Filed 5/14/ 18 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSE ANTONIO ESPINOZA,

Defendant and Appellant. 2d Crim. No. B2838 95 (Super. Ct. No. 2015033556) (Ventura County)

Here w e hold that Ident

- A

- Drug , an internet drug reference work, comes within the published compilation exception to the hearsay rule set forth in Evidence Code section 1340. Jose Antonio Espinoza appeal s his conviction by jury of possession of a controlled substance (methadone and clonazepam pills) in a jail facility (Pen. Code, § 4573.6, subd. (a)) 1 and two counts of resisting, obstructing or delaying a peace

o fficer (§ 148, subd. (a))(1)). He admitted four prior prison term enhancements (§ 667.5, subd. (b)) and was sentenced to four years felony jail with mandatory supervision. (§ 1170, subd.

1 All further statutory references are to the Penal Code, unless otherwise stated.(h)(5)(B).) Appellant unsuccessfully contends that Sanchez error ( People v. Sanchez (2016) 63 Cal.4th 665 ( S anchez ) ) occurred
when a criminalist testified that “ Ident

- A

- Drug, ” an internet drug
reference work , was used to presumptively identify the pills as
controlled substances. We modify the judgment to reflect that
three prior prison term enhancements were st ricken at the sentencing hearing (§ 1385) and affirm the judgment as modified. (§ 1260.) Facts and Procedural History
On October 21, 2015, appellant entered the Ventura County j ail as an inmate. Appellant asked an inmate for a latex glove, adjusted his crotch area, and put his hands down his pants. Ventura County Sheriff’s Deputy Daniel James suspected that appellant was smuggling drugs into the jail. Deputy James, Deputy Martin Nunes, and two other deputies escorted appellant to the shower area t o cond uct a visual search for drugs. Appellant was asked to disrobe, bend

over, spre ad his butt cheeks, and cough. Appellant did not fully comply and was told to “quit messing around.” Deputy James
saw a film canister near appellant’s rectum . He ordere d appellant to hand it over. Appellant opened the canister and tried to swallow

an assortment of pills. Deputy James grabbed appellant’s right
hand and pushed him against a wall. Deputy Nunes spun appellant around and grabbed his chin to prevent appell ant from swallowing the pills. A ppellant clenched and rais ed his hands to fight. Deputy James punched appellant to gain “ compliance. ” Appellant struggled with the deputies, causing injury to Deputy
N unes. Appellant was ordered to stop resisting but ins tead,
kicked at the pills trying to scatter or crush them.

2A total of 80 pills were collected and photographed. Using the “ Drugs Identification Bible and Drugs.com ” as a reference source, Deputy James determined that the pills were
methadon e and two t ypes of clonazepam. Regina Davidson , a criminalist at the Ventura
Co unty Sheriff’s Forensic Services Bureau, examined the pills
and used Ident

- A

- Drug, an internet drug reference work , to identify the pills. Based on the shape, color, and pill markings,
Davi dson opined that the pills were methadone and clonazepam. Appellant offered no testimony to refute the evidence against him.
Sanchez Appellant argues that Davidson ’s expert opinion testimony was testimonial hearsay and inadmissible under
Sanchez

. But he only objected on lack of foundation. He thus
for feited the hearsay/ Sanchez objection. (See

, e.g., People v. Perez (2017) 16 Cal.App.5th 636, 645

- 646 [ Sanchez error forfeited]; People v. Redd (2010) 48 Cal.4th 691

, 730 [confrontation clause

erro r forfeited].) On the merits, there was no error. In Sanchez

, supra , 63 Cal.4th 665

, our Supreme Court held that an expert is precluded from relating case

- specific facts about which the expert has no independent knowledge. ( Id. at p. 676.) The Sanche z court stated: “[An ] expert may still rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so. . . .
T here is a distinction to be made between allowing an expert to describe the type or source of the matter relied up on as opposed to presenting, as fact, case

- specific hearsay that does not
otherwise fall und er a statutory exception. ¶] What an expert

cannot do is relate as true case

- specific facts asserted in hearsay

3statements, unless they are independently proven b y competent evidence or are covered by a hearsay exception.” ( Id

