P. v. Davis 10/12/11 CA3

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: C061536

Case Date: 01/12/2012

Preview:Filed 10/12/11

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, Plaintiff and Respondent, v. SYDNEY DAVIS, Defendant and Appellant.

C061536 (Super. Ct. No. 08F06253)

APPEAL from a judgment of the Superior Court of Sacramento County, Ernest W. Sawtelle, Judge. Affirmed as modified. Michael Willemsen, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Julie A. Hokans and Larenda Delaini, Deputies Attorney General, for Plaintiff and Respondent.

1

INTRODUCTION A jury found defendant Sydney Davis guilty of assaulting Jonathan Coleman with a deadly weapon in violation of Penal Code section 245, subdivision (a)(1) and mayhem in violation of Penal Code section 203. During trial, the prosecution called an

expert witness, a physician, who testified about the injury Coleman sustained. During his testimony, the expert discussed

Colemans medical records, including reports prepared by other nontestifying physicians. On appeal, defendant contends that

under Melendez-Diaz v. Massachusetts (2009) 557 U.S. ___ [174 L.Ed.2d 314] (Melendez-Diaz), these reports constitute "testimonial" out-of-court statements and their admission into evidence violated his rights under the Sixth Amendment to the United States Constitution. of conviction. error. PROCEDURAL AND FACTUAL BACKGROUND On February 19, 2009, the Sacramento County District Attorney filed a first amended information against defendant, charging him with (1) assault with a deadly weapon, i.e., a "commercial grade toilet brush," upon Coleman (count one); (2) unlawfully and maliciously putting out Colemans eye, i.e., mayhem (count two); and (3) battery upon Coleman resulting in the infliction of serious bodily injury (count three). In We disagree and affirm the judgment

We modify, however, to correct a sentencing

regard to count one, it was further alleged that the offense

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constituted a "serious" felony under Penal Code section 1192.7, subdivision (c)(8) because defendant personally inflicted great bodily injury upon Coleman, who was not an accomplice. I. Trial

On February 18, 2009, the case proceeded to a jury trial.1 The prosecutions theory of the case was that while defendant and Coleman were in the same "pod" at the Rio Cosumnes Correctional Center, defendant attacked Coleman with a toilet brush, causing serious damage to Colemans left eye. The

prosecution had a videotape of the incident, which the jury watched. Essentially, the defenses theory was that the

videotape lacked sufficient clarity to conclusively identify defendant as Colemans attacker and the evidence was otherwise insufficient to meet the prosecutions burden. As part of its case-in-chief, the prosecution called Dr. Christopher Richardson as an expert witness. Dr. Richardson

was a second-year surgical resident at San Joaquin General Hospital (hospital), the facility to which Coleman was admitted for treatment of his eye injury. Dr. Richardson participated in

Colemans discharge from the hospital. On the witness stand, Dr. Richardson acknowledged that he recognized Colemans medical records from the hospital, marked collectively as Peoples exhibit 2, and reviewed them prior to

1

For efficiency purposes, we omit several facts elicited at trial as unnecessary to our analysis and disposition. 3

testifying.

Some of those records were, in fact, prepared by Dr. Richardson testified that Colemans

Dr. Richardson himself.

medical records were the types of records that are made and kept in the ordinary course of business of treating patients at the hospital. He further explained: So as a diagnosis is made, its updated to

"[Prosecution:] the chart?

"[Dr. Richardson:] "[Prosecution:]

Yes.

And thats actually because you guys rely

on those charts to be accurate in how you treated patients? "[Dr. Richardson:] Yes."2

Turning to Colemans injury as reflected in the medical records, Dr. Richardson was asked several questions pertaining to an operative report prepared by the attending ophthalmologist, Dr. Philip Edington, and a computerized tomography (CT) scan report prepared by Dr. Peter Loew. The operative report was prepared in connection with Dr. Edingtons repair of Colemans eye. The operative report

states that Coleman had a "large globe rupture" of the left eye, and Dr. Richardson was asked to explain this terminology. Dr. Richardson testified that the "globe" refers to the "eyeball." The operative report further represents that Coleman Again,

had a "large prolapse of uvea and vitreous."

