Filed 4/18/19 P. v. Chaney CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

STEVEN ROBERT CHANEY,

Defendant and Appellant.

E070218

(Super.Ct.No. FWV1502297)

OPINION

APPEAL from the Superior Court of San Bernardino County. Mary E. Fuller, Judge. Affirmed with directions.

Wallin & Klarich and Stephen D. Klarich for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Arlene A. Sevidal, Collette C. Cavalier and Joseph C. Anagnos, Deputy Attorneys General, for Plaintiff and Respondent.

I. INTRODUCTION

A jury convicted defendant and appellant, Steven Robert Chaney, of two counts of misdemeanor child abuse of Jane Doe 1 (Jane 1) (Pen. Code, § 273a, subd. (b); counts 1 & 2), furnishing cocaine to Jane 1 (Health & Saf. Code, § 11353; count 3), furnishing methylenedioxymethamphetamine (MDMA) to Jane 1 (Health & Saf. Code, § 11353; count 4), furnishing cocaine to Jane Doe 2 (Jane 2) (Health & Saf. Code, § 11353; count 5), and misdemeanor child abuse of Jane 2 (Pen. Code, § 273a, subd. (b); count 6). The trial court sentenced defendant to eight years in state prison, and defendant appeals.

Defendant claims insufficient evidence supports his conviction in count 5 for furnishing cocaine to Jane 2. He argues no evidence showed he furnished cocaine to Jane 2; rather, Jane 1 furnished cocaine to Jane 2. We conclude substantial evidence supports the conviction because it shows defendant furnished cocaine to Jane 1, encouraged Jane 1 to share the cocaine with Jane 2, and Jane 1 did so. To prove count 5, the prosecution was not required to prove defendant directly furnished cocaine to Jane 2.

Defendant also claims the court violated his Sixth Amendment right to confront witnesses by permitting a laboratory director to testify that a urinalysis report, prepared

 

by another person formerly employed by the laboratory, showed Jane 1 tested positive for cocaine and amphetamines, and a positive amphetamines test is consistent with a positive MDMA test. We conclude the laboratory report was not testimonial because it was not prepared for the primary purpose of providing testimony at a criminal trial. Thus, the admission of the report did not violate defendant’s confrontation rights. We also conclude that any error in admitting the report or the testimony concerning its contents was harmless beyond a reasonable doubt in light of the overwhelming evidence that defendant furnished drugs to Jane 1 and Jane 2.

Lastly, defendant claims and the People agree that the abstract of judgment must be amended to conform to the court’s oral pronouncement of sentence. We remand the matter with directions to amend the abstract of judgment. In all other respects, we affirm the judgment.

II. FACTS AND PROCEDURE

A. Prosecution Evidence

Defendant’s stepdaughter, Jane 1, was born in January 2000 and was 18 years old when she testified at trial. Defendant married Jane 1’s mother when Jane 1 was seven years old, the family lived together, and Jane 1 considered defendant a father figure. Defendant began giving Jane 1 alcohol “once every few months, if that,” when Jane 1 was 13 years old. Shortly before Jane 1 turned age 15, defendant offered her marijuana, but she turned it down. Around one week after she turned age 15, defendant gave Jane 1 cocaine for the first time. This occurred when defendant and Jane 1 were alone together in the family’s garage. Defendant showed Jane 1 how to “[d]o a line” and told her she could not leave the garage until she tried the cocaine, so she “snorted” it. Later that night, defendant gave Jane 1 more cocaine, and she snorted it.

After that, defendant offered Jane 1 cocaine “[a]lmost every day” and “[m]ost of the time” Jane 1 accepted it. Jane 1 used cocaine “[a]bout every other day,” and sometimes “more than five times a day.” No one other than defendant gave her cocaine, and she did not tell her mother she was using cocaine. Defendant once asked Jane 1 to let him snort cocaine off of her breasts, and she said “no” and walked away. Defendant once showed Jane 1 a scene from the movie The Wolf of Wall Street (Paramount Pictures 2013) in which an actor was seen snorting cocaine from a woman’s “behind,” and he said he wished he had someone to do that with. On a daily basis, defendant slapped Jane 1’s buttocks, and he once said to her, “‘Oh, what it would be like to be 17 and around girls like you.’”

