Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from judgments of the Superior Court of San Diego County, Alvin E. Green, Jr., Judge No. SCS197060.
HALLER, J.
Dylan Moline and Paula Newlin appeal from judgments convicting them of possession of methamphetamine for sale. Moline contends the trial court erroneously allowed the jury to consider evidence acquired in violation of his Miranda rights. We agree, but conclude the error was harmless beyond a reasonable doubt. Newlin contends her Crawford confrontation rights were violated when the trial court admitted evidence of laboratory test results. Based on the California Supreme Court's recent decision in People v. Geier (2007) 41 Cal.4th 555 (Geier), her contention fails. Accordingly, we affirm the judgments of guilt for both appellants.
Miranda v. Arizona (1966) 384 U.S. 436.
Crawford v. Washington (2004) 541 U.S. 36 (Crawford).
As to sentencing, the People concede that a one-year sentence enhancement imposed under Penal Code section 667.5, subdivision (b) was erroneously added to Newlin's sentence. Accordingly, we modify Newlin's judgment to correct this error.
Subsequent statutory references are to the Penal Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
On September 30, 2005, the police executed a search warrant authorizing a search of an Imperial Beach residence and of Moline's brother (Rory) for methamphetamine and related items. At the time of the search there were five adults and three children at the residence. Moline and Newlin were in a southwest bedroom; Rory and a woman named Shelly Walker were in the garage; and Moline's mother and teenage daughter were in the dining room area.
Upon entering the residence, Officer William Kilby and a S.W.A.T. officer went to the southwest bedroom where they encountered Moline and Newlin. Moline was standing near the door as if walking towards the door and Newlin was standing further inside the room. With guns drawn, the police instructed them to "get down." When
Moline and Newlin did not immediately comply, the police pulled them to the floor and handcuffed them. Officer Kilby then had Moline stand up, searched his person, queried him about weapon possession, and retrieved a small folding pocket knife from his person.
Meanwhile, Officer David Highsmith detained Rory and Walker in the garage. Rory told Officer Highsmith that he lived in the garage. The police found an identification card with Rory's name on it in a briefcase underneath the bed in the garage. When searching Rory, the police found a plastic canister in his pocket containing a small baggie of methamphetamine. Under his bed, the police found a weighing scale and a bag containing heroin and syringes. The police found two baggies of methamphetamine in Walker's purse.
All the persons at the residence were taken into the living room. While in the living room Officer Roxie Vigil conducted a pat-down search of Newlin, and then with Newlin's consent stepped outside to remove two baggies of methamphetamine that were in Newlin's brassiere. After being informed of the drugs found on Newlin, Officer Highsmith read the search warrant to the persons assembled in the living room, and then questioned Moline. At this time Moline was still in handcuffs. Officer Highsmith told Moline that his brother Rory had been arrested and that Rory had showed the police his "hidden stash." Officer Highsmith asked Moline "if there [were] drugs in his room, [and] if he wanted to show [the police] before [they] started to tear his house up." Moline stood up and walked from the living room to the southwest bedroom where Officer Kilby was conducting a search. Moline pointed with his foot to a large quantity of methamphetamine in three bags on the floor of the bedroom. Officer Kilby had not seen these bags because he had not yet reached that portion of the room during his search. Officer Highsmith asked Moline if there was anything else in the room, and Moline responded that he did not think so. Officer Highsmith then arrested Moline and brought him back to the living room.
It appears that all of the adults, as well as the oldest teenager, were handcuffed. There is no indication in the record that the officers still had their guns drawn when Moline was questioned.
There were over 211 grams of methamphetamine in the bags, which equaled about 4,220 dosages.
After Moline disclosed the methamphetamine bags on the floor, the police continued the search of the southwest bedroom. The police found a methamphetamine pipe on the bed, five small baggies of methamphetamine in a film canister hidden between the mattress and box spring, and a jar containing what appeared to be a cutting agent for methamphetamine on top of a cabinet. There was a twin bed in the room and a lot of other furniture such as dressers, nightstands, and shelves. The room was messy with a lot of clutter. There were "piles and piles of clothes" on the floor and a lot of "trinkets [and] electrical gear, kind of like nothing[ ] [was] ever thrown away." The clothing was mostly male clothing, including jeans, shirts, and shorts. Some of the clothing appeared to be adult size whereas other items appeared to be for a preteen or younger person. There was no identification on the clothing.
When searching the residence, the police found a letter from the County of San Diego Department of Child Support addressed to Moline at the Imperial Beach residence. The letter was found on a desk in the dining room area.
