Opinion
B190281
5-10-2007
THE PEOPLE, Plaintiff and Respondent, v. PLACIDO BOET, Defendant and Appellant.
Patricia A. Andreoni, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General of the State of California, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell, Supervising Deputy Attorney General, and Thomas C. Hsieh, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appellant Placido Boet was convicted, following a jury trial, of two counts of selling a controlled substance, methamphetamine, in violation of Health and Safety Code section 11379, subdivision (a) and one count of possession for sale of a controlled substance, methamphetamine, in violation of section 11378. The trial court sentenced appellant to three years in state prison on the count 1 sale conviction, but suspended execution of the sentence and placed appellant on formal probation for a period of three years. The trial court imposed concurrent terms for the remaining two counts.
Appellant appeals from the judgment of conviction, contending that the trial court erred in denying his motion to suppress evidence, admitting a criminalists laboratory report and using CALCRIM No. 220 to instruct the jury on reasonable doubt. He contends that the errors violated his federal constitutional rights. We affirm the judgment of conviction.
Facts
On August 4, 2005, and again on August 10, 2005, South Gate Police Detective James Hugar purchased a substance which resembled crystal methamphetamine from appellant. The transactions occurred in the 10300 block of California Avenue in South Gate. The substances were analyzed by Criminalist Gary Chasteen, who determined that they were in fact methamphetamine.
On August 24, 2005, South Gate Police Officer Julian Ortiz drove to the area of California and Tenaya Avenues in South Gate in response to an anonymous telephone call reporting suspicious activity in that area involving a white van. Officer Ortiz arrived at the area in uniform and driving a marked patrol car. He saw a white van with a license plate which was similar to the one given in the anonymous call.
When Officer Ortiz got closer to the van, he saw appellant and another man in the back seat of the van. He recognized appellant from previous contacts. Appellant saw Officer Ortiz, then made a motion shifting something from his right shoulder area to his left, where the other man was sitting. The other man then made a similar movement of something to his left.
Officer Ortiz approached the van on foot. The vans sliding door was open. Officer Ortiz asked appellant and his companion to step out of the van. Officer Contreras arrived and searched the van. In the side of the van where Officer Ortiz had seen the other man trying to conceal something, Officer Contreras found a brown paper bag containing five plastic baggies with a white substance resembling methamphetamine inside. He also found a scale, two rolls of plastic wrap and a box with plastic bags. Officer Ortiz asked appellant if the methamphetamine belonged to him. Appellant replied: "Yes." Appellant was arrested.
Officer Contreras booked the items into evidence. Officer Ortiz testified that the evidence was assigned a South Gate Police Department "D.R." of 05-11738 and a laboratory number of J627853.
At trial, the people offered a laboratory report prepared by Criminalist Michelle Lepisto, who analyzed white substances from baggies given to her in an envelope bearing a D.R. number of 05-11738 and a laboratory number of J627853, and determined that the substance was methamphetamine. Lepisto did not testify at trial. Criminalist Chasteen authenticated her report at trial, and provided some testimony about the report. The report indicated that the police stated that the substances belonged to "Jose Rigoberto Garcia." The report itself was entered into evidence.
On October 22, 2005, South Gate Police Detective Antonio Mendez interviewed appellant. After waiving his rights, appellant admitted that he sold drugs to support himself because he was homeless. Detective Mendez specifically asked appellant if he was selling drugs on August 24, 2005, the date his van was impounded and he was arrested. Appellant replied that he was. Detective Mendez asked him if the drugs in the car were his, and appellant said yes. Appellant did not remember how many baggies he had that day.
Discussion
1. Motion to suppress
Appellant contends that the trial court erred in denying his motion to suppress the evidence found in the van, and that this error violated appellants rights under the 4th and 14th Amendments to the United States Constitution. We see no error.
The standard of review of a trial courts ruling on a motion to suppress is well established. We defer to the trial courts factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. (People v. Glaser (1995) 11 Cal.4th 354, 362.)
Here, the trial court found the encounter between appellant and police to be consensual. Appellant contends that he was in fact detained by Officer Ortiz, that this detention was illegal and that his subsequent consent to search was therefore invalid.
