People v. Mooring
People v. Mooring
Opinion of the Court
*932In 2011, law enforcement officers searched the home of Lanita Denise Davis and Darrell James Mooring, (Mooring, Sr.) and found over 4,000 prescription pills, many of which were in prescription pill bottles. Davis and Mooring Sr.'s names were on some pill bottle labels; other labels bore the name of their son, Darrell Ellis Mooring Jr. (Darrell). Using Ident-A-Drug, a subscription-based, login-controlled Web site, the prosecution's criminalist presumptively identified the pills as various controlled substances.
A jury convicted Davis and Darrell (collectively, defendants) of five counts of possessing a controlled substance for sale ( Health & Saf. Code, § 11351 (dihydrocodeinone/Vicodin, codeine, morphine, methadone, and oxycodone))
Defendants appeal, and join each other's briefs. They contend: (1) the court erred by admitting statements Davis made to police in 2003; (2) the criminalist's testimony regarding the content of the Ident-A-Drug Web site was inadmissible hearsay, and its admission violated state hearsay law and their confrontation rights under the Sixth Amendment to the federal constitution; and (3) the prosecution failed to prove they possessed the controlled substances. Darrell claims the court erred by imposing an enhancement for a prior drug-related conviction (§ 11370.2, subd. (a)), and by denying his Romero motion.
We conclude the Ident-A-Drug Web site comes within the published compilation exception to the hearsay rule set forth in Evidence Code section 1340, and that defendants' confrontation clause claim fails *620because the challenged hearsay is not testimonial. We agree with defendants that the prosecution did not establish dihydrocodeinone/Vicodin is a controlled substance under sections 11055 or 11056 and, as a result, defendants' conviction for possessing a controlled substance for sale ( § 11351 (Count One)) must be reversed and the cause remanded for resentencing. In all other respects, we affirm. *933FACTUAL AND PROCEDURAL BACKGROUND
An indictment charged defendants with possessing dihydrocodeinone, a controlled substance, for sale ( § 11351 (Count One)); possessing diazepam, a designated controlled substance, for sale (§ 11375, subd. (b)(1) (Count Two)); possessing codeine, a controlled substance, for sale ( § 11351 (Count Three)); possessing morphine, a controlled substance, for sale ( § 11351 (Count Four)); possessing methadone, a controlled substance, for sale ( § 11351 (Count Five)); and possessing oxycodone, a controlled substance, for sale ( § 11351 (Count Six)). The indictment alleged sentencing enhancements for Darrell's two prior drug-related convictions (§ 11370.2, subd. (a)), and his prior serious felony conviction ( Pen. Code, §§ 667, subds. (b) - (i), 1170.12 ).
Prosecution Evidence
In January 2011, Richmond Police Sergeant Eduardo Soto was assigned to the narcotics unit. He had significant experience investigating suspected narcotics sales. As Soto was preparing to execute a search warrant at Davis and Mooring Sr.'s house, he saw a woman park her car outside the house. She went inside the house for a minute, came back outside, and drove away. Later, another person parked outside the house, went inside, came out about a minute later, and left. Soto believed narcotics were being sold in the house.
Law enforcement officers knocked on the front door of the house and Mooring, Sr. answered. Inside the house, officers found mail belonging to "Darrell Mooring" and Davis. They also found over 4,000 prescription pills. Some pills were in prescription pill bottles with labels bearing the names "Lanita Davis," "Darrell Mooring," "Darrell Mooring, Sr." and "Darrell Mooring, Jr."
Darrell arrived while the officers searched the house. The officers gave Darrell a property receipt for the seized items. Later that day, Darrell came to the police station and asked for "his pills ... that [had been] taken" from the residence. When the police officer refused to return the pills, Darrell became angry.
A. Expert Testimony
Shana Meldrum, a criminalist at the Contra Costa Sheriff's Crime Lab (crime lab) testified as an expert in presumptive identification of prescription *934pills. She had 10 years of experience as a criminalist, and over 400 hours of training in analyzing and identifying suspected controlled substances. Meldrum received training on the references the crime lab uses to presumptively identify prescription pills. The crime lab uses a reference-the Ident-A-Drug *621Web site-to presumptively identify pharmaceutical pills. The Web site contains information about, and images of, pharmaceutical pills derived from the FDA and pharmaceutical pill manufacturers.
