People v. Turner CA2/2

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Filed 9/29/25 P. v. Turner CA2/2
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                           SECOND APPELLATE DISTRICT

                                         DIVISION TWO


 THE PEOPLE,                                                      B335022

          Plaintiff and Respondent,                                (Los Angeles County
                                                                   Super. Ct. No. BA443533)
          v.

 JACOB TURNER III,

          Defendant and Appellant.


      APPEAL from judgment of the Superior Court of Los Angeles
County. David V. Herriford, Judge. Modified and affirmed with
directions.
      Nancy L. Tetreault, 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, Scott A. Taryle and Chung L. Mar, Deputy Attorneys General,
for Plaintiff and Respondent.
                      ________________________________
       Appellant Jacob Turner III appeals the judgment entered
following a jury trial in which he was convicted of assault to commit
rape during the commission of a first degree burglary (Pen. Code,1
§ 220, subd. (b); count 1), rape of an intoxicated person (§ 261, subd.
(a)(3); count 2), and rape of an unconscious person (§ 261, subd. (a)(4);
count 3). The jury found true, with respect to counts 2 and 3, the
allegation that appellant administered a controlled substance,
triazolam, during the commission of the offense. (§ 12022.75, subd.
(b)(1).) The trial court found that appellant had suffered four prior
serious or violent felony convictions under the Three Strikes law.
(§§ 1170.12, subds. (a)–(d), 667, subds. (b)–(i).) The court sentenced
appellant to an aggregate term of 30 years to life in state prison,
consisting of 25 years to life plus five years on count 2, a concurrent
term of life with a minimum term of 21 years on count 1, and a total
term of 30 years on count 3, stayed under section 654.
       Appellant challenges the judgment on a number of grounds,
asserting that: He was prejudiced by the failure to preserve potentially
exculpatory evidence; the jury was precluded from considering all
relevant evidence relating to toxicology tests; his right to confrontation
was violated with respect to testimony relating to toxicology testing; his
conviction was invalid under the California Racial Justice Act of 2020
(Racial Justice Act; Stats. 2020, ch. 317, § 1); and the trial court
improperly admitted unduly prejudicial evidence of alleged prior sexual
misconduct. We reject each of these arguments. We further conclude
that the trial court did not abuse its discretion in deciding a Pitchess2
motion. We do agree with appellant, however, that the sentence on
count 1, which was ordered to run concurrent to count 2, should instead
have been stayed under section 654, and we accordingly modify the
judgment.


      1 Undesignated statutory references are to the Penal Code.

      2 Pitchess v. Superior Court (1974)
11 Cal.3d 531
(Pitchess).



                                    2
                        FACTUAL BACKGROUND
The victim’s testimony
       In December 2014, Beatrice H. (Beatrice) met appellant, who
identified himself as Jay Freeman, on an online dating Web site. The
two had a first date at a bar, and then planned a second date for
February 22, 2015. Beatrice was planning on watching the Oscars at
her house in Los Angeles on that night, and appellant “invited himself”
to watch them with her.
       On the evening of February 22, 2015, appellant arrived at
Beatrice’s house with two bottles of wine and at least one bottle of
liqueur. Over the course of the evening, Beatrice had at least several
glasses of red wine and sparkling wine poured by appellant.
       As they watched television together, appellant put his hand on
Beatrice’s leg. She moved it away and said, “We’re not doing that.”
Later, when Beatrice got up to look out the window, appellant came up
close behind her, and she could feel that he had an erection. She
pushed him away and again told him, “No we’re not doing this.”
       At some point, appellant mixed a drink for Beatrice using the
liqueur. Afterward, she remembered being led up the stairs of her
house, but she had no memory of anything else that occurred around
that time.
       Beatrice’s next memory was of “sort of coming to while lying on
the bed,” feeling as if she had “been anesthetized.” Appellant was
naked and kneeling in front of her on the bed, holding her legs up by
her ankles. Beatrice’s pants and underwear had been removed. She
felt just lucid enough to tell him “No,” and that “it hurt,” and she
noticed a pain in her vagina that she did not have earlier that evening.
Beatrice got out of bed, hoping to do something about the pain, but she
felt “half not there,” like she was “on autopilot.” Appellant guided her
back to the bed. When she told him that it hurt, he responded, “But I
like sex.” Beatrice again said, “No.”




                                   3
       Beatrice’s next memory was of appellant telling her he had to
leave. When Beatrice went downstairs, she saw her pants lying on the
floor, which confused her because it was something she “never, ever”
did. Later, while she was at work, she felt that something was wrong
and went to urgent care, and then was directed to go to a rape center
for a rape kit.
       At the time of the incident, Beatrice was taking sertraline, a
generic antidepressant, which she took daily in the morning. She was
accustomed to drinking wine with dinner. She had never felt the way
she did on the night of the incident simply from drinking alcohol while
on the antidepressant. Instead, the only time she had felt similarly
was after being administered total anesthesia for knee operations.
       Eventually, after going to the rape center and becoming more
aware that something had occurred, Beatrice spoke with the police.
She was directed by a detective to call appellant using a recording
device. Appellant took her call, but said that he did not remember
what had happened and that he had too much to drink.
Sexual assault examination
       Nurse practitioner Madelynn Finkelstein conducted the sexual
assault examination (referred to as a SART exam) of Beatrice. The
exam followed a state protocol. Beatrice told Finkelstein that she
recalled one act of penetration, one attempted act of penetration, and
oral copulation of her genitals.
       Finkelstein conducted a genital examination of Beatrice. She
noted that Beatrice had “very significant” cervical injuries. Her vaginal
region had an abrasion and “quite a bit of bruising,” was “very, very,
very swollen,” and was tender. Additionally, she had a small laceration
at the perineum. Finkelstein stated that Beatrice’s injuries were “very
severe,” and the cervical injuries were “not common at all” and
“extremely rare.” She concluded that the injuries could not have been
caused by genital herpes, and that it was very unlikely the injuries
were caused by consensual sex because “it would be very painful.”



