law, sworn to before a notary public (id. at p. 2531).
The Supreme Court held that the certificates of analysis were "within the 'core class of testimonial statements'" described in Crawford. (Melendez-Diaz, supra, 557 U.S. at p. _____ .) The documents, the court explained, "are quite plainly affidavits: 'declaration[s] of facts written down and sworn to by the declarant before an officer authorized to administer oaths.' [Citation.] They are incontrovertibly a '"solemn declaration or affirmation made for the purpose of establishing or proving some fact."' [Citations.] The fact in question is that the substance found in the possession of [the defendant] and his codefendants was, as the prosecution claimed, cocaine—the precise testimony the analysts would be expected to provide if called at trial. The 'certificates' are functionally identical to live, in-court testimony, doing 'precisely what a witness does on direct examination.' [Citation.]" (Ibid.) Moreover, the court added, because the certificates were made pursuant to a statute that authorized their use as evidence at trial, they were made under circumstances which would lead an objective witness reasonably to believe that they would be available for use at a later trial. (Ibid.)
The Melendez-Diaz court rejected an argument that laboratory analysts are not accusatory witnesses because they do not directly accuse a defendant of wrongdoing. (Melendez-Diaz, supra, 557 U.S. at p. _____ .) The court explained that the "Sixth Amendment guarantees a defendant the right 'to be confronted with the witnesses against him.'" (Ibid.) The analysts, the court stated, "certainly provided testimony against [the defendant], proving one fact necessary for his conviction—that the substance he possessed was cocaine." (Ibid.) This discussion implicitly rejects one rationale the Geier court relied on—that the analyst's notes and report are not testimonial because they "merely recount the procedures used to analyze the DNA samples, they are not themselves accusatory . . . ." (Geier, supra, 41 Cal.4th at p. 607.)
The court also rejected a point made by the dissenting justices that a laboratory analyst is not a "conventional witness" because the analyst's report does not recall events observed in the past, but rather "contains near-contemporaneous observations of the test." (Melendez-Diaz, supra, 557 U.S. at p. _____ (dis. opn. of Kennedy, J.).) For this point, Justice Kennedy, in dissent, cited to Geier and Davis. (See Melendez-Diaz, supra, 129 S.Ct. at pp. 2551-2552 (dis. opn. of Kennedy, J.).) The majority responded to this point by stating that "the dissent misunderstands the role that 'near-contemporaneity' has played in our case law," and referred to the statements made by the domestic violence victim in Davis whose statements to a responding police officer were testimonial even though they were "near-contemporaneous" to the events she reported. (Melendez-Diaz, supra, at p. 2535 (dis. opn. of Kennedy, J.).) Although the majority does not reject consideration of the passage of time between the observed events and the recordation of the description of the events, it is clear that the United States Supreme Court does not view the contemporaneousness of the event and the recording of the event as "crucial" as the Geier court believed it to be. (See Geier, supra, 41 Cal.4th at p. 607.)
The Melendez-Diaz majority also rejected an argument that the confrontation clause does not apply to witnesses who "'observe[d] neither the crime nor any human action related to it.'" (Melendez-Diaz, supra, 557 U.S. at p. _____ .) Such an exception, the court explained, "would exempt all expert witnesses—a hardly 'unconventional' class of witnesses." (Ibid.) Nor did the majority consider it significant that the challenged statements were not the product of police interrogation; and, "[i]n any event, the analysts' affidavits in this case were presented in response to a police request." (Ibid.)
Next, the Melendez-Diaz majority rejected a distinction between testimony recounting historical events, "which is 'prone to distortion or manipulation,'" and the certificates of analysis, which are ostensibly the results of "'neutral, scientific testing.'" (Melendez-Diaz, supra, 557 U.S. at p. _____ .) Even if such testing is believed to be reliable, the court explained, the Sixth Amendment "'commands . . . that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. . . .'" (Ibid., quoting Crawford, supra, 541 U.S. at pp. 61-62.) Indeed, confrontation of one who performs scientific tests may expose manipulated, fraudulent, inaccurate, or incompetent testing. (Melendez-Diaz, supra, 129 S.Ct. at pp. 2536-2537.) The court concluded that "there is little reason to believe that confrontation will be useless in testing analysts' honesty, proficiency, and methodology—the features that are commonly the focus in the cross-examination of experts." (Id. at p. 2538.)
