Hicker v. Superior Court for the State of California, County of San Diego

Filing 37

ORDER: The objection to the Report and Recommendation filed by Petitioner (Dkt # 35 ) is sustained. The Report and Recommendation is not adopted. The Writ of Habeas Corpus filed by the Petitioner will be granted in sixty days unless the San Diego Su perior Court vacates the judgment of conviction in Case No. CN251716 and determines within a reasonable period of time whether to retry the Petitioner. The parties shall file a status report in 30 days. Signed by Judge William Q. Hayes on 8/3/2016. (mdc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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GEORGE PAUL HICKER,

CASE NO. 13cv2957-WQH (JMA)

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ORDER

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Plaintiff,
v.
SAN DIEGO COUNTY SUPERIOR
COURT,

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Defendant.

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HAYES, Judge:
The 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).
I. Introduction
On 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.
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1 II. Background Facts
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On August 28, 2008, Petitioner was arrested for driving under the influence.

3 After his arrest, a sample of Petitioner’s blood was taken and tested by the San Diego
4 County Crime Laboratory. A complaint was subsequently filed charging Petitioner
5 with three counts: Count One - driving under the influence of alcohol, a violation of
6 Vehicle Code § 23152(a); Count Two - driving with a measurable blood alcohol level
7 above .08, a violation of Vehicle Code § 23152(b); and Count Three - driving with an
8 open container, a violation of Vehicle Code § 23222(a).1 Petitioner pled not guilty to
9 the charges.
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On February 9, 2009, the San Diego Superior Court began a two week jury trial.

11 The prosecution called witness Jorge Peña, a laboratory analyst employed by the San
12 Diego Crime Laboratory. Peña testified that he is the technical leader for the alcohol
13 section at the San Diego Crime Laboratory, and that he is in charge of troubleshooting
14 and training. Peña described in detail the gas chromatography test performed by the
15 technicians in the laboratory to determine alcohol concentration in blood samples,
16 including the calibration process used to test the instrument. Peña testified that based
17 upon his training and experience, if the instrument is properly calibrated, the gas
18 chromatography test is “an accurate method to determine someone’s blood alcohol
19 level.” (ECF No. 32-2 at 25).
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Peña testified that four individuals at the laboratory are authorized to conduct

21 blood alcohol analysis, including himself and analyst Raegan Carter. Peña testified that
22 a gas chromatography test was performed on Petitioner’s blood sample by laboratory
23 analyst, Raegan Carter. Peña testified that he was not present during Carter’s analysis
24 of Petitioner’s blood sample. Peña testified that he reviewed Carter’s report, after the
25 analysis was completed by Carter. Peña testified that he did not have any direct
26 knowledge as to how the specific blood sample in this case came to the crime lab, but
27 that there was a system in place for all samples that come from the Encinitas station
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Count Three was dismissed at trial on the People’s motion.
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1 where this sample originated. Peña described in detail about the procedures used in the
2 laboratory, absorption rates of alcohol in the body, and the effects of alcohol on mental
3 impairment.
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During direct examination, the prosecutor questioned Peña about the analysis and

5 testing conducted by Carter. Counsel for Petitioner objected to Peña’s testimony about
6 the testing performed by Carter on the grounds the testimony violated Petitioner’s Sixth
7 Amendment right to confrontation. The objection was overruled. During Peña’s
8 testimony, the Court received into evidence “People’s Exhibit 13” the laboratory packet
9 for the blood sample analysis prepared by analyst Carter. The exhibit consisted of
10 seven pages including: (1) a one page certification prepared and signed by Carter; (2)
11 five pages of print outs from the chromatography instrument containing data from the
12 calibration tests, the quality control tests, and the tests of Petitioner’s blood sample; and
13 (3) a one page lab log sheet on which Carter recorded the results from the tests. (ECF
14 No. 19-9 at 1-7).2
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Peña reviewed the print outs from the chromatography instrument in Exhibit 13

16 and testified that the instrument that tested Petitioner’s blood was in proper working
17 order. The prosecutor asked Peña, “what did the instrument test the defendant’s blood
18 alcohol level to be?”
19 “Foundation.”

(ECF No. 32-2 at 33). Petitioner’s counsel objected:

Id. At sidebar, counsel for Petitioner objected on the “grounds of

20 hearsay and Sixth Amendment.” Id. The Court overruled the objection and allowed a
21 “continuing objection to this particular line of inquiry.” Id. Peña provided the
22 following testimony:
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LH (Prosecutor): Mr. Pena, . . . were you present when Raegan Carter was
testing these blood samples?
Peña: 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 blood sample?

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Lodgment 24 in the record of this case is the Exhibit List from the Superior
28 Court which indicates Exhibit 13 is “SD Sheriff’s Crime Lab Docs- Lab Pkg 7 pgs.”
(ECF No. 32-7 at 1).
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Peña: [W]ell the same procedures I’ve been explaining. . . .

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JH: Do you have any knowledge of how Raegan Carter tested the blood
sample. . . ?

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Peña: Yes.
JH: [H]ow do you know that?

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Peña: . . . all the analysts have followed the exactly the same procedure.
...

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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.

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JA(Counsel for Petitioner): And your honor under 702, the evidence code,
no personal knowledge.

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JL: Okay I, I will allow it.

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Peña: 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 follows.

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13 (ECF No. 32-2 at 34). Peña testified that his role in the analysis was a review of
14 Carter’s work. Pena testified,
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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?
Peña: 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 with?
Peña: 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 in-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 have 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
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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.

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LH: And you did that in this case with Mr. Hicker’s blood sample?

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Peña: Correct.