                                   4
       Prior to the incident, Beatrice had not had sexual intercourse
since divorcing her ex-husband several years earlier.
Lab testing
       A partial DNA profile consistent with appellant’s DNA profile
was obtained from a vaginal swab taken during Beatrice’s SART exam.
The partial profile would be expected to occur in approximately one in
3,846 males. DNA evidence obtained from Beatrice’s left breast was
also consistent with appellant’s DNA profile, and would be expected to
occur in approximately one in 400 million unrelated individuals.
       A urine sample that Beatrice provided during the SART exam
was sent to the police department’s crime laboratory. The testing
showed an elevated level of benzodiazepines, a drug class known for
being used in the commission of date rape. Because the police
department was unable to specifically test for a type of benzodiazepine,
Halcion (triazolam), which is commonly used as a date rape drug, the
urine sample was sent to an outside laboratory for testing.
       A forensic toxicologist at NMS Labs, Daniel Isenschmid, was
responsible for conducting the final review of the testing of Beatrice’s
urine sample and producing a toxicology report. The sample tested
positive for caffeine and for “triazolam metabolites, hydroxytriazolam.”
The amount of triazolam detected in the sample was consistent with a
person taking a single dose approximately six to 12 hours prior to
providing the sample.
       Isenschmid testified that benzodiazepines are a class of drugs
primarily used for antianxiety and “for a sedative, hypnotic sleep use.”
Benzodiazepines affect a person’s ability to recall data and can have an
“amnesic effect.” Triazolam, which has a brand name of Halcion, is a
“very potent benzodiazepine” used primarily for sedation to induce
sleep. Combining triazolam with alcohol would make the depressant
effects more potent. It was “very rare” to see triazolam in a sample at
the laboratory.




                                   5
Recovery of evidence
       Appellant’s apartment was searched in February 2016. Police
recovered a prescription bottle for triazolam, under the name of
appellant, containing 24 triazolam pills.
Prior, uncharged incidents
       Two witnesses who had prior encounters with appellant testified.
The first, Carol B. (Carol), was a nurse who met appellant during a
2003 hospital stay. After appellant left the hospital, they made plans
to meet at appellant’s apartment and then go out on a boat. At the
apartment, appellant offered to make Carol a mixed alcoholic drink. As
Carol chatted with appellant and finished her drink, she noticed some
sediment at the bottom of the glass but assumed it was from a liqueur.
       Carol was about halfway through a second drink when she
started to feel very sleepy. Her next memory was waking up, feeling
“semi-conscious” and “totally confused,” and trying to speak, but her
tongue felt “very heavy.” She very slowly said, “I have to pee.”
Appellant supported her as she walked to the bathroom.
       Carol, who was accustomed to drinking, knew that she was not
just feeling drunk and that something was wrong. Appellant handed
her underwear to her and chuckled. Carol left the apartment and
stumbled to her car. She drove toward her home, swerving and
nodding off along the way, and rear-ending another vehicle one block
from her destination. She later realized that she could not account for
approximately five hours of time, beginning from when she drank part
of the second drink.
       The next morning, Carol went to work and then to a medical
clinic. She had a sexual assault exam, during which blood and urine
samples were taken. The exam showed lacerations inside her vagina.
       The second witness, Meta K. (Meta), went on a date with
appellant in February 2004, their third date together. After dinner,
appellant went with Meta to her home, bringing liquor to make
cocktails. Appellant prepared a cocktail for Meta and encouraged her



                                   6
to drink it, which she did. Her next memory was of waking up the next
morning, wearing different clothes. Her clothes from the night before
were scattered around the room.
       Appellant was still at Meta’s home in the morning, against her
wishes. When she asked him what happened, he responded, “We had
intercourse,” and “We had oral [sex].” When Meta responded, “I didn’t
okay that,” and “I didn’t ask you to stay,” appellant replied, “It’s okay,”
and asked for a washcloth. Meta knew that “something was not right”
and she felt ashamed. She repeatedly asked appellant how it happened
and why he did it, and repeated that she did not consent to a sexual
encounter. He again told her, “It’s okay,” and said he had to leave.
       That incident was the first time that Meta had felt the way she
did, losing her memory. It felt different from being really drunk. A few
days afterward, Meta got a sexual assault exam at a hospital.
Defense evidence
       The parties stipulated that testing of Beatrice’s clothing did not
show semen or male DNA, and that blood was not found on her
underwear. They further stipulated that two shot glasses from
Beatrice’s house were tested, and no benzodiazepine residue was found.
       An independent DNA consultant, Mehul Anjaria, testified for the
defense. He testified that the DNA profile obtained from the vaginal
swab of Beatrice would be found in about one in 3,846 males. Given the
population of Los Angeles County, approximately 1,300 males in the
county would be expected to match the DNA profile. While appellant
could not be ruled out as the donor, many other males could not be
ruled out as well.
       Cari Caruso, a registered nurse and sexual assault nurse
examiner, also testified for the defense. She reviewed the SART exam
performed by Finkelstein. Contrary to Finkelstein’s opinion, Caruso
concluded that redness shown in photographs of Beatrice’s vaginal area
was caused by an outbreak of herpes. Caruso further testified that it
was uncommon for the cervix to be injured from a sexual encounter.