The Melendez-Diaz court rejected another point relied upon by the Geier court— that the analyst's affidavits "are 'akin to the types of official and business records admissible at common law.'" (Melendez-Diaz, supra, 557 U.S. at p. _____ ; see Geier, supra, 41 Cal.4th at p. 606.) The court explained: "Business and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because—having been created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial—they are not testimonial. Whether or not they qualify as business or official records, the analysts' statements here—prepared specifically for use at petitioner's trial—were testimony against petitioner, and the analysts were subject to confrontation under the Sixth Amendment." (Melendez-Diaz, supra, 129 S.Ct. at pp. 2539-2540.)
Finally, the court declined a request from the respondent "to relax the requirements of the Confrontation Clause to accommodate the '"necessities of trial and the adversary process."'" (Melendez-Diaz, supra, 557 U.S. at p. _____ .) "The Confrontation Clause," the majority explained, "may make the prosecution of criminals more burdensome, but that is equally true of the right to trial by jury and the privilege against self-incrimination. The Confrontation Clause—like those other constitutional provisions—is binding, and we may not disregard it at our convenience." (Ibid.)
Melendez-Diaz was a five-to-four decision. Justice Thomas, who joined the majority opinion, also wrote a separate concurrence. Although he did not expressly disagree with any aspect of the majority opinion, he noted that he continues to adhere to his "position that 'the Confrontation Clause is implicated by extrajudicial statements only insofar as they are contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions.' [Citations.]" (Melendez-Diaz, supra, 557 U.S. at p. _____ (conc. opn. of Thomas, J.).) His concurrence did not suggest any change in his view, expressed in his separate opinion in Davis, that an exception to the formality requirements will apply "if the prosecution attempted to use out-of-court statements as a means of circumventing the literal right of confrontation . . . ." (Davis, supra, 547 U.S. at p. 838 (conc. & dis. opn. of Thomas, J.).)
Melendez-Diaz appears to undermine the Geier court's rationale and holding. Indeed, defendant argues that following Melendez-Diaz, "it is doubtful" that Geier "is still good law." The People, on the other hand, initially argued that Melendez-Diaz is factually distinguishable from Geier and the California Supreme Court's decision controls the outcome in this case. In particular, Melendez-Diaz involved the admissibility of documentary evidence that was supposed to be self-authenticating, requiring no live witness in court. The People argued that although Melendez-Diaz requires "live testimony" to introduce a forensic report, it did not require "a particular witness, i.e., the person who performed the test. The Court simply stated that 'the analysts' needed to be produced at trial." The People asserted that the right to confrontation is protected and defendant "afforded ample opportunity for cross-examination when, as here, an analyst familiar with all of the lab's procedures, with the persons who performed the test, and with the tests done in the particular case, testifies at trial." That was before Bullcoming.
The continuing validity of Geier in light of Melendez-Diaz is currently a subject of review by our state Supreme Court. (See, e.g., People v. Rutterschmidt (2009) 176 Cal.App.4th 1047, review granted Dec. 2, 2009, S176213; People v. Gutierrez (2009) 177 Cal.App.4th 654, review granted Dec. 2, 2009, S176620; People v. Dungo (2009) 176 Cal.App.4th 1388, review granted Dec. 2, 2009, S176886; People v. Lopez (2009) 177 Cal.App.4th 202, review granted Dec. 2, 2009, S177046.)
In Bullcoming, the State of New Mexico arrested defendant for driving while intoxicated. (Bullcoming, supra, 564 U.S. at p. _____ .) A sample of his blood was sent to the New Mexico Department of Health, Scientific Laboratory Division (SLD) to determine its blood-alcohol content (BAC). (Ibid.) A standard form used by the SLD was prepared that included a "certificate of analyst" completed and signed by Curtis Caylor, the SLD forensic analyst assigned to test the defendant's blood. (Ibid.) Caylor recorded the defendant's blood-alcohol level and affirmed that he had followed certain procedures. (Ibid.) The form also included a "certificate of reviewer," whereby the SLD examiner who had reviewed Caylor's analysis certified that Caylor was qualified to conduct the blood-alcohol test and that established procedures had been followed. (Id., 131 S.Ct. at p. 2711.) Based on Caylor's report, the defendant was charged with "aggravated DWI." (Ibid.)
At trial, the state announced that Caylor would not be called as a witness because he had been recently put on unpaid leave for an unrevealed reason. (Bullcoming, supra, 564 U.S. at p. _____ [131 S.Ct. at pp. 2711-2712].) Nor was the SLD examiner who reviewed Caylor's analysis called to testify. Over the defendant's objections, the state introduced Caylor's report through the testimony of Gerasimos Razatos, an SLD scientist who had neither observed nor reviewed Caylor's analysis. (Id., 131 S.Ct. at p. 2712.) A jury convicted defendant of the crime charged. (Ibid.)
