People v. Stamps

• Decision Date: 30 September 2016
• Docket Number: A142424
• Citation: 207 Cal.Rptr.3d 828,3 Cal.App.5th 988
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Latanya A. STAMPS, Defendant and Appellant.

3 Cal.App.5th 988

207 Cal.Rptr.3d 828

The PEOPLE, Plaintiff and Respondent,

v.Latanya A. STAMPS, Defendant and Appellant.

A142424

Court of Appeal, First District, Division 4, California.

Filed September 30, 2016

As Modified on Denial of Rehearing October 28, 2016

Counsel: Alfons Wagner, J. Bradley O'Connell, under appointment by the Court of Appeal, for Defendant and Appellant.

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.

Streeter

, J.

Appellant Latanya A. Stamps was convicted of multiple drug possession offenses after drugs in both pill and crystalline form were discovered in her car, purse or clothing on four different dates in October through December 2012. She appeals, arguing the court improperly admitted the testimony of an expert criminalist who identified the drugs in pill form as controlled substances solely by comparing their appearance to pills pictured on a Web site called “Ident–A–Drug.” Stamps attacks her convictions for possession of oxycodone and dihydrocodeinone on grounds that (1) the expert's testimony was based on unreliable and inadmissible hearsay from the Web site and did not involve the use of the witness's expertise; and (2) there was insufficient evidence to convict on the counts involving those drugs because the expert relied exclusively on the Web site in rendering her opinion. Because we agree that the expert testimony was improperly admitted, and because the testimony was central to Stamps's pill-based convictions, we reverse Stamps's convictions on counts one, five, seven and eight.¹ We conclude, however, that a retrial on those counts is not barred by double jeopardy principles.

I. BACKGROUND

On four occasions in October through December 2012, Stamps was pulled over by the Pittsburg police because her car did not display a license plate. On each occasion she and her car were searched, and on each occasion drugs were discovered. On October 30, 2012, the police discovered two yellow oval tablets with a capital “V” on one side and a white oval tablet with the word “Watson” on its side. The next night, the police again stopped Stamps's car, conducted a search, and discovered a methamphetamine pipe and 1.19 grams of a white crystalline substance believed to be methamphetamine. Yet again, on November 1, 2012, they found a bindle of white crystalline substance believed to be methamphetamine, weighing .25 gram, six white oblong pills, one with the words “Watson” and “853” printed on it, and .28 gram of some white chunky substance believed to be cocaine base. On December 16, they found .03 gram of suspected methamphetamine in a plastic baggie in Stamps's bra and two pills in her car. One of the pills was yellow with “853” written on it, and the other was a white tablet bearing the words “Watson 932.”

Stamps was charged with eight counts of drug possession: three counts of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)

), one count of possession of cocaine (Health & Saf. Code, §§ 11350, subd. (a), 11379, subd. (a) ), one count of possession of oxycodone (Health & Saf. Code, § 11350, subd. (a) ), and three counts of possession of dihydrocodeinone (Health & Saf. Code, § 11350, subd. (a) ). At trial, the People proved the chemical composition of the crystalline and chunky substances through the testimony of criminalist Shana Meldrum, an employee of the Contra Costa County Sheriff's Crime Lab. Meldrum performed a detailed chemical analysis on the suspected methamphetamine and cocaine, and her tests confirmed the drugs were as suspected. With respect to the drugs in pill form, however, Meldrum identified the pills as oxycodone and dihydrocodeinone based solely on a visual comparison of the seized pills to those displayed on the Ident–A–Drug Web site. Based on the shape and color of the pills, their markings and their condition, Meldrum concluded they contained the alleged substances. This visual comparison was considered a “presumptive test” of each pill's chemical composition. Meldrum did no confirming chemical analysis of the pills. In addition to the expert's testimony, Stamps had given statements to the police on the dates of her arrests indicating the pills found on October 30, 2012, were Norco

and Phexoreal, and the pills found on November 1, 2012 were “Norcos.”

The jury found Stamps guilty on all eight counts, and she was placed on probation for two years. On appeal she challenges her convictions only on the four counts stemming from her possession of the various pills described above.

