Opinion
H034963
09-14-2011
THE PEOPLE, Plaintiff and Respondent, v. DAVID LEONARD HOLLAND, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. CC787026)
Following a jury trial, defendant David Leonard Holland was found guilty of forcible oral copulation in violation of Penal Code section 288a, subdivision (c)(2). The jury also found true that (1) the victim was 65 years of age or older and defendant knew or reasonably should have known that fact (§ 667.9, subd. (a)), (2) defendant committed the offense during the commission of burglary with the intent to commit the charged offense (§§ 667.61, subd. (a), 667.61, subd. (d)) and (3) defendant committed the offense during the commission of burglary with the intent to commit theft (§§ 667.61, subd. (b), 667.61, subd. (e)). The trial court found true the special allegations that defendant had a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12) and a prior serious felony conviction (§ 667, subd. (a)). The court sentenced defendant to a prison term of 25 years to life consecutive to a determinate six-year prison term. (See §§ 667, subd. (a); 667.9, subd. (a); 667.61, subds. (a), (c),(d).)
All further statutory references are to the Penal Code unless otherwise specified.
On appeal, defendant argues that the trial court erroneously denied his motion to suppress forensic evidence developed from a buccal swab that he voluntarily provided in an unrelated criminal investigation in which his brother was a suspect. He also asserts that the improper admission of hearsay evidence violated his constitutional rights to confrontation, due process, and fair trial.
We affirm.
A. Motion to Suppress
Defendant contends that law enforcement was limited to developing his Y-STR profile and criminalist Hall's autosomal testing and the entry of the resulting DNA profile into the Santa Clara County Crime Laboratory data base exceeded the scope of his consent. He argues all evidence beyond the Y-STR profile, including evidence arising from his arrest based on a DNA match connecting him to an unsolved sex crime, must be suppressed as fruit of the poisonous tree.
1. Evidence
Michael Joseph Schembri, a former peace officer who was working as a consultant for the Santa Clara Police Department, testified. In 2007, he was working as an investigator for the Santa Clara County District Attorney's Office. In July 2007, he was a member of the cold case unit and was working on the case of Cynthia Munoz, a victim who was raped and murdered. The suspect at that time was Christopher Holland, who was on the run.
Laura Futrell, who formerly went by the name of Laura Hall, (hereinafter "Hall") was a DNA criminologist at the Santa Clara County District Attorney's Crime Laboratory in 2007. That year, she became involved in a case involving victim Munoz and suspect Christopher Holland. Hall developed two DNA profiles from a vaginal swab taken in the Munoz homicide. One was a single source profile consistent with victim Munoz and the other was a "mixed profile" that included DNA from victim Munoz and DNA from an unknown male contributor. Hall developed the DNA profile of the unknown male on August 16, 2007 and it was checked against a CODIS data bank.
Charles Constantinides with the District Attorney's Office suggested that the laboratory do Y-STR testing on DNA samples from the siblings of the suspect. Full brothers would be expected to have the same Y-STR profile. The laboratory had never before done such testing itself; previously, cases were sent out for Y-analysis. Since the laboratory had never before developed Y-STR profiles, it did not have an in-house Y-STR database.
Schembri was told that if there were sufficient similarities between the profiles of Chris Holland's two brothers and the profile developed from the sample taken from victim Munoz's vaginal area, then a warrant for Chris Holland would be obtainable. As part of the Munoz investigation, Schembri contacted defendant. They had several conversations related to obtaining a DNA sample. Defendant did not show up to his first appointment with Schembri. Schembri obtained buccal swabs from suspect Chris Holland's brother Ken and his sister Joy.
On September 19, 2007, Schembri met with defendant and they had a lengthy conversation, which was taped. Schembri collected a DNA sample from defendant with defendant's cooperation. Schembri did not tell defendant he had to give a sample or force him to do so. Schembri never said that the sample would be used only to investigate the case involving Chris Holland or would be subjected to only Y-STR testing. Defendant never placed any such restrictions on the use of the sample he provided. Although defendant did not want to be a part of the case against his brother Chris, he also indicated his willingness to provide a sample, telling Schembri to take his DNA, to "[g]et whatever you need to get to sort out the facts," and for "you guys [to] do what you got to do." Schembri gave defendant oral directions how to rub the swab on the gums inside his mouth while defendant did it.
When the sample was obtained from defendant, Schembri had no idea that defendant might be involved in a 2001 case. Schembri was not involved in investigating that 2001 case.
On September 20, 2007, Schembri submitted the sibling samples, including defendant's sample, to the Santa Clara County Crime Laboratory with a request for the laboratory to conduct Y-STR testing on the male samples. Schembri did not know the precise meaning of "Y-STR" and would not expect defendant to understand exactly what that meant. Schembri was working with Hall at the crime lab. Schembri did not ask the laboratory to develop an autosomal profile, which includes DNA inherited from both mother and father. He never asked the crime lab to test the sample from defendant against other samples in the lab or to check if defendant was linked to any other crimes. Schembri "had no idea about the policies of the lab."
Hall conducted Y-STR testing on the samples from Kenneth and defendant. She understood from Constantinides that the purpose of the Y-STR testing was to determine whether Kenneth and defendant, the male siblings of suspect Chris Holland, had the same Y-profile as the one developed from the vaginal swab from victim Munoz. Hall told Constantinides that if the Y-STR testing showed a match, full autosomal testing would need to be done for purposes of trial to eliminate the sibling as a suspect in the Munoz case. At that point in time, the laboratory had no standard protocol for developing an autosomal profile following each Y-STR analysis.
Hall did not do any Y-STR testing on Joy's sample because she was a woman. A Y-STR profile is same for all paternal male relatives and looks only at the DNA on the Y-chromosome.
On October 8, 2007, Hall had determined Kenneth's and defendant's Y-STR profiles. She discovered that they had different Y-STR profiles. Based on the Y-STR test data, defendant was determined not to be a full sibling of Kenneth and suspect Christopher Holland. Defendant and Chris Holland have a common mother but they have different fathers. Kenneth's Y-STR profile was identical to the Y-STR profile on the vaginal swab and defendant was determined not to be a contributor to the Munoz vaginal swab.
Schembri received a telephone call indicating that the Y-STR testing done by Hall established that "it would be highly improbable that a male not paternally related to Kenneth Holland contributed to the semen found in Cynthia Munoz's vagina . . . ." Based on this information, Schembri was able to obtain a warrant for Chris Holland and arrest him. Schembri never told the lab to do anything further with defendant's DNA.
Although no protocol required Hall to develop an autosomal profile on defendant's sample, there was a protocol requiring every DNA profile to be checked against the quality control database. This was done to ensure that the samples had not been contaminated by other samples in the lab or switched with other samples. In 2007, there was not a separate quality control database for Y-STR test results. In order to check the test results from defendant's sample against the quality control database, she needed an autosomal DNA profile and developing such a profile was a normal procedure.
Accordingly, even though Hall already knew from the Y-STR profiles that defendant's DNA profile was not relevant to the Munoz case, Hall did autosomal testing and, consistent with the laboratory's policy, entered the DNA profile in the crime laboratory's "quality control database" for quality control purposes. Although the purpose was not to link defendant to any crime, running defendant's autosomal STR profile through the quality control database produced a match between defendant's profile and the DNA profile developed from a sample from a previously unsolved crime.
An excerpt from the Santa Clara County Crime Laboratory DNA manual, revised May 1, 2007, was admitted into evidence. It provided as to "Quality Assurance Review": "As a quality assurance measure, each of the different DNA profiles generated within the crime laboratory will be entered and stored in the Santa Clara County Crime Laboratory computer system. Upon entry, the profiles will be searched against all previously entered profiles; any matches should be brought to the attention of the DNA Technical Lead to investigate the nature of the match."