To presumptively identify a prescription pill, the crime lab compares the pill's "individual characteristics"-its color, shape, and markings-to images on Ident-A-Drug. Meldrum explained: "I type the markings on the pill into the website and it gives me either one match or a list of possible matches that the pill may be. And based on the color and the shape and the imprints on the pill, I make a determination as to whether or not to report that out as a presumptive identification." This method is generally accepted in the scientific community, and has been reviewed by the crime lab's accrediting board.
Meldrum compared the markings, imprints, coloring, and shapes of the prescription pills seized from the residence to the information on Ident-A-Drug. Meldrum presumptively identified the pills as follows: (1) 1,930 dihydrocodeinone (or Vicodin ), a controlled substance;
Richmond Police Sergeant Tim Simmons testified as an expert on possessing prescription pills for sale. Simmons reviewed defendants' prescription records from 2009 to 2011, which showed they obtained the "maximum allowable" number of certain opiate-based drugs and muscle relaxers every month. Some prescriptions were billed to an insurance carrier; others were paid for in cash. Simmons opined defendants possessed the pills for sale *935based on: (1) the quantities for each individual drug, which were beyond what defendants could have safely ingested; (2) the frequency with which defendants filled prescriptions; (3) irregularities in the billing and payment for the prescriptions; and (4) the police scanner found in the house.
B. The 2003 Incident at Davis's Home
In 2003, Richmond Police Detective Darren Monahan executed a search warrant at Davis's house. Davis was handcuffed. In a bedroom, Monahan found a large amount of cash and prescription pill bottles containing 134 pills. The names on the prescription labels did not match the names of anyone in the house. When Monahan asked Davis "who the prescription pills belonged to," she responded "they belonged to her." Monahan Mirandized Davis and asked her why she had the prescription pills. Davis said "she gets them from various people and then resells *622them for extra money." No charges were filed against Davis based on the 2003 incident.
With regard to the evidence of the 2003 incident, the court admonished the jury: "with respect to any statement allegedly made by Ms. Davis, if, in fact, it is believed by you, it is solely to be used in evaluating whether or not Ms. Davis is guilty or not guilty of the charges. It is not to be used in any way in evaluating whether or not [Darrell] is guilty or not guilty of the charges."
Defense Evidence
In 2010 and 2011, Dr. Nishant Shah prescribed methadone to Mooring, Sr. Darrell was a patient of Dr. Edward Manougian from 2008 to 2011. In 2009 and 2010, Darrell had chronic pain syndrome. Dr. Manougian prescribed Darrell up to 800 pills a month, comprised of Vicodin, OxyContin, a muscle relaxant, and Valium. During that same time period, Dr. Manougian also treated Davis for "chronic pain." In January 2011, he prescribed Davis hundreds of prescription pills, including oxycodone, Valium, and a Vicodin-like drug. Dr. Manougian believed defendants were using the prescribed pills, not selling them. In 2007, certain pharmacies stopped filling Dr. Manougian's prescriptions. In 2012, Dr. Manougian's medical license was revoked in part because he had "not engaged in any formal course of study" regarding "treatment of pain or pain management" and had no "special training or experience in addiction."
Verdict and Sentencing
The jury convicted defendants of the charges. The court placed Davis on five years' probation, with the condition she serve a one-year jail terml. The *936court found true the allegations regarding Darrell's prior convictions and denied his Romero motion. The court sentenced him to 10 years in state prison, comprised of the following: four years on Count One ( § 11351 ); and two three-year enhancements (§ 11370.2, subd. (a)).
DISCUSSION
I.
II.
Admitting the Criminalist's Testimony Did Not Violate State Hearsay Law or the Confrontation Clause
Relying on People v. Sanchez (2016)
*623Under Sanchez , "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 *937forfeiture, are not satisfied, a second analytical step is required. Admission of such a statement violates the right to confrontation if the statement is testimonial hearsay ." ( Sanchez, supra, 63 Cal.4th at p. 680,
A. The Ident-A-Drug Web Site Comes Within the "Published Compilation" Exception to the Hearsay Rule
Defendants contend Meldrum's testimony relating the content of the Ident-A-Drug Web site was hearsay offered to prove its truth, i.e., that the pills were certain pharmaceuticals. The Attorney General argues Meldrum's testimony fell within the "published compilation" exception to the hearsay rule, codified in Evidence Code section 1340. We agree.
