People v. Hamernik
204 Cal. Rptr. 3d 649
Cal. Ct. App.2016Background
- Kristie Hamernik, an LVN suspended from Vista Cove, visited former patient Eiko Dorsch and was seen handling Eiko’s CADD pain pump; after the visit the pump’s cassette and tamper seal were empty/broken.
- Prosecutor charged Hamernik with unlawful possession of Dilaudid (Health & Safety Code §11350) and misdemeanor elder theft; during the People’s case the prosecution failed to prove the substance was Dilaudid.
- Trial court granted defendant’s Penal Code §1118.1 motion as to the possession charge for insufficient evidence but then (erroneously) submitted attempted possession to the jury as a lesser included offense.
- The jury convicted Hamernik of attempted possession of a controlled substance (Pen. Code §664 + Health & Safety Code §11350); she was acquitted of elder theft.
- On appeal the court addressed whether attempted possession is a lesser included offense of possession, whether the information could/should have been amended, and whether retrial on attempted possession is permitted given double-jeopardy/joinder principles.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether attempted possession of a controlled substance is a lesser included offense of possession | Court may properly submit lesser offenses; attempted possession was submitted and defendant had notice | Attempted possession requires specific intent and is not a lesser included offense of general-intent possession; lack of notice violated due process | Attempted possession is not a lesser included offense of possession; trial court erred in substituting it |
| Whether the trial court (or appellate court) could/should amend the information to add attempted possession after dismissal of possession | Amendment under Penal Code §1009 is permitted and appellate correction could cure the error; evidence supported attempt | Amendment was not sought timely; defendant lacked notice and would have changed defense; trial court failed to exercise discretion so appellate court cannot order amendment | Appellate court declined to order amendment; trial court erred in finding amendment moot and failed to exercise discretion |
| Whether the error was harmless because evidence supported attempted possession | Evidence showed defendant handled the pump and seal was broken, supporting attempt | Lack of notice and change from general to specific intent prejudiced defense; cannot be deemed harmless | Error was not harmless; conviction reversed |
| Whether retrial on attempted possession is barred by joinder/double jeopardy (Pen. Code §654 / Kellett) | Retrial on attempt is permissible where earlier proceeding did not resolve the lesser offense (cites Goolsby) | Prosecution knew/allied offenses should have been joined; acquittal/conviction bars subsequent prosecution under Kellett and §654 | Retrial is barred under Kellett and Pen. Code §654 because attempted possession was a lesser related offense based on the same conduct and was not prosecuted in the same proceeding |
Key Cases Cited
- People v. Bailey, 54 Cal.4th 740 (specific intent required for attempt; attempted escape not lesser included of escape)
- People v. Powell, 181 Cal.App.4th 304 (trial court may consider lesser included offenses on a §1118.1 motion)
- People v. Martin, 25 Cal.4th 1180 (elements of unlawful possession: dominion and control, usable quantity, knowledge of presence and character)
- People v. Ngo, 225 Cal.App.4th 126 (attempt to commit a general intent crime is not a lesser included offense when attempt requires specific intent)
- People v. Parks, 118 Cal.App.4th 1 (due process/notice principle: cannot convict of an uncharged, non-included offense absent defendant’s consent)
- Kellett v. Superior Court, 63 Cal.2d 822 (prosecution must join related offenses or subsequent prosecution may be barred)
- People v. Goolsby, 62 Cal.4th 360 (distinguishes when retrial on lesser related offense may be permissible depending on how prior proceeding resolved issues)