                                    7
                               DISCUSSION
I.     Failure to Preserve Evidence
       Appellant contends that his rights to due process were violated
under California v. Trombetta (1984)
467 U.S. 479
[
104 S.Ct. 2528
,
81
L.Ed.2d 413
] (Trombetta) and Arizona v. Youngblood (1988)
488 U.S. 51
[
109 S.Ct. 333
,
109 L.Ed.2d 281
] (Youngblood) because the police failed
to preserve exonerating evidence. Specifically, appellant claims that he
was prejudiced by the failure to preserve (1) the recording of the
pretext call placed by Beatrice to appellant after the incident, and
(2) Beatrice’s urine sample so that it could be provided to the defense
prior to trial.
       A.    Background
             1.     Motion to dismiss
       Prior to trial, appellant filed a motion to dismiss the information
based on the alleged failure to preserve evidence, including the
recording of the pretext call and the urine sample.
       A hearing on the motion was held in December 2018. Two
witnesses, Los Angeles Police Department Sergeant Tracy Wolfe and
Detective Brent Hopkins, were called by the prosecution. Wolfe
testified that she was the initial investigating officer for the incident
and that she interviewed Beatrice in May 2015. Based on the
interview, Wolfe directed Beatrice to make a pretext phone call to
appellant using a recording device that Wolfe provided.
       Beatrice recorded her conversation with appellant, and Wolfe
then saved the conversation to a disc, which she put into the case file.
Wolfe additionally summarized the conversation in her report on the
case. Wolfe, who was promoted to a different position shortly after the
pretext phone call was made, did not know what happened to the disc
after she placed it in the case file.
       Hopkins took over the case after Wolfe was promoted. He
reviewed the case file, but could not find the disc containing the
recording of the phone call.



                                    8
       Hopkins was in charge of submitting Beatrice’s urine sample to
NMS Labs, which was located out of state. NMS Labs provided a
report based on its testing. The second page of the NMS Labs report
contained a paragraph with instructions on maintaining the urine
sample, stating that the lab would destroy the sample unless the client
affirmatively requested otherwise. Hopkins testified that he did not
recall reading the paragraph, that he did not realize the sample would
be destroyed, and that he did not know he had to instruct the lab to
maintain the sample, stating, “It was an oversight on my part.”
       At the close of the hearing, the court found, based on the
testimony, that there was no “bad faith” connected with the loss of the
disc containing the recording of the pretext call. The court also noted
that there was a written summary of what was said in the call. As for
the loss of the urine sample, the court found that Hopkins “was being
direct and honest” when he testified that failing to request preservation
was an oversight. The court again found no bad faith in connection
with the destruction of the sample. Moreover, the court found that the
sample was inculpatory, not exculpatory. The court accordingly denied
the motion to dismiss.
             2.     Later proceedings
       At the initiation of the trial, appellant requested that evidence
relating to the pretext call and the urine sample be excluded or limited
in use. As for the pretext call, the court noted that it would be
“inappropriate” to allow an officer to opine as to how appellant sounded
on the call, and stated that the defense could raise the fact that the
recording no longer existed. The court further found that the defense
could inquire into the circumstances of what happened with the urine
sample and why it was not available for further testing.
       Later, during the middle of trial, the prosecutor stated that
Detective Hopkins, while going through the case file, discovered that a
“split” urine sample had been sent to NMS Labs, and that there was a
remaining portion of the sample still booked into evidence that could be



                                    9
tested by the defense. Appellant (through counsel) immediately moved
for a mistrial, arguing that the defense would not have time to conduct
testing on the sample as they were already in the middle of trial. The
court denied the mistrial request, but found that testing of the sample
may provide grounds for a new trial motion in the event of a conviction.
       B.    Analysis
       Appellant contends that the lost recording and apparently lost
urine sample resulted in prejudicial violations of his due process rights
under Trombetta and Youngblood. We review the trial court’s denials
of appellant’s dismissal motions for substantial evidence. (People v.
Duff (2014)
58 Cal.4th 527, 549
.)
       Under Trombetta, the state’s failure to preserve evidence may
violate the defendant’s due process rights. (People v. Lucas (2014)
60
Cal.4th 153, 221
(Lucas), disapproved on another ground in People v.
Romero and Self (2015)
62 Cal.4th 1, 53, fn. 19
.) Trombetta and
Youngblood set out the requirements for a defendant to demonstrate a
prejudicial due process violation in the event of lost evidence. (Lucas,
at p. 221; People v. Carrasco (2014)
59 Cal.4th 924, 961
.) If the
evidence has “ ‘an exculpatory value that was apparent before [it] was
destroyed,’ ” and is “ ‘of such a nature that the defendant would be
unable to obtain comparable evidence by other reasonably available
means,’ ” then its destruction violates due process. (Lucas, at p. 221,
citing
Trombetta, supra,
467 U.S. at p. 489
.) If the evidence, however,
is merely “ ‘potentially useful’ ” to the defense and does not have
apparent exculpatory value, its destruction violates due process only if
the defendant can show that the police acted in “ ‘bad faith.’ ” (Lucas,
at pp. 221–222, citing
Youngblood, supra,
488 U.S. at pp. 57–58; see
also
Carrasco at p. 961
.)
       The recording of the pretext phone call had no apparent
exculpatory value. (See People v. Thomas (2012)
54 Cal.4th 908, 929
[speculation about what recording might have revealed is insufficient to
establish due process violation].) As Beatrice testified at trial,



                                   10
appellant merely said that he had too much to drink and did not
remember what had happened. Appellant contends that the
conversation was exculpatory because he did not specifically admit
drugging or raping Beatrice. Having too much to drink and not
remembering are not denials, however. Even when appellant’s words
are taken at face value, he still could have drugged and raped Beatrice.
      At most, the recording of the conversation might have been
potentially useful to the defense. (See People v. Alvarez (2014)
229
Cal.App.4th 761
, 775–779 [finding destroyed surveillance video which
might have shown defendants’ non-involvement was potentially
useful].) Appellant’s motion to dismiss, however, was properly denied
based on the trial court’s finding of no “bad faith” in the loss of the disc
containing the recording as the investigation transitioned from Wolfe to
Hopkins. The court heard testimony from both officers and was in the
best position to judge their credibility. Given the record, we cannot say
that the trial court’s denial of the motion to dismiss for the loss of the
recording was unsupported by substantial evidence.3
      Turning to the urine sample, the trial court correctly found that
the sample was inculpatory, not exculpatory. The known date rape
drug specifically tested for, triazolam, was detected in the sample.



      3 Appellant further argues that the jury should have been
instructed that the loss of evidence adversely impacted his defense.
Appellant did not request such an instruction and thus forfeited this
claim. (People v. Rangel (2016)
62 Cal.4th 1192, 1233
.) Appellant also
complains that, during her testimony regarding the pretext call,
Beatrice stated, as “supposition,” that “it seemed to” her that appellant
“had done this before and knew not to fall to that trap.” Appellant’s
trial counsel objected to this portion of the testimony and the trial court
sustained the objection and struck the testimony. Appellant, who
argues on appeal that sanctions were warranted, does not claim that
the trial court erred in striking the testimony or explain what more it
should have done absent further request from counsel.