5 (ECF No. 32-2 at 35). Peña testified that the instrument was calibrated correctly, and
6 that the calibration records were accurate. Peña was asked:
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LH: Okay. So based on the, the graphs, can you tell whether Raegan
Carter tested this particular blood sample accurately?
Peña: Yes.
LH: How?
Peña: 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, and that the 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?
Peña: Yes.
LH: What is your opinion?
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Peña: 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 sample.

21 (ECF No. 32-2 at 42). Peña testified that the results of the blood alcohol test conducted
22 by Carter were .142 and Exhibit 13 was introduced into evidence. The jury found
23 Petitioner not guilty of the charge in Count One of driving under the influence of
24 alcohol and guilty of the charge in Count Two of driving with a blood alcohol level of
25 0.08 percent or greater.
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Petitioner was sentenced to five years of summary probation, 96 hours jail with

27 credit for 24 hours, 5 days weekend work release, an 18-month alcohol program, a
28 Mothers Against Drunk Driving panel class, a fine of $2,408.00, and other terms as set
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1 forth in the Misdemeanor – Traffic Judgment Minutes.3
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Petitioner appealed his conviction to the Appellate Division of the San Diego

3 Superior Court (“Appellate Division”). Petitioner asserted that he was entitled to
4 examine the analyst who performed the blood alcohol test at trial in order to address the
5 human error at each step of the process. Petitioner asserted that the United States
6 Supreme Court in Bullcoming v. New Mexico,4 clearly ruled that a defendant has the
7 right to confront the witness who performed the blood analysis at trial.

Petitioner

8 asserted that the testimony of a witness who was not personally present during the
9 testing and did not make any observations during the testing does not comport with his
10 rights under the Sixth Amendment Confrontation Clause.
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At the oral argument, the Appellate Division compared the laboratory packet

12 Exhibit 13 in this case to the laboratory packet exhibit in the California Supreme Court
13 case of People v. Lopez5 and concluded, “it is our unanimous decision that . . . the
14 conviction should be affirmed. We do feel that Lopez is controlling in this matter. So
15 we are going to affirm the conviction.” (ECF No. 32-6 at 21). During the oral
16 presentation, the state court judge directed the following statement to counsel for
17 Petitioner: “Had we heard and dealt with this case, prior to Lopez . . . coming out, under
18 just the straight Bullcoming analysis and what existed then . . . I would have been, I
19 would have been in absolute . . . and total agreement with you. On, on the analysis for
20 Bullcoming.” (ECF No. 32-6 at 10).
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After the Appellate Division affirmed his conviction, Petitioner filed an

22 application for certification for transfer to the California Court of Appeal. The
23 application was denied on March 25, 2013. Petitioner filed a petition for transfer in the
24 California Court of Appeal, Fourth Appellate District, Division One. The Court of
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The Petition states, “petitioner is currently on summary probation to the trial
court.” (ECF No. 1 at 2).
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564 U.S. 647 (2011).

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286 P.3d 469 (2012)

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1 Appeal denied the petition on April 16, 2013. Petitioner filed a Petition for Writ of
2 Certiorari in the United States Supreme Court on July 11, 2013. The petition was
3 denied on October 7, 2013.
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On December 19, 2013, Petitioner filed the Writ of Habeas Corpus Petition in

5 this district court on the grounds that the trial court violated his Sixth Amendment right
6 to confrontation when it admitted the blood alcohol report into evidence and permitted
7 testimony by an analyst who did not perform the blood tests in question. Petitioner
8 asserts he would not have been convicted of violating Vehicle Code § 23152(b) if his
9 Sixth Amendment Confrontation Clause objection to the blood testing evidence had
10 been sustained by the trial court judge or the Appellate Division. Petitioner contends
11 that the admission of Carter’s laboratory report with her sworn certificate without
12 Carter’s live testimony was contrary to clearly established United States Supreme Court
13 precedent in Melendez-Diaz v. Massachusetts,6 and Bullcoming.
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Respondent timely filed an Answer to the Petition asserting that the Appellate

15 Division did not unreasonably apply United States Supreme Court precedent.
16 Respondent further contends that any Sixth Amendment violation was harmless error.
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On March 4, 2016, the United States Magistrate Judge filed a Report and

18 Recommendation recommending that this Court deny the Petition for the Writ of
19 Habeas Corpus. The Magistrate Judge concluded that “pages 2-6 of Carter’s report
20 consist almost entirely of computer printouts. It is not settled under Supreme Court law
21 that machine-generated printouts of gas chromatography results or calibration logs
22 violate a defendant’s right to confrontation.” (ECF No. 34 at 10). The Magistrate
23 Judge concluded that Page 7 of the Carter report is the “same type of log sheet
24 containing handwritten notations as was present in Lopez.” Id. at 11. The Magistrate
25 Judge stated,
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Faced with an identical log sheet with similar notations prepared by the
same crime laboratory, the court in Lopez stated this document was not
testimonial hearsay because the log sheet showed “only numbers,

