(Super. Ct. No. 08F06253) APPEAL from a judgment of the Superior Court of Sacramento County, Ernest W. Sawtelle, Judge. Affirmed as modified.
The opinion of the court was delivered by: Raye , P. J.
CERTIFIED FOR PUBLICATION
A jury found defendant Sydney Davis guilty of assaulting Jonathan Coleman with a deadly weapon in violation of Penal Code section 245, subdivision (a)(1) and mayhem in violation of Penal Code section 203. During trial, the prosecution called an expert witness, a physician, who testified about the injury Coleman sustained. During his testimony, the expert discussed Coleman's medical records, including reports prepared by other non-testifying physicians. On appeal, defendant contends that under Melendez-Diaz v. Massachusetts (2009) 557 U.S. ___ [174 L.Ed.2d 314] (Melendez-Diaz), these reports constitute "testimonial" out-of-court statements and their admission into evidence violated his rights under the Sixth Amendment to the United States Constitution. We disagree and affirm the judgment of conviction. We modify, however, to correct a sentencing error.
PROCEDURAL AND FACTUAL BACKGROUND
On February 19, 2009, the Sacramento County District Attorney filed a first amended information against defendant, charging him with (1) assault with a deadly weapon, i.e., a "commercial grade toilet brush," upon Coleman (count one); (2) unlawfully and maliciously putting out Coleman's eye, i.e., mayhem (count two); and (3) battery upon Coleman resulting in the infliction of serious bodily injury (count three). In regard to count one, it was further alleged that the offense constituted a "serious" felony under Penal Code section 1192.7, subdivision (c)(8) because defendant personally inflicted great bodily injury upon Coleman, who was not an accomplice.
On February 18, 2009, the case proceeded to a jury trial.*fn1 The prosecution's theory of the case was that while defendant and Coleman were in the same "pod" at the Rio Cosumnes Correctional Center, defendant attacked Coleman with a toilet brush, causing serious damage to Coleman's left eye. The prosecution had a videotape of the incident, which the jury watched. Essentially, the defense's theory was that the videotape lacked sufficient clarity to conclusively identify defendant as Coleman's attacker and the evidence was otherwise insufficient to meet the prosecution's burden.
As part of its case-in-chief, the prosecution called Dr. Christopher Richardson as an expert witness. Dr. Richardson was a second-year surgical resident at San Joaquin General Hospital (hospital), the facility to which Coleman was admitted for treatment of his eye injury. Dr. Richardson participated in Coleman's discharge from the hospital.
On the witness stand, Dr. Richardson acknowledged that he recognized Coleman's medical records from the hospital, marked collectively as People's exhibit 2, and reviewed them prior to testifying. Some of those records were, in fact, prepared by Dr. Richardson himself. Dr. Richardson testified that Coleman's medical records were the types of records that are made and kept in the ordinary course of business of treating patients at the hospital. He further explained:
"[Prosecution:] So as a diagnosis is made, it's updated to the chart?
"[Prosecution:] And that's actually because you guys rely on those charts to be accurate in how you treated patients?
"[Dr. Richardson:] Yes."*fn2
Turning to Coleman's injury as reflected in the medical records, Dr. Richardson was asked several questions pertaining to an operative report prepared by the attending ophthalmologist, Dr. Philip Edington, and a computerized tomography (CT) scan report prepared by Dr. Peter Loew.
The operative report was prepared in connection with Dr. Edington's repair of Coleman's eye. The operative report states that Coleman had a "large globe rupture" of the left eye, and Dr. Richardson was asked to explain this terminology. Dr. Richardson testified that the "globe" refers to the "eyeball." The operative report further represents that Coleman had a "large prolapse of uvea and vitreous." Again, Dr. Richardson was asked to explain this terminology and he confirmed that this essentially means "the inside of the globe is coming outside." Dr. Richardson was asked what kind of eye problems could result from this type of ocular injury. He indicated that such an injury could result in blindness, glaucoma, or infection; have a substantial impact on visual acuity; and could render the eye useless.
As for Dr. Loew's CT scan report, Dr. Richardson explained that it was the official radiology report from Coleman's CT scan upon admission. The CT scan report indicates that Coleman was "hit in left eye" and sustained a "comminuted fracture of the nasal arch" and a "comminuted and slightly depressed fracture of the . . . medial wall of the left eye orbit." Dr. Richardson explained this terminology. In essence, Coleman had two splintered (comminuted) fractures: one fracture at the "bony top of [the] nose" and another fracture on the nasal side of the left eye socket.
Toward the end of his direct examination, Dr. Richardson was asked what type of impact would cause the injuries Coleman sustained. He responded that a "penetrating" injury was substantially more likely than a "blunt" injury. Dr. Richardson elaborated that a "penetrating" injury is one caused by something with a "sharpened edge" that "penetrates any tissue." Dr. Richardson further acknowledged that being struck with a sharpened toilet brush would likely cause a penetrating injury. The defense briefly cross-examined Dr. Richardson about the medical records and Coleman's injury.
There were several documents in Coleman's medical records to which Dr. Richardson did not testify. One such document was a "preliminary" CT scan report prepared by Dr. Susan Enlow. This report, similar to Dr. Loew's CT scan report, indicates that Coleman had a "comminuted fracture of the nasal bone."
After all the witnesses testified, including Coleman, the parties moved several exhibits into evidence. Coleman's medical records were admitted in their entirety, without objection.
Ultimately, the jury found defendant guilty on count one, assault with a deadly weapon, and count two, mayhem. The jury also found true the great bodily injury enhancement associated with count one. The jury acquitted defendant of count three as the ...