People v. StampsPeople v. Stamps
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 from 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
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 0.25 gram, six white oblong pills, one with the words “Watson” and “853” printed on it, and 0.28 gram of some white chunky substance believed to be cocaine base. On December 16, they found 0.03 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 (
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
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. Carillo (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 coparticipant in the crimes with which the defendants were charged, relating to the gang‘s activities (id. at pp. 611-613, 619), and upon that basis could opine that the crime with which the defendants were charged was a ” ‘classic’ example of gang-related activity” (id. at p. 619). The court relied upon the following rule: “[B]ecause
But even in holding such hearsay admissible, Gardeley and similar cases placed some limits on its admissibility by cautioning that “any material that
Recently, however, the not-admitted-for-its-truth rationale was jettisoned altogether—at least with respect to “case-specific hearsay“—when a unanimous Supreme Court announced: “[T]his paradigm is no longer tenable because an expert‘s testimony regarding the basis for an opinion must be considered for its truth by the jury.” (People v. Sanchez (2016) 63 Cal.4th 665, 678, 679 [204 Cal.Rptr.3d 102, 374 P.3d 320] (Sanchez).) In so holding, Sanchez followed the reasoning of a number of jurists who have criticized the logic of the not-admitted-for-its-truth rationale, including a majority of justices of the United States Supreme Court. (Id. at pp. 680-686; see also Williams v. Illinois (2012) 567 U.S. 50, 104-105, 108 & fn. 3 [183 L.Ed.2d 89, 132 S.Ct. 2221, 2256, 2258 & fn. 3] (conc. opn. of Thomas, J.); Williams, at pp. 118-128 [132 S.Ct. at pp. 2264-2269] (dis. opn. of Kagan, J.); People v. Hill (2011) 191 Cal.App.4th 1104, 1127-1129 [120 Cal.Rptr.3d 251]; People v. Mercado (2013) 216 Cal.App.4th 67, 89 [156 Cal.Rptr.3d 804].) In vigorously rejecting the not-admitted-for-its-truth rationale, the Supreme Court also dealt a deathblow to the notion that juries can make any sense of the
Sanchez dealt with a gang expert‘s testimony subject to a challenge under Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177, 124 S.Ct. 1354] (Crawford), but in the course of analyzing the confrontation clause issue the Supreme Court found occasion to revisit, and essentially to revamp, state law hearsay rules relating to expert testimony generally. (Sanchez, supra, 63 Cal.4th at pp. 674-686.) It is this non-Crawford aspect of Sanchez that comes into play here.5 Insofar as pertinent to this case, the significance of Sanchez was not left open to doubt. The court specifically “adopt[ed] the following rule: When any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert‘s opinion, the statements are hearsay. It cannot logically be maintained that the statements are not being admitted for their truth.” (Sanchez, at p. 686.) Because we conclude the Ident-A-Drug evidence was admitted for its truth under the foregoing test, while not coming within any hearsay exception, we also conclude it was improperly admitted.
Incorporated within the Sanchez rule is what appears to be a new litmus test for admissibility of expert testimony incorporating hearsay as the basis for the expert‘s opinion: it depends on whether the matter the prosecution seeks to elicit is “case-specific hearsay” or, instead, part of the “general background information” acquired by the expert through out-of-court statements as part of the development of his or her expertise. (Sanchez, supra, 63 Cal.4th at p. 678.) Though most jurists may find this a novel approach, the Supreme Court took pains to explain that the rule announced in Sanchez in fact “restores the traditional distinction between an expert‘s testimony regarding background information and case-specific facts” that had existed at common law and in the early California cases. (Id. at p. 685.) Sanchez itself acknowledged that the line between “case-specific facts” and “general background information” had “become blurred” due to decades of statutory and case law that paid no heed to such a distinction. (Id. at p. 678.)