Evidence Code section 1340 provides: "Evidence of a statement, other than an opinion, contained in a tabulation, list, directory, register, or other published compilation is not made inadmissible by the hearsay rule if the compilation is generally used and relied upon as accurate in the course of a business as defined in [Evidence Code] Section 1270." ( Evid. Code, § 1340.) Examples of "published compilations" include a spray paint can label including hazardous substances ( In re Michael G. (1993)
The elements of the published compilation exception are: "(1) the proffered statement must be contained in a 'compilation'; (2) the compilation must be 'published'; (3) the compilation must be 'generally used ... in the course of a business'; (4) it must be 'generally ... relied upon as accurate' in the course of such business; and (5) the statement must be one of fact rather than opinion." ( People v. Franzen (2012)
First, Ident-A-Drug is a compilation. To compile means " '[t]o collect and put together (materials), so as to form a treatise; to collect into a volume,' and '[t]o make, compose, or construct (a written or printed work) by arrangement of materials collected from various sources.' " ( Franzen, supra, 210 Cal.App.4th at p. 1210,
Second, the compilation is "published" on the Internet. ( Franzen, supra, 210 Cal.App.4th at p. 1210,
Lastly, the Ident-A-Drug Web site is "generally ... relied upon as accurate" by the crime lab in conducting its business. ( Evid. Code, § 1340.) Meldrum's testimony that she used Ident-A-Drug over 2,000 times to presumptively identify prescription pills supports an inference the crime lab relies on the Web site's accuracy. Meldrum also testified the use of Ident-A-Dent to presumptively identify prescription drugs is generally accepted in the scientific community. Furthermore, Ident-A-Drug has a commercial incentive to be accurate and reliable because subscribers pay to access the Web site. Here, "[t]rustworthiness is reasonably assured by the fact that the business community generally uses and relies upon the compilation and by the fact that its author knows the work will have no commercial value unless it is accurate." ( Miller v. Modern Business Center, supra, 147 Cal.App.3d at p. 635,
*939Relying on Franzen , defendants contend Ident-A-Drug is not a published compilation under Evidence Code section 1340. In Franzen , a law enforcement officer received a telephone call and wanted to match the phone number to the caller. The officer " 'ran that phone number in "Entersect", an online database, and the database listed that cell phone number as belonging to' " the defendant. ( Franzen, supra, 210 Cal.App.4th at p. 1204,
Franzen explained: "apart from consisting of a collection of information, [the database] has none of the characteristics of a 'compilation' in the modern sense. [¶] To treat a database as a published compilation *625merely because it is accessible through a website would dramatically undermine the delicate balance of competing policies reflected in the hearsay rule, its exceptions, and the particular exception here. ... [T]he Internet, provides ready access to information of all shades and degrees of accuracy, from the indisputably true to the inarguably false. Of particular concern in a setting like the present one is the persistence in the digital universe of outdated information. A person's real-world link with a telephone number may be broken when she moves or changes carriers. ... We suspect that methods exist for weeding out such obsolete data and thus increasing the accuracy of the data retrieved, but there was no evidence to this effect here. On the contrary, the evidence was that the site reported 'whatever information that's out there within the internet that [a phone number] might be assigned to.' " ( Franzen, supra, 210 Cal.App.4th at pp. 1210-1212,
In our view, Franzen is easily distinguishable. There, the information in the database was available to anyone with an Internet connection and the source of the information was unknown and potentially inaccurate. ( Franzen, supra, 210 Cal.App.4th at pp. 1209, 1211,
In Franzen , there was "a complete failure of proof with respect to the use and reliance components of the cited exception." ( *940Franzen, supra , 210 Cal.App.4th at p. 1214,
Defendants' reliance on People v. Stamps (2016)
*626Stamps does not assist defendants, because it did not consider whether a published drug reference guide accessible through a subscription Internet service is a published compilation within the meaning of Evidence Code section 1340. "It is axiomatic that an opinion does not stand for a proposition the court did not consider." ( People v. Taylor (2010)
Nor are we persuaded by defendants' reliance on cases from other jurisdictions, including People v. Hard (Colo.Ct.App. 2014)
*941First, the Hard court noted the prosecution did not argue "using Drugs.com [was] a necessary means of identifying drugs." Next, the court concluded the prosecution failed to establish the information on the Web site was "sufficiently reliable for the purpose of identifying a controlled substance." ( Hard,
Hard has no application here. In Hard , the prosecution failed to prove the Web site was necessary or reliable. Meldrum's testimony established the necessity, reliability, and trustworthiness of the information on the Ident-A-Drug Web site. We conclude the Ident-A-Drug Web site comes within the published compilation exception to the hearsay rule codified in Evidence Code section 1340.
