Opinion
A129162
12-15-2011
THE PEOPLE, Plaintiff and Respondent, v. STACY E. LEWIS-MCKINNEY, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Solano County Super. Ct. No. FCR245986)
Stacy E. Lewis-McKinney (appellant) was convicted, following a jury trial, of two counts of identity theft and one count of practicing nursing without a license. On appeal, she contends (1) the trial court improperly instructed the jury on the identity theft counts both by failing to describe each element of the offense and by failing to instruct that specific intent was required; (2) the court failed to instruct the jury that to be guilty of practicing nursing without a license she had to do so knowingly; (3) defense counsel was ineffective for failing to object to a material variance between the language describing the identity theft offenses in the information and in the prosecution's theory and proof at trial; and (4) introduction into evidence of a certificate of non-licensure prepared by the Board of Registered Nursing violated her federal constitutional right to confrontation. We shall affirm.
PROCEDURAL BACKGROUND
Appellant was charged by second amended information with two counts of identity theft (Pen. Code, § 530.5, subd. (a) —counts one and two), and one count of practicing nursing without a license (Bus. & Prof. Code, § 2732—count three).
All further statutory references are to the Penal Code unless otherwise indicated.
Following a jury trial, appellant was found guilty as charged.
On July 6, 2010, the trial court sentenced appellant to the 16-month low term on count one and a concurrent 16-month low term on count two. The court sentenced appellant to time served in county jail on count three.
On July 19, 2010, appellant filed a notice of appeal.
FACTUAL BACKGROUND
Charlotte Hosler, a human resources specialist for Northbay Health Care (Northbay) in Solano County, testified that, on October 26, 2005, she provided appellant with blank employment application documents, which appellant filled out in Hosler's presence. Appellant also showed Hosler her driver's license. When Hosler asked appellant for proof of licensure as a registered nurse, appellant said she was in the process of moving and would get the documentation to Hosler before finishing the hiring process. In the meantime, appellant provided Hosler with license number 391380 and Hosler verified the number on the Board of Registered Nursing (Board) website. Hosler found that the license was issued to "Stacey E. Lewis." Hosler had a conversation with appellant about the fact that the name did not exactly match her name. Appellant explained that she was in the process of having her name changed and would bring in an updated document. Appellant confirmed that this was her name and license number and Hosler printed out a document from the Board registration website.
At the time of trial, in appellant's personnel file, there was a copy of a nursing license renewal that was dated February 1, 2007 issued to "Stacey Lewis," with the license number 391380. On about April 18, 2007, Hosler spoke to Christina Sprigg at the Board and said "there was confusion between two of our employees over a license number." Hosler might have speculated that the Board had made a mistake and issued the same license number to two people, both of whom were employed by Northbay. Hosler never saw anything indicating there was a nursing license in the name, "Stacy Lewis-McKinney."
In November 2005, Shelly O'Brien Johnson, a registered nurse and director of case management for Northbay, interviewed appellant for employment as a registered nurse, and ultimately hired her that same month as an Emergency Department case manager, which is a registered nurse position. Appellant's duties included reviewing cases in the Emergency Department, verifying the medical necessity of hospital admissions, and coordinating outside care for those patients not admitted. Appellant was involved in patient care "designed for the safety, comfort, hygiene and protection of the patient." As part of her duties, appellant came in direct contact with patients, and her care included "helping to formulate a plan for individual patients regarding the prevention of disease and/or restorative measures." She also assisted doctors with preparing a regimen for treatment.
In early March 2007, Human Resources notified Johnson that there was another nurse working at Northbay who had a name that was very similar to appellant's name. She also learned that both women were operating under the same nursing license. She confronted appellant about this issue on March 9, 2007, and appellant "said she was aware of it. And she said she would go to Sacramento to the Board of Registered Nurses and work on getting it fixed."
Johnson and appellant talked again in May 2007, and appellant said that she was a registered nurse and there had been a mix-up at the Board. She said that her license was stored in a box at her mother's house and that she would produce it for Johnson. She never did so. Appellant also said that the "391" number was hers. After appellant subsequently presented a new license number to Human Resources, she still told Johnson that the "391" license number was hers and that it had been issued in 1995 in the name of "Stacy Lewis." She also gave Johnson the social security number under which the license was issued.