In November 2007, when defendant was arrested, Schembri told defendant that it was never his intention to connect defendant to another crime.
2. Scope of Consent
Investigator Schembri informed defendant, who was not a suspect in the Munoz case, of the reason that the District Attorney's Office was requesting a buccal swab from him. Although initially he did not show up for a meeting with Schembri and he expressed reluctance to be involved in the investigation of his brother, defendant ultimately cooperated. His consent was valid under the totality of circumstances. (See Schneckloth v. Bustamonte (1973) 412 U.S. 218, 227 ["the question whether a consent to a search was in fact 'voluntary' or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances"].)
Nevertheless, defendant argues that the scope of the consent was limited to the Y-STR testing and the scope of his consent was exceeded when the laboratory developed his autosomal DNA profile and inputted it into the laboratory's quality control database. We are not persuaded.
There was no evidence that Schembri ever discussed the types of DNA testing that might be done using the buccal swab provided by defendant. Defendant certainly did not receive an explicit or implicit promise to limit testing to Y-STR analysis. Defendant never placed any explicit limitations on the type of testing or on the use of the sample by the crime laboratory. He understood that DNA testing would be done on the sample for purposes of the Munoz homicide investigation.
"[The United States Supreme Court has] long held that the 'touchstone of the Fourth Amendment is reasonableness.' Florida v. Jimeno, 500 U.S. 248, 250, 111 S.Ct. 1801, 1803, 114 L.Ed.2d 297 (1991). Reasonableness, in turn, is measured in objective terms by examining the totality of the circumstances." (Ohio v. Robinette (1996) 519 U.S. 33, 39 .) "The Fourth Amendment does not proscribe all state-initiated searches and seizures; it merely proscribes those which are unreasonable. Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990). Thus, we have long approved consensual searches because it is no doubt reasonable for the police to conduct a search once they have been permitted to do so. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973). The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of 'objective' reasonableness-what would the typical reasonable person have understood by the exchange between the officer and the [individual]? Illinois v. Rodriguez, supra, at 183-189, 110 S.Ct., at 2798-2802; Florida v. Royer, 460 U.S. 491, 501-502, 103 S.Ct. 1319, 1326-1327, 75 L.Ed.2d 229 (1983) (opinion of WHITE, J.); id., at 514, 103 S.Ct., at 1332 (BLACKMUN, J., dissenting)." (Florida v. Jimeno (1991) 500 U.S. 248, 250-251 .)
The evidence did not show that any DNA test was done in connection with a criminal investigation or prosecution other than the Munoz case or for purposes of linking defendant to any other crime. The investigator did not misrepresent the reason for obtaining the DNA sample and he did not order a general exploratory comparison of defendant's DNA profile against unsolved crimes. The evidence did not suggest that the laboratory criminalist was intentionally searching for a "cold hit" DNA match or otherwise unreasonably exploiting the ignorance of a non-suspect, who voluntarily provided a DNA sample for a particular criminal investigation.
Here, the development of the autosomal profile and its input into the laboratory's quality control database was to ensure that the test results were accurate and reliable and the entry of DNA profiles generated by the laboratory into that database was standard procedure. When a non-suspect voluntarily provides a DNA sample for use in a specific criminal investigation, it may be unreasonable to use that sample in a different investigation. But a DNA sample that was given with full consent and no express limitations would reasonably be understood as extending to the laboratory's use of it for standard quality assurance purposes. (Cf. ABA Standards for Criminal Justice--DNA Evidence (3rd ed. 2007), Standard 16-8.2, subd. (g), p. 136 [notwithstanding specified use restrictions on DNA evidence, "a laboratory conducting DNA testing should be permitted to enter in a quality assurance database maintained by the laboratory any profile developed from DNA extracted in testing conducted in the laboratory, and should be permitted to retain the profile in that database as long as necessary for quality assurance purposes"].) Under these circumstances, it was reasonable to generate an autosomal profile since no Y-STR quality control database existed and to enter that profile into the laboratory's local quality control database. Consequently, those acts, objectively viewed, did not exceed the scope of defendant's consent. B. Gweneth Doe's Hearsay Statements at Trial
Defendant argues that the judgment must be reversed because the alleged victim's "inadmissible hearsay statements" were admitted "in violation of his rights to confrontation, due process and a fair trial under the Sixth and Fourteenth Amendments to the United States Constitution."
1. Background
Prior to trial, defendant moved to exclude at trial the hearsay statements of the alleged victim, who had died. Defendant contended that the statements were inadmissible hearsay and were not admissible as spontaneous statements under Evidence Code section 1240. In addition, defendant urged that admission of the statements would violate the California Constitution and the confrontation clause of the U.S. Constitution's Sixth Amendment as interpreted by Crawford v. Washington (2004) 541 U.S. 36 (Crawford).)
The evidence at trial indicated that the victim died in 2004 and the victim's daughter was contacted by the police in 2007.
The court ruled that the statements made by the alleged victim to her daughter, Lauren, when Lauren went to her mother's home on October 12, 2001 but before the police arrived, were admissible under the spontaneous statement exception to the hearsay rule and as fresh complaint and did not run afoul of Crawford. The court recognized continuing objections to the admission of those statements at trial. It completely disallowed the alleged victim's statements to the Sheriff's Deputy and the SART nurse, finding they were testimonial in nature.
At trial, Lauren testified that her mother Gweneth was 81 years old in October 2001. When Lauren returned from a three-day trip at about 2:00 p.m. on Thursday October 11, 2001, she picked up a phone message from her mother saying that she was calling from her neighbor's house and her phones had been stolen. It was an "odd," "off-handed" message but it did not sound like an emergency. Lauren expected her mother to plug in another phone and call her with a story.
Gweneth was still living independently in the home in which Lauren had grown up. Gweneth owned and drove a car. She did her own shopping. She had no dryer and hung her clothing on a clothes line. She stayed in touch with her neighbors and her many friends. Lauren considered her mother to be "a very, very independent woman" and "a capable woman." Gweneth had trouble remembering things at times consistent with her age and there were beginning signs of dementia but no diagnosis. She wore glasses for reading and driving and had hearing aids. She typically kept her glasses on her dining room or bedside table and she took out her hearing aids at night.
Lauren unsuccessfully tried to reach her mother by phone twice on Thursday October 11, 2001 and once again the following day, Friday October 12, 2001. At first, Lauren figured her mother was just going about her business. She finally went over to her mother's house at about 5:00 p.m. on that Friday. Her mother was not cheerful, full of life, and talkative as she ordinarily was. Her mother was "behaving in a way that [Lauren] knew something was not normal." Lauren thought her mother was in "a state of stress" "because she was very controlled," her demeanor was very flat, she was not speaking very much, and she seemed to be "holding herself in check." It was her mother's turn to bake cookies for the Rose Society and her mother was focusing on baking cookies and not making as much eye contact as usual. She was not hysterical or excited. Lauren saw that her mother was behaving "the way she frequently behaved when she was stressed, which would be to be sort of very controlled and keeping herself occupied." Her mother had to be prompted to talk about the stolen phones.
Defense counsel objected on hearsay grounds when the prosecutor asked Lauren what her mother said about the phones. The court overruled the objection and confirmed that this evidence was subject to continuing hearsay and Sixth Amendment objections.
Later, during Lauren's testimony, defense counsel also made an unsuccessful motion to strike all of Gweneth's statements on the ground that they were hearsay and not spontaneous statements and their admission violated the Sixth Amendment.
Lauren testified that her mother said her phone had been stolen and the other phones in the house had been stolen. Lauren went to look for the phones and found none. When Lauren asked when the phones were stolen and if her mother was home, her mother replied "it's the funniest thing, it was sort of a rape situation."
