People v. Ogaz

• Decision Date: 14 July 2020
• Docket Number: G055726
• Citation: 53 Cal.App.5th 280,266 Cal.Rptr.3d 203
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Ignacio OGAZ, Defendant and Appellant.

53 Cal.App.5th 280

266 Cal.Rptr.3d 203

The PEOPLE, Plaintiff and Respondent,

v.Ignacio OGAZ, Defendant and Appellant.

G055726

Court of Appeal, Fourth District, Division 3, California.

Filed July 14, 2020

As Modified August 10, 2020

Elisabeth A. Bowman, Oceanside, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Kristine Gutierrez and Junichi P. Semitsu, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

BEDSWORTH, ACTING P. J.

With the passage of time, we are blessed with more information to draw upon, more history to learn from, more science to apply ... more chances to improve. While it is sometimes difficult, we try to make the adjustments these resources require. We try to become better than we were.

The criminal law is a pretty good exemplar of these attempts. Based on scientific advances and changing societal mores, the Legislature increases sentences, then decreases them. It defines murder and then redefines it. Striving for the goldilocks statutory scheme that will satisfy our ideas about fairness both now and decades hence, it continually reshapes and polishes the rubrics of criminal practice.

And the judiciary tries to keep pace. We hold those new statutes up to the light of new ideas and try to figure out what lies within and what lies without the boundaries of words like "due process" and "equal protection" and "reasonable doubt." It is often a matter of trying to apply 18th and 19th century ideas to 21st century problems.

Justice Brandeis described the problem well in his famous dissent in Olmstead v. United States (1928) 277 U. S. 438, 472-473, 48 S.Ct. 564, 72 L.Ed. 944 ( Olmstead ): "Time works changes, brings into existence new conditions and purposes. Therefore a principle to be vital must be capable of wider application than the mischief which gave it birth. This is peculiarly true of constitutions.... The future is their care, and provision for events of good and bad tendencies of which no prophecy can be made. In the application of a constitution, therefore, our contemplation cannot be only of what has been but of what may be."

Justice Brandeis did not carry the day in Olmstead ; the court held the new technology of wiretapping a phone was not a violation of the 4th or 5th Amendment. But four decades later the court reversed itself and adopted his position; in Katz v. United States (1967) 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576, wiretaps were held to require judicial approval. The application of the Constitution to technology did a one-eighty.

Science and technology present us with some of the most perplexing problems we face, and we always embark upon the application of scientific advances to criminal law with trepidation. In evidence in light of advances in scientific technique that have complicated the rules we've operated under for decades. We are asked to define the confrontation clause in terms applicable to gas chromatography

/mass spectrometry analysis.

Ignacio Ogaz appeals from a judgment sentencing him to prison for illegal drug activity. He contends his Sixth Amendment right to confront adverse witnesses was violated by the admission of certain drug testing evidence, and we agree. We conclude the Constitution requires the defendant be afforded an opportunity to cross-examine the scientist who performed the analysis.² We must therefore reverse the judgment.

FACTS

On the morning of April 4, 2017, Police Officer Collin Reedy contacted appellant at the Civic Center Plaza in Santa Ana. At that time, the plaza had a large homeless population, and appellant was standing next to a tent where he left his belongings. Reedy searched appellant and found a large baggie in his pocket. Inside that baggie were two smaller baggies, one of which contained a brown powder that looked and smelled like heroin, and one of which contained a white crystal substancte that had the appearance of methamphetamine. Reedy also found 80-some dollars and two cell phones on appellant, who was sleepy and lethargic. A search of appellant's tent turned up another baggie of white crystals, a digital scale and a dozen or so unused hypodermic needles.

After arresting appellant, Reedy weighed the powder and crystals and determined they had a combined weight of 10.5 grams. He also tested them using a presumptive testing kit. The powder tested positive for heroin, and the crystals from the other two baggies tested positive for methamphetamine. Those results were later confirmed by the Orange County Crime Lab (OCCL or the lab). The OCCL also recovered numerous text messages from appellant's phones. In some of the messages, appellant advised the recipient not to come around the plaza when the police were there.

