NOT TO BE PUBLISHED IN OFFICIAL REPORTS IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE A116095

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1 Filed 10/11/07 In re D.H. CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule (a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule (b). This opinion has not been certified for publication or ordered published for purposes of rule IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE In re D.H., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. D.H., Defendant and Appellant. A (Solano County Super. Ct. No. J35319) After a contested hearing, the juvenile court denied a motion to suppress evidence and found true allegations that minor D.H. was in possession of ecstasy (methylenedioxymethamphetamine, hereafter MDMA) and marijuana. On appeal, D.H. contends the court erred when it (1) denied the suppression motion; and (2) admitted evidence of a forensic analysis performed on the suspected drugs. He also asserts the evidence was insufficient to prove he possessed MDMA in violation of Health and Safety Code section We agree on the latter point and therefore reverse the true findings on count I of the petition. In all other respects, we affirm. 1 All further statutory references are to the Health and Safety Code unless otherwise indicated. 1

2 BACKGROUND A petition filed pursuant to Welfare and Institutions Code section 602 alleged that on July 11, 2006, D.H. possessed ecstasy (count I) and marijuana (count II) in violation of sections 11350, subdivision (a) and 11357, subdivision (b). The following evidence was adduced at a combined hearing on the petition and D.H. s motion to suppress evidence. Private security guard Douglas Gibson was on patrol at the Village Green Apartments in Suisun City when he heard what sounded like a soft air pistol being cocked and fired. He turned and saw D.H. holding an air pistol. Gibson approached D.H. and asked what he was doing with the gun. D.H. responded What? This? and pointed the air gun at Gibson s face. Gibson tried to slap the gun out of D.H. s hands and told him to leave the Village Green property or he would call the police. When Gibson pulled out his phone and started to call the police, D.H. threw down the gun and started walking away. As Gibson was concluding his conversation with the police, he saw that D.H. crossed the street and jumped a fence into the Cedar Glen Apartments complex. Gibson called a security guard at Cedar Glen to alert him that D.H. was on the property. At the time the Cedar Glen security guard received the phone call he was conversing with police officer Andrew White. Officer White could not hear part of the phone conversation, but he saw that the security guard s eyes got real big as though something were going on. The guard ended the call suddenly and moved toward the alley. Officer White heard running noises and heard the security guard repeatedly call for someone to stop. White approached and recognized D.H. He knew D.H. did not live in the Cedar Glenn complex. For White s own safety, he began to place D.H. in handcuffs. Around that time Gibson arrived and he and the Cedar Glenn security guard told Officer White that D.H. had pointed a BB gun at Gibson. Officer White testified that he searched D.H. because the minor had pointed a gun at Gibson, had run away from a security guard and had fled into the Cedar Glenn 2

3 complex, which meant he had jumped a fence posted with a no trespassing sign. Officer White also said it was late at night, that the complex was a high crime area, and that people that have tended to have one weapon tend to have another. A pat search of D.H. revealed a small plastic bag of what appeared to be marijuana. D.H. was arrested and was later found to have another baggie containing eight red pills resembling ecstasy in his pants pocket. Recalled by the prosecution after defense counsel argued the initial detention and search were unreasonable, Officer White was questioned further about whether he knew at the time of the detention and search that D.H. was on probation and subject to a search condition. The officer testified that he knew D.H. had been on probation with a search condition within a year or more than likely six months of the incident, and it was his belief at the time of the incident that D.H. was still on probation. White s police report did not mention that D.H. was on probation. Dr. Warren Cohen, a forensic toxicologist with the Contra Costa County Sheriff s Office, testified that tests performed by former laboratory employee Anna Jackowski determined the substances found on D.H. were marijuana and MDMA, which he identified as a schedule I drug. The court denied the motion to suppress and sustained the petition on both counts. D.H., who was already a ward of the court, was continued as a ward in his parents custody subject to various probation conditions. This appeal timely followed. DISCUSSION I. The Detention and Search Were Valid D.H. persists in his contention that Officer White lacked probable cause for the detention and search. We disagree. Peace officers may search a juvenile probationer without a warrant or reasonable cause so long as the decision to search is neither arbitrary nor intended to harass (In re Tyrell J. (1994) 8 Cal.4th 68, 78, overruled on other grounds in In re Jaime P. (2006) 40 Cal.4th 128, 130) and the officer is aware the juvenile is subject to a search condition. (In re Jaime P., supra, at p. 130.) Here, Officer White testified that he believed D.H. was on probation with a search condition when he detained 3