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557 U.S. 305 (2009).
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abbreviations, and one-word entries under specified headings” and was
“nothing more than an informal record of data for internal purposes, as
indicated by the small printed statement near the top of the chart: ‘FOR
LAB USE ONLY.’”
Id. quoting Lopez, 286 P.3d at 479. The Magistrate Judge continued:
Petitioner’s claim is distinguishable from Lopez in an important respect:
the analyst’s report in Lopez did not contain certifications, whereas the
first page of the report at issue here provided:
I, Raegan Carter, certify under penalty of perjury . . . that the
attached blood or urine analysis was performed during the
regular course of my duties and is a true and correct copy
thereof. I further certify that I am classified by the State
Department of Health as a Forensic Alcohol Supervisor or
Forensic Alcohol Analyst or Forensic Alcohol Analyst
Trainee for the San Diego Sheriff’s Department Crime
Laboratory, that I am qualified to perform these analyses
pursuant to Title 17 of the California Code of Regulations,
and that the equipment used in determining the results was in
proper working order at the time this analysis was performed.
. . . Unlike the notations in Lopez, these certifications gave the report a
sufficient level of formality to render Carter’s notations within the report
testimonial under Supreme Court precedent. See Bullcoming, 564 U.S. at
_. 131 S.Ct. at 2717.
Id. at 11-12. The Magistrate Judge found that “Carter’s report was testimonial” but
concluded that “the United States Supreme Court has made clear that the Confrontation
Clause does not mandate ‘that anyone whose testimony may be relevant in establishing
the chain of custody, authenticity of the sample, or accuracy of the testing device, must
appear in person as part of the prosecution’s case.’” Id. at 13 quoting Melendez-Diaz,
557 U.S. at 311, n.1.
The Magistrate Judge concluded that “although Peña’s involvement in the
production of Carter’s report amounted only to a technical review, in the absence of
clearly established federal law, this Court cannot conclude that the admission of
Carter’s report violated Petitioner’s Sixth Amendment rights.” Id. The Magistrate
Judge found that Peña established on the stand that he had a thorough understanding of
the laboratory’s procedures for testing blood samples for alcohol content, and that Peña
testified that he was able to determine that Carter tested Petitioner’s sample accurately
based on his review of the documents. The Magistrate Judge found that Peña was able
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1 to testify that in his opinion the test results were accurate. “Given Peña’s technical
2 review of Carter’s work, his supervisory role in the lab, and his familiarity with the
3 blood testing procedures, this Court is satisfied that admission of Carter’s report when
4 supported by Peña’s testimony did not run afoul of the Confrontation Clause.” Id. at
5 15.
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Petitioner filed Objections to Magistrate Judge’s Report and Recommendation

7 on March 21, 2016. (ECF No. 35). Petitioner objected to the statement in Footnote 4
8 of the Report and Recommendation that “There is some dispute between the parties
9 regarding whether [the certification page] was actually admitted into evidence.” (ECF
10 No. 34 at 11 fn. 4). Petitioner asserts that there is no dispute and the record is clear that
11 Carter’s certificate on the first page of the 7-page laboratory report was admitted into
12 evidence at trial.
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Petitioner further objects to the finding by the Magistrate Judge that the

14 admission of Carter’s report did not violate his rights under the Confrontation Clause
15 as clearly established by the United States Supreme Court decisions. Petitioner asserts
16 that United States Supreme Court precedent has consistently held that a testimonial
17 report may not be admitted into evidence at a criminal trial without live testimony from
18 the witness who prepared the report. Petitioner further contends that the constitutional
19 error was not harmless.
20 III. Contentions of the Parties
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Petitioner contends that the admission of Carter’s analysis and report through the

22 testimony of Peña is directly contrary to the clear requirements of the Confrontation
23 Clause set forth by the United States Supreme Court. Petitioner contends that the
24 United States Supreme Court in Melendez-Diaz and Bullcoming held that a testimonial
25 report may not be admitted into evidence against a defendant in a criminal trial without
26 live testimony from the witness who prepared the report. Petitioner contends that the
27 Carter’s laboratory report was testimonial hearsay and was admitted into evidence
28 without the live testimony of the analyst who prepared the report. Petitioner asserts that
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1 the United States Supreme Court in Bullcoming stated clearly that the Confrontation
2 Clause does not “tolerate dispensing with confrontation simply because the court
3 believes that questioning one witness about another’s testimonial statements provides
4 a fair enough opportunity for cross-examination.” 564 U.S. at 662. Petitioner asserts
5 that the established precedent of the United States Supreme Court has made clear that
6 a testimonial certification of a scientific report made in order to prove a fact at a
7 criminal trial cannot be entered into evidence through the in-court testimony of a second
8 person who did not personally perform or observe the performance of the test.
9 Petitioner asserts that his right to confront the witness and his right to have an
10 opportunity for cross-examination were not satisfied when Carter’s blood alcohol test
11 was admitted into evidence through the testimony of Peña, without a finding that Carter
12 was not available for cross-examination and a prior opportunity for cross-examination.
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Respondent asserts that the decision of the state court, that the laboratory report

14 was not testimonial and did not trigger the right to confrontation, was not contrary to
15 or an unreasonable application of clearly established federal law. Respondent contends
16 that Crawford did not define the term “testimonial” and Bullcoming did not answer “the
17 question of the degree to which an expert witness may rely and comment upon the out18 of-court conclusions reflected in lab report which were reached by one who is not called
19 as a witness.” (ECF No. 19-2 at 12). Respondent asserts that the concurring opinion
20 of Justice Sotomayer in Bullcoming supports the state court’s conclusion that there was
21 not a Confrontation Clause violation on the facts of Petitioner’s case. Respondent
22 contends that unresolved areas of federal law include the treatment of experts testifying
23 to their opinions based on reports not admitted into evidence, as well as the degree of
24 proximity the testifying witness must have to the scientific test. Respondent contends
25 that the decision of the Appellate Division to rely upon Lopez and allow the testimony
26 of Peña and Carter’s lab results into evidence was not contrary to the clearly
27 established precedent in Bullcoming.
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Respondent asserts that the United States Supreme Court has not clearly
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1 concluded in any case that “a lab analyst’s unsworn report analyzing machine-generated
2 blood-alcohol concentration data included the requisite degree of formality to be
3 testimonial.” Id. at 13. Respondent asserts that there was no “evidence of a sworn
4 certification” by the analyst in this case unlike Bullcoming. (ECF No. 19-2 at 16).
5 Respondent also contends that the “certification by Carter on the cover sheet of the lab
6 report does not certify the truth of the report, rather it certifies that the copy of the report
7 provided is a true copy of the original. Thus, the ‘certification’ does not render Carter’s
8 lab report ‘testimonial.’” Id.
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In the alternative, Respondent argues that any violation of Petitioner’s Sixth

10 Amendment rights was harmless “in view of the fact that Peña testified about his own
11 examination of the reports and test results.” Id. at 17.
12 IV. Standard of Review
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28 U.S.C. § 2254(d) provides,

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(d) An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted with
respect to any claim that was adjudicated on the merits in State court
proceedings unless the adjudication of the claim–

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(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding.

