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. B283895

(Super. Ct. No. 2015033556)

(Ventura County)

Here we 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 appeals 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 

officer (§ 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 (Sanchez)) 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 stricken 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 jail 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 to conduct a 

visual search for drugs. Appellant was asked to disrobe, bend 

over, spread 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 ordered 

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 appellant from 

swallowing the pills. Appellant clenched and raised his hands to 

fight. Deputy James punched appellant to gain “compliance.” 

Appellant struggled with the deputies, causing injury to Deputy 

Nunes. Appellant was ordered to stop resisting but instead, 

kicked at the pills trying to scatter or crush them. 

2
A 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 

methadone and two types of clonazepam. 

Regina Davidson, a criminalist at the Ventura 

County 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,

Davidson 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 

forfeited 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 

error 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 Sanchez 

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. . . . 

There is a distinction to be made between allowing an expert to 

describe the type or source of the matter relied upon as opposed 

to presenting, as fact, case-specific hearsay that does not 

otherwise fall under a statutory exception. ¶] What an expert 

cannot do is relate as true case-specific facts asserted in hearsay 

3
statements, unless they are independently proven by 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 Davidson’s testimony about 

Ident-A-Drug is testimonial hearsay. In Stamps, the criminalist 

used Ident-A-Drug to identify pills found on defendant but did 

not explain the website 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 reliability 

of internet websites but took “no position” on whether the IdentA-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 the expert opinion 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 before 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).

4
Davidson stated that Ident-A-Drug is an 

authoritative reference, similar to the Physicians’ Desk Reference 

and Drugs.com, and it is commonly used by experts in the field of 

forensic science. Davidson received special training 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 expert 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. 685-686.)

In Mooring, supra, 15 Cal.App.5th 928, a criminalist 

used the Ident-A-Drug website to identify over 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 defined in 

[Evidence Code] Section 1270.” (Id. at p. 937.) The court 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 manufacturers and the FDA” and its primary 

purpose “was not to gather or preserve evidence for a criminal 

prosecution. [Citations.]” (Id. at p. 942.) 

5
Davidson testified that Ident-A-Drug is a reference 

guide and is part of the “literature . . . that is available to doctors 

and hospitals and labs so they can identify tablets. . . . [Y]ou 

. . . look at the [pill] color, shape and markings and use the book 

for that.” Davidson 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. Davidson 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, Davidson admitted that no chemical analysis 

was made. 

Appellant argues that Davidson did not testify that 

Ident-A-Drug was a subscription based, log-in controlled website. 

That is inconsequential. Davidson testified what Ident-A-Drug

was, explained her training and use of the website, 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. (Mooring,

supra, 15 Cal.App.5th at p. 942.) Appellant complains that 

Davidson 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 circumstantial 

evidence . . .’” including “‘the expert opinion of the arresting 

officer [citation] and by the conduct of the defendant indicating 

consciousness of guilt.’ [Citations.]” (Id. at pp. 943-944.)

6
Practical Wisdom With a Dose of Reality

This and other criminal cases we decide compel us to 

offer a few observations about how we arrive at our decisions in 

criminal cases. Of course we follow the statutory and case law. 

We also apply common sense and practical wisdom. The facts

here lead to the reasonable conclusion that appellant tried to 

smuggle restricted dangerous drugs into the county jail in his 

“butt.” The pills were not a home cure for hemorrhoids. 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 required to prove its case 

beyond a reasonable doubt. There 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 appellant, 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 no 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 Justice: The 

Adverse Consequences of Current Legal Doctrine in the American 

Courtroom (1974), retired Justice Macklin Fleming eloquently 

2

Appellant has an extensive “rap sheet” and had nine 

pending cases against him at time of sentencing.

7

 
discusses the price associated with the quest for “perfect justice.” 

For the sake of discussion, let us assume we reverse the 

judgment. On 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. Practical wisdom and common sense lead to the 

reasonable 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 defendant is entitled to a fair

trial, not a perfect one. Here he had a fair trial. 

Prior Prison Term Enhancements

The Attorney General points out that the sentence is 

unauthorized because the trial court failed to strike three prior 

prison term enhancements. 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 term 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 enhancements. (See 

§ 1260; People v. Chacon (1995) 37 Cal.App.4th 52, 67.)

8
Disposition

The judgment is modified to reflect that three prior 

prison term enhancements (§ 667.5, subd. (b)) were stricken. 

(§ 1260.) 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.

9
David 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 Attorney General, Scott A. Taryle, Supervising Deputy 

Attorney General, Idan Ivri, Deputy Attorney General, for 

Plaintiff and Respondent.