P. v. Thornburg

Filed 10/11/17 P. v. Thornburg CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
TIMOTHY LEE THORNBURG,
Defendant and Appellant.
G053278
(Super. Ct. No. 13HF2342)
O P I N I O N
Appeal from a judgment of the Superior Court of Orange County, Joy W.
Markman, Steven D. Bromberg and Kimberly Menninger, Judges. Affirmed as modified.
John L. Dodd, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra, Attorney General, Kathleen A. Kenealy, Acting Attorney
General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant
Attorney General, Eric A. Swenson, Lynne G. McGinnis and Junichi P. Semitsu, Deputy
Attorneys General, for Plaintiff and Respondent.

-- 1 of 25 --

2
A jury convicted Timothy Lee Thornburg of second degree robbery with
personal use of a firearm (Pen. Code §§ 211, 212.5, subd. (c), 12022.53, subd. (b))1 and
second degree commercial burglary (§§ 459, 460, subd. (b)). The court imposed a prison
term of 12 years, consisting of concurrent two-year terms for robbery and burglary, plus a
consecutive 10-year term for personal use of a firearm.
Thornburg contends the court erred when it denied his motions to suppress
evidence under section 1538.5, because there was no probable cause to arrest him for
violating either a San Clemente Municipal Code regulating skateboarding, or section 148,
subdivision (a)(1) barring resisting, obstructing or delaying a peace officer. We disagree.
Thornburg also contends the court erred when it denied his motions to
suppress, because taking a buccal swab for DNA testing was an illegal search in violation
of the Fourth Amendment to the United States Constitution. We are not persuaded.
Next, Thornburg contends the court erred by admitting testimonial hearsay
through the prosecution’s DNA expert, in violation of the California rules of evidence
and the Sixth Amendment to the United States Constitution. Again, we disagree.
Finally, Thornburg contends the court erred by imposing sentence for both
robbery and burglary, in violation of section 654. The Attorney General concedes this
error. We agree and modify the sentence and abstract of judgment accordingly.
We affirm the judgment in all other respects.
FACTS AND PROCEDURAL HISTORY
The Walmart Crimes
Early one morning in March 2010, a man wearing a black, hooded
sweatshirt pulled up over his baseball cap entered a Walmart store in San Clemente. The
man stopped at a Coinstar kiosk next to an ATM (automated teller machine), and then
entered a men’s restroom behind the customer service desk.
1 All further statutory references are to the Penal Code unless otherwise stated.

-- 2 of 25 --

3
Walmart employee Nicholas Chiarilli was in the men’s restroom, and he
saw a white male with a hooded sweatshirt “either washing [his] hands [or] doing
something with [his] hands.” Chiarilli saw the man’s side profile “from the cheek bone
to the high cheek down to [his] lower jaw.”
Next the man went into the Walmart stockroom, which the employees
informally referred to as the “money room.” Walmart employee Justan Dunn walked into
the money room, and he saw the man in a dark, hooded sweatshirt pointing a gun at him.
The man told Dunn, “I want the money. Give me the money.” Dunn
explained he had just stocked the cash registers and did not have any more money. The
man demanded Dunn fill a duffle bag with the backup cash. Dunn complied out of fear
and placed about $1,600 dollars in the duffle bag.
After the man left the stockroom, Dunn called the police.
Deputy Sherri Mannello responded to the Walmart. Chiarilli described the
man he saw as five feet, eight or nine inches tall, 110 to 120 pounds, and wearing a
baseball cap and hooded black sweatshirt. However, he was unable to positively identify
a suspect when shown a photographic lineup.
Dunn told Mannello he “didn’t focus on the face” of the gunman, and he
could not identify a suspect at that time.2
After talking to the eyewitnesses, Mannello reviewed the store’s
surveillance camera footage, which the parties later agreed accurately depicted the
robbery from several different camera angles. In doing so, she noticed the gunman had
entered the store holding a coffee cup, but he exited the store without it.
2 The Attorney General asserts Dunn identified Thornburg as the gunman at trial,
but the record is unclear. Dunn testified he recognized several people in the courtroom,
including the investigating officer and “the man in glasses” to the prosecutor’s right, but
the record does not reveal whether the man in the glasses was Thornburg.

-- 3 of 25 --

4
Later, another investigator collected a brown coffee cup from a trash can in
the men’s room. The coffee cup and the money room door handle were swabbed for
DNA, and the cup was dusted for fingerprints. However, investigators were not able to
identify a suspect and the case went cold.
The Skateboarding Incident
One afternoon in December 2011, Sheriff’s Deputy Jeffrey Hewitt was
driving a patrol car southbound on El Camino Real in San Clemente, when he saw
Thornburg skateboarding northbound, on the opposite side of the street. El Camino Real
is a four-lane street, with a significant downhill grade, and Thornburg was using the two
downhill lanes to make long, slow S-turns on his skateboard.
Hewitt turned around to initiate a “pedestrian” stop for a violation of San
Clemente Municipal Code section 10.64.020, subdivision (A).3 Hewitt first turned on the
steady red light in the emergency lights on top of his vehicle. Thornburg looked back at
Hewitt, but he did not stop.
Hewitt next turned on his flashing red and blue emergency lights and
chirped his siren. At that point Thornburg turned around, held up a hand, and waived at
Hewitt, but he still did not stop. Hewitt then picked up his loudspeaker microphone and
ordered Thornburg to stop. This time, Thornburg put down one foot and tried to slow
down, but then continued. Thornburg eventually did stop. Hewitt estimated the gap
between the time when Hewitt first chirped his siren and the time when Thornburg finally
stopped skateboarding was approximately 15 seconds.
3 San Clemente Municipal Code section 10.64.020, subdivision (A), states, “no
person shall use or operate a skateboard on a public or private street or alley in the City if
there is a sidewalk adjacent and parallel to the street.” Hewitt testified that a violation of
this code section normally results in a citation, not an arrest.

