Filed 7/14/20; Modified and Certified for Publication 8/10/20 (order attached)




               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                  FOURTH APPELLATE DISTRICT

                                             DIVISION THREE


 THE PEOPLE,

      Plaintiff and Respondent,                                     G055726

          v.                                                        (Super. Ct. No. 17CF0843)

 IGNACIO OGAZ,                                                      OPINION

      Defendant and Appellant.



                 Appeal from a judgment of the Superior Court of Orange County, Lance
Jensen, Judge. Reversed.
                 Elisabeth A. Bowman, under appointment by the Court of Appeal, for
Defendant and Appellant.
                 Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson,
Kristine Gutierrez and Junichi P. Semitsu, Deputy Attorneys General, for Plaintiff and
Respondent.
              Ignacio Ogaz appeals from a judgment sentencing him to prison for illegal
drug activity. He contends his Sixth Amendment right to confront adverse witnesses was
violated by the admission of certain drug testing evidence, and we agree. Because
appellant did not have the opportunity to cross-examine the analyst who conducted the
drug testing, we reverse the judgment.
                                         FACTS
              On the morning of April 4, 2017, Police Officer Collin Reedy contacted
appellant at the Civic Center Plaza in Santa Ana. At that time, the plaza had a large
homeless population, and appellant was standing next to a tent that contained his
belongings. Reedy searched appellant and found a large baggie in his pocket. That
baggie contained two smaller baggies, one of which contained a brown powder that
looked and smelled like heroin, and one of which contained a white crystal substance that
had the appearance of methamphetamine. Reedy also found 80-some dollars and two cell
phones on appellant, who was sleepy and lethargic. A search of appellant’s tent turned
up another baggie of white crystals, a digital scale and a dozen or so unused hypodermic
needles.
              After arresting appellant, Reedy weighed the powder and crystals and
determined they had a combined weight of 10.5 grams. He also tested them using a
presumptive testing kit. The powder tested positive for heroin, and the crystals from the
other two baggies tested positive for methamphetamine. Those results were later
confirmed by the Orange County Crime Lab (OCCL or the lab). The OCCL also
recovered numerous text messages from appellant’s phones. In some of the messages,
appellant advised the recipient not to come around the plaza when the police were there.
              At trial, the only disputed issue was whether appellant possessed the drugs
found in his possession to sell them. Given all the circumstances presented, Reedy
opined he did, and the jury agreed. It convicted appellant of one count each of possessing



                                             2
heroin and methamphetamine for sale. After finding appellant had suffered four prior
drug convictions, the trial court sentenced him to 68 months in prison.
                                       DISCUSSION
              Appellant contends the trial court erred in admitting evidence regarding the
OCCL’s drug testing results, absent testimony from the person who actually conducted
the testing. In appellant’s view, this prejudicially violated his confrontation rights under
the Sixth Amendment. We agree.
              The drug testing in this case was conducted by Michelle Stevens, a forensic
scientist in the controlled substances division of the OCCL. In conjunction with her
testing, Stevens prepared a one-page report that was admitted into evidence over
appellant’s objection as People’s Exhibit No. 12. The report states the substances
Stevens examined were submitted to the lab from the Santa Ana Police Department
(SAPD). It identifies appellant as the person from whom those substances were
recovered, and it contains the case number the SAPD assigned to this particular matter.
That case number also appears on the felony complaint that was filed against appellant on
April 5, 2017, the day after he was arrested and taken into custody.
              The main section of Stevens’ report is entitled, “ANALYTICAL RESULTS
AND INTERPRETATIONS.” It states the brown substance Officer Reedy recovered
from appellant had a net weight of 8.463 grams and contained heroin. And the other two
substances Reedy seized, described as being off-white and weighing 284 and 249
milligrams respectively, contained methamphetamine.
              Near the bottom of the report, Stevens signed her name in an area
identifying her as the analyst who conducted the testing. Underneath her signature are
the initials of Thomas Dickan, who, as Stevens’ supervisor, reviewed the report on May
5, 2017, the day after it was prepared. The report also contains the initials of a third
person who processed the report for administrative purposes by logging it into the lab’s
information management system.