Lauren called 911 on a phone she had brought to her mother's house just "in case." Before the police arrived, Lauren spoke with her mother.
Gweneth described to her daughter the incident that occurred on Wednesday October 10, 2001 between 4:30 a.m. and 6:30 a.m. She had awoken in the night with a man on top of her. The assailant threatened to kill her. Gweneth said that "when she was raped she was wearing her nightgown" and "the man had told her to have oral sex with him and . . . she had to do that." The man told her "he needed some help" and asked her if she knew how to do that and she had complied. He left the bedroom a few times to use the phone. After the sexual assault, the man directed her to take a shower with her nightgown on.
Gweneth had access to her car during the period between the sexual assault and Lauren's arrival at her mother's home. There was no evidence that she was imprisoned in her home or in a condition in which she could not leave her home.
2. Right to Confrontation
Defendant asserts that permitting Lauren to testify regarding her mother's hearsay description of the offense violated his right to confrontation. We disagree.
In the landmark decision of Crawford, supra, 541 U.S. 36, the United States Supreme Court stated that, under the Sixth Amendment's confrontation clause, "[t]estimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine." (Id. at p. 59, fn. omitted, italics added.) Crawford established that the pivotal issue under the confrontation clause is whether an out-of-court statement is testimonial or nontestimonial: "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.) "Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law . . . . Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability [of the witness] and a prior opportunity for cross-examination." (Id. at p. 68.)
"The Confrontation Clause of the Sixth Amendment states: 'In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.' The Fourteenth Amendment renders the Clause binding on the States. Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965)." (Michigan v. Bryant (2011) ____ U.S. __, __ [131 S.Ct. 1143, 1152].)
In Crawford, the Supreme Court "[left] for another day any effort to spell out a comprehensive definition of 'testimonial.' " (Ibid., fn. omitted.) It stated: "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." (Ibid.)The court explained: "[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.] An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not." (Crawford, supra, 541 U.S. at p. 51.) In a subsequent case, the Court remarked: "[O]nly testimonial statements are excluded by the Confrontation Clause. Statements to friends and neighbors about abuse and intimidation and statements to physicians in the course of receiving treatment would be excluded, if at all, only by hearsay rules . . . ." (Giles v. California (2008) 554 U.S. 353, 376 [no blanket forfeiture rule applies to right of confrontation where defendant's wrongful act makes a witness unavailable to testify at trial].)
We think two subsequent Supreme Court cases considering the meaning of "testimonial" are instructive even though they involve governmental interrogations and not disclosures to inquiring family members. In Davis v. Washington (2006) 547 U.S. 813 (Davis), an issue was "whether, objectively considered, the interrogation that took place in the course of the 911 call produced testimonial statements." (Id. at p. 826.) The court assumed without deciding that 911 operators were agents of law enforcement. (Id. at p. 823, fn. 2.) The court held: "Without attempting to produce an exhaustive classification of all conceivable statements—or even all conceivable statements in response to police interrogation—as either testimonial or nontestimonial, it suffices to decide the present cases to hold as follows: 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.) In Davis, the court found it "unnecessary to consider whether and when statements made to someone other than law enforcement personnel are 'testimonial.' " (Id. at p. 823, fn. 2.)
The Davis opinion also addressed the separate case of Hammon v. Indiana, which involved an affidavit provided by an alleged domestic violence victim to police officers responding to a reported disturbance. (Davis, supra, 547 U.S. at pp. 819-821.) The alleged victim's statements to the officers were testimonial because "[t]here was no emergency in progress" and it was "clear from the circumstances that the interrogation was part of an investigation into possibly criminal past conduct." (Id. at p. 829.)
More recently, the U.S. Supreme Court considered statements made by a victim "to police officers who discovered him mortally wounded in a gas station parking lot" (Michigan v. Bryant, supra, 131 S.Ct. at p. 1150) and who did not know the perpetrator's location (id. at p. 1156). The court held that the statements were not testimonial and their admission did not violate the confrontation clause because the circumstances "objectively indicate[d]" that "the 'primary purpose of the interrogation' was 'to enable police assistance to meet an ongoing emergency.' Davis, 547 U.S., at 822, 126 S.Ct. 2266." (Id. at p. 1150.) The court observed that "the most important instances in which the Clause restricts the introduction of out-of-court statements are those in which state actors are involved in a formal, out-of-court interrogation of a witness to obtain evidence for trial. [Citation.]" (Id. at p. 1155.) The court stated: "When . . . the primary purpose of [a police] interrogation is to respond to an 'ongoing emergency,' its purpose is not to create a record for trial and thus is not within the scope of the [Confrontation] Clause." (Ibid.) Since the statements at issue in Michigan v. Bryant had been made to police, the court again found no need to decide the question whether and when statements made to someone other than law enforcement personnel are testimonial. (Id. at p. 1155, fn. 3.)
In reaching its conclusion, the court in Michigan v. Bryant established a "primary purpose" test. (Id. at p. 1155.) The "basic objective of the Confrontation Clause" is to "prevent the accused from being deprived of the opportunity to cross-examine the declarant about statements taken for use at trial." (Ibid.) Where "a statement is not procured with a primary purpose of creating an out-of-court substitute for trial testimony," "the admissibility of a statement is the concern of state and federal rules of evidence, not the Confrontation Clause." (Ibid., fn. omitted.) "An objective analysis of the circumstances of an encounter and the statements and actions of the parties to it provides the most accurate assessment of the 'primary purpose of the interrogation.' " (Id. at p. 1156.) "The inquiry is . . . objective because it focuses on the understanding and purpose of a reasonable victim in the circumstances of the actual victim . . . ." (Id. at p. 1161; cf. People v. Cage (2007) 40 Cal.4th 965, 984 ["[T]he statement must have been given and taken primarily for the purpose ascribed to testimony—to establish or prove some past fact for possible use in a criminal trial" and "the primary purpose for which a statement was given and taken is to be determined 'objectively,' considering all the circumstances that might reasonably bear on the intent of the participants in the conversation. [Fn. omitted]"].)
Obviously, the initial statements of Gweneth to her daughter Lauren were not products of an interrogation by a police officer or a 911 operator and there was no evidence that Lauren was acting as an agent for law enforcement. Even assuming without deciding that a victim's statements made in response to a family member's questions or volunteered to a family member might be testimonial under certain circumstances, the record does not show that the "primary purpose" of Gweneth's disclosures was to create a record for prosecution or a substitute for testimony. It is evident that the "primary purpose" of Lauren's inquiries was to uncover what had happened to her mother and to help her. There was no evidence that Gweneth confided in her daughter for the "primary purpose" of making " '[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact[]' . . ." (Crawford, supra, 541 U.S. at p. 51) or for the "primary purpose" of providing "an out-of-court substitute for trial testimony." (Michigan v. Bryant, supra, 131 S.Ct. at p. 1155; cf. People v. Griffin (2004) 33 Cal.4th 536, 580, fn. 19 [accusatory statement by victim to friend at school was not testimonial for purposes of right to confrontation].)
For example, we can conceive of a situation where a family member is merely acting as an intermediary and is asking questions on behalf of law enforcement and relating information directly from a victim to law enforcement or a situation where a victim is having a family member record her statements for purposes of creating a record for later use at trial.
The circumstances of Gweneth's initial statements to Lauren, viewed objectively, lead us to conclude that they were not testimonial. Accordingly, their admission was not violative of the Sixth Amendment's right to confrontation as interpreted by Crawford and its progeny.
3. Victim's Hearsay Statements Inadmissible as Spontaneous Statements
Defendant maintains that the victim's hearsay statements were not admissible as spontaneous utterances under Evidence Code section 1240. This exception to the hearsay rule provides: "Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [¶] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [¶] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception."