-- 4 of 25 --

5
Thornburg was holding his skateboard in his hands as Hewitt approached
and asked Thornburg “what he was doing.” Thornburg asked Hewitt why Hewitt stopped
him. Hewitt told Thornburg skateboarding in the street was a violation of the San
Clemente Municipal Code.
Thornburg told Hewitt another police officer had told him it was okay to
skateboard in the street, so long as he obeyed the rules. Thornburg continued to argue the
point, even after Hewitt explained to him it was a violation. Hewitt testified Hewitt “had
given him almost the whole municipal code, and he just continued.”
While Thornburg argued, Hewitt noticed two, baseball-sized bulges in
Thornburg’s pockets. Hewitt thought the bulges could be weapons. Thornburg was
significantly taller than Hewitt, and his combative demeanor and bulging pockets
prompted Hewitt to call for backup. Hewitt also feared Thornburg might use the
skateboard he was holding as a weapon.
Hewitt wanted to pat Thornburg down for weapons: “Due to the bulges in
the pockets, due to he was arguing the issue for the stop. It’s not common that somebody
skateboards in the street. That’s a place for vehicles. He was a tall gentlem[a]n. I was
out there by myself.” But Hewitt did nothing more until his backup arrived.
After another deputy arrived, Hewitt told Thornburg he wanted to conduct a
patdown search for weapons. Thornburg refused and “became very verbally
argumentative . . . .” Although Hewitt believed he had the right to conduct a patdown
search without consent, he telephoned his sergeant to discuss the situation.
After talking briefly with his sergeant, Hewitt again asked Thornburg for
consent to conduct a patdown search. Thornburg again refused, and demanded to know
Hewitt’s probable cause to conduct a search. Hewitt believed Thornburg was just going
to continue to delay him, so he arrested Thornburg for “delaying an officer in the course
of his duties . . . ” in violation of section 148, subdivision (a).
The whole incident lasted about 30 minutes.

-- 5 of 25 --

6
The Searches and the Motions to Suppress
During the search incident to Thornburg’s arrest for delaying an officer,
Hewitt found methamphetamine and marijuana in his pockets. Hewitt then booked
Thornburg for felony possession of methamphetamine, and Thornburg provided a buccal
swab for identification analysis as required by sections 296 and 296.1.
Thornburg’s buccal swab was submitted to a statewide DNA database
system known as “CODIS.” Five months later, CODIS notified the Orange County
District Attorney’s Office that the DNA profile from Thornburg’s buccal swab matched
the DNA profile from the coffee cup found after the Walmart incident.
Once the Orange County Crime Lab confirmed the two DNA profiles
matched, Thornburg was arrested for the Walmart crimes. Investigators then executed a
search warrant at Thornburg’s home and found two revolvers, a replica semiautomatic
handgun and methamphetamine.
On July 26, 2012, the district attorney filed a complaint under case No.
12HF2123, charging Thornburg with second degree robbery, a gun-use enhancement, and
second degree commercial burglary. Thornburg moved to suppress the evidence seized
as a result of his arrest for delaying an officer, including the buccal swab sample and the
DNA results. Judge Joy W. Markman granted the motion and suppressed the evidence,
reasoning Thornburg’s refusal to allow a patdown search could not provide probable
cause to arrest him for delaying or obstructing an officer.
The district attorney then dismissed and refiled the complaint under case
No. 13HF2342, again charging Thornburg with second degree robbery, a gun-use
enhancement, and second degree commercial burglary. A separate complaint filed the
same day under case No. 13HF2343 charged Thornburg with felony possession of
methamphetamine (former Health & Saf. Code, § 11377, subd. (a)), misdemeanor
resisting, delaying or obstructing a peace officer (§ 148, subd. (a)), and possession of
marijuana (Health & Saf. Code, § 11357, subd. (b)), an infraction.

-- 6 of 25 --

7
Thornburg filed a second motion to suppress, seeking to exclude both the
evidence seized during his arrest for delaying an officer, and the evidence seized during
the search of his home. He argued the evidence was “obtained as a result of an unlawful
stop, detention, search and seizure . . . .” He also argued seizure of his DNA (buccal
swab) under sections 296 and 296.1 was unconstitutional.
The parties stipulated the second motion to suppress would be heard
concurrently in both then pending cases (13HF2342 & 13HF2343), and the evidence in
the first hearing was to be considered as the evidence in the second hearing.
Judge Markman denied the second motion to suppress. The court found
Hewitt had probable cause to detain Thornburg for violating San Clemente Municipal
Code section 10.64.020, subdivision (A), and to arrest him for violating section 148,
subdivision (a)(1). The court specifically found his refusal to stop in response to
Hewitt’s emergency lights, siren, and loudspeaker order, and his combative attitude
during the detention, “caused the delay in the legal performance of Deputy Hewitt’s
duties . . . .” Finally, the court rejected Thornburg’s constitutional challenge to the DNA
collection under sections 296 and 296.1.
After Thornburg was held to answer, he renewed his motion to suppress in
both then pending cases (13HF2342 & 13HF2343), as authorized by section 1538.5,
subdivision (i). In his renewed motion, Thornburg argued Judge Markman erred by
denying his second motion, because there was no probable cause to arrest him for
delaying an officer, and because sections 296 and 296.1 are unconstitutional.
Judge Steven D. Bromberg denied the renewed motion to suppress. The
court found Hewitt had probable cause to arrest Thornburg for delaying an officer in
violation of section 148, subdivision (a)(1), because, “He doesn’t pull over on the
skateboard.” The court further explained, “As much as this never should have happened -
- but it’s all on the defendant for happening. . . . If it’s an arrest, it’s an arrest.
Notwithstanding what the motivation of the officer was, he got it right.”