                                              3
              At trial, Stevens did not testify. Rather it was Dickan who took the stand to
talk about the report and its contents. Dickan testified he has been a forensic scientist at
the OCCL for 27 years and currently heads up the controlled substances unit of the lab.
He also said the lab is accredited and that he trained Stevens on how to analyze controlled
substances.
              Speaking to the lab’s testing procedures, Dickan explained that every
substance analyzed there is subjected to two independent tests. To detect heroin, the
analysts use the gas chromatograph mass spectrometry (GCMS) test and the gas
chromatograph infrared test. And to detect methamphetamine, they use the GCMS test
and the microcrystal test. Dickan testified he has conducted those tests thousands of
times during his career. His testimony also made it clear the tests involve an element of
subjective interpretation.
              For the microcrystal test, Dickan said, the analyst mixes the substance
being tested with a reagent and examines it under a microscope to see if it possesses
“crystals that are characteristic of methamphetamine.” For the mass spectrometry test,
the substance is exposed to a high energy electron beam that produces fragments that are
analyzed like “a fingerprint” to determine if a controlled substance is present. And with
the infrared test, exposure to an infrared light produces “peaks and valleys” the analyst
examines and compares to known standards.
              Dickan admitted he did not participate in or observe the testing Stevens
performed in this case and had no independent recollection of the substances she
examined. However, he did review her report and the notes and data she generated. In so
doing, Dickan was “checking for technical correctness” and to make sure “the
appropriate work was done.” He could tell she employed the tests he described in his
testimony. And by initialing the report, he was signifying he agreed with the results she
obtained, which he recited to the jury. He did not detect “anything out of sorts” regarding
packaging or tampering, nor did he have any concerns about the validity of those results.

                                              4
               Appellant contends the admission of the drug testing evidence – Stevens’
report and Dickan’s testimony regarding it – violated his right “to be confronted with the
witnesses against him” under the Sixth Amendment to the United States Constitution. As
interpreted by the Supreme Court in Crawford v. Washington (2004) 541 U.S. 36
(Crawford), the Sixth Amendment’s confrontation clause prohibits the admission of
“testimonial statements” made by a nontestifying witness unless the witness is
unavailable, and the defendant had a prior opportunity for cross-examination. (Id. at p.
59.) Here, it is undisputed that neither unavailability nor prior cross-examination were
established with respect to Stevens. Therefore, the admissibility of her report turns on
whether it was testimonial.
               In Crawford, the Supreme Court did not provide a comprehensive
definition of the term testimonial. However, in discussing the parameters of that term,
the court observed the formality of a statement and the setting in which it was made are
important factors bearing on whether it will be deemed testimonial. In that regard, the
court observed, “An accuser who makes a formal statement to government officers bears
testimony in a sense that a person who makes a casual remark to an acquaintance does
not.” (Crawford, supra, 541 U.S. at p. 51.) The court made it clear that the reason the
statement was made is also a relevant consideration and that a statement is more likely to
be testimonial if it was made for the purpose of establishing some fact for later use at
trial. (Id. at pp. 51-52.)
               With those considerations in mind, the Supreme Court went on to say that
prior testimony and statements obtained in the course of police interrogations would
qualify as testimonial. (Crawford, supra, 541 U.S. at p. 52, 68.) Indeed, on the facts
before it, the Crawford court specifically held that tape-recorded statements made by the
defendant’s wife in the course of a formal police interview were testimonial. (Id. at pp.
65-69.) The court also indicated that statements contained in formalized materials such



                                             5
as affidavits would fit within the core class of testimonial statements with which the
confrontation clause is concerned. (Id. at pp. 51-52.)
              Since its decision in Crawford, the United States Supreme Court has ruled
on three cases involving the admissibility of evidence contained in forensic lab reports,
Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305 (Melendez-Diaz), Bullcoming v.
New Mexico (2011) 564 U.S. 647 (Bullcoming) and Williams v. Illinois (2012) 567 U.S.
50 (Williams). These decisions provide the backdrop for our analysis of the drug testing
evidence that was admitted in this case.
              In Melendez-Diaz, the prosecution introduced formal “‘certificates of
analysis’” to prove the substances seized from the defendant contained cocaine.
(Melendez-Diaz, supra, 557 U.S. at p. 308.) The certificates, which showed the results of
forensic analysis performed on the substances, were sworn before a notary public, as
required under Massachusetts law. The defendant argued that made the results
testimonial, and the Supreme Court agreed. It reasoned, “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.’ [Citation.] They are incontrovertibly a ‘“solemn
declaration or affirmation made for the purpose of establishing or proving some fact.”’
[Citations.] The fact in question is that the substance found in the possession of [the
defendant] . . . was, as the prosecution claimed, cocaine — the precise testimony the
analysts would be expected to provide if called at trial. The ‘certificates’ are functionally
identical to live, in-court testimony, doing ‘precisely what a witness does on direct
examination.’ [Citation.]” (Id. at pp. 310-311.) Because the certificates qualified as
testimonial documents, the Supreme Court determined their admission into evidence
violated the Sixth Amendment because the defendant never had a chance to confront the
analysts who prepared them. (Id. at p. 311.)



