APPEAL from a judgment of the Superior Court of San Diego County, Lantz Lewis, Judge. Reversed. (Super. Ct. No. SCE274145).
The opinion of the court was delivered by: McDONALD, J.
OPINION AFTER TRANSFER FROM THE CALIFORNIA SUPREME COURT
CERTIFIED FOR PUBLICATION
A jury convicted Virginia Hernandez Lopez of committing vehicular manslaughter while intoxicated in violation of Penal Code section 191.5, subdivision (b). Lopez appeals, contending the admission into evidence of a blood alcohol laboratory report violated her constitutional right to confrontation of witnesses by allowing testimonial hearsay evidence prohibited under Crawford v. Washington (2004) 541 U.S. 36. We reverse the judgment.
On May 11, 2009, this court filed an opinion affirming the judgment in this case. On July 22, 2009, the California Supreme Court granted a petition for review and issued the following order: "The cause is transferred to the Court of Appeal, Fourth Appellate District, Division One, with directions to vacate its judgment and to reconsider the matter in light of Melendez-Diaz v. Massachusetts (June 25, 2009, No. 07-591) ___ U.S. ___, 2009 WL 1789468." In compliance with the order of the Supreme Court, the opinion filed May 11, 2009, is vacated and we issue this new opinion.
On August 18, 2007, Lopez worked the evening shift at a restaurant in Julian, California. During the evening, she drank at least three shots of tequila. Shortly after consuming the last shot, Lopez left the restaurant and drove westbound on State Route 78, a narrow, curving road. At the same time, Allan Wolowsky was driving eastbound on State Route 78. Lopez veered into the driver's side of Wolowsky's pickup truck, pushing his truck into a tree; and as a result Wolowsky died.
An ambulance took Lopez to a nearby church and from there a helicopter took her to a hospital. She suffered facial injuries and a broken leg. Her injuries prevented investigating Officer Pirko from administering a preliminary alcohol screening. At the hospital, two hours after the collision, Officer Pirko observed phlebotomist, Trevin Tuovinen, draw two vials of blood from Lopez at 1:04 a.m. and seal them in an evidence envelope. Officer Pirko transported the vials to a police station in Oceanside where they were placed in evidence storage. Later, the vials were transferred to the San Diego County Sheriff's Crime Laboratory.
On August 28, 2007, Brian Constantino in the San Diego County Sheriff's Crime Laboratory received Lopez's blood samples from the Oceanside station. The San Diego office was beta testing a system for processing evidence. Generally, chain of custody papers accompany a locked evidence box. Under the new system, each item of evidence received individual chain of custody information. As a result, the People did not present chain of custody documentation for an evidence box containing Lopez's blood samples, but presented documentation for the individual blood samples.
Jorge Peña tested the alcohol content of Lopez's blood and reported a level of 0.09 percent blood alcohol content at the time of the blood draw. Over Lopez's Crawford objection, John Willey, a Criminalist Forensic Alcohol Supervisor with the San Diego County Sheriff's Crime Laboratory and custodian of the laboratory reports, testified at trial and explained the new evidence processing procedures. Over Lopez's objection, Peña's blood test report that Lopez's blood alcohol level at the time of the draw was 0.09 percent was admitted into evidence. Peña did not testify. A jury convicted Lopez of committing vehicular manslaughter while intoxicated.
Testimonial hearsay evidence otherwise permitted at a trial may not be admitted in a criminal proceeding unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant. (Crawford v. Washington, supra, 541 U.S. at p. 59.) The California Supreme Court held that forensic laboratory reports are non-testimonial hearsay evidence because they qualify as business records. (People v. Geier (2007) 41 Cal.4th 555, 606-607 [concluding contemporaneous recordings of observable events in laboratory reports are non-testimonial business records because they are not accusatory and "can lead to either incriminatory or exculpatory results."].) A business record is a " 'report... or data compilation, in any form, of... conditions... or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the... report....' " (Geier, at p. 606.) Geier concluded that a person who created a laboratory report does not need to testify at trial about the information contained in a laboratory report because that person " '[was] "not acting as [a] witness;" and [was] "not testifying" ' " while making the report. (Id. at p. 606.)
However, in Melendez-Diaz v. Massachusetts, supra, ___ U.S. ___ [129 S.Ct. 2527] (Melendez), the United States Supreme Court held that laboratory reports of the type presented in Geier, and in the instant case, are testimonial hearsay evidence within the meaning of Crawford and are inadmissible in a criminal proceeding unless the person creating the report is unavailable and the defendant had a prior opportunity to cross-examine the creator. (Melendez, supra, ___ U.S. at p. ___ [129 S.Ct. 2527, 2532].) It therefore appears that Geier has been ...