CODRINGTON, J.
A jury found defendant Pablo Victor Valadez guilty of (1) possession of heroin in the California Rehabilitation Center (CRC) in violation of Penal Code section 4573.6
Defendant appeals from judgment, arguing that the trial court erred in admitting into evidence defendant's involuntary confession made during a CRC disciplinary hearing. Defendant also argues the court violated his constitutional right under the confrontation clause by restricting cross-examination of Lieutenant George Lares (Lares). In addition, defendant argues the court violated defendant's Sixth Amendment right to confront adverse witnesses by allowing a laboratory director to testify to the presence of drugs found in defendant's urine based on the findings of nontestifying analysts. In supplemental briefing, defendant further contends there was prejudicial cumulative error violative of defendant's due process rights.
We reject defendant's contentions and affirm the judgment.
In May 2009, correctional officer Sal Munoz (Munoz) was employed as a dormitory officer at the CRC in Norco. Munoz worked in Dorm 111, where defendant was assigned a lower bunk bed. Each dormitory housed 100 inmates. The inmates were assigned a bunk bed and issued a laundry bag.
Munoz testified at defendant's trial that, at 5:30 p.m., on May 23, 2009, while the inmates were at dinner, Munoz conducted a routine, unannounced, search of the inmates' bunk areas in Dorm 111. While searching defendant's bunk, Munoz looked in a laundry bag tied to the two headboard posts of defendant's bunk. The laundry bag, which was next to defendant's pillow, straddled the headboard.
Munoz found inside the laundry bag various clothing, including a folded sock. Inside the sock were four bindles. One bindle contained 8.51 grams of marijuana. The other three bindles contained heroin weighing 16.20 grams.
After completing the search, Munoz called his supervisor and an escort officer, who escorted defendant to Munoz's office. Munoz informed defendant that he was charged with violating the Penal Code and California Code of Regulations, title 15, section 3016, subdivision (a), which provides: "Inmates shall not inhale, ingest, inject, or otherwise introduce into their body; use, possess, manufacture, or have under their control any controlled substance, medication, or alcohol, except as specifically authorized by the institution's/facility's health care staff."
A CRC nurse examined defendant that day. She noticed on defendant's left inner arm, near the elbow, a reddened area with puncture marks. That night defendant provided a urine sample.
Dr. Joseph Graas (Graas), the owner, director, and overseer of the lab that tested defendant's urine sample, testified that defendant's urinalysis indicated the urine sample was negative for marijuana but tested positive for morphine and codeine, which was consistent with the use of heroin. The presence of morphine and codeine was also alternatively consistent with the use of morphine and/or codeine, and not heroin.
CRC correctional lieutenant Lares testified that, on July 8, 2009, he conducted a CRC disciplinary hearing, commonly referred to as a "115 hearing," regarding defendant's drug violation on May 23, 2009. Lares read from Munoz's report describing Munoz's search of defendant's bunk and stating in detail defendant's drug violations. Lares also read to defendant a second report by Officer Petty, which stated that defendant's urine sample tested positive for morphine and codeine.
At least 24 hours before the 115 hearing, defendant was given copies of all of the reports used at the hearing, including a report referred to as a "serious rules violation report," which stated that referral for felony prosecution was not likely. After Lares read the reports and disciplinary charge to defendant during the 115 hearing, Lares asked defendant how he pled. Defendant said he pled guilty and did not make any other statement. Thereafter, the district attorney filed criminal charges against defendant for heroin possession, possession for sale of heroin, and possession of marijuana.
CRC correctional officer Miguel Vega (Vega), who was assigned to the investigative services unit, testified that 20 grams of heroin is a usable amount. A typical heroin dose is .08 grams. Twenty grams of heroin was worth about $6,000. In Vega's opinion, defendant possessed the heroin for the purpose of sale and distribution. Vega's opinion was based on the amount of heroin and the way it was packaged.
Defendant testified that on May 23, 2009, he was serving a term in the CRC for grand theft auto and had previous convictions for grand theft auto, receiving stolen property, and second degree burglary. He conceded he pled guilty to all of those charges because he was guilty.