                                               6
              The Supreme Court reached a similar conclusion in Bullcoming. There, the
principal evidence against the defendant was a forensic lab report certifying his blood-
alcohol level was above that required for aggravated DWI in New Mexico. However,
during the trial, the prosecution did not call the analyst who tested the defendant’s blood
and signed the report. Instead, it introduced the testing results through an analyst who
had reviewed the report but did not certify its contents or have anything to do with the
testing process. Although the report was unsworn, the Supreme Court found it was
similar to the report at issue in Melendez-Diaz in “all material respects,” in that it
consisted of a formalized signed document, it contained the certified results of the testing
conducted, and it was produced to assist a police investigation by proving a fact for later
use at trial. (Bullcoming, supra, 564 U.S. at pp. 664-665.) Thus, the report qualified as a
testimonial document, and it was impermissible under the Sixth Amendment for the state
to introduce its contents through a surrogate who played no role in its preparation. (Id. at
p. 665.)
              The Williams decision came down one year later, in 2012. In that case, a
forensic expert for the prosecution relied on a DNA report containing the laboratory
analysis of semen that was found inside a rape victim. Although the report was not
introduced into evidence, and the expert did not reveal its contents in her testimony, she
relied on it in concluding the DNA profile the lab derived from the semen matched the
DNA profile of the defendant. The problem was, the expert lacked personal knowledge
about how the report was made, so the defendant was unable to cross-examine her as to
that issue. The question before the high court was whether this procedure violated the
defendant’s right to confront the people who contributed to the making of the report.
(Williams, supra, 567 U.S. at pp. 59-64.)
              In his plurality opinion, Justice Alito (joined by Chief Justice Roberts,
Justice Kennedy and Justice Breyer) answered that question in the negative. These four
justices believed the expert’s reliance on the Cellmark report was constitutionally

                                               7
permissible for two reasons. First, the expert used the report as a foundation for her
opinions, not for its substantive truth, and therefore the report was not hearsay.
(Williams, supra, 567 U.S. at pp. 67-81.) Second, the defendant was not a suspect at the
time the report was generated. The plurality believed this circumstance rendered the
report nontestimonial because, although the report was prepared for use at trial, it “was
not prepared for the primary purpose of accusing a targeted individual.” (Id. at p. 84.)
              Writing in dissent, Justice Kagan (joined by Justices Scalia, Ginsburg and
Sotomayor) disagreed with both of these conclusions. (Williams, supra, 567 U.S. at pp.
125-138 (dis. opn. of Kagan, J.).) Thus, the fate of the defendant’s appeal rested in the
hands of Justice Thomas. Like the four dissenting justices, Justice Thomas rejected both
of the rationales put forth by Justice Alito in his plurality opinion. (Id. at pp. 102-110,
113-118 (conc. opn. of Thomas, J.) However, Justice Thomas concurred with the
plurality that the Cellmark report was not testimonial, thereby providing the fifth vote in
favor of affirming the defendant’s conviction.
              In reaching this conclusion, Justice Thomas was not concerned with the
purpose of the report; rather, he believed the report was nontestimonial “solely because
[it] lacked the requisite ‘formaility and solemnity’ to be considered ‘“testimonial”’ for
purposes of the Confrontation Clause. [Citation.]” (Williams, supra, 567 U.S. at pp.
103-104 (conc. opn. of Thomas, J.).) Contrasting the Cellmark report with the ones at
issue in Melendez-Diaz and Bullcoming, Justice Thomas emphasized the report was
“neither a sworn nor a certified declaration of fact. Nowhere does [it] attest that its
statements accurately reflect the DNA testing processes used or the results obtained.
[Citation.] The report is signed by two ‘reviewers,’ but they neither purport to have
performed the DNA testing nor certify the accuracy of those who did. [Citation.].” (Id.
at p. 111 (conc. opn. of Thomas, J.).) According to Justice Thomas, these characteristics
may have lessened the report’s reliability, but they did not prevent the prosecution’s
expert witness from relying on it to form her opinions because it did not come within the