-- 7 of 25 --

8
After the jury convicted Thornburg of the Walmart crimes in this case
(13HF2342), he appealed from the judgment. He also pled guilty to methamphetamine
possession in the other case (13HF2343), but he did not appeal from that judgment. 4
DISCUSSION
1. The Motions to Suppress – Probable Cause to Arrest
Thornburg challenges the denials of his motions to suppress on three
grounds: (1) the San Clemente Municipal Code skateboarding violation did not justify an
arrest or patdown search, citing Atwater v. City of Lago Vista (2001) 532 U.S. 318, 323
(misdemeanor seatbelt violation), (2) Hewitt unreasonably delayed the initial detention
beyond the time necessary to issue a citation for the skateboarding violation, citing
Rodriguez v. United States (2015) 575 U.S. __ [135 S.Ct. 1609]); and, (3) Hewitt lacked
probable cause to arrest him for a violation of section 148, subdivision (a)(1).
Thornburg’s first two arguments focus on the skateboarding violation that
provided the grounds for the initial detention. But, Thornburg never challenged the
legality of the initial detention below, and neither Judge Markman nor Judge Bromberg
relied on the skateboarding violation as a separate and sufficient basis for their rulings.
Instead, both judges concluded Hewitt had probable cause to arrest Thornburg for
violating section 148, subdivision (a)(1). Thus, we must independently review the trial
courts’ determinations that Hewitt had probable cause to believe Thornburg committed
that offense. (See People v. Kraft (2000) 23 Cal.4th 978, 1036-1037 (Kraft).)
4 Because Thornburg did not appeal from the judgment in case No. 13HF2343,
the courts’ denials of Thornburg’s second and renewed motions to suppress in that case
are now final. Since the parties, the motions, the evidence and the rulings in that case,
and in this case, are identical, Thornburg could conceivably be barred from challenging
those identical rulings in this appeal, by the doctrines of res judicata or collateral
estoppel. (See People v. Beltran (1949) 94 Cal.App.2d 197, 203-205.) However, the
parties have not raised or briefed these issues and we express no opinion on them.

-- 8 of 25 --

9
“Probable cause to arrest exists if facts known to the arresting officer would
lead a person of ordinary care and prudence to entertain an honest and strong suspicion
that an individual is guilty of a crime. [Citation.]” (Kraft, supra, 23 Cal.4th at p. 1037.)
“In determining whether probable cause . . . existed, ‘we examine the events leading up
to the arrest, and then decide “whether these historical facts, viewed from the standpoint
of an objectively reasonable police officer, amount to” probable cause . . . .’ [Citation.]”
(People v. Turner (2017) 13 Cal.App.5th 397, 404-405.) We defer to the courts’ factual
findings if supported by substantial evidence, but we are required to “independently
assess the legal question of whether the challenged search or seizure satisfies the Fourth
Amendment.” (People v. Brown (2015) 61 Cal.4th 968, 975.)
“The legal elements of a violation of section 148, subdivision (a) are as
follows: (1) the defendant willfully resisted, delayed, or obstructed a peace officer, (2)
when the officer was engaged in the performance of his or her duties, and (3) the
defendant knew or reasonably should have known that the other person was a peace
officer engaged in the performance of his or her duties. [Citation.]” (People v. Simons
(1996) 42 Cal.App.4th 1100, 1108-1109.) Only the first element is disputed here.
The following facts provide ample support for the trial courts’ rulings that
Hewitt had probable cause to believe Thornburg willfully resisted, delayed or obstructed
a peace officer. As noted, when Hewitt first turned on the steady red light on top of his
vehicle, Thornburg looked back, but he did not immediately stop. When Hewitt turned
on his flashing red and blue lights and chirped his siren, Thornburg turned around, held
up a hand and waived at Hewitt, but he still did not stop. When Hewitt picked up his
loudspeaker microphone and ordered Thornburg to stop, Thornburg put down one foot
and tried to slow down, but he continued. When he finally did stop, Thornburg became
aggressive and combative, and he stubbornly refused to accept Hewitt’s explanation for
the stop, or Hewitt’s authority to detain him. At that point, Hewitt became concerned for
his own personal safety and was forced to call another officer for backup.

-- 9 of 25 --

10
These facts undoubtedly provided Hewitt with an objectively reasonable
basis to arrest Thornburg for willfully resisting, delaying or obstructing a peace officer in
violation of section 148, subdivision (a)(1). (See generally People v. Quiroga (1993) 16
Cal.App.4th 961, 967 (Quiroga) [running from investigatory detention constitutes a
violation of § 148]; People v. Lloyd (1989) 216 Cal.App.3d 1425, 1429 [suspect has no
right to resist a lawful detention].) And we see no evidence that Hewitt unduly prolonged
the lawful initial detention. Therefore, we independently conclude the challenged arrest
and search incident to arrest satisfied the Fourth Amendment.
Thornburg’s reliance on In re Chase C. (2015) 243 Cal.App.4th 107
(Chase) and Quiroga, supra, 16 Cal.App.4th 961 is misplaced. Both cases dealt with the
sufficiency of the evidence to support a criminal conviction. (Chase, at pp. 114-116;
Quiroga, at pp. 971-973.) Here, the bar is lower. Hewitt needed only an objectively
reasonable belief Thornburg committed the crime to arrest him.
Moreover, in Chase, the appellate court concluded the detention of the
minors was unlawful, and the minor’s protestation was politically protected speech.
(Chase, supra, 243 Cal.App.4th at pp. 115-116.) But here, Hewitt lawfully detained
Thornburg, and Thornburg does not assert his protestations were protected speech.
In Quiroga, while the court decided the defendant’s uncooperative conduct
at a friend’s apartment did not constitute a violation of section 148, his failure to disclose
his identity during the booking process “unquestionably served to resist, delay, and
obstruct the responsible peace officer in the discharge of his duties.” (Quiroga, supra, 16
Cal.App.4th at p. 972.)
Similarly here, Thornburg not only resisted, delayed and obstructed Hewitt
in the discharge of his duties regarding the skateboarding violation, Thornburg continued
to resist, delay and obstruct Hewitt throughout the lawful detention. That Thornburg
exercised his right to refuse to consent to a patdown search by Hewitt is inconsequential.
The courts correctly denied Thornburg’s motions to suppress.