" ' "To render [statements] admissible [under the spontaneous declaration exception] it is required that (1) there must be some occurrence startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must have been before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance; and (3) the utterance must relate to the circumstance of the occurrence preceding it." [Citations.]' (People v. Poggi (1988) 45 Cal.3d 306, 318 . . . .) Spontaneous statements are deemed sufficiently trustworthy to be admitted into evidence because ' " 'in the stress of nervous excitement the reflective faculties may be stilled and the utterance may become the unreflecting and sincere expression of one's actual impressions and belief.' " [Citation.]' (Ibid.)" (People v. Gutierrez (2009) 45 Cal.4th 789, 809-810 (Gutierrez); see Cal. Law Rev. Com. com., 29B Pt. 4 West's Ann. Evid. Code (1995 ed.) foll. § 1240, p. 253.) The word "spontaneous" as used in Evidence Code section 1240 describes "actions undertaken without deliberation or reflection." (People v. Farmer (1989) 47 Cal.3d 888, 903, disapproved on another point in People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6; see People v. Raley (1992) 2 Cal.4th 870, 892 ["A spontaneous statement is one made without deliberation or reflection"].) "Spontaneous" in this context does necessarily have the colloquial meaning of unprompted. (See People v. Poggi (1988) 45 Cal.3d 306, 319.)
"The crucial element in determining whether an out-of-court statement is admissible as a spontaneous declaration is the mental state of the speaker. (People v. Farmer, supra, 47 Cal.3d 888, 903 . . . .) 'The nature of the utterance—how long it was made after the startling incident and whether the speaker blurted it out, for example— may be important, but solely as an indicator of the mental state of the declarant.' (Id. at pp. 903-904 . . . .)" (Gutierrez, supra. 45 Cal.4th at p. 811.) " ' "Neither lapse of time between the event and the declarations nor the fact that the declarations were elicited by questioning deprives the statements of spontaneity if it nevertheless appears that they were made under the stress of excitement and while the reflective powers were still in abeyance." [Citation.]' (People v. Poggi, supra, 45 Cal.3d at p. 319 . . . .)" (People v. Thomas (2011) 51 Cal.4th 449, 495-496.)
In People v. Trimble (1992) 5 Cal.App.4th 1225, cited with approval in Gutierrez, supra, 45 Cal.4th 789, the court found statements made more than a day after the described event to be spontaneous. "As soon as [her father] left the cabin" after her aunt arrived, "the victim's two and one-half-year-old daughter 'became "completely hysterical" ' and described to her aunt how her father had stabbed her mother nearly two days earlier." (Gutierrez, supra, 45 Cal.4th at p. 811.) "The Trimble court relied upon the fact that, until the arrival of the child's aunt, the child 'had no trustworthy person in whom to confide.' (Ibid.)" (Id. at p. 812.)
Subsequently, in Gutierrez, the California Supreme Court distinguished Trimble from the case before it involving a three-year-old child's hearsay statement incriminating his father in the murder of his mother. (Ibid.) The "child did not make his statement at the 'first secure opportunity for disclosure' following confinement with the assailant" and had "ample opportunity to confide in a relative" but his hearsay statement was not made until more than two months after his mother's death. (Ibid.) The Supreme Court concluded that the trial court had abused its discretion in admitting the child's hearsay statement. (Ibid.)
In this case, approximately 60 hours had elapsed by the time the Gweneth disclosed the alleged sexual assault to her daughter. The victim had not been isolated in her home and she had access to her car and could drive. She had managed to call her daughter and leave a phone message that she was calling from a neighbor's house and that her phones had been stolen. But the message did not make the situation sound like an emergency to her daughter, who did not go to her mother's home for more than 24 hours after picking up the message. The victim was baking cookies when her daughter arrived. When finally asked about the missing phones, Gweneth stated, "[I]t's the funniest thing, it was sort of a rape situation."
We recognize that the fact that a hearsay declarant was calm enough to speak coherently is not necessarily inconsistent with spontaneity (People v. Poggi, supra, 45 Cal.3d at p. 319) and "the discretion of the trial court is at its broadest" when it determines whether the utterance was made before there was time to contrive and misrepresent and while nervous excitement dominated and reflective powers were in abeyance. (Id. at pp. 318-319.) But the passage of time tends to be a factor weighing against a finding of spontaneity. "The amount of time that passes between a startling event and subsequent declaration is not dispositive, but will be scrutinized, along with other factors, to determine if the speaker's mental state remains excited." (People v. Gutierrez, supra, 45 Cal.4th at p. 810.)
In People v. Pirwani (2004) 119 Cal.App.4th 770, this court concluded that the trial court exceeded the bounds of its broad discretion in admitting the statements of a physically dependent adult to her case worker's supervisor concerning the defendant's theft of her money under the exception for spontaneous statements. (Id. at pp. 789-790.) Two days elapsed between the telephone call in which the alleged victim first told her case worker's supervisor that "she was very, very upset," "something very serious had happened," and "she needed to speak to the supervisor in person" and the time of the hearsay statements. (Id. at p. 777.) During that period, the alleged victim "already had gone to the police to accuse defendant of stealing from her, and had talked to at least two police officers." (Id. at p. 790.)
Here, two and a half days elapsed following the alleged sexual assault incident before Gweneth talked directly to her daughter Lauren. Gweneth did not appear emotionally distraught or physically injured in such a way as to inhibit deliberation. (See People v. Brown (2003) 31 Cal.4th 518, 540-541 [declarant, who was upset and crying and whose body was shaking, made statements implicating defendant to his sister-in-law about two and one-half hours after shooting]; People v. Raley, supra, 2 Cal.4th 870, 893 [statements made by "young woman who had been bleeding for 18 hours, who had suffered a traumatic head injury, and who was not far from death"].) There was no evidence that Gweneth had been confined to her home with defendant until, or shortly before, her daughter arrived. (See People v. Trimble, supra, 5 Cal.App.4th 1225, 1229, 1234-1235 [very young girl was "sequestered in the cabin with her brother and appellant" without "a trustworthy person in whom to confide" until her maternal aunt arrived nearly two days later and, after appellant left, girl became completely hysterical and frantically described appellant's assault on her mother].) Rather, following the incident, Gweneth had access to a car and the ability to leave her home; she had managed to telephone her daughter and she had left a matter-of-fact message. Although Gweneth appeared troubled to her daughter in that she was not her ordinarily cheerful self and was somewhat withdrawn with a flat and controlled demeanor, this evidence was insufficient to show Gweneth was speaking under the "stress of excitement" while her "reflective powers were still in abeyance" when she responded to her daughter's questioning. Her description of the sexual assault incident that allegedly occurred two and a half days earlier was thoughtful and reflective. Gweneth was functioning and baking cookies.
In light of these circumstances, we conclude the trial court abused its discretion in admitting Gweneth's hearsay statements describing the incident to her daughter under the spontaneous-statement exception. Since we have found no constitutional violation under the Sixth Amendment's confrontation clause, however, this error is evaluated under the harmless-error test articulated in People v. Watson (1956) 46 Cal.2d 818, 836. (See Gutierrez, supra, 45 Cal.4th at p. 813.)