                                              8
“narrow class of statements bearing indicia of solemnity” to which the confrontation
clause was intended to apply. (Id. at pp. 112-113, 118.)
              No other justice signed on to Justice Thomas’ concurrence. As noted
above, the four justices in the plurality utilized different rationale in finding the Cellmark
report was nontestimonial. And the four justices in the dissent expressly disagreed with
Justice Thomas’ conclusion that the report lacked sufficient indicia of formality and
solemnity to constitute a testimonial document. While acknowledging the Cellmark
report was not sworn or certified, Justice Kagan argued it was substantively
indistinguishable from the reports at issue in Melendez-Diaz and Bullcoming. In this
regard, Justice Kagan stated that each of the three reports “is an official and signed record
of laboratory test results, meant to establish a certain set of facts in legal proceedings.
Neither looks any more ‘formal’ than the other; neither is any more formal than the other.
[Citation.]” (Williams, supra, 567 U.S. at p. 139 (dis. opn. of Kagan, J.).) Thus, to
characterize the Cellmark report as nontestimonial would, in Justice Kagan’s opinion,
elevate form over substance and afford “constitutional significance to minutia, in a way
that can only undermine the Confrontation Clause’s protections.” (Ibid.)
              In the wake of the United States Supreme Court’s decision in Williams, the
California Supreme Court addressed confrontation clause issues in two cases of note,
People v. Dungo (2012) 55 Cal.4th 608 (Dungo) and People v. Lopez (2012) 55 Cal.4th
569 (Lopez). These cases underscore the fact that formality and purpose are the key
considerations in deciding whether a forensic report is testimonial.
              In Dungo, the Supreme Court held statements contained in an autopsy
report describing the anatomical and physiological condition of the victim’s body were
not testimonial. (Dungo, supra, 55 Cal.4th 608, 619.) The court reasoned, “These
statements, which merely record objective facts, are less formal than statements setting
forth a pathologist’s expert conclusions [as to the cause of the victim’s death]. They are
comparable to observations of objective facts in a report by a physician who, after

                                               9
examining a patient, diagnoses a particular injury or ailment and determines the
appropriate treatment.” (Ibid.) Such observations are “not so formal and solemn as to be
considered testimonial for purposes of the Sixth Amendment’s confrontation right[.]”
(Id. at p. 621; accord, People v. Holmes (2012) 212 Cal.App.4th 431, 438 [statements in
lab report that merely reflected objective facts were not testimonial].)
              As an alternative basis for finding the autopsy report outside the scope of
the confrontation clause, the Dungo court held the report was not made for the primary
purpose of facilitating a criminal investigation. Even though that was one of reasons the
report was prepared, the court observed the report was also relevant to other matters, such
as civil litigation, insurance and satisfying the public’s interest in knowing the cause of
the victim’s death. (Dungo, supra, 55 Cal.4th at p. 621.) Given that the report had
several purposes unrelated to its prosecutorial function, the court held it did not rise to the
level of a testimonial document. (Id. at pp. 620-621.)
              In Lopez, the prosecution used a blood analysis report to prove the
defendant was driving under the influence when she caused a fatal car crash. Despite the
fact the technician who conducted the analysis and prepared the report was not shown to
be unavailable, the Supreme Court ruled it was permissible for the trial court to admit his
report into evidence and allow his supervisor to testify about its contents. (Lopez, supra,
55 Cal.4th at p. 585.)
              In so ruling, the court stated that to qualify as testimonial, a forensic report
must have “two critical components[.]” (Lopez, supra, 55 Cal.4th at p. 568.) First, the
report “must have been made with some degree of formality or solemnity. [Citation.]”
(Id. at p. 568.) And second, its primary purpose must “pertain[] in some fashion to a
criminal prosecution[.]” (Id. at p. 569.) However, the court did not assess the primary
purpose of the blood analysis report before it because it determined the report was not
sufficiently formal or solemn to be considered testimonial.



                                              10
              With respect to the formality issue, the Lopez court found it significant that
the bulk of the report consisted of machine generated data, as opposed to statements from
the technician who conducted the testing. The court decided that “[b]ecause, unlike a
person, a machine cannot be cross-examined, . . . the prosecution’s introduction into
evidence of the machine-generated printout . . . did not implicate the Sixth
Amendment[.]” (Lopez, supra, 55 Cal.4th at p. 583.)
              The report at issue in Lopez also contained a notation from a lab assistant
linking the defendant’s blood to a particular sample that was tested. That notation was
set forth on the report’s “‘chain of custody log sheet,’” an administrative document that
was initialed by the assistant and the analyst who conducted the testing. (Lopez, supra,
55 Cal.4th at pp. 582-583.) The court ruled this document was also outside the scope of
the confrontation clause because, for one thing, neither the assistant nor the analyst
“signed, certified, or swore to the truth of [its] contents[.]” (Id. at p. 584.) Moreover, the
document showed “only numbers, abbreviations, and one-word entries under specified
headings” and was labeled “‘FOR LAB USE ONLY.’” (Ibid.) This demonstrated the
document was “nothing more than an informal record of data for internal purposes,” and
was “not prepared with the formality required by the high court for testimonial
statements.” (Ibid.)
              The Attorney General likens Lopez to the case at hand. However, the lab
report at issue here is distinguishable from the lab report in Lopez in several respects.
Most obviously, Stevens signed the report, thereby attesting to its contents. While there
is no formal certification or attestation included in the report, Stevens’ signature
demonstrates she was willing to stand behind the information reflected therein. (See
People v. Banks (2014) 59 Cal.4th 1113, 1168 [interpreting Lopez as drawing a
distinction between the initialing of a report, which is too informal to make it testimonial,
and the situation where the report is signed by its creator]; McGowan, The Signing of
Laboratory Reports (1974) Journal of Clinical Pathology, vol. 27, p. 427 [“Laboratory

