HALL v. PEOPLE (1988)

Following a preliminary hearing, petitioner John Michael Hall was held to answer on seven counts, the first four of which alleged possession for sale or sale of a controlled substance (Health & Saf.Code, §§ 11378, 11379) on two separate occasions.¹  He moved under Penal Code section 995 to set aside those counts of the information relating to the controlled substances for want of competent proof of the nature of the substances seized.   His motion was denied and he then petitioned this court for a writ of prohibition restraining the superior court from taking any further action on the challenged counts.  (Pen.Code, § 999a.)   We issued an alternative writ and stayed the proceedings in order to examine the issues presented.   We shall now deny the petition and lift the stay.

FACTUAL AND PROCEDURAL BACKGROUND

In June 1986, an undercover agent purchased a substance from petitioner at the behest of the Shasta County Sheriff's Office on two separate occasions.   Petitioner was arrested after the second transaction.

The sheriff's department then submitted the purchased substances to the Bureau of Forensic Services of the California Department of Justice for analysis.   The chain of custody of the purchased substances was established up to the time of the hearing by one of the investigating deputies and by James W. Weigand, a supervising criminalist at the Bureau.   The Bureau criminalist who prepared the analyses of the substances, Jill Pedersen, was testifying in another case and hence was unavailable for the preliminary hearing.   In her place the prosecution called Mr. Weigand, her supervisor.   The supervisor authenticated the two reports prepared by the testing criminalist.

Each report, called a “Controlled Substances Evidence Report”, is a single page, printed form which among other things contain a space for recording the results of the laboratory analysis.   Both reports contain the entry that the submitted items were “found to contain methamphetamine.”

Petitioner objected to the hearsay conclusion in the reports which identified the substances as methamphetamine.   He argued that the reports did not constitute business records and that in any event their admission would deprive him of the right to confront and cross-examine the testing criminalist.   The magistrate overruled the objection on the ground the reports met the statutory requirements for business records of the Bureau and therefore came within that exception to the hearsay rule.   The challenged reports were then admitted into evidence.

The next day, perhaps as a cautionary measure, the prosecution recalled the supervising criminalist who was then himself qualified as an expert witness.   This time the supervisor brought the actual laboratory notes of the testing criminalist.   These notes, he explained, “are kept so we know the exact methodology that the analysts have used in the analysis and the conclusions that that person came to, what tests they ran, the weights they had, this type of thing.”   The work notes permitted him to “logically follow through to the conclusion that Jill Pedersen made.   These notes would substantiate that conclusion.”   The notes, which were admitted into evidence, reveal that several tests were conducted on the submitted substance and the results then recorded.

The supervisor was then asked whether in his expert opinion, based upon a review of Miss Pedersen's notes, the substances in question contained methamphetamine.   He opined that they did.   In his expert opinion, “[b]ased on the tests she ran and the results she indicates she obtained on them, they're the right test for methamphetamine.”   Aside from the hearsay and confrontation objections, no other objection was made to the qualifications of Mr. Weigand or to his expert opinion.   The magistrate concluded that it was “appropriate for one DOJ analyst to testify to the works and conclusions of another, who is unavailable.”

Petitioner renews his objections here, claiming the only proof the substances were controlled substances comes from inadmissible hearsay.   Once this evidence is disregarded, he argues, there was no probable cause to believe he possessed for sale or sold any controlled substances so those counts of the information must be set aside.   He also reiterates his contention that in any event he was denied his constitutional right to confront and cross-examine the testing criminalist.

DISCUSSION

 We have found the hearsay/business records/confrontation question to be both intriguing and complex.   Nevertheless, after spending an inordinate amount of time grappling with the issue we have concluded that any error in admitting the challenged reports into evidence was necessarily harmless in this case.   Since we are enjoined not to enter upon the resolution of constitutional questions unless absolutely necessary to a disposition of the appellate proceeding (Bayside Timber Co. v. Board of Supervisors (1971) 20 Cal.App.3d 1, 5–6, 97 Cal.Rptr. 431), we do not now undertake to unravel the constitutional puzzle.

