United States District Court, S.D. California
WILLIAM Q. HAYES UNITED STATES DISTRICT JUDGE
matter before the Court is the Objection to the Report and
Recommendation of the Magistrate Judge filed by the
Petitioner George Paul Hicker. (ECF No. 35).
December 9, 2013, Petitioner George Paul Hicker filed a
Petition for Writ of Habeas Corpus under 28 U.S.C. §
2254, challenging his conviction in San Diego Superior Court,
case number CN251716. Petitioner contends that his rights
under the Sixth Amendment Confrontation Clause were violated
at trial when an analyst witness for the prosecution was
permitted to testify about the results of blood alcohol tests
performed by another analyst who did not testify, and the
blood alcohol report was admitted into evidence. Petitioner
asserts that the testimony and the laboratory report were
admitted contrary to clearly established United States
Supreme Court precedent. Respondent contends that the
decision of the state court to admit the testimony and the
laboratory report was not contrary to or an unreasonable
interpretation of United States Supreme Court authority.
August 28, 2008, Petitioner was arrested for driving under
the influence. After his arrest, a sample of Petitioner's
blood was taken and tested by the San Diego County Crime
Laboratory. A complaint was subsequently filed charging
Petitioner with three counts: Count One - driving under the
influence of alcohol, a violation of Vehicle Code §
23152(a); Count Two - driving with a measurable blood alcohol
level above .08, a violation of Vehicle Code § 23152(b);
and Count Three - driving with an open container, a violation
of Vehicle Code § 23222(a). Petitioner pled not guilty
to the charges.
February 9, 2009, the San Diego Superior Court began a two
week jury trial. The prosecution called witness Jorge Pena, a
laboratory analyst employed by the San Diego Crime
Laboratory. Pena testified that he is the technical leader
for the alcohol section at the San Diego Crime Laboratory,
and that he is in charge of troubleshooting and training.
Pena described in detail the gas chromatography test
performed by the technicians in the laboratory to determine
alcohol concentration in blood samples, including the
calibration process used to test the instrument. Pena
testified that based upon his training and experience, if the
instrument is properly calibrated, the gas chromatography
test is "an accurate method to determine someone's
blood alcohol level." (ECF No. 32-2 at 25).
testified that four individuals at the laboratory are
authorized to conduct blood alcohol analysis, including
himself and analyst Raegan Carter. Pena testified that a gas
chromatography test was performed on Petitioner's blood
sample by laboratory analyst, Raegan Carter. Pena testified
that he was not present during Carter's analysis of
Petitioner's blood sample. Pena testified that he
reviewed Carter's report, after the analysis was
completed by Carter. Pena testified that he did not have any
direct knowledge as to how the specific blood sample in this
case came to the crime lab, but that there was a system in
place for all samples that come from the Encinitas station
where this sample originated. Pena described in detail about
the procedures used in the laboratory, absorption rates of
alcohol in the body, and the effects of alcohol on mental
direct examination, the prosecutor questioned Pena about the
analysis and testing conducted by Carter. Counsel for
Petitioner objected to Pena's testimony about the testing
performed by Carter on the grounds the testimony violated
Petitioner's Sixth Amendment right to confrontation. The
objection was overruled. During Pena's testimony, the
Court received into evidence "People's Exhibit
13" the laboratory packet for the blood sample analysis
prepared by analyst Carter. The exhibit consisted of seven
pages including: (1) a one page certification prepared and
signed by Carter; (2) five pages of print outs from the
chromatography instrument containing data from the
calibration tests, the quality control tests, and the tests
of Petitioner's blood sample; and (3) a one page lab log
sheet on which Carter recorded the results from the tests.
(ECF No. 19-9 at 1-7).
reviewed the print outs from the chromatography instrument in
Exhibit 13 and testified that the instrument that tested
Petitioner's blood was in proper working order. The
prosecutor asked Pena, "what did the instrument test the
defendant's blood alcohol level to be?" (ECF No.
32-2 at 33). Petitioner's counsel objected:
"Foundation." Id. At sidebar, counsel for
Petitioner objected on the "grounds of hearsay and Sixth
Amendment." Id. The Court overruled the
objection and allowed a "continuing objection to this
particular line of inquiry." Id. Pena provided
the following testimony:
LH (Prosecutor): Mr. Pena, ... were you present when Raegan
Carter was testing these blood samples?