We observe that the evidence of Gweneth's complaint was relevant and admissible for nonhearsay purposes. "[U]nder principles generally applicable to the determination of evidentiary relevance and admissibility, proof of an extrajudicial complaint, made by the victim of a sexual offense, disclosing the alleged assault, may be admissible for a limited, nonhearsay purpose—namely, to establish the fact of, and the circumstances surrounding, the victim's disclosure of the assault to others—whenever the fact that the disclosure was made and the circumstances under which it was made are relevant to the trier of fact's determination as to whether the offense occurred." (People v. Brown (1994) 8 Cal.4th 746, 749-750, italics omitted; see also Evid. Code, §§ 210, 351.) "Of course, only the fact that a complaint was made, and the circumstances surrounding its making, ordinarily are admissible; admission of evidence concerning details of the statements themselves, to prove the truth of the matter asserted, would violate the hearsay rule. (4 Wigmore, op. cit. supra, § 1142, p. 318.)" (Id. at p. 760.)
"In sexual as well as nonsexual offense cases, evidence of the fact and circumstances of a victim's complaint may be relevant for a variety of nonhearsay purposes, regardless whether the complaint is prompt or delayed. To begin with, if such a victim did, in fact, make a complaint promptly after the alleged incident, the circumstances under which the complaint was made may aid the jury in determining whether the alleged offense occurred. Furthermore, admission of evidence that such a prompt complaint was made also will eliminate the risk that the jury, if not apprised of that fact, erroneously will infer that no such prompt complaint was made." (Id. at p. 761.)
Defendant is not disputing that evidence of the fact of and the circumstances surrounding Gweneth's complaint of forcible oral copulation was admissible for nonhearsay purposes. That evidence considered for nonhearsay purposes together with other incriminating evidence, stipulated facts, and reasonable inferences satisfy us that the erroneous admission of the victim's statements for their truth was harmless. It was stipulated that Gweneth was five feet, three inches tall and weighed 125 pounds on October 12, 2001. It was also stipulated that defendant was six foot, two inches tall and weighed 220 pounds in the fall of 2001 and he was born on December 19, 1961, which made him 39 years old in October 2001. As indicated, Gweneth was 81 years old at that time.
"[T]he admissibility of such evidence does not turn invariably upon whether the victim's complaint was made immediately following the alleged assault or was preceded by some delay, nor upon whether the complaint was volunteered spontaneously by the victim or instead was prompted by some inquiry or questioning from another person. Rather, these factors simply are to be considered among the circumstances of the victim's report or disclosure that are relevant in assisting the trier of fact in assessing the significance of the victim's statements in conjunction with all of the other evidence presented." (People v. Brown, supra, 8 Cal.4th at p. 763.)
The evidence showed that Sergeant Paula McAllister with the Santa Clara County Sheriff's Office interviewed defendant in November 2007. When defendant was first confronted with information that his DNA had been found in the underwear of a much older woman named Gweneth, defendant at first could not recall her but, later in the same interview, he admitted that she tried to give him a "blow job" but it "wasn't happening" and claimed it was entirely consensual. He recalled that she walked into the shower fully dressed because she felt dirty. Defendant also confirmed that he worked for a week putting up a new fence for Gweneth. He recalled that she brought him lemonade. There was no evidence to suggest that defendant's incriminating admissions to the sergeant should not be believed.
"Oral copulation is any contact, no matter how slight, between the mouth of one person and the sexual organ or anus of another person." (CALCRIM No. 1015 (2010 ed.) p. 819; see § 288a, subd. (a) ["Oral copulation" within the meaning of section 288a is "the act of copulating the mouth of one person with the sexual organ or anus of another person"].)
A cellmate with whom defendant had been briefly housed in jail recalled defendant saying that he had done fencing work for someone named Gweneth or Gwen and he had known there was a house key under the mat. Defendant had admitted that he had entered her home but he had not expected her to be there. According to the cellmate, defendant said that when he discovered her in the bedroom, he crawled into her bed and made Gweneth give him a "blow job." This statement was consistent with defendant's previous statement to the sergeant indicating there had been an act of oral copulation. Defendant disclosed to the cellmate that he had threatened to kill her if she said anything but reported that he had told Sergeant McAllister that the encounter was consensual. Defendant's statements to the cellmate supported an inference that his repeated assertions to the sergeant that the "blow job" was consensual were untruthful. In addition, defendant told the cellmate that he had used a telephone in her living room to have phone sex. Defendant said that he had masturbated, ejaculated, and wiped himself on panties that he grabbed from a basket of laundry.
The fact that, during the sergeant's interrogation, defendant could not at first remember the decades-older Gweneth, for whom he had done fence work over the course of a week and who he admitted later in the interview had tried to give him a "blow job," casts doubt upon defendant's claim that the act of oral copulation was consensual. Defendant's admissions to his cellmate regarding forcible oral copulation and his use of Gweneth's phone during the incident and Lauren's testimony that she could not find any of her mother's telephones after the incident also undermine any assertions that sexual contact was consensual. Although Gweneth's statements were not admissible for their truth, the fact and circumstances of her complaint to her daughter that there had been "sort of a rape situation" involving oral sex not long after the alleged incident strengthened the evidence that a crime had occurred.
We conclude that the error in admitting the victim's hearsay description of the incident under the spontaneous-statement exception to the hearsay rule was harmless because it is not "reasonably probable that a result more favorable to [defendant] would have been reached in the absence of the error." (People v. Watson, supra, 46 Cal.2d at p. 836.) C. Admission of Forensic Evidence
Defendant contends that forensic evidence concerning his DNA profile and the reported observation of a sperm cell in the alleged victim's underwear constituted inadmissible hearsay and that the admission of that evidence at trial violated his rights to confrontation and due process and fair trial under the Sixth and Fourteenth Amendments to the federal Constitution. Defendant asserts that permitting criminalists Jones and Skinner to "testify regarding conduct, observations and data obtained by nontestifying forensic analysts violated [his] right to confrontation." He maintains that the error compels automatic reversal but, even if the Chapman standard of review is applicable (see Chapman v. California (1967) 386 U.S. 18, 24 ), reversal is required.
1. Background
Prior to the testimony of the forensic DNA experts, defense counsel objected on hearsay grounds insofar as the witnesses were not the individuals who had actually performed the laboratory analysis. The prosecutor indicated that he planned to lay the foundation for admission of the analyses as business records and to offer them as the basis for the opinion of the testifying witnesses. The court overruled the hearsay objection. At the time of trial, the California Supreme Court's decision in People v. Geier (2007) 41 Cal.4th 555 (Geier), which was subsequently largely abrogated by Melendez-Diaz v. Massachusetts (2009) __ U.S. __ (Melendez-Diaz), was controlling.
The prosecutor indicated that he was going to lay a foundation for admission of the evidence as business records. "Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if: [¶] (a) The writing was made in the regular course of a business; [¶] (b) The writing was made at or near the time of the act, condition, or event; [¶] (c) The custodian or other qualified witness 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." (Evid. Code, § 1271.) Defense counsel did not make any subsequent objection that the prosecutor had failed to lay an adequate foundation for admission under this exception to the hearsay rule.
On June 29, 2009, the U.S. Supreme Court denied certiorari in Geier sub. nom. Geier v. California (2009) 129 S.Ct. 2856.
In Geier, the prosecution's DNA expert testified as to her opinion that DNA extracted from vaginal swabs taken from the alleged victim matched a sample of defendant's DNA and to the frequency of that DNA profile in certain populations. (Geier, supra, 41 Cal.4th at p. 593.) One of the defendant's arguments was that the expert's testimony violated his constitutional right to confrontation "because her opinion regarding the match . . . was based on testing that she did not personally conduct." (Id. at pp. 593-594.) The biologist who had done the testing was not called as a witness at trial. (See Geier, supra, 41 Cal.4th at pp. 593-596) Defendant argued that the test results were inadmissible unless the person who actually conducted the testing testified. (Id. at p. 596.) He also contended that the DNA report was "a testimonial statement because it was a statement 'made under circumstances that would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.' (Crawford, supra, 541 U.S. at p. 52, 124 S.Ct. 1354.)" (Id. at p. 598.)
