P. v. Hunter

Filed 6/7/07 P. v. Hunter CA4/1
Opinion following rehearing
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
OTHA HUNTER,
Defendant and Appellant.
D046853
(Super. Ct. No. SCD 183413)
APPEAL from a judgment of the Superior Court of San Diego County, Melinda J.
Lasater, Judge. Affirmed in part, reversed in part and remanded with instructions.
A jury convicted Otha Hunter of selling and furnishing a controlled substance
(Health and Saf. Code, § 11352, subd. (a), count one); possession of cocaine base for sale
(Health and Saf. Code, §§ 11351.5 and 11350, subd. (a), counts two and three); and
unlawful possession of drug paraphernalia. (Health and Saf. Code, § 11364, count five.)
As to count three, the jury found true the allegation that the offense was committed while

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he was released from custody on bail. (Pen. Code1, § 12022.1, subd. (b).) The jury
acquitted him of a charge of unlawful failure to appear. (§ 1320.5; count four.)
The court sentenced Hunter to 6 years in prison as follows: the mid term of 4 years
for count one; 4 years, stayed pursuant to section 654, for count two; the upper term of 3
years, to run concurrently with count 1, for count three; and 2 years consecutive for the
allegation in count three. The court imposed a restitution fine of $1,200.00 under section
1202.4, and imposed but stayed a parole revocation fine of $2,000.00 under section
1202.45. The court ordered Hunter committed to the California Rehabilitation Center
under Welfare and Institutions Code section 3051.
Hunter contends: (1) with respect to counts one and two, the court erred by
admitting into evidence photocopies of the buy money that was not provided to the
defense before trial; (2) with respect to count three, the criminalist's report was
testimonial, and therefore its introduction into evidence violated his right to confrontation
under the Sixth Amendment of the United States Constitution; (3) the trial court erred by
instructing regarding flight in the language of CALJIC No. 2.52; (4) the trial court
imposed a parole revocation fine in an unauthorized amount; and, (5) the upper term
sentence on count three violated his constitutional rights to a jury trial and due process
under the Sixth and Fourteenth Amendments of the federal Constitution. We affirm in
part and reverse in part.
1 All further statutory references are to the Penal Code unless otherwise stated.

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FACTUAL AND PROCEDURAL SUMMARY
Counts One and Two
On June 9, 2004, San Diego Police Officer David Hall made copies of the five and
ten dollar bills to be used in making a drug purchase as part of an undercover operation
the police department was conducting in the 1300 block of Third Avenue in San Diego.
Later, Hall, outfitted with a one-way radio transmitter, approached Hunter and asked for
$20 worth of a controlled substance. Hunter told Hall to follow him; Hall observed that
Hunter had a paper bindle in his hand. During the transaction, Hall saw that the bindle
contained four off-white rocks that he believed was cocaine base. Hunter gave him one
of the rocks in exchange for the bills that had been photocopied. Hall walked away and
gave a pre-arranged signal for Hunter to be arrested.
Detective Vernon Peterson approached Hunter and saw him toss an object.
Peterson arrested him and found on his person the bills that were previously photocopied.
Police Officer David Lawlor found the tossed object — a small folded piece of brown
paper that contained three off-white chunky objects he recognized as a usable quantity of
rock cocaine — in the vicinity of Hunter. Detective Hall performed a presumptive test of
the rocks, which tested positive for cocaine. Larry Dale, a criminalist, subsequently
tested the rocks, and concluded they were cocaine base.
At trial, Hunter objected to the admission into evidence of photocopies of the bills.
The trial court ruled the evidence was admissible and Hunter would suffer no undue
prejudice because the police report handed over to Hunter in discovery referred to the
serial numbers of the bills, which indicated they had been photocopied. The court also