. at pp. 685

- 686.) Relying on People v. Stamps (2016) 3 Cal.App.5th 988 ( Stamps ), appellant argues that Davi dson ’s testimony about
Ident

- A

- Drug is testimonial hearsay. In Stamps, the crim inalist
used Ident

- A

- Drug to identify pills found on defendant but did not explain the web site or say that any special expertise was required to use it. ( Id. at pp. 991

- 992 & fn. 2.) The Court of Appeal, in a footnote, expressed concern regarding the rel iability
of internet web sites but took “no position” on whether the Ident

A

- Drug content fell within the published compilation exception to the hearsay rule, i.e. Evidence Code section 1340. ( Id. at p. 997, fn. 7.) The court concluded that t he expert opi nion testimony ran
afoul of Sanchez: “By admitting [the expert’s] testimony that the
contents of the Ident

- A

- Drug Web site ‘match[ed]’ the pill found in Stamp’s possession, the [trial] court allowed [the expert] to place case

- specific non

- expert opinion b efore the jury, with the near certainty that the jury would rely on the underlying hearsay as direct proof of the chemical composition of the pills. . .

. [The expert] was a ‘mere conduit ’ for the Ident

- A

- Drug hearsay. [Citations.]” ( Id. at p. 992, fn. 2.) We need not opine on whether the analysis in Stamps

, supra , 3 Cal.App.5th 988, is correct. It is sufficient to observe that we have a “position” on whether Ident

- A

- Drug is a published compilation within the meaning of Evidence Code
section 1340. It is. We agree with the analysis in the First
District’s case of People v. Mooring (2017) 15 Cal.App.5th 928 ( Mooring )

.

4Davi d s on stated that Ident

- A

- Drug is an authoritative reference, similar to the Physician s ’ Desk Reference and Drug s .com, and it is c ommonly used by e xperts in the field of
forensic science

. Davi d s on received special train ing in the use of
Ident

- A

- Drug and explained how it helped her recognize the shape and marking on the pills. Where general background hearsay is concerned, the exper t may testify about it so long as it is reliable and of a type generally relied upon by experts in the field. ( Sanchez

, supra , 63 Cal.4th at pp. 685

- 6 86.)
In Mooring

, supra , 15 Cal.App.5th 928, a criminalist
used the Ident

- A

- Drug website to identify ove r 4,000 pills by comparing the color, shape and pill markings to the images in
Ident

- A

- Drug. ( Id. at p. 932.) The expert stated that the method was generally accepted in the scientific community and that
Ident

- A

- Drug has information derived from the FDA and pharmaceutical pill manufacturers. ( Id. at p. 938.) The Court held the expert testimony fell within the “‘ published compilation’” exception to the hearsay rule, codified in Evidence Code section
1340. This section 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 defin ed in [Evidence Code] Section 1270.” ( Id . at p. 937.) The c ourt in Mooring concluded that the Ident

- A

- Drug website was not testimonial because it “contains generic data about pharmaceutical pills, based on information provided from pharmaceutical manufac turers and the FDA ” and its primary purpose “ was not to gather or preserve evidence for a criminal prosecution. [Citations.]” ( Id. at p. 942.)

5Davi d s on testified that Ident

- A

- Drug is a reference guide and is part of the “literature . . . that is avai lable to doctors and hospitals and labs so they can identify tablets. . .

. [Y]ou

. . . look at the [pill] color, shape and marking s and use the book
for that.” Davi d s on stated that Ident

- A

- Drug was an
authoritative resource used by criminalists and that she was trained to use it at the San Bernardino County and Ventura County crime labs. Davi d s on explained that it is published both
in book form and as an internet reference, and that she relied on it in identifying the pills as clonazepam and methadone. On

cross

- examination, Davi d s on admitted that no chemical analysis
was made. Appellant argues that Davi d s on did not testify that
Ident

- A

- Drug was a subscription based, log

- in controlled website. That is inconsequential. Davi d s on testified what Ident

- A

- Drug was, explained her training and use of the web site, and stated
that she used it as a reference source to identify the pills. The testimony established that it was an authoritative published compilation of generic drug data used by criminalists. ( M ooring

, supra , 15 Cal.App.5th at p. 942.) Appellant complains that
Davi d s on conducted only a presumptive test based on the appearance of the pills. That goes to the weight, not the admissibility of the testimony. There is no requirement that a
chemical analysis be performed to identity a controlled
substance. ( Id. at p. 943.) “‘ [T]he nature of a substance, like any other fact in a criminal case, may be proved by circum stantial
evidence .

