Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, Super.Ct. No. RIF128310. Jeffrey J. Prevost, Judge. Affirmed.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Raquel M. Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gaut, Acting P.J.
Defendant and an accomplice forced their way into a home and, for approximately three hours, held two victims hostage as they ransacked the house. During this time, they bound and repeatedly struck one of the victims in the head with the butt of a gun, before taking both victims’ cars as they left.
Defendant was convicted by a jury of two counts of robbery within a residence (Pen. Code, §§ 211/212.5), one count of assault with a firearm (Pen. Code, § 245, subd. (a)(2)), two counts of unlawful taking of vehicles (Veh. Code, § 10851, subd. (a)), and one count of possessing methamphetamine. (Health & Saf. Code, § 11377, subd. (a).) He appeals, challenging (1) the admissibility testimony about lab reports by an expert who did not personally perform the lab test; (2) consecutive sentences for the robbery and the aggravated assault of one of the victims; and (3) imposition of the upper term sentence based on aggravating facts not admitted by the defendant nor found true by the jury. (Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856, 166 L.Ed.2d 856].) We find no error and affirm.
BACKGROUND
Shortly after midnight on February 1, 2006, as David W. was entering the residence he shared with his mother, Mrs. W., two men in ski masks jumped a fence and put a gun to his head, forced him to his knees, took his car keys, cell phone and wallet, demanded to know who was in the house and whether there was an alarm. The two masked men, who were both armed with guns, forced David W. to his bedroom and forced him to lay face down. The robbers repeatedly demanded to know where the money was and stated they knew he had money.
The robbers covered David’s head with a towel and used a Universal Serial Bus (USB) computer cable they found in David’s room to tie him up. In the process, one of the robbers began to loop the cord around David’s neck, but, fearful of being choked, David bit on the cord and held it in his mouth, telling the robber to kill him by shooting, not choking. The robber told David to release the cord and struck David more than once with the butt of his gun.
At this point, David heard his mother scream and then heard a thud, as one of the robbers had grabbed her by the neck and thrown her to the floor as she came out of her bedroom to investigate the disturbance. At the direction of one of the robbers, Mrs. W. locked her dog in the spare bedroom; she was then ordered to go into her room and sit on the corner of her bed. The robber put a towel over her head, and demanded money. He took approximately $100 from her purse, and then ransacked her room, throwing things out of her closet, opening drawers, and making a mess. The robber told her he would kill her if he found money.
Mrs. W. asked the robber if he knew her son, if her son owed him money, and attempted to find out why they were in her house. When the robber informed her that they had been told she had money, she responded that she did not have any and offered to go to the automated teller machine (ATM). The robber then asked her if she thought he was stupid and placed his gun against her left temple, asking repeatedly for the money and continuing the destruction of her bedroom. During the ransacking, the robber pounded on the walls, looking for a safe, and again put a gun to her head a second time, threatening to kill her if he found any money.
At one point, the robber made Mrs. W., who was only wearing a robe, go to the sink area of the bathroom where he used his gun to open her robe, and stared at her breasts, before allowing her to put on some pants. Back in the bedroom, the robber made her bend over her bed as he stood behind her, making her fear he would rape her, but he did not. At one point, Mrs. W. removed the towel from her head and could see that the robber in her room had lifted his ski mask and placed a bandana around his head. He was wearing dark blue or black jeans.
The robber eventually led Mrs. W. into the spare bedroom; she saw David was still on the floor with a towel over his head. The other robber was standing over him pointing a gun at him. The robber with Mrs. W. then proceeded to go through the spare room. After about 15 minutes in the spare room, the robber led Mrs. W. back through the hall, past David, and out into the garage. The robber assigned to David was still standing over David and pointing a gun at him. That robber was wearing gym shoes, white socks and long, baggy shorts.
After looking around the garage, Mrs. W. suggested that she had silver or crystal in the dining room, and began putting items from her hutch into a bin that had been brought in from the garage, as the robber stood over her with a gun. In the kitchen area, the robber collected electronic items, including laptops and a DVD player. Then, the robber had Mrs. W. sit in the family room while he continued searching the cabinets. Eventually, David, still bound with the USB cord, was led into the living room at gunpoint where he was seated near his mother.
Sometime near 5:00 a.m., the unmasked robber, took Mrs. W.’s cell phone, but agreed to leave the SIM (subscriber identity module) card. Eventually, both robbers left, one driving Mrs. W.’s BMW sport utility vehicle (SUV), and the other driving David’s Hyundai truck. After the robbers left, Mrs. W. called 911 and reported the incident. The robbers remained in the house for about three hours.
A short time later, the police located the vehicles using the LoJack theft recovery system, and saw defendant and a companion walking nearby. When they saw the police, defendant and his companion took off running. One officer eventually caught up with and tackled defendant, who was taken into custody after a brief struggle. After his arrest, defendant was interviewed by a police detective and admitted going to the W. residence armed with a handgun, admitted guarding David, who was tied up and had a towel over his head, admitted pointing a gun at David, and admitted driving away from the residence in the SUV. During a search of his person, methamphetamine was found in defendant’s possession.
