Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA284533. Rand S. Rubin, Judge.
Patricia A. Scott, 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, Assistant Attorney General, Scott A. Taryle, Joseph P. Lee, and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
RUBIN, J.
Charles Jones appeals from the judgment entered after he was convicted of murder committed during a forcible sex crime. We hold that because Jones’s arrest was lawful, the trial court did not err by refusing to suppress evidence of both his post-arrest statement to the police and his voluntary DNA sample. We also hold that the trial court properly limited evidence that someone else might have killed the victim, that there was substantial evidence the killing occurred during a forcible sex offense, that it was proper for a DNA lab supervisor to testify about the incriminating DNA test results, and that the omission of certain chain of custody evidence does not require reversal. We therefore affirm.
FACTS AND PROCEDURAL HISTORY
On the morning of June 9, 1993, the nearly nude body of Mara R. was found in the restroom of a West Florence Avenue carwash in Los Angeles. Next to it was a used condom and a condom wrapper. She had been strangled to death, but by hand, not by a cord or other device. Later testing showed Mara had used cocaine and liquor before her death. According to Mara’s cousin, Mara was a rock cocaine addict who traded sex for money to pay for her drug habit. The cousin said that on the day before Mara was killed, she had been on a rock cocaine binge for several days.
We use the victim’s first name, last initial as it appears in the amended information.
The crime went unsolved until sometime in 2005, when Los Angeles Police Department (LAPD) Detective Timothy Marcia learned that Charles A. Jones might have been the killer. In May 2005, Marcia was in Louisiana because he had learned that Jones might have committed sex crimes there in the early and mid-1990’s. By that time, Jones was on parole for a drug conviction that occurred after Mara’s death. Agents from the state Department of Corrections Law Enforcement and Investigations Unit (LEIU) were asked by the LAPD to conduct undercover surveillance of Jones both as a matter of public safety and because there was information that Jones was violating his parole by going into high drug use areas and by associating with known gang members.
The record and the parties’ briefs do not explain how this lead was obtained.
On the third day of surveillance, LEIU agents saw Jones with three other men in a Skid Row area known for drug sales. The three men appeared to be under the influence, and one was holding a needle. The agents detained Jones and his three companions. The three other men were parolees, two admitted they were under the influence, one had a hypodermic needle and a pocketknife, and one admitted to being a gang member. The agents arrested Jones for violating his parole, but the charges were dismissed at a later parole revocation hearing.
We set forth the details surrounding the surveillance of Jones and his arrest in section 1 of our Discussion, post.
Detective Marcia interviewed Jones the day after the arrest. After being advised of his Miranda rights, Jones agreed to talk. Jones said he used to live with his mother a few blocks from the carwash where Mara was found. Jones at first denied knowing Mara. He later said that he both used and sold drugs, and sometimes gave Mara drugs and “watched her back.” He admitted to using drugs and having sex with Mara, but denied ever being in the carwash restroom. Jones said he never argued with Mara about drugs or forced her to have sex with him. The last time Jones saw Mara was right after they had sex, but she was alive when he left her. He denied using a condom and said the only DNA from him that could have been found would have to be inside Mara’s body after they had unprotected sex somewhere other than the carwash. When asked about allegations of two sexual assaults in Louisiana, Jones admitted knowing his accusers, but said both women lodged false complaints after taking drugs and having voluntary sex with him. At the end of the interview, Jones agreed to give a DNA sample, which later testing matched with the contents of the used condom found alongside Mara’s body.
Miranda v. Arizona (1966) 384 U.S. 436.
Jones was charged with the murder of Mara, along with a special allegation that the killing occurred during the commission or attempted commission of rape or oral copulation by force. (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(17)(C), (F).) Before trial, he moved to suppress his statement to the police and the DNA results obtained from the sample he provided, on the ground that his arrest was based on false information that an arrest warrant had been issued for him, making the arrest unlawful. After hearing testimony from some of the police officers and LEIU agents involved in the arrest, the court found that the arrest was lawful because it was based on the reasonable belief that Jones had violated the terms of his parole.
The suppression hearing is described in more detail in part 1 of our Discussion, post.