Defendant explained he had two laundry bags hanging from his bed. The one at the foot of his bed was his. The other one tied around his headboard, near his pillow, belonged to his bunkmate. Defendant did not know how drugs got in the laundry bag or to whom they belonged. Defendant said he did not deny the drugs were his to correctional officers because he feared for his safety if he "snitched."
Defendant denied using heroin. His neighbor gave him morphine and codeine pills around 11:30 a.m. on May 23, 2009, because defendant was experiencing back spasms. Defendant claimed he had a heat rash, not needle marks on his arm, when the nurse examined him.
Defendant also claimed that, before he pled guilty at the 115 hearing, he denied to Munoz that he possessed or sold drugs. When defendant pled guilty, he thought he was only pleading guilty to the "dirty" drug test, not to possession or sale of drugs. Defendant acknowledged reviewing the reports before the 115 hearing. He looked up the penalty for the disciplinary charge. It was only a maximum of 90 days. The paperwork he was provided before the 115 hearing stated criminal prosecution was not likely, which defendant thought meant the matter would not be referred to the district attorney for criminal prosecution. Defendant denied that Lares read to him at the 115 hearing the two reports. Lares only told defendant his urinalysis tested positive for codeine and morphine, and then asked defendant how he pled. Defendant then pled guilty.
Defendant contends his confession (his guilty plea) made during the 115 hearing was inadmissible because prison officials falsely promised leniency by misrepresenting to defendant that criminal prosecution was unlikely. We disagree.
During the criminal trial, defendant moved in limine to exclude "[a]ny disciplinary proceedings held against the Defendant while in state prison" under Evidence Code sections 352 and 403, on the grounds testimony regarding prison disciplinary proceedings was not relevant. The prosecution moved in limine to admit into evidence defendant's confession made during the 115 hearing.
During the hearing on the motions in limine, the trial court concluded that defendant's confession was more probative than prejudicial and, thus, admissible under Evidence Code section 352, subject to an Evidence Code section 402 evidentiary hearing (402 hearing) on the matter.
Later in the trial, right before Lares testified, the court conducted a 402 hearing out of the presence of the jury. Lares was shown a copy of his report, which stated the disciplinary charge against defendant. Lares said he had read the report to defendant during the administrative disciplinary hearing. Thereafter, defendant pled guilty to the charge, without making any statement. Lares stated it was his custom and practice to read the report to the inmate and ask if the inmate understood the charges. Once Lares made sure the inmate understood the charges, Lares asked the inmate what his plea was and noted the plea on his worksheet. He would also ask the inmate if, after stating his plea, he wished to make an additional statement. This was noted on the worksheet as well. The worksheet relating to defendant indicated defendant had pled guilty to possession for sales and distribution of controlled substances, in violation of California Code of Regulations, title 15, subdivision (a) of section 3016.
Lares explained that, at least 24 hours before the disciplinary hearing, an inmate is issued a copy of everything that would be used at the hearing, including a statement of the inmate's charges and hearing rights. Normally, when the inmate is given the copy of the charges, he is told whether there will be a separate criminal prosecution and the inmate can delay the disciplinary hearing until after the criminal prosecution. The form contains a box that can be checked, indicating that there is a possibility of prosecution.
Lares was shown the worksheet used for defendant. According to Lares, the box indicating "no" was checked as to the statement, "Referral for a felony prosecution is likely in this incident." If the box had been marked "yes," the inmate would be asked if he wanted to waive postponing the disciplinary hearing. Otherwise this is not discussed with the inmate. A copy of this form was provided to defendant.
After Lares provided testimony at the 402 hearing, defendant argued his confession should be excluded under Evidence Code section 352, as being extremely prejudicial. Defendant also argued it should be excluded because the standard of proof in a 115 hearing and a criminal trial differed. In addition, defendant was told criminal charges were not likely and therefore he was not asked if he wanted to postpone the 115 hearing until after the criminal prosecution.
