People v. Mooring

• Decision Date: 27 September 2017
• Docket Number: A143470
• Citation: People v. Mooring, 223 Cal.Rptr.3d 616, 15 Cal. App. 5th 928 (Cal. App. 2017)
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Darrell Ellis MOORING, Jr., et al., Defendants and Appellants.

15 Cal.App.5th 928

223 Cal.Rptr.3d 616

The PEOPLE, Plaintiff and Respondent,

v.Darrell Ellis MOORING, Jr., et al., Defendants and Appellants.

A143470

Court of Appeal, First District, Division 5, California.

Filed September 27, 2017

As Modified on Denial of Rehearing October 23, 2017

Certified for Partial Publication.^*

Laureen A. Bethards and Carmela A. Caramagno, by appointments of the Court of Appeal under the First District Appellate Project's independent case system for Defendant and AppellantDarrell Ellis Mooring, Jr.

Walter K. Pyle, by appointment of the Court of Appeal under the First District Appellate Project's independent case system for Defendant and AppellantLanita Davis.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Catherine A. Rivlin, Supervising Deputy Attorney General, Ann P. Wathen, Deputy Attorney General, for Plaintiff and Respondent.

Jones, P. J.

In 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))¹ and one count of possessing a designated controlled substance for sale (§ 11375, subd. (b)(1)(diazepam)).The court placed Davis on probation, with the condition she spend two years in jail.The trial court found Darrell's prior convictions true, denied his motion to strike those convictions( People v. Superior Court(Romero )(1996)13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628( Romero )), and sentenced him to 10 years in state prison.

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 because 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.

FACTUAL 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."²Other pill bottles had no label.In the master bedroom, officers found between 35 and 40 prescription pill bottles.Some bottles contained pills; others were empty.Officers also found a police scanner.

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 pills.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 Web 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.³The crime lab pays a subscription fee to access Ident-A-Drug, and the Web site is login-controlled.

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.⁴Meldrum has presumptively identified prescription pills using Ident-A-Drug over 2,000 times.

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;⁵(2) 573 oxycodone, a controlled substance; (3) 132 diazepam, a controlled substance; (4) 785 methadone, a controlled substance; (5) 242 morphine, a controlled substance; and (6) 113 codeine, a controlled substance.Meldrum did not conduct chemical testing on the pills.A usable amount of a prescription pill "may be as ... little as half a pill."Meldrum did not think the pills were counterfeit.Counterfeit pills are "a softer texture than a legal pharmaceutical" and may have a "slightly different color."

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 based 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 them 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...