                                              11
reports should be signed to indicate . . . that someone in the laboratory accepts a
responsibility for the contents of the report.”].) The presence of Stevens’ signature also
sets her report apart from the one at issue in Williams, which was signed by two
reviewers, but not by the analysts who performed the testing in question.
              Another distinguishing feature of Stevens’ report is that it is not comprised
primarily of machine generated data, as in Lopez, or objective facts, as in Dungo.
Instead, the report contains the substantive conclusions Stevens reached as a result of the
testing she conducted, which is precisely what she would have been expected to testify
about had she appeared at trial. It cannot be gainsaid that her report served as the
functional equivalent of live, in-court testimony. (See People v. Cage (2007) 40 Cal.4th
965, 984 [describing testimonial statements as “out-of-court analogs, in purpose and
form, of the testimony given by witnesses at trial”].)
              Furthermore, unlike the chain of custody log sheet in Lopez, there is
nothing in Stevens’ report indicating it was intended for administrative purposes only.
The report was initialed by an administrative assistant who entered it into the lab’s
internal data base. But the report obviously had broader implications and was designed
for other purposes. That brings us to the second step in our analysis. Having determined
the report possesses the requisite formality to constitute a testimonial document, we now
turn our attention to the primary purpose factor.
              The Attorney General sees the report as nothing more than a business
record that was generated to facilitate the administration of the lab’s affairs. He
questions whether the report was primarily intended to be used as evidence in a criminal
trial because it does not contain any information about the circumstances under which the
substances in question were seized from appellant, nor does it refer to any criminal
charges.
              But the report does contain the case number assigned by the SAPD, which
is identified as the submitting agency. That number also appears on the criminal

                                             12
complaint that was pending against appellant at the time the report was generated.
Stevens played an important role with respect to the charges set forth in that charging
document. Acting as an investigative arm of the prosecution, her responsibility was to
determine whether the substances seized from appellant contained contraband, so as to
support the charges in the complaint. (See In re Brown (1998) 17 Cal.4th 873, 880-881
[county drug lab scientists who assist the government’s case are part of the prosecution
team].) And, at trial, her report was admitted to prove that they did. Considered as a
whole, the circumstances surrounding the report’s preparation convince us its primary
purpose pertained to a criminal prosecution.
              Based on the formal nature of the report and its forensic purpose, we
conclude it qualifies as a testimonial document for purposes of the Sixth Amendment.
(Marshall v. People (Col. 2013) 309 P.3d 943, 946 [lab report prepared to facilitate
criminal prosecution was testimonial]; Martin v. State (Del. 2013) 60 A.3d 1100, 1106-
1108 [same]; State v. Laturner (Kan. 2009) 218 P.3d 23, 26-29 [same]; Whittle v.
Commonwealth (Ky. 2011) 352 S.W.3d 898, 901-904 [same]; State v. March (Mo. 2007)
216 S.W.3d 663, 665-667 [same]; State v. Michaels (N.J. 2014) 95 A.3d 648, 674-675
[same]; State v. Aragon (N.Mex. 2010) 225 P.3d 1280, 1287, overruled on other grounds
in State v. Tollardo (N.Mex. 2012) 275 P.3d 110 [same]; Thomas v. United States
(D.C.App. 2006) 914 A.2d 1, 12-13 [same]; Burch v. State (Tex.App. 2013) 401 S.W.3d
634, 639 [same].)
              Nevertheless, the Attorney General argues no Sixth Amendment violation
occurred because appellant had the opportunity to cross-examine Dickan at trial. Dickan
was not personally involved in the testing Stevens conducted, nor did he have any
personal knowledge of the substances she examined. However, the Attorney General
contends that doesn’t matter because Dickan was generally familiar with the testing
processes Stevens employed, he reviewed her testing data, and he signed off on her
report. According to the Attorney General, this rendered Dickan fully qualified to answer

