Opinion
A128847
10-12-2011
THE PEOPLE, Plaintiff and Respondent, v. JEFFREY MASON BELL, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County Super. Ct. No. H48352)
A jury convicted appellant Jeffrey Mason Bell of attempted rape (Pen. Code, § 261, subd. (a)(2)) and sexual penetration with a foreign object (§ 289, subd. (a)(1)). Several sentencing enhancements based on Bell's prior felony convictions were found true. Bell's DNA was identified on semen recovered from the victim and from her underwear. Asserting an alibi defense, Bell testified that he was in custody in the Alameda County jail at the time of the offenses. In rebuttal, the prosecution introduced documentary evidence from the jail indicating that Bell was not a county prisoner at the times he claimed. Bell contends that this was error. We affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
I. BACKGROUND
On January 2, 2008, a 66-year-old woman was assaulted by a man, later identified as Bell, as she was walking her dog in Memorial Park in Hayward. The victim was knocked to the ground and her shoes, pants and underwear pulled off. Bell inserted his fingers into her vagina and pulled down his pants and played with his penis. He put his penis in the victim's vagina. A few minutes later, Bell pulled up his pants and left. After the victim got dressed, she noticed that her underwear felt sticky. She reported to a park ranger that she had been attacked and police were summoned. She was taken by police to the emergency room at Highland Hospital in Oakland where she was physically examined and evidence was collected.
On March 12, 2008, Bell's picture was in a six-photo lineup shown to the victim. She selected Bell, saying she felt strongly that his characteristics, including his nose and hair, were the same as the man who attacked her. She identified Bell at trial as her assailant.
On March 18, 2008, a Hayward police inspector interviewed Bell. Bell denied attacking the victim and claimed that he had not been to Memorial Park in six years. He said he was not desperate for sex and would not have sex with "an old lady."
At trial, Annie Ouzounian, a criminalist from the San Mateo County Sheriff's Office, was qualified as an expert in DNA typing and comparison. Ouzounian testified that she found a mixture of DNA from at least two individuals when she tested the vaginal swab taken from the victim. Bell and the victim were included as possible contributors. Approximately one in 1.7 million individuals could be included as a possible contributor. Ouzounian also tested DNA found on the victim's underwear and found a single male contributor DNA profile that matched Bell's genetic profile at 15 loci. Based on the single source forensic sample and the match with Bell's reference sample at all 15 DNA loci examined, Ouzounian opined that Bell was the source of the DNA found on the underwear.
Bell testified in his own defense. He told the jury that he did not attack the victim. He said he was in custody in Santa Rita County Jail between December 6, 2007, and January 19, 2008. He theorized that a police officer who had been involved in one of his prior felony convictions (battery with injury on emergency personnel) was "messing with me right now," that this case was "all a made-up story against [him]" by the officer, that the officer had motivated the victim to testify against him, and that the officer had tampered with the forensic evidence by "put[ting] something of mine on the sample." Bell said that he had used the jail commissary and had received medical attention while in custody at the Santa Rita County Jail, but insisted that Alameda County Sheriff's personnel must have destroyed records from the period of his incarceration.
On rebuttal, the prosecution called Inspector Kim Tejada of the Alameda County District Attorney's Office. Tejada testified that she went to the inmate records division of the Santa Rita County Jail and obtained a document from Deputy Morris, the records officer at the jail. Over a defense hearsay objection, the document was admitted into evidence as a certified business record of the Sheriff's Department (Exhibit 9). The document, signed and certified under penalty of perjury by Deputy Morris, stated that Jeffrey Bell "was not in Alameda County Sheriff's custody on 01/02/2008 at 1245 hours."
The document was not originally included within the appellate record. On June 13, 2011, we granted the People's "Request to Deem Record Augmented" to include the exhibit. We attach a copy of Exhibit 9 to this opinion.
The jury commenced deliberations on May 5, 2010, at 1:30 p.m. At 3:00 p.m., the jury returned its verdict, finding Bell guilty as charged on the substantive offenses. A bifurcated trial on the alleged prior convictions commenced immediately thereafter before the same jury. The jury found all allegations to be true.