20 28 U.S.C. §2254(d).
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“By its terms § 2254(d) bars relitigation of any claim ‘adjudicated on the merits’

22 in state court, subject only to the exceptions in §§ 2254(d)(1) and (2).” Harrington v.
23 Richter, 562 U.S. 86, 98 (2011). In Lockyer v. Andrade, 538 U.S. 63 (2003), the United
24 States Supreme Court explained,
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First, a state court decision is “contrary to our clearly established
precedent if the state court applies a rule that contradicts the governing law
set forth in our cases” or “if the state court confronts a set of facts that are
materially indistinguishable from a decision of this Court and nevertheless
arrives at a result different from our precedent.”
....
Second, “[u]nder the ‘unreasonable application’ clause, a federal habeas
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court may grant the writ if the state court identifies the correct governing
legal principle from this Court’s decisions but unreasonably applies that
principle to the facts of the prisoner’s case.” The “unreasonable
application” clause requires the state court decision to be more than
incorrect or erroneous. The state court’s application of clearly established
law must be objectively unreasonable.
...
It is not enough that a federal habeas court, in its “independent review of
the legal question,” is left with a “‘firm conviction’” that the state court
was “‘erroneous.’” We have held precisely the opposite: “Under §
2254(d)(1)’s ‘unreasonable application’ clause, then, a federal habeas
court may not issue the writ simply because that court concludes in its
independent judgment that the relevant state-court decision applied clearly
established federal law erroneously or incorrectly.” Rather, that
application must be objectively unreasonable.
Id. at 73-76. (internal citations omitted).
“Evaluating whether a rule application was unreasonable requires considering the
rule’s specificity. The more general the rule, the more leeway courts have in reaching
outcomes in case-by-case determinations.” Harrington, 562 U.S. at 101 quoting
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).
V. Applicable Law
The Sixth Amendment’s Confrontation Clause provides that, “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses
against him.” U.S. Const. Amend. VI. In Crawford v. Washington,7 the United States
Supreme Court examined its prior holding in Ohio v. Roberts,8 “that an unavailable
witness’ out-of-court statement may be admitted so long as it has an adequate indicia
of reliability – i.e., falls within a ‘firmly rooted hearsay exception’ or bears
‘particularized guarantees of trustworthiness.’” Crawford, 541 U.S. at 42 (quoting
Roberts, 448 U.S. at 66). The Supreme Court recognized that “[t]he Roberts test allows
a jury to hear evidence, untested by the adversary process, based on a mere judicial
determination of reliability.” 541 U.S. at 62. The Supreme Court reviewed the
historical background of the Confrontation Clause and clearly rejected the weighing of
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541 U.S. 36 (2004).

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448 U.S. 56 (1980)

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1 the “reliability factors” under Roberts. Id. The Supreme Court explained,
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The Constitution prescribes a procedure for determining the reliability of
testimony in criminal trials, and we, no less than the state courts, lack
authority to replace it with one of our own devising.
....
Where nontestimonial hearsay is at issue, it is wholly consistent with the
Framers’ design to afford the States flexibility in their development of
hearsay law—as does Roberts, and as would an approach that exempted
such statements from Confrontation Clause scrutiny altogether. Where
testimonial evidence is at issue, however, the Sixth Amendment demands
what the common law required: unavailability and a prior opportunity for
cross-examination. We leave for another day any effort to spell out a
comprehensive definition of “testimonial.” Whatever else the term covers,
it applies at a minimum to prior testimony at a preliminary hearing, before
a grand jury, or at a former trial; and to police interrogations. These are
the modern practices with closest kinship to the abuses at which the
Confrontation Clause was directed.
In this case, the State admitted Sylvia’s testimonial statement against
petitioner, despite the fact that he had no opportunity to cross-examine her.
That alone is sufficient to make out a violation of the Sixth Amendment.
Roberts notwithstanding, we decline to mine the record in search of indicia
of reliability. Where testimonial statements are at issue, the only indicium
of reliability sufficient to satisfy constitutional demands is the one the
Constitution actually prescribes: confrontation.

15 541 U.S. at 67-70.
16

Five years after Crawford, in Melendez-Diaz v. Massachusetts,9 the Supreme

17 Court applied its precedent in Crawford to the presentation of forensic laboratory
18 testing results at trial by the introduction of notarized certificates. During trial, the
19 prosecution entered into evidence three “certificates of analysis” sworn before a notary
20 public showing the results of forensic analysis performed on the seized substances. 557
21 U.S. at 308. The certificates reflected the results of a prior forensic laboratory analysis
22 stating the weight of the bags seized by the police and identifying the substance
23 contained in the bags as cocaine.

