Opinion
NOT TO BE PUBLISHED
Appeals from a judgment of the Superior Court of Los Angeles County No. BA303565, Craig E. Veals, Judge.
Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant Ever Anthony Vasquez.
Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and Appellant Juan Carlos Valiente.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and E. Carlos Dominguez, Deputy Attorneys General, for Plaintiff and Respondent.
SUZUKAWA, J.
A jury convicted defendants and appellants Ever Anthony Vasquez and Juan Carlos Valiente of kidnapping for robbery and numerous sex offenses. The sole issue on appeal concerns the alleged violation of defendants’ Sixth Amendment right to confrontation. (Crawford v. Washington (2004) 541 U.S. 36 (Crawford); Melendez-Diaz v. Massachusetts (2009) 557 U.S. ___ [129 S.Ct. 2527] (Melendez-Diaz).) Finding no prejudicial error, we affirm.
Defendants were convicted on the following eight counts: (1 & 2) kidnapping to commit robbery (Pen. Code, § 209, subd. (b)(1)) (all further undesignated statutory references are to the Penal Code); (3) sodomy by use of force (§ 286, subd. (c)(2)); (4) forcible rape (§ 261, subd. (a)(2)); (5) forcible oral copulation (§ 288a, subd. (c)(2)); (6) sodomy by acting in concert with force (§ 286, subd. (d)); (7) forcible rape while acting in concert (§ 264.1); and (8) oral copulation by acting in concert with force (§ 288a, subd. (d)).
BACKGROUND
On December 19, 1996, two men with a knife kidnapped and raped J.K. in her car, and forced her to withdraw money from an ATM machine. About 10 years later, the police identified defendants Vasquez and Valiente as suspects through DNA and fingerprint evidence.
J.K. testified fully at trial as to each of the crimes committed on the night in question, but was unable to identify either defendant as the perpetrator. Accordingly, the prosecution relied on DNA and fingerprint evidence to identify both defendants.
J.K. testified at trial as follows. On December 19, 1996, two unknown men with a knife forcibly kidnapped her in her car and made her drive to two banks to withdraw the maximum amount of cash from an ATM machine. The men ordered J.K. to drive to a parking lot where they took turns raping and assaulting her in her car. The men made J.K. drive to another location where one of them briefly left the car to get some beer, which he ordered her to drink. The men then had J.K. drive to a park, where she managed to escape and ask a passerby for help. The men, neither of whom could operate the car’s manual transmission, fled on foot before the police arrived.
The prosecution presented DNA evidence through the live testimony of percipient witnesses. J.K. testified that during her sexual assault examination at the hospital immediately after the crimes, the examining nurse (the hospital’s designated Sexual Assault Response Team (SART) nurse) had collected vaginal samples. Defendants stipulated that the vaginal samples were stored by the Los Angeles Police Department (LAPD) until they were tested “by LAPD criminalist Nick Sanchez.” Sanchez testified that according to the results of his forensic analysis: (1) the vaginal samples contained a “mixture” of DNA from “at least two individuals”; (2) the group of possible contributors consists of about one in 10 million individuals within the general population; and (3) neither defendant could be excluded from the group of possible contributors.
The prosecution also presented fingerprint evidence through the live testimony of percipient witnesses. Tevin Silapie, the LAPD forensic print specialist who had examined the crime scene (J.K.’s car), testified that he had collected a total of 11 prints from the car and items in the car. Efren Caparas, the LAPD forensic print specialist who had analyzed the prints collected by Silapie, testified that Valiente’s fingerprints matched those found on four items in the car (two beer cans, a cigarette carton, and a cassette tape), and that Vasquez’s palm print matched a print found on the car door. Caparas further testified that of the six remaining prints, three belonged to J.K. and three could not be identified.
The present controversy on appeal concerns the admissibility of statements contained in the written report of J.K.’s sexual assault examination (the SART report). The SART report was prepared by the examining SART nurse, Bernadette Wong, who did not testify at trial. When the prosecution sought to elicit expert testimony from Jean Stephenson, Wong’s supervisor and the hospital’s SART director, regarding portions of the SART report (the report was not introduced into evidence), the defense objected that the admission of Stephenson’s testimony concerning Wong’s testimonial and hearsay statements would violate their right of confrontation under Crawford. The trial court overruled their objections and permitted Stephenson to testify about the SART report on the theory that the report constituted a business record under Evidence Code section 1271 and did not contain testimonial statements under Crawford.
This evidentiary ruling was based on Stephenson’s testimony that according to her knowledge, training, experience, and review of the disputed SART report, Wong had conducted the examination according to standardized SART procedures and had prepared a SART report that was trustworthy.
Accordingly, Stephenson testified that, based on the SART report, Wong had observed injuries or tears on J.K.’s vagina. Based on this factual observation, Stephenson offered her expert opinion that vaginal tears can be caused by blunt force trauma during either consensual or nonconsensual sex. Stephenson explained that “[t]here are lots of reasons why that would happen or could happen. It could be position, it could be lack of lubrication, it could be resistance, it could be age of the people having sex, it could be lots of things. It basically means that when the penis enters the vault, it injured it. Period. [¶] Q. And that could happen with consensual sex? [¶] A. Yes.”