On June 4, 2010, the trial court denied Bell's motion to strike his prior convictions (§ 1385; People v. Superior Court (Romero) (1996) 13 Cal.4th 497), and sentenced him to 25 years to life on the charge of sexual penetration with a foreign object and a concurrent term of 25 years to life on the charge of attempted forcible rape. Bell filed a timely notice of appeal on June 14, 2010.
II. DISCUSSION
Bell's sole focus on appeal is his contention that the trial court erred in admission of Exhibit 9. He contends that the trial court violated "state law and [his] Fourteenth Amendment right to due process of law by admitting unreliable hearsay," and that the court "violated [his] Sixth Amendment right to confront witnesses by admitting an out of court testimonial statement."
As Bell acknowledges, a trial court's finding regarding applicability of a hearsay exception is generally reviewed for abuse of discretion. (People v. Geier (2007) 41 Cal.4th 555, 586; People v. Martinez (2000) 22 Cal.4th 106, 120 (Martinez).) He asserts that here, however, the error is one of law, which we must review de novo. A. The "Business Records" Hearsay Exception
Evidence Code section 1271 provides that "Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if: [¶] (a) The writing was made in the regular course of a business; [¶] (b) The writing was made at or near the time of the act, condition, or event; [¶] (c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and [¶] (d) The sources of information and method and time of preparation were such as to indicate its trustworthiness."
Bell argues that Exhibit 9 was not made in the regular course of business because it was prepared for purposes of litigation; that it was not prepared at or near the time of the event; that nothing demonstrated its trustworthiness; and that no qualified witness testified as to its identity and mode of preparation.
Regardless of the merits of Bell's other contentions, we agree that the prosecution's failure to establish the predicate foundation for admissibility of Exhibit 9 as a business record precludes its admission on that basis. Tejada was neither a custodian of the records of the Alameda County jail, nor was she an otherwise "qualified witness" able to testify as to the method in which the records were kept or the mode of preparation of the report. (See People v. Crabtree (2009) 169 Cal.App.4th 1293, 1313 [police officer not a "qualified witness" able to establish foundation for recitals in a computer generated sales receipt].) Exhibit 9 was not properly authenticated as a business record, and it was error to admit it on that basis. B. The "Official Records" Hearsay Exception
The People argue that Exhibit 9 is nevertheless admissible as an official record, since it was prepared by Deputy Morris, identified as the records officer at the Santa Rita County Jail, and was properly certified by him "based on custody records which were created for the administrative purposes of the jail and maintained in the regular course of business." Evidence Code section 1280 states, "Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered in any civil or criminal proceeding to prove the act, condition, or event if all of the following applies: [¶] (a) The writing was made by and within the scope of duty of a public employee. [¶] (b) The writing was made at or near the time of the act, condition, or event. [¶] (c) The sources of information and method and time of preparation were such as to indicate its trustworthiness."
Unlike Evidence Code section 1271, Evidence Code section 1280 allows " 'the court to admit an official record or report without necessarily requiring a witness to testify as to its identity and mode of preparation if the court takes judicial notice or if sufficient independent evidence shows that the record or report was prepared in such a manner as to assure its trustworthiness.' [Citation.]" (Martinez, supra, 22 Cal.4th at p. 129.) Under Evidence Code section 1280, the trustworthiness requirement is " ' "established by a showing that the written report is based on the observations of public employees who have a duty to observe the facts and report and record them correctly." [Citation.]' " (People v. George (1994) 30 Cal.App.4th 262, 273-274.)