The California Supreme Court determined in Geier that "[r]ecords of laboratory protocols followed and the resulting raw data acquired are not accusatory" but rather neutral since the records can be inculpatory or exculpatory. (Id. at p. 607.) The "critical inquiry is not whether it might be reasonably anticipated that a statement [in a DNA lab report] will be used at trial but the circumstances under which the statement was made." (Ibid.) The court held that a DNA lab report 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." (Id. at p. 605.) Accordingly, the DNA report and accompanying notes were held not testimonial in Geier since they "were generated as part of a standardized scientific protocol" (id. at p. 607) and the "notes were made 'during a routine, non-adversarial process meant to ensure accurate analysis.' [Citation.]" (Ibid.) As to the expert's reliance on the DNA lab report and notes, the court stated: "[T]he 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 the nontestifying technician's laboratory notes and report, but by the testifying witness . . . ." (Ibid.)
After the trial court overruled defense counsel's objections in this case, the prosecution called Jocelyn Jones, a supervising criminalist at the Santa Clara County Crime Laboratory, and Elizabeth Skinner, who worked as a criminologist in that laboratory and conducted forensic DNA analysis. The court recognized both witnesses as experts in the field of forensic DNA analysis.
Supervising criminalist Jones testified about the defendant's DNA profile developed by analyst Hall, who was no longer working for the laboratory at the time of trial. Jones was familiar with Hall's report. Hall's report and accompanying notes were not admitted into evidence. Exhibit 15, a DNA chart comparing defendant's DNA profile generated from his DNA sample with the DNA profiles developed from two cuttings from the victim's underwear, was admitted into evidence.
Jones testified that the results of the DNA testing of defendant's sample and the underwear cuttings showed a match at all loci tested. She explained the significance of the match in terms of the probability in a particular population. She stated that the random match probability in the Caucasian population was one in 160 quadrillion, in the Hispanic population it was one in "one quintillion, 400 quadrillion," and in the African-American population it was one in 45 quadrillion. The database match probability for the Caucasian population was "one in 26 Trillion." In reaching her opinions, Jones relied on Hall's and Skinner's reports and accompanying notes.
Skinner testified that in 2002 she did forensic DNA analysis on two cuttings from a pair of underwear, which had been found by an officer found under the alleged victim's bed. Skinner confirmed that the report and notes contained in exhibit 16, which was identified at trial but not admitted into evidence, were her work. Skinner confirmed that exhibit 15, the DNA chart, reflected the forensic DNA analysis that she had done on the two underwear cuttings. Skinner also developed the DNA profile for Gweneth Doe's reference blood sample and the DNA chart, exhibit 17, which was admitted into evidence, reflected that DNA profile.
At trial, the parties stipulated that a blood sample was taken from Gweneth Doe on October 12, 2001 at San Jose Valley Medical Center and the Santa Clara County Crime Laboratory conducted forensic DNA analysis on that sample.
The two experts' testimony also indicated that a nontestifying analyst named Jennifer Zawacki conducted serological work and identified a sperm cell on the underpants near the cuttings analyzed by Skinner. Zawacki's report and accompanying notes were identified as exhibit 19 but the exhibit was not admitted into evidence before the jury. There was testimony that Zawacki's notes indicated that Zawacki observed a sperm cell but her notes did not say whether it was human or animal.
Before trial, the court ruled that expert testimony regarding the sperm fraction evidence would be excluded under Evidence Code section 352.
2. Melendez-Diaz
On June 25, 2009, after the trial in this case was over and the jury had already reached its verdicts, the United States Supreme Court decided Melendez-Diaz. In Melendez-Diaz, supra, 129 S.Ct. 2527, "affidavits reporting the results of forensic analysis which showed that material seized by the police and connected to the defendant was cocaine" (id. at p. 2530) were admitted into evidence at trial on charges that the defendant distributed cocaine and trafficked in cocaine. (See id. at p. 2532.) The issue before the court was whether the affidavits were " 'testimonial,' rendering the affiants 'witnesses' subject to the defendant's right of confrontation under the Sixth Amendment." (Id. at p. 2530.) The court held that "the analysts' affidavits were testimonial statements" within the meaning of Crawford, "the analysts were 'witnesses' for purposes of the Sixth Amendment," and "[a]bsent a showing that the analysts were unavailable to testify at trial and that petitioner had a prior opportunity to cross-examine them, petitioner was entitled to ' "be confronted with" ' the analysts at trial. Crawford, supra, at 54, 124 S.Ct. 1354." (Id. at p. 2532.)
Justice Thomas joined the court's majority opinion in Melendez-Diaz, but also wrote separately to explain that he did so "because the documents at issue in this case 'are quite plainly affidavits,' [citation]" and "[a]s such, they 'fall within the core class of testimonial statements' governed by the Confrontation Clause. [Citation.]" (Melendez-Diaz, supra, 129 S.Ct. at p. 2543.) He also stated that he "continue[d] 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.]" (Ibid.)
The United States Supreme Court in Melendez-Diaz rejected the argument that the forensic analysts were not subject to the confrontation clause because their analyses were the result of neutral, scientific testing and, therefore, such "analysts are not subject to confrontation because they are not 'accusatory' " or "conventional" witnesses. (Id. at p. 2527, 2533-2535.) The court observed, among other things, that so-called neutral scientific testing may not actually be neutral or reliable: "Forensic evidence is not uniquely immune from the risk of manipulation. . . . A forensic analyst responding to a request from a law enforcement official may feel pressure-or have an incentive-to alter the evidence in a manner favorable to the prosecution." (Id. at p. 2536.) It stated: "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." (Id. at pp. 2536 -2537.) The court also noted that, "[l]ike expert witnesses generally, an analyst's lack of proper training or deficiency in judgment may be disclosed in cross-examination." (Id. at p. 2537.)
The United States Supreme Court went on to clarify "the relationship between the business-and-official-records hearsay exceptions and the Confrontation Clause": "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." (Id. at pp. 2539 -2540.) It rejected the contention that "affidavits reporting the results of forensic analysis" were "admissible without confrontation because they are 'akin to the types of official and business records admissible at common law.' " (Id. at p. 2538.) In that case, analysts had "create[d] a record for the sole purpose of providing evidence against a defendant." (Id. at p. 2539, fn. omitted.) The court concluded that, whether or not the "certificates of analysis" showing the results of the forensic testing qualified as business or official records, "the analysts were subject to confrontation under the Sixth Amendment" because their statements, which were "prepared specifically for use at petitioner's trial," "were testimony against petitioner . . . ." (Id. at p. 2540.)
In Melendez-Diaz, the affidavits were offered for their truth in order to prove an element of the offenses, namely the nature of the substance seized. The Supreme Court had no call to decide whether the confrontation clause is contravened when a testifying expert relies upon testimonial forensic analyses of nontestifying analysts in reaching an opinion. In Crawford, the Supreme Court recognized that the Sixth Amendment's confrontation clause "does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted. See Tennessee v. Street, 471 U.S. 409, 414, 105 S.Ct. 2078, 85 L.Ed.2d 425 (1985)." (Crawford, supra, 541 U.S. at p. 59, fn. 9; see Michigan v. Bryant, supra, 131 S.Ct. at p. 1161, fn. 11 ["[T]he Confrontation Clause is not implicated when statements are offered 'for purposes other than establishing the truth of the matter asserted.' Crawford, 541 U.S., at 60, n. 9"].) But the Supreme Court has not yet addressed whether the confrontation clause is implicated when a testifying expert relies upon the truth of inadmissible testimonial hearsay in forming an opinion and testifies at trial regarding the matters considered, as may be permitted under California law (see Evid. Code, 801, subd. (b); People v. Montiel (1993) 5 Cal.4th 877, 918).