Defendant objected to the admission of the

24 certificates, asserting the Confrontation Clause decision in Crawford required the
25 analysts to testify in person. The objection was overruled.
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The Supreme Court found that the certificates fell within the “core class of

27 testimonial statements.” Id. at 310. “The documents at issue here . . . are quite plainly
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557 U.S. 305 (2009).
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1 affidavits . . . . The ‘certificates’ are functionally identical to live, in-court testimony,
2 doing precisely what a witness does on direct examination.” Id. at 310-11 (internal
3 citation omitted). The Supreme Court stated,
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In short, under our decision in Crawford the analysts’ affidavits were
testimonial statements, and the analysts were ‘witnesses’ for purposes of
the Sixth Amendment. Absent a showing that the analysts were
unavailable to testify at trial and that petitioner had a prior opportunity to
cross-examine them, petitioner was entitled to ‘be confronted with’ the
analysts at trial. Crawford, supra, at 54, 124 S.Ct. 1354.
557 U.S. at 311. The Supreme Court concluded that the trial court’s admission of the
certificates violated the defendant’s right to confront the authors of the certificates. The
Court stated that “Respondent and the dissent may be right that there are other ways –
and in some cases better ways – to challenge or verify the results of a forensic test. But
the Constitution guarantees one way: confrontation.” Id. at 318. The Supreme Court
explained that “confrontation is designed to weed out not only the fraudulent analyst,
but the incompetent one as well.” Id. at 319. The Supreme Court noted that “an
analyst’s lack of proper training or deficiency in judgment may be disclosed in crossexamination.” Id. at 320. The Supreme Court concluded that confrontation was
required to test the “analysts’ honesty, proficiency, and methodology, – the features that
are commonly the focus in the cross-examination of experts.” Id. at 321.
Seven years after Crawford, in Bullcoming, the Supreme Court applied its
precedent in Crawford and Melendez-Diaz to a forensic laboratory report containing a
testimonial certification. The defendant was charged with driving while intoxicated.
During the trial, a forensic analyst’s laboratory report certifying that the defendant’s
blood-alcohol concentration was above the legal threshold was admitted into evidence.
“At trial, the prosecution did not call as a witness the analyst who signed the
certification. Instead, the State called another analyst who was familiar with the
laboratory’s testing procedures, but had neither participated in nor observed the test on
Bullcoming’s blood sample.” 564 U.S. at 651. The Supreme Court stated,
The question presented is whether the Confrontation Clause permits the
prosecution to introduce a forensic laboratory report containing a
testimonial certification—made for the purpose of proving a particular
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1
2
3
4

fact—through the in-court testimony of a scientist who did not sign the
certification or perform or observe the test reported in the certification.
We hold that surrogate testimony of that order does not meet the
constitutional requirement. The accused’s right is to be confronted with
the analyst who made the certification, unless that analyst is unavailable
at trial, and the accused had an opportunity, pretrial, to cross-examine that
particular scientist.

5 Id. at 652. The certificate completed and signed by the analyst who authored the report
6 specifically affirmed that “‘[t]he seal of th[e] sample was received intact and broken in
7 the laboratory,’that ‘the statements in [the analyst's block of the report] are correct,’ and
8 that [the analyst] had ‘followed the procedures set out on the reverse of th[e] report.’”
9 Id. at 653.
10

The Supreme Court explained, “[A]nalysts use gas chromatograph machines to

11 determine BAC [Blood Alcohol Concentration] levels. Operation of the machines
12 requires specialized knowledge and training. Several steps are involved in the gas
13 chromatograph process, and human error can occur at each step.” Id. at 654. The
14 Supreme Court stated,
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We granted certiorari to address this question: Does the Confrontation
Clause permit the prosecution to introduce a forensic laboratory report
containing a testimonial certification, made in order to prove a fact at a
criminal trial, through the in-court testimony of an analyst who did not
sign the certification or personally perform or observe the performance of
the test reported in the certification. Our answer is in line with
controlling precedent: 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. Because
the New Mexico Supreme Court permitted the testimonial statement of
one witness, i.e., Caylor, to enter into evidence through the in-court
testimony of a second person, i.e., Razatos, we reverse that court’s
judgment.
Id. at 657 (emphasis added, citation omitted). The Supreme Court stated in MelendezDiaz, it held, “An analyst’s certification prepared in connection with a criminal
investigation or prosecution, . . . is ‘testimonial,’ and therefore within the compass of
the Confrontation Clause.” Id. at 658-659 (quoting Melendez-Diaz). The Supreme
Court stated,
The New Mexico Supreme Court stated that the number registered by the
gas chromatograph machine called for no interpretation or exercise of
independent judgment on Caylor’s part. 226 P.3d, at 8–9. We have
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already explained that Caylor certified to more than a machine-generated
number. See supra, at 2710 – 2711. In any event, the comparative
reliability of an analyst's testimonial report drawn from machine-produced
data does not overcome the Sixth Amendment bar. This Court settled in
Crawford that the “obviou[s] reliab[ility]” of a testimonial statement
does not dispense with the Confrontation Clause. 541 U.S., at 62, 124
S.Ct. 1354; see id., at 61, 124 S.Ct. 1354 (Clause “commands, not that
evidence be reliable, but that reliability be assessed in a particular manner:
by testing [the evidence] in the crucible of cross-examination”).
Accordingly, the analysts who write reports that the prosecution introduces
must be made available for confrontation even if they possess “the
scientific acumen of Mme. Curie and the veracity of Mother Teresa.”
Melendez–Diaz, 557 U.S., at ––––, n. 6, 129 S.Ct., at 2537, n. 6.

