Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. VA106121, Michael L. Schuur, Judge. Affirmed.
Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Kenneth C. Byrne and Blythe J. Leszkay, Deputy Attorneys General, for Plaintiff and Respondent.
RUBIN, ACTING P. J.
Defendant Antonio Ayala appeals from the judgment entered following a jury trial that resulted in his conviction of sale of methamphetamine. He contends he was denied his Sixth Amendment right to confrontation as a result of the admission into evidence of an out-of-court statement made by the person to whom defendant was observed selling the methamphetamine. We affirm.
Defendant was charged with sale of methamphetamine (Health & Saf. Code, § 11379, subd. (a); a prior conviction enhancement was also alleged (Health & Saf. Code, § 11370.2, subd. (a)). The jury found defendant guilty, and he admitted the prior conviction allegation. Defendant was sentenced to a total of 5 years in prison comprised of the 2 year low term plus a consecutive 3 years for the enhancement.
FACTS
Viewed in accordance with the usual rules on appeal (People v. Kraft (2000) 23 Cal.4th 978, 1053), the evidence established that Los Angeles County Deputy Sheriffs Andrew Reyes and Jesus Urrutia were on patrol in a marked patrol car on June 11, 2008. About 9:30 p.m., Urrutia was driving the car with its headlights turned off, slowly down an alley west of Norwalk Blvd., when the officers noticed defendant, Sergio Martinez and Veronica Lopez standing together in the alley, between 25 and 35 yards in front of the patrol car. The officers observed Martinez hand some money to defendant, after which Lopez handed Martinez a small plastic bag containing an unknown substance. Believing they had just witnessed a hand-to-hand sale of narcotics, the officers used the patrol car’s lights to illuminate the three suspects and Urrutia drove towards them. As the officers approached, Reyes saw Martinez toss the baggie he had been handed by Lopez to the ground. All three suspects were detained and deputy Reyes retrieved the baggie, which later was determined to contain 0.87 grams of a crystalline substance containing methamphetamine. In a search of defendant’s person, Reyes found $881 in his front pants pockets.
These are the names the suspects gave the officers after they were detained; defendant falsely identified himself to the officers as “Juan Sanchez.”
Reyes testified that it was not unusual for two different people to be involved in a hand-to-hand narcotics transaction.
Over defendant’s objection, Urrutia testified that, in response to Urrutia asking “what happened right now,” Martinez stated that he had just purchased $30 worth of methamphetamine from Lopez and defendant.
PROCEDURAL BACKGROUND
The admissibility of Martinez’s statement to deputy Urrutia was apparently first addressed in an unreported Evidence Code section 402 hearing. The trial court announced its ruling prior to jury voire dire: evidence that Martinez told one of the arresting officers that he had purchased methamphetamine for $30 was admissible under the declaration against interest exception to the hearsay rule.
In part, Evidence Code section 1230 (§ 1230) provides: “Evidence of a statement by a declarant... is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made,... so far subjected him to the risk of... criminal liability... that a reasonable man in his position would not have made the statement unless he believed it to be true.”
Defense counsel revisited the issue later that day, before the evidentiary portion of the trial had commenced: “[DEFENSE COUNSEL]: Judge, previously on the [Evidence Code section] 402, Your Honor ruled that the declaration against interest, the statement made by the absent witness, Martinez, would be admissible. And, notwithstanding, 1230 of the Evidence Code, the only argument I have is that the confrontation issue is violated of the United States Constitution because what we have here is someone who spoke with the police, allegedly, and made a statement and we didn’t have anything more to do with that, anybody. And that statement now comes in against defendant. And I understand what the court’s ruling is and I did some research. I couldn’t find any cases. But, that was just my comment on the issue. [¶] THE COURT: Okay. [¶] Just to make sure, I researched it over the lunch hour and I found under the Evidence Code for declaration against penal or pecuniary or other type of interests that under the current case law the witness doesn’t have to be, even be unavailable in order to procure that type of testimony. [¶] So, I’ll stand by my original ruling.” (Italics added.)
We find the italicized statement by defense counsel to have been sufficient to preserve the Sixth Amendment issue for appeal and thus reject the People’s waiver argument.
At trial, the challenged evidence was introduced as follows: “[THE PROSECUTOR]: Did you ask [Martinez] about what you observ[ed]? [¶] [URRUTIA]: I ended up asking him to tell us what happened right now. And he, basically, immediately started saying that he purchased $30 worth of methamphetamine from -- [¶] [DEFENSE COUNSEL]: Objection, hearsay for the record. [¶] THE COURT: Right, and the objection is overruled. [¶] Go ahead. [¶]... [¶] [UTTUIA]: Okay. He had purchased, just purchased methamphetamine from Lopez and from... [defendant].”
DISCUSSION
Defendant’s sole contention is that the admission of Martinez’s out-of-court statement to Urrutia violated defendant’s Sixth Amendment right to confrontation under Crawford v. Washington (2004) 541 U.S. 36 (Crawford). The People do not argue that the evidence was admissible under Crawford, only that any error in admitting it was not prejudicial. We conclude that admission of Martinez’s out of court statement violated Crawford, but the error was harmless beyond a reasonable doubt.