Officer Kilby opined that the bags of methamphetamine on the floor of the southwest bedroom were possessed for sale because there was such a large quantity of methamphetamine. He also opined the five baggies of methamphetamine in the film canister were possessed for sale because the drugs were individually packaged and it was not common for a methamphetamine user to have five baggies at one time. Officers Vigil and Highsmith opined the methamphetamine found in Newlin's brassiere was consistent with possession for sale because the amount of the drug was too large for typical personal use (amounting to about 103 dosages), and Newlin's physical appearance did not coincide with the appearance of a heavy personal user.
The jury found both Moline and Newlin guilty of possession of methamphetamine for sale, and additionally found Moline guilty of possession of narcotics paraphernalia. The jury found Moline guilty based on the methamphetamine on the floor and found Newlin guilty based on the methamphetamine in her brassiere. The jury made no finding regarding the methamphetamine under the mattress.
For Moline, the jury was provided two special verdict forms, one referring to the methamphetamine on the floor and the other to the methamphetamine in the bed; the latter form was not used. For Newlin, the jury was also provided two verdict forms, one referencing the methamphetamine in her brassiere and the other the methamphetamine on the floor; the jury did not use the latter form.
DISCUSSION
I. Moline's Miranda Challenge to Admission of His Disclosure of the Methamphetamine
After Officer Highsmith testified at trial regarding Moline's disclosure of the methamphetamine on the floor in the bedroom, Moline requested that the jury be instructed not to consider this evidence because it was obtained from a custodial interrogation without Miranda warnings. The trial court denied his request, concluding that he was not in custody at the time of the interrogation. In support of its ruling, the trial court found he was handcuffed for officer safety and there was no probable cause to arrest him at the time of the interrogation. Moline argues the trial court erred in finding his Miranda rights were not violated and allowing the jury to consider the evidence of his disclosure of the methamphetamine.
Prior to its ruling, the court noted that Moline's Miranda challenge should have been raised before trial, but concluded that the issue was not waived because it involved a constitutional issue. On appeal, the People do not argue the issue is waived.
To assist with its evaluation of the custody issue, the trial court held an Evidence Code section 402 hearing to determine whether prior to the interrogation Officer Highsmith knew about the drugs on the bedroom floor based on a communication from Officer Kilby that he had seen them in plain view. After the hearing, the trial court found that neither Officer Kilby nor Officer Highsmith knew about the drugs in the bedroom before the interrogation.
A. Relevant Legal Principles
When a person is subjected to a custodial interrogation by the police, the person's statements are inadmissible to prove guilt if the police failed to give Miranda advisements prior to the questioning. (People v. Aguilera (1996) 51 Cal.App.4th 1151, 1161.) The Miranda warnings are designed to protect individuals from compelled self-incrimination. (See People v. Bradford (1997) 14 Cal.4th 1005, 1033.) To trigger the Miranda rule, two requirements must be met: (1) the person must be in custody, and (2) the questioning must constitute interrogation. (People v. Whitfield (1996) 46 Cal.App.4th 947, 953.)
Custody means any situation in which there is a formal arrest or a restraint on freedom of movement to a degree associated with a formal arrest. (People v. Stansbury (1995) 9 Cal.4th 824, 830; People v. Aguilera, supra, 51 Cal.App.4th at p. 1161.) Interrogation means any words or actions that the police should know are reasonably likely to elicit an incriminating response. (Ibid.) The burden is on the prosecution to show no custodial interrogation took place. (People v. Stansbury, supra, 9 Cal.4th at p. 831; People v. Whitfield, supra, 46 Cal.App.4th at p. 953.)
Moline argues that the officer's inquiry whether there were drugs in his room constituted interrogation because an officer would know it was likely to elicit an incriminating response. Although generally arguing that Moline was properly detained and subjected to on-the-scene questioning, the Attorney General does not directly refute Moline's assertion that the question was designed to elicit an incriminatory statement. We agree with Moline the questioning was interrogative; clearly it was designed to cause him to disclose drugs in his room.
Thus, the key issue in this case is whether Moline was in custody at the time of the interrogation. To evaluate this issue, we set forth the legal principles governing the custody determination, with particular attention to cases involving interrogation during execution of a search warrant and the use of handcuffs during the interrogation.