The Supreme Court in Melendez-Diaz, however, did explicitly state: "[W]e do not hold, and it is not the case, that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution's case. While the dissent is correct that '[i]t is the obligation of the prosecution to establish the chain of custody,' post, at 2546, this does not mean that everyone who laid hands on the evidence must be called. As stated in the dissent's own quotation, ibid., from United States v. Lott, 854 F.2d 244, 250 (C.A.7 1988), 'gaps in the chain [of custody] normally go to the weight of the evidence rather than its admissibility.' It is up to the prosecution to decide what steps in the chain of custody are so crucial as to require evidence; but what testimony is introduced must (if the defendant objects) be introduced live." (Melendez-Diaz, supra, 129 S.Ct. at p. 2532, fn. 1.)
The California Supreme Court has granted review in a number of cases involving constitutional issues left unresolved by Melendez-Diaz.
See e.g. People v. Rutterschmidt (2009) 176 Cal.App.4th 1047, review granted Dec. 2, 2009, S176213 [supervising criminalist testified as to the result of drug tests and the report prepared by another criminalist]; People v. Gutierrez (2009) 177 Cal.App.4th 654, review granted Dec. 2, 2009, S176620 [nurse practitioner testified as to results of a sexual assault examination and report prepared by another nurse practitioner; supervising criminalist testified as to the result of DNA tests and the report prepared by another criminalist]; People v. Dungo (2009) 176 Cal.App.4th 1388, review granted Dec. 2, 2009, S176886 [forensic pathologist testified to manner and cause of death in murder case based upon autopsy report prepared by another pathologist]; and People v. Lopez (2009) 177 Cal.App.4th 202, review granted Dec. 2, 2009, S177046[results of blood-alcohol level tests and a report prepared by nontestifying criminalist admitted into evidence].
3. Bullcoming v. New Mexico
On June 23, 2011, the United States Supreme Court decided Bullcoming v. New Mexico (2011) ___ U.S. __ (Bullcoming). That case concerned the New Mexico laboratory report of a forensic analyst who tested the defendant's blood sample after he was arrested for driving while under the influence of intoxicating liquor. (Id. at p. 2710.) The report contained the "certificate of analyst" that the blood alcohol concentration (BAC) in the "sample was 0.21 grams per hundred milliliters, an inordinately high level" (ibid.)and "supported a prosecution for aggravated DWI, the threshold for which is a BAC of 0.16 grams per hundred milliliters, §66-8-102(D)(1)." (Id. at p. 2711.) Over objection, the trial court admitted the report as a business record. (Id. at p. 2712.) The question presented was "whether the Confrontation Clause permits the prosecution to introduce a forensic laboratory report containing a testimonial certification—made for the purpose of proving a particular fact—through the in-court testimony of a scientist who did not sign the certification or perform or observe the test reported in the certification." (Id. at p. 2710.) The Supreme Court held that "[t]he accused's right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist." (Ibid.)
The court made clear: "[T]he comparative reliability of an analyst's testimonial report drawn from machine-produced data does not overcome the Sixth Amendment bar. This Court settled in Crawford that the "obviou[s] reliab[ility]" of a testimonial statement does not dispense with the Confrontation Clause. 541 U. S., at 62; see id., at 61 (Clause 'commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing [the evidence] in the crucible of cross-examination'). Accordingly, 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.' Melendez-Diaz, 557 U. S., at ____, n. 6 (slip op., at 14, n. 6)." (Id. at p. 2715.)
The Supreme Court rejected the New Mexico Supreme Court's determination that the live testimony of another analyst satisfied the constitutional requirement of confrontation. (Id. at pp. 2715-2716.) It pointed out the testifying analyst, who "had neither participated in nor observed the test on Bullcoming's blood sample" (id. at p. 2709), "could not convey what [the certifying tester] knew or observed about the events his certification concerned, i.e., the particular test and testing process he employed." (Id. at p. 2715, fn. omitted.) Neither could the testifying analyst "expose any lapses or lies on the certifying analyst's part." (Ibid., fn. omitted.) The testifying analyst could not explain why the certifying analyst "had been placed on unpaid leave" since that witness "had no knowledge of the reason." (Ibid.) In addition, New Mexico had not asserted that the testifying analyst "had any 'independent opinion' concerning Bullcoming's BAC." (Id. at p. 2716.)
The Supreme Court concluded that the assertions contained in the "certificate of analysis" were testimonial even though certifying analyst's statements were unsworn: "In all material respects, the laboratory report in this case resembles those in Melendez-Diaz. Here, as in Melendez-Diaz, a law-enforcement officer provided seized evidence to a state laboratory required by law to assist in police investigations, N. M. Stat. Ann. §29-3-4 (2004). Like the analysts in Melendez-Diaz, [the certifying analyst] tested the evidence and prepared a certificate concerning the result of his analysis. [Citation.] Like the Melendez-Diaz certificates, [the] certificate is 'formalized' in a signed document . . . ." (Id. at p. 2717.) The court declared: "New Mexico could have avoided any Confrontation Clause problem by asking [the testifying analyst] to retest the sample, and then testify to the results of his retest rather than to the results of a test he did not conduct or observe." (Id. at p. 2718.)
4. Violation of Confrontation Clause in This Case
a. No Forfeiture
We first address a threshold issue of forfeiture. The People contend that defendant "forfeited his Sixth Amendment claims by failing to lodge a timely and specific objection to the expert witness testimony" since he "lodged only a 'hearsay' objection to lab witness testimony." We reject this contention since the California Supreme Court's decision in Geier was controlling at the time of trial. Defense counsel would have reasonably believed that a Sixth Amendment objection was futile. (See People v. Hovarter (2008) 44 Cal.4th 983, 1007 [defendant may have reasonably believed advancing a hearsay objection at trial would have been futile since trial court denied his pretrial motion to exclude evidence specifically referenced the hearsay rule]; People v. Black (2007) 41 Cal.4th 799, 810 [forfeiture rule inapplicable when applicable law unforeseeably changes and trial counsel could not reasonably be expected to have anticipated the change].) Further, a hearsay objection preserves an objection that the trial court's evidentiary ruling, in addition to being wrong for reasons actually presented to that court, had the legal consequence of violating his constitutional right to confrontation. (People v. Gutierrez, supra, 45 Cal.4th at p. 809.) b. Violation of Defendant's Right of Confrontation
In ruling on defendant's post-trial motion for a new trial, the trial court expressly stated that during trial it had been guided by Geier and the lack of defense objection to every point was "perfectly justified in the court's view based upon the futility, knowing the court was being guided by People v. Geier."
We now turn to the merits. We take from the Bullcoming, Melendez-Diaz, and Crawford decisions that, when the results of forensic testing done for prosecutorial purposes are admitted into evidence for their truth, that evidence must be deemed testimonial regardless whether the results are contained in a sworn or unsworn extrajudicial statement. (See Bullcoming, supra, 131 S.Ct. at p. 2717; Melendez-Diaz, supra, 129 S.Ct. at p. 2532; Crawford, supra, 541 U.S. at pp. 52, 59, fn. 9; see also Michigan v. Bryant, supra, 131 S.Ct. at p. 1161, fn. 11; People v. Cage, supra, 40 Cal.4th at p. 984.) If the substance of a testimonial forensic report is introduced into evidence as proof of the matter stated, a defendant must ordinarily have the opportunity to confront the analyst who produced the report. (See Bullcoming, supra, 131 S.Ct. at pp. 2709, 2715.) The Sixth Amendment's Confrontation Clause permits "admission of '[t]estimonial statements of witnesses absent from trial . . . only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine' [citations]." (Id. at p. 2713.) The surrogate testimony of another forensic analyst who did not sign the report or perform or observe the test reported does not satisfy the right to confrontation. (Id. at pp. 2710, 2716.)