The Supreme Court's opinion does not describe Razatos's testimony, stating only that he was "'qualified as an expert witness with respect to the gas chromatograph machine,'" and '"was available for cross-examination regarding the operation of the . . . machine, the results of [Bullcoming's] BAC test, and the SLD's established laboratory procedures.'" (Bullcoming, supra, 564 U.S. at p. _____ .) The New Mexico Supreme Court's opinion provides only a little more detail: Razatos "testified about Defendant's BAC and the standard procedures of the laboratory. He testified that the instrument used to analyze Defendant's blood was a gas chromatograph machine. The detectors within the gas chromatograph machine detect the compounds and the computer prints out the results. When Razatos was asked by the prosecutor whether 'any human being could look and write and just record the result,' he answered, 'Correct.' On cross-examination he also testified that this particular machine prints out the result and then it is transcribed to [the BAC report]." (State v. Bullcoming (2010) 147 N.M. 487, 492 [226 P.3d 1, 6].)
The New Mexico Supreme Court acknowledged that Caylor's report was, like the affidavits in Melendez-Diaz, "'functionally identical to live, in-court testimony, doing precisely what a witness does on direct examination.'" (Bullcoming, supra, 564 U.S. at p. _____ .) Nevertheless, the court held that the admission of the report did not violate the confrontation clause. (Ibid.) First, "Caylor 'was a mere scrivener,' who 'simply transcribed the results generated by the gas chromatograph machine.'" (Id., 131 S.Ct. at p. 2713.) Second, Razatos, the testifying expert, "'provided live, in-court testimony' . . . 'and, thus, was available for cross-examination regarding the operation of the . . . machine, the results of [Bullcoming's] BAC test, and the SLD's established laboratory procedures.'" (Ibid.) As a "qualified analyst," the state court concluded, Razatos was "able to serve as a surrogate for Caylor." (Ibid.) The United States Supreme Court disagreed and reversed. (Id. at p. 2719.)
The high court rejected the New Mexico Supreme Court's view that, for purposes of the confrontation clause, "SLD analyst Razatos [was] an adequate substitute for Caylor." (Bullcoming, supra, 564 U.S. at p. _____ [131 S.Ct. at pp. 2714-2715].) First, the court explained, Caylor was not a mere scrivener who transcribed the results of the testing machines; he certified that he received the defendant's blood sample intact, checked to see that the forensic report number and sample number corresponded, and performed a particular test pursuant to a precise protocol. (Id., 131 S.Ct. at p. 2714.) Caylor also represented that no circumstance or condition affected the integrity of the sample or the validity of the analysis. (Ibid.) The court explained that "[t]hese representations, relating to past events and human actions not revealed in raw, machine-produced data, are meet for cross-examination." (Ibid.) "Accordingly," the court concluded, "the analysts who write reports that the prosecution introduces must be made available for confrontation even if they possess 'the scientific acumen of Mme. Curie and the veracity of Mother Teresa.' [Citation.]" (Id. at p. 2715.)
Although Razatos was "'qualified as an expert witness with respect to the gas chromatograph machine and the SLD's laboratory procedures,' [citation]. . . . surrogate testimony of the kind Razatos was equipped to give could not convey what Caylor knew or observed about the events his certification concerned, i.e., the particular test and testing process he employed. Nor could such surrogate testimony expose any lapses or lies on the certifying analyst's part." (Bullcoming, supra, 564 U.S. at p. _____ , fns. omitted.) The confrontation clause, the court explained, "does not tolerate dispensing with confrontation simply because the court believes that questioning one witness about another's testimonial statements provides a fair enough opportunity for cross-examination." (Id., 131 S.Ct. at p. 2716.) Once "the State elected to introduce Caylor's certification," the court concluded, "Caylor became a witness Bullcoming had the right to confront." (Ibid.)
The court also rejected the argument that the affirmations made by Caylor were not testimonial because they were simply the observations of an independent scientist made according to a nonadversarial public duty. (Bullcoming, supra, 564 U.S. at p. _____ .) "A document created solely for an 'evidentiary purpose,' . . . made in aid of a police investigation, ranks as testimonial." (Ibid., quoting Melendez-Diaz, supra, 557 U.S. at p. _____ .) The fact that Caylor's certification of the BAC was unsworn and unnotarized did not materially distinguish it from the affidavit in Melendez-Diaz. (Bullcoming, supra, 131 S.Ct. at p. 2717.) The court concluded that "the formalities attending the 'report of blood alcohol analysis' are more than adequate to qualify Caylor's assertions as testimonial." (Bullcoming, supra, at p. 2717.)