The prosecution argued the confession was admissible because defendant was informed of the disciplinary charge against him and he pled guilty. The court found troubling that defendant was told criminal charges were not likely. Nevertheless, the trial court concluded there was no violation of defendant's due process rights since he was given information about the disciplinary charges prior to the disciplinary hearing, the charges were read to defendant, and there was no indication defendant was coerced or forced into pleading guilty.
After the trial court ruled that evidence of defendant's confession was admissible, Lares testified at trial consistent with his 402 hearing testimony, including his testimony that, during the 115 hearing, defendant pled guilty to the disciplinary charge of possession of a controlled substance.
An involuntary confession is inadmissible under the due process clauses of both the Fourteenth Amendment to the federal Constitution and article I, sections 7 and 15 of the California Constitution. (People v. Weaver (2001) 26 Cal.4th 876, 920.) When a defendant claims his confession was involuntary, the People have the burden to show, by a preponderance of the evidence, that the statements were made voluntarily. (People v. Jones (1998) 17 Cal.4th 279, 296.) Under both state and federal law, the courts apply a totality of circumstances test to determine voluntariness. (People v. Haley (2004) 34 Cal.4th 283, 298; People v. Bradford (1997) 14 Cal.4th 1005, 1041.)
A finding of coercion is a prerequisite for a finding that a confession was involuntary under the due process clauses of the federal or state Constitutions. (People v. Clark (1993) 5 Cal.4th 950, 988.) For instance, police are prohibited from using psychological ploys that "`are so coercive that they tend to produce a statement that is both involuntary and unreliable.'" (People v. Jones, supra, 17 Cal.4th at p. 298, quoting People v. Ray (1996) 13 Cal.4th 313, 340.) "In determining whether a confession was voluntary, `[t]he question is whether defendant's choice to confess was not "essentially free" because his will was overborne.' [Citation.]" (People v. Massie (1998) 19 Cal.4th 550, 576, quoting People v. Memro (1995) 11 Cal.4th 786, 827, quoting Schneckloth v. Bustamonte (1973) 412 U.S. 218, 225; see also People v. Holloway (2004) 33 Cal.4th 96, 114.)
On appeal, "`the trial court's findings as to the circumstances surrounding the confession are upheld if supported by substantial evidence, but the trial court's finding as to voluntariness of the confession is subject to independent review.' [Citation.]" (People v. Panah (2005) 35 Cal.4th 395, 471.) Although this issue is independently reviewed on appeal, appellate courts give great weight to the considered conclusions of lower courts. (People v. Whitson (1998) 17 Cal.4th 229, 248; see also People v. Wash (1993) 6 Cal.4th 215, 235-236.)
Citing In re Shawn D. (1993) 20 Cal.App.4th 200 (Shawn D.), defendant argues that his confession was involuntary due to being misled into believing there would be no criminal prosecution if he pled guilty to the disciplinary charge. The form advising him of the disciplinary charge indicated that criminal prosecution was not likely. Defendant complains he was not told before making his confession that there would be a criminal prosecution or that his confession could be used against him in subsequent criminal proceedings. He also was not informed that he could postpone the 115 hearing until after the criminal proceedings. When defendant pled guilty to the disciplinary charge at the 115 hearing, he thought he only faced a loss of custody credits.
In Shawn D., the court reversed the trial court's ruling denying Shawn's motion to suppress his confession. The Shawn D. court explained that, "In deciding if a defendant's will was overborne, courts examine `all the surrounding circumstances—both the characteristics of the accused and the details of the interrogation.' [Citations.] [¶] Characteristics of the accused which may be examined include the accused's age, sophistication, prior experience with the criminal justice system and emotional state. [Citations.]" (Shawn D., supra, 20 Cal.App.4th at pp. 208-209.)
