People v. Manzano, B203610 (Cal. App. 9/12/2008), B203610

Page 1

THE PEOPLE, Plaintiff and Respondent, v. MOISES ARANDA MANZANO, Defendant and Appellant.

B203610

Court of Appeals of California, Second Appellate District, Division Five

September 12, 2008

Not to be Published

Appeal from a judgment of the Superior Court of Los Angeles County, No. KA078665, Bruce F. Marrs, Judge. Affirmed with modifications.

Cindy Brines, 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, Kristofer Jorstad and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.

TURNER, P. J.

I. INTRODUCTION

Defendant, Moises Aranda Manzano, appeals from his convictions for marijuana transportation (Health & Saf. Code, § 11360, subd. (a)) and possession of marijuana for sale (Health & Saf. Code, § 11359) and the trial court's finding that he was previously convicted of a serious felony. (Pen. Code,¹ §§ 667, subd. (b)-(i), 1170.12.) Defendant argues the trial court improperly admitted hearsay testimony and denied his request to dismiss a prior conviction. Defendant further argues that his prior conviction must be stricken and his abstract of judgment must be corrected to more accurately reflect the sentence imposed. The Attorney General argues that additional fees and penalties and a court security fee must be imposed. We affirm with modifications.

II. FACTUAL BACKGROUND

We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Elliot (2005) 37 Cal.4th 453, 466; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) At approximately 2:20 a.m. on April 1, 2007, Covina Police Officer Oswaldo Preciado was working in uniform in a marked patrol car. While at the area of Arrow Highway and Azusa Avenue, Officer Preciado saw a brown 1991 Honda Accord parked in a commercial complex parking lot. Officer Preciado noticed the Honda's lights were on and the engine was running. There were people inside the Honda. Officer Preciado drove behind the Honda. As he did so, the car was driven away at approximately 30 to 45 miles an hour through the parking lot. Officer Preciado followed the car out of the parking lot onto Azusa Avenue. The car made a sudden lane change without signaling. Officer Preciado activated the overhead lights on the patrol car to stop the Honda. The Honda stopped at a red light, made a U-turn, and halted.

As Officer Preciado walked toward the Honda, he could see two individuals inside the car. Defendant, the driver, opened his door and attempted to get out of the Honda. Officer Preciado ordered defendant back inside. Defendant stated there was no reason to stop him and he was going to continue driving. Defendant got back inside the Honda. However, defendant again got out of the Honda. Defendant again said there had been no reason to stop him. Officer Preciado again ordered defendant to get back inside the Honda. Defendant got back into the car. Defendant made a couple of furtive movements inside the Honda. Defendant turned his shoulder toward the center of the Honda. Officer Preciado saw the white reverse tail lights light up briefly. Officer Preciado feared that defendant would drive away. Defendant said he was going to continue driving because there had been no reason for the officer to stop him. Officer Preciado testified what happened next, "I basically told him that if he continued, that I would follow him." Defendant complied with Officer Preciado's order, placing the Honda in park. Officer Preciado requested assistance. Thereafter, Officer Felipe Munoz and Sergeant David Foster arrived.

Officer Preciado discovered that defendant was driving without a license. Defendant was arrested and searched. A digital scale was found in defendant's right pocket and two cellular telephones in his left pocket. Officer Preciado pointed out defendant's car to Officer Munoz. Officer Munoz found a plastic bag containing a "sizable quantity" of marijuana on the floorboard behind the driver's seat of defendant's car. Defendant was told his car would be impounded. Defendant spontaneously said he had a small amount of marijuana in his car for personal use. When defendant's property was inventoried during the booking process, $1,132 was found in his wallet.

Sam Le, Supervising Chemist for the Los Angeles County Sheriff's Scientific Service Bureau, supervised Senior Criminalist Tom McCleary. At the time of trial, Mr. McCleary was on vacation. Mr. Le testified regarding the analysis of the marijuana seized from defendant's car. Mr. McCleary had performed the analysis. Mr. Le reviewed Mr. McCleary's notes as well as a report prepared on April 9, 2007. The report indicated that Mr. McCleary had examined the evidence, performed various chemical tests, and concluded the evidence contained 258 grams of plant material containing marijuana.