Justice Sotomayor, writing separately, expanded this point. The analyst's certificate, she explained, "is a formal statement, despite the absence of notarization. [Citation.] The formality derives from the fact that the analyst is asked to sign his name and 'certify' to both the result and the statements on the form. A 'certification' requires one '[t]o attest' that the accompanying statements are true." (Bullcoming, supra, 564 U.S. at p. _____ (conc. opn. of Sotomayor, J.).)
In a separate concurrence, Justice Sotomayor highlighted several factual circumstances not presented in Bullcoming. (Bullcoming, supra, 564 U.S. at p. _____ [131 S.Ct. at pp. 2721-2723] (conc. opn. of Sotomayor, J.).) Two are arguably relevant here. "[T]his is not a case," she noted, "in which the person testifying is a supervisor, reviewer, or someone else with a personal, albeit limited, connection to the scientific test at issue." (Id., 131 S.Ct. at p. 2722.) According to Justice Sotomayor, "[i]t would be a different case if, for example, a supervisor who observed an analyst conducting a test testified about the results or a report about such results." (Ibid.) In addition, "this is not a case in which an expert witness was asked for his independent opinion about underlying testimonial reports that were not themselves admitted into evidence. [Citation.] . . . We would face a different question if asked to determine the constitutionality of allowing an expert witness to discuss others' testimonial statements if the testimonial statements were not themselves admitted as evidence." (Ibid.) B. Application to the Challenged Evidence
The other two scenarios described by Justice Sotomayor are: (1) when the state suggests a purpose for the report other than for use at trial; and (2) "a case in which the State introduced only machine-generated results, such as a printout from a gas chromatograph." (Bullcoming, supra, 564 U.S. at p. _____ (conc. opn. of Sotomayor, J.).)
Initially, we note that whatever validity Geier had after Melendez-Diaz now hangs by a thin thread. Bullcoming makes clear that not only are forensic laboratory reports of the kind used in Geier testimonial, but they may not be admitted into evidence through the "surrogate testimony" of one who did not sign the certification of the report or observe the tests reported in the certification unless Crawford's two conditions are satisfied, i.e., the analyst who performed the tests is unavailable at trial and the accused had an opportunity to cross-examine the analyst prior to trial. (Bullcoming, supra, 564 U.S. at p. _____ .) The remaining thread for Geier is that the surrogate witness in that case, Dr. Cotton, did sign the certification of the DNA report, although she did not observe the analyst's tests. (Geier, supra, 41 Cal.4th at p. 596.) Whether a testimonial report can be admitted through a surrogate witness such as Dr. Cotton, who signs the certification but does not observe the testing, is arguably unanswered by Bullcoming. We do not face this question, however, because the surrogate witness in this case (Jones) neither signed the certification nor observed Jermain's testing of the substance.
In the cases pending before the California Supreme Court on the issue of whether Melendez-Diaz overruled Geier, the California Supreme Court has requested supplement briefing addressing the significance of Bullcoming. (People v. Rutterschmidt, S176213, Supreme Ct. Mins., July 13, 2011 ; People v. Gutierrez, S176620, Supreme Ct. Mins., July 13, 2011 ; People v. Dungo, S176886, Supreme Ct. Mins., July 13, 2011 ; People v. Lopez, S177046, Supreme Ct. Mins., July 13, 2011 .)
In response to our request for supplemental briefing, the People do not mention Geier and, in light of Bullcoming, effectively concede that it was error to allow the analyst's written report into evidence. They continue to assert, however, that Jones's testimony was admissible because he "had a connection to the testing and offered his independent opinion about the test results." As we explain below, we agree that it was error to admit the written crime lab report into evidence. We agree with defendant, and disagree with the People, that Jones's testimony regarding Jermain's conclusions were also inadmissible. Although the confrontation clause is not generally implicated by an expert's opinion, an expert may not, under the guise of offering an opinion, merely repeat otherwise inadmissible testimonial statements. Because Jones's opinion testimony merely confirmed Jermain's conclusions, it was error to permit such testimony.
1. The Admissibility of the Crime Lab Report
The issue of whether the crime lab report is testimonial is controlled by Melendez-Diaz and Bullcoming. Like the forensic reports in those cases, the conclusions in the written crime lab report in this case "were 'incontrovertibly . . . affirmation[s] made for the purpose of establishing or proving some fact' in a criminal proceeding." (Bullcoming, supra, 564 U.S. at p. _____ , quoting Melendez-Diaz, supra, 557 U.S. at p. _____ .) The principal fact purportedly established by the report in this case—that the substance delivered by Deputy Bachman to the crime lab was methamphetamine—is "the precise testimony the analyst would be expected to provide if called at trial." (Melendez-Diaz, supra, 129 S.Ct. at p. 2532.) As a "document created solely for an 'evidentiary purpose,' . . . made in aid of a police investigation, [it] ranks as testimonial." (Bullcoming, supra, 131 S.Ct. at p. 2717.)