Around this time, Jane 1’s friend, Jane 2, was visiting Jane 1’s home at least twice weekly. Jane 2 was born in November 2000. One time when defendant and Jane 1 were using cocaine together, defendant asked Jane 1 if she had any friends who would be interested in using cocaine, and Jane 1 said Jane 2 “probably” would be. Defendant told Jane 1 to “bring it up to her.” During a visit to Jane 1’s home during February 2015, Jane 1 offered Jane 2 cocaine, Jane 2 accepted it, and the two of them snorted several lines of cocaine in Jane 1’s upstairs bathroom. Jane 1 told Jane 2 that defendant had given her the cocaine. Defendant was not with the girls when they used the cocaine, but he was in the house. After the girls used the cocaine, defendant drove them to a party. During the drive he asked the girls if they had used the cocaine and Jane 1 said “yes.” He shrugged his shoulders and said, “‘Oh.’” When the girls returned to Jane 1’s home after the party, defendant offered the girls alcoholic beverages, and the girls drank them. At least one other time, the girls used cocaine defendant had given Jane 1, again outside of defendant’s presence.

On March 7, 2015, Jane 1 suffered a concussion while playing soccer, and she was taken to a hospital where she provided a urine sample. A couple of days earlier she used cocaine defendant had given her, and one day earlier she ingested a blue “ecstasy” pill defendant had also given her. MDMA is commonly referred to as “ecstasy.”

Over defense counsel’s objection that his testimony lacked sufficient foundation, Anthony Fields, a clinical laboratory scientist and the administrative laboratory director of the Orange County Global Center, testified that, according to a urinalysis report prepared by a former employee of his company, Jane 1’s urine sample tested positive for cocaine and amphetamines. A positive test for amphetamines could be related to MDMA use or another amphetamine. Cocaine and MDMA can be detected in the urine for roughly one to four days after use. Mr. Fields had been his company’s administrative director since 2017, and he was a custodian of its records, but was not “the custodian” of the urinalysis report.

Later on March 7, 2015, defendant and Jane 1’s mother arrived at the hospital and spoke to a doctor outside Jane 1’s hospital room before speaking to Jane 1. Jane 1’s mother then came into Jane 1’s hospital room, without defendant, and was “shocked” because the doctor had just informed her and defendant that Jane 1’s urine sample had tested positive for cocaine and ecstasy. Jane 1’s mother asked Jane 1 where she got the drugs, but defendant came into the room, stood behind Jane 1’s mother, and was “shaking his head” and “mouthing ‘no.’” At that time, Jane 1 did not tell her mother defendant had given her the drugs. Defendant later told Jane 1 he would punish her if she told her mother.

Shortly after Jane 1 was in the hospital, Jane 1 attempted suicide by drinking a lot of alcohol. Shortly after that, Jane 1’s mother discovered, through speaking with a parent of one of Jane 1’s friends, that defendant had given Jane 1 cocaine and ecstasy. Jane 1 was present during the conversation and confirmed defendant had given her the drugs. When confronted by Jane 1’s mother, defendant admitted he had given Jane 1 the drugs.

Jane 1’s mother called the police. When interviewed in April 2015, Jane 1 told an investigating sheriff’s deputy that defendant had been giving her drugs and had been “asking her three to four times a week if he could snort cocaine off of her breast.” Jane 1 did not tell the deputy that defendant had showed her a scene from The Wolf of Wall Street or that she and defendant had used cocaine in the family’s garage. The deputy did not find cocaine at defendant’s home or on his person.

