Opinion
G043915 Super. Ct. No. 08CF3505
12-30-2011
THE PEOPLE, Plaintiff and Respondent, v. HARVY BENIGNO OCHOA, Defendant and Appellant.
Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Raquel M. Gonzalez and Lilia E. Garcia, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from a judgment of the Superior Court of Orange County, James Patrick Marion, Judge. Affirmed.
Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Raquel M. Gonzalez and Lilia E. Garcia, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Harvy Benigno Ochoa was convicted of first degree residential burglary (Pen. Code, § 459; all further statutory references are to this code unless otherwise stated) and receiving stolen property (§ 496, subd. (a)). Defendant admitted a strike and a prior serious felony conviction for assault with a deadly weapon (§§ 245, subd. (a)(1); 667, subds. (a), (d), & (e)(1); 1170.12, subds. (b) & (c)(1)), as well as three prior prison terms (§ 667.5, subd. (b)). The court sentenced him to a term of 14 years 4 months.
Defendant contends his Sixth Amendment right to confront the witnesses against him was violated when the trial court allowed a senior criminalist to testify concerning a DNA report he prepared, which contained analysis by three non-testifying forensic scientists. He also claims the addition to CALCRIM No. 1701 of a portion of CALJIC No. 14.52 constituted a pinpoint instruction that improperly pointed to specific evidence favorable to the prosecution. Finally, defendant asserts the trial court abused its discretion when it denied a motion to strike his prior conviction for assault with a deadly weapon. Finding no errors, we affirm.
FACTS
Laura Meyer lived in an apartment building on West Keller Street in Santa Ana. She parked her vehicle in a single-car enclosed garage attached to her apartment building. One morning she opened the garage door and discovered a hole in the wall. Investigators determined someone had entered her locked car by punching the keyholes on both the driver side and passenger side doors. A suitcase and a car stereo Meyer had in the car were gone.
A forensic investigator found a Marlboro cigarette butt on the floor of the garage near the car. Neither Meyer nor anyone in her family smoked. When defendant was detained in response to a question he stated he smoked Marlboro cigarettes. A buccal swab of defendant's mouth was submitted for testing.
DNA testing involves four steps: (1) extraction, (2) quantification, (3) amplification, and (4) typing. Ilene Krokaugger, a senior criminalist was assigned to manage this case. Two different forensic analysts performed the extraction and the quantification of the DNA sample recovered from the cigarette butt and a third analyst performed both the amplification and the typing. Krokaugger personally interpreted the data and wrote the ultimate report containing her conclusions. She performed all four steps involved in the DNA analysis of defendant's buccal swab. She concluded the DNA profiles obtained from the cigarette butt and from the buccal swab matched and therefore defendant could not be excluded as the source of the DNA on the cigarette butt.
DISCUSSION
1. Right of Confrontation
a. Introduction
Defendant argues his Sixth Amendment right to confront the witnesses against him was violated when he was denied the opportunity to cross-examine the three forensic analysts who performed DNA testing on the cigarette. This testing aided Krokaugger in her preparation of the DNA report upon which she based her in-court testimony.
The Confrontation Clause provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." (U.S. Const., 6th Amend.) Crawford v. Washington (2004) 541 U.S. 36, 55 [124 S.Ct. 1354, 158 L.Ed.2d 177] held that "testimonial statements" by a non-testifying witness are inadmissible unless the witness: (1) is unavailable and (2) was previously subject to cross-examination. (Id. at p. 54.) Although the court did not define "testimonial statements," it listed a handful of items that would fall within the category, including '"affidavits, custodial examinations, [and] prior testimony that the defendant was unable to cross-examine,"' or, more generally, '"statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.' [Citation.]" (Id. at pp. 51, 52.)
InMelendez-Diaz v. Massachusetts (2009) _ U.S. _ [129 S.Ct. 2527, 174 L.Ed.2d 314], the defendant appealed his conviction for distributing and trafficking in cocaine, contending that the trial court erred by admitting into evidence certificates reporting the results of forensic analysis showing that the substance found with him was cocaine. The court held the "certificates" admitted at trial were very clearly affidavits, as they included written declarations and were sworn by each declarant. (Id. at p. __ , 129 S.Ct. at p. 2532.) The certificates were akin to "in-court testimony," performing the same function as a witness on direct examination. (Ibid.) Moreover, "the sole purpose of the affidavits was to provide 'prima facie evidence of the composition, quality, and the net weight' of the analyzed substance [citation]," and therefore the analysts knew of the purpose for which their work would be used. (Ibid., italics omitted.) The certificates were testimonial statements and the analysts were witnesses for the purposes of the Sixth Amendment. The defendant was entitled to '"be confronted with"' the analysts at trial," unless the prosecutor could satisfy the Crawford test. (Ibid.)The court so held despite arguments that (1) the analysts were not '"accusatory"' or '"conventional"' witness, (2) the reports contained '"near-contemporaneous observations,'" and (3) the reports involved '"neutral scientific testing."' (Id. at p. _, 129 S.Ct. at pp. 2533-2536.)