8 Id. at 661 (emphasis added).
9

The Supreme Court held that the Confrontation Clause did not allow the

10 admission of the blood alcohol report through “surrogate testimony” because the
11 witness “could not convey what [the author of the report] knew about the particular test
12 and the testing process he employed” or “expose any lapses or lies on the certifying
13 analyst’s part.” Id. at 661-62. The Supreme Court concluded “In short, when the State
14 elected to introduce Caylor’s certification, Caylor became a witness Bullcoming had the
15 right to confront. Our precedent cannot sensibly be read any other way.” Id. at 663
16 (emphasis added).
17

One year after Bullcoming, in Williams v. Illinois,10 the Supreme Court concluded

18 that out-of-court statements related by an expert solely for the purpose of explaining the
19 assumptions on which that opinion rests are not offered for their truth and fall outside
20 the scope of the Confrontation Clause. Reviewing its jurisprudence since Crawford, the
21 Supreme Court examined its decisions in Melendez-Diaz and Bullcoming which
22 “involved scientific reports.” 132 S.Ct. at 2232. The Supreme Court distinguished the
23 evidence in Williams from the evidence in Melendez-Diaz and Bullcoming which was
24 created for the sole purpose of providing evidence against the defendant, and used to
25 prove the truth of the matter asserted which fell within the scope of the Confrontation
26 Clause. See id. at 2232-33.
27

More than a year after Bullcoming, the Supreme Court of California decided

28
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132 S.Ct. 2221 (2012).
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1 People v. Lopez. In Lopez, the defendant was convicted of vehicular manslaughter
2 while intoxicated after a trial in which the prosecution submitted into evidence “expert
3 [] testimony about certain information in a report prepared by someone who did not
4 testify at trial.” 286 P.3d at 471. The Lopez court stated,
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Id.

To prove intoxication, the prosecution at trial introduced into evidence a
laboratory analyst’s report on the percentage of alcohol in a blood sample
taken from defendant two hours after the accident. The analyst did not
testify, but a colleague did. A jury found defendant guilty as charged.
The Court of Appeals reversed, holding that admission of nontestifying
analyst’s laboratory report and the colleague’s testimony relating some of
the report’s contents violated defendant’s right to confront and crossexamine the report’s author. Because we disagree with that holding, we
reverse the Court of Appeals.
The Lopez court recognized that Crawford “created a general rule that the

prosecution may not rely on ‘testimonial’ out-of-court statements unless the witness is
unavailable to testify and the defendant had a prior opportunity for cross-examination.”
Id. at 473 (quoting Crawford.) The court then reviewed the United States Supreme
Court’s holdings in Crawford, Melendez-Diaz, Bullcoming, and Williams, and stated,
As noted in the preceding part, the United States Supreme Court has said
that generally the Sixth Amendment’s confrontation right bars the
admission at trial of a testimonial out-of-court statement against a criminal
defendant unless the maker of the statement is unavailable to testify at trial
and the defendant had a prior opportunity for cross-examination. (See 147
Cal.Rptr.3d at pp. 563–564, 286 P.3d at p. 473, ante.). Here, declarant
Jorge Peña, whose laboratory report on the concentration of alcohol in
defendant's blood two hours after the fatal accident was introduced into
evidence by the prosecution, was not unavailable as a witness and
defendant had no previous opportunity to cross-examine him. Was Peña's
laboratory report testimonial and thus inadmissible? We explore that issue
below.

22 Id. at 476. The court examined the admission of the laboratory report and the admission
23 of the testimony of the colleague that reviewed the original analyst’s report. The
24 analyst’s report in Lopez consisted of a six-page report described as a “chain of custody
25 log sheet,” printouts of the gas chromatography’s machine calibrations on the day of the
26 test, printouts of the numerical results of the laboratory analyses, and several pages of
27 “quality control [runs] before and after the subject samples.” Id. at 478.
28

The Lopez court held that the admission of the chromatography calibration
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1 documents, the numerical results, and the quality control documents did not violate the
2 defendant’s right to confrontation because they were “machine-generated printouts.”
3 Id.

“Because, unlike a person, a machine cannot be cross-examined, here the

4 prosecution’s introduction into evidence of [the] machine-generated printouts shown
5 in pages two through six of the nontestifying analyst’s . . . laboratory report did not
6 implicate the Sixth Amendment’s right to confrontation.” Id.
7

The Lopez court noted that the admission of the “chain of custody log sheet” into

8 evidence presented “a more difficult question” because that document included
9 handwritten notations linking the defendant’s name to the blood sample containing 0.09
10 percent alcohol. Id. The court concluded, however, that the notation was not
11 testimonial because the analyst who prepared the report had not “signed, certified, or
12 swor[n]” to the contents of the report. Id. at 479. The court concluded that the notations
13 connecting the defendant to the elevated blood sample were an “informal record of data
14 for internal purposes” and, therefore, the report lacked the requisite “formality or
15 solemnity.” Id.
16

The Lopez court stated,

17

Because of our conclusion that the notation in nontestifying analyst Peña's
laboratory report linking defendant’s name to blood sample No. 070–7737
was not testimonial in nature, the trial court here was correct in overruling
defendant’s objection to that portion of the report, in permitting the
prosecution to introduce that portion of the report into evidence, and in
permitting expert Willey to testify regarding it. In holding to the contrary,
the Court of Appeal erred.

18
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20
21 Id.

