P. v. Canizales

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Filed 8/18/11 CERTIFIED FOR PARTIAL PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO THE PEOPLE, Plaintiff and Respondent, B218515 (Los Angeles County Super. Ct. No. KA080781) v. ROBERT CANIZALEZ et al., ORDER MODIFYING OPINION AND DENYING PETITIONS FOR REHEARING Defendants and Appellants. [NO CHANGE IN JUDGMENT] THE COURT: It is ordered that the opinion filed and modified herein on July 20, 2011, be further modified as follows: 1. On page 27, footnote 12, the last sentence, beginning On September 28, 2010, is deleted. 2. Beginning on page 31, part F. Geier or Melendez-Diaz is deleted in its entirely and the following is inserted in its place: F. Bullcoming v. New Mexico While this appeal was pending, the United States Supreme Court rendered the next installment in the Crawford line of cases, deciding Bullcoming v. New Mexico (2011) __ U.S. __ [131 S.Ct. 2705] (Bullcoming). In that case, the defendant was arrested for driving while intoxicated (DWI). The main evidence against him was a forensic laboratory report certifying that the defendant s blood alcohol concentration was well above the threshold for aggravated DWI. (Id. __ at p. __ [131 S.Ct. at p. 2709].) Unlike the certificate sworn to before a notary in Melendez-Diaz, the report in Bullcoming was unsworn. (Id. at p. ___ [131 S.Ct. at p. 2717.) At trial, the prosecutor did not call the analyst who signed the certificate. That analyst was on unpaid leave for an undisclosed reason. (Id. at p.__ [131 S.Ct. at pp. 2709 2710].) Instead, the prosecutor called another analyst who was familiar with the laboratory s testing procedures but had neither participated in nor observed the test on the defendant s blood sample. (Id. at p. ___ [131 S.Ct. at p. 2709.) The state sought to admit the absent analyst s findings as a business record. The Supreme Court held that the testimony of the surrogate analyst violated the confrontation clause. (Bullcoming, supra, __ U.S. at p. __ [131 S.Ct. at p. 2710].) It found no distinction in the fact that, unlike in Melendez-Diaz, in Bullcoming there was a witness present to testify regarding the absent analyst s report, stating, As a rule, if an out-of-court statement is testimonial in nature, it may not be introduced against the accused at trial unless the witness who made the statement is unavailable and the accused has had a prior opportunity to confront that witness. (Id. at p. __ [131 S.Ct. at p. 2713].) 3. On page 33, the first full paragraph, first sentence, beginning Even if admission is deleted and the following sentence and footnote 14 are inserted in its place (renumbering of all subsequent footnotes is required): We need not consider the outer limits of the decisions in MelendezDiaz and Bullcoming or their impact on the question before us, for we conclude that in any event, even if admission of Dr. Scholtz s testimony regarding the autopsies performed by Dr. Poukens constituted a violation of 2 Crawford, the error was harmless beyond a reasonable doubt for the reasons set forth in parts I and IIA9, ante. (Lilly v. Virginia (1999) 527 U.S. 116, 139 140.)14 14 Justice Sotomayor s concurring opinion made clear that the Court s holding in Bullcoming did not necessarily extend to all situations, including one in which an expert witness was asked for his [or her] independent opinion about underlying testimonial reports that were not themselves admitted into evidence. (Bullcoming, supra, ___ U.S. at p. ___ [131 S.Ct. at p. 2722].) Moreover, the United States Supreme Court granted certiorari in Williams v. Illinois (2010) 939 N.E.2d 268, in which the question of whether the expert opinion issue in Justice Sotomayor s concurrence is likely to be addressed by the Court. There is no change in the judgment. Appellant Robert Canizalez s petition for rehearing is denied. Appellant Martin Morones s petition for rehearing is denied. ________________________________________________________________________ BOREN, P. J. DOI TODD, J. 3 ASHMANN-GERST, J.

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