Leah Doane, who was an office technician for the Board, testified that she sometimes worked at the Board's front counter and that, on April 18, 2007, she wrote a letter to Christina Sprigg, her supervisor, which she read to the jury: "On Monday, April 16th, 2007, I received a request for license verification at the counter. The applicant's name was Stacy Lewis. I requested to see her registered license, but she had misplaced it and instead showed me her driver's license and work badge. I wrote down her registered nurse license number, RN 476359. At this time she also requested that I not include her middle name. She did not want to renew her license, only obtain verification for employment purposes. I then accepted the payment and processed the verification. Upon delivering the letter to her, she noted . . . her address and specifically requested I remove the address so that only her first and last name and registered nurse license information would appear on the form. I complied and printed a new letter." Doane did not recall the incident, but confirmed that she had written the letter. The license for which Doane provided verification was in the name of "Stacy Lee Lewis."
Diane Urbano, the human resources manager for Northbay, testified that an issue arose regarding two people with very similar names working for Northbay under the same license number. Urbano asked appellant to provide her with proof of licensure and appellant brought her a document from the Board with license information on it. Appellant said that her license number was RN 476359 and that the problem was caused by a mix-up by the Board. Urbano contacted the Board regarding the two license numbers appellant had given Northbay and the Board was unable to validate either one as belonging to appellant.
Stacey Elizabeth Lewis testified that she is a registered nurse with license number 391380. She was licensed as a registered nurse in 1985 or 1986. Lewis did not know appellant and had never given anyone permission to use her license or her name. Lewis began working for Northbay Medical Center in February 2007. A couple of weeks after she was hired, the human resources department contacted her and informed her that there was another Stacy Lewis employed at Northbay who had the same license number. At Northbay's request, Lewis produced documentation showing that she was the legitimate holder of the license. After her supervisor found the other "Stacy Lewis," Lewis spoke on the phone to someone who identified herself as Stacy Lewis-McKinney. Lewis recalled saying something like, "wow, this is really weird," and the other person said, "I'm sure it's something at my end, and I will take care of it." Lewis had no qualms because she had had the license number for almost 25 years and knew it was hers.
Stacy Lee Lewis testified that she is a registered nurse with license number 476359. She had been a registered nurse for 19 years. Lewis did not know appellant and had never given her or anyone else permission to use her license information or her name. She did not go to the Board in April 2007 asking for a letter verifying that she possessed a license.
Brad Shehan, a Vacaville police officer, testified that, during the course of investigating this matter, he conducted a lawful search of appellant's residence in Vacaville and found nursing license documents in the garage in the name of "Stacey E. Lewis." In a closet in the spare bedroom upstairs, Shehan found nursing license documents in the name of "Stacy Lewis" and "Stacey E. Lewis." He found only one nursing license number in all of the documents, which was the number beginning with 39. He also found documents with "two very close Social Security numbers" on them.
During trial, the prosecution presented a certificate of non-licensure from the Board, which was introduced into evidence and which stated that no license had been issued under the name "Stacy Elena Lewis-McKinney" or either of two very similar social security numbers which appellant had used in the application and the W-4 forms she had provided to Northbay.
DISCUSSION
I.
Appellant contends the trial court improperly instructed the jury on the identity theft counts by both failing to fully describe each element of the offense and by failing to instruct that specific intent was required.
Although appellant did not object to either alleged error related to the court's instruction on identity theft—indeed her counsel explicitly agreed with the trial court that identity theft is a general intent offense—we shall nonetheless address her arguments. (See § 1259; People v. Prieto (2003) 30 Cal.4th 226, 247 [instructional errors are reviewable on appeal to the extent they affect a defendant's substantial rights].)
Penal Code section 530.5, subdivision (a), provides in relevant part: "Every person who willfully obtains personal identifying information, as defined in subdivision (b) of Section 530.55, of another person, and uses that information for any unlawful purpose, including to obtain, or attempt to obtain, credit, goods, services, real property, or medical information without the consent of that person, is guilty of a public offense . . . ."
The trial court instructed the jury on the offense of identity theft pursuant to CALCRIM No. 2040, as follows:
"The defendant is charged in Counts One and Two with the unauthorized use of someone else's personal identification in violation of Penal Code section 530.5(a).