4 him, and the trial court found the belief was reasonable. Applying a deferential standard of review (In re Lennies H. (2005) 126 Cal.App.4th 1232, 1236), we find the detention was valid. While D.H. argues Officer White could not have been certain he was still on probation on July 11, 2006, he cites no authority for his implicit proposition that absolute certainty is required before police officers may initiate a detention or search in the field. And, because D.H. was apparently fleeing from a security guard when Officer White detained him, it would be unreasonable to require the officer to contact his dispatcher to confirm his belief that D.H. was subject to a search condition before effecting the brief detention and search. II. The Forensic Evidence Was Properly Admitted D.H. next contends the court erred when it permitted Dr. Cohen to testify about the tests performed by criminalist Anna Jackowski. He argues that his inability to question Jackowski about the procedure she used to analyze the suspected contraband found in his possession, and her report violated his rights to confrontation and crossexamination under Crawford v. Washington (2004) 541 U.S. 36 (Crawford). This argument does not have merit in light of our Supreme Court s recent decision in People v. Geier (2007) 41 Cal.4th 555 (Geier). A. Background: Dr. Cohen s Testimony Dr. Cohen testified as a custodian of the Contra Costa County crime laboratory s records that the tests performed to identify suspected controlled substances are generally accepted in the scientific community; that the results are recorded at or near the time of the analysis by the criminalist who performs it; and that the reports are done in the regular course of the laboratory s business. The records identified Jackowski, who was no longer employed by the laboratory, as the criminalist who performed the tests on the substances in this case. From his review of Jackowski s report, Dr. Cohen testified that Jackowski opened a sealed envelope bearing D.H. s name and a Suisun City Police Department case number. The envelope contained two plastic bags, one containing plant material and another containing eight pink pills. Tests performed by Jackowski identified the plant 4

5 material to be 0.64 grams of marijuana and the pills to be MDMA, or ecstasy. Dr. Cohen was not present when Jackowski performed the tests. D.H. moved to exclude Dr. Cohen s testimony and the laboratory report on the ground that he was unable to cross-examine Jackowski about her compliance with the procedures necessary to ensure the test results were accurate. The court ruled the evidence of the test results was admissible under the business records exception to the hearsay rule. B. Analysis The admissibility of Dr. Cohen s testimony turns on one point: whether the written statements in Jackowski s report are testimonial hearsay within the meaning of Crawford, supra, 541 U.S. 36. Before Crawford, the out-of-court statement of an unavailable witness was admissible consistent with the confrontation clause of the Sixth Amendment if it bore adequate indicia of reliability. (Ohio v. Roberts (1980) 448 U.S. 56, 66.) Crawford abandoned this approach, holding that the Confrontation Clause bars admission of testimonial hearsay unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine him or her. (Crawford, supra, at pp ; Davis v. Washington (2006) U.S. [126 S.Ct. 2266, 2273].) But not all out-of-court statements are subject to the strictures of the Confrontation Clause: It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause. (Davis v. Washington, supra, 126 S.Ct. at p. 2273; Crawford, supra, 541 U.S. at p. 51.) In Crawford, however, the court left 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. (Crawford, supra, at p. 68, fn. omitted.) In Geier, our Supreme Court directly addressed whether the admission of scientific evidence, like laboratory reports, constitutes a testimonial statement that is 5

6 inadmissible unless the person who prepared the report testifies or Crawford s conditions unavailability and a prior opportunity for cross-examination are met. (Geier, supra, 41 cal.4th at p. 598.) There, the defendant contended expert testimony that the victim s DNA matched his own violated Crawford because the DNA analysis on which her testimony was based was performed by another scientist in her laboratory. (Id. at pp ) The court held the scientific evidence was non-testimonial and, therefore, that its admission did not violate the Confrontation Clause as construed in Crawford: While we have found no single analysis of the applicability of Crawford and Davis to the kind of scientific evidence at issue in this case to be entirely persuasive, we are nonetheless more persuaded by those cases concluding that such evidence is not testimonial, based on our own interpretation of Crawford and Davis. For our purposes in this case, involving the admission of a DNA report, what we extract from those decisions is that a statement is testimonial if (1) it is made to a law enforcement officer or by or to a law enforcement agent and (2) describes a past fact related to criminal activity for (3) possible use at a later trial. Conversely, a statement that does not meet all three criteria is not testimonial. (Geier, supra, 41 Cal.4th at p. 605.) The second point the court found was the critical one in this context. (Geier, supra, 41 Cal.4th at p. 605.) The court drew a distinction between contemporaneous recordations of observable events and the documentation of past events. The court identified the crucial point as whether the statement represents the contemporaneous recordation of observable events, and evidence is not testimonial just because it might be reasonably anticipated that it would be used at trial. (Id. at p. 607.) The DNA report in Geier constitute[d] a contemporaneous recordation of observable events rather than the documentation of past events. That is, [the analyst] recorded her observations regarding the receipt of the DNA samples, her preparation of the samples for analysis, and the results of that analysis as she was actually performing those tasks. (Id. at pp ) Moreover, other circumstances typically present in the context of statements [] made in laboratory reports and other types of forensic evidence further indicated their 6