B. There Was No Confrontation Clause Violation Because the Challenged Hearsay Is Not Testimonial
The second prong of the Sanchez analysis asks: "If an out-of-court statement is hearsay because it is being offered for the truth of the facts it asserts, is that statement testimonial hearsay?" ( Sanchez, supra, 63 Cal.4th at p. 687,
Examples of testimonial statements include " 'ex parte in-court testimony *627or its functional equivalent-that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially,' [citation]; 'extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions,' [citation]; 'statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.' " ( Crawford v. Wa s hington (2004)
Defendants' reliance on Melendez-Diaz, supra,
In Bullcoming , an analyst tested the blood sample of an alleged drunk driver and prepared a lab report attesting he performed the test using normal protocol. The analyst signed the report, which was admitted into evidence through a surrogate analyst "who was familiar with the laboratory's testing procedures, but had neither participated in nor observed the test on [the] blood sample." ( Bullcoming,
III.
With the Exception of Count One, the Prosecution Established Defendants Possessed Controlled Substances
Defendants argue the prosecution did not prove beyond a reasonable doubt the pills were controlled substances.
A. Chemical Testing Was Not Necessary to Establish Defendants Possessed Controlled Substances
First, defendants contend insufficient evidence supports the convictions because the pills were not chemically tested. Sections 11351 and 11375 prohibit possession of a controlled substance for sale. To establish a violation of these statutes, "the prosecution must prove beyond a reasonable doubt that (1) the defendant exercised dominion and control over the controlled substance, (2) the defendant was aware that he or she was in possession of a controlled substance, (3) the defendant was aware of the nature of a controlled substance, (4) the controlled substance was in an amount sufficient to be used for sale or consumption as a controlled substance, and (5) the defendant possessed a controlled substance with the specific intent to sell it." ( People v. Parra (1999)
As defendants acknowledge, chemical analysis is not always required to establish the identity of a controlled substance. The essential elements of possession of a controlled substance " 'may be established circumstantially.' " (See People v. Palaschak (1995)
Here, Meldrum presumptively identified the prescription pills and testified she did not believe the pills were counterfeit. Dr. Manougian prescribed defendants numerous prescription pills including Vicodin, OxyContin, and Valium.
*629Thousands of pills-some of which were in prescription pill bottles with labels bearing defendants' names-were found in the residence. In light of this evidence, chemical testimony was not necessary to prove defendants possessed the controlled substances.
People v. McChristian (1966)
B. Sufficient Evidence Demonstrates Defendants Possessed Methadone and Morphine
Defendants claim insufficient evidence supports the methadone and morphine convictions (Counts Four and Five, respectively) because there was no *945evidence "connecting" them to methadone and morphine, and because these pharmaceuticals were "attributable" to Mooring, Sr. We are not persuaded. Methadone and morphine were found at Davis and Mooring, Sr.'s home. This evidence is sufficient to establish Davis had constructive possession. ( People v. Busch (2010)
C. The Prosecution Did Not Establish Dihydrocodeinone/Vicodin Is a Controlled Substance Under Sections 11055 or 11056
Defendants argue Count One must be reversed because the prosecution failed *630to establish dihydrocodeinone/Vicodin is a controlled substance. We agree.