In Martinez, the Supreme Court upheld the admission of computer generated printouts from the California Law Enforcement Telecommunications System as official records to establish a defendant's criminal history information and prior imprisonment. (Martinez, supra, 22 Cal.4th at p. 134.) In determining if the printout met the foundational requirements as an official record, the court held that the trial court could properly take judicial notice, pursuant to Evidence Code section 451, subdivision (a), of the extensive statutory scheme imposing obligations on California law enforcement agencies to compile and report criminal history information. (Martinez, supra, 22 Cal.4th at p. 121.) In addition to taking judicial notice, a court may rely on the rebuttable presumption that official duty has been regularly performed (Evid. Code, § 664) as a basis for finding that the foundational requirements are met. (Martinez, at p. 125.) "This presumption 'affect[s] the burden of proof (Evid. Code, § 660), meaning that the party against whom it operates—here, the defendant—has 'the burden of proof as to the nonexistence of the presumed fact.' [Citations.]" (Martinez, at p. 125.) "A trial court has broad discretion in determining whether a party has established these foundational requirements. [Citation.] Its ruling on admissibility 'implies whatever finding of fact is prerequisite thereto; a separate or formal finding is, with exceptions not applicable here, unnecessary. [Citation.]' [Citation.] A reviewing court may overturn the trial court's exercise of discretion ' "only upon a clear showing of abuse." ' [Citations.]" (Id. at p. 120.)
As is relevant here, the court noted section 11107 (requiring each sheriff or police chief executive to make daily reports to the Department of Justice of the particular circumstances of specified misdemeanors and felonies) and section 13152 (requiring that admissions or releases from detention facilities be reported by the detention agency to the Department of Justice within 30 days of such action). (Martinez, supra, 22 Cal.4th at pp. 122-124.) We also note that section 4000 et seq. designates the county sheriff's as keepers of the jails for the "detention of persons charged with crime and committed for trial" and for "persons sentenced to imprisonment therein upon . . . conviction . . . ." (§ 4000, subds. 2, 4.)
We have little doubt that a sheriff's records of custodial confinement could readily meet the criteria for admission as official records under Evidence Code section 1280. As discussed supra, the court may take judicial notice of the legal duty imposed on the sheriff to maintain such records, the data is statutorily (and pragmatically) required to be reasonably contemporaneous, and trustworthiness may be established by a showing that the records were based on observations of public employees who had a duty to observe and report the facts correctly. The difficulty is that Exhibit 9 is not such a record, nor does it purport to be. It is not a record, computer generated or otherwise, of prisoners in the custody of the sheriff on the date in question, nor is it a record maintained by the sheriff particularized to Bell showing his custodial history (although it does indicate his presumably unique Alameda County prisoner file number).
Bell claims that the information contained in Exhibit 9 was not prepared "at or near the time of the act, condition, or event," since the letter was prepared during and for the purposes of trial. In applying this requirement to information retrieved from a database, however, "we consider the length of time between the act, condition, or event and the date of its recording, not the date of its eventual retrieval . . . . [Citation.]" (Martinez, supra, 22 Cal.4th at p. 126.)
Bell correctly notes that in Martinez, a witness introduced the exhibit with testimony as to the sources consulted and the methods used to ensure that it was the defendant's records that were being accessed. (Martinez, supra, 22 Cal.4th at pp. 120-121.) Since we find that Exhibit 9 is not an official record, we need not decide whether additional foundational testimony would have been required here.
Instead Exhibit 9 is, in essence, a verified statement from the sheriff's custodian of records that he has searched those records and that there is an absence of any record that Bell was in the custody of the sheriff on the indicated date and time (a "certificate of no record" or "CNR"). Evidence Code section 1284 provides that: "Evidence of a writing made by the public employee who is the official custodian of the records in a public office, reciting diligent search and failure to find a record, is not made inadmissible by the hearsay rule when offered to prove the absence of a record in that office."