In addition to the evidence described above, the two women who claimed Jones tried to rape them in Louisiana testified. Lynell S. said that in March 1991, Jones asked for some crack cocaine, and she gave him one rock. As she walked away, he wrapped a belt around her neck and dragged her into a van that was parked nearby. He tightened the belt and told her to “go down on him.” She refused, and passed out from the pressure of the belt around her neck. When she came to, she was naked and was wet between her legs. Treniece S. testified that one night in July 1995, she was high on crack cocaine and accepted a ride from Jones. After feigning trouble with the brakes, Jones stopped the car, wrapped a belt around her neck, and dragged her out of the car and onto the ground. Jones said, “Bitch, I been wanting some of you. Take your clothes off.” Ultimately, she was able to fight Jones off and escaped.
Jones tried to introduce evidence that Chester Turner killed Mara. Turner was convicted of two somewhat similar murders in the same vicinity that took place in April and May 1993. The trial court did not allow Jones to introduce as evidence crime scene photos of the victims of those murders, or evidence identifying Turner or linking him to the murder of Mara. Instead, a police detective who investigated one of the two crimes testified that a woman was found dead under similar circumstances and that someone else had been convicted of that killing.
A jury convicted Jones of murder and found the special sex crime allegation was true. On appeal, Jones contends: (1) his police interview and the DNA evidence should have been suppressed because his arrest was unlawful; (2) the trial court erred by excluding evidence that Turner killed Mara, along with the photos of Turner’s victims; (3) there was insufficient evidence the murder occurred during the commission of a completed or attempted forcible sex offense; (4) allowing the DNA lab supervisor to testify instead of the analysts who actually performed the tests violated his confrontation rights under the United States Constitution; and (5) the DNA test results should have been excluded because the prosecution failed to establish the chain of custody of his DNA sample.
DISCUSSION
1. Jones’s Motion to Suppress Was Properly Denied
A. Background to Motion and Standard of Review
Jones moved to suppress evidence of his post-arrest interview and the results of the DNA sample he gave after that interview on the ground his arrest was unlawful. (Pen. Code, § 1538.5.) He contends on appeal, as he did below, that the LEIU agents who arrested him did so based on false information that an arrest warrant had been issued. Even though the agents said they arrested Jones because they believed he had violated his parole, Jones points to the dismissal of the charges at the parole revocation hearing, along with certain inconsistencies in the evidence, as conclusive proof that the agents did not have a reasonable belief any parole violations occurred, and that the true reason for the arrest was their erroneous belief that an arrest warrant had been issued.
We apply the substantial evidence rule to any express or implied factual findings by the trial court and consider the factual record in the light most favorable to the court’s ruling. However, we exercise our independent judgment in determining whether the arrest was legal on the facts the trial court found true. (People v. Woods (1999) 21 Cal.4th 668, 673-674.)
2. Evidence at the Suppression Hearing
Jones’s motion to suppress relied primarily on an undated report by an LEIU agent named Pulido to Rick Rimmer, an assistant director at LEIU. The report said that attempts to locate and track Jones on May 13 and 16 were unsuccessful. Jones was finally spotted and followed throughout the day on May 17, 2005. At around 2:00 p.m., LEIU Agent Jesus Barron “was informed by Detective Flores [LAPD Detective Marcia’s partner] that a warrant was now active for Parolee Jones. This writer then contacted LEIU Unit Supervisor J. Widener who contacted Det. Flores. The decision was then made to place Parolee Jones into custody. At approximately [2:15 p.m.] the... LEIU Agents briefed the arrest.” Jones also played a recording of his post-arrest interview by Detective Marcia, where Jones said the agents who arrested him “said I had a warrant for something.” Finally, Jones points to the hearing officer’s written decision to dismiss the parole revocation charges against him. After noting that LEIU Agents Pulido, Barron, and Montgomery testified, the decision notes that “[n]o agents testified that they observed [Jones] to be in the company of several other individuals prior to the arrest... [or] that they observed [Jones] loitering in the area.” As a result, both charges were dismissed due to insufficient evidence.
According to Jones, this evidence shows that the LEIU agents arrested him based on the mistaken belief that there was a warrant for his arrest, and that there was no reasonable basis to believe he had violated parole.