2

In addition to being offered as an expert witness, Dr. Richardson was offered as a custodian of records, without objection. 4

Dr. Richardson was asked to explain this terminology and he confirmed that this essentially means "the inside of the globe is coming outside." Dr. Richardson was asked what kind of eye He

problems could result from this type of ocular injury. indicated that such an injury could result in blindness,

glaucoma, or infection; have a substantial impact on visual acuity; and could render the eye useless. As for Dr. Loews CT scan report, Dr. Richardson explained that it was the official radiology report from Colemans CT scan upon admission. The CT scan report indicates that Coleman was

"hit in left eye" and sustained a "comminuted fracture of the nasal arch" and a "comminuted and slightly depressed fracture of the . . . medial wall of the left eye orbit." explained this terminology. Dr. Richardson

In essence, Coleman had two one fracture at the "bony

splintered (comminuted) fractures:

top of [the] nose" and another fracture on the nasal side of the left eye socket. Toward the end of his direct examination, Dr. Richardson was asked what type of impact would cause the injuries Coleman sustained. He responded that a "penetrating" injury was Dr. Richardson

substantially more likely than a "blunt" injury.

elaborated that a "penetrating" injury is one caused by something with a "sharpened edge" that "penetrates any tissue." Dr. Richardson further acknowledged that being struck with a sharpened toilet brush would likely cause a penetrating injury.

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The defense briefly cross-examined Dr. Richardson about the medical records and Colemans injury. There were several documents in Colemans medical records to which Dr. Richardson did not testify. One such document was

a "preliminary" CT scan report prepared by Dr. Susan Enlow. This report, similar to Dr. Loews CT scan report, indicates that Coleman had a "comminuted fracture of the nasal bone." After all the witnesses testified, including Coleman, the parties moved several exhibits into evidence. Colemans medical

records were admitted in their entirety, without objection. Ultimately, the jury found defendant guilty on count one, assault with a deadly weapon, and count two, mayhem. The jury

also found true the great bodily injury enhancement associated with count one. The jury acquitted defendant of count three as

the court instructed them to do after finding defendant guilty of mayhem. II. Sentencing

On March 6, 2009, the trial court sentenced defendant to a term of two years eight months in state prison, which consisted of one-third the upper term of eight years on count two, mayhem, to run "consecutive to any time that he is already sentenced to in state prison." Defendant was awarded zero presentence

credits, as he was already a sentenced prisoner serving time for another offense. This appeal followed.

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DISCUSSION I. Sixth Amendment Argument

As revealed by the record and the parties appellate briefing, the prosecution called Dr. Richardson to help prove the mayhem charge against defendant. provides: Penal Code section 203

"Every person who unlawfully and maliciously deprives

a human being of a member of his body, or disables, disfigures, or renders it useless . . . or puts out an eye . . . is guilty of mayhem." The statutory expression "puts out an eye" has been

interpreted to mean that "the eye has been injured to such an extent it cannot be used for the ,,ordinary and usual practical purposes of life [citation]." 59 Cal.App.3d 1, 3.) (People v. Green (1976)

Mayhem occurs "when the inflicted injury

not only completely destroys the victims eyesight [citation], but also when it causes impairment less than total blindness." (People v. Dennis (1985) 169 Cal.App.3d 1135, 1138.) The degree

of Colemans eye injury was thus critical to the mayhem charge, and this injury was described in the medical reports prepared by nontestifying physicians, including Drs. Edington, Loew, and Enlow. In turn, Dr. Richardson explained terminology appearing

in these reports.3

3

These reports, however, were not the exclusive evidence of Colemans injury. Indeed, Coleman himself testified at trial. 7

A.

The Reports of Drs. Edington, Loew, and Enlow Under Crawford v. Washington (2004) 541 U.S. 36, 59 and

footnote 9, 61, 68 [158 L.Ed.2d 177, 197, 199, 203] (Crawford), the "testimonial" out-of-court statements of a declarant cannot be admitted to prove the truth of the matter asserted unless the declarant is unavailable to testify and the defendant had a prior opportunity for cross-examination. Defendants sole

argument on appeal is that under Melendez-Diaz, which was decided after his trial, the medical records in this case, in particular Dr. Edingtons operative report, Dr. Loews CT scan report, and Dr. Enlows preliminary CT scan report, represent "testimonial" out-of-court statements and their admission at trial violated his Sixth Amendment confrontation rights. Without these reports, defendant maintains that it cannot be concluded, beyond a reasonable doubt, that the jury would have found him guilty of mayhem.4

4

Colemans medical records consist of 67 pages. We construe defendants Sixth Amendment "testimonial" argument as being directed at a subset of them, including Dr. Edingtons operative report, Dr. Loews CT scan report, and Dr. Enlows preliminary CT scan report. Defendant states in his appellate briefing that although "Dr. Richardson wrote some of the reports, . . . the crucial language describing the eye injury comes from the report[] by Dr. Phillip Edington, the ophthalmologic surgeon who operated on Coleman and the attending physician in charge of the case. There is also a description of the injury in the report of Dr. Susan Enlow, a radiologist." In defendants statement of facts, defendant further cites the portion of the trial transcript in which Dr. Richardson discussed the official CT scan report prepared by Dr. Loew. Apart from these documents, 8