                                    11
Appellant’s contention that he might have found exonerating evidence
if he were able to test the sample prior to trial is pure speculation.
       Again, at most, the urine sample might have been potentially
useful. Even if so, however, appellant is unable to establish a due
process violation. “ ‘The state’s responsibility is further limited when
the defendant’s challenge is to “the failure of the State to preserve
evidentiary material of which no more can be said than that it could
have been subjected to tests, the results of which might have
exonerated the defendant.” [Citation.] In such case, “unless a criminal
defendant can show bad faith on the part of the police, failure to
preserve potentially useful evidence does not constitute a denial of due
process of law.” ’ ” (People v. Chism (2014)
58 Cal.4th 1266
, 1299–1300;
see also
Youngblood, supra,
488 U.S. at p. 58
.) The trial court, in
determining that no bad faith was present, specifically found that
Hopkins’s testimony that he unintentionally failed to request
preservation of the sample was “direct and honest.” Nor was any bad
faith apparent in the later recovery of the “split” urine sample, which
was provided to the defense. The trial court’s denials of appellant’s
motions to dismiss were thus supported by substantial evidence, and
appellant is unable to establish a due process violation.
II.    Consideration of Testing Evidence
       Appellant argues that, based on the prosecution’s midtrial
discovery of the remaining urine sample, the trial court was obligated
to grant either his motion for mistrial or later new trial motion.
Appellant contends that because, at the time of trial, only the
prosecution had tested the urine sample, the jury was left without a
complete picture of what defense testing might have revealed, and that
he was accordingly deprived of his right to present a complete defense.
He further contends that the jury’s finding that appellant administered
a controlled substance during the commission of the offense was based
on an unfairly limited scope of toxicology evidence and cannot be
affirmed.



                                  12
       A.    Background
       As explained above, during the middle of trial, the remaining
portion of the “split” urine sample was located. The trial court denied
appellant’s mistrial request, but noted that the delayed discovery of the
sample could be raised in a new trial motion in the event of a
conviction.
       Following the jury’s verdicts, the trial court continued sentencing
to allow time for the defense to test the urine sample and file
appropriate motions. The court appointed a forensic laboratory, at
defense request, to test the remaining sample, and the sample was
provided by the defense to the lab for testing. Following testing,
appellant filed a motion for new trial, making several claims, including
that the prosecution committed misconduct in failing to produce the
urine sample until midtrial.
       The motion for new trial discussed the defense’s posttrial testing
of the urine sample in a roundabout and cagey manner. The motion,
and an accompanying declaration by trial counsel, focused on drugs
other than benzodiazepines. In fact, no mention of testing by the
defense for the drug specifically referenced in the verdict form,
triazolam (or Halcion), was made in the motion for new trial or
declaration, nor was testing for the general class of drug
benzodiazepines. Based on the contents of the motion and declaration,
it appears that the lab may have either been instructed by the defense
not to test for benzodiazepines, including triazolam, or the defense
wished not to reveal the results of such testing. Either way, the motion
in no way tended to establish that the positive results for
benzodiazepines and triazolam presented during trial were erroneous.
       The trial court, after hearing argument, denied the motion for
new trial. The court noted that a report on defendant’s testing of the
sample did not “mention anything about benzodiazepine. It doesn’t
even address that.”




                                   13
        B.    Analysis
        Appellant contends that the trial court committed reversible
error because it denied appellant “the right to a jury trial on the factual
discrepancy between the results of the toxicology testing.” Appellant
argues that only the trial court, in posttrial proceedings, was presented
with a full picture of toxicology results and that, in denying the motion
for new trial, the court (rather than the jury) became the final decision-
maker with respect to the allegation that appellant administered a
controlled substance during the commission of an offense. Appellant
asserts that this result constituted error under the rule of Apprendi v.
New Jersey (2000)
530 U.S. 466
[
120 S.Ct. 2348
,
147 L.Ed.2d 435
] that
a criminal defendant is entitled to “ ‘a jury determination that [he] is
guilty of every element of the crime with which he is charged, beyond a
reasonable doubt.’ ” (Apprendi, at p. 477; see also People v. Lynch
(2024)
16 Cal.5th 730
, 766 [defendant has right to jury trial with
respect to sentencing factors].)
        Missing from appellant’s argument is an honest discussion of any
discrepancy between the results of the toxicology testing. As noted,
appellant, though given the chance, apparently did not have the urine
sample tested for benzodiazepines, including triazolam, or at least did
not reveal those results to the court. Nevertheless, appellant’s opening
brief on appeal muddies the waters by stating that appellant’s “post
trial testing of the urine did not detect benzodiazepine.” This prompts
the question: If the defense did not test for benzodiazepine, why would
it be detected? The argument is misleading.
        Contrary to appellant’s argument, the jury was presented with
all of the evidence in the record relating to testing for benzodiazepines
and triazolam. The jury was not prevented from considering
appellant’s evidence on the issue as claimed because such evidence did
not exist, even after appellant was given the opportunity to test the
urine sample. Sufficient evidence—indeed, all apparent existent
evidence—was presented to the jury, allowing it to make an informed