Although Melendez-Diaz was arguably distinguishable because it involved a certificate "sworn to before a notary public" (Melendez-Diaz, supra, 557 U.S. at p. _____ [ 129 S.Ct. at p. 2531]), Bullcoming makes clear that the absence of an oath is not dispositive in determining whether a statement is testimonial (Bullcoming, supra, 564 U.S. at p. _____ .) Even without that formality, the report in this case, like the report in Bullcoming, is within the "'core class of testimonial statements'" described by Crawford and its progeny. (See Bullcoming, supra, 131 S.Ct. at p. 2717.)
Even if we apply the three-part test set forth in Geier, the crime lab report is testimonial. Under Geier, "a statement is testimonial if (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." (Geier, supra, 41 Cal.4th at p. 605.) As in Geier, there is no dispute that the first and third prongs are met here: the analyst's report was in response to a request from law enforcement, by a crime lab analyst who was an agent or employee of a law enforcement agency, and prepared for possible use at a later trial.
In evaluating the second prong, the Geier court focused on the making of the analyst's notes: "Yates's observations . . . constitute a contemporaneous recordation of observable events rather than the documentation of past events. 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." (Geier, supra, 41 Cal.4th at pp. 605-606.) These actions, the court explained, were analogous to a 911 report of an ongoing emergency. (Ibid., citing Davis, supra, 547 U.S. at p. 822.) Here, however, the crime lab report was certified sometime after Jermain performed his tests on the substance. The written crime lab report is more like the "near contemporaneous" recordation of events reflected in the certificates in Melendez-Diaz or the victim affidavit in Davis. Thus, even if we apply Geier's three-part test, the written report is testimonial and may not be admitted into evidence in the absence of the analyst at trial (unless he is unavailable and defendant had a prior opportunity for cross-examination). Because Jermain did not testify at trial and defendant did not have a prior opportunity to cross-examine him, the court erred in admitting the lab report into evidence.
It is not clear from the record when Jermain performed his tests. The written lab report indicates that the substance was delivered to the crime lab for testing on September 11, 2008. According to Jones, the test could be performed within one hour. The typewritten conclusion in the analysis portion of the report is dated September 16, 2008. Vaughn purportedly certified the report (for Jermain) two days later on September 18, 2008. It thus appears that at least two days, and as many as seven days, had passed between Jermain's testing of the substance and the certification of the report by Vaughn.
We turn next to Jones's testimony. We distinguish between two aspects of Jones's testimony: (1) His testimony as to the out-of-court statements made by Jermain and certified by Vaughn (purportedly on Jermain's behalf) in the crime lab report and Jermain's notes; and (2) his opinions as an expert witness.
2. Jones's Testimony as to Jermain's Testimonial Statements
The first category of Jones's testimony consists primarily of Jones's testimony that Jermain concluded that "the white crystalline substance may contain methamphetamine" and its weight was 0.06 grams, as indicated in Jermain's notes and the crime lab report, and his testimony that the conclusion reported on the crime lab report accurately reflected Jermain's notes. Although it should be clear that testimonial statements contained in a written forensic report that are inadmissible under the confrontation clause do not become admissible merely because another witness testifies to the statements in court. However, Bullcoming, while addressing the admissibility of a forensic report through a surrogate witness, did not face the precise question of the admissibility of the surrogate witness's testimony itself. Indeed, it does not appear from the opinion that Razatos, the in-court witness, testified to the conclusions reached by the SLD analyst. Geier, on the other hand, involved a surrogate witness (Dr. Cotton) who testified to the conclusions reached by the analyst without the admission into evidence of the analyst's report itself. Nevertheless, as we explain below, the rationale supporting the United States Supreme Court's Crawford line of cases compels the conclusion that Jones's testimony as to the content of the crime lab report is also inadmissible.
First, the language Bullcoming used to express its holding encompasses both the statements in the written report and testimony concerning the report. The court stated: "As a rule, if an out-of-court statement is testimonial in nature, it may not be introduced against the accused at trial unless the witness who made the statement is unavailable and the accused has had a prior opportunity to confront that witness." (Bullcoming, supra, 564 U.S. at p. _____ .) The "rule" plainly applies to all out-of-court testimonial statements, not merely out-of-court testimonial statements in written documents. Applying this rule here, the out-of-court testimonial statements in the crime lab report may not be introduced against defendant at trial unless Jermain, the witness who made the statement, is unavailable and defendant has had a prior opportunity to confront him. Whether the attempt to introduce the testimonial statements is through a written report or the testimony of a surrogate in-court witness is immaterial.