22 VI. Ruling of the Court
23

In this case, Petitioner presented his claim on direct appeal to the appellate

24 division of the state superior court. Petitioner asserted that the admission of the
25 laboratory report into evidence without the live testimony of the witness who prepared
26 the report violated his confrontation clause rights. The Appellate Division denied the
27 claim on the merits finding that “Lopez is controlling in this matter.” (ECF No. 32-6
28 at 21). In Lopez, the California Supreme Court concluded that the laboratory report was
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1 properly admitted through the testimony of an analyst who did not conduct or observe
2 the tests without violating the confrontation clause because the report was not
3 testimonial. This decision of the Appellate Division applying the ruling in Lopez
4 constitutes the decision on the merits and is entitled to AEDPA deference.
5

In this case, the laboratory report prepared by analyst Carter is Exhibit 13 in the

6 record. The report included: (1) a one-page certification by Carter signed under penalty
7 of perjury (ECF No. 19-9 at 1);11 (2) a one-page calibration log containing Carter’s
8 signature and Peña’s signature after the statement “technically and administratively
9 reviewed by” (ECF No. 19-9 at 2); (3) four pages of gas chromatogram results for the
10 quality control samples and the actual sample (ECF No. 19-9 at 3-6); and (4) a one11 page handwritten log sheet showing that the result of Petitioner’s blood test (ECF No.
12 19-9 at 7). As the Report and Recommendation noted, “the report at hand is similar to
13 the report in Lopez.” (ECF No. 34 at 10). The Report and Recommendation continues:
14
15

Petitioner’s claim is distinguishable from Lopez in an important respect:
the analyst’s report in Lopez did not contain certifications, whereas the
first page of the report at issue here provided:

16

I, Raegan Carter, certify under penalty of perjury…that the
attached blood or urine analysis was performed during the
regular course of my duties and is a true and correct copy
thereof. I further certify that I am classified by the State
Department of Health as a Forensic Alcohol Supervisor or
Forensic Alcohol Analyst or Forensic Alcohol Analyst
Trainee for the San Diego Sheriff’s Department Crime
Laboratory, that I am qualified to perform these analyses
pursuant to Title 17 of the California Code of Regulations,
and that the equipment used in determining the results was in
proper working order at the time this analysis was performed.

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(Resp. Lodgment 10 at 1); see also Lopez, 286 P.3d at 479 (“neither
[analyst preparing the report] signed, certified, or swore to the truth of the
contents of page one of the report.”).
Unlike the notations in Lopez, the certification gave the report a sufficient
level of formality to render Carter’s notations within the report testimonial
under Supreme Court precedent. See Bullcoming, 564 U.S. at __, 131
S.Ct. at 2717 (“Thus, although the…report was not notarized, the
11

The oral argument before the Appellate Division contains no reference to
Carter’s certification. However, the record clearly shows that the seven page Exhibit 13
28 included the certification. (ECF No. 19-9). The state court record confirms that all
seven pages of Exhibit 13 were admitted into evidence. (ECF No. 32-7).
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formalities attending the report were more than adequate to qualify [the
analyst’s] assertions as testimonial.”).
(ECF No. 34 at 11-12) (footnote omitted).
The Report and Recommendation correctly concludes that Carter’s “certification
gave the laboratory report a sufficient level of formality to render Carter’s notations
within the report testimonial.” (ECF No. 34 at 12). Carter certified under penalty of
perjury that the “attached analysis was performed during the regular course of [] duties
and is true and correct copy thereof,” that Carter is a classified by the State Department
of Health as a Forensic Alcohol Analyst, and that Carter is “qualified to perform these
analyses pursuant to Title 17 of the California Code of Regulations.” (ECF No. 19-9
at 1). Carter certified that “the equipment used in determining the results was in proper
working order at the time the analysis was performed.” Id. The representations made
by Carter under penalty of perjury and attached to the forensic testing results are
“functionally identical to live, in-court testimony, doing precisely what a witness does
on direct examination.” Melendez-Diaz, 557 U.S. at 310 (internal quotation marks
omitted).

The representations made by Carter regarding her proficiency, and

methodology are features commonly the focus of cross-examination.
Clearly established United States Supreme Court precedent supports only the
conclusion that Carter’s laboratory report containing a testimonial certification created
for the sole purpose of proving a particular fact at trial and offered for the truth of the
matter asserted, is testimonial. See Melendez-Diaz, 557 U.S. at 310 (Forensic reports
created solely for “evidentiary purposes” are “testimonial statements” and the certifying
“‘analysts’ were ‘witness’ for the purpose of the Sixth Amendment.”); Bullcoming,
564 U.S. at 665. (“In sum, the formalities attending the ‘report of blood alcohol
analysis’ are more than adequate to qualify [the certifying analyst’s] assertions as
testimonial.”). See also Williams v. Illinois, 132 S.Ct. at 2265 (Kagan, dissent) (“A few
years [after Crawford, in Melendez-Diaz], we made clear that Crawford’s rule reaches
forensic reports.”).
“Evaluating whether a rule application was unreasonable requires considering the
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1 rule’s specificity. The more general the rule, the more leeway courts have in reaching
2 outcomes in case-by-case determinations.” Harrington, 562 U.S. at 101 quoting
3 Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). The United States Supreme Court
4 rule application under the facts of this case is established and specific. In Bullcoming,
5 the Supreme Court stated, “As a rule, if an out-of-court statement is testimonial in
6 nature, it may not be introduced against the accused at trial unless the witness who made
7 the statement is unavailable and the accused has had a prior opportunity to confront that
8 witness.” 564 U.S. at 657.
9

In this case, Carter was not found to be unavailable and Petitioner did not have

10 a prior opportunity to confront Carter. The prosecution instead called Peña who
11 testified that Carter “tested this particular blood sample accurately.” (ECF No. 32-2 at
12 42). Peña testified that Carter conducted the testing and that he did not observe Carter
13 conduct the testing. Peña testified that Carter tested this particular blood sample
14 accurately based upon his knowledge of the laboratory procedures and his review of the
15 test results. Peña was asked, “Do you have any knowledge of how Raegan Carter tested
16 the blood sample?” Peña stated, “Yes.” Peña was asked, “How do you know that?
17 Peña stated: “all the analysts have followed the exactly (sic) same procedure.” Peña
18 stated, “For this particular sample, again I was not right next to her watching her
19 analyzing so I have to go with what is established procedure for the lab, which I know
20 that she follows.” Id. at 34.
21