Contrary evidence came from John Widener, supervisor of the LEIU Los Angeles office, and the agent in charge of the team assigned to keep track of Jones. Widener was not out in the field with his agents, but kept in constant contact with them by radio or phone. According to Widener, he was never told by anyone that there was a warrant for Jones’s arrest. Instead, his agents told him that Jones was spotted in high drug use areas and had been seen in the company of gang members, both of which were parole violations. He told his agents to arrest Jones when “we had enough parole violations....” The decision to finally arrest Jones was based on those parole violations, and Pulido’s reference to an arrest warrant in his report was incorrect.
LEIU Agent Barron was one of the agents following Jones, and took part in the arrest. Barron said he did not see any parole violations by Jones the first two days of surveillance. On the third day, May 17, 2005, Barron saw Jones in a Skid Row drug use area. Jones was holding a bag, and was handing items from the bag to a couple of homeless persons. Jones disappeared from view for a short time, then reemerged wearing different clothes. He was now with three other men. All three appeared to be under the influence, and one was holding a needle. Widener decided the agents should make the arrest based on the parole violations the agents observed. After Jones and his three companions were stopped and searched, the agents learned that all three of the other men were parolees, one was a gang member, and another was carrying a pocketknife and a needle. The arrest was not made based on any warrant, and Barron had not been told a warrant had issued.
LAPD Detective Marcia testified that no warrant had been issued for Jones’s arrest, and that he was never told that a warrant existed. LAPD Detective Flores and LEIU Agent Pulido did not testify at the suppression hearing.
C. The Court’s Ruling Was Correct
The trial court found that Widener, the lead LEIU agent who authorized the arrest, had not been told about an arrest warrant for Jones. The court also believed Barron’s testimony that Jones was arrested for possible parole violations because they saw Jones in the company of gang members and persons taking drugs. The court rejected Jones’s contention that the arrest was based on the agents’ belief a warrant had been issued, stating: “I also think it’s very interesting that they did not arrest [Jones] until they observed certain conduct, which they believed in good faith was in fact a violation of parole. [¶] That’s the only explanation really for following [Jones] around for two or three days. If they really wanted to just go ahead and arrest him and say there’s a warrant, why did they have to follow him for two days? It just doesn’t make sense.” As for the findings from the parole revocation hearing, the court said it did not have enough information or sufficient background to know what it meant. Relying on that decision as evidence that the LEIU agents saw nothing that led them to believe a parole violation occurred would be speculative, the trial court said, and did not allow for a factual finding. The court concluded by finding that the LEIU agents actions were “in good faith, reasonable, and with probable cause based on the alleged hearing violations.”
Jones’s appellate argument is evidentiary, and rests on the notion that the LEIU agents arrested him based on their mistaken belief that a warrant for his arrest had been issued. Jones contends that because the LAPD – presumably through Detective Flores – knew that no warrant existed, that knowledge was imputed to the LEIU agents and deprived them of the right to assert a good faith belief in the existence of a warrant. Jones also cites decisions concerning a parolee’s continued, albeit diminished, constitutional privacy rights. We agree that the statements from Pulido’s report are strong evidence that the LEIU agents arrested Jones after learning there was an active warrant for his arrest. That evidence was contradicted, however, by the testimony of Widener, Barron, and Marcia. We cannot hold that their testimony was incredible or unworthy of belief, and the trial court, as finder of fact, was free to accept it. Because it did so, we must affirm its finding that Widener, who ordered the arrest, and Barron, one of the agents who took part in the arrest, did so without knowledge of or belief in the existence of an arrest warrant, but did so based solely on observations of what looked like parole violations. Based on the factual finding, we hold that the arrest was lawful.
2. Claim of Error by Excluding Some Third Party Culpability Evidence
Chester Turner was convicted of the strangulation murders of two women within eight weeks of Mara’s death. The nude or nearly nude victims were found six and ten blocks away from the carwash where Mara was found. A used condom was found at the scene of one of the murders, but DNA testing excluded both Turner and the victim as having had contact with that condom. However, Turner’s DNA from Turner’s semen was found inside or on the bodies of both victims. Jones’s request to introduce evidence about those two other murders, along with crime scene photos and Turner’s identity, were denied because it had little or no probative value and would be misleading and confusing. The trial court did allow the detective who investigated one of the two murders to testify that in May 1993, a woman was found strangled to death about a mile from where Mara was found, that the victim was naked from the waist down, that a used condom was by her side, that the person who attacked her did not use a condom, and that someone other than Jones was convicted of that crime.