This is also clear from the confrontation clause's purpose expressed in Crawford. In Crawford, the court referred to the treason trial of Sir Walter Raleigh as an example of the abuses the confrontation clause was intended to prevent. {Crawford, supra, 541 U.S. at p. 44; see also Michigan v. Bryant (2011) _____ U.S. _____ [131 S.Ct. 1143, 1155].) At Raleigh's trial, the "confession" of Lord Cobham, which implicated Raleigh, was read to the jury. (Crawford, supra, at p. 44.) The court refused Raleigh's demand that Cobham appear at trial. (Ibid.) Raleigh was subsequently convicted and sentenced to death. (Ibid.) The perceived injustice of the trial, among other events, led to reforms in England and, ultimately, the inclusion of the confrontation clause in the Constitution. (Id. at pp. 44-49.) In rejecting the argument that the confrontation clause applies only to testimony given in court, the Crawford court noted: "Raleigh was, after all, perfectly free to confront those who read Cobham's confession in court." (Id. at p. 51.)
Here, Jermain's lab report and notes are analogous to Cobham's confession, and Jones was in the position of "those who read Cobham's confession in court." (See Crawford, supra, 541 U.S. at p. 51.) Just as it was unjust to limit Raleigh to confronting only those who read Cobham's confession in court, the confrontation clause is not satisfied by merely allowing the accused to confront the person who, in essence, reads the analyst's report in court. (See also Chou, Melendez-Diaz v. Massachusetts: Raising the Confrontation Requirements for Forensic Evidence in California (2009), 14 Berkeley J. Crim.L. 439, 461, fn. omitted ["Permitting the introduction of the lab reports through another analyst would be the equivalent of allowing a policeman to read the declarant's testimonial statement in court."].)
That the confrontation clause precludes the use of surrogate witnesses to introduce testimonial statements through their own testimony was recognized by Justice Kennedy in his Melendez-Diaz dissent: "The Court made clear in Davis that it will not permit the testimonial statement of one witness to enter into evidence through the in-court testimony of a second: [¶] '[W]e do not think it conceivable that the protections of the Confrontation Clause can readily be evaded by having a note-taking policeman [here, the laboratory employee who signs the certificate] recite the unsworn hearsay testimony of the declarant [here, the analyst who performs the actual test], instead of having the declarant sign a deposition. Indeed, if there is one point for which no case—English or early American, state or federal—can be cited, that is it.'" (Melendez-Diaz, supra, 557 U.S. at p. _____ (dis. opn. of Kennedy, J.), quoting Davis, supra, 547 U.S. at p. 826.) Not only did the Melendez-Diaz majority not dispute Justice Kennedy's point, but the Bullcoming majority noted it favorably. (See Bullcoming, supra, 564 U.S. at p. _____ .)
The need for cross-examination as a means of assuring accurate forensic analysis, as discussed in Melendez-Diaz, also supports the conclusion that cross-examining a supervisor is insufficient under the confrontation clause. The Melendez-Diaz court stated: "Confrontation is one means of assuring accurate forensic analysis. While it is true . . . that an honest analyst will not alter his testimony when forced to confront the defendant, . . . the same cannot be said of the fraudulent analyst. [Citations.] Like the eyewitness who has fabricated his account to the police, the analyst who provides false results may, under oath in open court, reconsider his false testimony. [Citation.] And, of course, the prospect of confrontation will deter fraudulent analysis in the first place. [¶] Confrontation is designed to weed out not only the fraudulent analyst, but the incompetent one as well." (Melendez-Diaz, supra, 557 U.S. at p. _____ [129 S.Ct. at pp. 2536-2537].) This rationale for confronting the analyst who makes the statements used against the accused applies as well to the supervisor who testifies about the statements: whether the jury is presented with the report or with the supervisor's testimony of the report, the accused is deprived in both cases of the possibility that a fraudulent analyst will reconsider his false testimony when confronted in court, as well as the opportunity to expose any incompetence through cross-examination.
Moreover, allowing a supervisor to introduce testimonial statements made by someone who has not been made available for cross-examination would provide an easy "means of circumventing the literal right of confrontation" that even Justice Thomas would find unacceptable. (See Davis, supra, 547 U.S. at p. 838 (conc. & dis. opn of Thomas, J.).) This is as true for Jermain's notes as it is for the lab report. Thus, if the crime lab report is testimonial—and therefore inadmissible in the absence of an opportunity to cross-examine the analyst—then testimony as to its contents by someone other than the "witness" must also be inadmissible. To the extent that Geier supports a contrary conclusion, we are required to follow United States Supreme Court precedent. (See Chesapeake & O. Ry. Co. v. Martin (1931) 283 U.S. 209, 220-221 [on questions of federal law, the law established by the United States Supreme Court must be followed notwithstanding contrary state law]; General Motors Corp. v. City of Los Angeles (1995) 35 Cal.App.4th 1736, 1749 [same].)