Details of the interrogation that should be considered include whether the police lied to the defendant, whether there were threats or promises relating to the defendant's relatives, and whether there were promises of benefit or leniency. (Shawn D., supra, 20 Cal.App.4th at pp. 209-210.) The court in Shawn D. noted that, while the use of deception or lies "`does not alone render a resulting statement involuntary [citation], such deception is a factor which weighs against a finding of voluntariness [citation].'" (Shawn D., supra, 20 Cal.App.4th at p. 209, quoting People v. Hogan (1982) 31 Cal.3d 815, 840-841.)
In Shawn D., supra, 20 Cal.App.4th 200, the court concluded, based on the totality of the circumstances, that Shawn's confession was involuntary. He was 16 years old, unsophisticated and naïdie;ve, suffered posttraumatic stress disorder, and had a difficult childhood. As to the details of the interrogation leading to Shawn's confession, the interrogating officers repeatedly lied to him and used deceptive tactics, including suggesting that defendant would be treated more leniently and he would be able to see his girlfriend and baby if he confessed. (Id. at pp. 212-215.)
The instant case is distinguishable from Shawn D. in that defendant's confession did not arise from a lengthy police interrogation in which officers repeatedly lied to defendant, used numerous deceptive tactics, threatened to incarcerate loved ones, and promised more lenient treatment in exchange for defendant's confession.
Here, the totality of the circumstances shows that there was no coercion or promises of leniency. Defendant was advised of his rights and charges before he pled guilty. While he was told that referral for a felony prosecution was not likely, this did not foreclose the possibility of criminal prosecution. The statement did not constitute a false promise of leniency nor was defendant told criminal charges would not be filed if he pled guilty to the disciplinary charges. Although the statement, that a felony prosecution was unlikely, may have been misleading, it alone is not a sufficient basis for concluding defendant's confession was involuntary.
Unlike in Shawn D., defendant was not an unsophisticated, naïdie;ve, mentally or physically infirm minor and there is no evidence that his confession arose from being subjected to repeated lies, deceptive tactics, threats, and promises of leniency by officers. Defendant's guilty plea to the disciplinary charge was thus a voluntary confession which the trial court case properly admitted into evidence at trial.
Defendant argues the court violated his constitutional right of confrontation when the court precluded defense counsel from cross-examining Lares regarding the standard of proof applicable at a 115 hearing.
The People assert that defendant forfeited this issue by not making an offer of proof on relevancy. As the court in People v. Foss (2007) 155 Cal.App.4th 113, 127 explains, when a question "is posed on cross-examination and the trial court prevents the defense from delving into the issue, the defendant must still make an offer of proof to preserve the issue for consideration on appeal, unless the issue was within the scope of the direct examination. Normally, if the trial court excludes evidence on cross-examination, no offer of proof is necessary to preserve the issue for consideration on appeal. (Evid. Code, § 354, subd. (c).) However, `[c]ross-examination is limited to the scope of the direct examination. (Evid. Code, § 773.)' [Citation.] If the evidence the defendant seeks to elicit on cross-examination is not within the scope of the direct examination, an offer of proof is required to preserve the issue. [Citation.]"
In the instant case, the People argue cross-examination on the standard of proof applicable at the 115 hearing was beyond the scope of direct examination and therefore an offer of proof was required to preserve the issue on appeal. During defense counsel's cross-examination of Lares, the officer who conducted the 115 hearing, defense counsel asked Lares what the standard of proof was at the 115 hearing. The prosecutor objected on relevance grounds, and the trial court sustained the objection. Defense counsel moved on to another topic, without providing an offer of proof as to why the 115 hearing standard of proof was relevant.
Although on direct examination, the standard of proof applicable at the 115 hearing was not mentioned, the prosecutor asked Lares to explain what a 115 hearing was, how it was conducted, what Lares's involvement was in conducting defendant's 115 hearing, and what occurred during the hearing. Cross-examination on the applicable standard of proof was not outside the scope of this direct examination regarding the 115 hearing, and thus defendant did not forfeit his objection on appeal to the court not allowing evidence of the burden of proof. (See also Evid. Code, § 354, subd. (c).)
Furthermore, regardless of whether defendant forfeited the issue, the record is sufficient for purposes of determining the issue on the merits (Evid. Code, § 354, subd. (a)).
