Filed 4/26/13 P. v. Quiroz CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION FOUR




THE PEOPLE,                                                             B241039

         Plaintiff and Respondent,                                      (Los Angeles County
                                                                        Super. Ct. No. NA089299)
         v.

IVAN QUIROZ,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Laura
Laesecke, Judge. Affirmed.
         Craig C. Kling, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey and
Louis W. Karlin, Deputy Attorneys General, for Plaintiff and Respondent.
                                    INTRODUCTION


       A jury convicted defendant Ivan Quiroz of burglary (Pen. Code, § 459), finding
the burglary was in the first degree because defendant entered an inhabited dwelling with
the intent to commit larceny.1 Quiroz was sentenced to the upper term of six years in
state prison.
       Defendant contends on appeal that the trial court erred by admitting testimony by
a fingerprint expert that her analysis had been verified by two other forensic analysts in
her laboratory, in violation of his Sixth Amendment right to confront adverse witnesses.
Because we conclude any error in admitting the testimony was harmless beyond a
reasonable doubt, we affirm the judgment.


                              FACTUAL BACKGROUND


       Claudia Sanchez and her four children came to Southern California for vacation,
arriving in Long Beach the morning of November 4, 2010. She checked into the Hotel
Current, room 127, a corner, ground floor room with two beds and a bathroom. She was
given two keycards, which she kept in her possession. The bathroom window faced the
parking lot behind the hotel where her car was parked. The family put their luggage in
the room, had breakfast, and at around 10:00 a.m. they prepared to leave for Disneyland.
Sanchez made sure the bathroom window was shut, the lights and air conditioning were
turned off, and the front window and door were closed and locked. As she drove away,
she saw that the bathroom window and screen were undamaged.
       The Sanchez family returned to their hotel room around 1:00 a.m. the following
morning. As soon as she parked near the hotel room, she saw that the lights were turned
on in the room, the bathroom window screen was bent open, and the bathroom window
was open. The door to the room was propped open with the hinge used to lock the door
from the inside. Sanchez looked inside the room and saw that the television set and

1
       All further undesignated statutory references are to the Penal Code.

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refrigerator were gone. The family‟s jackets, six packed suitcases, portable DVD player,
a DVD movie, and $300 in cash were also gone. She notified the front desk and the
police were called. She had not given anyone permission to enter the hotel room.
       The hotel‟s general manager said room 127 had recently been renovated, including
replacement of the bathroom window screen. The manager met Sanchez in the hotel
lobby around 1:20 a.m. and accompanied her and a police officer to room 127. The room
had been ransacked; the alarm clock with an iPod dock was gone, along with the
television and refrigerator. The hotel‟s electronic reporting system indicated a
housekeeper had entered the room the morning of November 4th using her magnetic
keycard, and no one else had used a magnetic keycard to enter the room for the rest of the
day. At trial, the manager did not recognize defendant. Defendant was not employed by
the hotel and he was not on the renovation contractor‟s payroll.
       Long Beach Police Officer Vincent Kong responded to the burglary scene. He
saw that the bathroom window screen to room 127 had been pried open. Based on
Sanchez‟s assurance that she locked the doors and windows before leaving the room and
due to the lack of damage to the front window and door, Officer Kong concluded the
burglar had entered the room through the rear bathroom window.
       Heather Cochran, a forensic specialist for the City of Long Beach with 16 years of
experience with fingerprint evidence, examined for fingerprints on various surfaces
inside room 127, as well as the bathroom window and screen. She obtained only one
fingerprint, from the bathroom window screen. Cochran transferred the latent fingerprint
onto an exemplar card, and the card was admitted into evidence at trial.
       Nancy Preston was declared an expert in fingerprint examination at trial. Preston
is a forensic specialist with the Long Beach Police Department‟s crime laboratory and
has 19 years of experience in the field, including specialized training. Preston received
the fingerprint exemplar card prepared by Cochran on November 11, 2010 (People‟s
exhibit 9). Preston ran the print through the Automated Fingerprint Identification System
(AFIS) database to search for potential matches. The AFIS generated a list of 50 possible
candidates for comparison, using a mathematical program to rank the results in order of