In April 2015, Jane 1 made a “pretext phone call” to defendant, and the investigating sheriff’s deputy recorded the call. Jane 1 began the call by telling defendant that the police wanted to talk to her and ask her where she got the drugs that were found in her system at the hospital. In response, defendant urged Jane 1 to deny his involvement and tell the police she got the drugs from someone at her school whom she did not want to identify because she feared for her life. He also told her she would not be in trouble for refusing to identify her source because she was a minor. He asked her to do this for her mother and himself and apologized to her. He said he was scared, he would probably serve “five to ten years” if he went to jail, he would “never touch that stuff again,” and he would do everything he could to make it up to Jane 1 and her mother. Jane 1’s mother later divorced defendant because he had given Jane 1 drugs.

B. Defense Evidence

The defense called several of defendant’s family members, who testified they had observed Jane 1’s mother give Jane 1 alcoholic beverages to drink. One of defendant’s family members testified that Jane 1 told her Jane 1 had gotten cocaine from friends at school. Another had known defendant for over 40 years and opined that defendant did not have the character of a person who would endanger a minor or give drugs or alcohol to a minor.

III. DISCUSSION

A. Substantial Evidence Supports Defendant’s Conviction in Count 5 for Furnishing Cocaine to Jane 2 (Health & Saf. Code, § 11353)

Defendant claims insufficient evidence supports his conviction in count 5 for furnishing cocaine to Jane 2. (Health & Saf. Code, § 11353.) He argues he did not furnish Jane 2 with any cocaine; rather, Jane 1 furnished cocaine to Jane 2. This claim fails because the record shows defendant gave Jane 1 cocaine, encouraged Jane 1 to share the cocaine with Jane 2, and Jane 1 did so. Thus, sufficient substantial evidence shows defendant “furnished” cocaine to Jane 2. (Ibid.)

In considering a claim that insufficient evidence supports a conviction, we “review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) We “‘presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence.’” (People v. Manibusan (2013) 58 Cal.4th 40, 87.) Reversal for insufficient evidence is unwarranted unless it appears “‘“‘upon no hypothesis whatever is there sufficient substantial evidence to support’”’” the conviction. (Ibid.)

Health and Safety Code section 11353 provides: “Every person 18 years of age or over . . . who unlawfully sells, furnishes, administers, gives, or offers to sell, furnish, administer, or give, any such controlled substance [including cocaine] to a minor, shall be punished . . . .” The statute is part of the California Uniform Controlled Substances Act (the Act) (Health & Saf. Code, § 11000 et seq.) The Act adopts the definition of “furnish” contained in former Business and Professions Code section 4048.5 (Health & Saf. Code, § 11016), which provides: “‘Furnish’ means to supply by any means, by sale or otherwise.” (Italics added.)

Here substantial evidence shows that, while using cocaine with Jane 1, defendant asked Jane 1 whether she had any friends who would be interested in using cocaine. Jane 1 said Jane 2 might be interested in using cocaine, and defendant told Jane 1 to “bring it up to her.” Jane 1 and Jane 2 then used the cocaine defendant had given Jane 1 while defendant was present in the home. Defendant then drove Jane 1 and Jane 2 to a party, and on the way to the party asked them if they had used the cocaine. Jane 1 responded that they had, and defendant did not act surprised. This evidence sufficiently supports defendant’s conviction in count 5 because it shows defendant furnished cocaine to Jane 1, encouraged Jane 1 to share that cocaine with Jane 2, and Jane 1 did so.

