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Name: People v. Gutierrez
Case #: B211622
Court: CA Court of Appeal
District 2 DCA
Division: 1
Opinion Date: 09/09/2009
Subsequent History: review granted 12/2/09 (S176620)

Admission of the narrative portion of a sex assault exam was a violation of the right to confrontation but was not prejudicial error. In his appeal from his conviction for multiple sex offenses, Gutierrez contended that his Sixth Amendment right to confrontation was violated by admission of testimony regarding the DNA and sexual assault reports by a witness who had not initially analyzed the data and prepared the reports. The appellate court found first that People v. Geier (2007) 41 Cal.4th 555 was still controlling law after Melendez-Diaz (2009) __ U.S. __ [129 S.Ct. 2527]. The two cases are distinguishable because in Geier, the supervisor of the analyst who prepared the reports testified at trial. Also, Melendez-Diaz involved reports prepared a week after the tests were performed, where Geier involved contemporaneous reports prepared at the time of the tests. Here, as in Geier, the supervisor testified at trial and was subject to cross-examination. Also, the report was prepared at the time the tests were performed. Therefore, the contemporaneous notations about the observations of the victim’s body were not testimonial under Geier. However, the parts of the narrative portion of the report that constituted a recordation of past events were testimonial. However, to the extent that the admission of this narrative portion violated Gutierrez’s right to confrontation, the error did not result in prejudicial error. The narrative report was largely duplicative of the victim’s trial testimony. Since nothing in the narrative portion of the report was potentially damaging to the case its admission was not prejudicial error.