The test for determining custodial status is whether a reasonable person in the same position would believe he or she has been subjected to restraints comparable to those associated with a formal arrest. (People v. Stansbury, supra, 9 Cal.4th at p. 830; People v. Aguilera, supra, 51 Cal.App.4th at p. 1161.) Once custody exists, it is presumed to create coercive pressures to speak which must be dispelled by giving Miranda warnings prior to interrogation. (See U.S. v. Newton (2d Cir. 2004) 369 F.3d 659, 670; U.S. v. Booth (9th Cir. 1981) 669 F.2d 1231, 1237.) In reviewing a trial court's ruling on custodial status, we apply a deferential substantial evidence standard to the trial court's factual findings, and independently review whether the interrogation was custodial. (People v. Pilster (2006) 138 Cal.App.4th 1395, 1403.) In making this determination, "[n]o one factor is dispositive. Rather, we look at the interplay and combined effect of all the circumstances to determine whether on balance [the police] created a coercive atmosphere such that a reasonable person would have experienced a restraint tantamount to an arrest." (People v. Aguilera, supra, 51 Cal.App.4th at p. 1162.)
When the police restrict a person's movement in the context of a lawful detention, the restraint associated with the detention does not in and of itself create custodial status. (See U.S. v. Burns (7th Cir. 1994) 37 F.3d 276, 281; State v. Young (Idaho Ct.App. 2002) 39 P.3d 651, 659.) While executing a search warrant on a residence, the police have a limited right to detain the occupants of the premises to prevent flight, minimize the risk of harm to the officers, and facilitate orderly completion of the search. (Michigan v. Summers (1981) 452 U.S. 692, 701-703, 705; U.S. v. Calloway (D.D.C. 2003) 298 F.Supp.2d 39, 48; State v. Young, supra, 39 P.3d at p. 658.) When concluding that a limited detention was permissible during execution of a search warrant, the United States Supreme Court reasoned that this type of detention "is not likely to be exploited by the officer or unduly prolonged in order to gain more information, because the information the officers seek normally will be obtained through the search and not through the detention." (Michigan v. Summers, supra, 452 U.S. at p. 701.) Thus, although a person detained during execution of a search warrant is not free to leave, the person is not in custody for Miranda purposes unless the circumstances otherwise show the detention has risen to a level associated with a formal arrest. (See U.S. v. Burns, supra, 37 F.3d at p. 281; U.S. v. Newton, supra, 369 F.3d at p. 672; State v. Young, supra, 39 P.3d at pp. 658-659.)
However, a finding that the police used reasonable restraints on a person during execution of a search warrant does not determine whether Miranda advisements were required prior to interrogation. " '[T]he use of handcuffs, the placing of suspects in police cruisers, the drawing of weapons and other measures of force . . . may . . . be permissible for Fourth Amendment [detention] purposes, while at the same time creating a "custodial situation" under Miranda.' " (U.S. v. Calloway, supra, 298 F.Supp.2d at p. 48.) For Fourth Amendment detention issues, the courts look to the reasonableness of the officer's actions to determine whether the restraints exceeded the scope of the detention and transformed it into a de facto arrest. (People v. Pilster, supra, 138 Cal.App.4th at pp. 1405-1406.) In contrast, for Fifth Amendment Miranda issues, the courts do not examine the reasonableness of the officer's conduct, but instead examine " 'whether a reasonable person would have understood his situation was comparable to a formal arrest.' " (Id. at p. 1406.) Regardless of the reasonableness of the restraints during the detention, if the detention is imbued with the indicia of a formal arrest a custodial situation has been created. As explained in U.S. v. Purdue (10th Cir. 1993) 8 F.3d 1455, 1465: "Police officers must make a choice—if they are going to take highly intrusive steps to protect themselves from danger [during a detention], they must similarly provide protection to suspects by advising them of their constitutional rights."
When evaluating whether a person detained during the execution of a search warrant should have been Mirandized, the courts have frequently found that police use of handcuffs during the interrogation created, or contributed to the creation of, a custodial situation. (See, e.g., U.S. v. Freeman (D.Del. 2004) 325 F.Supp.2d 463, 468-469 [defendant was in custody when police handcuffed him, isolated him during questioning, and threatened to arrest him and his wife if he did not answer question]; United States v. May (D.Minn. 2006) 440 F.Supp.2d 1016, 1028-1029 [although police did not use strong arm tactics, use of handcuffs was "hallmark of a formal arrest"]; see also U.S. v. Newton, supra, 369 F.3d at pp. 675-677 [even though parolee searched in his home was told he was not under arrest and that handcuffs were employed for safety reasons, handcuffs created arrest-like restraints]; People v. Pilster, supra, 138 Cal.App.4th at pp. 1404-1405[investigative detention rose to level of custody when defendant was handcuffed with no statements by police mitigating the arrest-like action].)