Jones contends the trial court erred by excluding the crime scene photos and evidence that Turner was the perpetrator of the two other murders and therefore might have also killed Mara. Third party culpability evidence is admissible if it is capable of raising a reasonable doubt of defendant’s guilt. It should be treated like any other evidence: if relevant, it is admissible unless its probative value is substantially outweighed by the risk of undue delay, prejudice, or confusion. (People v. Hall (1986) 41 Cal.3d 826, 833-834.) Remote evidence that shows only another person’s mere motive or opportunity to commit the crime is not enough to raise a reasonable doubt of the defendant’s guilt, however. Instead, there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime. (Id. at p. 833.) We review the trial court’s ruling under the abuse of discretion standard. (People v. Cole (2004) 33 Cal.4th 1158, 1198.)
Apart from the similarity of the other two murders, there was no evidence linking Turner to the death of Mara. In Turner’s two crimes, his semen was found on or inside the victims’ bodies, but there is no evidence of that here. Instead, it was Jones’s DNA that was found in the condom next to Mara. Because any link between Turner and the death of Mara was speculative at best, the trial court did not err by excluding the disputed evidence.
Arguably, therefore, the trial court granted Jones a boon by allowing the jury to hear that someone else was convicted of committing another similar murder at about the same time and near the same location, as the murder of Mara.
3. There Was Sufficient Evidence the Killing Occurred During a Forcible Sex Crime
In order to convict Jones of murdering Mara while committing or attempting to commit rape or forcible oral copulation, the prosecution had to show that Jones intended to commit those sex acts, and that they formed one continuous transaction with the killing. (People v. Proctor (1992) 4 Cal.4th 499, 536.) This does not require proof of a strict causal relationship between the sex crime and the murder. It also does not require a technical inquiry concerning whether the actual or attempted sex crime was completed or abandoned before the murder was completed. (People v. Sakarias (2000) 22 Cal.4th 596, 624.) Jones contends there was insufficient evidence that Mara was killed during the commission or attempted commission of rape or forcible oral copulation. He bases this on the absence of Mara’s DNA from the condom found near her body, and by the fact that fecal matter was found in her underwear and pants, indicating that she was clothed at the time of her death.
When a defendant challenges the sufficiency of the evidence to sustain a judgment, we review the whole record in the light most favorable to the judgment to determine whether there was substantial evidence upon which a trier of fact could find the defendant guilty beyond a reasonable doubt. Evidence is substantial when it is reasonable, credible, and of solid value. (People v. Prince (2007) 40 Cal.4th 1179, 1251.) We presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence, whether it was direct or circumstantial. (Ibid.)
Mara was found strangled to death, nearly nude, next to a condom containing Jones’s semen. That by itself is evidence that she was killed as part of an attempt to force her to commit a sex act with Jones. That she died while her pants were on does not preclude the possibility that her top was off at the time. The absence of her DNA from the condom suggests that she died while Jones was preparing to rape her, before penetration could occur. That her pants were removed after her death suggests that Jones might not have been aware she had died and was merely continuing to undress her. Combined with evidence that he had tried to strangle two other women, albeit with a belt and not his hands, in order to force them to commit a sex act, we hold there was ample evidence for the jury to conclude that Jones killed Mara while attempting to rape her.
4. The DNA Lab Supervisor’s Testimony Did Not Violate Jones’s Confrontation Clause Rights
The DNA tests showing that Jones’s semen was inside the condom found next to Mara were conducted by the Orchid Cellmark laboratory. Although the tests were performed by various Cellmark analysts, they did not testify. Instead, Supervisor Jody Hrabel testified about DNA in general, the tests that were performed, and her own independent analysis of the DNA results based on those tests. According to Hrabel, the DNA from the condom matched that of Jones to an extremely high probability. Hrabel was cross-examined at length by Jones’s trial counsel.