"To prove that the defendant is guilty of this crime, the People must prove that:
"One. The defendant willfully obtained someone else's personal identifying information.
"Two. The defendant willfully used that information for an unlawful purpose.
"And Three. The defendant used the information without the consent of the person whose identifying information she was using.
"Personal identifying information includes a person's name and/or professional or occupational number.
"Someone commits an act willfully when he or she does it willingly or on purpose."
A. Trial Court's Failure to Define Unlawful Purpose
Appellant asserts that the trial court prejudicially erred in failing to define the "unlawful purpose" for which she allegedly used the identifying information.
In instructing the jury pursuant to CALCRIM No. 2040, the court failed to include the following language related to the "unlawful purpose" set forth as the second element of identity theft: "An unlawful purpose includes unlawfully (obtaining/[or] attempting to obtain) (credit[,]/[or] goods[,]/[or] services[,]/[or] real property[,]/[or] medical information) in the name of the other person without the consent of that person [[or] ____________]."
We find that the court's failure to include all relevant language from CALCRIM No. 2040 when instructing the jury was error. As to the proper standard for determining whether appellant was prejudiced by the error, the parties disagree as to whether the error constituted a failure to instruct on an element of the offense, with appellant claiming that the federal constitutional standard of Chapman v. California (1967) 386 U.S. 18 (Chapman) is applicable, and respondent claiming that the state standard of People v. Watson (1956) 46 Cal.2d 818 is applicable. (See People v. Flood (1998) 18 Cal.4th 470, 501-503, 505 (Flood) [instructional error that improperly describes or omits an element of an offense is subject to Chapman harmless error analysis]; accord, Neder v. United States (1999) 527 U.S. 1, 18-19 (Neder).) We need not definitively decide whether the error in this case in fact amounted to an improper description or omission of an element of the offense of identity theft because we conclude that, even using the more stringent Chapman standard, the error in this case was harmless beyond a reasonable doubt. (See Chapman, at p. 24.)
First, given that the only other charge against appellant was for practicing nursing without a license and that, in finding appellant guilty of that charge, the jury found that she wrongfully used the victims' license information to practice nursing, the jury necessarily must have understood that this was the unlawful purpose for which appellant used that information. (Cf. Flood, supra, 18 Cal.4th at p. 550 (Kennard, J., dissenting, citing Carella v. California (1989) 491 U.S. 263, 271 (conc. opn. of Scalia, J.) [" 'When the predicate facts relied upon in the instruction, or other facts necessarily found by the jury, are so closely related to the ultimate fact to be presumed that no rational jury could find those facts without also finding that ultimate fact, making those findings is functionally equivalent to finding the element required to be presumed' [Citation.]"].) This conclusion is supported by a note the jury sent to the trial court during deliberations, in which it asked, "If found guilty on Count 1 or 2 is she automatically guilty on Count 3?" Although the court responded that the jury must make an independent determination as to count three, the inquiry demonstrates the jurors' understanding that the "unlawful purpose" described in CALCRIM No. 2040 was, in this case, using other people's licenses to work as a nurse.
Appellant argues that, on the contrary, the note from the jury "suggests that without even deciding whether appellant was even guilty of practicing nursing without a license, and without regard to any mens rea required . . . , they were considering her guilt or innocence on the counts which required them to find that she had an 'unlawful purpose.' " Appellant's point is somewhat unclear. As explained, the jury note provides additional evidence that the jury understood the nexus between the unlawful purpose required under the instruction for counts one and two and the act of practicing nursing under someone else's license.
Second, during closing argument, the prosecutor expressly told the jury what the unlawful purpose is this case was. He stated: "So what I have to prove is that the defendant willfully obtained [the two nurses'] personal identifying information, being the license number . . . and/or the name, that she willfully used that information for an unlawful purpose. And in the case the unlawful purpose is the actual practice of. . . nursing. . . without a license. And that she used that information without the victims' consent." (Italics added.) Hence, any possible confusion regarding what the words, "unlawful purpose," referred to was thereby resolved. (Cf. Middleton v. McNeil (2004) 541 U.S. 433, 438 [prosecutor's argument can clarify ambiguous jury instructions]; People v. Garceau (1993) 6 Cal.4th 140, 189, overruled on other grounds in People v. Yeoman (2003) 31 Cal.4th 93, 117-118 [any confusion in jury instructions diminished by argument of counsel].)