Here, reported results of forensic testing done by Hall and Zawacki, who were absent from trial, were admitted for their truth via expert testimony and/or exhibit. This evidence was testimonial because the testing was conducted and reports were produced for the purpose of establishing or proving some fact in the criminal proceeding. (See Bullcoming, supra, 131 S.Ct. at p. 2716; see also Melendez-Diaz, supra, 129 S.Ct. at pp. 2539 -2540 ["Business and public records are generally admissible absent confrontation . . . 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"].) The nontestifying analysts would reasonably expect that their statements would be used for prosecutorial purposes and the circumstances under which the statements were made would lead an objective witness to reasonably believe that they would be available for use at a later criminal trial. (See Crawford, supra, 541 U.S. at pp. 51-52, 60, fn. 9; Melendez-Diaz, supra, 129 S.Ct. at p. 2531.)
Since Hall and Zawacki, who were working at other crime labs by the time of trial, were absent from trial and there was no requisite showing of unavailability and a prior opportunity to cross-examine, the confrontation clause was not satisfied. (See Melendez-Diaz, supra, 129 S.Ct. at p. 2531 ["A witness's testimony against a defendant is thus inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination. [Citation.]"]; Crawford, supra, 541 U.S. at p. 59; see also Barber v. Page (1968) 390 U.S. 719, 724-725 ["a witness is not 'unavailable' for purposes of the . . . exception to the confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial"]; People v. Herrera (2010) 49 Cal.4th 613, 622 ["A witness who is absent from a trial is not 'unavailable' in the constitutional sense unless the prosecution has made a 'good faith effort' to obtain the witness's presence at the trial"]; see also Ohio v. Roberts (1980) 448 U.S. 56, 74-75 , overruled on another grounds in Crawford, supra, 541 U.S. at pp. 60-69 ["The ultimate question is whether the witness is unavailable despite good-faith efforts undertaken prior to trial to locate and present that witness" and "the prosecution bears the burden of establishing this predicate"].) The admission of evidence of the testing conducted and results generated by those nontestifying analysts for its truth violated the defendant's constitutional right to confrontation. c. Harmless Error
Even if Bullcoming is read as intimating that the confrontation clause is satisfied where a forensic analyst who supervised, observed, or participated in testing appears at trial for cross-examination about the testing, the evidence in this case did not show that Jones personally had anything to do with any actual forensic testing at issue here or that Skinner was involved in any forensic testing other than her own. Insofar as criminalist Jones testified to test results generated by Skinner, no confrontation clause problem was created since defendant had an opportunity to cross-examine Skinner. "The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it." (Crawford, supra, 541 U.S. at p. 59, fn. 9.) Thus, "when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements. [Citation.]" (Ibid.)
A violation of the right to confrontation is subject to harmless-error analysis under Chapman v. California, supra, 386 U.S. 18, 24 . (Coy v. Iowa (1988) 487 U.S. 1012, 1021 [denial of face to face confrontation]; Delaware v. Van Arsdall (1986) 475 U.S. 673, 682 ["denial of the opportunity to cross-examine an adverse witness does not fit within the limited category of constitutional errors that are deemed prejudicial in every case"], 684 [holding that "the constitutionally improper denial of a defendant's opportunity to impeach a witness for bias, like other Confrontation Clause errors, is subject to Chapman harmless-error analysis"].) "An assessment of harmlessness cannot include consideration of whether the witness' testimony would have been unchanged, or the jury's assessment unaltered, had there been confrontation; such an inquiry would obviously involve pure speculation, and harmlessness must therefore be determined on the basis of the remaining evidence." (Coy v. Iowa, supra, 487 U.S. at pp. 1021-1022.) "The correct inquiry [for purposes of harmless-error analysis] is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt. Whether such an error is harmless in a particular case depends upon a host of factors . . . includ[ing] 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. Cf. Harrington, 395 U.S., at 254, 89 S.Ct., at 1728; Schneble v. Florida, 405 U.S., at 432, 92 S.Ct., at 1059." (Delaware v. Van Arsdall, supra, 475 U.S. at p. 684.)
Bullcoming, Melendez-Diaz, and Crawford do not demonstrate that the denial of the constitutional right of confrontation is a structural error that is reversible per se. (See Bullcoming, supra, 131 S.Ct. at p. 2719, fn. 11 [court stated that it expressed no view on whether the confrontation clause error in that case was harmless]; Melendez-Diaz, supra, 129 S.Ct. at p. 2542, fn. 14 [same ]; Crawford, supra, 541 U.S. at p. 42, fn. 1 [same].) Rather, in each case, the court remanded the case for further proceedings not inconsistent with its opinion. (Bullcoming, supra, 131 S.Ct. at p. 2719; Melendez-Diaz, supra, 129 S.Ct. at p. 2542; Crawford, supra, 541 U.S. at p. 69.) Unlike the structural error of erroneously depriving a defendant of the right to counsel of choice under the Sixth Amendment, the consequences of which are necessarily unquantifiable and indeterminate and which is not subject to harmless-error analysis (U.S. v. Gonzalez-Lopez (2006) 548 U.S. 140, 150-152 ), the deprivation of the right of confrontation with respect to hearsay evidence is a trial error that occurs "during presentation of the case to the jury" and the effect of such error may "be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless beyond a reasonable doubt." (Arizona v. Fulminante (1991) 499 U.S. 279, 308 ; cf. Crane v. Kentucky (1986) 476 U.S. 683, 686, 691 [erroneous exclusion of testimony about the circumstances of the defendant's confession intended to "cas[t] doubt on its validity and its credibility" was subject to harmless error analysis].) This is not a case where the defendant was entirely deprived of the right to confront or cross-examine the witnesses against him, which presumably would be a structural error. (Cf. U.S. v. Cronic (1984) 466 U.S. 648, 659 ["if counsel entirely fails to subject the prosecution's case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable"].) "In those limited instances in which [the U.S. Supreme] Court has found an error 'structural,' [it has] done so because the error defies analysis by harmless-error standards. [Citations.]" (Hedgpeth v. Pulido (2008) 555 U.S. 57, 67 .)
Any confrontation error with respect to forensic evidence generated by nontestifying analysts was harmless beyond a reasonable doubt in the specific circumstances of this case because the identity of the perpetrator was not an issue at trial and defendant admitted to being in Gweneth's home and engaging in sexual activity. The defense was never that defendant had been misidentified as the assailant. At trial, the closing argument was that there was no forcible oral copulation and the rape-like situation referred to by the alleged victim involved defendant's act of masturbation: "Gweneth Doe saw something very upsetting. I think she saw my client masturbating in the living room. That's very upsetting. That's the rape-like situation that she saw." Thus, any violation of the right to confront Hall and Zawacki regarding their forensic testing was harmless beyond a reasonable doubt.
By virtue of the same reasoning, any violation of the hearsay rule would be harmless under the Watson standard of review. (People v. Watson, supra, 46 Cal.2d 818, 836.) Consequently, we need not consider whether the evidence of forensic testing performed by and determinations made by the nontestifying analysts was admissible for its truth under the business record exception to the hearsay rule. (See Evid. Code, §§ 1200, 1271.) Further, under the facts of this case, it is unnecessary to decide whether a testifying expert's reliance on the truth of extrajudicial testimonial statements in reaching an opinion and the expert's testimony regarding those statements for purposes of evaluating the opinion testimony implicates the confrontation clause.
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DISPOSITION
The judgment is affirmed.
ELIA, J. WE CONCUR: RUSHING, P. J. PREMO, J.