                                            13
any questions about Stevens’ testing methods and the results she obtained, and therefore
Stevens’ absence from the trial did not violate appellant’s confrontation rights.
              This argument overlooks the fact the conclusions set forth in Stevens’
report were based on her subjective impressions of the evidence she examined. In
conducting the microcrystal test, Stevens had to determine whether the substances took
on the appearance of methamphetamine crystals after being mixed with a particular
reagent. And during the gas chromatograph tests, she had to determine whether
subjecting the substances to an electron beam and infrared light produced effects that
indicated the presence of heroin. These determinations required subjective analysis and
comparison on Stevens’ behalf. Dickan could not be effectively cross-examined as to
what Stevens saw or how she interpreted the information her testing produced.
              That wouldn’t be a problem if Dickan had formulated his own independent
opinions based on the data that Stevens produced during the testing process. But this is
not a situation where an expert witness reviewed the work of another analyst and came to
his or her own conclusion about the matter at hand. (Compare Lopez, supra, 55 Cal.4th
at pp. 587 [conc. opn. of Werdegar, J.] [“The demands of the confrontation clause were
properly satisfied in this case by calling a well-qualified expert witness to the stand . . .
who could testify to the means by which the critical instrument-generated data was
produced and could interpret those data for the jury, giving his own, independent opinion
as to the level of alcohol in defendant’s blood sample.”]; People v. Barba (2013) 215
Cal.App.4th 712 [expert witness independently drew conclusions from test results
obtained by another worker in her lab]; People v. Steppe (2013) 213 Cal.App.4th 1116
[lab’s technical reviewer gave her own independent opinion based on testing performer
by another technician]; People v. Huynh (2012) 212 Cal.App.4th 285 [medical expert
witness formed her own independent opinions from photographs taken by coworker and
did not relay the opinions of her coworker to the jury]; People v. Holmes, supra, 212



                                              14
Cal.App.4th 431 [expert witnesses reached their own conclusions based on testing data
generated by other analysts].)
              In fact, Dickan never offered any of his own personal opinions regarding
the substances at issue in this case. What he did was simply recite to the jury the results
Stevens obtained in her testing. In other words, he was a “mere conduit” for Stevens’
opinions. While an expert witness who forms his own opinions based on the reports of
others creates an original product of substantive evidence that can be tested through
cross-examination, that is not the case when, as here, the expert simply conveys the
opinions of others. (People v. Leon (2015) 61 Cal.4th 569, 603; In re Ruedas (2018) 23
Cal.App.5th 777, 802.)
              Dickan did review Stevens’ testing for technical correctness and approve
her report. But instead of analyzing the substances in questions and drawing his own
conclusions about their compositional makeup, he merely reviewed the notes and data
that Stevens generated in her testing analysis. There is nothing in the record to suggest
that Dickan independently corroborated the results Stevens obtained or that he reached an
independent opinion the substances contained a prohibited drug. Rather, the most he
could say is that he saw nothing in Stevens’ report to make him question the findings she
made. In that respect, Dickan’s opinions were conveyed only with reference to his
agreement with Stevens; they were not derived from his own personal knowledge about
the case.
              In Bullcoming, supra, the United States Supreme Court rejected the idea
that a witness who reviewed and certified certain lab testing was a suitable substitute at
trial for the analyst who performed the actual testing. Even though the witness was an
expert with respect to both the type of testing performed and the lab’s procedures, the
court found his testimony could not satisfy the Sixth Amendment because he “could not
convey what [the analyst] knew or observed about the events his certification concerned,
i.e., the particular test and testing process he employed.” (Bullcoming, supra, 564 U.S. at

                                             15
pp. 661-662.) In coming to this conclusion, the court also noted the reviewer apparently
never formulated an independent opinion about the conclusions reached in the analyst’s
report. (Id. at p. 662.)
               Likewise, here, Dickan lacked personal knowledge about the particular
testing Stevens conducted, and he offered no independent opinion about the subject or her
testimony. Since the reliability of his testimony was dependent on the reliability of
Stevens’ testing, about which he lacked personal knowledge, he was not a suitable
substitute for Stevens at trial. (Martin v. State, supra, 60 A.3d at p. 1106 [admission of
lab supervisor’s report and testimony concerning the results of an incriminating blood test
violated the defendant’s confrontation rights because even though the supervisor certified
those results she “neither participated in nor observed the test . . . . She only reviewed the
data and conclusions of the chemist who actually performed the test.”]; People v. Lewis
(Ill.App. 2019) 127 N.E.3d 1127, 1135 [although firearms expert verified and agreed
with findings appearing in gun examination report, he was not an adequate substitute
witness for the person who conducted the examination, and therefore his testimony
regarding the report violated the Sixth Amendment]; Burch v. State, supra, 401 S.W.3d at
p. 637 [lab supervisor who signed drug report testified the lab’s policies and procedures
were followed, and she double-checked everything that was done. However, she did not
participate in the testing process or witness it, and thus she did not have personal
knowledge the testing was done correctly or the tester did not fabricate the results. Thus,
making her available for cross-examination did not satisfy appellant’s confrontation
rights.].)
               Beyond that, we must be mindful of a more fundamental aspect of the
Bullcoming decision. Namely, the Sixth Amendment “does not tolerate dispensing with
confrontation simply because the court believes that questioning one witness about
another’s testimonial statements provides a fair enough opportunity for cross-
examination.” (Bullcoming, supra, 564 U.S. at p. 662.) Instead, the Constitution requires