-- 10 of 25 --

11
2. The Motions to Suppress – Constitutionality of Sections 296 and 296.1
Thornburg’s buccal swab sample was collected pursuant to section 296,
subdivision (a)(2)(C) (section 296(a)(2)(C)), and section 296.1, subdivision (a)(1)(A)
(section 296.1(a)(1)(A)), both of which are part of the California Forensic Identification
Database and Data Bank Act of 1998 (Act).5 Thornburg contends these statutes violate
the Fourth Amendment on their face and as applied in this case. We are not persuaded.
The constitutionality of these statutes is being reviewed by the California
Supreme Court. In People v. Buza (2014) 231 Cal.App.4th 1446, review granted on
February 18, 2015, S223698, the court is considering whether compulsory collection of
DNA samples from all adult felony arrestees under sections 296(a)(2)(C) and
296.1(a)(1)(A), violates the Fourth Amendment or article I, section 13, of the California
Constitution. In People v. Lowe (2013) 221 Cal.App.4th 1276, review granted on March
19, 2014, S215727, the court is considering whether compulsory DNA collection under
sections 296(a)(2)(C) and 296.1(a)(1)(A) violates the Fourth Amendment, under the
analysis of Maryland v. King (2013) 569 U.S. __ [133 S.Ct. 1958] (King).
Meanwhile, we must decide this case, and King is the most recent United
States Supreme Court case which bears directly on the questions presented. King held,
“DNA identification of arrestees is a reasonable search that can be considered part of a
routine booking procedure. When officers make an arrest supported by probable cause to
hold for a serious offense and they bring the suspect to the station to be detained in
custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting
and photographing, a legitimate police booking procedure that is reasonable under the
Fourth Amendment.” (King, supra, 569 U.S. at p. __ [133 S.Ct. at p. 1980].)
5 Section 296(a)(1)(C) requires any adult arrested for or charged with any felony
to provide buccal swab samples for identification analysis by law enforecement. Section
296.1(a)(1)(A) requires the samples to be provided immediately following the arrest, or
during the booking process, or as soon as practicable after the arrest.

-- 11 of 25 --

12
The holding in King is fatal to Thornburg’s constitutional challenges to
sections 296(a)(2)(C) and 296.1(a)(1)(A). (Haskell v. Harris (9th Cir. 2014) 745 F.3d
1269 (Haskell).) As Ninth Circuit observed, “[The] facial and as-applied challenges turn
on essentially the same question: Is California’s DNA collection scheme constitutional
as applied to anyone ‘arrested for, or charged with, a felony offense by California state or
local officials?’ After [King], the answer is clearly yes.” (Id. at p. 1271.)
Notwithstanding this observation in Haskell, Thornburg would distinguish
King based upon differences between the Act and the Maryland DNA collections statutes.
However, the concurring opinion in Haskell considered and rejected all these purported
distinctions. (Haskell, supra, 745 F.3d at pp. 1271-1275 (conc. opn of Smith, J.).)
First, Thornburg observes sections 296(a)(2)(C) and 296.1(a)(1)(A) require
DNA collection from persons arrested for any felony, while Maryland’s DNA collection
statutes only apply to persons charged with a crime of violence6 or burglary. But “the
California law’s limitation to felony arrests is not meaningfully different from the
Maryland law’s restriction to certain ‘serious crimes.’” (Haskell, supra, 745 F.3d at p.
1273 (conc. opn of Smith, J.).) And King does not suggest the state’s compelling interest
in identifying the arrestee, varies “with the ‘seriousness’ of the felony at issue.” (Ibid.)
Second, he notes the Act allows police to analyze a DNA sample upon
arrest, without a prior judicial determination of probable cause, whereas in Maryland,
DNA may not be processed before the arrestee is arraigned and a judicial officer ensures
there is probable cause. But “[t]he government’s interest in identifying arrestees attaches
‘when an individual is brought into custody,’ [citation], irrespective of whether the
suspect is ultimately charged.’” (Haskell, supra, 745 F.3d at p. 1274 (conc. opn of Smith,
J.).) Thus, “these differences are not constitutionally relevant.” (Id. at p. 1273.)
6 Maryland law defines a crime of violence to include murder, rape, first-degree
assault, kidnaping, arson, sexual assault, and a variety of other serious crimes.

-- 12 of 25 --

13
Third, Thornburg remarks the Act does not provide for automatic
expungement, though in Maryland the DNA sample is destroyed if there is no finding of
probable cause, and the DNA profile is automatically expunged if there is no conviction.
These differences too are, “not constitutionally relevant.” (Haskell, supra, 745 F.3d at p.
1274 (conc. opn of Smith, J.).) “[T]here is strong reason to believe that the differences in
expungement procedures between Maryland and California are not as great as
[Thornburg] suggest[s].” (Ibid.) “In any event, the King Court did not view Maryland’s
expungement procedures as important to the constitutionality of Maryland’s law. The
Fourth Amendment search at issue is a buccal swab, and the ‘minor intrusion’ that this
‘brief’ procedure represents is not affected at all by the availability of expungement
procedures. [Citation.] While the Supreme Court also analyzed whether the processing
of the arrestee’s DNA sample intruded on his privacy interests, it did not suggest that
post-collection expungement procedures would affect the constitutional inquiry.
[Citation.]” (Ibid., citing King, supra, 569 U.S. at pp. __ [133 S.Ct. at pp. 1979-1980].)
We believe the reasoning of the concurring opinion in Haskell is
persuasive. Consequently, we conclude Thornburg’s attempt to distinguish King fails.7
Finally, leaving aside King, we note reasonableness is the ultimate measure
of the constitutionality of a governmental search. (Samson v. California (2006) 547 U.S.
843, 848; People v. Robinson (2010) 47 Cal.4th 1104, 1120; People v. Williams (1999)
20 Cal.4th 119, 125.) A violation of privacy must be balanced against the government’s
compelling interests in identifying arrestees, solving past crimes, and possibly preventing
future ones. (United Sates v. Kincade (9th Cir. 2004) 379 F.3d 813, 838-839; United
States v. Sczubelek (3rd Cir. 2005) 402 F.3d 175, 185.)
7 Thornburg also argues, solely to preserve the point for further review, “King
was wrongly decided and should be overruled.” Of course, we are required to follow
King. (Rodriguez de Quijas v. Shearson/American Exp., Inc. (1989) 490 U.S. 477, 484;
see Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