Defendant also appears to argue that the statement was not admissible under section 1230 because the People, as the proponent of the evidence, did not establish that Martinez was unavailable. Since we find admission of the evidence was error under Crawford, but that the error was harmless beyond a reasonable doubt, we need not resolve whether the trial court also erred in finding the evidence admissible pursuant to section 1230, a decision which is reviewable under the more lenient People v. Watson (1956) 46 Cal.2d 818, standard of prejudice. (People v. Duarte (2000) 24 Cal.4th 603, 618-619.) We also conclude defendant has properly preserved the issue on appeal.
The confrontation clause of the Sixth Amendment to the United States Constitution bars the admission of out-of-court testimonial statements except when the witness both is unavailable and the defendant had a prior opportunity to cross-examine the witness. (Crawford, supra, 541 U.S. at pp. 61-68.) Statements are “testimonial when the circumstances objectively indicate... that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” (Davis v. Washington (2006) 547 U.S. 813, 822, fn. omitted; see also People v. Cage (2007) 40 Cal.4th 965, 985 [assault victim’s response to officer asking what happened is testimonial].) In Crawford, the court held that historic hearsay exceptions and judicial determinations of reliability do not necessarily satisfy a defendant’s constitutional confrontation rights: “Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.” (Crawford, at pp. 68-69.) The court in Crawford recognized just one exception to this rule: dying declarations. (Id. at p. 56, fn. 6.) There is no Confrontation Clause exception for an out-of-court testimonial statement that is a declaration against penal interest under Evidence Code section 1230.
Prior to Crawford, a criminal defendant’s Sixth Amendment rights did not bar admission of an unavailable witness’s statement if the statement bore “adequate indicia of reliability,” which occurred when the evidence either fell within a firmly rooted hearsay exception or bore particular guarantees of trustworthiness. (Ohio v. Roberts (1980) 448 U.S. 56, 66.)
Here, Martinez’s statement to deputy Urrutia was inarguably testimonial. Martinez made the statement in response to Urrutia’s interrogation, which Urrutia commenced only after advising Martinez of his Miranda rights. Under these circumstances, Urrutia’s question was clearly intended to establish past events potentially relevant to a later criminal prosecution – whether Martinez purchased methamphetamine from defendant and Lopez. Thus, under Crawford, admission of the statement violated defendant’s Sixth Amendment right to confront Martinez. But this does not end our inquiry because violation of a defendant’s Confrontation Clause rights is subject to harmless error review. (Crawford, supra, 541 U.S. at p. 42, fn. 1 (maj. opn. of Scalia, J.); see id. at p. 76 (dis.opn. of Rehnquist, J.); Melendez-Diaz v. Massachusetts (2009) __ U.S. __, __ [129 S.Ct. 2527, 2542, fn. 14; People v. Gutierrez (2009) 177 Cal.App.4th 654, 665 (Gutierrez).)
“Confrontation clause violations are subject to federal harmless error analysis under Chapman v. California (1967) 386 U.S. 18, 24. [Citations.] The harmless error inquiry asks: ‘Is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error?’ [Citation.]” (People v. Dungo (2009) 176 Cal.App.4th 1388, 1404-1405 (Dungo).) In Dungo, the defendant was charged with murder. Dr. Lawrence, a forensic expert, opined that the victim was strangled for two minutes before she died. But Dr. Lawrence did not perform and was not present at the autopsy, which was performed by his former employee, Dr. Bolduc, who did not testify. Dr. Lawrence’s opinion was based solely on Dr. Bolduc’s autopsy report. The appellate court held that, under Crawford, admission into evidence of Dr. Bolduc’s report through Dr. Lawrence’s testimony violated the defendant’s Sixth Amendment right to confront Dr. Bolduc. (Dungo, pp. 1401-1404.) The court found that the error was not harmless inasmuch as Dr. Lawrence’s testimony was the only evidence relied upon by the prosecutor to establish that the defendant acted with malice and not in the heat of passion. (Id. at pp. 1404-1405.)
In Gutierrez, supra, the defendant was charged with rape, among other crimes. A nurse practitioner at County U.S.C. Hospital examined the rape victim and prepared a report that included the victim’s description of the assault. But when the nurse practitioner was not available for trial, the trial court allowed the lead nurse practitioner at County U.S.C. Hospital to testify that she had reviewed the report and would have reached the same conclusions as the nurse who prepared the report. The appellate court held this to be error under Crawford, but found the error harmless inasmuch as the report was largely duplicative of the victim’s trial testimony. (Gutierrez, supra, 177 Cal.App.4th at p. 666.)
We find the error in this case to have been harmless beyond a reasonable doubt. Two experienced police officers observed defendant engage in what appeared to be a hand-to-hand narcotics transaction in an area known for illegal drug activity; all three suspected participants in the transaction were detained a few seconds later; the plastic baggie the officers saw Lopez hand to Martinez and Martinez toss to the ground when the police approached, was recovered and found to contain methamphetamine; and an inordinate amount of cash was found in defendant’s pockets. In light of this evidence, we hold beyond a reasonable doubt a rational jury would have found defendant guilty of sale of methamphetamine even absent Martinez’s out-of-court statement.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BIGELOW, J., MOHR, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.