Appeal from a judgment of the Superior Court of San Bernardino County, Raymond L. Haight III, Judge. Affirmed in part and reversed in part. (Super. Ct. No. FWV034195).
The opinion of the court was delivered by: Rylaarsdam, J.
CERTIFIED FOR PUBLICATION
A jury found defendant Samuel Benitez guilty of resisting an officer (Pen. Code, § 69), possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), and misdemeanor resisting an officer (Pen. Code, § 148). The court sentenced him to 3 years' probation plus 180 days in custody to be served on weekends.
After defendant objected on the ground of hearsay, the acting supervisor of the county's crime laboratory testified, based on notes made by an analyst, that a substance in defendant's possession was methamphetamine. A report produced by the analyst to the same effect was introduced into evidence. The analyst who conducted the tests did not testify. The supervisor described the laboratory's procedures and attested to the analyst's expertise.
Defendant's appeal raises a single issue: was he denied his constitutional right to confrontation when the supervisor was permitted to testify, using another's analysis of the substance. We previously issued an opinion affirming defendant's conviction based upon the decision of the California Supreme Court in People v. Geier (2007) 41 Cal.4th 555 (Geier). Geier held that reports of DNA test results were not testimonial and therefore the admission of such evidence was not prohibited by Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354, 158 L.Ed.2d 177] (Crawford). (Geier, supra, 41 Cal.4th at p. 605.)
Defendant filed a petition for review and while that petition was pending, the United States Supreme Court decided Melendez-Diaz v. Massachusetts (2009) 557 U.S. ___ [129 S.Ct. 2527, 174 L.Ed.2d 314] (Melendez-Diaz). In Melendez-Diaz the court held that technicians' certificates analyzing suspected illegal substances constituted testimonial statements "rendering the affiants `witnesses' subject to the defendant's right of confrontation under the Sixth Amendment." (Id. at p. ___, 129 S.Ct. at p. 2530.)
The California Supreme Court granted defendant's petition for review and transferred the cause back to our division with directions to vacate our judgment and reconsider the matter in light of Melendez-Diaz. After the parties submitted supplemental briefs we reconsidered the matter as directed. We now reverse defendant's conviction of possession of methamphetamine. The remainder of the judgment is affirmed.
Vaughn, the managing supervisor of the analyst who conducted the analysis and created the report, testified based on the analyst's notes that the substance in defendant's possession was 0.02 grams of methamphetamine. These notes were not introduced into evidence. Vaughn produced a single page form entitled "Request for Analysis" (RFA), which was introduced. The RFA contains chain of custody information and identifies material apparently submitted with the form as "Susp. Methamphetamine." The "analysis" portion of the RFA states, "The white crystalline substance (net weight 0.02 gram) contains methamphetamine." The RFA was signed by John Jermain, identified as "analyst," under the statement "I hereby certify the foregoing laboratory analysis to be true under penalty of perjury" and contained an entry of the date and place of execution. The place to enter the "date and time logged" by the laboratory was left blank.
Vaughn explained the analyst's notes in terms of their determinative significance and affirmed the results were "all consistent with that substance being methamphetamine" and "appear[ed] to be valid and unexceptional." Vaughn testified that he knew the analyst complied with required procedures, and that although he "was not there physically to observe" the analyst create his notes, "procedures require us to write [our observations] at or near the time [of analysis]." Throughout Vaughn's testimony the defense maintained a "standing hearsay objection."
On cross-examination, the defense inquired about the weight of the substance as well as if Vaughn knew "the specific gravity for methamphetamine," which he did not. The defense then asked whether Vaughn knew if the specific gravity of methamphetamine "is like any other substance that's commonly known like salt . . . ." Vaughn answered that he had "never seen any reports of that."