In contrast, the courts have regularly cited the absence of handcuffs as indicative of a noncustodial environment that did not trigger the need for Miranda warnings during an interrogation conducted while executing a search warrant. (See, e.g., State v. Young, supra, 39 P.3d at pp. 660-661 [police controlled defendant's movements but did not use handcuffs, draw weapons, or use force or threats of force]; U.S. v. Burns, supra, 37 F.3d at pp. 278, 281 [police required defendant to stay in room but did not use handcuffs or other physical restraint or brandish weapons]; U.S. v. Ritchie (10th Cir. 1994) 35 F.3d 1477, 1479, 1485 [police prevented defendant from leaving in his vehicle but did not use handcuffs, guns, or force].)
By the same token, the courts have not established a hard and fast rule that handcuff use during a lawful detention automatically translates into a custodial situation for Miranda purposes. (See U.S. v. Calloway, supra, 298 F.Supp.2d at p. 49; U.S. v. Booth, supra, 669 F.2d at p. 1236; People v. Pilster, supra, 138 Cal.App.4th at p. 1404.) The courts recognize that notwithstanding handcuff use, there may be other circumstances that obviate an arrest-type environment. "[N]o one factor is controlling, and courts must consider all the circumstances surrounding the encounter. [Citation.] For example, brief handcuffing of a detainee would be less like a formal arrest if the interviewing officer informed the detainee the handcuffs were temporary and solely for safety purposes, officers considered the detainee only a witness in the investigation and advised the detainee he or she could decline to answer their questions." (People v. Pilster, supra, 138 Cal.App.4th at p. 1404.)
B. Analysis
1. Miranda Violation
Here, at the time he was questioned about the presence of drugs, Moline was handcuffed. Although the use of handcuffs may have been reasonable in relation to the execution of the search warrant, it created a strong indicia of an arrest-like restraint. The high level of restraint associated with the handcuffs was not mitigated by any statements advising Moline that he was not under arrest and that he did not have to answer the officer's questions. To the contrary, the manner in which the officer questioned Moline heightened the arrest-like environment by impliedly accusing Moline of drug possession. The officer told Moline that his brother had already been arrested and revealed his "hidden stash" of drugs, and asked Moline if there were drugs in his (Moline's) room and if he wanted to disclose them. The clear import of the officer's question was that he suspected Moline had drugs in the southwest bedroom and, like his brother, he would be formally arrested once they were found. Questions that expressly or impliedly accuse the detainee of a crime contribute to the creation of a custodial situation. (See People v. Bellomo (1992) 10 Cal.App.4th 195, 199; State v. Ketchum (Hawaii 2001) 34 P.3d 1006, 1022-1023; compare U.S. v. Calloway, supra, 298 F.Supp.2d at p. 49 [police question that did not specifically focus on defendant's possessions or conduct did not create arrest-like environment].) Viewing the circumstances in their totality, including the use of handcuffs, the failure to lessen the impact of the handcuffs through mitigating-type statements, and the accusatory nature of the police question, we conclude a reasonable person in Moline's position would believe he was restrained in a fashion tantamount to an arrest.
In making its determination that Moline was not in custody, the trial court relied on a finding that the police did not yet have probable cause to arrest Moline. Although a defendant's awareness that there was no probable cause to make an arrest may be a relevant factor to consider when evaluating how a reasonable person would have viewed the situation (see State v. Ketchum, supra, 34 P.3d at p. 1022), standing alone it is not determinative of custody status. The totality of the circumstances must be examined to determine if a reasonable person in the defendant's position would believe he or she was restricted in a manner akin to an arrest. The circumstances here show this restriction. Accordingly, the trial court erred in denying Moline's request to instruct the jury not to consider the evidence of his disclosure of the methamphetamine on the floor of the southwest bedroom.
Regardless of what facts were known to the police officers, the probable cause factor would only be relevant to the extent the defendant knew about the facts pertaining to probable cause so as to reasonably affect his or her perception of the situation. (See People v. Stansbury, supra, 9 Cal.4th at p. 830; People v. Bellomo, supra, 10 Cal.App.4th at p. 200.)