Defendant concedes that he did not object at trial to the medical records on Sixth Amendment confrontation grounds. Nevertheless, he argues that raising a Sixth Amendment objection would have been "futile" and thus no forfeiture has occurred. (See People v. Sandoval (2007) 41 Cal.4th 825, 837, fn. 4; see also People v. Welch (1993) 5 Cal.4th 228, 237-238; People v. Simms (1970) 10 Cal.App.3d 299, 309-310.) According to

defendant, an objection on Sixth Amendment grounds would have been futile because the trial court would have been obligated to follow People v. Geier (2007) 41 Cal.4th 555 (Geier), which would have required the trial court to overrule any such objection. In Geier, after analyzing and interpreting Crawford and Davis v. Washington (2006) 547 U.S. 813 [165 L.Ed.2d 224] (Davis), the California Supreme Court held that the confrontation clause did not preclude the prosecutions expert witness, Dr. Robin Cotton, from testifying about the DNA analysis performed by another declarant, biologist Paula Yates, who did not testify at trial. pp. 593-596, 607). (Geier, supra, 41 Cal.4th at

The DNA analysis at issue was recorded in a (Id. at pp. 595-596.)

report and notes prepared by Yates.

Geier concluded that Yatess report and notes were not testimonial in nature. (Id. at 607.)

defendant has not specified whether any other documents form the basis of his Sixth Amendment challenge. 9

We assume, arguendo, that under Geier, the medical records at issue here were not testimonial, making any Sixth Amendment objection to their admission futile.5 The only issue on appeal

then is whether, as defendant claims, Melendez-Diaz changes the result, i.e., whether Melendez-Diaz renders the medical records testimonial in nature. To put defendants argument and

Melendez-Diaz in context, a short discussion of Crawford and Davis is warranted. Crawford explained that the Sixth Amendment is concerned with a "specific type of out-of-court statement." supra, 541 U.S. at p. 51 [158 L.Ed.2d at p. 193].) continued: (Crawford, Crawford

"Various formulations of this core class of ,,ex parte in-court testimony or

,,testimonial statements exist:

its functional equivalent--that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially, [citation]; ,,extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions, [citation]; [and] ,,statements that were made under circumstances which would lead

5

For whatever reason, the People do not squarely address whether Geier foreclosed a Sixth Amendment objection to the medical records. The People represent, however, that under the "substantive law" as it stood at the time of trial, the medical records were admissible "as nontestimonial business records" and that this substantive law "remains unchanged by Melendez-Diaz." 10

an objective witness reasonably to believe that the statement would be available for use at a later trial." 52 [158 L.Ed.2d at p. 193].) Although Crawford noted that "[v]arious formulations" of ",,testimonial" statements exist, Crawford did not adopt any particular articulation. Instead, Crawford left "for another (Id. at pp. 51-

day any effort to spell out a comprehensive definition of ,,testimonial" and held that "[w]hatever 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." [158 L.Ed.2d at p. 203].) In Davis, the Supreme Court again declined to adopt any particular articulation of the various formulations of testimonial statements Crawford outlined (Davis declined to even reiterate them). In its analysis, Davis utilized the dictionary (See Davis, (Crawford, supra, 541 U.S. at p. 68

definition of "testimony" as set forth in Crawford.

supra, 547 U.S. at pp. 823-824, 826-827 [165 L.Ed.2d at pp. 238, 240].) This brings us to Melendez-Diaz.

In Melendez-Diaz, the defendant was charged with distributing and trafficking in cocaine. (Melendez-Diaz, supra, Prior to trial,

557 U.S. at p. ___ [174 L.Ed.2d at p. 320].)

the police submitted the substance associated with the defendant to state drug analysts for testing purposes. (Ibid.) At trial,

the prosecution admitted in evidence three affidavits from the drug analysts, which were sworn before a notary public and which 11

stated that the substance had been examined and ",,[t]he substance was found to contain: Cocaine." (Ibid.) The sworn

affidavits were admitted to prove the truth of the matter asserted and the drug analysts did not testify at trial. at p. ___ [174 L.Ed.2d at pp. 320-321].) In a five-to-four decision, Melendez-Diaz concluded that the sworn affidavits were testimonial. (Melendez-Diaz, supra, (Id.