Under the Sixth Amendment to the United States Constitution, a defendant in a criminal trial has the right to confront and cross-examine adverse witnesses. The essence of a confrontation clause violation is the use of a hearsay declarant’s testimonial or quasi-testimonial statements. 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.) Jones contends that having Hrabel testify instead of the analysts who actually performed the DNA tests violated his constitutional right to confront and cross-examine the witnesses against him, under the rationale of Melendez-Diaz v. Massachusetts (2009) 557 U.S. ___ [129 S.Ct. 2527] (Melendez-Diaz). Respondent contends Melendez-Diaz does not apply and that Hrabel’s testimony was permitted by our Supreme Court’s decision in People v. Geier (2007) 41 Cal.4th 555 (Geier).
A. The Geier Decision
The defendant in Geier, supra, 41 Cal.4th 555, was convicted of murder and rape based in part on DNA evidence tested by Cellmark. The analyst who performed the testing did not testify at trial. Instead, a lab director who cosigned 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 disparate 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.” (Ibid.) 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.)
B. The Melendez-Diaz Decision
The defendant in Melendez-Diaz, supra, 129 S.Ct. 2527, was convicted in Massachusetts state court of selling cocaine. A substance in the defendant’s possession that was 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 that 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.) In short, “[t]he 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.)
C. Geier, Not Melendez-Diaz, Applies to this Case
Respondent contends Melendez-Diaz is limited to the use of affidavits to prove the results of scientific lab tests, permitting Reynolds to testify under Geier. We agree.
The California Supreme Court recently granted review in four Court of Appeal decisions that took 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 parties discuss Rutterschmidt and Dungo, but none of these cases is citable authority.
We are bound to follow Melendez-Diaz in cases involving similar facts. (Austin v. Wilkinson (N.D.Ohio 2006) 502 F.Supp.2d 660, 671; People v. Superior Court (Williams) (1992) 8 Cal.App.4th 688, 703.) At issue in Melendez-Diaz was the prosecution’s ability to prove a substance was cocaine by way of an ex parte affidavit devoid of any details apart from the unsupported conclusion that unspecified test results showed it was cocaine. The court held that for purposes of the confrontation clause, the affidavits were the same as depositions, declarations and other testimonial statements. (Melendez-Diaz, supra, 129 S.Ct. at pp. 2531-2532.) It did not reach the issue decided in Geier, supra, 41 Cal.4th 555 and raised here – whether a supervisor from a lab that conducted DNA tests can render her own independent opinion during a trial based on the results of lab tests conducted by an analyst employed at the lab, subject to full cross-examination by the defendant.
Nor did the Melendez-Diaz court hint, much less suggest, that its reasoning would extend to these circumstances. Instead, Justice Scalia, writing for the majority, framed the question before the court as “whether those [drug analysis] affidavits are ‘testimonial,’ rendering the affiants ‘witnesses’ subject to the defendant’s right of confrontation under the Sixth Amendment.” (Melendez-Diaz, supra, 129 S.Ct. at p. 2530.) Its holding was limited to a determination that the “Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits....” (Id. at p. 2542, fn. omitted.) Even though Justice Thomas joined in the 5-4 majority vote, he wrote a separate concurring opinion stating his belief that the confrontation clause extended to only core testimonial statements, while clarifying that he joined the majority solely because the affidavits at issue fell within that class. (Id. at p. 2543 (conc. opn. of Thomas, J.).)
We observe that the United States Supreme Court denied a petition for certiorari in Geier just four days after deciding Melendez-Diaz. (Geier, supra, 41 Cal.4th 555, cert. den. Jun. 29, 2009, No. 07-77770, sub nom. Geier v. California (2009) ___ U.S. ___ [129 S.Ct. 2856].)
In short, Melendez-Diaz did not overrule Geier and its holding has no application here. Accordingly, we deem Geier to be controlling authority on this issue and we hold that under Geier, having Hrabel testify instead of the lab analysts – subject to vigorous cross-examination – did not violate Jones’s confrontation rights.