II. DISCUSSION

A. Admissibility of the Ident-A-Drug Evidence

Stamps contends Meldrum should not have been allowed to testify to the contents of the Ident–A–Drug Web site because the testimony brought before the jury inadmissible and unreliable hearsay which the jurors may have used as direct evidence of the charged offenses. She further argues the expert's testimony should have been excluded because matching the pills to a photograph on a Web site did not involve the use of the witness's expertise.² (See State v. Ward (2010) 364 N.C. 133, 694 S.E.2d 738, 746, fn. 5

(Ward ).) On the admissibility question, we review the trial court's evidentiary ruling admitting the expert's testimony for abuse of discretion. (People v. Dean (2009) 174 Cal.App.4th 186, 193, 94 Cal.Rptr.3d 478 (Dean ); People v. Robbie (2001) 92 Cal.App.4th 1075, 1083, 112 Cal.Rptr.2d 479.) On any question of law, however, such as the meaning to be ascribed to the language in an appellate court's opinion, we exercise independent review. (See, e.g., Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 837, 189 Cal.Rptr.3d 824, 352 P.3d 391 [statutory interpretation]; Ducoing Management, Inc. v. Superior Court (2015) 234 Cal.App.4th 306, 313, 183 Cal.Rptr.3d 548

[language in a court disposition].)

1. The Issue Was Not Forfeited

Preliminarily, we reject the People's contention that Stamps's argument was forfeited by failure to object in the trial court on the specific ground that too much detail was provided by the expert about the Web site or that reliability of the Web site had not been established. Stamps's counsel did object repeatedly on grounds of hearsay and lack of foundation, which adequately alerted the court to the basis of objection and were sufficient to preserve the issue for review. (See People v. Car r illo (2004) 119 Cal.App.4th 94, 101, 13 Cal.Rptr.3d 878

[issue is whether the objection “ ‘fairly apprises the trial court of the issue it is being called upon to decide’ ”].)

2. Expert Reliance on Hearsay Under California Law

Until very recently, the law governing expert witnesses' reliance on hearsay—and the latitude given them to testify about such hearsay—seemed fairly well settled. For instance, in People v. Gardeley (1996) 14 Cal.4th 605, 59 Cal.Rptr.2d 356, 927 P.2d 713

(Gardeley ), our Supreme Court held a gang expert could testify to out-of-court statements he had heard from fellow officers and gang members, including a co-participant in the crimes with which the defendants were charged, relating to the gang's activities (id. at pp. 611–613, 619, 59 Cal.Rptr.2d 356, 927 P.2d 713 ), and upon that basis could opine that the crime with which defendants were charged was a “ ‘classic’ example of gang-related activity” (id. at p. 619, 59 Cal.Rptr.2d 356, 927 P.2d 713

). The court relied upon the following rule: “because Evidence Code section 802 allows an expert witness to ‘state on direct examination the reasons for his opinion and the matter ... upon which it is based,’ an expert witness whose opinion is based on such inadmissible matter can, when testifying, describe the material that forms the basis of the opinion.” (Id. at p. 618, 59 Cal.Rptr.2d 356, 927 P.2d 713.) In such a case, so the theory goes, the gang members' statements are not admitted for their truth, but only as basis evidence for the expert's opinion. (People v. Thomas (2005) 130 Cal.App.4th 1202, 1209–1210, 30 Cal.Rptr.3d 582.) This was not a new development in Gardeley ; California had long followed this not-admitted-for-its-truth rule. (E.g., People v. Montiel (1993) 5 Cal.4th 877, 918, 21 Cal.Rptr.2d 705, 855 P.2d 1277 ; Dean , supra , 174 Cal.App.4th at pp. 196–197, 94 Cal.Rptr.3d 478 ; Board of Trustees of Placerville Union School Dist. v. Porini (1968) 263 Cal.App.2d 784, 792–794 & fns. 4 & 6, 70 Cal.Rptr. 73.)

But even in holding such hearsay admissible, Gardeley

and similar cases placed some limits on its admissibility by cautioning that “any material that forms the basis of an expert's opinion testimony must be reliable. [Citation.] For ‘the law does not accord to the expert's opinion the same degree of credence or integrity as it does the data underlying the opinion. Like a house built on sand, the expert's opinion is no better than the facts on which it is based.’ ” (Gardeley , supra , 14 Cal.4th at p. 618, 59 Cal.Rptr.2d 356, 927 P.2d 713

.) Gardeley further reminded the trial courts of their power to limit “ ‘the form in which the expert is questioned to prevent the jury from learning of incompetent hearsay.’ ” (Id . at p. 619, 59 Cal.Rptr.2d 356, 927 P.2d 713.) Thus, trial courts were left with broad discretion to determine whether particular facts to which an expert was prepared to testify were sufficiently “reliable” to come before the jury. Concurrently, trial courts were and are charged with an important gatekeeping “duty” to exclude expert testimony when necessary to prevent unreliable evidence and insupportable reasoning from coming before the jury. (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 753, 149 Cal.Rptr.3d 614, 288 P.3d 1237 (Sargon );³ see People v. Brown (2016) 245 Cal.App.4th 140, 156, 199 Cal.Rptr.3d 303.) Because...