We apply the abuse of discretion standard of review in determining whether the trial court violated defendant's constitutional right to confrontation by precluding Lares from testifying regarding the standard of proof applicable in a 115 hearing. "Under the Sixth Amendment to the United States Constitution, a defendant has the constitutional right to confront the witnesses against him and to cross-examine his accusers. A criminal defendant states a violation of the confrontation clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show bias on the part of the witness, and thereby to expose facts from which the jury could appropriately draw inferences relating to the reliability of the witness. [Citations.] [¶] Nevertheless, a trial court retains broad discretion over the conduct of trial. In the context of its duty to supervise the questioning of trial witnesses, it has wide discretion to limit questions that are marginally relevant and cumulative. Although the exposure through cross-examination of a witness's motivation in testifying is a proper and important function of the constitutionally protected right of confrontation, the confrontation clause does not prevent a trial court from imposing reasonable limits on a defense counsel's inquiry into the potential bias of a prosecution witness. [Citation.] `On the contrary, trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant.' [Citations.] [¶] The confrontation clause simply guarantees an opportunity for effective cross-examination; it does not assure a chance to cross-examine in whatever way, and to whatever extent, the defense might wish. [Citations.]" (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1385-1386.)
Because the evidence sought was, at most, only marginally relevant, the trial court did not violate defendant's right to confrontation in limiting defense's cross-examination of Lares regarding the standard of proof in a 115 hearing. (Del v. Van Arsdall (1986) 475 U.S. 673, 679.) Under well-settled principles governing the admission of evidence, "[o]nly relevant evidence is admissible (Evid. Code, §§ 210, 350), `and all relevant evidence is admissible unless excluded under the federal or California Constitution or by statute. (Evid. Code, § 351; see also Cal. Const., art. I, § 28, subd. (d).)' [Citation.] `The test of relevance is whether the evidence tends "logically, naturally, and by reasonable inference" to establish material facts . . . .' [Citation.]" (People v. Harris (2005) 37 Cal.4th 310, 337 (Harris).)
The trial court enjoys broad discretion in determining the admissibility of evidence. On appeal, we must uphold the court's ruling unless there is a clear showing of an abuse of discretion. (See Harris, supra, 37 Cal.4th at p. 337.)
In the instant case, the trial court excluded as irrelevant testimony regarding the standard of proof in a 115 hearing. The standard of proof required for revocation of custody credits at a 115 hearing is "some evidence." (In re Scott (2003) 113 Cal.App.4th 38, 44.) This burden of proof is lower than that required in a criminal trial. Defendant argues testimony regarding the lower burden of proof was relevant to the weight the jury should give defendant's guilty plea since defendant's guilty plea at the 115 hearing to drug possession was not equivalent to pleading guilty to a criminal charge for drug possession.
We conclude there was no abuse of discretion in excluding cross-examination on the burden of proof since the evidence had only marginal relevance, and even if the trial court abused its discretion in excluding the evidence, the evidentiary error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)
The excluded evidence as to the 115 hearing burden of proof was relevant to the extent it established that defendant's guilty plea to the disciplinary charge differed from a criminal guilty plea and did not carry the same weight, since it was easier to prove the prison disciplinary charge. But this was apparent from other evidence presented to the jury, such as Lares's testimony regarding the 115 hearing. He explained that the hearing was conducted by a prison official (Lares) inside the prison. Defendant did not have an attorney, the proceedings were not recorded, and defendant was informed that criminal charges were not likely. It was thus apparent that the prison disciplinary hearing differed from a criminal trial in that a 115 hearing was less formal, defendant had fewer rights and protections, and the consequences were less significant than in a criminal trial.