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the probability of each being a match. Preston examined the AFIS list by comparing the
computer-generated fingerprints to the print on the exemplar card. The fourth one on the
AFIS list appeared to her to be a potential match. She therefore generated an exemplar
card of that print. Preston visually compared the latent print exemplar card to the AFIS
exemplar card, using a magnifying glass and fingerprint pointers, and determined they
matched. The AFIS card was a print of defendant‟s right middle finger (People‟s exhibit
10).
       On December 19, 2011, Preston met with defendant and rolled his fingerprints in
order to create a third exemplar card (People‟s exhibit 11). When she compared the AFIS
exemplar to the one she obtained from defendant she determined they matched. She
concluded that all three prints were made by the same person, defendant.
       The prosecutor inquired if Preston‟s work was verified or checked by anyone else
in her lab, and she replied in the affirmative. The prosecutor asked how many people had
checked it and defense counsel objected, saying out of the jury‟s presence, “If counsel
intends to elicit testimony from this witness as to the examinations of other people, I‟m
going to object as calls for hearsay. I don‟t see how she can just say to this witness did
someone else check your work and was it deemed accurate without putting on that
witness and subjecting that witness to cross-examination.”
       The prosecutor argued Preston‟s testimony fell under the business records
exception to the hearsay rule. Defense counsel responded that the business records
exception does not include matters that require analysis and results of tests without
making the other people available for cross-examination to explore what analysis or
techniques they used, what the results of their comparisons were, and what features they
looked at. The trial court indicated that it was a combination of the business records
exception and the principle that an expert can rely on hearsay as part of his or her
opinion; the fact her analysis was verified by other individuals formed part of her
opinion. Defense counsel replied that the other people did the exact same thing this
witness had done, and by allowing her to testify about what the others did his client was
denied the opportunity to cross-examine the other expert witnesses.


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       The trial court ascertained that there was a notation on the exemplar card that the
print was verified, and ruled that was part of the business record. The court stated that it
saw no distinction between this situation and one in which an expert rendered an opinion
based on his or her own observations or calculations as well as consultation with
colleagues or other experts. The court overruled the objection.
       Preston then testified that two other people verified her work, as was standard
procedure in her laboratory as well as in many other laboratories. This was done as a
quality control measure to ensure no errors were made before a report was sent to the
detectives. Also, “as in any science it shows that the results can be duplicated and it is an
accepted method to validate your initial findings.” Preston identified the other two
reviewers as Pete Pkergil and Cynthia Watts. Preston‟s “latent print CSI analysis report”
was marked as People‟s exhibit 12. It contained a notation of “verified by,” followed by
two signatures. Preston stated that in verifying her work Pkergil and Watts were agreeing
with her conclusion. If she had made an erroneous identification her peers would have
alerted her to that fact, as was standard practice in her industry.
       On cross-examination, Preston stated that her two colleagues did not compare all
of the AFIS candidates prior to comparing the prints in Preston‟s report. Preston did not
make any notes of why she rejected as matches the first three candidates on the AFIS-
generated list. Once she determined the fourth print was a match, she did not compare
other prints from the AFIS list. She agreed that the fingerprint obtained from the crime
scene was incomplete. It was less than half of a complete print because the center portion
was absent, the right portion was smeared, and the left portion was too dark to see any
characteristics. Preston specified that she did not do a direct visual comparison between
the card of defendant‟s prints that she rolled herself and the original latent print taken
from the crime scene; rather she compared the print she rolled with the AFIS exemplar
card that she previously determined matched the latent print. Defense counsel asked if
there was an error rate involved with fingerprint identification, and Preston responded
that there was not an established error rate that she could cite but the amount of errors
that had been discovered indicated the error rate was “very, very, very low.” She agreed


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that the only way errors could be discovered in her lab was by the verification process
they used. She acknowledged that the colleagues who checked her work knew when
performing their analysis that she had reached the conclusion the three exemplar cards
matched. She knew from performing verifications herself that they would have done
their own independent comparisons.
       On June 6, 2011, defendant was questioned about the November 4, 2010 robbery
at the Hotel Current by Police Officer Robert Bernsen. Defendant waived his Miranda2
rights. Officer Bernsen took defendant to the hotel and showed him where the burglar
had entered the hotel room. Defendant said he had never been to the hotel before.
       Defendant did not present any evidence in his defense.
       This timely appeal followed.


                                      DISCUSSION


       Defendant contends Preston‟s testimony that her fingerprint analysis was verified
and duplicated by two other analysts, Pkergil and Watts, was testimonial hearsay and
violated his Sixth Amendment right to cross-examine witnesses under Crawford v.
Washington (2004) 541 U.S. 36 and its progeny. We conclude that any error was
harmless.3
       United States Supreme Court decisions regarding under what conditions
introduction of forensic analyses such as lab reports violates the Sixth Amendment
(Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305, Bullcoming v. New Mexico
(2011) 564 U.S. ___ [180 L.Ed.2d 610, 131 S.Ct. 2705], and Williams v. Illinois (2012)
567 U.S. ___ [183 L.Ed.2d 89, 132 S.Ct. 2221]) have created a “muddled state of current

2
       Miranda v. Arizona (1966) 384 U.S. 436.
3
       Respondent contends that defendant has forfeited the issue. We disagree.
“[W]here, as here, the context makes clear that the court and opposing counsel were
aware that the confrontation clause was the basis of the hearsay objection, the
constitutional objection is preserved.” (People v. Holmes (2012) 212 Cal.App.4th 431,
436.)