. .’” including “‘ the expert opinion of the arresting officer [ci tation] and by the conduct of the defendant indicating consciousness of guilt.’ [Citations.]” ( Id. at p p

. 943

- 944.)

6Practical W isdom W ith a D ose of R eality
This and other criminal c ases we decide compel us to
offer a few observations about how we arri ve at our decisions in
criminal cases. Of course we f ollow th e statutory and case law.
We also apply common sense and practical wisdom

. T he facts
here lead to the reasonable conclusion that appellant tried to smuggle restr icted dangerous drugs into the county jail in his

“ butt. ” T he pills were not a home cure for hemor rh oids. The evidence did not point to an innocent explanation for appellant’s
conduct. He did not offer a defense to the charges at trial nor did
he have to

. The prosecution was require d to prove its c ase beyond a reasonable doubt. T here is no “ black letter ” rule requiring a chemical analysis of pills to prove that they are restricted prescription drugs. ( Mooring

, supra , 15 Cal.App.5th at p. 942.) What cannot be disputed is that appel lant , a recidivist, attempted to smuggle drugs into the county jail. 2 The manner in
which the crime was committed is persuasive evidence from which the jury could draw the inference that these pills were the real thing. ( Id. at pp. 943

- 944.)
At n o time below or on appeal has appellant ever suggested that the drugs were not methadone and clonazepam. Yet, he faults the Ventura County Sheriff’s criminalist for not doing a chemical analysis of the pills. In his provacative book

, The Price of Perfect Jus tice: T he Adverse Consequences of Current Legal D octrine in the American
C ourtroom (1974) , retired Justice Macklin Fleming eloquently

2 Appellant has an extensive “rap s heet” and had nine pending cases against him at time of sentencing.

7discusses the price associated with the quest for “ perfect justice .” For the sake of discussion, l et us assume we revers e the judgment

. O n retrial, a chemical analysis in all likelihood would be performed by the sheriff’ s crime lab . Perhaps the pills could
be sent to the FBI laboratory at Quantico Virginia for an analysis

. P ractical wisdom and co mmon sense lead to the

re asonable inference on appeal that appellant knew the drugs
were real and that he acted with criminal intent when he brought the pills into the county jail. “A trial is a search for the truth.” ( People v. Zack (1986) 184 Cal.3d 409, 415.) A defendan t is entitled to a fair trial, not a perfect one. He re he had a fair trial

. Prior Prison Term Enhancements The Attorney General points out that the sentence i s unauthorized because the trial court failed to strike three prior prison term enhanc ements. Appellant was sentenced to three years felony jail plus one year on a fourth prior prison term
enhancement. The trial court impliedly struck three other prior prison term enhancements based on the probation
recommendation that one prior prison te rm enhancement be imposed. (§ 1385.) Rather than remand the matter for resentencing (see

, e.g., People v. Lua (2017) 10 Cal.App.5th 1004,
1020

- 1022), we exercise our power to modify the judgment and strike the three remaining prior prison term enhancemen ts. (See § 1260; People v. Chacon (1995) 37 Cal.App.4th 52, 67.)

8Disposition The judgment is modified to reflect that three prior prison term enhancements (§ 667.5, subd. (b)) were stricken. (§ 126 0 .) The superior court clerk is directed to prepare an amended June 19, 2017 sentencing minute order to so reflect. As modified, the judgment is affirmed.
CERTIFIED FOR PUBLICATION

.

YEGAN, J.

We concur:

GILBERT, P. J.

PERREN, J.

9David Worley, Judge

Superior Court County of Ventura

____________ __________________

Todd W. Howeth, Public Defender, Russell L. Baker, Snr. Deputy Public Defender for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior
Assistant Atto rney General, Scott A. Taryle, Supervising Deputy Attorney General, Idan Ivri, Deputy Attorney General, for Plaintiff and Respondent.