At trial, the only disputed issue was whether appellant possessed the drugs found in his possession to sell them. Given all the circumstances presented, Reedy opined he did, and the jury agreed. It convicted appellant of one count each of possessing heroin and methamphetamine for sale. After finding appellant had suffered four prior drug convictions, the trial court sentenced him to 68 months in prison.

DISCUSSION

Appellant contends the trial court erred in admitting evidence regarding the OCCL's drug testing results, absent testimony from the person who actually conducted the testing. In appellant's view, this prejudicially violated his confrontation rights under the Sixth Amendment. We agree.

The drug testing in this case was conducted by Michelle Stevens, a forensic scientist in the controlled substances division of the OCCL. In conjunction with her testing, Stevens prepared a one-page report that was admitted into evidence over appellant's objection as People's Exhibit No. 12. The report states the substances Stevens examined were submitted to the lab from the Santa Ana Police Department (SAPD). It identifies appellant as the person from whom those substances were recovered, and it contains the case number the SAPD assigned to this particular matter. That case number also appears on the felony complaint that was filed against appellant on April 5, 2017, the day after he was arrested and taken into custody.

The main section of Stevens' report is entitled, "ANALYTICAL RESULTS AND INTERPRETATIONS." It states the brown substance Officer Reedy recovered from appellant had a net weight of 8.463 grams and contained heroin. And the other two substances Reedy seized, described as being off-white and weighing 284 and 249 milligrams respectively, contained methamphetamine.

Near the bottom of the report, Stevens signed her name in an area identifying her as the analyst who conducted the testing. Underneath her signature are the initials of Thomas Dickan, who, as Stevens' supervisor, reviewed the report on May 5, 2017, the day after it was prepared. The report also contains the initials of a third person who processed the report for administrative purposes by logging it into the lab's information management system.

At trial, Stevens did not testify. Rather it was Dickan who took the stand to talk about the report and its contents. Dickan testified he has been a forensic scientist at the OCCL for 27 years and currently heads up the controlled substances unit of the lab. He also said the lab is accredited and that he trained Stevens on how to analyze controlled substances.

Speaking to the lab's testing procedures, Dickan explained that every substance analyzed there is subjected to two independent tests. To detect heroin, the analysts use the gas chromatograph mass spectrometry

(GCMS) test and the gas chromatograph infrared test. And to detect methamphetamine, they use the GCMS test and the microcrystal test. Dickan testified he has conducted those tests thousands of times during his career. His testimony also made it clear the tests involve an element of subjective interpretation.

For the microcrystal test, Dickan said, the analyst mixes the substance being tested with a reagent and examines it under a microscope to see if it possesses "crystals that are characteristic of methamphetamine." For the mass spectrometry test, the substance is exposed to a high energy electron beam that produces fragments that are analyzed like "a fingerprint" to determine if a controlled substance is present. And with the infrared test, exposure to an infrared light produces "peaks and valleys" the analyst examines and compares to known standards.

Dickan admitted he did not participate in or observe the testing Stevens performed in this case and had no independent recollection of the substances she examined.

However, he did review her report and the notes and data she generated. In so doing, Dickan was "checking for technical correctness" and to make sure "the appropriate work was done." He could tell she employed the tests he described in his testimony. And by initialing the report, he was signifying he agreed with the results she obtained, which he recited to the jury. He did not detect "anything out of sorts" regarding packaging or tampering, nor did he have any concerns about the validity of those results.

Appellant contends the admission of the drug testing evidence – Stevens' report and Dickan's testimony regarding it – violated his right "to be confronted with the witnesses against him" under the Sixth Amendment to the United States Constitution. As interpreted by the Supreme Court in Crawford v. Washington (2004) 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 ( Crawford ), the Sixth Amendment's confrontation clause prohibits the admission of "testimonial statements" made by a nontestifying witness unless the witness is unavailable, and the defendant had a prior opportunity for cross-examination. ( Id. at p. 59, 124 S.Ct. 1354.) Here, it is undisputed that neither unavailability nor prior cross-examination were established with respect to Stevens. Therefore, the...