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doctrine” that is difficult to decipher and which we do not attempt to summarize. (People
v. Lopez (2012) 55 Cal.4th 569, 575 (Liu, J., dis.) (Lopez).) Recently, the California
Supreme Court undertook the task in Lopez, supra, and People v. Dungo (2012) 55
Cal.4th 608.
       The court held in Lopez: “Under this quartet of cases [Crawford, Melendez-Diaz,
Bullcoming, and Williams] . . . , the prosecution‟s use at trial of testimonial out-of-court
statements ordinarily violates the defendant‟s right to confront the maker of the
statements unless the declarant is unavailable to testify and the defendant had a prior
opportunity for cross-examination. Although the high court has not agreed on a
definition of „testimonial,‟ a review of the just-mentioned four decisions indicates that a
statement is testimonial when two critical components are present. [¶] First, to be
testimonial the out-of-court statement must have been made with some degree of
formality or solemnity. [Citations.] The degree of formality required, however, remains
a subject of dispute in the United States Supreme Court. [Citations.] [¶] Second, all
nine high court justices agree that an out-of-court statement is testimonial only if its
primary purpose pertains in some fashion to a criminal prosecution, but they do not agree
on what the statement‟s primary purpose must be. For instance, in this year‟s Williams
decision, Justice Alito‟s plurality opinion said that the Cellmark laboratory‟s report at
issue was not testimonial because it had not been prepared „for the primary purpose of
accusing a targeted individual.‟ (Williams, supra, 567 U.S. at p. ___ [132 S.Ct. at
p. 2243] (plur. opn. of Alito, J.), italics added.) Justice Thomas‟s concurring opinion
criticized that standard, describing it as lacking „any grounding in constitutional text, in
history, or in logic.‟ (Id. at p. ___ [132 S.Ct. at p. 2262] (conc. opn. of Thomas, J.).)
Instead, for Justice Thomas, the pertinent inquiry is whether the statement was „primarily
intend[ed] to establish some fact with the understanding that [the] statement may be used
in a criminal prosecution.‟ (Id. at p. ___ [132 S.Ct. at p. 2261] (conc. opn. of Thomas,
J.).) And under the Williams dissent, the pertinent inquiry is whether the report was
prepared „for the primary purpose of establishing “past events potentially relevant to later
criminal prosecution”—in other words, for the purpose of providing evidence.‟ (Id. at


                                              7
p. ___ [132 S.Ct. at p. 2273] (dis. opn. of Kagan, J.), joined by Justices Scalia, Ginsburg,
and Sotomayor.)” (Lopez, supra, 55 Cal.4th at pp. 581-582; see also Dungo, supra, 55
Cal.4th at p. 619.)
       In People v. Rutterschmidt (2012) 55 Cal.4th 650, 661, decided the same day as
Lopez and Dungo, the court declined to decide whether, under the Lopez formulation, the
trial court erred in admitting the testimony of a laboratory director who relied on reports
he did not prepare to testify that testing of the murder victim‟s blood samples at his
laboratory determined the presence of drugs that could have caused drowsiness. (Id. at
p. 652.) The court instead determined that any error was harmless beyond a reasonable
doubt. (Id. at p. 661.)
       Like the court in Rutterschmidt, we decline to decide whether Preston‟s testimony
that her fingerprint analysis was verified and duplicated by Pkergil and Watts violated the
Sixth Amendment, because any error was harmless beyond a reasonable doubt. It is true
that the only evidence connecting defendant to the burglary was Preston‟s opinion that
defendant‟s latent print matched one at the crime scene. However, Preston personally
and independently performed her own fingerprint comparison, testified to that
comparison, and was available for cross-examination. When asked whether her
conclusion was “verified or checked by anyone else in [her] lab,” she testified without
objection that it was; it was only when the prosecutor asked how many people had
checked it that defense counsel objected. From that testimony alone the jury knew that
someone had verified her results. As for the hearsay objection, it is clear that under
California law an expert can rely on out-of-court statements to form their opinion, and
that is what the expert did here—the verifications were part of the evidence she
considered in giving her expert opinion. Preston‟s testimony was also a relevant,
accurate description of the process used in her laboratory. Her report, which was
admitted into evidence, was signed by the two other experts as “verification signatures.”
       Defendant was free to cross-examine Preston about all of the topics that he
suggests on appeal might have cast doubt on her opinion—why she did not take notes
regarding why the first three AFIS prints did not match the one at the crime scene, why


                                             8
she did not examine any of the other AFIS prints after defendant‟s, the nature of the
crime scene print as only partial, and other like topics. Moreover, there is nothing to
suggest that cross-examination of the two people who verified Preston‟s results would
have been helpful in evaluating Preston‟s opinion. Further, defendant presented no
evidence whatsoever, and in particular no expert testimony challenging Preston‟s
comparison. Under these circumstances, any error in admitting Preston‟s testimony that
Pkergil and Watts verified and duplicated her work was harmless beyond a reasonable
doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)


                                     DISPOSITION


       The judgment is affirmed.


       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS



                                                 SUZUKAWA, J.

We concur:



       EPSTEIN, P. J.



       MANELLA, J.




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