Sagadin v. Ripper (1985) 175 Cal.App.3d 1141 is instructive. The plaintiffs, who were under age 21, sued another young man and his parents for personal injuries the plaintiffs suffered in a car accident after they left a party at the young man’s home where beer was served. (Id. at pp. 1148-1151.) The parents authorized their son to host the party in their home, and before the party began there was beer in a dispenser in the family room. (Id. at pp. 1149-1151.) Before the party, the father told his son that “if they drank any of his beer, it would have to be replaced.” (Id. at p. 1149.) Business and Professions Code section 25658, subdivision (a), provides it is a misdemeanor for an adult to “furnish alcohol” to a minor. (Sagadin v. Ripper, supra, at pp. 1148, 1153-1154.) The statute is violated if an adult undertakes “some affirmative act of furnishing alcohol” to a minor. (Id. at p. 1157.) In appealing the civil judgment in favor of the plaintiffs, the father claimed insufficient evidence showed the father had “furnished” any beer to plaintiffs in violation of the statute. (Ibid.) The Sagadin court disagreed and concluded that the jury could reasonably have inferred that the father violated the statute by telling his son that if any of the father’s beer was consumed then that beer would have to be replaced. (Id. at pp. 1149, 1158.) By this statement, the father “tacitly authorized” his son to furnish the father’s beer to the plaintiffs. (Id. at p. 1158.) Similarly here, defendant tacitly authorized Jane 1 to furnish defendant’s cocaine to Jane 2 by telling Jane 1 to “bring . . . up to” Jane 2 the question of Jane 2 using defendant’s cocaine, after asking Jane 1 if she had any friends who would be interested in using cocaine and Jane 1 responding that Jane 2 would probably be interested.

B. Defendant’s Confrontation Claim Lacks Merit

Defendant claims the trial court violated his Sixth Amendment right to confront witnesses against him by permitting Mr. Fields, the administrative director of the laboratory that tested Jane 1’s hospital urine sample, to testify about the contents of the laboratory’s urinalysis report which Mr. Fields did not personally prepare. Mr. Fields testified the report showed Jane 1’s urine was positive for cocaine and amphetamines, and a positive amphetamines test can be consistent with MDMA use. Defendant claims the report was testimonial and his confrontation rights were violated because he did not have the opportunity to confront and cross-examine the laboratory technician who analyzed Jane 1’s urine sample and prepared the report. We disagree. The report was not testimonial because it was not prepared for the primary purpose of creating an out-of-court substitute for testimony in a criminal trial. Rather, it was prepared for the primary purpose, indeed, it was prepared for the only purpose, of facilitating the hospital’s treatment of Jane 1’s concussion. We also conclude that any error in admitting the report and Mr. Fields’s testimony concerning its contents was harmless beyond a reasonable doubt in light of the overwhelming evidence that defendant furnished drugs to Jane 1 and Jane 2.

1. Applicable Law and Standard of Review

Defendants have a Sixth Amendment right to confront and cross-examine witnesses who “bear testimony” against them. (Crawford v. Washington (2004) 541 U.S. 36, 51; U.S. Const., 6th Amend.) A statement is testimonial only if it is procured with the “primary purpose of creating an out-of-court substitute for trial testimony.” (Michigan v. Bryant (2011) 562 U.S. 344, 358.) Medical records and medical reports, if created for treatment purposes, are not testimonial because they are not created with the primary purpose of creating testimony for use at a criminal trial. (People v. Rodriguez (2014) 58 Cal.4th 587, 634-635 [medical records from emergency room visit not testimonial because created for treatment purposes]; Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305, 312, fn. 2 [“medical reports created for treatment purposes . . . would not be testimonial under our decision today.”].) Confrontation clause claims involving mixed questions of law and fact are reviewed de novo. (People v. Arredondo (2017) 13 Cal.App.5th 950, 968, review granted Nov. 15, 2017, S244166.)

2. Analysis

The record shows and the trial court could reasonably have concluded that the primary purpose of creating the urinalysis report was to facilitate the hospital’s treatment of Jane 1’s concussion; it was not to create an out-of-court substitute for testimony in a criminal trial. (See Michigan v. Bryant, supra, 562 U.S. at p. 358.) Thus, the urinalysis report was not testimonial, and defendant’s right to confront adverse witnesses was not violated when Mr. Fields testified the report showed Jane 1 tested positive for cocaine and amphetamines. (See Crawford v. Washington, supra, 541 U.S. at p. 51.)

Jane 1 fell and sustained a concussion while playing soccer and was transported to a hospital. In order to assess Jane 1’s medical condition, hospital personnel took computerized tomography scans of her head and had her provide a urine sample, which they sent to the laboratory at which Mr. Fields was employed to analyze for the presence of drug metabolites. The urinalysis report on the contents of Jane 1’s urine sample stated: “‘This is a screening test for medical purposes only.’” There is no evidence that the report was generated for any other purpose, including the purpose of creating testimony in a criminal trial (Michigan v. Bryant, supra, 562 U.S. at p. 358) or in any other judicial proceeding (cf. Palmer v. Hoffman (1943) 318 U.S. 109, 111-114 [engineer’s accident report documenting reasons railroad accident occurred was inadmissible because it was not a business record]).