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ruled the defense could cross-examine the police officer on this matter to whatever
degree necessary.
Counts Three, Four and Five
On August 13, 2004, at 9:00 a.m., Hunter failed to appear as ordered in San Diego
Superior Court regarding his arrest on June 9, 2004. The court issued a bench warrant for
his arrest. Detective Hall arrested Hunter at approximately 2:30 p.m. that day, and while
handcuffing his hands behind his back, noticed, that he held a white napkin. Hall made
Hunter sit on the curb while Hall waited for backup assistance, and observed Hunter
throw the napkin behind him. Hall retrieved it and found small off-white rock substances
inside. The rocks tested positive for cocaine base in a presumptive test Hall performed.
Hall searched Hunter and recovered a glass pipe used to smoke cocaine base.
Dale testified he did not personally test the rocks seized on August 13, 2004;
rather, they were tested by a coworker in his laboratory, who he had trained. Dale
analyzed her laboratory report and concluded that the various tests she performed proved
the rocks were .21 grams of cocaine base. Hunter objected to Dale's testimony based on
the other criminalist's laboratory report, but the trial court overruled it. Separately, Hall
visually inspected the rock during trial and opined it was cocaine base.
DISCUSSION
I.
We reject Hunter's contention that his convictions on counts one and two should
be reversed because the trial court violated his due process and statutory rights in

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admitting into evidence photocopies of the bills the police used to purchase the cocaine
base.
Upon the defense's request, a prosecutor is required to disclose evidence material
either to guilt or to punishment. (Brady v. Maryland (1963) 373 U.S. 83, 87; § 1054.1)
Here, the evidence was inculpatory, not exculpatory; therefore, the prosecution's failure
to give the defense photocopies of the bills as opposed to their serial numbers did not
violate Brady's holding. (Gray v. Netherland (1996) 518 U.S. 152, 168.) Moreover, to
establish violations of both Brady and section 1054.1, the prosecution's failure to hand
over the evidence must have prejudiced the defendant. (Strickler v. Greene (1999) 527
U.S. 263, 281-282; People v. Jenkings (2000) 22 Cal.4th 900, 950.) Here, the defense
suffered no prejudice; the defense attorney conceded at trial, "I've always maintained that
I've known that there was a statement which indicated that the officer had a prerecorded
ten-dollar bill, as well as five dollar bills. The serial numbers were included." (Emphasis
added.)
II.
Hunter contends his conviction on count three should be reversed because the trial
court erred in admitting into evidence testimony from Dale, although he did not perform
the laboratory tests on the rocks that were found on Hunter on August 13, 2004. Hunter
claims Dale's testimony was hearsay, and he was denied his right under the Sixth
Amendment of the United States Constitution to confront the criminalist who prepared
the laboratory report that Dale relied on. (Crawford v. Washington (2004) 541 U.S. 36.)
The trial court based its decision on People v. Johnson (2004) 121 Cal.App.4th

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1409, 1412, which applied the analysis in Crawford to the question of whether laboratory
reports were testimonial, and concluded, "A laboratory report does not 'bear testimony' or
function as the equivalent of in-court testimony. If the preparer had appeared to testify at
[the hearing] he or she would merely have authenticated the document." (Johnson, at p.
1412.) We agree with this conclusion. Here, the laboratory report was not testimonial
evidence; therefore, its admission into evidence did not violate the Sixth Amendment.
Dale ascertained from the laboratory report both that the criminalist had performed the
standard tests according to the protocol he had trained her to follow and her results were
peer reviewed. Accordingly, the laboratory report had a high degree of reliability, and it
was not reversible error for the trial court to permit testimony from a different criminalist
than the one who actually performed the tests.
III.
We reject Hunter's claim the trial court erred by instructing regarding flight in the
language of CALJIC No. 2.52 as follows: "The flight of a person after the commission of
a crime, or after he is accused of a crime, is not sufficient in itself to establish his guilt,
but is a fact which, if proved, may be considered by you in the light of all other proved
facts in deciding whether a defendant is guilty or not guilty. The weight to which this
circumstance is entitled is a matter for you to decide."
Hunter urges reversal of his convictions for sale of a controlled substance and
possession of a controlled substance for sale because "Without the consciousness of guilt
instruction, a reasonable jury could have reasonably concluded that the bindle was not
what [he] threw. But the improper flight instruction permitted the jury to substitute a