Detective Terrence Hanou had extensive training in the field of narcotics. A hypothetical based upon facts similar to those in this case was posed to Detective Hanou. Based upon his training and experience, Detective Hanou believed the marijuana was possessed for sale. Detective Hanou cited the quantity of marijuana discovered and the scale and cash found on defendant's person. Further, the marijuana found in defendant's car was very compacted and had not yet been broken into smaller portions to be sold. Detective Hanou believed that the marijuana was probably worth $300 to $400. Detective Hanou believed the amount of marijuana was sufficient for over a thousand uses.

III. DISCUSSION

A. Admissibility of Forensic Evidence

1. Waiver

Citing Crawford v. Washington (2004) 541 U.S. 36, 54, 59, defendant argues that the trial court improperly admitted the hearsay testimony of Supervising Chemist Le. Defendant asserts the ruling violated his constitutional right to confront witnesses. Prior to Mr. Le's testimony, the prosecutor advised the court: "[Mr. Le]'s not the one who analyzed the marijuana in this case. The person who analyzed the marijuana is Tom McCleary[]. He's on vacation, and that's why Mr. Sam Le is here. And I've got a case from the Supreme Court of California that says it's okay to do that, that a supervisor can come to court and testify regarding the report done by his staff. [¶] . . . [¶] The case is People versus [Geier]. The cite is 41 Cal.4th 555." The court then added: "My recollection is that just reiterates a long series of cases going way back about testimony from business records." Defense counsel responded, "I would submit it." Preliminarily, we agree with the Attorney General that defendant has waived the right to raise the issue on appeal. (People v. Tafoya (2007) 42 Cal.4th 147, 166 [defendant's failure to raise confrontation clause claim at trial forfeits issue on appeal]; People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1028 [same].)

2. The evidence was not testimonial

Notwithstanding that waiver, defendant's claim lacks merit. In Crawford v. Washington, supra, 541 U.S. at page 59, the United States Supreme Court held, "Testimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine." (See Whorton v. Bockting (2007) 549 U.S. 406, ___ [127 S. Ct. 1173, 1179].) The Crawford court concluded, "Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation." (Crawford v. Washington, supra, 541 U.S. at pp. 68-69; see Danforth v. Minnesota (2008) 552 U.S. ___, ___ [128 S. Ct. 1029, 1033].) In People v. Geier, supra, 41 Cal.4th at page 597, the California Supreme Court noted: "Under Crawford, the crucial determination about whether the admission of an out-of-court statement violates the confrontation clause is whether the out-of-court statement is testimonial or nontestimonial. . . . On the other hand, Crawford made it clear that `not all hearsay implicates the Sixth Amendment's core concerns,' [citation]." (See Crawford v. Washington, supra, 541 U.S. at p. 51.) In Geier, our Supreme Court held that forensic evidence in the form of laboratory notes and reports were not testimonial in nature. (People v. Geier, supra, 41 Cal.4th at pp. 606-607; see People v. Rawlins (N.Y. 2008) 884 N.E.2d 1019, 1032.) The laboratory records in Geier involved deoxyribonucleic acid analysis records. The documents were prepared "`during a routine, non-adversarial process "meant to ensure accurate analysis.' [Citation.]" (People v. Geier, supra. 41 Cal.4th at p. 607, quoting People v. Brown (N.Y. Sup. Ct. 2005) 801 N.Y.S. 2d 709, 712.) As a result, our Supreme Court explained the technician's notes that recorded what she did to comply with established protocols and documented each step in her analysis did not "bear witness" against the accused. Our Supreme Court concluded: "Records of laboratory protocols followed and the resulting raw data acquired are not accusatory. `Instead, they are neutral, having the power to exonerate as well as convict.' [Citation.]" (People v. Geier, supra, 41 Cal.4th at p. 607 quoting State v. Forte (N.C. 2006) 629 S.E.2d 137, 143; see also People v. Cage (2007) 40 Cal.4th 965, 984, fn.14.) The same is true in this case. Mr. McCleary's notes and report simply documented his observations of the substance, chemical tests conducted, and his scientific conclusion. As a result, it did not constitute testimony for confrontation clause purposes.

3. Any error in admitting the evidence was harmless

In any event, even if the evidence was inadmissible, any error in allowing Mr. Le to testify regarding the scientific findings was harmless under any standard. (People v. Geier, supra, 41 Cal.4th at p. 608; People v. Cage, supra, 40 Cal.4th at pp. 991-994.) Even absent the...