Both on appeal and in the trial court, appellant and respondent devote much argument to the anonymous telephone tip received in this matter. The trial court did not base its ruling on the tip. The court found that the officer was legally on patrol when he approached the van, which was on the street with the door open. The officer approached the van and engaged in conversation, which was legal and consensual. No justification was required for this. The officer then asked for and received consent to search. Since we also find that the encounter was consensual, we do not consider whether the anonymous tip was sufficient to justify a non-consensual search.
As our Supreme Court has explained, the United States Supreme Court has set forth the following standard for detentions: "`[A] person has been "seized" within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. [Citation.]" (Wilson v. Superior Court of Los Angeles County (1983) 34 Cal.3d 777, 790.) Thus, when a defendant claims that his consent to a search is invalid because it was obtained during an illegal detention, the question is whether, at the time the defendant consented to the search, a reasonable person in the defendants position would have believed that he was free to leave. (Ibid.)
We have independently reviewed the circumstances surrounding appellants encounter with Officer Ortiz and see nothing in those circumstances which would have caused a reasonable person to believe that he was not free to leave. The police did not order appellant to do anything, did not directly accuse him of wrongdoing, and did not physically restrain him or display any force.
At the hearing on appellants motion to suppress, Officer Ortiz testified that appellants van was parked on a public street when Officer Ortiz first saw it. Officer Ortiz parked his patrol car twenty feet from appellants van and approached the van alone and on foot. The sliding door of the van was open. He engaged in casual conversation with appellant while waiting for his back-up. There is no evidence that Officer Ortiz ordered appellant to stay in the van during this conversation.
Appellant contends that once Officer Ortizs back-up arrived, Officer Ortiz ordered appellant and his companion from the van. On direct examination, Officer Ortiz testified that he "asked" appellant and his companion to step out of the van. On cross-examination, appellants counsel asked Officer Ortiz: "And so you told them to get out of the van?" Officer Ortiz replied: "Yes." Counsel then asked: "Do you know the exact words that you used?" Officer Ortiz replied: "No." Counsel concluded by asking: "When you ordered them out of the van, you were at that time with your partner?" Officer Ortiz replied: "Yes." Thus, there was a conflict in the evidence concerning the nature of Officer Ortizs request to appellant.
The trial court found that the encounter between Ortiz and appellant was consensual and thus impliedly credited Officer Ortizs testimony that he "asked" appellant and his companion to step out of the van. We defer to this implied finding by the trial court, since it is supported by substantial evidence in the form of Officer Ortizs testimony on direct examination.
Once appellant and his companion were out of the van, Officer Ortiz asked for consent to conduct a pat-down search of the men and a search of the van, and received permission from appellant for both. Since we have found that appellant was not detained, we see no basis for finding those consents invalid. Thus, the trial court properly denied appellants motion to suppress. There was no violation of appellants Fourth Amendment rights.
2. Lab report
Pursuant to the public records exception of Evidence Code section 1280, the trial court admitted Criminalist Lepistos report even though she did not testify at trial. Appellant contends that the trial courts admission of this report violated his Sixth Amendment right to confrontation and cross-examination as set forth in Crawford v. Washington (2004) 541 U.S. 36 because the report contained testimonial statements and Lepisto was not available for cross-examination and because it was generated in anticipation of litigation and specifically to support a criminal prosecution. We do not agree.
In Crawford, the U.S. Supreme Court held that the Confrontation Clause prohibits the use of "testimonial" statements made out of court to prove the guilt of an accused unless he is given the opportunity to cross-examine the declarant. (Crawford v. Washington, supra, 541 U.S. at p. 57.) The Court in Crawford declined to give a comprehensive definition of "testimonial," but indicated that "[w]hatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with the closest kinship to the abuses at which the Confrontation Clause was directed." (Id. at p. 66.)
The Court in Crawford also pointed out that: "Various formulations of this core class of `testimonial statements exist: [including, inter alia] . . . `pretrial statements that declarants would reasonably expect to be used prosecutorially [citation] . . . [and] `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, Brief for National Association of Criminal Defense Lawyers et al. as Amici Curiae 3. These formulations all share a common nucleus and then define the Clauses coverage at various levels of abstraction around it." (Crawford v. Washington, supra, 541 U.S. at pp. 51-52.) The Court did not endorse any specific formulation.