There was also substantial evidence of defendant's guilt, even in the absence of evidence of his guilty plea. There was evidence heroin and marijuana were found in defendant's laundry bag tied to his bunk bed headboard, near his pillow; the drugs were found during a random search; inmates normally did not go into another inmate's bunk area; an inmate would not tend to neglect such a large quantity of drugs worth $6,000; defendant had fresh needle puncture marks on his arm, indicating he had recently ingested heroin and thus knew about the heroin; and defendant's urinalysis contained morphine and codeine, consistent with the use of heroin. Morphine and codeine are direct metabolites
In addition, defense counsel told the jury during closing argument that the 115 hearing was not the same as a criminal trial. The 115 hearing was an administrative hearing, not a jury trial, and took place inside the prison. Defendant did not have an attorney and the hearing was not recorded. Defense counsel summarized Lares's testimony as to what Lares normally did when conducting a 115 hearing and described the written form defendant received, advising defendant of his disciplinary charges and rights. Defense counsel told the jury, ". . . you can't assume that a guilty plea in this case was exactly what it would be in this proceeding."
Defense counsel further argued: "[A]s you heard from Mr. Valadez, you heard the circumstances were that he plead guilty because he was good for one of those things. He wasn't for the other, but it didn't really matter at that point. He was going to get 90 days. He didn't think it was going to matter whether he fought the case or whether he pled guilty at that point, because he thought the punishment was going to be the same result, and the consequence was going to be the same." Defense counsel also argued that defendant pled guilty to the prison disciplinary charges because he did not want to be a snitch.
Despite the trial court's exclusion of evidence as to the burden of proof applicable in a 115 proceeding, defendant was not prejudicially deprived of his confrontational rights since he was permitted to argue fully the difference between a 115 guilty plea and a guilty plea to a criminal charge. Furthermore, the trial court instructed the jury that it was to consider the guilty plea, "along with all the other evidence," and it was up to the jury "to decide how much importance to give to the statement." The court cautioned the jury to consider such statement tending to show his guilt. The court also instructed the jury that it could not convict defendant based on his guilty plea alone. Other evidence showing he committed the charged offenses, beyond a reasonable doubt, was required. (CALCRIM Nos. 358, 359.)
Even assuming, without deciding, that the trial court erred in excluding evidence of the burden of proof in a 115 hearing, such error was harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 24.)
Defendant contends the trial court violated his Sixth Amendment right to confront adverse witnesses by allowing Graas's testimony as to the presence and quantity of drugs found in defendant's urinalysis. Graas's testimony was based on testing and reports by nontestifying lab analysts. Defendant complains that he was deprived of the right to cross-examine the analysts.
Defendant moved in limine to exclude evidence of his urine test results and Graas's testimony. Defendant argued the urinalysis was irrelevant and more prejudicial than probative. Relying on People v. Rutterschmidt (2009) 176 Cal.App.4th 1047, review granted December 2, 2009, S176213 (Rutterschmidt), the prosecutor moved in limine to allow Graas's testimony, even though Graas did not perform the urinalysis.
On November 30, 2009, the trial court tentatively ruled Graas's testimony was admissible under Rutterschmidt, pending a 402 hearing. Three days later, on December 2, 2009, the California Supreme Court granted review in Rutterschmidt. The issue is currently under review in numerous cases pending before the California Supreme Court.
During the 402 hearing on December 2, 2009, Graas testified to the following. Graas was director of the laboratory where defendant's urinalysis was conducted and had been directly involved in operating the laboratory ever since its inception in 1988. The lab processed 150,000 patient samples a month according to standard operating procedures and protocol.
Graas did not personally perform defendant's urinalysis but discussed the results with the analysts who performed it. Several people were involved with the analysis, with the department supervisor, Dawson Leachman, signing the records, standards, and controls for the sample. A panel of tests were run on the sample. There is not a particular test for specifically identifying heroin.
The primary metabolite of heroin is 6-acetyl morphine. It has a "half life" of 25 minutes, which means half the compound is metabolized or destroyed during that time and the remaining amount is destroyed thereafter according to a logarithmic time frame. In addition, during that time, the compound is not always visible. Some people do not excrete it. The lab was asked to determine whether 6-acetyl morphine was present in defendant's urine.