Although admissibility under Evidence Code section 1284 was neither argued to nor ruled upon by the trial court, and neither party discusses it in briefing here, Exhibit 9 would appear on its face to fit within this statutory exception to the hearsay rule. If the exhibit was properly admissible under any theory, there was no error. (Evid. Code, § 353, subd. (b).) But as we discuss post, even if we assume it was error to admit the document, we have no difficulty in concluding that any error in receiving it in evidence was harmless, whether we apply the Watson test (People v. Watson (1956) 46 Cal.2d 818, 836 [reasonable probability of a result more favorable to the defendant]) or the more stringent Chapman standard (Chapman v. California (1967) 386 U.S. 18, 24 [harmless beyond a reasonable doubt]). C. Waiver of Constitutional Objections
Bell made only a hearsay objection to admission of Exhibit 9. Nevertheless, he argues here that erroneous admission of the disputed evidence resulted in deprivation of due process under the Fourteenth Amendment to the United States Constitution, and denial of his right to confrontation under the Sixth Amendment. Citing People v. Morris (2008) 166 Cal.App.4th 363, 367 (Morris) and People v. Chaney (2007) 148 Cal.App.4th 772, 779 (Chaney), the People argue that Bell has waived his constitutional claims by failure to raise these objections in the trial court.
Generally, a defendant may not argue on appeal that the court should have excluded the evidence for a reason not asserted at trial. (People v. Partida (2005) 37 Cal.4th 428, 431.) As Bell acknowledges, our Supreme Court has held that a hearsay objection does not preserve a Sixth Amendment confrontation claim. (People v. Redd (2010) 48 Cal.4th 691, 731; see also Chaney, supra, 148 Cal.App.4th at pp. 778-779 [confrontation analysis under Crawford v. Washington (2004) 541 U.S. 36 (Crawford) is "distinctly different than that of a generalized hearsay problem"].) He contends that even so, his constitutional due process claim remains viable. Bell relies on People v. Carasi (2008) 44 Cal.4th 1263 for the proposition that the new constitutional arguments are not forfeited on appeal where the new arguments "do not invoke facts or legal standards different from those the trial court was asked to apply, but merely assert that the trial court's act or omission, in addition to being wrong for reasons actually presented to that court, had the legal consequence of violating the Constitution." (Id. at p. 1289, fn. 15; see also People v. Partida, supra, 37 Cal.4th at p. 431 [a defendant may argue on appeal that the asserted error in overruling the trial objection had the legal consequence of violating due process].) His argument here, however, is that alleged due process violation results from the admission of "unreliable" or "untrustworthy" evidence against him. As Bell himself notes, the focus of a due process analysis in considering admissibility of evidence is reliability. (Manson v. Brathwaite (1977) 432 U.S. 98, 106; see also Ohio v. Roberts (1980) 448 U.S. 56, 66, overruled in part on Sixth Amendment confrontation grounds in Crawford, supra, 541 U.S. 36, 68-69 [hearsay evidence excluded absent a showing of particularized guarantees of trustworthiness].)
Both Morris, supra, 166 Cal.App.4th at pp. 368-371 and People v. Taulton (2005) 129 Cal.App.4th 1218, 1222-1225, have held that admission of public records such as a rap sheet under Evidence Code section 1280 is not error under Crawford, supra, 541 U.S. 36, as it was not " 'testimonial' " hearsay. A CNR offered under Evidence Code section 1284 would, however, appear to be a testimonial statement as defined in Crawford. (Crawford, at p. 51 [" '[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact' "].) Further, the Supreme Court in Melendez-Diaz v. Massachusetts (2009) 557 U.S. __ [129 S.Ct. 2527, 2539-2540] (Melendez-Diaz), held that an affidavit prepared for a criminal trial does not cease to be testimonial simply because it may qualify as a business or official record. However, Crawford also focused on "modern practices with closest kinship to the abuses at which the Confrontation Clause was directed" (Crawford, at p. 68), and observed that official records are not within this "close kinship." (Id. at p. 56; see Morris, at p. 368.) While we also observe that in both Crawford and Melendez-Diaz—unlike the rebuttal/impeachment evidence offered in this case—the testimonial hearsay was used to establish a necessary element of the offenses charged against the defendant. This may be a distinction without a difference. Since we find the issue has been forfeited, we need not decide here whether a CNR may be introduced in the absence of a testifying foundational witness, and if so under what circumstances.