DISCUSSION
Defendants contend that because Wong did not testify at trial and was not available for prior cross-examination, their Sixth Amendment right of confrontation was violated by the admission of Stephenson’s testimony that Wong had: (1) examined J.K. according to SART procedures; (2) prepared a trustworthy SART report; and (3) observed injuries or tears on J.K.’s vagina. Defendants argue that under Crawford, supra, 541 U.S. 36, the SART report contained testimonial statements that were erroneously admitted in violation of the right of confrontation. (See id. at pp. 53-54, 68 [“Confrontation Clause” does not allow “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.”].) Defendants further contend that the Attorney General’s reliance on People v. Geier (2007) 41 Cal.4th 555 (Geier) is misplaced in light of the United States Supreme Court’s recent decision in Melendez-Diaz, supra, 129 S.Ct. 2527.
Although Crawford did not comprehensively define the term “testimonial statement,” it stated that “[w]hatever 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.” (Crawford, supra, 541 U.S. at p. 68.) In Geier, the California Supreme Court held that statements contained in a report of DNA test results were not “testimonial” under Crawford. Geier concludedthat the DNA test results were not testimonial,notwithstanding their possible use at trial, because the report was prepared in the scope of employment as part of a “standardized scientific protocol,” and “not in order to incriminate” the defendant. (Geier, supra, 41 Cal.4th at p. 607.) Geier pointed out that DNA test results are neutral in that they “can lead to either incriminatory or exculpatory results.” (Ibid.) Finally, Geier noted that the expert “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, [the DNA expert].” (Ibid.)
However, in Melendez-Diaz, the United States Supreme Court held that statements contained in sworn affidavits regarding the results of forensic drug testing were testimonial under Crawford. (Melendez-Diaz, supra, 129 S.Ct. at p. 2531.) Five justices concluded that under Crawford, “the analysts’affidavits were testimonial statements, and the analysts were ‘witnesses’ for purposes of the Sixth Amendment. Absent 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.” (Melendez-Diaz, at p. 2532.) In a concurring opinion, Justice Thomas stated that he had joined in the majority opinion solely “because the documents at issue in this case ‘are quite plainly affidavits,’ [and] [a]s such, they ‘fall within the core class of testimonial statements’ governed by the Confrontation Clause.” (Melendez-Diaz, supra, 129 S.Ct. at p. 2543 (conc. opn. of Thomas, J.).)
Four dissenting justices concluded that a statement is not testimonial under Crawford unless the witness has “personal knowledge of some aspect of the defendant’s guilt....” (Melendez-Diaz, supra, 129 S.Ct. at p. 2543 (dis. opn. of Kennedy, J.).) “Laboratory analysts are not ‘witnesses against’ the defendant as those words would have been understood at the framing.” (Id. at pp. 2550-2551.) “Instead, the Clause refers to a conventional ‘witness’—meaning one who witnesses (that is, perceives) an event that gives him or her personal knowledge of some aspect of the defendant’s guilt.” (Id. at p. 2551.)
Following Melendez-Diaz, a split of authority developed in this state regarding the admissibility of expert testimony based on reports prepared by nontestifying witnesses. In People v. Rutterschmidt (2009) 176 Cal.App.4th 1047, 1073, Division Five of this district stated that “[t]here is no federal Supreme Court or California authority for the proposition that Crawford precludes a prosecution scientific expert from testifying as to an opinion in reliance upon another scientist’s report.” But in People v. Dungo (2009) 176 Cal.App.4th 1388 (Dungo), the Third Appellate District held that the defendant’s right to confrontation was violated by the admission of expert testimony regarding an autopsy report prepared by a nontestifying witness. (See also People v. Lopez (2009) 177 Cal.App.4th 202, 208 [prejudicial error to admit forensic blood alcohol report of nontestifying criminalist].) Most recently, in People v. Gutierrez 177 Cal.App.4th 654, Division One of this district concluded that portions of a SART report were not testimonial but that other portions were testimonial and, to that extent, inadmissible.
In this case, defendants argue that the Attorney General’s reliance on Geier, supra, 41 Cal.4th 555, is no longer warranted in light of these recent developments. Defendants contend that under Melendez-Diaz and Dungo,the SART report must be viewed as containing testimonial statements that, in the absence of an opportunity to cross-examine the SART nurse who prepared the report,could not be admitted through Stephenson’s expert testimony.
It is clear that until a higher court decides this issue, reasonable minds will continue to disagree on its proper resolution. In any event, regardless of the ultimate resolution, we may properly decide this appeal on the ground that defendants have failed to show prejudice.
“Confrontation clause violations are subject to federal harmless-error analysis under Chapman v. California (1967) 386 U.S. 18, 24. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 681.)... [A]n otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.’ [(Ibid.)]” (Geier, supra, 41 Cal.4th at p. 608.)
In this case, Vazquez testified that for several weeks before the crimes, both defendants had had an ongoing sexual relationship with J.K., including “group sex,” and that Vazquez had last engaged in sex with J.K. on the day before the crimes. Stephenson’s testimony that J.K.’s injuries were consistent with both consensual and nonconsensual sex did not conflict with Vazquez’s testimony. Given that overwhelming evidence of defendants’ guilt was provided through the live testimony of percipient witnesses—J.K. unequivocally testified that the crimes were committed by two unknown men, the DNA evidence placed both defendants within the small group of possible contributors, and, despite Vasquez’s denial that he had ever been in J.K.’s car, his print was found on the door and Valiente’s prints were found on items inside the vehicle—we conclude that any constitutional error in admitting Stephenson’s testimony, which was neutral as to defendants’ guilt or innocence, was necessarily harmless beyond a reasonable doubt.
DISPOSITION
We concur: EPSTEIN, P.J., MANELLA, J.
The trial court sentenced each defendant to a term of 15 years to life.