557 U.S at pp. ___ [174 L.Ed.2d at pp. 321-322, 332-333].) Justice Thomas, the fifth vote, joined the Melendez-Diaz "opinion" in a separate concurrence. [174 L.Ed.2d at p. 333].) (Id. at p. ___

Because Justice Thomas concurred on

grounds narrower than those set forth in the plurality opinion, we must treat as controlling only the position shared between Justice Thomas and the plurality. (See Gregg v. Georgia (1976)

428 U.S. 153, 169, fn. 15 [49 L.Ed.2d 859, 872]; see also Romano v. Oklahoma (1994) 512 U.S. 1, 9 [129 L.Ed.2d 1, 11].) We tailor our discussion of Melendez-Diaz accordingly. The Melendez-Diaz plurality held that the "Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits, and the admission of such evidence against [defendant] was error." (Melendez-Diaz, supra, 557 U.S The plurality reasoned that

at p. ___ [174 L.Ed.2d at p. 332].)

"[t]here is little doubt that the documents at issue in this case fall within the ,,core class of testimonial statements [outlined in Crawford]. Our description of that category See also White v. Illinois, 502 U.S. 12

mentions affidavits twice.

346, 365, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992) (Thomas, J., concurring in part and concurring in judgment) (,,[T]he Confrontation Clause is implicated by extrajudicial statements only insofar as they are contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions). The documents at issue here, while denominated

by Massachusetts law ,,certificates, are quite plainly affidavits: ,,declaration[s] of facts written down and sworn to

by the declarant before an officer authorized to administer oaths. Blacks Law Dictionary 62 (8th ed. 2004)." (Melendez-

Diaz, supra, 557 U.S. at p. ___ [174 L.Ed.2d at p. 321].) In his separate concurrence, Justice Thomas reiterated his view that the confrontation clause is implicated by out-of-court statements ",,only insofar as they are contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions. [Citation.]" (Melendez-Diaz, Because the

supra, 557 U.S. at p. __ [174 L.Ed.2d at p. 333].)

documents at issue were ",,quite plainly affidavits," Justice Thomas joined the courts opinion. (Ibid.)

Based on the foregoing, it is clear that the pluralitys holding--that the Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits--is entirely consistent with Justice Thomass concurrence and thus represents a controlling holding of the court. It is equally

clear that this holding does not support defendants position

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that the medical records at issue here are "testimonial" and thus inadmissible under the Sixth Amendment. Unlike the documents in Melendez-Diaz, the medical documents here are, quite plainly, not affidavits. The reports

of Drs. Edington, Loew, and Enlow were not ",,sworn" by them ",,before an officer authorized to administer oaths" (MelendezDiaz, supra, 557 U.S. at p. ___ [174 L.Ed.2d at p. 321]) or otherwise signed under penalty of perjury. The reports

completely lack the solemnity or formality associated with the affidavits utilized in Melendez-Diaz. Because the medical records at issue are not out-of-court affidavits or equivalent thereto, the controlling holding of Melendez-Diaz does not render these documents testimonial in nature. In support of his argument that the medical records are, in fact, testimonial, defendant quotes a passage from Melendez-Diaz where the plurality reasoned that the "affidavits [were] ,,"made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial."" (Melendez-Diaz, supra, 557 U.S. at

p. ___ [174 L.Ed.2d at p. 321], quoting Crawford, supra, 541 U.S. at p. 52 [158 L.Ed.2d at p. 193], italics added.)6
6

The full passage reads: "Here, moreover, not only were the affidavits ,,"made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial," Crawford, supra, at 52, 124 S.Ct. 1354, 158 L.Ed.2d 177, but under Massachusetts law the sole purpose of the affidavits was to provide ,,prima facie 14

According to defendant, Melendez-Diaz establishes the italicized language as the test for determining what statements are testimonial. Applying this test, defendant maintains that the

medical records are testimonial. The fatal defect in defendants argument is that his underlying premise is false: Melendez-Diaz did not establish

that the test for determining what statements are "testimonial" is whether they were ",,"made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial."" (Melendez-Diaz, supra, 557 U.S. at p. ___ [174 L.Ed.2d at p. 321], quoting Crawford, supra, 541 U.S. at p. 52 [158 L.Ed.2d at p. 193].) This part of the plurality opinion did not gain

Justice Thomass support and thus did not establish precedent. Moreover, neither Crawford nor Davis, nor Justice Thomas in his partial concurrence and partial dissent in Davis, adopted this language as the test for "testimonial" statements. (People v.

Cage (2007) 40 Cal.4th 965, fn. 14 [recognizing that the formulation of a "testimonial" statement as one ",,"made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for later use at a later trial"" was not adopted in Crawford or Davis];

evidence of the composition, quality, and the net weight of the analyzed substance, Mass. Gen. Laws, ch. 111,

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