Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County, Theodore M. Weathers, Judge, Nos. SCD188023 & SCD183433
O'ROURKE, J.
In 2004 Hubert Lee Barnes facilitated the sale of cocaine base to an undercover police officer. Barnes entered a negotiated guilty plea to possessing cocaine base (Health & Saf. Code, § 11350) and the court deferred entry of judgment (Pen. Code, § 1000). In 2005 Barnes constructively possessed a usable amount of cocaine base and helped his codefendant sell it. Barnes pleaded guilty to selling cocaine base (Health & Saf. Code, § 11352, subd. (a)) and possessing cocaine base for sale (Health & Saf. Code, § 11351.5). The court placed him on three years' probation in both cases. In 2006 the court revoked probation. It suspended execution of concurrent prison sentences (the two-year middle term in the 2004 case and the four-year middle term in the 2005 case) and reinstated probation. In 2008 the court revoked probation, lifted the stays of sentence, suspended criminal proceedings (Welf. & Inst. Code, § 3051), and ordered Barnes committed to the California Rehabilitation Center (CRC). Barnes appeals. We affirm.
While the record is not entirely clear, it appears the four-year term was for selling cocaine base.
BACKGROUND
At the 2008 probation revocation hearing, two police officers testified as follows. The first officer stopped a van in which Barnes was a passenger. When he asked Barnes to step out of the van, Barnes kicked his foot and rubbed it on the floorboard. The officer saw that Barnes was trying to crush a white substance. Barnes refused to stop. The officer removed him from the van, collected the substance on the floor, and gave it to the second officer who impounded it. The second officer found a small off-white, rock-like substance in the van and impounded it, too. Based on his training and experience, he believed it was a controlled substance.
Barnes testified the van's driver had offered him a ride in exchange for gas money. Barnes accepted. When the police stopped the van, the driver bent back and "mov[ed] stuff around." Once Barnes was out of the van and in handcuffs, he noticed a rock on the floorboard and panicked. He crushed the rock, but stopped when the officer told him to stop.
Defense counsel objected to admission of a police department laboratory report analyzing the substance found in the van. Counsel argued there was no foundation for the report, it was hearsay, and Barnes was deprived of his right to cross-examine the report's author. The court admitted the report.
DISCUSSION
Appointed appellate counsel filed a brief summarizing the facts and proceedings below. Counsel presented no argument for reversal, but asked this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel listed, as possible but not arguable issues, (1) whether the introduction of a laboratory report concerning test results of alleged controlled substances violated Barnes's rights of confrontation and due process; (2) whether there was sufficient evidence he violated probation; (3) whether he was properly committed to CRC; and (4) whether the court properly calculated presentence custody credits. We granted Barnes permission to file a brief on his own behalf. He did not respond. We requested additional briefing concerning what impact, if any, Melendez-Diaz v. Massachusetts (2009) ___ U.S. ___ [129 S.Ct. 2527, 174 L.Ed.2d 314] (Melendez-Diaz) has on the admissibility of the laboratory report admitted into evidence at the probation revocation hearing over the defense objection. Counsel for both parties responded to our request.
In admitting the laboratory report at the probation revocation hearing, the court here cited People v. Johnson (2004) 121 Cal.App.4th 1409. In Johnson, the defendant appealed "from a judgment sending him to prison for three years for a probation violation. He contend[ed] the admission of a hearsay laboratory report at the revocation hearing violated his constitutional rights under Crawford v. Washington (2004) 541 U.S. 36 (Crawford)." (People v. Johnson, supra, 121 Cal.App.4th at pp. 1410.) The Court of Appeal rejected the contention, holding "Probation revocation proceedings are not 'criminal prosecutions' to which the Sixth Amendment applies. (U.S. Const., 6th Amend.; Morrissey v. Brewer (1972) 408 U.S. 471; Gagnon v. Scarpelli (1973) 411 U.S. 778.) Probationers' limited right to confront witnesses at revocation hearings stems from the due process clause of the Fourteenth Amendment, not from the Sixth Amendment. (Black v. Romano (1985) 471 U.S. 606, 610, 612.) Thus, Crawford's interpretation of the Sixth Amendment does not govern probation revocation proceedings." (People v. Johnson, supra, 121 Cal.App.4th at pp. 1411-1412.) In dictum, the Johnson court stated the laboratory report was not testimonial in nature. (Id. at pp. 1412-1413.)
The Crawford court held the Sixth Amendment precludes the admission of testimonial evidence unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness. (Crawford, supra, 541 U.S. at p. 68.)
After the probation revocation hearing in the instant case, the United States Supreme Court decided Melendez-Diaz. In that case, the court held that under Crawford, certificates of analysis showing forensic test results for seized substances were testimonial statements, and the analysts who performed the tests were witnesses for Sixth Amendment purposes. (Melendez-Diaz, supra, 129 S.Ct. at pp. 2531-2532.) Thus, "[a]bsent 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." (Id. at p. 2532, quoting Crawford, supra, 541 U.S. at p. 54, italics added.)
Barnes's appellate counsel contends Melendez-Diaz overruled People v. Johnson, supra, 121 Cal.App.4th 1409. He argues the court erred by admitting the laboratory report because there was no showing or finding of good cause to excuse the presence of the report's author. Barnes's counsel concludes the error was prejudicial because without the report, there was no evidence Barnes possessed a controlled substance. Respondent's counsel argues Melendez-Diaz is inapplicable here because probation revocation hearings are not subject to the confrontation clause of the Sixth Amendment.
We agree with respondent's counsel. The Melendez-Diaz court's Sixth Amendment analysis was in the context of a trial, not a probation revocation hearing. The Johnson court's holding that "[p]robation revocation proceedings are not 'criminal prosecutions' to which the Sixth Amendment applies" remains valid. (People v. Johnson, supra, 121 Cal.App.4th at p. 1411.)
A review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436 and Anders v. California, supra, 386 U.S. 738, including the possible issues listed pursuant to Anders v. California, supra, 386 U.S. 738, has disclosed no reasonably arguable appellate issues. Barnes has been competently represented by counsel on this appeal.
DISPOSITION
The judgment is affirmed.
I CONCUR: McINTYRE, J.
I CONCUR IN THE RESULT: HALLER, Acting P. J.