 The lynchpin of petitioner's argument is that the challenged reports constituted inadmissible hearsay and that their admission deprived him of his constitutional right of confrontation.   From this premise he further argues that the testifying expert could not base his opinion on this inadmissible evidence.   It is this extension of his argument that is fatally flawed.   As we shall explain, the testifying expert was entitled to base his opinion on the test results of his colleague.   Since his expert opinion was properly received into evidence, no additional evidence on the point was required.   Consequently, the admission of the reports, even if erroneous, would not have changed the holding order and must therefore be deemed harmless.

Under the statute, an expert may render an opinion “[b]ased on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis of his opinion.”  (Evid.Code, § 801, subd. (b);  emphasis added.)   The statutory scheme further provides that “[i]f a witness testifying as an expert testifies that his opinion is based in whole or in part upon the opinion or statement of another person, such other person may be called and examined by any adverse party as if under cross-examination concerning the opinion or statement.”  (Evid.Code, § 804, subd. (a).)  Moreover, “[a]n expert opinion otherwise admissible is not made inadmissible by this section because it is based on the opinion or statement of a person who is unavailable for examination pursuant to this section.”  (Evid.Code, § 804, subd. (d).)

As Witkin notes, Evidence Code section 801, subdivision (b) “expresses, somewhat more broadly, a view previously recognized by our courts:  Many types of information which could not be directly produced as competent evidence are nevertheless commonly used by experts in forming their opinions.”  (1 Witkin, Cal. Evidence (3d ed. 1986)  The Opinion Rule, § 477, p. 448;  see also 2 Jefferson, Cal. Evidence Benchbook (2d ed. 1982)  Expert and Lay Opinion Testimony, § 29.6, pp. 1029–1031.)   Thus, under this section, the fact that the supervising criminalist's testimony was based upon the report and test results of another criminalist rather than upon his own personal observations or tests “may affect the weight of his testimony but does not render that testimony inadmissible if those reports meet the standard of reasonable reliability.”  (People v. Phillips (1981) 122 Cal.App.3d 69, 85, 175 Cal.Rptr. 703.)

Here the requisite standard of reliability was indisputably established by the expert witness.   He testified that the tests were run by a criminalist in the course of her ordinary duties at the Bureau of Forensic Services;  that she prepared laboratory work notes of the procedures used;  that the notes reflect what tests were run and reveal the exact methodology she employed;  that these work notes permit a reviewer to “logically follow through to the conclusion” she reached and that the tests run were the right ones for methamphetamine.   Given this showing, the magistrate concluded that the testifying expert could properly rely upon the notes and test results of another criminalist in the Bureau.   Petitioner did not claim below nor does he here that this foundation was somehow deficient.   All the test results appeared in official reports and records prepared by a criminalist for the Bureau and were based upon the personal observations of the testing criminalist.   Petitioner does not question the supervisor's qualifications to appraise the reliability of these reports or in any other manner challenge his expertise.   In short, then, the magistrate properly permitted the supervisor to express his expert opinion, based on the test reports of another expert, that the submitted substances contained methamphetamine.

Petitioner, of course, had a statutory and constitutional right to confront and cross-examine the supervisor and he exercised those rights.   But the fact that the magistrate erroneously admitted the records, if indeed it was error, does not in any way diminish the dispositive fact that there was expert evidence before the committing judge that the submitted substances contained controlled substances.   Thus, even in the absence of the admission of the disputed reports, petitioner would still have been held to answer for the drug counts.   Any error in their admission was therefore harmless.   Since petitioner was properly held to answer the superior court correctly denied the motion to set aside the information.

The alternative writ, having served its purpose, is discharged.   The peremptory writ is denied and the stay of the proceedings below dissolved as of the date of the finality of this opinion.

FOOTNOTES

1.   The remaining three counts alleged violations of Penal Code sections 496 (receiving stolen property) and 12560 (felon in possession of a firearm) and are not at issue in this writ proceeding.

SPARKS, Associate Justice.

PUGLIA, P.J., and SIMS, J., concur.