People v. Soliz CA2/6

Filed 11/18/24 P. v. Soliz CA2/6

     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                         SECOND APPELLATE DISTRICT

                                         DIVISION SIX


THE PEOPLE,                                                   2d Crim. No. B333746
                                                           (Super. Ct. No. 2022027042)
     Plaintiff and Respondent,                                  (Ventura County)

v.

STEVEN SOLIZ,

     Defendant and Appellant.



      Steven Soliz appeals following a trial at which the jury
found him guilty of failing to register annually as a sex offender
(Pen. Code, § 290.011, subd. (c); count 1)1, failing to register every
30 days (id., subd. (a); count 2), and possession of a controlled
substance with a section 290, subdivision (c) prior (Health & Saf.
Code, § 11377, subd. (a); count 3.) The jury found true several
allegations. (§ 290.018, subdivision (b); § 290, subdivision (c).)
The court sentenced appellant to 16 months in prison on count 1.

         1 Undesignated statutory references are to the Penal Code.
The court imposed concurrent terms of 16 months in prison on
count 2 and 90 days in jail on count 3. The count 3 term was
deemed served based on appellant’s credits.
      Appellant contends his count 3 conviction must be reversed
because admission of a criminalist’s testimony and a report
prepared by a non-testifying criminalist violated the
Confrontation Clause, resulting in prejudice. The People concede
a violation occurred. We will reverse appellant’s count 3
conviction and otherwise affirm the judgment.
         FACTUAL AND PROCEDURAL BACKGROUND
      Appellant was previously convicted of indecent exposure.
(§ 314, subd. (1).) Appellant had acknowledged his duty to
register in writing on three occasions. He last successfully
completed registration on July 25, 2019.
      In October 2022, Deputy Francisco Gil contacted appellant
and searched his person. Deputy Gil, who had drug identification
training, found a baggie with a white, crystalline-like substance
he recognized as methamphetamine.
      Ventura County Sheriff forensic scientist Maria Contreras
tested the substance Deputy Gil recovered. She authored a
“CONTROLLED SUBSTANCES REPORT” with a result of
“[m]ethamphetamine.” According to the report, Contreras’s
examination methods were “[c]olor tests” and “[i]nfrared
spectroscopy.” Contreras signed the report. Supervising forensic
scientist Trevor Booth signed as the technical and administrative
reviewer. Over objection, the court admitted the report into
evidence as an exhibit.
      Booth, not Contreras, testified at trial. He stated: “[W]e
found the white crystalline material to be . . . methamphetamine
or a substance containing methamphetamine.” Booth had not




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personally conducted the tests but had reviewed Contreras’s
report, as well as her notes, data, and analysis. Booth did not
recall speaking to Contreras about the case or being present for
the testing she conducted.
       Booth testified he could not conclusively determine a
substance’s chemical nature based solely on physical observation.
Deputy Gil testified to similar effect.
                             DISCUSSION
       We conclude admission of Contreras’s report, as well as
Booth’s testimony based on the report, violated the Confrontation
Clause. That clause prohibits admission of “testimonial hearsay”
in most circumstances. (Crawford v. Washington (2004) 541 U.S.
36, 53 [158 L.Ed.2d 177].) Hearsay is an “out-of-court
statement[] offered ‘to prove the truth of the matter asserted.’”
(Smith v. Arizona (2024) 144 S.Ct. 1785, 1792 [219 L.Ed.2d 420]
(Smith); see also Evid. Code § 1200; People v. Sanchez (2016) 63
Cal.4th 665, 674.)
       Contreras’s report was hearsay. The report was an out-of-
court statement offered to prove the truth of its contents—chiefly,
that the tested substance was methamphetamine. To the extent
Booth sought to offer an “‘independent opinion’” based on his
review of Contreras’s work, Smith explains the Confrontation
Clause can still be implicated. (Smith, supra, 144 S.Ct. at
p. 1800.) Such an expert opinion is based on the truth of the
analyst’s underlying factual statements—for example, that the
analyst “had performed certain tests according to certain
protocols and gotten certain results.” (Id., at pp. 1799-1800.) If
the hearsay is also testimonial, defendants in such cases would
“have . . . a right to confront the person who actually did the lab