2. No Prejudice
The admission of incriminatory evidence in violation of the Miranda rule requires reversal unless the error was harmless beyond a reasonable doubt. (People v. Johnson (1993) 6 Cal.4th 1, 32-33, disapproved on other grounds in People v. Rogers (2006) 39 Cal.4th 826, 879; People v. Aguilera, supra, 51 Cal.App.4th at p. 1166.) Under this standard, the People must prove beyond a reasonable doubt that the error did not contribute to the verdict. (People v. Neal (2003) 31 Cal.4th 63, 86; People v. Lewis (2006) 139 Cal.App.4th 874, 887.) " 'To say that an error did not contribute to the ensuing verdict is . . . to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.' [Citation.] Thus, the focus is what the jury actually decided and whether the error might have tainted its decision.' " (People v. Neal, supra, 31 Cal.4th at p. 86.) Significant in this regard is whether the evidence is " ' "of such compelling force as to show beyond a reasonable doubt" that the [error] "must have made no difference in reaching the verdict obtained." ' " (People v. Maurer (1995) 32 Cal.App.4th 1121, 1129.)
The record shows that apart from Moline's response to the police questioning, the prosecution presented compelling evidence that Moline had dominion and control over the methamphetamine found on the floor in the southwest bedroom. The police found correspondence mailed to Moline at the Imperial Beach residence, which (in addition to Moline's presence at the residence) showed that Moline lived there. When the police arrived, Moline was in the southwest bedroom, where there was methamphetamine on the floor and a methamphetamine pipe on the bed. These items were not hidden but were located in open areas so that an occupant of the room would easily be aware of them. Further, Moline was in the company of a visitor, Newlin, who had methamphetamine in her brassiere. The fact that a visitor in a room containing a large quantity of methamphetamine had methamphetamine secreted on her person strongly pointed to a scenario of drug-related transactions occurring in the room. The evidence also indicated that the southwest bedroom was Moline's room. Rory identified the garage as his bedroom, which was corroborated by an identification card with Rory's name on it found in a briefcase under the bed in the garage. Apart from the southwest bedroom, there was only one other bedroom in the home. The police observed that the second, larger bedroom was filled with children's items, which indicated that all or some of the three children at the residence (a boy age 11, and girls age 15 and 16) used this second bedroom. The only remaining bedroom for Moline to occupy was the southwest bedroom, and the presence of male clothing in that room was consistent with his use of the room.
As the jury was instructed, possession is established if a person has control or the right to control the item. (People v. Austin (1994) 23 Cal.App.4th 1596, 1608-1609, disapproved on other grounds in People v. Palmer (2001) 24 Cal.4th 856, 861, 867; 2 Judicial Counsel of Cal. Crim. Jury Instns. (2007-2008) CALCRIM No. 2302.) Once the jury found Moline had dominion and control over the drugs on the floor, the intent to sell them was readily inferable from the extremely large quantity of the drugs.
The evidence showed that Newlin lived several blocks from Moline's residence.
Viewing the evidence in its totality, including Moline's presence in a room (likely his bedroom) containing openly displayed methamphetamine and methamphetamine paraphernalia and in the presence of a visitor with methamphetamine hidden on her person, Moline's dominion and control over the drugs on the floor was established with compelling force apart from his disclosure of these drugs. Under these circumstances, the erroneous admission of Moline's disclosure of the methamphetamine did not affect the verdict, thus rendering the error harmless beyond a reasonable doubt.
II. Newlin's Crawford Challenge to Admission of Laboratory Test Results
At trial, Newlin argued that admission of an analyst's testimony regarding laboratory test results establishing that the substance in her brassiere was methamphetamine violated her Crawford confrontation rights because the analyst who actually conducted the tests did not testify at trial. The trial court rejected her arguments and found no Crawford violation. Newlin asserts this ruling was in error.
Criminalist Janine Miller tested the methamphetamine found on Newlin, but did not testify at trial. Instead, Patricia Hess (the criminalist who tested the other methamphetamine found during the search) testified regarding Miller's laboratory report. Hess stated that she conducted a peer review of the results in Miller's laboratory report and agreed with Miller's conclusion that the substance was methamphetamine. Hess explained that laboratory reports are prepared by the analyst as he or she is performing the tests, and then are peer reviewed by a second analyst to verify the conclusions in the reports. The peer-review analyst does not repeat the testing, but reviews the notes reflecting the tests, the reactions to the tests, and the conclusions to confirm that proper tests were performed and that the test results support the conclusions.
Hess explained that there are two levels of testing: first, a preliminary test consisting of color and crystals tests, and second, a "court analysis" test which confirms the testing with a gas chromatograph or other instrument. Hess reviewed Miller's preliminary report depicting the color and crystals tests, and another analyst reviewed Miller's court analysis test.