Third, the evidence introduced at trial by the prosecution showed that appellant unlawfully used the identifying information she obtained from Stacey Elizabeth Lewis (license number 391380) and Stacy Lee Lewis (license number 476359) to practice nursing without a license. Virtually all of the testimony related to this question and the evidence was uncontroverted that appellant used the nursing licenses of two other women with similar names to obtain employment at Northbay as a registered nurse and to remain so employed. (See Flood, supra, 18 Cal.4th at p. 505; see also Neder, supra, 527 U.S. at p. 19.)
Appellant asserts, nonetheless, that the jury may not have understood the connection between the "unlawful purpose" requirement discussed in CALCRIM No. 2040 and the practicing nursing without a license count. She notes that counts one and two of the information, which were read to all potential jurors at the start of juror voir dire, and which tracked the language of section 530.5, subdivision (a), alleged that appellant had used the personal identifying information she had obtained "for an unlawful purpose and to obtain, and attempt to obtain, credit, goods, services and information in the name of [each of the two victims] without consent." That the information contained different examples of an unlawful purpose does not convince us that the jury was confused about whether the purpose in question was the one that was charged in count three and about which the evidence at trial was concerned, or whether it involved the examples mentioned only in the information. (See pt. III, post.)
Count two actually alleged that appellant used the information "for an unlawful purpose and to obtain . . . credit, goods, services, real estate and medical information . . . ."
We thus do not agree with appellant that because the court did not give a unanimity instruction, it is possible that some jurors found the unlawful purpose in question to be practicing nursing without a license while others believed appellant had a different unlawful purpose.
In sum, because it is clear beyond a reasonable doubt that a rational jury would have found appellant guilty of violating section 530.5, subdivision (a), absent the error, we conclude the court's failure to describe the unlawful purpose in CALCRIM No. 2040 was harmless beyond a reasonable doubt. (See Chapman, supra, 386 U.S. at p. 24; see also Neder, supra, 527 U.S. at p. 18; Flood, supra, 18 Cal.4th at pp. 505-506.)
B. Specific Intent to Violate the Law
Appellant further asserts that the trial court improperly failed to instruct the jury that, when appellant obtained and used the license numbers of the two victims, she did so with the specific intent to commit the further offense of practicing nursing without a license.
Our Supreme Court has described the "standard formulation of the concepts of general and specific intent as follows: " 'When the definition of a crime consists of only the description of a particular act, without reference to intent to do a further act or achieve a future consequence, we ask whether the defendant intended to do the proscribed act. This intention is deemed to be a general criminal intent. When the definition refers to defendant's intent to do some further act or achieve some additional consequence, the crime is deemed to be one of specific intent.' [Citation.]" (People v. Rathert (2000) 24 Cal.4th 200, 205 (Rathert).)
Our Supreme Court has also stated, however, "the general principle that—other than circumstances involving a mental state defense—'the characterization of a crime as one of specific intent [or general intent] has little meaningful significance in instructing a jury. The critical issue is the accurate description of the state of mind required for the particular crime.' [Citations.]" (People v. Hering (1999) 20 Cal.4th 440, 447.)
Here, as previously discussed (see pt. I.A., ante), the court instructed the jury with CALCRIM No. 2040, which provides that proof of the crime of identity theft requires, inter alia, that the defendant willfully obtained someone else's identifying information and then willfully used that information for an "unlawful purpose." In addition, the court gave CALCRIM No. 250, which told the jury that appellant had to have a "wrongful intent" when she obtained the identifying information.