-- 13 of 25 --

14
In our estimation, the minor intrusion caused by collecting DNA from all
adult felony arrestees must give way to the government’s compelling interests. And, in
any event, we believe the buccal swab collection procedure is not materially more
invasive than fingerprinting which has long been approved for identifying arrestees.
For these reasons, we hold collection of DNA samples from adult felony
arrestees under sections 296(a)(2)(C) and 296.1(a)(1)(A) does not violate the Fourth
Amendment. These statutes are constitutional on their face and as applied in this case.
Once more, the courts correctly denied Thornburg’s motions to suppress.
3. The Confrontation Clause – People v. Sanchez and Crawford v. Washington
Thornburg contends Judge Kimberly K. Menninger erred by admitting
testimonial hearsay through the prosecution’s DNA expert witness at trial, in violation of
the California rules of evidence and the Sixth Amendment. Again, we disagree.
This case was tried before our Supreme Court decided People v. Sanchez
(2016) 63 Cal.4th 665 (Sanchez). At that time, California law permitted an expert
witness to explain to the jury the “matter” upon which he relied, even if that matter would
have ordinarily been inadmissible. (Sanchez, supra, 63 Cal.4th at p. 679.) And when
that inadmissible matter was case-specific hearsay, the expert was permitted to relate it to
the jury, on the theory it was not being admitted for the truth of the matter asserted, but
instead merely to explain the bases for the expert’s opinion. (Id. at pp. 673, 684.)
However, Sanchez concluded this paradigm was no longer tenable.
(Sanchez, supra, 63 Cal.4th at p. 679.) The court explained: “If an expert testifies to
case-specific out-of-court statements to explain the bases for his opinion, those
statements are necessarily considered by the jury for their truth, thus rendering them
hearsay. Like any other hearsay evidence, it must be properly admitted through an
applicable hearsay exception. Alternatively, the evidence can be admitted through an
appropriate witness and the expert may assume its truth in a properly worded
hypothetical question in the traditional manner.” (Id. at p. 684, fn. omitted.)

-- 14 of 25 --

15
Further, citing Crawford v. Washington (2004) 541 U.S. 36, 61-62
(Crawford), Sanchez noted admission of testimonial hearsay through an expert witness
against a criminal defendant is also subject to the Sixth Amendment’s confrontation
clause; which clause is violated, “unless (1) the declarant is unavailable to testify and (2)
the defendant had a previous opportunity to cross-examine the witness or forfeited the
right by his own wrongdoing. [Citations.]” (Sanchez, supra, 63 Cal.4th at p. 680.)
Consequently: “[A] court addressing the admissibility of out-of-court
statements must engage in a two-step analysis. The first step is a traditional hearsay
inquiry: Is the statement one made out of court; is it offered to prove the truth of the facts
it asserts; and does it fall under a hearsay exception? If a hearsay statement is being
offered by the prosecution in a criminal case, and the Crawford limitations of
unavailability, as well as cross-examination or forfeiture, are not satisfied, a second
analytical step is required. Admission of such a statement violates the right to
confrontation if the statement is testimonial . . . .” (Sanchez, supra, 63 Cal.4th at p. 680.)
A. The DNA Expert’s Testimony – Facts and Procedural Background
The prosecution’s DNA expert at trial was Jillian Zoccoli, a forensic
scientist in the DNA unit of the Orange County Crime Lab. Zoccoli was the case
manager in this case, and she reviewed the reports and notes covering each step of the
standardized DNA testing process to ensure the proper lab protocols were followed.
Matthew Nixt, another forensic scientist, also “participate[d] in the testing,” but he had
left the DNA unit before trial.
Several DNA swabs were submitted for testing, including swabs taken from
evidence collected at the Walmart crime scene. When asked about the coffee cup,
Zoccoli reviewed “the examination notes” in the case file to refresh her recollection, and
testified, “The swabs from the cup were received by Matthew Nixt on April 7, 2010.”
Defense counsel objected on hearsay and foundation grounds, and the court overruled the
objections, citing the business records exception.

-- 15 of 25 --

16
Next the prosecutor asked Zoccoli how the swabs from the coffee cup were
packaged when Nixt received them, and she replied, “It was in a sealed manila
envelope.” Defense counsel objected again on hearsay and foundation grounds, arguing,
“There’s no evidence that this witness actually saw this envelope or this package.” The
court overruled the objections, stating, “I believe it does fall within the hearsay exception
to official records and the business rule.”
Over a continuing foundation objection, Zoccoli testified the manila
envelope contained four smaller envelopes which each contained a swab. These swabs
contained DNA collected from the coffee cup and cup lid. To prepare for DNA testing,
“The swabs were excised, which means that they were cut off of the stick, and the cotton
portion was placed into a tube.” Nixt then used the Identifiler system to extract the DNA
from the cotton and to generate a DNA profile from it.
The lab also received Thornburg’s buccal swab sample.8 Again, the swabs
were cut, and the cotton separated from the stick and placed in a tube, although the record
is unclear who performed this part of the test. Zoccoli said “they” used the Identifiler
Plus (also referred to as Profiler Plus) system to extract the DNA from Thornburg’s
buccal swab sample, and they generated a single, male DNA profile from it.
Zoccoli personally compared the DNA profiles from the buccal swabs and
from the coffee cup and cup lid swabs. Zoccoli also prepared a chart showing her
comparison of the two samples (exhibit 21), which incorporated part of the DNA profile
from the coffee cup and lid samples. She testified, “[t]he same profile was obtained from
the DNA standard from Timothy Thornburg as the samples from the cup lid and the
exterior of the cup.” She calculated a one in one trillion chance any other person would
share that DNA profile.
8 The parties stipulated Thornburg’s buccal swab sample had been properly
collected, packaged in a sealed manila envelope, and booked into evidence.