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non-evidentiary inference for evidence that proved guilt beyond a reasonable doubt."
One who expects his guilt to be proved at trial probably has a motivation to absent
himself from the hearing; therefore this instruction is appropriate in such circumstances.
(People v. Vargas (1975) 53 Cal.App.3d 516, 529.) Here, the valid basis for the
instruction was Hunter's failure to appear in court as ordered.
At any rate, any error was harmless. (People v. Watson (1956) 46 Cal.2d 818,
836.) It is not reasonably probable that the jury would have reached a different result
without the instruction, because sufficient evidence established Hunter's guilt of both
charges. Specifically, Hall positively identified Hunter, who had the buy money when he
was apprehended, and evinced consciousness of guilt by throwing it away. Moreover, the
laboratory tests proved Hunter had a usable quantity of cocaine base.
IV.
The People concede, and we agree, the trial court erred because it imposed a
parole revocation fine for $2000.00, notwithstanding that the restitution fine it imposed
was for only $1200.00.2 Subdivision (b) of section 1202.4 states: "In every case where a
person is convicted of a crime, the court shall impose a separate and additional restitution
fine, unless it finds compelling and extraordinary reasons for not doing so, and states
those reasons on the record." Section 1202.45 states: "In every case where a person is
2 The clerk's transcript states the parole revocation fine imposed was for $1,200.00;
however, in the reporter's transcript the court stated that this fine was for $2000.00.
Given this discrepancy, the court's oral pronouncement is controlling. (People v. Price
(2004) 120 Cal.App.4th 224, 242.)

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convicted of a crime and [the] sentence includes a period of parole, the court shall at the
time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess
an additional restitution fine in the same amount as that imposed pursuant to subdivision
(b) of Section 1202.4." (Emphasis added.) (People v. Tillman (2000) 22 Cal.4th 300,
301-302, fn. 1.) Accordingly, the trial court erred by imposing a parole revocation fine in
an amount exceeding the restitution fine.
V.
Hunter claims the trial court erred in imposing the upper term on count 3. In
Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856], the United States
Supreme Court held that California's determinate sentencing law (DSL), by placing
sentence-elevating fact finding within the trial judge's province, violates a criminal
defendant's right to a jury trial safeguarded by the Sixth and Fourteenth Amendments to
the federal Constitution. (Cunningham, supra, 127 S.Ct. at p. 860.) Cunningham
explained that because circumstances in aggravation are found by the judge, not the jury,
and need only be established by a preponderance of the evidence rather than by proof
beyond a reasonable doubt, the DSL violates the bright-line rule in Apprendi v. New
Jersey (2000) 530 U.S. 466, 490, that any fact, other than the fact of a prior conviction,
that increases the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury and proved beyond a reasonable doubt. (Cunningham, supra, 127
S.Ct. at p. 868.) Quoting Blakely v. Washington (2004) 542 U.S. 296, 303-304 (Blakely)
for the proposition that " 'the "statutory maximum" for Apprendi purposes is the
maximum sentence a judge may impose solely on the basis of the facts reflected in the

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jury verdict or admitted by the defendant,' " the Cunningham court concluded that "[i]n
accord with Blakely, therefore, the middle term prescribed in California statutes, not the
upper term, is the relevant statutory maximum." (Cunningham, supra, 127 S.Ct. at p.
868.)
We first reject the People's claim Hunter waived any sentencing error by failing to
object at the sentencing hearing. A defendant is not precluded from asserting on appeal
that he was denied his constitutional right to a jury trial, despite a failure to raise the issue
in the trial court. (People v. Saunders (1993) 5 Cal.4th 580, 589, fn. 5; see also Cal.
Const. art. I, § 16; People v. Holmes (1960) 54 Cal.2d 442, 443-444 [waiver of the right
to a jury trial must be expressed].)
Next, we conclude this case does not require reversal under Cunningham because
the trial court relied on the jury's finding for its upper term sentence. With respect to
count 3, the information charged Hunter with an enhancement under section 12022.1, to
wit: Hunter was in possession of a controlled substance "while [he] was released from
custody on bail, and on his own recognizance, pending final judgment on an earlier
offense." The jury specifically found this enhancement true. At sentencing, the court
stated the upper term was imposed on count 3 "because [Hunter] was charged with an
offense at the time, had all the benefits that had gone through before." Although the
court's words were not artful, in the context in which they were spoken the court could
only be referring to the jury's finding that Hunter committed the felony "while [he] was
released from custody on bail, and on his own recognizance, pending final judgment on
an earlier offense." Therefore, there was no Cunningham error.

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DISPOSITION
The judgment is affirmed in part and reversed in part. The matter is remanded and
the trial court instructed to amend the abstract of judgment to reflect that the fine imposed
under Penal Code section 1202.45 shall be for $1200.00, and forward the amended
abstract to the Department of Corrections and Rehabilitation. The judgment is otherwise
affirmed.
O'ROURKE, J.
WE CONCUR:
BENKE, Acting P. J.
NARES, J.

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