These instructions regarding the "unlawful purpose" (CALCRIM No. 2040) and "wrongful intent" (CALCRIM No. 250) requirements sufficiently apprised the jury that, to convict appellant of violating section 530.5, subdivision (a), it had to find that she intentionally planned to unlawfully and wrongfully use the two nurses' licenses to obtain employment as a registered nurse. (Cf. People v. Hagedorn (2005) 127 Cal.App.4th 734, 744 [in concluding that section 530.5, subdivision (a), does not require an intent to defraud, court explained that, "[i]n light of the indisputable evil to be remedied with respect to identity theft, the Legislature rationally appears to have concluded that willfulness, when coupled with use for an unlawful purpose, provides a sufficient mens rea for the offense, and that no injurious intent or result is required"].) Contrary to appellant's assertion, no additional showing that she intended to break another law was required. Hence, whether characterized as a general or specific intent crime (compare CALCRIM No. 250 with CALCRIM No. 251), the instructions given provided an " 'accurate description of the state of mind required for the particular crime.' [Citations.]" (People v. Hering, supra, 20 Cal.4th at p. 447.)
We thus observe that, even assuming subdivision (a) of section 530.5 is a specific intent crime for which CALCRIM No. 251 should have been given, any error in failing to so-instruct was harmless in light of the instructions given and the evidence presented, which demonstrated that appellant intended to and did use the victim's nursing license numbers to unlawfully practice nursing without a license. (See Chapman, supra, 386 U.S. at p. 24; see also pt. I.A., ante.)
II. Trial Court's Failure to Instruct that, to be Guilty, Appellant Must
Have "Knowingly" Practiced Nursing Without a License
Appellant contends the trial court improperly failed to instruct the jury that to be guilty of practicing nursing without a license she had to do so knowingly.
Although appellant failed to object to the court's instruction on practicing nursing without a license—and, as with identity theft, counsel explicitly agreed with the trial court that it is a general intent offense—we shall nonetheless address her argument. (See § 1259; People v. Prieto, supra, 30 Cal.4th at p. 247.)
Business and Professions Code section 2732 provides in relevant part: "No person shall engage in the practice of nursing, as defined in Section 2725, without holding a license which is in an active status issued under this chapter except as otherwise provided in this act."
The trial court instructed the jury on the offense of practicing nursing without a license, as follows:
"The defendant is charged in Count Three with practicing nursing without a license.
"To prove that the defendant is guilty of this crime the People must prove that:
"One. The defendant engaged in the practice of nursing.
"And Two." When she did so, she did not hold a license which was in active status."
The court then read the remainder of the instruction, which defines and describes the "practice of nursing," for purposes of this offense.
As we have already discussed (see pt. I.B. ante), our Supreme Court has explained that, " '[w]hen the definition of a crime consists of only the description of a particular act, without reference to intent to do a further act or achieve a future consequence, we ask whether the defendant intended to do the proscribed act. This intention is deemed to be a general criminal intent.' " (Rathert, supra, 24 Cal.4th at p. 205.)
Business and Professions Code section 2732 is defined, inter alia, as engaging in the practice of nursing "without holding a license which is in an active status." Because this statute does not refer to any "intent to do a further act or achieve a future consequence" (Rathert, supra, 24 Cal.4th at p. 205), it is a general intent crime.
The court here properly instructed the jury on the mens rea for general intent, i.e., that, to find appellant guilty of practicing nursing without a license, the jury had to find that appellant acted with "wrongful intent" by "intentionally [doing] a prohibited act." (See CALCRIM No. 250.)
We find unpersuasive appellant's assertion that the trial court's instructions made this crime a strict liability offense. The instructions merely directed, as with any general intent crime, that the jury should find appellant guilty if the evidence proved beyond a reasonable doubt that she intentionally practiced nursing without a license. Although, as with all general intent crimes, it was not necessary that she knew she was breaking the law, this does not transform the offense into a strict liability crime. As the court instructed, wrongful intent was required. (See CALCRIM No. 250; see also In re Jorge M. (2000) 23 Cal.4th 866, 887 [concluding that possession of a restricted assault weapon was not a strict liability offense, but instead, required that prosecution prove that defendant knew or should have known that weapon possessed characteristics bringing it under Assault Weapons Control Act].)
III. Material Variance Between the Information and the
Prosecution's Theory and Proof at Trial
Appellant contends defense counsel was ineffective for failing to object to the material variance between the language in the information describing the unlawful purpose element of the identity theft offenses and the prosecution's theory and proof at trial, which described the unlawful purpose as practicing nursing without a license. According to appellant, this "mid-trial change of theory on the part of the prosecutor" constituted a material variance that violated her right to a fair trial, and counsel's failure to object caused the issue to be forfeited on appeal.
