Opinion
C041891.
7-18-2003
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL RAY SILVERS, Defendant and Appellant.
In case No. 97F234, defendant was convicted of possessing methamphetamine for sale. (Health & Saf. Code, § 11378.) He was granted probation for three years subject to certain conditions, including that he refrain from the use or possession of any illegal substances and that he submit to drug testing.
In case No. 98F064, defendant was convicted of possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and was found to have committed the crime while he was on bail (Pen. Code, § 12022.1). He was granted probation on the same relevant conditions as in case No. 97F234.
In case No. 00F155A, defendant was found guilty of being a convicted felon in possession of a firearm. (Pen. Code, § 12021, subd. (a)(1).) He was granted probation on the same relevant conditions as in case Nos. 97F234 and 98F064.
Thereafter, defendant was found to have violated probation in that on May 13, 2002, and June 28, 2002, he submitted urine samples containing methamphetamine and that on June 10, 13, and 27, 2002, he failed to submit to drug testing. He was sentenced state prison for an aggregate term of six years and four months.
On appeal, defendant contends the trial court erred in admitting, over his hearsay objection, evidence of a toxicologists report that defendants urine samples contained methamphetamine. We disagree and shall affirm the judgment.
DISCUSSION
Probation Officer Thomas Bradford directed defendant to be tested for drugs twice a week, on Mondays and Thursdays. On May 13, 2002, defendant provided a urine sample that was labeled by a probation assistant who then mailed it to the Redwood Toxicology Laboratory. On June 10, 13, and 27, 2002, defendant missed his drug testing appointments. On June 28, 2002, defendant provided a urine sample that Bradford labeled and mailed to the Redwood Toxicology Laboratory.
Bradford testified that he was aware of the toxicology results and had spoken with Wayne Ross, the chief toxicologist at the Redwood Toxicology Laboratory, who had "bachelors and masters degrees in sciences, specifically toxicology," had written several publications, had been a toxicologist for over 25 years, and was licensed by the State of California.
Bradford presented the court with Rosss written toxicology report regarding defendant, which Bradford had received in the mail. Over defense counsels objections, the court admitted the report into evidence, finding that the results, on Redwood Toxicology Laboratory letterhead, were reliable and reflected the date received by probation and defendants name.
Both exhibits reflect the following:
1. The letterhead states, "Redwood Toxicology Laboratory [P] Drug Detection Specialists," with its address in Santa Rosa, California.
2. The addressee is the Trinity County Probation Department at its address in Weaverville, California.
3. Defendants name is listed under identification.
4. "WR," presumably Wayne Ross who is listed as a principal at the laboratory, reviewed the final results. "WR" also certified "compliance with standard operating procedures."
5. Preprinted information appears on the reverse side, indicating the laboratory is certified and licensed by California and the federal Department of Health and Human Services, listing its license numbers. It includes the following topics: "THC Interpretation," "Drug Retention Times," and "Cut-Off Levels." Under the latter topic, it states that "the primary screening method utilizes enzyme immunoassay (EIA) on the Hitachi 717" and then proceeds to list the sensitivity of the tests for different substances. For amphetamines, the sensitivity of the test is listed as "1.0 mcg/ml."
With respect to Peoples Exhibit 1, the lab report reflects that the sample was collected by Bradford on June 28, 2002, was received by the lab on July 3, 2002, and was reported on July 4, 2002. Trinity County Probation Department stamped the lab report as received on July 8, 2002. The report reflects that the sample tested positive for "Amphetamines [P] Confirmed as methamphetamine and amphetamine by TLC."
With respect to Peoples Exhibit 2, the lab report reflects that the sample was collected on May 13, 2002, by J. Kunav, was received by the lab on May 16, 2002, and was reported on May 17, 2002. Trinity County Probation Department stamped the lab report as received on May 20, 2002. The report reflects that the sample tested positive for "Amphetamines [P] Confirmed as methamphetamine by TLC."
After the prosecution rested, the court stated that the toxicology reports were admissible under Evidence Code section 1280, the public record exception to the hearsay rule. The court also noted that the rules with respect to hearsay were relaxed in probation violation hearings.
Evidence Code section 1280 provides: "Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered in any civil or criminal proceeding to prove the act, condition, or event if all of the following applies: [P] (a) The writing was made by and within the scope of duty of a public employee. [P] (b) The writing was made at or near the time of the act, condition, or event. [P] (c) The sources of information and method and time of preparation were such as to indicate its trustworthiness."
Defendant contends the court erred in admitting the toxicology reports into evidence. He argues that the requirements of Evidence Code section 1280 were not met, and that there was no good cause to deny his right to confrontation since the toxicology reports were not sufficiently reliable. According to defendant, he was prejudiced by the ruling because there was no other evidence that his urine samples contained methamphetamine. Although the court also found that he violated probation by failing to submit to drug testing on three separate dates, defendant claims it is "unclear" whether that finding alone would have been "cause to sentence [him] to state prison," thus the "courts error in finding [defendant submitted] positive urine samples cannot be deemed harmless."
Relying on Evidence Code section 1271, the People assert that the toxicology reports of the Redwood Toxicology Laboratory are the type of business records carrying sufficient indicia of reliability to be trustworthy and admissible as an exception to the hearsay rule. The People further argue that hearsay evidence, such as affidavits, depositions and documentary evidence, may be admitted into evidence at an adult probation hearing without violating the right to confront and cross-examine the witness.