Most recently the Supreme Court decided Bullcoming v. New Mexico (2011) __ U.S. __ [131 S.Ct. 2705, 180 L.Ed.2d 610] where the defendant was charged with driving while intoxicated. At trial the prosecution sought to admit a forensic laboratory report certifying that the defendant's blood-alcohol concentration was above the required threshold. Because the analyst who prepared the report was not available, the prosecution called another analyst who had neither participated in nor observed the test of the defendant's blood sample. (Ibid.)
The Supreme Court determined that the analyst's certification was testimonial because it reported "more than a machine-generated number." (Id. at p. _, 129 S.Ct. at p. 2714.) The analyst certified he received the blood sample intact, made sure the report and sample numbers matched, performed certain tests according to "precise protocol," and, "by leaving the '[r]emarks' section of the report blank," indicated there was no reason to question "the integrity of the sample or . . . the validity of the analysis. [Citation.]" (Ibid.) Accordingly, the surrogate testimony could not convey what the certifying analyst "knew or observed about the events his certification concerned." (Id. at p. _, 129 S.Ct. at p. 2715.)
After Bullcoming, a defendant's Sixth Amendment right of confrontation precludes not only admission of affidavits certifying the results of forensic analysis, but also the use of a surrogate expert to testify concerning such affidavits. The Confrontation Clause demands that a defendant be given the opportunity to confront and cross-examine the authors of forensic reports introduced at trial, unless the Crawford test is met.
b. The four steps of DNA analysis
Defendant argues that Krokaugger's opinion was based on the testimonial statements of the other forensic analysts whom he was therefore entitled to cross-examine. Defendant's assertion is predicated upon a misunderstanding of the DNA testing process. The criminalist who testified and was subject to cross-examination did not base her opinion on the testimonial statements of the other analysts, because their work merely involved routine scientific procedures specific to each step in the DNA analysis.
During extraction, the analyst opens up all the cells taken from the evidence sample and isolates the DNA. A computer automatically and contemporaneously generates a report during this process. For quantification, the analyst takes the extracted DNA and puts it on an instrument to determine how much is present. A computer-generated printout detailing the amount of DNA within each sample is produced at the end of the DNA quantification.
During amplification, the analyst makes many copies of the particular area of DNA used for later interpretation and comparison. No report is generated. Finally, during typing, the analyst "put[s] the amplified product onto an instrument that separates out each of the different fragments," providing a DNA profile. The analyst then receives the data from the DNA typing, interprets it, and writes a report based on her conclusions.
In the present case, the DNA isolated from the cigarette butt was extracted by one forensic analyst, quantified by a second, and amplified and typed by a third. At that point, the analyst delivered to Krokaugger the electronic data produced at the end of the typing process. Krokaugger interpreted the profile, compared it to that recovered from defendant's buccal swab, and wrote the report concluding the two were the same.
To the extent that extraction, quantification, and typing produce reports, they are automatic and computer-generated, contain only raw data, are used for the sole purpose of furthering the testing process, and are not used to form expert opinion. Those reports contain no interpretation or conclusions and are not designed for use at trial. While later analysts in the DNA testing process may rely upon the competency and quality of the earlier testing, those analysts do not rely upon any statements, opinions, or conclusions made by earlier analysts. The analysts in this case did not themselves write any report.
Moreover, the three analysts who performed the extraction, quantification, amplification, and typing of the DNA extracted from the cigarette butt lacked any means by which to inculpate or exculpate defendant. They were working with raw data and had no evidence with which to make any form of testimonial statement against defendant. Until the criminalist interpreted the results and compared them with the results of the DNA analysis from defendant's buccal swab, it was impossible for any forensic expert involved in this DNA analysis to form an opinion or conclusion regarding the DNA samples.
c. No Confrontation Violation
The facts in the instant case demonstrate that the data on which Krokaugger relied were not testimonial. As distinguished from Melendez-Diaz no certificates were introduced in lieu of testimony. Instead Krokaugger relied on automatically generated reports to form her opinion. Although the analysts may have been aware their testing results might be used in a criminal trial, the reports were never intended for introduction. Moreover Melendez-Diaz stated that not everyone "whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device[] must appear in person as part of the prosecution's case." (Melendez-Diaz v. Massachusetts, supra, _ U.S. at p. _, 129 S.Ct. at p. 2532, fn. 1.) Rather Evidence Code section 801, subdivision (b) allowed Krokaugger to rely on the reports to form her opinion.
In Melendez-Diaz, the court stated the Confrontation Clause requires that the defendant be able to challenge the "honesty, proficiency, and methodology" of the analysts who did the laboratory work in order to "weed out not only the fraudulent analyst, but the incompetent one as well." (Melendez-Diaz v. Massachusetts, supra, _U.S. at p. _, 129 S.Ct. at pp. 2537, 2538.) Here, the criminalist's exposure to cross-examination satisfied these concerns. She had sufficient qualifications and knowledge about the forensic testing process and the test results in the case to address issues such as the sufficiency of training received by the other forensic analysts, what tests they performed, whether those tests were routine, and the degree to which the other analysts exercised proper judgment and skill in conducting the tests and reporting the result. The analysts worked under the criminalist's supervision, and the criminalist's cross- examination could ensure sufficient familiarity with their competency and the quality of their work to testify.