To prove ineffective assistance of counsel, a defendant must show that "counsel's representation fell below an objective standard of reasonableness . . . under prevailing professional norms." (Strickland v. Washington (1984) 466 U.S. 668, 688 (Strickland).) In addition, the defendant must affirmatively establish prejudice by showing "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Id. at p. 694.)
In the present case, as previously noted, the information described the identity theft offenses in counts one and two using the statutory language. (See § 952 [charge "may be in the words of the enactment describing the offense . . . ."].) At the preliminary hearing, the prosecution presented evidence showing that appellant used the two victims' nursing license information to obtain and maintain her employment at Northbay. The magistrate held appellant to answer on precisely this theory, concluding that there was reasonable and probable cause to believe that the identity theft offenses had been committed "under Penal Code Section 530.55(b) which states, 'using professional or occupational numbers qualified as personal information for purpose of violation of Penal Code Section 530.5(a) . . . ." Thus, appellant and her counsel had notice from the outset that the prosecution's theory with respect to the identity theft offenses was that appellant used the victims' information for the unlawful purpose of practicing nursing without a license.
Accordingly, because there was no mid-trial change of theory and no unfair surprise, counsel was not incompetent for failing to object to any variance between the information and the prosecution's theory and proof at trial. (See Strickland, supra, 466 U.S. at p. 688.) For the same reason, appellant could not have been prejudiced by counsel's failure to object. (Id. at p. 694.)
IV. Admission of the Certificate of Non-Licensure
Appellant contends introduction into evidence of a certificate of non-licensure from the Board violated her federal constitutional right to confrontation.
At trial, over defense objection, the prosecution presented a certificate of non-licensure (certificate), pursuant to Evidence Code section 1284, which stated that no license had ever been issued to appellant under either of the two social security numbers she had used in documents submitted to Northbay.
Evidence Code section 1284 provides: "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."
The certificate provides in relevant part: "This is to certify that I . . . am the Interim Executive Officer for the Board of Registered Nursing; that I am a public employee; that I am the official custodian of the records; that a diligent search of the records has been made and I found no record of a license having been issued to [¶] Stacy Elena Lewis-McKinney." The certificate also included two social security numbers and a date of birth, and is signed by the interim executive officer, but with no declaration that the statements were made under penalty of perjury. Appellant notes that her middle name is misspelled in the certificate. Any such discrepancy, however, is not relevant to our resolution of this issue. (See discussion, post.) We also observe that defense counsel pointed out this misspelling to the jury during closing argument.
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In Crawford v. Washington (2004) 541 U.S. 36, 68 (Crawford), the United States Supreme Court held that a criminal defendant's Sixth Amendment right to confrontation is violated by the admission of the testimonial statements of a witness who is not subject to cross-examination at trial, unless that witness is unavailable to testify and the defendant had a prior opportunity for cross-examination. Subsequently, in Melendez-Diaz v. Massachusetts (2009) 557 U.S. ______, 129 S.Ct. 2527, 2530-2531 (Melendez-Diaz), the Court applied the holding in Crawford to the prosecution's introduction into evidence at trial of "certificates of analysis," in which state laboratory analysts reported that the results of forensic analysis showed that material police had seized from the defendant was cocaine. The Court held that the analysts were "witnesses" for Sixth Amendment purposes and that the certificates were testimonial statements because they were affidavits prepared to establish a fact and were made under circumstances that would lead the analyst reasonably to believe that the statements would later be used at trial. (Id. at pp. 2531-2532; see also Bullcoming v. New Mexico (2011) ______ U.S. ______, 131 S.Ct. 2705, 2713-2717 [holding, in light of Melendez-Diaz, that certified blood-alcohol analysis report was testimonial and that defendant had right to confront analyst who prepared report, despite fact that another analyst familiar with procedures testified at trial]; cf. United States v. Norwood (9th Cir. 2010) 603 F.3d 1063, 1068 [prosecution conceded that, under Melendez-Diaz, admission of affidavit of state employment records officer, prepared for use at trial to prove the absence of any record of defendant having legitimate employment, violated defendant's right to confrontation ].)