5. Chain of Custody Issue
The DNA sample from Jones that was tested against the DNA in the condom found by Mara was supposedly the product of a mouth swab performed by LAPD Detective Lambkin at the end of Jones’s police interview. Although Detective Marcia testified that he saw Lambkin take that sample, and Hrabel testified that Cellmark was testing a sample sent by the LAPD, neither Lambkin nor anyone else testified to the chain of custody for the sample Lambkin took. Because the chain of custody for that sample, from the time it was taken until the time it arrived at Cellmark, was not established, Jones contends the DNA evidence should have been excluded. Jones did not object to the chain of custody evidence, however, and the issue is therefore waived. (Evid. Code, § 353, subd. (a); People v. Baldine (2001) 94 Cal.App.4th 773, 779.)
Jones alternatively contends that his lawyer’s failure to object amounted to ineffective assistance of counsel. Jones must show his lawyer’s performance was deficient because his representation fell below an objective standard of reasonableness under prevailing professional norms, and that he was prejudiced by the substandard performance. To show prejudice, Jones must show that but for his lawyer’s errors, there is a reasonable probability the result at trial would have been favorable to him. (People v. Medina (2009) 171 Cal.App.4th 805, 819.) We must be highly deferential when reviewing defense counsel’s performance, and there is a strong presumption that his conduct fell within the broad range of reasonable representation. (People v. Snyder (2003) 112 Cal.App.4th 1200, 1223.) We must look to see if the record contains any explanation for defense counsel’s conduct. If the record sheds no light on the matter, the contention must be rejected unless counsel was asked for an explanation and failed to provide one, or unless there simply could not be a satisfactory explanation. (Ibid.)
The record does not shed any light on the matter. Nor does it show that defense counsel was asked for, but refused to provide, an explanation for his failure to object to the DNA sample’s chain of custody. However, we cannot say that no satisfactory explanation could exist. It is common and proper for counsel to stipulate to the chain of custody. Flaws in that chain are usually just technical omissions that may be easily cured and are unworthy of debate. (People v. Lucas (1995) 12 Cal.4th 415, 445-446; People v. Diaz (1992) 3 Cal.4th 495, 560.) We therefore reject Jones’s ineffective assistance of counsel claim.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BIGELOW, P. J., LICHTMAN, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Division Four of this court has also recently addressed the issue. (People v. Vargas (2009) 178 Cal.App.4th 647 (Vargas).) Vargas was convicted of rape. At trial, a nurse who conducted a sexual assault exam of the victim testified about the victim’s statements during the exam that described the assault. The victim, a minor, did not testify. The Vargas court questioned whether Geier had any continued viability in light of Melendez-Diaz, but noted that Justice Thomas’s concurrence cast doubt on whether its reasoning might be extended to items that were not in the core class of testimonial statements, such as affidavits. (Vargas, at pp. 659-660.)
Analyzing the case under pre-Melendez-Diaz authority such as Geier, the Vargas court concluded that the victim’s statements to the examining nurse were testimonial because they were made as part of the evidence gathering process for possible use at trial, instead of as part of a medical examination designed to diagnose an injury and render treatment. (Vargas, supra, 178 Cal.App.4th at pp. 660-662.) The confrontation clause violation was held harmless as to Vargas’s conviction of forcible rape, but was not harmless, and therefore required reversal of, his conviction for rape by penetration with a foreign object, because the only evidence to support that charge came from the nurse’s testimony. (Id. at pp. 662-664.)
The parties have not cited Vargas, supra, 178 Cal.App.4th 647 . Because it concerned an entirely different factual setting, while our facts are nearly identical to those in Geier, supra, 41 Cal.4th 555 we deem Vargas inapplicable to our analysis.
Most recently, our colleagues in the Fourth District declined to apply Geier in People v. Benitez (Feb. 24, 2010, G041201) ___ Cal.App.4th ___ [2010 WL 625414]. At issue there were the results of lab testing that showed a substance taken from the defendant was in fact methamphetamine. The managing supervisor of the lab analyst who performed the testing testified at trial that, based on the analyst’s notes, which were not in evidence, the substance was methamphetamine. The supervisor also testified to the lab’s procedures and the analyst’s expertise. The Benitez court held this testimony violated Melendez-Diaz, and that Geier did not apply. (Slip opn. at pp. 4-5.) There is no indication that the testifying supervisor in Benitez was giving his own expert opinion based on the lab reports, as happened here and in Geier. We therefore conclude Benitez is not applicable.