Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF128310. Jeffrey J. Prevost, Judge.
Martha 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.
Gaut, Acting P.J.
A jury convicted defendant Noel Velazquez 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)). Defendant appealed his conviction challenging the admissibility of testimony about lab reports by an expert who did not personally perform the lab testing, as well as raising two sentencing issues.
On January 23, 2009, we issued an opinion affirming the judgment, and the remittitur issued on April 13, 2009. After our opinion was filed and the remittitur had issued, the United States Supreme Court issued its opinion in Melendez-Diaz v. Massachusetts (2009) ___ U.S. ___ [129 S.Ct. 2527; 174 L.Ed.2d 314] (Melendez-Diaz). In that case, the Court concluded that certificates (or notarized affidavits) of state laboratory analysts stating that material seized by police and connected to the defendant was cocaine was testimonial hearsay that violated the defendant’s Sixth Amendment right to confrontation. Defendant Velazquez subsequently requested that we recall the remittitur and reinstate the appeal to reconsider the admissibility of the testimony about lab reports by the expert who did not personally perform the testing in light of Melendez-Diaz. We reinstated the appeal, invited supplemental briefing, and again affirm the judgment.
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 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 USB 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 ATM machine. 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 make her bend over her bed as 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 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 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 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 (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, subdivision (a), 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 Penal Code 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 a “Walkman radio” 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. (See People v. Cleveland, supra, 87 Cal.App.4th at pp. 271-272, 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 Penal Code 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, as an expert. The prosecutor argued at trial that the report qualified as a business record and the trial court overruled the defense objection “assuming [the prosecutor] can establish foundation for the report as a business record, including a manner of analysis.”
Subsequently, the criminalist testified to the manner of analysis, the manner of recording the results in reports, and that the witness was the custodian of records. Defendant argued in his original appeal 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, pursuant to the holding of Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354, 158 L.Ed.2d 177] (Crawford). We disagreed based on People v. Geier (2007) 41 Cal.4th 555 (Geier), which held that laboratory test results and reports were not testimonial hearsay; they were a contemporaneous recordation of observable events, admissible as business records. (Id. at pp. 605-606.)
After the remittitur had issued in this case, the United States Supreme Court issued its decision in Melendez-Diaz, supra, ___ U.S. ___ [129 S.Ct. 2527; 174 L.Ed.2d 314]. In that case, the United States Supreme Court reversed the drug conviction where the identification of the controlled substance as cocaine was accomplished at trial by way of introducing notarized certificates by the analysts who conducted the testing of the drugs.Defendant argues that this holding requires reversal of his conviction for possession of methamphetamine. We disagree.
The Sixth Amendment to the United States Constitution, made applicable to the States via the Fourteenth Amendment (Pointer v. Texas (1965) 380 U.S. 400, 403 [85 S.Ct. 1065, 13 L.Ed.2d 923]), provides that “[i]n all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him.” In Crawford, the United States Supreme Court held that the Sixth Amendment guarantees a defendant’s right to confront those “who ‘bear testimony’” against him. (Crawford, supra,541 U.S. at p. 51 [124 S.Ct. 1354, 158 L.Ed.2d 177].) Testimonial statements of a witness who does not appear at trial are thus inadmissible unless the witness is unavailable and the defendant had a prior opportunity for cross-examination. (Id. at pp. 53-54 [124 S.Ct. 1354, 158 L.Ed.2d 177].)
What constitutes “testimonial hearsay” is at the center of the question of whether a defendant’s right to confront or cross-examine witnesses has been violated. In Crawford, the United States Supreme Court recognized several formulations of the core class of “testimonial” statements, including, but not limited to, ex parte in-court testimony or its functional equivalent, i.e., material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements, and statements made under circumstances that would lead an objective witness reasonably to believe that the statement would be available for use at a later trial. (Crawford, supra, 541 U.S. at pp. 51-52.) Business records are generally admissible because they are not testimonial. (Id. at p. 56; Melendez-Diaz, supra, ___ U.S. ___ [129 S.Ct. at p. 2540].)
In Melendez-Diaz, supra, the United States Supreme Court concluded from its original decision in Crawford that affidavits in the form of certificates of the analyst fell within the “‘core class of testimonial statements’” proscribed in Crawford. Because the analysts’ affidavits were testimonial statements, and the analysts were “witnesses” for purposes of the Sixth Amendment, the Court held that 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, supra, ___ U.S. ___ [129 S.Ct. at p. 2532].) Of importance was the fact that the affidavits at issue were prepared approximately a week after the tests had been performed, and were intended for use at trial; thus they were not contemporaneous statements; they were “near-contemporaneous” statements. (Melendez-Diaz, supra, ___ U.S. ___ [129 S.Ct. at p. 2535].)
Of equal importance is the fact that no analyst testified in the Melendez-Diaz trial at all. The Supreme Court commented on the significance of this fact in noting that “[l]ike the eyewitness who has fabricated his account to the police, the analyst who provides false results may, under oath in open court, reconsider his false testimony.” (Melendez-Diaz, supra, ___ U.S. ___ [129 S.Ct. at p. 2537].) This factor distinguishes Melendez-Diaz from Geier, along with the fact that the document in Melendez-Diaz was not a business record. This leads us to conclude that People v. Geier, supra,41 Cal.4th 555, has not been overruled.
To the contrary, certiorari was denied on June 29, 2009, by the United States Supreme Court. (See, Geier v. California (2009) ___ U.S. ___ [129 S.Ct. 2856; 174 L.Ed.2d 600]), just days after that court issued its decision in Melendez-Diaz on June 25, 2009.
The California Supreme Court has recently granted review in four cases involving this issue, some of which concluded that Geier had been impliedly overruled, and some concluding it was still good law. There are thus conflicting views regarding the current validity of Geier and the application of the Melendez-Diaz decision to situations involving the testimony of an expert forensic analyst, whose opinion is based on a forensic lab report prepared by a nontestifying analyst. In our view, Geier is still controlling law in California after Melendez-Diaz because it is distinguishable from Melendez-Diaz on the grounds stated above.
People v. Rutterschmidt (2009) 176 Cal.App.4th 1047, review granted December 2, 2009, S176213; People v. Gutierrez (2009) 177 Cal.App.4th 654, review granted on December 2, 2009, S176620; People v. Dungo (2009) 176 Cal.App.4th 1388, review granted December 2, 2009, S176886; People v. Lopez (2009) 177 Cal.App.4th 202, review granted December 2, 2009, S177046.
We recognize that forensic evidence is not immune from the risk of manipulation and that even forensic witnesses are subject to cross-examination based on their qualifications as well as the procedures used in a given case. However, the same can be said of any witness, or business or official record. Nothing in Geier prohibits the defense from calling the forensic expert as a witness, or seeking verification or confirmation of the lab results through independent testing, nor does that opinion preclude the defense from investigating the qualifications of the analyst who conducted the results to impeach the results. Unless the California Supreme Court holds that contemporaneously prepared reports of lab results are not business records, reports that qualify as business records are not testimonial, and not subject to Crawford.
In any event, although the defendant objected to the testimony of the analyst who did not personally perform the testing, he did not object to the actual (hearsay) lab reports (Exhibits 40 and 41), which were admitted into evidence without objection as a business record. We conclude that the testimony by the analyst who did not personally perform the scientific testing of the suspected controlled substances did not violate defendant’s confrontation rights.
DISPOSITION
The judgment is affirmed.
We concur: King, J., Miller, J.