Likewise Bullcoming did not hold that the defendant has a right to cross-examine any person in the chain of custody of the blood sample, or any person who assisted in the testing process, other than the expert who prepared the report. Krokaugger is the equivalent of the analyst in Bullcoming who prepared the blood-alcohol report.
To qualify as "testimonial," a statement must have a "primary purpose" of "establish[ing] or prov[ing] past events potentially relevant to later criminal prosecution." (Davis v. Washington (2006) 547 U.S. 813, 822 [126 S.Ct. 2266, 165 L.Ed.2d 224, fn. omitted].) The computer printouts in the present case contain only raw data that allow the analyst to continue testing the DNA. An analyst is unable to look at one of the DNA printouts and form an opinion about a defendant or even about a defendant's DNA. Conversely, an analyst can look at a defendant's blood-alcohol level on a laboratory report and form an opinion whether the defendant was intoxicated. This distinction is why blood-alcohol certificates or drug-analysis certificates submitted at trial in place of live testimony are testimonial, while automated computer printouts containing raw DNA data are not testimonial.
2. Jury Instruction
The trial court granted the prosecution's request to add two paragraphs from CALJIC No. 14.52 to the jury instruction under CALCRIM No. 1701: "A structure is part of an inhabited dwelling if it is functionally interconnected with and immediately contiguous to other portions of the dwelling house. [¶] 'Functionally interconnected' means used in related or complimentary ways. 'Contiguous' means adjacent, adjoining, and in actual close contact. It is not necessary that there be interconnected doors." Defendant contends this addition constituted a pinpoint instruction that improperly pointed to specific evidence favorable to the prosecution. Not so.
An instruction that pinpoints specific evidence rather than a legal issue or theory is impermissible if it draws inferences favorable to a particular party and instructs the jury on what conclusion to draw from the evidence. (People v. Wright (1988) 45 Cal.3d 1126, 1137.)
The instruction in question is not a pinpoint instruction merely because the facts of the case so closely fit within the definitions provided for "functionally interconnected" and "contiguous." The instruction did not prevent the jury from independently considering the type of housing structure and the degree of burglary implicated. The two added paragraphs from CALJIC No. 14.52 did not instruct that the garage in the present case was a structure that was part of an inhabited dwelling. The jury could have found that the dwelling was not inhabited or that the garage was not attached, thereby deciding defendant committed second-degree burglary rather than first-degree burglary.
There is no evidence the drafters of CALCRIM No. 1701 omitted the paragraphs from CALJIC No. 14.52 defining "functionally interconnected" and "contiguous" because they thought the language constituted an improper pinpoint instruction. The instruction merely amplifies and explains the elements of first-degree burglary, without pinpointing specific evidence or inviting inferences favorable to the prosecution. For a juror who remains unclear as to what the terms "functionally interconnected" or "contiguous" meant, the added language serves only to complement and refine an understanding of the instruction, resulting in a more informed deliberation. Therefore, the definitions had "a proper purpose rather than [an] argumentative purpose." (People v. Yeoman (2003) 31 Cal.4th 93, 131.)
Case law also supports the very language used in CALJIC No. 14.52. In People v. Moreno (1984) 158 Cal.App.3d 109, disapproved on another ground in People v. Dotson (1997) 16 Cal.4th 560, fn. 8, the court stated that "the fact that the garage was under the same roof, functionally interconnected with, and immediately contiguous to other portions of the house" is sufficient to conclude that the garage was a part of the dwelling, despite the absence of interconnected doors. (People v. Moreno, supra, 158 Cal.App.3d at p. 112, italics added.) In People v. Ingram (1995) 40 Cal.App.4th 1397, the court stated "[t]he proper focus is whether the attached structure is an integral part of a dwelling that is, functionally interconnected with and immediately contiguous to other portions of the house. [Citation.] The absence of an inside door does not compel a designation of second degree burglary." (Id. at p. 1404, italics added.)
3. Motion to Strike
Defendant contends the trial court abused its discretion when it denied his motion to strike his prior conviction for assault with a deadly weapon.
In People v. Carmony (2004) 33 Cal.4th 367, the court explained that the "three strikes law" "establishes a sentencing norm" and "carefully circumscribes the trial court's power to depart from this norm and requires the court to explicitly justify its decision to do so." (Id. at p. 378.) The three strikes law establishes "a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper. . . . [¶] [A] trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances." (Ibid.) These circumstances must be '"extraordinary' . . . where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme . . . ." (Ibid.)
In the present case, the court considered and weighed the aggravating and mitigating circumstances relative to the crime and to defendant. It concluded there were no extraordinary circumstances to justify dismissing the prior strike conviction. While the court could have considered defendant's drug addiction a mitigating factor, it was within its discretion to find it only a neutral factor. There is no indication the decision was irrational or improper.
DISPOSITION
The judgment is affirmed.
RYLAARSDAM, ACTING P. J.
WE CONCUR:
BEDSWORTH, J.
IKOLA, J.