                                    14
decision on the question of whether appellant administered a controlled
substance during the commission of an offense. Appellant’s
counterargument rings hollow.
       In a related argument, appellant asserts that his own testing
revealed the presence of sertraline, the generic antidepressant, in
Beatrice’s urine, while the prosecution’s testing did not. Appellant
argues that, if these test results were available to him at the time of
trial, he could have cross-examined the prosecution’s expert witness on
the issue of whether mixing sertraline with alcohol could have caused
the same effect as a benzodiazepine.
       Again, appellant’s argument is belied by the record. Appellant’s
motion for new trial stated that the defense expert “was unable to get a
measurable value for the sertraline” and “must report it as a negative
for the drug.” Thus, there was no apparent discrepancy in testing
because neither testing facility detected a positive measurable value of
sertraline. In any event, Beatrice herself testified that she took
sertraline every morning, so the defense was not unaware of the
possible presence of sertraline. In fact, the record shows that the
defense did cross-examine the prosecution’s expert about the
interaction of sertraline and alcohol, and the expert responded, “It’s not
going to have additive effects in the way that it would with triazolam.”
Appellant thus fails to demonstrate that his trial—including the jury’s
finding that appellant administered a controlled substance—was
impacted in any substantive manner by the delayed discovery of the
urine sample.
III. Expert Testimony
       Appellant next contends that the testimony of the NMS Labs
forensic toxicologist Isenschmid violated his right of confrontation
because Isenschmid conveyed the results of the toxicology tests but did
not actually conduct the testing himself. We conclude that appellant
has forfeited this argument by not objecting to Isenschmid’s testimony
at trial.



                                   15
        A.     Background
        As noted above, Isenschmid conducted the final review of the
testing of Beatrice’s urine sample and produced a toxicology report. He
testified that the sample tested positive for “triazolam metabolites,
hydroxytriazolam.”
        Isenschmid explained his role at NMS Labs as follows: He
reviewed data but did not conduct analysis, meaning that he reviewed
the case work of others who did the testing. Isenschmid’s
responsibilities were “doing the final review after the analysts have
done their work and they’ve been reviewed in the laboratory by a
reviewer and a secondary reviewer for the individual tests,” and then to
“do a review of the final test of all the different tests on a given case.”
        In this specific case, Isenschmid prepared and signed a four-page
report, which noted positive findings for caffeine and triazolam.
Isenschmid testified that his report was based on a “litigation package”
of approximately 1,300 pages that documented all of the analytical
work and data produced by NMS Labs, including controls used and
chain of custody, with respect to the urine sample. Isenschmid’s four-
page report, as well as a three-page chain-of-custody report—
documenting the NMS Labs analysts that tested the sample and the
primary and secondary reviewers—were admitted into evidence
without objection. Neither side requested that the litigation package be
introduced into evidence.
        Among other additional topics, Isenschmid testified regarding the
controls used by NMS Labs to prevent contamination of the urine
sample and to assure that testing results were accurate. He
additionally explained the process for testing for triazolam in this case,
including how an initial screening tested positive, and how two
confirmatory tests were conducted.
        B.     Analysis
        The Sixth Amendment’s confrontation clause guarantees that
“ ‘[i]n all criminal prosecutions, the accused shall enjoy the right . . . to



                                     16
be confronted with the witnesses against him.’ ” (Crawford v.
Washington (2004)
541 U.S. 36, 38
[
124 S.Ct. 1354
,
158 L.Ed.2d 177
]
(Crawford).) The confrontation clause has traditionally barred
“admission of testimonial statements of a witness who did not appear
at trial unless he was unavailable to testify, and the defendant had had
a prior opportunity for cross-examination.” (Id. at pp. 53–54.)
       “In operation, the Clause protects a defendant’s right of cross-
examination by limiting the prosecution’s ability to introduce
statements made by people not in the courtroom.” (Smith v. Arizona
(2024)
602 U.S. 779
, 783–784 [
144 S.Ct. 1785
,
219 L.Ed.2d 420
]
(Smith).) This limitation “applies in full to forensic evidence. So a
prosecutor cannot introduce an absent laboratory analyst’s testimonial
out-of-court statements to prove the results of forensic testing.” (Id. at
p. 783.)
       The confrontation clause prohibits only “ ‘testimonial hearsay.’ ”
(Smith, supra,
602 U.S. at p. 784
.) The prohibition thus rests on two
separate qualifications—that the subject statement is testimonial, and
that it is hearsay. (Ibid.)
       In Smith, the United States Supreme Court examined the
application of confrontation clause principles to the testimony of an
expert witness “restat[ing] an absent lab analyst’s factual assertions to
support his own opinion testimony.” (Smith, supra,
602 U.S. at p. 783
.)
Addressing the confrontation clause’s hearsay requirement, the court
held: “When an expert conveys an absent analyst’s statements in
support of his opinion, and the statements provide that support only if
true, then the statements come into evidence for their truth.” (Ibid.)
Smith, however, only “briefly address[ed]” but did “not resolve” the
issue of whether such statements met the second condition of being
testimonial. (Ibid.)
       “[T]o be testimonial the out-of-court statement must have been
made with some degree of formality or solemnity.” (People v. Lopez
(2012)
55 Cal.4th 569, 581
(Lopez), citing
Crawford, supra,
541 U.S. at



                                   17
p. 51; Melendez-Diaz v. Massachusetts (2009)
557 U.S. 305, 310
[
129 S.Ct. 2527
,
174 L.Ed.2d 314
] (Melendez-Diaz); and Bullcoming v.
New Mexico (2011)
564 U.S. 647
; 665 [
131 S.Ct. 2705
, 180 L.Ed.2d.
610].) Further, “the primary purpose of the statement must ‘pertain[]
in some fashion to a criminal prosecution.’ ” (People v. Leon (2015)
61
Cal.4th 569, 603
.) A hearsay statement is generally testimonial if it is
“made ‘with a primary purpose of creating an out-of-court substitute for
trial testimony.’ ” (People v. Fayed (2020)
9 Cal.5th 147, 168
.)
       A “ ‘certificate[] of analysis’ ”—a sworn affidavit by a forensic
analyst laying out forensic results that is “functionally identical to live,
in-court testimony”—is testimonial. (
Melendez-Diaz, supra,
557 U.S.
305, 308
, 310–311.) But our Supreme Court has held that notations in
a laboratory report made by a laboratory analyst or assistant who
enters information relating to forensic analysis is “not prepared with
the formality required by the high court for testimonial statements.”
(Lopez, supra,
55 Cal.4th at p. 584
.) Although the laboratory analyst’s
and assistant’s initials appeared with the report notations in Lopez, the
report lacked the formality of the certificates “ ‘sworn to before a
notary’ . . . by the testing analysts” in
Melendez-Diaz, supra,
557 U.S.
at page 308
, or “the laboratory analyst’s certificate regarding the result
of his analysis [that] was “ ‘ “formalized” in a signed document’ ” in
Bullcoming, supra,
564 U.S. at page 665
. (Lopez at pp. 584–585.)
       Appellant contends that his right to confrontation was violated in
this case because Isenschmid’s testimony was based on other analysts’
testing of the urine sample and reporting. We do not fully reach the
issue, however, because appellant forfeited this contention. At trial, no
objection—including a confrontation clause objection—was made to any
of Isenschmid’s testimony regarding the toxicology testing and results
or the related exhibits. “ ‘No procedural principle is more familiar to
this Court than that a constitutional right,’ or a right of any other sort,
‘may be forfeited in criminal as well as civil cases by the failure to make
timely assertion of the right before a tribunal having jurisdiction to