Morphine and codeine are the principal markers for heroin. They can also be found in urine as metabolized byproducts of heroin. The half life of morphine is two to four days. Defendant's urinalysis showed the presence of morphine and codeine, metabolites of heroin. However, the morphine and codeine did not necessarily come from heroin. The presence of morphine and codeine was thus consistent with heroin use but was not definitive. It was also consistent with ingesting morphine and/or codeine.
After hearing Graas's testimony, the trial court held that Graas's testimony regarding defendant's urinalysis was admissible at trial.
During the trial, Graas testified as to his educational and professional background in chemistry and toxicology. He had owned and operated the licensed toxicology lab for 21 years. The lab screened for controlled substances about 150,000 urine samples a month. As the lab director, Graas oversaw the rigorous quality control of the lab on a daily basis, including overseeing the standard operating procedures, their creation, and procedural changes. Graas was also involved in training and hiring. Graas was familiar with each of approximately 50 employees at the lab. All test results were validated pursuant to standard operating procedures. Graas was personally involved in validating all test results.
The California Department of Corrections and Rehabilitation routinely sends 50,000 to 70,000 urine samples a month to Graas's lab. Graas explained the handling and testing procedures when a sample is received at the lab and tested for drugs. The test results are documented. Dawson Leachman, whom Graas trained, supervises the scientists or analysts that review the test results. Analyst Saroji Ahileswaran, whom Graas also trained, performed the confirmatory tests.
Graas's lab received from CRC defendant's urine sample collected on May 23, 2009. In preparing to testify, Graas reviewed how the sample was processed and the confirmatory testing on it. Graas was able to determine whether proper testing procedures were followed. The test results were consistent with the use of heroin since there was morphine and codeine in defendant's urine, with the amount of morphine exceeding that of codeine. Heroin is metabolized very quickly and therefore it usually does not show up. It therefore is virtually impossible to test directly for the heroin compound, 6-acetyl morphine, heroin's primary metabolite. The lab tested for 6-acetyl morphine but the results were negative. The absence of this did not necessarily preclude the use of heroin since the compound's half-life is so short. Its half-life, during which it breaks down in the urine, is from six to 25 minutes, depending on the actual dose of heroin.
The presence of morphine, along with a small amount of codeine, which is a contaminant in heroin, indicated defendant had used heroin. The presence of morphine and codeine, however, was also consistent with using morphine and/or codeine, or one or both drugs along with heroin.
Defendant contends the trial court violated his constitutional right to confrontation and cross-examination because Graas's testimony discussed the results of tests performed by analysts Leachman and Ahileswaran, who did not testify. Defendant argues the prosecution was required under Melendez-Diaz v. Massachusetts (2009) 557 U.S. __ [129 S.Ct. 2527, 2532] (Melendez-Diaz), to call the analysts who performed the tests to the stand so that defendant could cross-examine them. We disagree.
The Sixth Amendment to the United States Constitution, made applicable to the states through the Fourteenth Amendment (Pointer v. Texas (1965) 380 U.S. 400), provides that "`[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.'" In Crawford v. Washington (2004) 541 U.S. 36 (Crawford), the United States Supreme Court held that the Sixth Amendment guarantees a defendant's right to confront those "who `bear testimony'" against him. (Id. at p. 51.)
Testimonial statements of a witness who does not appear at trial are inadmissible unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness. (Crawford, supra, 541 U.S. at pp. 53-54.) Whether a statement is testimonial presents a question of law, which we review de novo. (See People v. Seijas (2005) 36 Cal.4th 291, 304.)
A determination as to whether a statement is testimonial is key to deciding whether a defendant's right to confront or cross-examine witnesses has been violated. In Crawford, the United States Supreme Court recognized several types of "testimonial" statements, including, but not limited to, ex parte in-court testimony or its functional equivalent, i.e., material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements, and statements made under circumstances that would lead an objective witness reasonably to believe that the statement would be used at a later trial. (Crawford, supra, 541 U.S. at pp. 51-52; Melendez-Diaz, supra, 557 U.S. at p. __ [129 S.Ct. at p. 2531].)