Defendant was charged with two counts of first degree robbery, accomplished by using a firearm (Pen. Code, §§ 211, 212.5, 12022.53, subd. (b), counts 1, 2), two counts of unlawfully driving or taking a vehicle without permission (Veh. Code, § 10851, subd. (a), counts 4, 5), one count of assault with a firearm (Pen. Code, § 245, subd. (a)(2), count 3), one count of possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a), count 6), and one count of trying to prevent an executive officer from performing a duty. (Pen. Code, § 69, count 7.) The information also alleged several sentencing factors in aggravation.
After a jury trial, defendant was found guilty of counts 1 through 6, but was acquitted of count 7, the charge of preventing an executive officer from performing his duty. On August 17, 2007, defendant was sentenced to 19 years in prison, and he appealed.
DISCUSSION
1. Because the Aggravated Assault Charge Resulted From a Gratuitous Act of Violence, a Stay Was Not Required.
The trial court imposed the upper term of six years on count 1, the residential robbery of David W. (Pen. Code, §§ 211, 212.5), along with an enhancement of 10 years to that count for the personal use of the firearm in the commission of the robbery. (Pen. Code, § 12022.53, subd. (b).) He was also sentenced to a consecutive one-year term for the assault with a firearm against David. (Pen. Code, § 245, subd. (a)(2).) Defendant claims the sentence for the assault with the firearm should have been stayed, asserting that the two crimes were part of an indivisible course of conduct against the same victim, within the meaning of Penal Code section 654. We disagree.
Penal Code section 654 provides, in relevant part, that “[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” The statutory protection has been extended to cases in which there are several offenses committed during a course of conduct, indivisible in time. (People v. Hicks (1993) 6 Cal.4th 784, 789.) Whether a course of conduct is divisible and therefore gives rise to more than one act with the meaning of section 654 depends on the intent and objective of the actor. (People v. Le (2006) 136 Cal.App.4th 925, 931.)
However, if the defendant had multiple or simultaneous objectives, independent of, and not merely incidental to each other, the defendant may be punished separately for each violation. (People v. Cleveland (2001) 87 Cal.App.4th 263, 267-268.) In Cleveland, separate sentences for attempted murder and robbery were affirmed because the amount of force used by the defendant in taking the Walkman from the victim was far more than necessary to achieve one objective. (Id. at pp. 271-272.) The Supreme Court in People v. Coleman (1989) 48 Cal.3d 112, 162-163, acknowledged that attempted murder can, under some circumstances, constitute the “force” necessary to commit a robbery; however, it observed that at some point the means to achieve an objective may become so extreme they can no longer be termed “incidental” and must be considered to express a different and more sinister goal than mere successful commission of the original crime. (Cleveland, supra, at p. 272, quoting People v. Nguyen (1988) 204 Cal.App.3d 181, 191.)
Therefore, a separate act of violence against an unresisting victim or witness, whether gratuitous or to facilitate escape or avoid prosecution, may be found not incidental to robbery for purposes of section 654. (People v. Sandoval (1994) 30 Cal.App.4th 1288, 1300.)
Here, defendant struck David in the head with the butt of his gun multiple times after David’s wallet, keys and cell phone had been taken and after he had been immobilized by the USB cord restraint and a towel had been placed over his head to prevent him from seeing anything. David testified he was struck whenever he would move or shift his position or fidget. The gratuitous acts of violence demonstrated a separate objective which justified separate punishment.
2. No Constitutional Violation Resulted From the Admission of Laboratory Reports and Expert Testimony By an Expert Who Did Not Personally Test the Suspected Methamphetamine.
After defendant was interviewed, suspected methamphetamine was found on him. Anatoly Zolotaryov, a criminalist employed by the Department of Justice (DOJ) conducted laboratory testing on the substance, and prepared a report identifying the substance as methamphetamine. However, he was unable to appear at trial, so another criminalist, Hillary Bantrup, testified in his place, over a defense objection. Defendant argues that allowing the expert testimony of a criminalist to identify the substance found on defendant’s person as methamphetamine, violated his right to confront and cross-examine the criminalist who actually conducted the tests and prepared the report. We disagree.
The right of confrontation bars admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, so that the defendant had a prior opportunity for cross-examination. (Crawford v. Washington (2004) 541 U.S. 36, 53-54, 55-56 [124 S.Ct. 1354, 158 L.Ed.2d 177].) It does not bar admission of hearsay statements that are not testimonial. (Id. at pp. 50-51, 55-56; see also Davis v. Washington (2006) 547 U.S. 813, 821 [126 S.Ct. 2266, 165 L.Ed.2d 224].)
Records of laboratory protocols followed and the resulting raw data acquired are not accusatory for confrontation clause purposes; they are neutral, having the power to exonerate as well as convict. (People v. Geier (2007) 41 Cal.4th 555, 607.) The laboratory report records the analyst’s observations regarding the receipt of samples, their preparation for testing and analysis, and the results of the analysis as it is actually being performed. The observations in the report are a contemporaneous recordation of observable events, which the Supreme Court found were nontestimonial. (Geier, supra, at pp. 605-606.) The fact that the analysis of the substance was intended to determine if it was a controlled substance and the person preparing it may have expected it to be used in a criminal prosecution, does not compel a conclusion that it is testimonial hearsay. (People v. Johnson (2004) 121 Cal.App.4th 1409, 1412-1413.)