7 nontestimonial nature, including that such analyses are generated as part of a standardized scientific protocol; are conducted pursuant to the analyst s profession and during a routine, nonadversarial process meant to ensure accurate analysis; and are neutral, rather than accusatory. (Id. at p. 607.) Like the DNA evidence at issue in Geier, Jackowski s analysis was undertaken pursuant to a standardized scientific protocol during a routine, non-adversarial process meant to ensure accurate analysis. (See Geier, supra, 41 Cal.4th at p. 607.) Defendant argues that the situations are materially different because the DNA testing in Geier was conducted by a private laboratory, as opposed to an agency closely allied with the aims of law enforcement the Contra Costa County Sheriff Coroner s office. Geier, however, makes clear that the Confrontation Clause concerns under Crawford arise due to the involvement of government in the production of evidence, whether directly by a law enforcement officer or indirectly by someone in an agency relationship with law enforcement. (Id. at p. 605.) The attempt to distinguish this case from Geier, therefore, does not persuade. To the extent D.H. contends Geier was wrongly decided, he also correctly acknowledges that we are bound by its holding under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455. The scientific evidence used to identify the drugs in D.H. s possession was properly admitted. III. Section D.H. contends that, even in light of the scientific evidence, the prosecution failed to prove he possessed a controlled substance in violation of section He does not dispute that the evidence established he knowingly possessed MDMA; indeed, Dr. Cohen testified that the pills found in D.H. s possession contained a useable amount of MDMA or XTC. Rather, D.H. contends that section does not prohibit possession of MDMA because (1) the substances criminalized by section are listed in schedules set forth in other Health and Safety Code provisions ( subds. (b), (c), (d)(14), (15), (20), (f)(1); 11055, subd. (h), and schedule III, IV and V narcotics); and (2) MDMA is not one of the listed substances. His point is well taken. 7

8 The People concede, correctly, that MDMA is not listed on the schedules of substances identified in section 11350, but maintain that its possession nonetheless violates section because MDMA is an analog of a listed substance. They rely on section 11401, subdivision (a), under which a controlled substance analog shall, for the purposes of Chapter 6 (commencing with Section 11350), be treated the same as the controlled substance classified in Section or of which it is an analog. An analog, in turn, is defined to be a substance that is substantially similar to a controlled substance in terms of its chemical structure or its effect on the central nervous system. ( 11401, subds. (b)(1), (b)(2).) The People assert MDMA is an analog of 3,4- methylenedioxy amphetamine, or MDA, which is listed in section ( 11054, subd. (d)(6)), and, therefore, that it is among the substances proscribed by section The problem with this argument is that the prosecutor never introduced evidence that MDMA is an analog of MDA. To make up for this evidentiary gap, the People cite federal cases that identify MDMA as a controlled substance analog of MDA under the parallel federal law, title 21 United States Code section (See U.S. v. Carlson (11th Cir. 1996) 87 F.3d 440, 445; U.S. v. Raymer (10th Cir. 1991) 941 F.2d 1031, ; U.S. v. Desurra (5th Cir. 1989) 865 F.2d 651, 653 [development of MDMA by drug dealers trying to evade regulation of MDA was one of the reasons Congress regulated 2 Title 21 of the United States Code section 813 states: A controlled substance analogue shall, to the extent intended for human consumption, be treated, for the purposes of any Federal law as a controlled substance in schedule I. The Controlled Substance Analogue Enforcement Act defines the term controlled substance analogue as a substance (i) the chemical structure of which is substantially similar to the chemical structure of a controlled substance in schedule I or II; [ ] (ii) which has a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in schedule I or II; or [ ] (iii) with respect to a particular person, which such person represents or intends to have a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in schedule I or II. (Pub.L. No (Oct. 27, 1986) 100 Stat ) 8

9 controlled substance analogues].) But the question is not whether Congress views MDMA as an analog of MDA, or whether federal courts conclude it to be. The issue is whether the prosecution in this case established factually that MDMA is an analog of a schedule I substance i.e., that its chemical structure or its effect on the central nervous system is substantially similar to that of a controlled substance. ( 11401, subd. (b)(1), (b)(2); see People v. Silver (1991) 230 Cal.App.3d 389, [conflicting expert testimony on whether MDMA is substantially similar to methamphetamine].) No evidence was adduced of any such similarity. Accordingly, the finding on count I must be reversed. DISPOSITION The juvenile court s order is reversed as to count I. In all other respects, we affirm. Siggins, J. We concur: McGuiness, P.J. Horner, J. * * Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 9