Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA340819 Stephen A. Marcus, Judge. Affirmed as modified.
Ann Krausz, 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, Senior Assistant Attorney General, Susan D. Martynec and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.
WOODS, J.
SUMMARY
Richard Williams was convicted of possession of rock cocaine for sale. Imposition of sentence was suspended, and Williams was placed on formal probation for three years. In this appeal, Williams claims his Sixth Amendment right to confront and cross-examine witnesses against him was violated when the supervising criminalist testified the substance seized at the time was cocaine although another analyst had performed the initial chemical testing. We reject this claim of error. Williams also challenges two of his probation conditions. One of these conditions was not actually imposed, but we agree with Williams that modification to impose an explicit knowledge requirement is necessary as to the other. In all other respects, the judgment is affirmed.
FACTUAL AND PROCEDURAL SYNOPSIS
On April 29, 2008, at about 8:30 p.m., Los Angeles Police Officers An and Romo were walking a foot beat in the area around 618 East 83rd Street in Los Angeles, a “known narcotics area.” As they approached the front door of the building, Officer An saw Williams and another man (Murphy Hayes) standing together beneath a light and in front of an open security door. Williams had his left hand open with about ten off-white solids in it. He picked one up and showed it to Hayes.
Officer An recognized Hayes because he had stopped Hayes a few months earlier in the area. At that time, Officer An noted Hayes had chapped, somewhat burnt lips and showed signs of bruxism (involuntary grinding of teeth)-indications Hayes “was a user.”
At that point, Officer Romo stepped out and said, “Police.” Williams looked startled. He stepped back into the doorway and slammed the door shut as the officers approached. As Williams locked the door, the officers pounded on it, yelling at Williams to open it. Through the mesh of the locked security door, Officer An saw Williams run to the kitchen area. Williams then opened his left hand over the sink, dropped the solids (each about the size of an eraser head), and started to run the water. He reached into his right pocket, pulled something out and dropped that into the sink as well. As he turned off the water, Williams told the officers, “Fuck you. You got nothing on me.”
After that, Williams opened the door and was handcuffed. Officer An looked in the kitchen sink and, from the drain, recovered cellophane with some off-white solid bits in it. A cell phone, a five-dollar bill and two ten-dollar bills were recovered from Williams. Although cocaine base (known as “rock” or “crack”) is typically ingested by smoking it, no pipe or similar device was located.
Williams was charged with possession of cocaine base for sale. (Health & Saf. Code, § 11351.5.)
At trial, the People presented evidence of the facts summarized above. In addition, Cheryl Will, a supervising criminalist with the Los Angeles Police Department Narcotics Analysis Laboratory Unit for more than 14 years, testified that, in addition to her regular administrative supervisory duties, she ensured that the Department’s policies and procedures are followed, meaning all technical aspects of the analysis of narcotics evidence and the production of case notes and reports. She also reviewed reports at a technical and administrative level and testified in court regarding analyzed evidence.
After being shown a one-page document, entitled Los Angeles Police Department Analyzed Evidence Report, Will explained it was the analyzed evidence report produced in the laboratory as a result of the analysis conducted in this case. She reviewed such documents daily, and her unit prepared 15, 000 each year. Such a report describes the date the work was done, the case number and name, the description of the evidence analyzed, the conclusions of the analyst, the analyst’s name and signature, the disposition of the evidence and the signature of the person reviewing the work. The analyzed evidence report is prepared “immediately” upon the conclusion of the analysis process and then submitted for review. Will confirmed that, in this case, all of the analysis and the report were prepared the same day (May 1, 2008).
Will reviewed the notes the analyst (Jose Gonzales) prepared at the time the testing was performed. The same tests are used hundreds of times each week, and Will had performed the same tests herself when she was an analyst. The results of the four wet chemical tests (two of which independently produced a color change and two of which caused the formation of a particular type of crystals) supported the analyst’s conclusion the off-white solid substance seized at the time of Williams’s arrest was cocaine in the form of cocaine base.
Both Hayes and Williams testified in Williams’s defense. According to Hayes, the police put him and another man against the wall, holding guns to their hands, and asked, “Who’s selling dope?” A few minutes later, Hayes said, the officers threw Williams against the wall when he stepped outside and handcuffed him. Williams testified he was leaving the home where he worked, providing in-home support for an older woman, when officers grabbed him and threw him against the wall. Then they searched the house and came out holding a “clear thing” and said Williams was “going for this.”
The jury found Williams guilty as charged. Imposition of sentence was suspended, and Williams was placed on formal probation for three years.
Williams appeals.
DISCUSSION
According to Williams, citing the United States Supreme Court’s decision in Melendez-Diaz v. Massachusetts (2009) __ U.S. __ [129 S.Ct. 2527], the trial court violated his Sixth Amendment right to confront and cross-examine witnesses against him when it permitted the supervising criminalist (Will) to testify the substance seized was cocaine although she had not performed the chemical testing to support this determination. We disagree.