                                             16
the source of those statements to personally appear at trial for cross-examination.
Because the prosecution did not make Stevens available for cross-examination, it was
error to admit her report into evidence and to allow Dickan to recite its contents to the
jury. This method of proof violated appellant’s right to confront the witness against him
as guaranteed by the Sixth Amendment.
              We must now decide whether this constitutional violation mandates
reversal. “Violation of the Sixth Amendment’s confrontation right requires reversal of
the judgment against a criminal defendant unless the prosecution can show ‘beyond a
reasonable doubt’ that the error was harmless. [Citations.]” (People v. Rutterschmidt
(2012) 55 Cal.4th 650, 661.) This is a stringent standard. Indeed, the prosecution must
prove the jury’s verdict was surely unattributable to the evidence that resulted from the
violation. (People v. Pearson (2013) 56 Cal.4th 393, 463.) If there is a reasonable
possibility the evidence contributed to the verdict, we must reverse. (People v. Reese
(2017) 2 Cal.5th 660, 671.)
              The Attorney General claims the drug testing evidence from Stevens’ report
and Dickan’s testimony was unimportant because the only disputed issue at trial was
whether appellant possessed the substances found in his possession for purposes of sale;
he did not argue to the jury that those substances were anything other than heroin or
methamphetamine. However, that trial strategy was dictated by the fact the trial court
overruled appellant’s objections to Stevens’ report and Dickan’s testimony about it.
Once that evidence was admitted, the defense was in no position to argue the substances
appellant possessed were not controlled. (Duvall v. United States (D.C.App. 2009) 975
A.2d 839, 848.) Thus, the failure to do so cannot reasonably be construed as an
admission. (Ibid.)
              The Attorney General also contends the drug testing evidence was
superfluous because Officer Reedy presented overwhelming evidence the substances
appellant possessed contained heroin and methamphetamine. We do not doubt Reedy’s

                                             17
testimony was sufficient to sustain appellant’s convictions. After all, he testified the
substances had the physical characteristics of heroin and methamphetamine, and they
came back as such when he subjected them to a presumptive field test. In addition, he
testified he found various indicia of drug activity – a scale, syringes, cell phones and
money – when he searched appellant and his belongings. This evidence is relevant to our
harmless error analysis, of course. However, the question presented is not whether there
is sufficient evidence apart from the drug testing evidence to support the jury’s verdict,
but whether there is a reasonable possibility the drug testing evidence contributed to that
verdict. (See Sullivan v. Louisiana (1993) 508 U.S. 275, 279 [in assessing the impact of
a constitutional violation, the question “is not whether, in a trial that occurred without the
error, a guilty verdict would surely have been rendered, but whether the guilty verdict
actually rendered in this trial was surely unattributable to the error.”]; accord, People v.
Neal (2003) 31 Cal.4th 63, 87; People v. Pettie (2017) 16 Cal.App.5th 23, 70; People v.
Foy (2016) 245 Cal.App.4th 328, 351.)
              As to that issue, we find it significant that in closing argument the
prosecutor repeatedly invoked Stevens’ report and Dickan’s testimony in attempting to
persuade the jury that appellant was guilty. The prosecution also discussed Reedy’s
testimony, of course, but his testimony was primarily aimed at proving the “for-sale”
element of the charged offenses, whereas the drug testing evidence was used to establish
the more fundamental requirement that the substances found in appellant’s possession
were in fact prohibited. Since it was scientific in nature, the drug testing evidence was
likely the most compelling proof on that issue for the jury, and therefore it is at least
reasonably possible that evidence contributed to the jury’s verdict. That being the case,
the judgment against appellant cannot stand. (See Duvall v. United States, supra, 975
A.2d at pp. 842-848 [improper admission of lab report indicating substance found in the
defendant’s vehicle was marijuana was not harmless error in drug case, even though an
officer with specialized training detected the odor of marijuana emanating from the

                                              18
vehicle, he identified the substance as “green weed,” and the substance field-tested
                               1
positive for marijuana].)
                                                DISPOSITION
                  The judgment is reversed.