Pena: No, not looking over her shoulders I never do that, no.
LH: Now, what procedures have - do analysts who test blood in
your office follow when they . . . test a particular
Pena: [W]ell the same procedures I've been explaining. .
JH: Do you have any knowledge of how Raegan Carter tested the
blood sample. . . ?
JH: [H]ow do you know that?
Pena: ... all the analysts have followed the exactly the same
JL (the Court): I'm sorry, the question has to do with
what Raegan did on that -... that particular date, relevant
to this particular case.
JA (Counsel for Petitioner): And your honor under 702, the
evidence code, no personal knowledge.
JL: Okay I, I will allow it.
Pena: So for this particular sample, again I was not right
next to her watching her analyzing so I have to go with what
is established procedure for the lab, which I know that she
(ECF No. 32-2 at 34). Pena testified that his role in the
analysis was a review of Carter's work. Pena testified,
I receive all of the analysis, receive all Ms. Carter's
notes, receive everything and I go through all of that
information and verify that all that information is correct.
And after I finish my review process, and I provide it back
to Ms. Carter so that she can file the results.
LH: Is there anything in the packet in front of you, that
indicates you, you've reviewed her work?
Pena: Yes. ... On page three of the packet, in the heading
part of the packet for that page, it says technically and
administratively reviewed by and has my signature and date
when I did that and my stamp with my name on it.
LH: What kind of things are you checking for when you review
Raegan Carter's notes, and the results that she comes up
Pena: Well basically I go through every single document that
is prepared in the course of analyzing the sample, I look at
the calibration records I look at the chromatograms that will
do that, the graphs. I look at the quality control samples
that were used to test m-between the samples that I mentioned
earlier to make sure that all of that came within the range
required. I look specifically to the actual chromatograms to
make sure again what I explained earlier that the peaks are
where they're supposed to be, that they nave the proper
shape, they have all the information that needs to be
contained there, and I also look at the reporting itself
whether the sample was received by whom it was received and
who and then the entry that Ms Carter does which is the
results, her initials, the date and all of that is correct.
Once all of that is confirmed that. . . the information
contained in that report is correct and then . . . put my
signature and my stamp that is was reviewed and again give it
back to Ms. Carter for processing, for clerical.
LH: And you did that in this case with Mr. Hicker's blood
(ECF No. 32-2 at 35). Pena testified that the instrument was
calibrated correctly, and that the calibration records were
accurate. Pena was asked:
LH: Okay. So based on the the graphs, can you tell whether
Raegan Carter tested this particular blood sample accurately?
Pena: Again based on the actual chromatogram, based on the
actual results of the instrument, that the peaks are showing
that where they're supposed to be showing, they're
showing in the place where they're supposed to be
showing, anathatthe results, the two results that are
obtained are agreeing results, that follows the quality
control program. The agreeing of the results has to be
according to Title 17, within plus or minus of .01 of each
other and according to our manual within 07 of each other,
and those results being within those - that criteria.
LH: And so based on the graphs that you're looking at, do
you have an opinion about the accuracy of the blood results?
LH: What is your opinion?
Pena: Well that the results obtained in this specific test
were accurate -based again the quality control samples that I
just explained and based on the end results from the actual
(ECF No. 32-2 at 42). Pena testified that the results of the
blood alcohol test conducted by Carter were .142 and Exhibit
13 was introduced into evidence. The jury found Petitioner
not guilty of the charge in Count One of driving under the
influence of alcohol and guilty of the charge in Count Two of
driving with a blood alcohol level of 0.08 percent or
was sentenced to five years of summary probation, 96 hours
jail with credit for 24 hours, 5 days weekend work release,
an 18-month alcohol program, a Mothers Against Drunk Driving
panel class, a fine of $2, 408.00, and other terms as set
forth in the Misdemeanor - Traffic Judgment
appealed his conviction to the Appellate Division of the San
Diego Superior Court ("Appellate Division").
Petitioner asserted that he was entitled to examine the
analyst who performed the blood alcohol test at trial in
order to address the human error at each step of the process.
Petitioner asserted that the United States Supreme Court in
Bullcoming v. New Mexico,  clearly ruled that a
defendant has the right to confront the witness who performed
the blood analysis at trial. Petitioner asserted that the
testimony of a witness who was not personally present during