As relevant here, section 11351 makes it a felony to possess for sale the controlled substances "specified in subdivision (b) or (c) of Section 11055" or in "in subdivision (h) of Section 11056."
Our high court's decision in Davis, supra,
The California Supreme Court agreed. First, it noted "the jury may find that MDMA is a controlled substance or analog based on evidence of MDMA's chemical composition or its effects on the user. Here, ... the record contains neither a stipulation nor testimony establishing that MDMA meets the definition of a controlled substance or analog." ( Davis, supra, 57 Cal.4th at p. 359,
Davis ultimately concluded: "Because it is not specifically listed in any schedule, evidence of MDMA's chemical name, standing alone, is insufficient to prove that it contains a controlled substance or meets the definition of an analog. '[T]he matter in issue is ... not within the common knowledge of laymen.' [Citation.] Thus, it was incumbent on the People to introduce competent evidence or a stipulation about MDMA's chemical structure or effects. Without such evidence, there was no rational basis for a jury of laypersons to infer that 3,4-methylenedioxymethamphetamine contains methamphetamine or amphetamine, *631or that it has a substantially similar chemical structure or effect to methamphetamine or amphetamine." ( Davis, supra, 57 Cal.4th at pp. 361-362,
Here, defendants were charged with possessing "Dihydrocodeinone, a controlled substance," for sale. The jury was told dihydrocodeinone would be referred to as Vicodin, and it convicted defendants of possessing "dihydrocodeinone/ Vicodin" for sale. Neither dihydrocodeinone nor Vicodin *947are listed as controlled substances in sections 11055 or 11056. As in Davis , "[a]ll the jury had before it was a chemical name not listed in any schedule of the code." ( Davis, supra, 57 Cal.4th at p. 360,
Defendant's conviction for possessing dihydrocodeinone/Valium for sale ( § 11351, Count One) must be reversed, and the cause remanded for resentencing.
IV.-V.
DISPOSITION
Defendants' conviction for possession of dihydrocodeinone/Vicodin ( § 11351, Count One) is reversed, and the cause is remanded for resentencing. In all other respects, the judgment is affirmed.
We concur:
Needham, J.
Bruiniers, J.
All undesignated statutory references are to the Health and Safety Code. We refer to Darrell by his first name for clarity.
Soto booked several pill bottles into evidence, including: (1) one prescribed to "Mooring, Darrell" and containing methadone ; (2) one prescribed to "Lanita Davis" and containing hydrocodone ; and (3) one prescribed to "Darrell Mooring, Jr." and containing hydrocodone.
Prescription pill manufacturers register a pill's markings, color, and shape with the Food and Drug Administration (FDA). The Ident-A-Drug Web site is located at: < http://identadrug.therapeuticresearch.com> (as of Sept. 27, 2017).
A similar method of identifying a prescription pill is comparing the pill's marking to images in the Physicians' Desk Reference, an encyclopedia of drugs.
Dihydrocodeinone is an opiate-based drug; its "common name" is Vicodin.
See footnote *, ante.
The parties filed supplemental briefs discussing the application of Sanchez to Meldrum's testimony.
Melendez-Diaz v. Massachusetts (2009)
Courts in other jurisdictions have reached similar results. (U.S. v. Schrock (6th Cir. 1988)
Defendants' challenge to their conviction for possessing codeine (Count Three) fails because section 11055 subdivision (b)(1)(G) lists codeine as a controlled substance, and Meldrum presumptively identified 113 pills as "codeine."
Section 11351 also prohibits the possession of Schedule III drugs for sale. Schedule III drugs are listed in Section 11056. Section 11056, subdivision (e) prohibits the possession of dihydrocodeinone when contained in a compound or mixture with other substances in certain specified proportions. (§ 11056, subd. (e)(1)-(4).) Meldrum testified dihydrocodeinone is a Schedule III drug, but she did not offer any evidence regarding the weight of dihydrocodeinone or whether it was combined with other substances as required by section 11056.
See footnote *, ante.
Reference
- Full Case Name
- The PEOPLE, and v. Darrell Ellis MOORING, Jr., and
- Cited By
- 15 cases
- Status
- Published