-- 16 of 25 --

17
On cross-examination, Zoccoli admitted Nixt was not the only other
forensic analyst who was involved in different stages of the DNA testing procedure, but
only Nixt produced a report. Regardless, Zoccoli herself reviewed the data, and she
personally performed the DNA comparison.
B. Step One - The Traditional Hearsay Analysis
Thornburg argues: “Nixt’s report was inadmissible hearsay; it did not fall
under the business record exception.” (Evid. Code, § 1271.) Not so.
Nixt’s report was not marked for identification or admitted into evidence,
and it is not part of the appellate record. Based upon Zoccoli’s trial testimony, it appears
Nixt’s report consisted of two categories of information.
The first category was the DNA profile generated by the Identifiler system
from the coffee cup and lid samples. Nothing suggests it contained any statement from
Nixt attesting to the validity of the data shown. Further, the Identifiler system is not a
declarant, and the data printout is not a statement. So, the Identifiler DNA profile in
Nixt’s report is not hearsay. (People v. Lopez (2012) 55 Cal.4th 569, 583 (Lopez).)
The second category was the notes written by Nixt as a record of his own
observations and actions; and they included the details of how and when he received the
DNA swabs from the coffee cup and lid, and what he did to prepare them for analysis by
the Identifiler system. Nixt’s notes are hearsay (Evid. Code, §§ 135, 225, 1200), but they
were properly admitted under the business records exception (Evid. Code, § 1271).
Zoccoli’s testimony proved Nixt’s notes were made in the regular course of
the lab’s business, at or near the time of the act, condition or event recorded. (Evid.
Code, § 1271, subds. (a), (b).) She was the custodian of Nixt’s notes, and she explained
their identity and mode of preparation. (Id., subd. (c).) Finally, Zoccoli said Nixt’s work
was performed and his notes were prepared, using standard lab procedures, and subject to
multiple layers of review, all of which indicates trustworthiness. (Id., subd. (d).)
Nothing more was required to apply the business records exception.

-- 17 of 25 --

18
C. Step Two - The Testimonial Hearsay Analysis
Thornburg next argues Nixt’s report was testimonial hearsay, and Zoccoli’s
testimony about it violated his Sixth Amendment rights.9 He is simply mistaken.
As noted, the Identifiler DNA profile in Nixt’s report is not hearsay at all.
But even assuming it is hearsay and testimonial, no Sixth Amendment violation appears.
“Not yet considered by the United States Supreme Court is whether the prosecution’s use
at trial of a machine printout violates a defendant’s right to confront and cross-examine
the machine’s operator when, as here, the printout contains no statement from the
operator attesting to the validity of the data shown.” (Lopez, supra, 55 Cal.4th at p. 583.)
The California Supreme Court has agreed with other federal appellate
courts that have upheld the use of such printouts. (Lopez, supra, 55 Cal.4th at p. 583.)
“Because, unlike a person, a machine cannot be cross-examined, here the prosecution’s
introduction into evidence of the machine-generated printouts shown in . . . [nontestifying
analyst’s] laboratory report did not implicate the Sixth Amendment’s right to
confrontation.” (Ibid.) This logic applies with even greater force here, because the
prosecution did not introduce the Identifiler-generated DNA profile into evidence.
Nixt’s notes of his own observations and actions are not testimonial,
because they do not “meet the high court’s requirement that to be testimonial the out-of-
court statement must have been made with formality or solemnity. [Citations].” (Lopez,
supra, 55 Cal.4th at p. 584; see Davis v. Washington (2006) 547 U.S. 813, 830, fn. 5
[“formality is indeed essential to testimonial utterances”]; Melendez-Diaz v.
Massachusetts (2009) 557 U.S. 305, 310 (Melendez-Diaz) [stressing laboratory certificate
determined to be testimonial was “a ‘“solemn declaration or affirmation”’”].)
9 The Attorney General argues Thornburg forfeited his Sixth Amendment claim
by failing to object on this grounds below. We elect to address the merits because
Sanchez changed California law governing expert witness hearsay testimony, and
because Thornburg asserts any forfeiture was due to ineffective assistance of counsel.

-- 18 of 25 --

19
Nixt’s notes are like the nontestifying blood-alcohol analyst’s chain of
custody log sheet notes, that our Supreme Court found to be nontestimonial in Lopez.
(Lopez, supra, 55 Cal.4th at pp. 582-584.) Neither the testifying or nontestifying analyst
signed, certified, or swore to the truth of the notes at issue, which showed only numbers,
abbreviations, and one-word entries under specified headings, and thus were “nothing
more than an informal record of data for internal purposes . . . .” (Id. at p. 584.) “Such a
notation, in our view, is not prepared with the formality required by the high court for
testimonial statements.” (Ibid.)
Nixt’s notes are also like the nontestifying pathologist’s notes describing
his anatomical and physiological observations about the condition of the body, that were
held to be nontestimonial in People v. Dungo (2012) 55 Cal.4th 608, 619. Our Supreme
Court explained: “These statements, which merely record objective facts, are less formal
than statements setting forth a pathologist’s expert conclusions. They are comparable to
observations of objective fact in a report by a physician who, after examining a patient,
diagnoses a particular injury or ailment and determines the appropriate treatment. Such
observations are not testimonial in nature.” (Id. at p. 619.)
Nixt’s notes are not like the nontestifying laboratory certificates determined
to be testimonial in Melendez-Diaz and Bullcoming v. New Mexico (2011) 564 U.S. 647
(Bullcoming). In Melendez-Diaz, “[t]he certificates were sworn to before a notary” by
the testing analysts who had prepared the certificates. (Melendez-Diaz, at p. 308.) And
in Bullcoming, the laboratory analyst’s certificate regarding the result of his analysis was
“‘formalized’ in a signed document” that expressly referred to court rules providing for
the admissibility of such certificates in court. (Bullcoming, at p. 665.) Such formality is
lacking here. Hence, we need not consider whether Nixt’s notes were prepared “for the
primary purpose of accusing a targeted individual.” (Williams v. Illinois (2012) 567 U.S.
50, 84 (plur. opn. of Alito, J.) (Williams); see Lopez, supra, 55 Cal.4th at p. 582.)