In Crawford v. Washington (2004) 541 U.S. 36, the United States Supreme Court held that admission of testimonial hearsay statements against a defendant violates the Sixth Amendment when the declarant is not subject to cross-examination and has not been subject to cross-examination previously. Testimonial statements are those that in purpose, form and setting are akin to testimony given by a witness at trial. (People v. Cage (2007) 40 Cal.4th 965, 984-987.)
In People v. Geier (2007) 41 Cal.4th 555, the defendant was convicted of murder and rape based in part on DNA evidence tested by a laboratory (Cellmark). The analyst who performed the testing did not testify at trial. Instead, a lab director who co-signed the report did, and, based on the results and her review of the case file, testified that in her expert opinion the incriminating DNA matched that of the defendant. Geier contended his constitutional right to confront and cross-examine adverse witnesses was violated because the lab analyst did not testify. Our Supreme Court disagreed.
After examining state and federal authority on the issue of whether scientific test reports were testimonial for purposes of the confrontation clause, the Geier court concluded a statement was testimonial only if three requirements were all met: (1) it was made to a law enforcement officer or by a law enforcement officer or agent; (2) it describes a past fact related to criminal activity; and (3) it will possibly be used at a later trial. (Geier, supra, 41 Cal.4th at p. 605.) The Geier court found the second point determinative. Even though the analyst was working for the police and could reasonably anticipate the use of her test results at trial, those results “constitute[d] a contemporaneous recordation of observable events rather than the documentation of past events.” (Id. at p. 605.) As a result, when the analyst recorded the results, she was not acting as a witness and was not testifying. (Id. at pp. 605-606.)
Ultimately, it was the circumstances under which the analyst’s reports and notes were made that led the Geier court to conclude they were not testimonial and therefore did not violate Geier’s confrontation rights. First, they were generated as part of a standardized scientific protocol conducted pursuant to her employment at Cellmark. Even though the prosecutor hoped to obtain evidence against Geier, the analyst’s work product was part of her job, and was not intended to incriminate him. Second, to the extent the analyst’s notes and reports recount the procedures used, they were not accusatory because DNA analysis can lead to either incriminatory or exculpatory results. Finally, the accusatory opinions that the DNA evidence matched Geier “were reached and conveyed not through the nontestifying technician’s laboratory notes and report, but by the testifying witness, [the lab director].” (Geier, supra, 41 Cal.4th at p. 607, italics added.)
In Melendez-Diaz, supra, 129 S.Ct. 2527, the defendant was convicted in Massachusetts state court of selling cocaine. A substance in his possession believed to be cocaine was sent to a lab for analysis, and the lab test confirmed it was cocaine. At trial, as permitted by Massachusetts law, a sworn affidavit known as a certificate of analysis was allowed in evidence in order to prove that the substance tested positive as cocaine. The analyst who performed the test did not testify at trial. The certificate said nothing more than that the substance was found to contain cocaine. At the time of trial, the defendant did not know what tests the analyst performed, whether those tests were routine, or whether interpreting their results required the exercise of judgment or skills the analyst did not possess.
The Melendez-Diaz court held that the affidavits fell within the core class of testimonial statements -- such as depositions, prior testimony, declarations, and affidavits -- whose admission violates the confrontation clause. (Melendez-Diaz, supra, 129 S.Ct. at pp. 2531-2532.) Therefore, the analysts were witnesses and their affidavits were testimonial, meaning the defendant had a right to “confront” them at his trial unless the analysts were unavailable for trial and the defendant had a previous opportunity to cross-examine them. (Id. at p. 2532.) “The Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits, and the admission of such evidence... was error.” (Id. at p. 2542, fn. omitted.)
In Melendez-Diaz, the United States Supreme Court did not address the same issue raised in Geier, supra, 41 Cal.4th 555, whether the director of a lab that conducted DNA tests can render an opinion based on the results of those tests conducted by an analyst working at the lab, subject to full cross-examination by the defendant-essentially the issue presented in this case.
The California Supreme Court has granted review in four Court of Appeal decisions that have taken divergent views on this issue. (People v. Rutterschmidt, review granted Dec. 2, 2009, S176213; People v. Gutierrez, review granted Dec. 2, 2009, S176620; People v. Dungo, review granted Dec. 2, 2009, S176886; and People v. Lopez, review granted Dec. 2, 2009, S177046.) (The United States Supreme Court denied a petition for certiorari in People v. Geier four days after the decision in Melendez-Diaz. (People v. Geier, supra, 41 Cal.4th 555, cert. den. Jun. 29, 2009, No. 07-7770, sub nom. Geier v. California (2009) __ U.S. __ [129 S.Ct. 2856].))