Defendant attempts to distinguish the holding of Geier by arguing that the DNA laboratory evidence in that case was used to prove the identity of the rapist, whereas here the laboratory report was used to prove an element of the crime of unlawful possession of methamphetamine. We see no difference. Identifying the rapist through DNA testing was essential to the felony-murder special circumstance allegation to the murder conviction in Geier, and laboratory testing here was also an identification procedure. We adhere to Geier and conclude the laboratory report was not testimonial hearsay.
As for the testimony of the criminalist, Bantrup qualified as an expert witness, so she was permitted to rely on Zolotaryov’s report in forming her own opinions regarding the identification of the methamphetamine. (Evid. Code, § 801, subd. (b); People v. Geier, supra, 41 Cal.4th at p. 607, fn. 13.) Thus, whether the reports themselves were or were not admissible hearsay (depending on whether the laboratory reports qualified as business records (Evid. Code, § 1271) or official records (Evid. Code, § 1280), the expert is, nonetheless, allowed to render an opinion, and may testify that reports prepared by other experts were a basis for that opinion. (People v. Campos (1995) 32 Cal.App.4th 304, 307-308.)
Hearsay relied upon by experts in formulating their opinions is not testimonial because it is not offered for the truth of facts stated but merely as the basis for the expert’s opinion. (People v. Cooper (2007) 148 Cal.App.4th 731, 747.) There was no error.
3. The Court’s Imposition of the Upper Term in Reliance on a Statutory Amendment Intended to Obviate Cunningham Error Was Not a Violation of Ex Post Facto Principles.
Defendant claims that because his crimes were committed before the United States Supreme Court decided the Cunningham case, and before the passage of SB 40, which amended Penal Code section 1170 to eliminate the presumptive middle term sentence, the imposition of the upper term based on factors not decided by the jury violated his right to a jury trial. We disagree.
Defendant’s crimes were committed in 2006, before Cunningham was decided, although his trial was conducted in 2007, after the United States Supreme Court had issued its decision in Cunningham. Nevertheless, other decisions of the United States Supreme Court, specifically, Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435], and Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403], were final before defendant committed his crimes. Cunningham held that California’s Determinate Sentencing Law (DSL) violated a defendant’s right to a jury trial by permitting imposition of a term in excess of the presumptive maximum term based on facts not found by a jury. (Cunningham v. California, supra, 549 U.S. at p. ___ [127 S.Ct. S.Ct. at p. 868].)
In March 2007, the Legislature passed SB 40, to amend subdivision (b) of Penal Code section 1170, to delete the requirement that the sentencing court impose the middle term where the statute defining punishment specifies three possible terms. The amendment provides that where “the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court.” (Pen. Code, § 1170, subd. (b).) In May 2007, the Judicial Council revised the sentencing rules to reflect the statutory changes effected by SB 40. (Cal. Rules of Court, rules 4.406, 4.420, 4.421, 4.423.) Defendant was sentenced in August 2007, after these changes went into effect. The question presented here is whether application of the amended portion of the DSL violated ex post facto principles.
In People v. Sandoval (2007) 41 Cal.4th 825, 857, the California Supreme Court addressed this issue, concluding that “the federal Constitution does not prohibit the application of the revised sentencing process . . . to defendants whose crimes were committed prior to the date of our decision in the present case.” The court reasoned that the defendant was on notice that she could receive the upper term for her offense by the statutory language setting out the three possible terms for voluntary manslaughter (ibid.) and that a retroactive law relating to sentencing procedure does not violate the ex post facto clause if it does not alter substantial personal rights. (Id. at p. 853.)
Additionally, the court observed that the prohibition against ex post fact law only applies to statutory enactments, not to judicial decisions. (People v. Sandoval, supra, 41 Cal.4th at p. 855.) Because Sandoval provided a judicial reformation of the former sentencing law (to conform to the federal standard established by Cunningham), “imposition of sentence under the reformations announced would not violate the prohibition on ex post facto laws.” (People v. Miller (2008) 164 Cal.App.4th 653, 669, citing Sandoval, supra.)
As to defendant’s claim that his due process rights were violated, we note that the information alleged five separate aggravating factors, referring to the sentencing rules relating to imposition of the upper term. The definitions of the crimes of which defendant was convicted set out the three possible terms, providing further notice to defendant that he might be sentenced to any one of the three, depending on the existence of certain factors in aggravation or mitigation. The reporter’s transcript shows that both the parties’ counsel and the court were aware of Cunningham, as well as the amendment to the DSL by enactment of SB 40. Application of the amended provision of the DSL did not violated defendant’s due process rights.
We are bound by the California Supreme Court’s holding and rationale in Sandoval. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Because the amendments to the DSL are changes in sentencing procedure, their application to defendant’s case did not constitute a violation of the ex post facto or due process clauses.
DISPOSITION
The judgment is affirmed.
We concur: King, J., Miller, J.