Evidence Code section 1271 provides: "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: [P] (a) The writing was made in the regular course of a business; [P] (b) The writing was made at or near the time of the act, condition, or event; [P] (c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and [P] (d) The sources of information and method and time of preparation were such as to indicate its trustworthiness."
No one from the laboratory provided foundational requirements for admission of the toxicology reports under either the business or official records exception. (See People v. Beeler (1995) 9 Cal.4th 953, 978-980, 891 P.2d 153; People v. Maki (1985) 39 Cal.3d 707, 710-711, 217 Cal. Rptr. 676, 704 P.2d 743.)
However, documentary hearsay evidence that does not meet the requirements of a hearsay rule exception may be admitted into evidence at the probation revocation hearing provided there are sufficient indicia of reliability with respect to the documentary material. (People v. Maki, supra, 39 Cal.3d at pp. 709, 714-715; see also Gagnon v. Scarpelli (1973) 411 U.S. 778, 782, fn. 5 [36 L. Ed. 2d 656, 662, 93 S. Ct. 1756]; Morrissey v. Brewer (1972) 408 U.S. 471, 486-489 [33 L. Ed. 2d 484, 497-499, 92 S. Ct. 2593]; People v. Arreola (1994) 7 Cal.4th 1144, 1152-1153, 875 P.2d 736.)
Such was the case here. (Cf. People v. Parker (1992) 8 Cal.App.4th 110, 117 [no abuse of discretion to admit laboratory report into evidence when there was sufficient evidence that the report was reliable, i.e., testimony detailing the tests and procedures used at the laboratory and the fact the criminalist followed the normal procedures]; People v. Brown (1989) 215 Cal. App. 3d 452, 455, 263 Cal. Rptr. 391 [no abuse to admit chemists tests where there was "no reason to believe the test results were anything but trustworthy and reliable as it is the regular business of the police laboratory to conduct such tests" and because the results were corroborated by other evidence]; see People v. Arreola, supra, 7 Cal.4th at p. 1153 [the process for parole revocation hearings " should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial"].)
Despite Bradfords testimony that Ross had "bachelors and masters degrees in sciences, specifically toxicology," had written several publications, had been a toxicologist for over 25 years, was licensed by the State of California, and was the chief toxicologist at the Redwood Toxicology Laboratory, defendant complains that there was "no testimony as to Rosss qualifications as an expert in the field of methamphetamine analysis or as to the Redwood crime laboratorys hiring practices and requirements." (Emphasis added.) But Rosss expertise to be hired as the chief toxicologist and to present an expert opinion on methamphetamine analysis can be inferred from the other evidence of his qualifications.
Defendant also complains that there was "no testimony as to what tests Ross conducted or the methodology he employed in analyzing the substance." However, the information on the back of the test results gives rise to a reasonable inference that appropriate tests and methodology were used.
Nor is there any merit in defendants argument that the report should not have been admitted because there was no finding of good cause why Ross himself could not appear and be cross-examined. Decisional law contains no such requirement. (See United States v. Bell (8th Cir. 1986) 785 F.2d 640, 643.)
Lastly, defendant notes that Rosss report was not corroborated by other evidence which would tend to show his conclusions were reliable. Certainly, such evidence would bolster a finding of trustworthiness. (People v. Brown, supra, 215 Cal. App. 3d at p. 455.) However, nothing in controlling authority says that corroboration is necessary in order to find a laboratory report is sufficiently reliable for purposes of a probation revocation hearing.
Just as the Court of Appeal held in People v. Brown, supra, 215 Cal. App. 3d at 452, we conclude Rosss toxicology report was sufficiently reliable to be admitted into evidence for purposes of defendants probation revocation hearing since there was "no reason to believe the test results were anything but trustworthy and reliable as it is the regular business of the . . . laboratory to conduct such tests." (Id. at p. 455; see also United States v. Bell, supra, 785 F.2d at p. 643 ["urinalysis laboratory reports bear substantial indicia of reliability. . . . They are the regular reports of a company whose business it is to conduct such tests, and which expects its clients to act on the basis of its reports. . . . We conclude that under these circumstances there was good cause to permit the government to avoid the difficulty and expense of bringing the chemist or chemists . . . to testify. In our experience, that sort of formal testimony rarely leads to any admissions helpful to the party challenging the evidence. (Fn. & citation omitted)"].)
In any event, it is readily apparent that defendant was not prejudiced by the reports that showed he tested positive for methamphetamine. (See People v. Arreola, supra, 7 Cal.4th at p. 1161.) This is so because he violated probation on three other occasions for failing to submit to drug testing, as required by his probation conditions. For four-and-a-half years, the 30-year-old defendant was given numerous opportunities on probation and failed each time. Indeed, the evidence showed that he violated conditions of his probation about 10 times, committed felony offenses twice while on probation, twice was found with weapons, and failed drug court for which he was not qualified in the first place. Under the circumstances, we have no doubt that the trial court would have imposed a prison sentence absent the toxicology results. As the trial court stated, "On the most recent case, 00F155(A), [defendant] was on two grants of probation and had been regranted probation a number of times. I think [the prosecutor] is correct that was a close call to grant him probation there in the first place."
DISPOSITION
The judgment is affirmed.
We concur: DAVIS, J., and ROBIE, J.