Before Melendez-Diaz was decided, the California Supreme Court held, in People v. Geier (2007) 41 Cal.4th 555, 596, 607 (Geier), that a DNA report, relied on at trial by the prosecution's expert witness, but prepared by a different analyst, was not a testimonial statement within the meaning of Crawford. Since Melendez-Diaz was decided, our Supreme Court has granted review in a number of cases to determine the continued validity of Geier, supra, 41 Cal.4th 555, in light of Melendez-Diaz, supra, 129 S.Ct. 2527. (See, e.g., People v. Anunciation (Dec. 22, 2009, D054988 [nonpub. opn.]), review granted March 18, 2010, S179423; People v. Gutierrez (2009) 177 Cal.App.4th 654, review granted Dec. 2, 2009, S176620; People v. Lopez (2009) 177 Cal.App.4th 202, review granted Dec. 2, 2009, S177046; People v. Dungo (2009) 176 Cal.App.4th 1388, review granted Dec. 2, 2009, S176886; People v. Rutterschmidt (2009) 176 Cal.App.4th 1047, review granted Dec. 2, 2009, S176213.)
In the present case, assuming that admission of the certificate violated the evidentiary rules set forth in Crawford and Melendez-Diaz, we nevertheless conclude that any such error was harmless since it is clear beyond a reasonable doubt that the jury would have found appellant guilty even without admission of the certificate. (See Chapman, supra, 386 U.S. at p. 24.)
As a preliminary matter, in arguing that the error was harmless, respondent asserts that, under the so-called "rule of convenience," it was appellant who had the burden of proving that she held a valid nursing license. Our Supreme Court has explained that "[t]he rule of convenience and necessity declares that, unless it is 'unduly harsh or unfair,' the 'burden of proving an exonerating fact may be imposed on a defendant if its existence is "peculiarly" within his personal knowledge and proof of its nonexistence by the prosecution would be relatively difficult or inconvenient.' [Citations.]" (People v. Mower (2002) 28 Cal.4th 457, 477.) Appellant responds with the questionable proposition that whether she was licensed was not information uniquely within her personal knowledge but, instead, it was the Board that uniquely possessed the information regarding her license status.
Regardless of the applicability of the rule of convenience and necessity in this case, we find that appellant was not prejudiced by the error because the certificate was not the sole evidence presented to demonstrate that she practiced nursing without a license. Rather, there was a great deal of additional evidence presented at trial that appellant used licenses belonging to two other women with similar names to obtain and maintain her job with Northbay. This included evidence that she knew she was using their licenses without their consent.
For example, upon hire, appellant did not provide a nursing license. Instead, when Northbay human resource specialist Hosler asked for proof of licensure as a registered nurse, appellant said she was in the midst of moving and would get the documentation to her later. She also explained the minor discrepancy between her name and that on the license number she gave to Hosler by saying that she was in the process of getting her name changed and that she would be bring in an updated document, which she never did. Then, when Northbay learned that there was another nurse with a similar name at Northbay using the same license number, appellant presented a new license number (476359) to human resources. But she thereafter told Johnson, the director of case management, that the number she originally gave (391380) was her license number.
Subsequently, when appellant went to the Board and requested license verification, she told Board office technician Doane that she had misplaced her license. When Doane wrote down the license number (476359) for "Stacy Lee Lewis," appellant asked that her middle name not be included in the verification. She then asked that the address on the license verification letter be removed and that only her first and last name appear on the form.
Later, when Officer Shehan searched her home, he found nursing license documents in the names of "Stacey E. Lewis" and "Stacy Lewis" as well as documents with "two very close Social Security numbers" on them.
All of this testimony provided extremely strong circumstantial evidence that appellant was practicing nursing without a license. Had appellant in fact possessed a valid nursing license, it is inherently implausible that she would have gone to the lengths she did, all to convince Northbay that she was a registered nurse licensed under one of these other two nurses' licenses. Moreover, this evidence, rather than the certificate, was the prosecution's primary focus during both the prosecution case in chief and the prosecutor's closing argument.
Hence, in light of the extremely strong additional evidence supporting appellant's conviction for practicing nursing without a license, any error in the admission of the certificate into evidence was harmless beyond a reasonable doubt. (See Chapman, supra, 386 U.S. at p. 24.)
DISPOSITION
The judgment is affirmed.
Kline, P.J.
We concur:
Haerle, J.
Lambden, J.