-- 19 of 25 --

20
Lastly, in People v. Barba (2013) 215 Cal.App.4th 712 (Barba), the court
conducted an exhaustive analysis of whether admission of nontestifying DNA analyst
reports violates the Sixth Amendment after Melendez-Diaz, Bullcoming, and Williams.
Thornburg did not cite Barba in his opening or reply briefs. But the Attorney General
did briefly mention Barba so we will too. Suffice it to say, “So long as a qualified expert
who is subject to cross-examination conveys an independent opinion about the test
results, then evidence about the DNA tests themselves is admissible.” (Id. at p. 742.)
Therefore, we conclude the court did not err in permitting Zoccoli to relate
to the jury details of the Identifiler DNA profile or the notes contained in Nixt’s report.
4. The Sentencing Issue – Section 654
The court imposed sentence on count 1 (robbery) and count 2 (burglary),
but was required to stay the sentence on count 2. (§ 654, subd. (a); People v. Centers
(1999) 73 Cal.App.4th 84, 98-99; People v. Radil (1977) 76 Cal.App.3d 702, 713.)
DISPOSITION
The sentence imposed on count 2 is stayed pursuant to section 654. The
clerk of the superior court is directed to modify the abstract of judgment to reflect the
stay, and to forward a copy of the modified abstract to the Department of Corrections and
Rehabilitation. As modified, the judgment is affirmed.
___________________________
THOMPSON, J.
I CONCUR:
___________________________
ARONSON, J.

-- 20 of 25 --

1
O’LEARY, P.J., Concurring and Dissenting.
I concur in the result but disagree with the majority’s reasoning. Although
I agree Timothy Lee Thornburg’s arrest was lawful, I disagree there was probable cause
to arrest him for violating Penal Code section 148, subdivision (a). Thus, I respectfully
dissent from that portion of the majority opinion’s reasoning.
The facts are largely uncontested. Hewitt testified he observed Thornburg
skateboarding in the street in violation of San Clemente Municipal Code section
10.64.020, subdivision (A). A violation of this code section is an infraction that normally
results in a citation at the scene. Hewitt approached Thornburg from behind to make a
pedestrian stop. Hewitt first turned on the steady red emergency light on the top of his
patrol vehicle.
The majority indicates when Hewitt turned on his red light, Thornburg
turned around. (Maj. opn. ante, at p. 9.) Yet, Hewitt testified that it was not until he had
activated “the flashing red and blue lights and [he] had [chirped] [his] siren to get
[Thornburg’s] attention” that Thornburg turned around. Hewitt could not recall if
Thornburg turned around in response to the flashing red and blue lights, but he was clear
Thornburg looked back when he chirped his siren. When Thornburg turned around, he
waved his hand, turned back around the other way, and continued to skateboard down the
street. At this point, Hewitt used his loudspeaker and told Thornburg to stop. Thornburg
put down one of his feet and slowed down, but he did not immediately stop. Hewitt
estimated that approximately 15 seconds passed from the time Thornburg turned around
in response to the flashing lights and he came to a complete stop.
After Thornburg stopped, Hewitt approached him and asked Thornburg to
put his skateboard down. Thornburg complied immediately and without protest.
Thornburg asked Hewitt why he stopped him. Hewitt explained skateboarding in the
street was a violation of the San Clemente Municipal Code. Thornburg told Hewitt

-- 21 of 25 --

2
another officer told him it was okay to skateboard in the street. Thornburg disputed
Hewitt’s understanding of the municipal code and continued to argue with Hewitt. This
discussion lasted about 30 seconds. Hewitt noticed bulges in Thornburg’s front pants
pockets as round as the size of a baseball. As Thornburg continued to argue the legality
of the stop, Hewitt called for backup. Hewitt asked Thornburg for permission to search
him, and Thornburg refused. Thornburg continued to be verbally aggressive saying he
was tired of being harassed by the police and was waving his arms in the air.
Hewitt again asked Thornburg for permission to search him, and Thornburg
refused. After Thornburg refused, Hewitt asked Thornburg several more times if he
could search him. When backup arrived, Hewitt continued to explain to Thornburg that
he had a right to search him. Thornburg never gave permission. Hewitt directed
Thornburg to sit on the curb in front of his police unit, and Thornburg complied.
At this point, Hewitt called his sergeant to discuss the issue of delaying an
officer in his duties. Hewitt testified the sergeant told him that “[I]t’s a [Penal Code
section] 148 [violation] if he’s denying me to pat him down in the course of my duty.”
Hewitt walked back to Thornburg, who was sitting on the curb with the back-up officer
standing next to him. Hewitt again asked Thornburg if he was going to allow a patdown
search. When Thornburg did not consent, Hewitt arrested him for delaying an officer in
the course of his duties. Nothing in the record indicates Thornburg resisted in any way
when Hewitt arrested him.
Relying on Thornburg’s delay in responding to Hewitt as the basis for the
arrest, the Attorney General argues, “By taking approximately 30 seconds [from the time
Hewitt chirped his siren] to finally come to a complete stop, [Thornburg] willfully
delayed a peace officer in violation of [Penal Code] section 148, subdivision (a)(1).” The
majority apparently agrees and concludes there was ample evidence to support the trial
court’s rulings. (Maj. opn. ante, at p. 9.) The ample support the majority cites is

