Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA317275, Frederick N. Wapner, Judge. Affirmed.
Lenore De Vita, 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, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Joseph P. Lee, and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.
SUZUKAWA, J.
Lessie Mays (appellant) appeals from the judgment entered following a jury trial in which he was convicted of selling or transporting cocaine base (Health & Saf. Code, § 11352, subd. (a)), and a court trial in which he was found to have suffered a prior conviction within the meaning of Penal Code section 667.5, subdivision (b). He was sentenced to prison for five years. He appeals, contending that the trial court improperly admitted the hearsay testimony of a chemist, violating his right to confrontation as defined by Crawford v. Washington (2004) 541 U.S. 36 (Crawford) and erred in instructing the jury. He also requests that this court conduct an independent review of the in camera hearing held pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On February 13, 2007, at approximately 7 p.m., Los Angeles Police Officer Jackeline Orellana was working undercover in the area of 6th and Towne Streets in Los Angeles. She approached appellant and asked him in street vernacular if he was selling drugs. He directed her to Donald Robinson who was standing about five feet away. Orellana asked Robinson if he was “working� and Robinson asked her how much she wanted to buy. Orellana said she wanted to buy $10 worth. Robinson told her to stand next to appellant. Robinson walked to a nearby window ledge, picked up an off-white solid substance resembling cocaine base from the ledge and gave a piece of it to Orellana. Orellana handed appellant a prerecorded $10 bill. After the transaction, Orellana signaled other officers, who detained appellant and Robinson. Officer Randell Roberts searched appellant and found the prerecorded $10 bill. No drugs were found on either appellant or Robinson.
Robinson was charged and tried as a codefendant but is not a party to this appeal.
Richard Raffel, a criminalist for the City of Los Angeles, testified that he was the supervisor in the Narcotics Analysis Section. He reviewed test reports and case notes which had been prepared by David Purdy, another criminalist. Based on those reports and notes, he opined that the substance Purdy tested contained cocaine base. Raffel did not observe Purdy perform the tests and had no personal knowledge as to when he performed the tests.
Neither appellant nor Robinson called any defense witnesses.
DISCUSSION
I. The Criminalist’s Testimony
Appellant contends the introduction of Raffel’s testimony and Purdy’s test results violated his Sixth Amendment right to confrontation. However, during the prosecutor’s questioning of Raffel, appellant did not object on federal constitutional grounds. He objected on the ground that the prosecutor was asking leading questions. Robinson’s counsel objected on hearsay and foundational grounds and requested a sidebar conference. She argued that Raffel had not conducted any of the tests, thus his testimony was hearsay.
The court stated, “First of all, with regard to leading questions, you can ask leading questions of an expert. Second of all, with regard to the hearsay part of it, the expert can rely on hearsay. If the only thing he does is say that somebody else performed — formed the opinion that this was cocaine, then you might have a problem. But I suspect that what’s going to happen is that he’s going to testify about these tests and these documents that he’s familiar with and then he’s going to say; and therefore, I have an opinion as to whether or not it’s cocaine and, in fact, it is because of what was done. And that’s permissible. So the objection’s overruled.�
The prosecutor interjected, “Just for the record, . . . the guy who did the test, Purdy, is unavailable today. I’m relying on People versus Parker . . . that’s 8 C.A. 4th 110 which says that . . . courts can admit these kind of instrumental lab results under the official records exception.�
Appellant recognizes that a party forfeits a federal constitutional claim by failing to raise it below (see People v. Sapp (2003) 31 Cal.4th 240, 270), and concedes he did not expressly object that the admission of Raffel’s testimony and the test results violated his Sixth Amendment right to confrontation. However, he asserts the codefendant preserved the federal claim by objecting on hearsay and foundational grounds, arguing that the basis for the objection was the denial of the opportunity to cross-examine the witness who had performed the tests. Even if true, appellant did not join in the objection. Thus, he forfeited his constitutional claim. (People v. Mitcham (1992) 1 Cal.4th 1027, 1048.)
Appellant argues it would have been futile to join in the codefendant’s hearsay objection because the court found the official record exception to the hearsay rule applied. (Evid. Code, § 1280.) This is precisely why appellant forfeited his federal constitutional claim. The court applied traditional state rules relating to expert testimony when it overruled codefendant’s hearsay objection and was not apprised that appellant was asserting the proffered testimony violated his Sixth Amendment right to confrontation. His assertion that his failure to object is excused because People v. Geier (2007) 41 Cal.4th 555 postdated the trial is also without merit. His federal claim is based on Crawford, supra, 541 U.S. 36, a decision that was well known prior to trial.
In any event, appellant’s claim is not well taken. He concedes that in People v. Geier, supra, 41 Cal.4th 555 (Geier), our Supreme Court held that laboratory reports are not “testimonial,� as that term is defined in Crawford. The court held that an expert witness could properly rely on DNA test results obtained by another expert and render an opinion based on those results. That is what occurred in the present case. Raffel testified that based on his review of Purdy’s test data, he formed the opinion that the substance Purdy tested contained cocaine in the base form. Appellant contends that the Geier holding is erroneous. He also directs our attention to a decision from an intermediate appellate court in New York which held that the admission of a blood test report violated the confrontation clause. We are bound by our Supreme Court’s decision in Geier. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Appellant’s assertion that the prosecution failed to lay a proper foundation for the admission of hearsay testimony is unavailing. He contends the prosecution was required to establish that Purdy was unavailable to testify. The problem is neither appellant nor the codefendant challenged the prosecutor’s assertion at sidebar that Purdy was indeed unavailable. Appellant suggests it was the trial court’s obligation to require the prosecutor to prove his claim. Not so. Appellant was required to raise the issue in the trial court and his failure to do so constitutes a forfeiture of his contention on appeal. (People v. Sapp, supra, 31 Cal.4th at p. 270.)