Clearly established United State Supreme Court precedence supports only the

22 conclusion that Peña’s testimony did not meet the constitutional requirement of
23 confrontation under the Sixth Amendment. In Bullcoming, the Supreme Court stated,
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The question presented is whether the Confrontation Clause permits the
prosecution to introduce a forensic laboratory report containing a
testimonial certification—made for the purpose of proving a particular
fact—through the in-court testimony of a scientist who did not sign the
certification or perform or observe the test reported in the certification.
We hold that surrogate testimony of that order does not meet the
constitutional requirement. The accused’s right is to be confronted with
the analyst who made the certification, unless that analyst is
unavailable at trial, and the accused had an opportunity, pretrial, to
cross-examine that particular scientist.
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1 564 U.S. at 652 (emphasis added). This rule is specific and directly applicable to the
2 facts of this case in the manner that the Supreme Court applied the rule to the facts of
3 Bullcoming.
4

Peña could not testify as to what Carter actually did during the testing because

5 Peña did not observe the test reported in Carter’s certification. As explained in
6 Bullcoming, “There are several steps in the gas chromatographic process, and human
7 error can occur at each step.” 564 U.S. at 654.12 Carter’s testimony under oath would
8 have enabled Petitioner’s counsel to raise before a jury questions concerning Carter’s
9 proficiency, the care Carter took in performing the testing, and Carter’s veracity. See
10 Bullcoming, 564 U.S. at 662 n.7. Peña could not convey what Carter knew or observed
11 about the events the certification concerned, i.e. the particular test and testing process
12 he employed. Only cross-examination of Carter would reveal these facts. Testing an
13 analyst’s honesty, proficiency, and methodology requires the cross-examination of the
14 “particular scientist” who conducted the test or observed the test. Id. at 652, See also
15 id. at 673 (Sotomayer, concurring in part) (“It would be a different case if, for example,
16 a supervisor who observed an analyst conducting a test testified about the results or
17 report about such results.”).
18

In this case, Peña was a thorough and knowledgeable witness. However, the

19 United States Supreme Court
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settled in Crawford that the “obviou[s] reliab[ility]” of a testimonial
statement does not dispense with the Confrontation Clause. 541 U.S., at
62, 124 S.Ct. 1354; see id., at 61, 124 S.Ct. 1354 (Clause “commands, not
that evidence be reliable, but that reliability be assessed in a particular
manner: by testing [the evidence] in the crucible of cross-examination”).
Accordingly, the analysts who write reports that the prosecution introduces
must be made available for confrontation even if they possess “the
scientific acumen of Mme. Curie and the veracity of Mother Teresa.”
Melendez–Diaz, 557 U.S., at ––––, n. 6, 129 S.Ct., at 2537, n. 6.

25 564 U.S. at 661. The Supreme Court clearly stated the clear rule in Bullcoming, which
26 applies to the facts of Petitioner’s case. “In short, when the State elected to introduce
27

12

In Bullcoming, the non-certifying analyst witness testified that “[y]ou don’t
28 know unless you actually observe the analysis that someone else conducts, whether they
follow th[e] protocol in every instance.” 564 U.S. at 662 n. 8.
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1 [the analyst’s] certification, [the analyst] became a witness Bullcoming had the right to
2 confront. Our precedent cannot sensibly be read any other way.” Id. at 663
3 (emphasis added). This clearly established rule requires this Court to conclude that the
4 decision of the Appellate Division that the laboratory report was properly admitted
5 through the testimony of an analyst who did not conduct or observe the tests because
6 the report was not testimonial, is an unreasonable application of clearly established
7 Federal law, as determined by the Supreme Court of the United States. Under clear
8 United States Supreme Court precedent, Petitioner’s Sixth Amendment right to
9 confrontation was violated when the laboratory report containing a testimonial
10 certification from Carter was admitted into evidence in his criminal trial without live
11 testimony from Carter, without a finding that Carter was unavailable, and without a
12 prior opportunity to confront Carter. As a result, Petitioner is entitled to habeas relief
13 under 28 U.S.C. § 2254(d).
14

Finally, this Court concludes that the constitutional error was not harmless under

15 the facts of this case. The verdict of not guilty on the charge of driving under the
16 influence and guilty on driving with a measurable blood alcohol level above .08
17 highlights the significance of the laboratory report to the jury. Respondent’s assertion
18 that “the admission of the report, if error, was harmless error in view of the fact that
19 Peña testified about his own examination of the reports and test results” is contrary to
20 the requirements of the Confrontation Clause. (ECF No. 19-2 at 17). The Supreme
21 Court in Melendez-Diaz clearly rejected Respondent’s position, stating that
22 “Respondent and the dissent may be right that there are other ways – and in some cases
23 better ways – to challenge or verify the results of a forensic test. But the Constitution
24 guarantees one way: confrontation.” Id. at 318. See also, Bullcoming, 564 U.S. at 662
25 (“[T]he Clause does not tolerate dispensing with confrontation simply because the court
26 believes that questioning one witness about another’s testimonial statements provides
27 a fair enough opportunity for cross-examination.”).
28 VII. Conclusion
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1

The objection to the Report and Recommendation filed by Petitioner (ECF No.

2 35) is sustained. The Report and Recommendation is not adopted.
3

IT IS HEREBY ORDERED that the Writ of Habeas Corpus pursuant to 28

4 U.S.C. § 2254 filed by the Petitioner will be granted in sixty days unless the San Diego
5 Superior Court vacates the judgment of conviction in Case No. CN251716 and
6 determines within a reasonable period of time whether to retry the Petitioner. The
7 parties shall file a status report in 30 days.
8 DATED: August 3, 2016
9
10

WILLIAM Q. HAYES
United States District Judge

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