3. The Ident-A-Drug Testimony Was Inadmissible Because It Was Case Specific
Stamps argues, and the People do not contest, that the content of the Ident-A-Drug Web site would not be independently admissible to prove its truth because it was hearsay.6 (
The Attorney General has proposed no hearsay exception that would render the Ident-A-Drug Web site contents admissible.7 Because the Ident-A-Drug content was itself inadmissible hearsay, and because that content was case specific, Meldrum‘s testimony about the Web site was inadmissible under the new paradigm. Sanchez defined “case specific” facts as those “relating to the particular events and participants alleged to have been involved in the case being tried.” (Sanchez, supra, 63 Cal.4th at p. 676.) We think it undeniable that the chemical composition of the pills Stamps possessed must be considered case specific. Indeed, the Ident-A-Drug hearsay was admitted as proof of the very gravamen of the crime with which she was charged. There is no credible argument that the testimony concerned “general background” supporting Meldrum‘s opinion. That being true, our hearsay analysis is at an end. We need not address the out-of-state cases and other authorities cited by the parties, nor need we get bogged down in considering the reliability of the Ident-A-Drug Web site.
4. Harmless Error Analysis
We review the erroneous admission of expert testimony under the state standard of prejudice. (People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243]; Dean, supra, 174 Cal.App.4th at p. 202 [Watson standard applies].) Under that standard the error was not harmless.
First, Sanchez specifically held a limiting instruction was not effective in preventing the jury from considering the hearsay as direct evidence of the
Because the Ident-A-Drug testimony was the only evidence that the pills actually contained the controlled substances alleged in the information, the convictions on counts one, five, seven and eight must be reversed. In this case, unlike some others, there was no chemical analysis to supplement the expert‘s testimony based on visual similarities she noted on Ident-A-Drug (cf. State v. Stank (2005) 288 Wis. 2d 414 [708 N.W.2d 43, 54-55]), and no identification of the drug on sight based on experience, as with a pharmacist witness (cf. Sterling v. State (Tex.App. 1990) 791 S.W.2d 274, 277). Nor was there any testimony to the uniqueness of the trade dress of pharmaceuticals. (Cf. Jones v. Commonwealth (Ky. 2011) 331 S.W.3d 249, 255.) Meldrum‘s testimony also took no account of the possibility that the pills were counterfeit. (See Ward, supra, 694 S.E.2d at p. 745.)
There were, of course, admissions by Stamps that some of the pills were Norco and Phexoreal, but there was no testimony that these brand names are equivalent to oxycodone and dihydrocodeinone. And though this evidence may prove Stamps believed she was in possession of controlled substances, Meldrum‘s testimony was the only evidence that the pills actually contained dihydrocodeinone and oxycodone, as charged. We conclude it is reasonably probable the jury would have acquitted Stamps of the charges based on pill possession in the absence of the Ident-A-Drug testimony.
The evidence in question, consisting solely of Meldrum‘s unfiltered and unvarnished recapitulation of what she saw on the Ident-A-Drug Web site, was case specific, did not come within any hearsay exception, was not personally known to the witness as a fact, was treated as true by Meldrum, and was inadmissible under Sanchez. Because it was central to conviction on the counts involving pills, we must reverse as to those counts.
B. Sufficiency of the Evidence
Although reversal is required based on inadmissibility of the evidence alone, we consider Stamps‘s insufficiency of the evidence argument as well, in order to determine whether retrial is barred by double jeopardy principles, as announced in Burks v. United States (1978) 437 U.S. 1, 16-17 [57 L.Ed.2d 1, 98 S.Ct. 2141]. (See People v. Smith (1998) 62 Cal.App.4th 1233, 1235, fn. 1 [72 Cal.Rptr.2d 918].) Though we agree with Stamps that without the Ident-A-Drug testimony there was insufficient evidence to convict Stamps
III. DISPOSITION
The judgment is reversed as to counts one, five, seven and eight. In all other respects it is affirmed. The cause is remanded to the superior court for further proceedings not inconsistent with this opinion.
Reardon, Acting P. J., and Rivera, J., concurred.