Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. TA084299, Paul Bacigalupo, Judge.
Sara H. Ruddy, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr. and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
KITCHING, J.
Ryan Fromuth appeals from the judgment entered following a jury trial that resulted in his conviction of the transportation of marijuana (Health & Saf. Code, § 11360, subd. (b)) and possession of marijuana for sale (Health & Saf. Code, § 11359). The trial court granted Fromuth three years probation. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
Viewed in accordance with the usual rules of appellate review (People v. Rodriguez (1999) 20 Cal.4th 1,11; People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established that on March 29, 2006, Los Angeles Sheriff’s Detective Tom Logrecco, who specializes in the enforcement of narcotics laws, went to the “Craig’s List” computer web site and posted two advertisements. Logrecco indicated he was looking for “ ‘Ecta[s]y,’ ” and “ ‘Pills and 420.’ ”
“ ‘420’ ” is a term used for marijuana.
Later that morning, Logrecco received an e-mail response to his advertisements from Fromuth. The e-mail indicated that Fromuth could provide what the deputy was looking for and the two made arrangements to meet at a Starbucks store. Fromuth indicated he would be driving a gray Nissan with “front-end damage.”
When Logrecco, dressed in plain clothes and driving an unmarked car, went to the appointed meeting place, he saw a man sitting in a parked gray Nissan with front-end damage. Logrecco then alerted uniformed officers in a marked patrol car who pulled into the lot, parked behind Fromuth and detained him.
A search of Fromuth revealed three plastic bags which contained a substance resembling marijuana, five new, unused plastic bags and a pipe with burnt residue on it. On the console inside Fromuth’s car was a digital weighing scale.
2. Procedural history and additional facts.
At pre-trial proceedings, the prosecutor stated that the chemist who tested the marijuana in this case was on family emergency leave and would not be available until the following Monday. Rather than delay the trial, the prosecutor indicated that another chemist from the same Scientific Services Bureau would testify regarding the business records indicating the substance tested was marijuana. Defense counsel objected to admission of the report as a business record and requested an Evidence Code section 402 hearing on the matter.
At the section 402 hearing, defense counsel argued that, if the People were allowed to have another chemist testify with regard to Hong’s report, Fromuth would be denied the opportunity to cross-examine Hong as to his experience, “the foundational issues [that led] up to the admissibility of his opinion at trial; [and] . . . whether the procedures he followed on that day in doing the testing were accurate.” In effect, Fromuth would be denied his right to confrontation as construed by the court in Crawford v. Washington (2004) 541 U.S. 36 (Crawford). However, the trial court determined the chemist would be allowed to testify.
Michael Vanesian then testified that he is a criminalist for the Los Angeles County Sheriff’s Department assigned to the narcotics section of the Sheriff’s crime lab. Vanesian indicated that marijuana is generally submitted to a “microscopic examination,” followed by a “chemical test.” In the chemical test, the criminalist is looking for “a specific chemical . . . called THC, which is the major psycho active ingredient in marijuana.” During the test, the criminalist makes handwritten notes and after the tests a report is generated. It is part of Vanesian’s “regular business practice” to document his testing procedures as he is conducting tests on narcotics. In addition, Vanesian is “familiar with looking at those types of documents and reading them and interpreting them.”
When handed a three-page report, Vanesian stated that the first page was the “laboratory report,” the second page was “a copy of the handwritten notes of the criminalist who analyzed the evidence,” and the third page was “a copy of the lab receipt.” The documents had been generated in Vanesian’s crime lab during the ordinary course of business and were attributed to Fromuth’s case. The person who analyzed the evidence in the case was senior criminalist David Hong.
Vanesian had worked with Hong for approximately five years and had watched him at work in the lab. Vanesian had never seen Hong not follow proper procedures. The results of Hong’s testing showed that there were “three containers enclosing approximately 13.8 grams of plant material. One container was tested and [was found to contain] 7.8 grams of plant material containing marijuana.”
When, on cross-examination, defense counsel asked Vanesian if he had actually seen Hong do the analysis on the substance in question, Vanesian replied he had “no recollection.” When defense counsel asked Vanesian whether he knew Hong had made the record Vanesian had brought to court that day, Vanesian responded that the report appeared to be in Hong’s handwriting. When defense counsel then asked Vanesian if he was certain Hong had signed off on the report, Vanesian stated that, since he was not a handwriting expert, he could not swear the signature on the report was Hong’s. Vanesian was, however, one of the individuals who was considered a custodian of the records in the office and was authorized to pull records and bring them to court. Vanesian had “a lot of experience handling the files” at the lab.