II. The Jury Instructions
A. Aiding and Abetting
The trial judge instructed the jury with CALCRIM No. 400 and CALCRIM No. 401 as follows:
“A person may be guilty of a crime in two ways. One, he or she may have directly committed the crime. Two, he or she may have aided and abetted someone else who committed the crime. In these instructions, I will call the other person the ‘perpetrator.’ A person is equally guilty of the crime whether he or she committed it personally or aided and abetted the perpetrator who committed it. To prove the defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that 1. The perpetrator committed the crime; 2. The defendant knew the perpetrator intended to commit the crime; 3. Before or during the commission of the crime the defendant intended to aid and abet the perpetrator in committing the crime; and 4. The defendant’s words or conduct did, in fact, aid and abet the perpetrator’s commission of the crime. Someone who aids and abets a — someone aids and abets a crime if he or she knows of the perpetrator’s unlawful purpose and he specifically intends to and does, in fact, aid, facilitate, promote, encourage or instigate the perpetrator’s commission of that crime.�
Appellant contends that CALCRIM No. 400 unconstitutionally lowers the prosecution’s burden of proof by implying that the charged offense was committed by one of the defendants and incorrectly instructs the jury that aiders and abettors and perpetrators are equally guilty. He complains the latter defect possibly caused the jury to convict him on a “legally incorrect� theory. He also argues the instruction fails to define the acts necessary to find liability against a perpetrator of a crime as opposed to an aider and abettor. He asserts that CALCRIM No. 401 fails to clarify that an aider and abettor must not only knowingly act, but must do so with the intent to assist the perpetrator.
Appellant’s claim that the jury is virtually told that one of the defendants must have committed the charged crime ignores the language in CALCRIM No. 401 which informs the jury that the prosecution must prove “[t]he perpetrator committed the crime.� Contrary to appellant’s assertion, the instruction also tells the jury that the People must prove an aider and abettor knew the perpetrator intended to commit the crime, acted with the intent to aid the perpetrator, and did, in fact, aid the perpetrator in the commission of the crime. This is an accurate statement of the law on aiding and abetting. (See People v. Prettyman (1996) 14 Cal.4th 248, 259.)
As to appellant’s contention that CALCRIM No. 400 incorrectly states that aiders and abettors and perpetrators are equally guilty, we make two observations. One, the instruction accurately states the law. “[A]n aider and abettor ‘shares the guilt of the actual perpetrator.’� (People v. Mendoza (1998) 18 Cal.4th 1114, 1122, quoting People v. Prettyman, supra, 14 Cal.4th at p. 259.) Two, appellant does not explain how he was prejudiced by the instruction. He fails to define the “legally incorrect� theory upon which the jury possibly based its verdict. Appellant and the codefendant were accused of committing the identical crime of selling cocaine base. Whether the jury believed appellant was a perpetrator or an aider and abettor, he was a principal in the crime and equally shared guilt with the codefendant.
We discern no error.
B. Defense Evidence
The jury was also instructed with CALCRIM No. 300 that “Neither side is required to call all witnesses who may have information about the case or to produce all physical evidence that might be relevant.�
Appellant contends that this instruction improperly implies that the defendant was required to produce “some� defense evidence. We disagree.
People v. Anderson (2007) 152 Cal.App.4th 919, 937-938, and People v. Ibarra (2007) 156 Cal.App.4th 1174, 1189-1190, recently addressed this contention and found it to be meritless. In People v. Felix (2008) 160 Cal.App.4th 849, 858, we concurred with the reasoning of those cases. We adhere to that view.
III. Cumulative Error
Appellant contends that the cumulative effect of the instructional errors deprived him of due process. As we have rejected his individual claims of error, we reach the same conclusion with respect to the cumulative error claim. (People v. Cole (2004) 33 Cal.4th 1158, 1235-1236.)
IV. Pitchess Motion
Prior to trial, appellant’s counsel brought a Pitchess motion alleging that Officer Orellana had fabricated her observations. The court granted the motion and conducted an in camera hearing.
We have reviewed the sealed transcript of the April 30, 2007 hearing during which the court reviewed the personnel record of Officer Orellana. On the record, it discussed each of the complaints filed against the officer and ordered those records relevant to appellant’s claim of fabrication disclosed to the defense. We are satisfied that the court complied with its obligation to conduct a thorough review of the officer’s personnel record and that the defense received the discovery to which it was entitled.
During the in camera hearing, the custodian of records refers to the personnel file of Officer Jaclyn Oriana Diaz. We compared the serial number listed for Officer Orellana in counsel’s Pitchess motion with the serial number cited by the custodian of records for Officer Diaz and concluded that counsel and the custodian of records were referring to the same officer.
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P. J., WILLHITE, J.