The People argue that Jones's testimony regarding the crime lab report should nevertheless be admissible because Jones, unlike Razatos in Bullcoming, "had a connection to the testing" performed by Jermain and "was familiar with Jermain's work, qualifications^] and education." They rely on Justice Sotomayor's comment that "[i]t would be a different case if, for example, a supervisor who observed an analyst conducting a test testified about the results or a report about such results." (Bullcoming, supra, 564 U.S. at p. _____ (conc. opn. of Sotomayor, J.).)
Even if a majority of the Supreme Court agreed with Justice Sotomayor's comment (no other justice signed on to her concurrence), this does not help the People here. Although Jones testified he was Jermain's regular supervisor, was familiar with Jermain's qualifications and training, reviewed Jermain's notes, and could describe and explain the tests Jermain conducted, he also testified that he did not observe Jermain conducting the tests Jermain actually performed in this case and did not know what Vaughn did before he signed the certification for Jermain. This is thus not the kind of scenario Justice Sotomayor suggested might make "a different case."
Nothing in the majority opinion or Sotomayor's concurrence indicates that Jones's status as Jermain's supervisor or his general familiarity with the crime lab's tests would require a different result—Jones would still be testifying as to Jermain's testimonial statements, not to anything that he observed. The confrontation clause, the court explained, "does not tolerate dispensing with confrontation simply because the court believes that questioning one witness about another's testimonial statements provides a fair enough opportunity for cross-examination." (Bullcoming, supra, 564 U.S. at p. _____ .) Moreover, despite Jones's supervisory relationship to Jermain and his knowledge of the kinds of tests used in the crime lab, questioning him would still keep defense counsel from "expos[ing] any lapses or lies on the certifying analyst's part." (Id., 131 S.Ct. at p. 2715, fn. omitted.) And, just as the accused in Bullcoming could not inquire of the analyst as to why he was placed on unpaid leave, defendant in this case could not ask Jermain why he left the crime lab's employment.
We conclude, therefore, that Jones's testimony as to contents of the lab report and the conclusions reflected in Jermain's notes are testimonial statements that may not be admitted into evidence unless Jermain is unavailable at trial and defendant has had a prior opportunity to cross-examine him. Because defendant did not have an opportunity to cross-examine Jermain, the court erred in allowing Jones to testify as to Jermain's findings and conclusion.
3. Jones's Opinion Testimony
The People contend Jones's testimony as to his own opinion regarding the nature and weight of the white substance does not implicate the confrontation clause. Bullcoming does not address this question because, as the People point out, the testifying witness in Bullcoming (Razatos) did not offer his own independent opinion as to the accused's blood-alcohol level. (See Bullcoming, supra, 564 U.S. at p. _____ [131 S.Ct. at
p. 2716].) Indeed, as Justice Sotomayor explained, the court "would face a different question if asked to determine the constitutionality of allowing an expert witness to discuss others' testimonial statements if the testimonial statements were not themselves admitted as evidence." (Id., 131 S.Ct. at p. 2722 (conc. opn. of Sotomayor, J.).)
Although the testifying laboratory supervisor in Geier, Dr. Cotton, testified to her opinions based on the analyst's report, the Geier court focused its analysis on the question of whether the laboratory report itself constitutes a testimonial statement. Its discussion of the admissibility of Dr. Cotton's opinion testimony as such is limited to a footnote in which the court addressed a claim that Dr. Cotton's "testimony was state law error because it was tantamount to the testimony by one expert as to the opinion of another." (Geier, supra, 41 Cal.4th at p. 608, fn. 13.) The court disagreed, stating, "[a]s an expert witness, Dr. Cotton was free to rely on Yates's report in forming her own opinions regarding the DNA match." (Ibid.) The court had previously determined that Yates's report was not testimonial. (Id. at p. 607.) The court did not address the question presented here: whether a laboratory supervisor can testify as to his or her opinions when they are based on inadmissible testimonial statements made in an analyst's report.
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Here, Jones's opinion testimony consists of the following two questions and answers on direct examination:
"Q. And based on your training and experience, and based on the review of Mr. Jermain's notes, and your understanding of the established practices of the crime lab, would you have come to the same conclusions as Mr. Jermain did in his controlled substance analysis?