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work, not a surrogate merely reading from her records.” (Id. at
p. 1801.)
      Our Supreme Court has noted that “‘[a] comprehensive
definition of the term “testimonial” awaits articulation’” by the
United States Supreme Court. (People v. Gonzalez (2021) 12
Cal.5th 367, 398.) In Smith, a five-member majority of the high
Court recently stated that the “testimonial” requirement “focuses
on the ‘primary purpose’ of the statement, and in particular on
how it relates to a future criminal proceeding.” (Smith, supra,
144 S.Ct. at p. 1801.) But because articulating a comprehensive
definition of testimonial was not the Smith Court’s focus, we rely
on earlier precedent to define that concept. (Ibid.)
      People v. Lopez (2012) 55 Cal.4th 569 (Lopez) isolated two
conditions for a statement to be testimonial. First, it “must have
been made with some degree of formality or solemnity.” (Id. at
p. 581.) Second, the statement’s “primary purpose” must
“pertain[] in some fashion to a criminal prosecution . . . .” (Id. at
p. 582; see also People v. Dungo (2012) 55 Cal.4th 608, 619.) We
conclude Contreras’s report met both conditions.
      The primary purpose of Contreras’s report pertained
directly to a criminal proceeding. The report listed appellant as
the arrestee and indicated Deputy Gil requested the analysis on
behalf of the Ventura County Sheriff’s Office. Contreras, who
worked for that same office, conducted her analysis “to support
the [drug] charge[]” against appellant. (People v. Ogaz (2020) 53
Cal.App.5th 280, 292 (Ogaz).) And the prosecution ultimately
used her report to prove the nature of the controlled substance.
“Considered as a whole, the circumstances surrounding the
report’s preparation convince us its primary purpose pertained to
a criminal prosecution.” (Ibid.)




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       We likewise conclude the report is sufficiently formal. In
Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305, 308 [174
L.Ed.2d 314], the Court held that notarized “‘certificates of
analysis,’” described as affidavits identifying the seized
substances as cocaine, were testimonial. Similarly, in
Bullcoming v. New Mexico (2011) 564 U.S. 647, 652 [180 L.Ed.2d
610], the Court held that an analyst’s unsworn, but signed,
forensic laboratory report containing a “testimonial certification”
qualified as formal. Here, while no certification or notarized
affidavit exists, Contreras “signed the report, thereby attesting to
its contents.” (Ogaz, supra, 53 Cal.App.5th at p. 291.) Her
signature “demonstrates she was willing to stand behind the
information reflected therein.” (Ibid.) The constitutional right to
confront witnesses cannot hinge on the precise nomenclature
criminalists use to endorse their results.
       Comparison to Lopez further illustrates the testimonial
nature of Contreras’s report. In Lopez, the report consisted
primarily of machine printouts. (Lopez, supra, 55 Cal.4th at
p. 583.) The Court determined this type of machine-generated
evidence did not implicate the Confrontation Clause. (Ibid.) On
a separate page, the report also contained a notation linking the
defendant’s blood to a particular sample. However, neither the
analyst nor his assistant “signed, certified, or swore to the truth
of the contents” of that page. (Id. at p. 584.) Moreover, the
notation appeared in a chart stating “FOR LAB USE ONLY.”
(Ibid.) Thus, the notation was “nothing more than an informal
record of data for internal purposes . . . .” (Ibid.)
       By contrast, here the report, titled “CONTROLLED
SUBSTANCES REPORT,” harbors no indication it is an internal
document for lab use only. Nor is the report comprised primarily




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of machine-generated printouts devoid of Contreras’s “express or
implied” statements. (Lopez, supra, 55 Cal.4th at p. 583.)
Instead, the report serves to communicate Contreras’s key
result—that the substance recovered from appellant was
methamphetamine. In sum, Contreras’s report qualifies as
testimonial hearsay. Therefore, the trial court erred in admitting
the report, as well as the portions of Booth’s testimony based on
that report.
       “Violation of the Sixth Amendment’s confrontation right
requires reversal of the judgment against a criminal defendant
unless the prosecution can show ‘beyond a reasonable doubt’ that
the error was harmless.” (People v. Rutterschmidt (2012) 55
Cal.4th 650, 661.) Besides Contreras’s report, the only notable
evidence identifying the substance as methamphetamine was the
substance’s physical characteristics and Booth’s testimony.
Deputy Gil and Booth agreed physical observation alone is
inadequate to determine a substance’s true nature, hence the
need for chemical analysis. As to Booth’s testimony, his opinion
was derived in part from the improperly admitted report. Booth’s
additional consideration of Contreras’s notes, data, and analysis
does not eliminate the problem that reliance on her report poses.
       Regardless, the court admitted Contreras’s report as an
exhibit. This evidence has the strongest probative value given
that it comes from the analyst who actually touched and tested
the substance. We cannot conclude beyond a reasonable doubt
that the jury would have convicted on count 3 without this key
evidence. Accordingly, the error was not harmless.
                            DISPOSITION
       The judgment is reversed as to count 3 and is otherwise
affirmed.




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     NOT TO BE PUBLISHED.




                            CODY, J.


We concur:



     GILBERT, P. J.



     YEGAN, J.




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                    Kristi J. Peariso, Judge
               Superior Court County of Ventura
                ______________________________

      Leonard J. Klaif, under appointment by the Court of
Appeal, for Defendant and Appellant.
      Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Jonathan M. Krauss and Lauren N.
Guber, Deputy Attorneys General, for Plaintiff and Respondent.




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