This important factor distinguishes the urinalysis report from the testimonial laboratory reports in Melendez-Diaz and Bullcoming v. New Mexico (2011) 564 U.S. 647. In these cases, the high court held that scientific reports, “‘contain[ing] a testimonial certification, made in order to prove a fact at a criminal trial,’” could not be used as substantive evidence against a defendant unless the analyst who prepared and certified the report was subject to confrontation. (Williams v. Illinois (2012) 567 U.S. 50, 65-66 [discussing the import of both cases], italics added.) In Melendez-Diaz, a police officer submitted seized evidence resembling cocaine to a state laboratory for chemical analysis. (Melendez-Diaz v. Massachusetts, supra, 557 U.S. at p. 308.) In Bullcoming, a police officer seized a blood sample from someone suspected of driving under the influence of alcohol and submitted it to a state laboratory to determine its blood-alcohol content. (Bullcoming v. New Mexico, supra, at pp. 652-653.) In both cases, a state laboratory created a report at the request of law enforcement “specifically to serve as evidence in a criminal proceeding.” (Id. at pp. 651, 664-665.) The high court in Melendez-Diaz stated: “[M]edical reports created for treatment purposes . . . would not be testimonial under our decision today.” (Melendez-Diaz v. Massachusetts, supra, at p. 312, fn. 2.) In contrast to the testimonial reports in Melendez-Diaz and Bullcoming, the urinalysis report was not testimonial because it was generated at the request of a physician or hospital personnel for the purpose of assessing and treating Jane 1’s medical condition.

3. Any Error in Admitting the Urinalysis Report Was Harmless

“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.” (People v. Rutterschmidt (2012) 55 Cal.4th 650, 661, citing Chapman v. California (1967) 386 U.S. 18, 24.) Defendant claims the error in allowing Mr. Fields to testify to the contents of the urinalysis report was prejudicial under the Chapman standard because it was not harmless beyond a reasonable doubt. He argues that, without the report or Mr. Fields’s testimony that the report showed Jane 1 tested positive for cocaine and amphetamines, the People did not establish the corpus delecti of crimes charged in counts 1 through 6, namely, that defendant, independently of his statements in the pretext phone call with Jane 1, actually furnished any drugs to Jane 1 or Jane 2. He also claims the report was inadmissible under the business records and the public records exceptions to the hearsay rule. (Evid. Code, §§ 1271, 1280.) The People counter that any error in admitting the report was harmless beyond a reasonable doubt. We agree with the People.

The record contains overwhelming evidence that defendant furnished MDMA to Jane 1 and furnished cocaine to Jane 1 and Jane 2, such that there is no reasonable doubt the jury would have convicted him as it did in counts 1 through 6 in the absence of the urinalysis report and Mr. Fields’s testimony concerning its contents. Jane 1 testified that defendant gave her a blue ecstasy pill, and she knew the pill was ecstasy because defendant told her it was. The ecstasy made her feel numb. Jane 1 also testified defendant gave her cocaine, in the form of white powder, and defendant told her the substance was cocaine. Jane 1 described its effects as rendering her intoxicated, causing her to “fe[el] good in a different way” than how she felt after drinking alcohol. She also testified that she never received cocaine from anyone other than defendant. Jane 2 testified that Jane 1 gave her cocaine. Jane 2 knew the substance was cocaine because it was a white powder and she had seen cocaine on television and learned about it in health class. The cocaine made Jane 2 feel “[e]nergetic” and caused her arms and legs to shake. Jane 1 told Jane 2 that defendant had given her the cocaine. Jane 2 heard Jane 1 tell defendant that Jane 1 and Jane 2 “had done the cocaine, and he just brushed it off by shrugging his shoulders and saying, ‘Oh.’”

