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People v. Bowman

March 23, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
KEVIN ALAN BOWMAN, DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of Kern County. Louis P. Etcheverry, Judge. (Super. Ct. No. BF123975A).

The opinion of the court was delivered by: Vartabedian, Acting P. J.

CERTIFIED FOR PARTIAL PUBLICATION*fn1

OPINION

In this appeal, we will address the following question: Does the United States Supreme Court's determination in the recent case of Melendez-Diaz v. Massachusetts (2009) 557 U.S. ___ [129 S.Ct. 2527] (Melendez-Diaz), alter the California rule established in People v. Geier (2007) 41 Cal.4th 555, 596-607 (Geier), that an in-court witness may rely on laboratory notes and reports, even if prepared by a different individual, to support the witness's expert opinion? Melendez-Diaz held that the admission of a written document to establish laboratory results violates the Sixth Amendment. (Melendez-Diaz, supra, 557 U.S. at p. ___ [129 S.Ct. at p. 2532]. We will hold that Melendez- Diaz does not abrogate the holding in Geier.

FACTS AND PROCEDURAL HISTORY

The present defendant, Kevin Alan Bowman, appeals from a final judgment following a jury trial. He was convicted of certain drug offenses. On appeal, he contends the evidence establishing the nature of the controlled substance was admitted into evidence in violation of his Sixth Amendment right to confront witnesses. He also contends, and respondent concedes, the court impermissibly imposed certain fines as part of the sentence. In the published portion of this opinion, we will reject defendant's Sixth Amendment claim. We will modify the judgment to omit the fines in question and affirm the judgment as modified.

As relevant to this appeal, police officers stopped defendant on June 6, 2008, for traffic infractions. Searching defendant's car, the officers found marijuana, a digital scale, a police scanner, and a crystalline substance that appeared to be methamphetamine. A jury found defendant guilty of transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)) and possession of drug paraphernalia (Health & Saf. Code, § 11364, a misdemeanor). Defendant pleaded guilty to using a false license plate (Veh. Code, § 4462.5, a misdemeanor) and operating a vehicle with no license plate (Veh. Code, § 5200, an infraction). Other counts and enhancement allegations not relevant to this appeal were dismissed or found not true. Defendant was sentenced to the upper term of four years in prison on the felony count, with concurrent terms on the misdemeanors. The court imposed various fines, including, as relevant here, four criminal conviction assessments totaling $125, pursuant to Government Code section 70373.

DISCUSSION

A. The Sixth Amendment Claim

Defendant's primary contention on appeal is that he was denied his Sixth Amendment right to confront witnesses against him at trial. The facts relevant to this contention are as follows:

On the first day of trial, the prosecutor informed the court that the criminalist who performed chemical testing on the suspected methamphetamine was out of the state for an extended period for training. The prosecutor said she was "requesting that Jeanne Spencer or an alternate substitute criminalist be used regarding the analysis." When defense counsel was asked by the court whether he objected to the substitution, counsel responded: "As long as the person will have first-hand knowledge of the testing procedure." The court responded: "I understand the rules of evidence. Whoever testifies is going to have to be able to -- their testimony will be governed by the Evidence Code." After further discussion about the nature of the testimony, the court informed defense counsel that the court did not understand the objection. Counsel responded: "Nothing else. I have no complaint about it, sir."

When the prosecutor called Spencer as a witness during the trial, she testified without objection that she was a supervisor at the Kern County regional crime laboratory. She described her experience and training. She stated that she had supervised the training and the current work of Chris Snow, the criminalist who performed the testing in the present case. Spencer described the protocols and procedures for testing suspected controlled substances and for reporting the results of that testing.

Spencer testified that she regularly reviewed the contemporaneous notes required to be taken by her criminalists as they performed various steps of the testing, and that she had reviewed the notes in this case as part of her regular supervision of Snow's work, that is, before she knew she would be testifying in the case. The notes contained no indication that anything unusual occurred in the testing. She identified Snow's report concerning his test results and stated that the report appeared to be in standard format. She stated the reports are made near the time the results of the testing become known and that the reports are reliable and trustworthy.

The prosecutor asked Spencer: "And what were the results of the analysis of the evidence submitted?" Defense counsel objected on the basis the answer called for hearsay and that there was not sufficient foundation to permit the testimony. The court overruled the objections. Spencer then testified the "material that was examined contained methamphetamine." Counsel interposed similar objections when ...


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