                                    18
determine it.’ ” (United States v. Olano (1993)
507 U.S. 725, 731
[
113 S.Ct. 1770
,
123 L.Ed.2d 508
].) A confrontation clause claim that is
not raised at trial by objection is forfeited on appeal (except in limited
circumstances not applying here).4 (People v. Arredondo (2019)
8
Cal.5th 694, 710
(Arredondo); People v. Tafoya (2007)
42 Cal.4th 147,
166
.)
       “The reason for this rule is to allow the trial court to correct its
errors and ‘to prevent gamesmanship by the defense.’ ” (Arredondo,
supra,
8 Cal.5th at p. 710
.) “The objection requirement is necessary in
criminal cases because a ‘contrary rule would deprive the People of the
opportunity to cure the defect at trial and would “permit the defendant
to gamble on an acquittal at his trial secure in the knowledge that a
conviction would be reversed on appeal.” ’ ” (People v. Partida (2005)
37
Cal.4th 428, 434
.) Had the defense in this case timely objected, and if
the objection had merit, the prosecution could have been afforded the
opportunity to “ ‘lay additional foundation, modify the offer of proof, or
take other steps designed to minimize the prospect of reversal.’ ”
(Ibid.). Since the defense failed to object to Isenschmid’s testimony on
confrontation clause grounds, the prosecution was not given the
opportunity for correction as warranted, and appellant may not raise
the claim here.5




      4 Appellant contends he preserved the claim by making a version
of it in a posttrial motion for new trial. He is incorrect. (See People v.
Williams (1997)
16 Cal.4th 153, 254
[purpose of objection at trial is to
allow correction of error and mitigate prejudice; raising issue in new
trial motion is not timely].)
      5 We do not address appellant’s cursory contention, first made in
his reply brief, that his attorney’s failure to object constituted
ineffective assistance of counsel. (People v. Duff (2014)
58 Cal.4th 527,
550, fn. 9
[claim of ineffective assistance raised for first time in reply
brief forfeited].)


                                    19
       In any event, given the record before this court, appellant does
not establish a confrontation clause violation. Isenschmid’s testimony
at trial was based on his own report, which he created in doing a “final
review” of the data. No objection was made to the use of the report or
its introduction into evidence. Since the report was admitted into
evidence, appellant is unable to show that Isenschmid’s testimony was
grounded on an improper consideration of hearsay. (See People v.
Sanchez (2016)
63 Cal.4th 665, 686
[expert may not relate as true case-
specific facts relying on hearsay unless “independently proven by
competent evidence”].)
       Furthermore, even if we were to assume that the contents of the
litigation package that Isenschmid reviewed constituted hearsay and
that he exclusively relied on the package in formulating his opinion,
given the scant description of what was contained in the litigation
package and any formality (or informality) it possessed, we do not
determine whether the document was testimonial. Ultimately, the
record before us provides no basis to find a confrontation clause
violation.
IV. Racial Justice Act
       Appellant’s Racial Justice Act claim is based on evidence elicited
by his own trial attorney. Specifically, appellant argues that defense
counsel’s cross-examination of the victim, Beatrice, referring to
asserted racially discriminatory statements, as well as a videotaped
police interview of Beatrice that was played for the jury by defense
counsel, violated the Racial Justice Act.
       During cross-examination of Beatrice, referencing an interview
conducted by Detective Hopkins following the incident, defense counsel
questioned Beatrice as to whether she told Hopkins that appellant (who
is African-American) dates only white women, and whether she said
that appellant was “getting revenge on white women.” Beatrice
responded that she did not recall, though did not deny, making either
statement.



                                   20
        Later, during the cross-examination of Hopkins, defense counsel
played for the jury the video-recording of the interview. In the
interview, Beatrice recounted how, in conversation, she mentioned to
appellant that they did not have much in common, and appellant
(according to Beatrice) responded that he “only dates white women.”
Beatrice continued: “[T]hen later on I was thinking you know that
maybe . . . he’s got this revenge fix on white women or who knows, but I
don’t know if this is meaningful at all, I just wanted to put it out there.”
        Appellant argues that the comments that appellant dated only
white women and that he may have a “revenge fix” on white women
infected the trial with racial bias and are addressable under the Racial
Justice Act. The Racial Justice Act “sets forth four categories of
conduct, any of which, if proved, is enough to ‘establish’ a violation of
section 745, subdivision (a).” (Young v. Superior Court of Solano
County (2022)
79 Cal.App.5th 138
, 147.) Appellant focuses on two of
these categories, section 745, subdivision (a)(1), under which a violation
occurs if “[t]he judge, an attorney in the case, a law enforcement officer
involved in the case, an expert witness, or juror exhibited bias or
animus towards the defendant because of the defendant’s race,
ethnicity, or national origin,” and subdivision (a)(2), which applies
when “[d]uring the defendant’s trial, in court and during the
proceedings, the judge, an attorney in the case, a law enforcement
officer involved in the case, an expert witness, or juror, used racially
discriminatory language about the defendant’s race, ethnicity, or
national origin, or otherwise exhibited bias or animus towards the
defendant because of the defendant’s race, ethnicity, or national origin,
whether or not purposeful.” Section 745, subdivision (h)(4) defines
“ ‘[r]acially discriminatory language’ ” as “language that, to an objective
observer, explicitly or implicitly appeals to racial bias, including, but
not limited to, racially charged or racially coded language.” No
violation occurs under section 745, subdivision (a)(2), however, “if the