In People v. Geier (2007) 41 Cal.4th 555 (Geier), the California Supreme Court reviewed Crawford, Davis v. Washington (2006) 547 U.S. 813, 822, and other confrontation clause cases to determine whether allowing the prosecution's DNA expert to testify based on another unavailable analyst's test results was a violation of the Sixth Amendment. (Geier, supra, 41 Cal.4th at p. 596.) In holding such testimony was permissible because it was not based on testimonial statements, the court in Geier explained that a hearsay statement is "testimonial if (1) it is made to a law enforcement officer or by or to a law enforcement agent and (2) describes a past fact related to criminal activity for (3) possible use at a later trial. Conversely, a statement that does not meet all three criteria is not testimonial." (Id. at p. 605.) The court in Geier held that DNA testing reports do not meet the second criterion because they "constitute a contemporaneous recordation of observable events rather than the documentation of past events." (Ibid.)
The Geier court also concluded that, when analysts performing DNA testing contemporaneously record their actions, observations, and test results, they are not acting to incriminate a defendant because their reports have the potential to be either inculpatory or exculpatory. Therefore, even though analysts may be working for the police and can reasonably anticipate the use of the test results at trial, they are not acting as accusatory witnesses, making testimonial statements when they prepare their reports. (Geier, supra, 41 Cal.4th at pp. 605-607.) The court in Geier thus held the DNA testing report was not testimonial. Therefore admission of the report, even though defendant was unable to cross-examine the analyst who prepared it, did not conflict with Crawford or violate the defendant's Sixth Amendment rights. (Geier, at pp. 605-607.)
After Geier was decided, the United States Supreme Court held in Melendez-Diaz that the Sixth Amendment precluded admission into evidence of affidavits by government laboratory analysts, verifying that a seized substance was cocaine. (Melendez-Diaz, supra, 557 U.S. at pp. __-__ [129 S.Ct. at pp. 2531-2532].) The Supreme Court concluded the affidavits were testimonial statements because they were the functional equivalent of live, in-court testimony and were "`made under circumstances which would lead an objective witness reasonably to believe that the statement[s] would be available for use at a later trial.'" (Id. at p. __ [129 S.Ct. at p. 2531].) Additionally, the court in Melendez-Diaz concluded the analysts were accusatory witnesses because the affidavits proved facts necessary to the prosecution's case. (Id. at pp. __-__ [129 S.Ct. at pp. 2533-2534].)
Defendant argues Melendez-Diaz implicitly rejected the Geier court's reasoning supporting its holding that DNA testing reports are not testimonial. The California Courts of Appeal are in disagreement as to whether Geier remains good law after Melendez-Diaz. This issue is currently pending before the California Supreme Court. Our court has not yet addressed the issue in a published opinion.
We conclude Geier remains controlling law since it is distinguishable from Melendez-Diaz. In Geier a witness, subject to cross-examination was allowed to rely on DNA data in reports prepared by others and to offer expert opinion testimony regarding the data. In Melendez-Diaz, the prosecution sought to admit an incriminating affidavit, in which neither the author nor the author's supervisor was subject to cross-examination. In addition, the affidavit was not prepared contemporaneously with the testing and was not a business record. Rather, the affidavit was prepared about a week after the tests were performed solely for use as evidence at trial. (Melendez-Diaz, supra, 557 U.S. at p. __ [129 S.Ct. at p. 2535].)
As in Geier, here, Graas's testimony did not violate defendant's right to confront or cross-examine witnesses since Graas was available for cross-examination and provided expert testimony based on contemporaneously-recorded test results, which were not testimonial. Graas was intimately involved in overseeing the lab testing process and had a Ph.D in clinical chemistry and toxicology. Graas testified he reviewed defendant's urinalysis and provided independent expert opinion regarding the testing procedures and results. Defendant had the opportunity to cross-examine Graas concerning his qualifications, the procedures used to test defendant's urine for drugs, and Graas's conclusions that were based on the lab test results.
The judgment is affirmed.
We concur:
Ramirez, P. J.
Richli, J.