"A. Yes, I would have. [¶] . . . [¶]
"Q. Mr. Jones, based on your training and experience, and based on your knowledge of laboratory procedures, and Mr. Jermain's notes in this case with relation to LRN number 172983, would you have had the same conclusion as Mr. Jermain did in this case?
"A. Yes, ma'am."
We agree with the People that, generally, out-of-court testimonial statements that are not offered for their truth—but rather to assess the value of an expert's opinion—do not violate the confrontation clause. (See, e.g., Crawford, supra, 541 U.S. at p. 59, fn. 9; People v. Thomas (2005) 130 Cal.App.4th 1202, 1209-1210 [Fourth Dist., Div. Two].) However, a witness may not conduct "an end run around Crawford" by repeating out-of-court testimonial statements in the guise of expert opinion. (U.S. v. Johnson (4th Cir. 2009) 587 F.3d 625, 635; cf. People v. Coleman (1985) 38 Cal.3d 69, 92 [expert may not testify as to details of matters relied upon if such matters are otherwise inadmissible].) As one court recently explained, the "extent to which an expert witness may disclose to a jury otherwise inadmissible testimonial hearsay without implicating a defendant's confrontation rights . . . is a question of degree. [Citation.] If an expert simply parrots another individual's testimonial hearsay, rather than conveying her independent judgment that only incidentally discloses testimonial hearsay to assist the jury in evaluating her opinion, then the expert is, in effect, disclosing the testimonial hearsay for its substantive truth and she becomes little more than a backdoor conduit for otherwise inadmissible testimonial hearsay." (U.S. v. Pablo (10th Cir. 2010) 625 F.3d 1285, 1292.)
Thus, Jones could have testified as to his opinion that the substance was methamphetamine and explained that he based his opinion on (among other matters) his review of Jermain's notes and the crime lab report. Jones, however, did more than this. When he was asked the questions set forth above, the crime lab report and Jones's testimony regarding the content of the report had already been offered for the truth of the statements contained in the report. By the time Jones was asked his opinion, it was not for an "independent opinion" based on Jermain's report, but for an opinion that he agreed with Jermain's conclusion. He was essentially joining in, or "parroting," Jermain's inadmissible testimonial statements. To allow such testimony would sanction an impermissible end run around Crawford and the confrontation clause. Accordingly, we reject the People's argument and conclude the court erred in allowing Jones's opinion testimony in this manner. C. Prejudice
Where a criminal defendant's Sixth Amendment confrontation right has been violated, reversal is required unless the error was harmless beyond a reasonable doubt. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 684.) This standard of review requires "the beneficiary of a constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." (Chapman v. California (1967) 386 U.S. 18, 24.) In making this determination, we consider "a host of factors," including "the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross- examination otherwise permitted, and, of course, the overall strength of the prosecution's case." (Delaware v. Van Arsdall, supra, at p. 684.)
Here, regardless of the crime lab report and Jones's testimony, there was uncontradicted evidence from Deputy Bachman that a usable quantity of amphetamines was present in the shot glass found near defendant. The deputy came to this conclusion based on his application of a chemical test indicating the presence of the controlled substance. Although defense counsel had a full and fair opportunity to cross-examine Deputy Bachman, he did not ask the deputy any questions regarding his test of the substance. Nor was any other evidence introduced that raised any question as to the accuracy of the deputy's field test.
There was also strong circumstantial evidence that the substance was methamphetamine. Defendant does not challenge the jury's finding that he was under the influence of methamphetamine. Indeed, the evidence of his recent use of methamphetamine was strong and essentially uncontroverted. Defendant had a white coating on his tongue and mouth at the time of his arrest, and seemed irritated, nervous, fidgety, and agitated. His performance on field sobriety tests indicated he was under the influence of a central nervous system stimulant, such as methamphetamine. Defendant admitted he had a narcotics addiction and used approximately 30 cents of methamphetamine a day. In addition, defendant's blood had a level of methamphetamine that was at the upper end of the normal range for someone who uses or abuses methamphetamine, and indicated that he had ingested methamphetamine within the preceding 12 hours.
The evidence thus shows that defendant had recently ingested methamphetamine and was lying on a bed next to the nightstand where a "crystal-like" substance sat in a shot glass along with a small metal tool. This gives rise to a reasonable inference that the substance was the remainder of the methamphetamine the defendant had recently taken. This inference, combined with Deputy Bachman's unchallenged testimony that the substance tested positive for amphetamines, provides essentially uncontradicted and compelling evidence that the substance in the shot glass was methamphetamine. Thus, we "may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt." (Delaware v. Van Arsdall, supra, 475 U.S. at p. 681.)
IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
King
J.
We concur:
Ramirez
P.J.
Richli
J.