                                    21
person speaking is relating language used by another that is relevant
to the case.” (Ibid.)
       The People contend that appellant is estopped from raising his
Racial Justice Act claim on appeal because he, through his attorney,
introduced the challenged evidence. We agree. A defendant who “ ‘is
responsible for the introduction of . . . evidence . . . cannot complain on
appeal that its admission was error.’ ” (People v. Ramos (1997)
15
Cal.4th 1133, 1168
; see also People v. Williams (1988)
44 Cal.3d 883,
912
[“It is axiomatic that a party who himself offers inadmissible
evidence is estopped to assert error in regard thereto”].) It is
undisputed that the challenged evidence was only introduced by the
defense, and there is no suggestion that it would have been introduced
by the prosecution. Appellant, who presumably intended to attack the
credibility of Beatrice with the evidence, cannot now leverage his own
introduction of the evidence to create a Racial Justice Act violation on
appeal.6 (See People v. Midell (Aug. 28, 2025, A168758)
___Cal.App.5th___ [2025 Cal.App. Lexis 545] [defendant procedurally
barred from raising Racial Justice Act claim on appeal because defense
attorney’s comparisons of client to an animal were tactical].) A
contrary holding would allow defendants at trial to manufacture a
potential ground for reversal on appeal simply by introducing evidence
arguably subject to the Racial Justice Act.
       In any event, even if the issue were cognizable, appellant does
not demonstrate a violation of the Racial Justice Act. The challenged
evidence consisted of the statements made by Beatrice. Neither
subdivision (a)(1) nor subdivision (a)(2) of section 745, however, applies
to statements made at trial by a lay witness such as Beatrice; instead,
these subdivisions cover violations by “[t]he judge, an attorney in the


      6 Appellant does not explain how this would work logistically,
including whether his attorney should have objected to his own line of
questioning.


                                    22
case, a law enforcement officer involved in the case, an expert witness,
or juror.” (§ 745, subds. (a)(1), (2).) Furthermore, to the extent that
appellant contends his own attorney’s introduction of the evidence
violated the statute, the qualifying language of section 745, subdivision
(a)(2) counsels otherwise, since appellant’s attorney was merely
“relating language used by” Beatrice that the defense deemed “relevant
to the case.” (Ibid.)
V.     Prior Uncharged Acts of Sexual Misconduct
       Appellant additionally argues that the trial court abused its
discretion by admitting evidence of prior uncharged acts of sexual
misconduct, namely the testimony of Carol B. and Meta K., under
Evidence Code sections 1108 and 352.
       Prior to trial, the defense objected to the prosecution’s request to
call Carol and Meta, arguing that the prejudicial value of their
testimony would far outweigh the probative value, and that the jury
would be led to believe that appellant was predisposed to commit
similar acts. The trial court overruled the objection, observing, “that’s
always a concern with 1108 evidence,” noting that a corresponding
instruction would be given to the jury, and concluding that the evidence
would be “extremely probative” and outweigh the prejudicial value.
       We review the trial court’s admission of the evidence for an abuse
of discretion. (People v. Cordova (2015)
62 Cal.4th 104, 132
(Cordova).)
“Character evidence, sometimes described as evidence of propensity or
disposition to engage in a specific conduct, is generally inadmissible to
prove a person’s conduct on a specified occasion. (Evid. Code, § 1101,
subd. (a).)” (People v. McCurdy (2014)
59 Cal.4th 1063, 1095
(McCurdy).) Evidence Code section 1101, subdivision (b), however,
provides an exception for admission of such evidence for the limited
purpose of establishing identity, common plan, or intent “ ‘if the
charged and uncharged crimes are sufficiently similar to support a
rational inference’ on these issues.” (People v. Edwards (2013)
57
Cal.4th 658, 711
.)



                                    23
      Evidence Code section 1108 operates as a broader exception by
allowing the admission of evidence of a defendant’s uncharged sexual
offenses to prove a propensity to commit a charged sexual offense,
subject to the trial court’s discretion to exclude the evidence under
section 352. (McCurdy, supra,
59 Cal.4th at p. 1095
.) “[T]he clear
purpose of [Evidence Code] section 1108 is to permit the jury’s
consideration of evidence of a defendant’s propensity to commit sexual
offenses . . . . ‘[C]ase law clearly shows that evidence that [a defendant]
committed other sex offenses is at least circumstantially relevant to the
issue of his disposition or propensity to commit these offenses.’ ”
(People v. Villatoro (2012)
54 Cal.4th 1152, 1164
.) Under Evidence
Code section 1108, evidence of uncharged sex offenses “is presumed
admissible and is to be excluded only if its prejudicial effect
substantially outweighs its probative value in showing the defendant’s
disposition to commit the charged sex offense or other relevant
matters.” (Cordova, supra,
62 Cal.4th at p. 132
.)
      When determining whether to admit evidence under Evidence
Code section 1108, the trial court must carefully weigh the probative
value against the prejudicial effect under Evidence Code section 352.
(People v. Daveggio and Michaud (2018)
4 Cal.5th 790, 823
.) In
examining the admissibility of a prior uncharged sex offense, the court
“ ‘must consider such factors as its nature, relevance, and possible
remoteness, the degree of certainty of its commission and the likelihood
of confusing, misleading, or distracting the jurors from their main
inquiry, its similarity to the charged offense, its likely prejudicial
impact on the jurors, the burden on the defendant in defending against
the uncharged offense, and the availability of less prejudicial
alternatives to its outright admission.’ ” (Ibid.)
      We have little difficulty in concluding that the trial court in this
case did not abuse its discretion in admitting the testimony of Carol B.
and Meta K. As shown by their testimony, the circumstances of the
uncharged acts were strikingly similar to the charged offense in this