-- 22 of 25 --

3
Thornburg’s delay in stopping, his aggressive and combative behavior, and his stubborn
refusal to accept Hewitt’s explanation for the stop and detention. (Maj. opn. ante, at pp.
9-10.) I do not find ample support for the arrest.
I agree with the majority that we must examine the events leading to the
arrest, and then decide “‘“whether these historical facts, viewed from the standpoint of an
objectively reasonable police officer, amount to” probable cause . . . .’ [Citation.]”
(People v. Turner (2017) 13 Cal.App.5th 397, 404-405.) (Maj. opn. ante, at p. 9.) A
delay of 15 seconds was insufficient to establish a reasonable person would have a strong
suspicion that a violation of Penal Code section 148, subdivision (a), had been
committed. (Maj. opn. ante, at p. 10.) The majority indicates Thornburg engaged in
“aggressive and combative” behavior. (Maj. opn. ante, at p. 9.) I find no facts in the
record to support this conclusion.
Thornburg’s only alleged aggressive behavior was verbal aggression in the
form of argument. And Thornburg’s only physical movement was “waving his arms”
while protesting his arrest. I find neither of these facts sufficient to conclude Thornburg
was aggressive and combative or otherwise threatening Hewitt. There is ample evidence
Thornburg was argumentative and Thornburg insisted he did not believe he violated the
municipal code and maintained another officer had told him “it was okay to do so as long
as he obeyed the rules.” But that was insufficient evidence of a threat to Hewitt.
When Hewitt asked Thornburg to put down his skateboard, Thornburg
complied. When Hewitt directed Thornburg to sit on the curb in front of the patrol car,
Thornburg complied. Nothing in the record suggests Thornburg offered any resistance as
Hewitt arrested him. That Thornburg insisted he believed his conduct was lawful based
on what another police officer had told him is not conduct that an objectively reasonable
police officer would believe constitutes probable cause to arrest an individual for a
violation of Penal Code section 148, subdivision (a). The record is very clear that both

-- 23 of 25 --

4
Hewitt and his sergeant believed the refusal to give consent was a violation of Penal
Code section 148, subdivision (a). This suggests that both Hewitt and his sergeant did
not even have a subjective belief the delay in stopping constituted a violation of Penal
Code section 148, subdivision (a).
When a peace officer is investigating a suspect for criminal activity, and the
officer has a reasonable belief the person may be armed and dangerous, “a carefully
limited search of the outer clothing” is permissible. (Terry v. Ohio (1968) 392 U.S. 1, 30
(Terry).) Hewitt testified he wanted to search Thornburg because “he had bulges in his
pockets” and he was “arguing the issue for the stop.” Hewitt conceded none of the items
seized during the search incident to arrest could reasonably be mistaken for a weapon
inside someone’s pocket. If Hewitt had a reasonable belief Thornburg was armed and
dangerous, he could have conducted a patdown search without obtaining consent. But
that would only have authorized Hewitt “to conduct a carefully limited search of the outer
clothing of such persons in an attempt to discover weapons which might be used to
assault him.” (Terry, supra, 392 U.S. at p. 30.)
I recognize police officers’ lives and safety “weigh heavily” in balancing
Fourth Amendment considerations and “[t]he judiciary should not lightly second-guess a
police officer’s decision to perform a patdown search for officer safety.” (People v.
Dickey (1994) 21 Cal.App.4th 952, 957.) But the facts do not support a reasonable belief
Hewitt thought Thornburg was armed or dangerous. What the facts clearly suggest is that
Hewitt was intent on seeing what was in Thornburg’s pockets. Had Hewitt simply
written Thornburg a citation for violation of the municipal code, no one would have been
delayed. Had Hewitt conducted a patdown search for officer safety, Hewitt likely would
not have felt any item he could identify as a weapon. Intrusion into Thornburg’s pockets
occurred only because of his arrest.

-- 24 of 25 --

5
Although I find there was no probable cause to arrest Thornburg for
violating Penal Code section 148, subdivision (a), the analysis cannot end with this
finding. In Atwater v. City of Lago Vista (2001) 532 U.S. 318, 323 (Atwater), the United
States Supreme Court upheld a custodial arrest for a violation of Texas’s seatbelt law, an
offense punishable by a fine of not less than $25 nor more than $50. “If an officer has
probable cause to believe that an individual has committed even a very minor criminal
offense in his presence, he may, without violating the Fourth Amendment, arrest the
offender.” (Id. at p. 354.)
In People v. McKay (2002) 27 Cal.4th 601, 608 (McKay), our Supreme
Court addressed the issue of arrest in the context of a Vehicle Code section stop. The
Supreme Court noted that with “the passage of Proposition 8, we are not free to exclude
evidence merely because it was obtained in violation of some state statute or state
constitutional provision.” (Id. at p. 608.) Relying on Atwater, the McKay court found
“there is nothing inherently unconstitutional about effecting a custodial arrest for a fine-
only offense.” (Id. at p. 607.) The court held that Atwater foreclosed a defendant from
challenging a custodial arrest on Fourth Amendment grounds following a valid traffic
stop. (Id. at p. 607.)
Based on the evidence presented in the trial court, Hewitt made a valid
traffic stop. Although I conclude there was no probable cause to arrest him for violating
Penal Code section 148, subdivision (a), under Atwater and McKay, Thornburg was
subject to arrest because Hewitt observed him violating a municipal code section. On
this basis, I would affirm the lower court’s denial of the motion to suppress.
___________________________
O’LEARY, P. J.

-- 25 of 25 --