                                                               BEDSWORTH, ACTING P. J.


WE CONCUR:



MOORE, J.



FYBEL, J.




         1
                   Appellant also contends the trial court mishandled his discovery motion under Pitchess v. Superior
Court (1974) 11 Cal.3d 531. Because the judgment must be reversed on Sixth Amendment grounds we need not
consider this claim.


                                                        19
Filed 8/10/20




                             CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FOURTH APPELLATE DISTRICT

                                     DIVISION THREE


 THE PEOPLE,

      Plaintiff and Respondent,                       G055726

          v.                                          (Super. Ct. No. 17CF0843)

 IGNACIO OGAZ,                                        ORDER GRANTING REQUEST
                                                      FOR PUBLICATION AND
      Defendant and Appellant.                        MODIFYING OPINION;
                                                      NO CHANGE IN JUDGMENT


                  The Law Office of Brian N. Gurwitz and the Orange County Public
Defender’s Office have requested that our opinion in this matter, filed July 14, 2020, be
certified for publication. After reviewing the request, we have concluded the case meets
the requirements for publication. Pursuant to California Rules of Court, rule 8.1105(b),
(c)(2) and (7), the request is GRANTED.
              The opinion is ordered published in the Official Reports.
              It is hereby ordered that the opinion filed herein on July 14, 2020, be
modified in the following particulars:
               1. On page 2, before the first paragraph, add the following:
               “With the passage of time, we are blessed with more information to draw
upon, more history to learn from, more science to apply . . . more chances to improve.
While it is sometimes difficult, we try to make the adjustments these resources require.
We try to become better than we were.
               The criminal law is a pretty good exemplar of these attempts. Based on
scientific advances and changing societal mores, the Legislature increases sentences, then
decreases them. It defines murder and then redefines it. Striving for the goldilocks
statutory scheme that will satisfy our ideas about fairness both now and decades hence, it
continually reshapes and polishes the rubrics of criminal practice.
               And the judiciary tries to keep pace. We hold those new statutes up to the
light of new ideas and try to figure out what lies within and what lies without the
boundaries of words like “due process” and “equal protection” and “reasonable doubt.”
It is often a matter of trying to apply 18th and 19th century ideas to 21st century
problems.
               Justice Brandeis described the problem well in his famous dissent in
Olmstead v. United States (1928) 277 U. S. 438, 472-473 (Olmstead): “Time works
changes, brings into existence new conditions and purposes. Therefore a principle to be
vital must be capable of wider application than the mischief which gave it birth. This is
peculiarly true of constitutions. . . . The future is their care, and provision for events of
good and bad tendencies of which no prophecy can be made. In the application of a
constitution, therefore, our contemplation cannot be only of what has been but of what
may be.”
               Justice Brandeis did not carry the day in Olmstead; the court held the new
technology of wiretapping a phone was not a violation of the 4th or 5th Amendment. But
four decades later the court reversed itself and adopted his position; in Katz v. United
States (1967) 389 U.S. 347, wiretaps were held to require judicial approval. The
application of the Constitution to technology did a one-eighty.
               Science and technology present us with some of the most perplexing
problems we face, and we always embark upon the application of scientific advances to
criminal law with trepidation. In this case we are called upon to reexamine the
admissibility of scientific evidence in light of advances in scientific technique that have
complicated the rules we’ve operated under for decades. We are asked to define the
confrontation clause in terms applicable to gas chromatography/mass spectrometry
analysis. ”
               2. On page 2, first paragraph, remove the last sentence beginning with
“Because appellant . . . .” and replace with the following:


                                              2
              “We conclude the Constitution requires the defendant be afforded an
                                                                      2
opportunity to cross-examine the scientist who performed the analysis. We must
therefore reverse the judgment.”
              3. On page 2, first paragraph in the FACTS section, second sentence,
remove the words “that contained” and replace with “where he left”.
              4. On page 2, first paragraph in the FACTS section, fourth sentence,
remove the words “That baggie contained” and replace with “Inside that baggie were”.




         1        The casual use of the terms “lab tech” and “criminalist” sometimes obscures the fact we are
talking here about scientific experts – college-educated scientists who conduct and understand scientific testing and
the arcane technological bases upon which such tests rest. They are scientists. Experts. They are not just people
who print up reports.


                                                          3
            These modifications do not effect a change in the judgment.




                                              BEDSWORTH, ACTING P. J.

WE CONCUR:



MOORE, J.



FYBEL, J.




                                          4