The People argue that Newlin forfeited her right to assert a Crawford challenge on appeal because she did not raise the issue in a timely fashion. However, Newlin did raise the issue during trial, albeit after Hess had completed her testimony rather than during her testimony. Generally, a party must object to evidence at the earliest opportunity to preserve the issue for appellate review. (See People v. Demetrulias (2006) 39 Cal.4th 1, 21-22; 3 Witkin, Cal. Evidence (4th ed. 2000) Presentation at Trial, § 372, p. 461.) Assuming Newlin should have raised her Crawford challenge sooner, we exercise our discretion to consider the matter because it raises an important constitutional issue and her objection was presented in time for any error to be corrected at trial. (See People v. Stowell (2003) 31 Cal.4th 1107, 1114; People v. Blanco (1992) 10 Cal.App.4th 1167, 1172-1173; People v. Johnson (2006) 139 Cal.App.4th 1135, 1146-1147, fn. 11.)
Turning to the merits, Newlin does not dispute that there is no hearsay barrier to admission of the laboratory test results because the laboratory report is a business record. However, she argues the statements in the report were testimonial statements subject to the Crawford rule. Under Crawford, admission of a testimonial hearsay statement by a declarant who does not appear for cross-examination at trial violates the confrontation clause unless the defendant had a prior opportunity to cross-examine the witness and the witness is unavailable to testify at trial. (Crawford, supra, 541 U.S. at pp. 59 & fn. 9, 68.) This rule applies even if the hearsay statement is otherwise admissible under a hearsay exception. (Id. at pp. 50-51, 55-56.) However, the confrontation clause does not bar admission of hearsay statements that are not testimonial. (Id. at p. 59, fn. 9; Davis v. Washington (2006) 547 U.S. 813 [126 S.Ct. 2266, 2274].)
The issue as to whether laboratory reports are testimonial statements subject to the Crawford rule was recently addressed by the California Supreme Court in Geier, supra, 41 Cal.4th 555. In Geier, the court concluded that a laboratory report depicting DNA test results did not constitute a testimonial statement for purposes of the Crawford rule. (Id. at pp. 596, 607.) After reviewing United States Supreme Court precedent and court decisions in other jurisdictions, the Geier court formulated the following test for testimonial statements: "[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." (Id. at p. 605.)
The Geier court found the DNA report satisfied the first and third criteria because it was requested by a police agency and it could reasonably be anticipated that it would be used at the criminal trial. (Geier, supra, 41 Cal.4th at p. 605.) However, the report did not meet the second criteria because the analyst's observations "constitute[d] a contemporaneous recordation of observable events rather than the documentation of past events." (Ibid., italics added.) Geier concluded that—akin to a 911 caller who the United States Supreme Court found was not making a testimonial statement—a laboratory analyst recording test data " 'during a routine, non-adversarial process meant to ensure accurate analysis' " was not " 'bear[ing] witness' " against the defendant within the meaning of the Crawford rule. (Id. at pp. 605-607, citing Davis v. Washington, supra, 126 S.Ct. 2266.)
Geier's analysis and holding applies to Miller's laboratory report. The statements in the report—which were recorded as Miller performed the laboratory tests on the substance seized from Newlin—constituted a contemporaneous recordation of observable events rather than a documentation of past events. There was no Crawford violation.
III. Erroneous One-Year Sentence Enhancement Imposed on Newlin
The trial court imposed a one-year prior prison term enhancement on Newlin's sentence under section 667.5, subdivision (b). This enhancement does not apply if the defendant remained free from prison custody and the commission of another felony for five years after release from prison. (§ 667.5, subds. (b), (d).) The record shows that Newlin was released from prison on June 1, 1999, and the current offense was committed on September 30, 2005. Thus, the current offense was committed more than five years after Newlin's release from custody. Further, the record does not show Newlin was convicted of a felony or placed in prison during the five-year period. The People concede the one-year enhancement was erroneously imposed and that the judgment should be modified to remove the enhancement.
DISPOSITION
The judgment pertaining to Moline is affirmed. The judgment pertaining to Newlin is modified to remove the one-year prior prison term enhancement (§ 667.5, subd. (b)), and as so modified is affirmed. The superior court is instructed to correct the abstract of judgment and to transmit a copy of the amended abstract to the Department of Corrections.
WE CONCUR: HUFFMAN, Acting P. J., McDONALD, J.