Laboratory reports do not contain witness statements, but only show recorded results of well-recognized scientific tests. Thus, they are not testimonial within the meaning of Crawford. (See People v. Johnson (2004) 121 Cal.App.4th 1409, 1412-1413[stating in dicta that lab reports are not testimonial]; Commonwealth v. Verde (2005) 444 Mass. 279, 827 N.E.2d 701, 705-706 [finding lab report that gave weight of cocaine to be non-testimonial because the chemical analysis done using a well-recognized scientific test and was neither discretionary nor based on opinion].)
Even assuming that the report was testimonial, appellant had an opportunity to cross-examine Chasteen about the report. Chasteen testified generally about the standard procedures in the laboratory, including the procedure of making notes at the time of analysis and noting if the seal on an evidence envelope was broken when received by the laboratory, Chasteen noted that Lepistos note stated that the seal was not broken. Chasteen also testified that he reviewed the protocol used by Lepisto to test the substance to determine if it was a controlled substance and that the protocol was within the range of accepted procedures at the laboratory. Specifically, Lepisto performed the same tests as Chasteen. Appellant was free to cross-examine Chasteen about procedures for preparing reports, how testing was done in the laboratory, and the acceptance of the testing procedures by the scientific community.
We recognize that appellants argument on confrontation and cross-examination focuses on the incorrect suspects name on Lepistos report. Appellant ignores the fact that Chasteen testified that the name on the report was provided by police. We have no reason to believe that Lepisto could have shed any light on the police error.
Further, as we set forth above, the D.R. number and laboratory number on Lepistos report matched the D.R. number and lab receipt number on the evidence envelope booked by Officer Contreras, thus linking the substances analyzed by Lepisto to those seized during appellants arrest.
3. Reasonable doubt
Appellant contends that the trial court erred in instructing the jury on reasonable doubt using CALCRIM No. 220, and that this instruction violated his federal due process right to have his guilt determined beyond a reasonable doubt. Respondent contends that appellant has waived this claim by failing to object in the trial court. (People v. Bolin (1998) 18 Cal.4th 297, 327.) We review the claim pursuant to Penal Code section 1259, and see no error.
Penal Code section 1259 permits review of an instruction given by the trial court even though it was not objected to, if the substantial rights of the defendant were affected thereby. "Ascertaining whether claimed instructional error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claim — at least to the extent of ascertaining whether the asserted error would result in prejudice if error it was." (People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.)
CALCRIM No. 220 provides: "The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendant just because he has been arrested, charged with a crime, or brought to trial. [¶] A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove each element of a crime beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt. [¶] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. [¶] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty."
Reasonable doubt may arise from the lack of evidence in a case as well the evidence presented at trial. (People v. Simpson (1954) 43 Cal.2d 553, 566.)
Appellant contends that the above instruction, read together with CALCRIM No. 222 defining the term evidence, improperly tells the jury that reasonable doubt must arise from the evidence presented at trial. He further contends that the error precluded the jury from considering whether reasonable doubt existed based on the lack of evidence to directly identify appellant as the person who possessed the narcotics for sale.
CALCRIM No. 222 defines "evidence" as "the sworn testimony of witnesses, the exhibits admitted into evidence, and anything else I told you to consider as evidence."
The standard for reviewing claims of ambiguous jury instructions is whether there is a reasonable likelihood that the jury applied the instruction in a manner that violates the Constitution. (People v. Frye (1998) 18 Cal.4th 894, 957.) We see no reasonable likelihood that the jury understood and applied the instruction in the manner suggested by appellant.
The plain language of the instruction tells the jury that "[u]nless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty." The only reasonable understanding of this language is that a lack of evidence could lead to reasonable doubt. Thus, we see no violation of appellants federal constitutional rights
Further, even assuming for the sake of argument that the instruction could be understood by the jury as stating that reasonable doubt could only come from the evidence presented at trial, that understanding would not have led to the harm claimed by appellant. Criminalist Lepistos laboratory report was part of the evidence. That report showed the police department numbers associated with the substance seized when appellant was arrested, but also showed the name of a suspect other than appellants. If the jurors were to have reasonable doubt about the possession charge, it would arise from that discrepancy.
Disposition
The judgment is affirmed.
We concur:
TURNER, P. J.
KRIEGLER, J.