After the prosecutor completed her case, defense counsel argued that she had failed to lay a proper foundation for the admission of the lab report prepared by Hong. Counsel indicated the prosecutor had not shown the report was a business record and, since defense counsel had been unable to cross-examine Hong, Fromuth had been prejudiced. After reviewing Hong’s notes, defense counsel indicated he believed there was “a lot of stuff to cross-examine [Hong] about.” The trial court overruled defense counsel’s objection to the records and allowed them to be admitted into evidence.
CONTENTION
Fromuth contends the trial court “violated [his] Sixth Amendment right to confront witnesses when it permitted criminalist Robert Vanesian to testify that another criminalist’s analysis of the plant material found in [his] pocket” contained marijuana.
DISCUSSION
In Crawford, supra, 541 U.S. 36, the court determined the Confrontation Clause “applies to ‘witnesses’ against the accused--in other words, those who ‘bear testimony.’ [Citation.] ‘Testimony,’ in turn, is typically ‘[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.’ [Citation.]” (Id. at p. 51.) After reviewing numerous cases involving the Confrontation Clause, the Crawford court determined that, to remain faithful to the Framers’s understanding, “[t]estimonial statements of witnesses absent from trial [could be] admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.” (Id. at p. 59.) The court did, however, recognize that there are exceptions to this general rule. One such exception is for business records. (Id. at p. 56.)
In People v. Geier (2007) 41 Cal.4th 555 (Geier), the California Supreme Court considered whether laboratory reports are “testimonial” statements subject to the rules set forth in Crawford. In Geier, Dr. Robin Cotton, the laboratory director for Cellmark, a private company that performs DNA testing in paternity and criminal cases, testified regarding the results of DNA testing obtained from the defendant and other individuals when the actual analysis of the samples had been performed by biologist Paula Yates. Dr. Cotton had reviewed the forms Yates filled out at various points in the protocol, including Yates’s handwritten notes. (Id. at p. 596.)
After extensively reviewing Supreme Court precedent and decisions in other jurisdictions, the Geier court determined that “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, 41 Cal.4th at p. 605.)
With regard to the first criterion, the court determined the laboratory technician was an agent of law enforcement. “Even if the employees of Cellmark are not themselves members of law enforcement, they were paid to do work as part of a government investigation[.]” (Geier, supra, 41 Cal.4th at p. 605.) As to the third criterion, “it could reasonably have been anticipated that the report might be used at a later criminal trial.” (Ibid.) However, as to the second criterion, the court determined Yates’s observations “constitute[d] a contemporaneous recordation of observable events rather than the documentation of past events. That is, [Yates] 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, italics added.) In addition, “[i]n simply following Cellmark’s protocol of noting carefully each step of the DNA analysis, recording what she did with each sample received, Yates did not ‘bear witness’ against defendant. [Citation.]” (Id. at p. 607.) Accordingly, the Geier court concluded that the DNA report was not testimonial under the rules set forth in Crawford. (Ibid.; People v. Johnson (2004) 121 Cal.App.4th 1409, 1412 [“A laboratory report does not ‘bear testimony,’ or function as the equivalent of in-court testimony. If the preparer had appeared to testify . . . he or she would merely have authenticated the document”]; People v. Parker (1992) 8 Cal.App.4th 110, 115 [“[T]estimony [of one lab technician] established the procedures used by [a second lab technician] in conducting her analyses as well as the trustworthiness of her conclusions”]; cf. Davis v. Washington (2006) 547 U.S. 813 [A 911 call to enable police to assist in an emergency is not testimonial because it is a contemporaneous recordation of observable events].)
The same is true here. Vanesian testified with regard to the tests performed on the marijuana. He set forth the regular procedures followed in testing a substance for marijuana and indicated that, during testing, the criminalist makes handwritten notes and generates a report. As in Geier, Hong’s notes and report were made at the time the tests were actually performed; they did not document past events. Accordingly, Hong’s lab report was not testimonial within the rules set forth in Crawford and Geier. Admission of the report into evidence did not violate Fromuth’s Sixth Amendment right to confront the witnesses against him. Hong’s report was properly admitted and Vanesian’s testimony simply recounted “the contemporaneous recordation of observable events.” (Geier, supra, 41 Cal.4th at p. 607.)
DISPOSITION
The judgment is affirmed.
We concur: CROSKEY, Acting P. J., ALDRICH, J.