Bell did not directly challenge the reliability or trustworthiness of the report from the sheriff's custodian of records in the trial court, and his argument here is more than a mere constitutional theory or "gloss" arising from his hearsay objection in the trial court. (People v. Carasi, supra, 44 Cal.4th at p. 1289, fn. 15.) We therefore consider his due process argument also forfeited. It is also without merit. As we have already discussed, the judicially noticeable statutory duties imposed on the sheriff to keep accurate account of inmates and the rebuttable presumption that official duty has been regularly performed (Evid. Code, § 664) provide a more than adequate basis to conclude that the custodian's declaration bore sufficient indicia of reliability to meet due process standards. D. Harmless Error
As discussed supra, we have no difficulty concluding that any error in admission of Exhibit 9 was harmless under any standard of review. Erroneous admission of hearsay evidence is assessed under the Watson standard, i.e., whether the defendant would likely have obtained a more favorable result if the evidence had been excluded. (People v. Crabtree, supra, 169 Cal.App.4th at p. 1313.) If a criminal defendant's Sixth Amendment confrontation right has been violated, the Chapman standard of review applies, requiring reversal unless the error was harmless beyond a reasonable doubt. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 684.) Under either standard we find any error to be harmless.
Here the evidence against Bell was overwhelming. He was identified as the assailant not only by the victim herself (in both a photographic lineup and at trial) but by conclusive identification of his DNA in a single source sample of semen taken from the victim's underwear. A qualified expert testified that the forensic sample matched Bell's DNA profile at 15 loci examined and that "barring identical twins, he is the source of the DNA from that sample." (See People v. Cua (2011) 191 Cal.App.4th 582, 600-601 ["source attribution" is permissible under such circumstances].) In contrast, Bell's defense was that he was the victim of a broad law enforcement conspiracy, as to which he presented only his own unsupported hypothesis, and that the victim perjured herself in furtherance of that conspiracy. The jury had full opportunity to assess the credibility of the victim and police witnesses who testified at trial, as well as Bell's own credibility. Bell was impeached not only with Exhibit 9, but with his prior felony convictions. Even before the introduction of Exhibit 9, he testified that the personnel in the county jail must have destroyed records of his incarceration there. The jury appeared to have had little difficulty in rejecting Bell's version of events.
Bell argues that media reports and a "flood of publicity" about "incompetent oversight" and possible "actual corruption" in at least one Bay Area criminal laboratory may have raised doubts in jurors' minds about the validity of the DNA evidence. First, there was no such "evidence" before this jury, nor is it part of the record before us. Second, Bell cites to nothing, and presented nothing at trial, questioning the competence or integrity of the San Mateo County Sheriff's forensic laboratory or its personnel.
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Any error was harmless beyond a reasonable doubt. E. Ineffective Assistance of Counsel
Bell insists that, to the extent that his constitutional claims are deemed forfeited or waived, his trial counsel rendered ineffective assistance. The standard of review for an ineffective assistance of counsel claim is well settled. A criminal defendant has a federal and state constitutional right to the effective assistance of counsel. To establish a claim of incompetence of counsel, a defendant must establish both that counsel's representation fell below an objective standard of reasonableness and that it is reasonably probable that, but for counsel's error, the result of the proceeding would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 686-688, 694-695 (Strickland); People v. Benavides (2005) 35 Cal.4th 69, 92-93; People v. Ledesma (1987) 43 Cal.3d 171, 215-218.) Generally, prejudice must be affirmatively proved. (Strickland, at p. 693.) To prevail, a defendant must establish incompetence of counsel by a preponderance of evidence. (People v. Ledesma, at p. 218.) As an ineffective assistance of counsel claim fails on an insufficient showing of either element, a court need not decide the issue of counsel's alleged deficiencies before deciding if prejudice occurred. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1126, cert. den. sub nom. Rodrigues v. California (1995) 516 U.S. 851.)
We have already concluded that it is not reasonably probable that the result of the proceeding would have been different had Exhibit 9 been excluded, and that any error was harmless beyond a reasonable doubt. Since Bell can demonstrate no prejudice, his claim of ineffective assistance necessarily also fails.
III. DISPOSITION
The judgment is affirmed.
Bruiniers, J.
We concur:
Jones, P. J.
Needham, J.