                                    24
matter. (See People v. Merriman (2014)
60 Cal.4th 1, 59
[similarities to
charged offenses supported the probative value of the evidence].) In all
three instances, appellant, while alone in a private home with the
victim, encouraged the victim to accept a mixed drink, using liquor he
supplied himself. All three victims fell unconscious shortly after
consuming the drinks and came to hours later feeling abnormally
confused, more than they would when only drinking alcohol. All three
victims had their clothing removed and felt that they had experienced a
sexual assault, leading each of them to seek out a sexual assault
examination. The commonalities between the charged offense and the
prior uncharged acts “permitted the inference that defendant had a
propensity to commit such sex offenses, including the charged crime.”
(Cordova, supra,
62 Cal.4th at p. 134
.)
       Nor were the incidents too remote in time to be probative, as
asserted by appellant. The acts involving Carol and Meta occurred
approximately 11 to 12 years before the charged offense. This time gap
did not compel exclusion of the evidence. (See Cordova, supra,
62
Cal.4th at p. 133
[incidents occurring 13 and 18 years prior were
admissible].) The trial court properly exercised its discretion in
according greater weight to the similarity of the offenses. Moreover,
the trial court’s consideration of the matter under Evidence Code
section 352 dispels appellant’s claim that his due process rights were
violated by the admission of the evidence. (People v. Falsetta (1999)
21
Cal.4th 903, 917
[court’s exercise of discretion under Evidence Code
section 352 obviated due process challenge to Evidence Code section
1108].)
VI. The Pitchess Hearing
       The trial court granted appellant’s Pitchess motion for review of
the personnel records of Sergeant Wolfe and Detective Hopkins and
conducted an in camera hearing to determine which, if any, of the
records were discoverable. At the conclusion of the hearing, the court
determined that the personnel files contained no discoverable material.



                                  25
Appellant has requested that this court independently review the
sealed records of the Pitchess hearing.
       We have reviewed the sealed transcript of the proceedings and
conclude that the trial court did not abuse its discretion in finding that
there were no discoverable records. (People v. Landry (2016)
2 Cal.5th
52
, 73–74; People v. Hughes (2002)
27 Cal.4th 287, 330
.)
VII. Count 1 Must Be Ordered Stayed
       Finally, appellant contends that the sentence on count 1, for
assault to commit rape during the commission of a first degree
burglary, should have been stayed under section 654 instead of being
imposed concurrent to count 2, for rape of an intoxicated person. We
agree.
       At the sentencing hearing, the prosecution argued that count 1
should not be ordered stayed because it involved different conduct from
count 2. The trial court concurred in part, but explained its reasoning
as follows: “As to count 1, I agree with the People that the court could
impose it consecutively. However, given that all three of these charges
happened within the same short period of time with the same criminal
objective, the court will impose that time to be concurrent with counts 2
and 3.” As noted, the trial court ordered the total term of 30 years to
life on count 3 stayed under section 654, and imposed a total term of 30
years to life on count 2.
       Section 654, subdivision (a), provides, “An act or omission that is
punishable in different ways by different provisions of law may be
punished under either of such provisions, but in no case shall the act or
omission be punished under more than one provision.” In a case
involving multiple offenses, “ ‘[i]f all of the offenses were incident to one
objective,’ ” the defendant may be punished for only one offense.
(People v. Latimer (1993)
5 Cal.4th 1203, 1208
(Latimer); People v.
Rodriguez (2009)
47 Cal.4th 501, 507
[“it is well settled that ‘[s]ection
654 bars multiple punishments for separate offenses arising out of a
single occurrence where all of the offenses were incident to one



                                     26
objective’ ”].) “ ‘ “The defendant’s intent and objective are factual
questions for the trial court; [to permit multiple punishments,] there
must be evidence to support [the] finding the defendant formed a
separate intent and objective for each offense for which he was
sentenced.” ’ ” (People v. Capistrano (2014)
59 Cal.4th 830, 886
(Capistrano), overruled on another ground in People v. Hardy (2018)
5
Cal.5th 56, 104
.)
       In determining whether to stay the sentence on count 1, the trial
court in this matter found that the offense was committed “with the
same criminal objective” as counts 2 and 3. Because the court found
only a single objective, which was a factual determination supported by
substantial evidence, the court was required to conclude that appellant
could be punished for only one offense. (See Latimer, supra,
5 Cal.4th
at p. 1208
;
Capistrano, supra,
59 Cal.4th at p. 886
.) Nevertheless, the
trial court ordered count 1 to run concurrent to count 2. This
sentencing decision was erroneous and must be corrected.
       We therefore will modify the judgment to stay the sentence on
count 1 in accordance with section 654.7 (See People v. Alford (2010)
180 Cal.App.4th 1463, 1473
[exercising authority under section 1260 to
modify judgment rather than remand as remedy for trial court’s failure
to impose and stay sentence].)




      7 The abstract of judgment issued by the trial court in November
2023 incorrectly listed count 2 as running concurrent to count 1,
contrary to the trial court’s oral pronouncement of sentence that count
1 would run concurrent to count 2. (See People v. Zackery (2007)
147
Cal.App.4th 380, 385
[“Where there is a discrepancy between the oral
pronouncement of judgment and the minute order or the abstract of
judgment, the oral pronouncement controls”].) Because the disposition
of this opinion directs that the abstract of judgment be amended, this
clerical error will be eliminated upon remand.


                                   27
                               DISPOSITION
      The judgment is modified to stay the sentence on count 1 under
Penal Code section 654. The trial court is directed to prepare an
amended abstract of judgment reflecting that a total sentence of 30
years to life (25 years to life plus five years) was imposed on count 2
and that the sentence on count 1 was stayed, and to forward a certified
copy to the Department of Corrections and Rehabilitation. As modified,
the judgment is affirmed.
      NOT TO BE PUBLISHED.



                                          LUI, P. J.
We concur:



      RICHARDSON, J.



      GOORVITCH, J.*




     * Judge of the Los Angeles County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the California
Constitution.


                                  28