In Geier, an in-court witness, subject to cross-examination, was allowed to rely on laboratory notes and reports to support an expert opinion her training and experience qualified her to give. In Melendez-Diaz, similar reasoning was held not to support the admissibility of a written document that was not subject to cross-examination and whose author was not subject to cross-examination concerning either expert qualifications or analytical conclusions. In Williams’s trial, Will testified that she had reviewed Gonzales’s notes and test results and determined they supported the conclusion the substance tested was cocaine base. Accordingly, under Geier, as he was afforded the opportunity to cross-examine Will, we conclude Williams was not deprived of his Sixth Amendment right to confront and cross-examine the witnesses against him in this case. (See People v. Bowman (2010) 182 Cal.App.4th 1616.)
Because of the distinction between hearsay used by an expert to form an opinion and the hearsay document itself, we respectfully disagree with the recent case of People v. Benitez (2010) 182 Cal.App.4th 194, which equated the written lab report and the in-court testimony of the expert witness. (See People v. Bowman (2010) 182 Cal.App.4th 1616.)
In addition, Williams says the trial court imposed an unconstitutionally overbroad and vague probation condition in violation of his right of association.
In recommending probation “under conditions that include... standard anti[-]narcotics conditions, ” the probation officer checked off the box in front of Condition No. 19 which provides as follows: “Do not own, use, possess, buy or sell any controlled substances, or associated paraphernalia, except with valid prescription, and stay away from places where users, buyers, or sellers congregate. Do not associate with persons known by you to be controlled substance users or sellers, except in an authorized treatment program.”
At the sentencing hearing, in placing Williams on formal probation for three years, the trial court imposed the condition (among others) as follows: “He is not to use or possess any narcotics, dangerous or restricted drugs, or associated paraphernalia except with a valid prescription. [¶] And he is to stay away from places where users or sellers congregate. [¶] He is not to associate with drug users or sellers unless attending a drug-treatment program. He is not to associate with persons known by him to be narcotic or drug users or sellers.”
Because the part of this condition specifying he must stay away from places where users, buyers and sellers congregate does not include a knowledge requirement, Williams says, the condition is unconstitutionally vague and overbroad and limits his right to travel. As a result, he says, Condition No. 19 must be modified to include a knowledge requirement.
According to the Attorney General, citing In re Sheena K. (2007) 40 Cal.4th 875, 889, Williams has waived this claim of error as he failed to object at the sentencing hearing, and his claim is meritless in any event.
It is true that “generally, given a meaningful opportunity, the probationer should object to a perceived facial constitutional flaw at the time a probation condition initially is imposed in order to permit the trial court to consider, and if appropriate in the exercise of its informed judgment, to effect a correction.” (In re Sheena K, supra, 40 Cal.4th at p. 889.) However, because Williams’s claim-that his probation condition is facially vague and overbroad in the absence of a knowledge requirement-presents a claim of error that is a pure question of law easily remedied on appeal by modification, his claim has not been forfeited by his failure to object in the trial court. (Id. at pp. 885-888.)
Accordingly, we address the merits of Williams’s argument. The “underpinning of a vagueness challenge is the due process concept of ‘fair warning.’” (In re Sheena K., supra, 40 Cal.4th at p. 890, citation omitted.) A probation condition “must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated, ” if it is to withstand a challenge on the ground of vagueness. (Ibid., citation and internal quotations omitted.) We agree with Williams that in the absence of an express requirement of knowledge with respect to the places he must avoid, the probation condition imposed on him is unconstitutionally vague, and modification to impose an explicit knowledge requirement is necessary to make the condition constitutional. (Id. at pp. 891-892.)
Finally, Williams says Probation Condition No. 28 must be stricken as it was not imposed at oral pronouncement. This provision states: “Do not associate with any persons known by you to be criminal street gang members, affiliates, or associates, and stay away from all places where you know such persons congregate, except in an authorized anti-gang program. [] Do not own, possess, or wear any criminal street gang, paraphernalia, or exhibit any indicia of criminal street gang affiliation, including, but not limited to, dressing in, displacing or wearing any clothing, ‘colors’ or other insignia associated with any street gang, or making, displaying or ‘flashing’ any hand signs or signals associated with any criminal street gang. [] Obey any gang injunction that applies to you. []” As the Attorney General notes, although the probation officer marked the box indicating his inclusion of this condition in his recommendation, it does not appear this condition was ever imposed.
DISPOSITION
Probation Condition No. 19 is modified to read as follows: “Do not own, use, possess, buy or sell any controlled substances, or associated paraphernalia, except with valid prescription, and stay away from places where users, buyers, or sellers are known by you to congregate. Do not associate with persons known by you to be controlled substance users or sellers, except in an authorized treatment program.” In all other respects, the judgment is affirmed.
We concur: PERLUSS, P. J. JACKSON, J.