Jane 1’s mother also testified that when she confronted defendant, he admitted he had furnished drugs to Jane 1 and apologized to her. And, during the pretext phone call with Jane 1, defendant urged her to lie to police about “why [she] had drugs in [her] system.” He counseled Jane 1 to say she got the drugs from someone at school and to deny his involvement. He acknowledged it was illegal for him to have given Jane 1 the drugs, stressed to her the importance of not mentioning his name, and told her: “[I]f I go to jail, I’m probably gonna be gone for five to ten years.” He pleaded with Jane 1 to “[d]o this for [him]” and her mother, and promised he would “never touch that stuff again.” In light of all of this evidence, there is no reasonable possibility that defendant would have realized a more favorable result at trial had the urinalysis report or Mr. Fields’s testimony been excluded in its entirety.

C. Defendant’s Abstract of Judgment Must Be Corrected in Several Respects

Defendant claims, and the People and this court agree, that defendant’s abstract of judgment must be corrected because it contains several errors which inaccurately reflect defendant’s convictions and sentence. Courts have inherent authority to correct errors in court records, including errors in abstracts of judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)

In counts 1, 2, and 6, the jury convicted defendant of misdemeanor child abuse (§ 273a, subd. (b)), a lesser included offense to the charged offenses of felony child abuse (§ 273a, subd. (a)). But the abstract erroneously indicates he was convicted of felony rather than misdemeanor child abuse by referencing section “273a(a)” rather than section “273a(b)” next to the counts 1, 2, and 6 in section 1 of the abstract. The abstract must be corrected to reference “273a(b)” rather than “273a(a)” in section 1, on the lines for counts 1, 2, and 6.

Second, the abstract erroneously omits to include and must be corrected to include an “X” in the boxes beneath the word “concurrent” for counts 1, 2, and 6, in order to correctly indicate that the one-year terms on counts 1, 2, and 6 were imposed concurrently to counts 3, 4, and 5. In addition, the term denoted as “01 00” years for count 1 must be placed in parentheses, to wit, “(01 00)” in order to indicate that the one-year term on count 1 is a concurrent term.

 

Third, on count 3, the principal term, defendant was sentenced to the middle term of six years, but the abstract shows he was sentenced to the low term of three years on count 3. Thus, on the line for count 3, the “L” must be changed to “M” and the “03 00” must be changed to “06 00.”

Fourth, on count 4, defendant was sentenced to a concurrent six-year term, but the abstract erroneously shows he was sentenced to a consecutive two-year term. This must be corrected, and the “X” beneath “1/3 consecutive” for count 4 must be taken out and replaced with an “X” beneath “concurrent” for count 4. Lastly, “minor” is misspelled “monir” for count 5.

In sum, the following changes must be made to the abstract of judgment: For count 1, change “273a(a)” to “273a(b),” insert an “X” under concurrent, and add parentheses to the time imposed to further signify that the one-year term is concurrent (that will make it uniform with the time imposed for counts 2 and 6). For count 2, change “273a(a)” to “273a(b).” For count 3, change the term from “L” to “M” and the time imposed from three years to six years. For count 4, insert an “X” under concurrent, delete the “X” under 1/3 consecutive, and change the time imposed from two years to six years. For count 5, change “monir” to “minor.” For count 6, change “273a(a)” to “273a(b).” As noted, defendant was sentenced to eight years: six years (the middle term) on count 3, a concurrent six-year term on count 4, a consecutive two-year term (one-third the middle term) on count 5, and concurrent one-year terms on his misdemeanor convictions in counts 1, 2, and 6.

IV. DISPOSITION

The matter is remanded to the trial court with directions to correct defendant’s abstract of judgment, in the respects set forth in this opinion, so that the abstract will correctly reflect defendant’s convictions and sentences. The court is further directed to forward a copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation. The judgment is affirmed in all other respects.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS

J.

We concur:

RAMIREZ

P. J.

CODRINGTON

J.