1 Filed 3/13/14 P. v. Logan CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent,

v. GREGORY MORR ELL LOGAN, Defendant and Appellant. A137403

(Contra Costa County Super. Ct. No. 1213768)

Gregory Morrell Logan appeals his c onviction for possessing methamphetamine with intent to sell on ground s that the evidence offere d against him lacked proper foundation and elicited undue prejudice. (H ealth & Saf. Code, § 11378; Evid. Code, §§ 403, subd. (a) 1 , 801, 352.) Finding no reversible evidentiary error, we affirm.

I. BACKGROUND & PR OCEDURAL HISTORY On December 17, 2010, at about 10:00 p.m., Police O fficer Dustin Mayberry approached appellant’s truck an d noticed a glass pipe in the center console. Suspicious, Mayberry asked appellant if he would consen t to a search. Appellant agreed, exited his vehicle and withdrew several items from his poc kets, which he placed on the bed of his truck before Mayberry could search his person. These items included two digital scales, a Skoal tobacco tin cont aining four plastic baggies of “a white crystal substance,” one empty baggy, and an unmarked medication bottle that contained three plas tic baggies with five or six pills each. Appellant was taken

1 Unless otherwise specified, all section references are to the Evidence Code.2 into custody and read his Miranda rights. ( Miranda v. Arizona (1966) 384 U.S. 436.) Mayberry then asked appellant about the nature of the drugs confiscated, which appellant described as approximately an “eight ball” of crystal meth (3.05 grams), six morphine pills, five oxycodone, and four methadone p ills. Appellant was then charged with one count of possession of methamphetamine for sale and one count of selling methamphetamine. (Health & Saf. Co de, §§ 11378 & 11379, subd. (a).) At trial, Richard Bowden (Bowden) was introduced as an ex pert witness in the testing of illegal substances, particularly me thamphetamine. Bowden ran a chemical test on the “white crystal” substa nce and determined that it wa s methamphetamine, with a net weight of 4.51 grams. Bowden also testified that the pills retrieved from appellant were morphine, oxycodone, and methadone, whic h matched appellant’s prior admission to Mayberry. Bowden did not chem ically analyze these pills. Instead, Bowden visually identified the pills using a We b site called “Ident-A-Drug,” 2 where a user may enter the color, shape, and markings on a pharmaceu tical pill to identify the substance likely contained therein. Bowden explained that a user of this Web site may enter the appearance and markings of pharmaceuti cal pills to identify the substance likely

contained therein. Although Bowden note d that Ident-A-Drug is routin ely used by the Contra Costa County crime lab to identify controlled subs tance pills, he was unaware who created or

maintained the Web site. Bo wden was also unaware of the existence of any standards that establish the reliability of the Web site and he was una ble to identify any organizations or professionals in his field outsi de of his lab that have certified or rely on the Web site to officially iden tify pharmaceutical pills. In a section 402 hearing, the trial

court ruled that sufficient founda tion had been laid to introdu ce the pills into evidence for the jury to make their own de termination as to the weight or credibility of Bowden’s testimony.

2 The Ident-A-Drug Web site is loca ted at: <http://identadrug.therapeutic research.com>.3 Steven Lynn, a senior inspec tor at the District Attorney ’s Office, testified about a hypothetical scenario invo lving the same amount of methamphetamine, in similar packaging, along with scales, a pipe, and pills identified both by the suspect and an expert criminologist, as morphine, oxycodone, and methadone medi cations. Lynn determined that the weight and packaging of the methamphetamine, along with the presence of scales were consistent with possession with intent to sell. Lynn stated that the presence of the pills increased his belief that appellant posse ssed methamphetamine with intent to sell. Based upon the evidence presented, appe llant was found guilty of possessing methamphetamine with intent to se ll. (Health & Saf. Code § 11378.)

II. DISCUSSION Appellant contends that the prosecutio n failed to lay proper foundation for the Ident-A-Drug Web site used by Bowden to identify appe llant’s pills as controlled substances. (§ 403, subd. (a)(1) & (2); § 801, subd. (b).) It is appellant’s belief that the Web site’s improper admissi on prejudiced the jury, resu lting in his conviction for possessing methamphetamine for sale. (§ 352; Health & Saf. Code, § 11378.) A. Standard of Review An appellate court reviews challenges to a trial court’s ruli ng on the admissibility of evidence for abuse of discretion. ( People v. Alvarez (1996) 14 Cal.4th 155, 201.) “This standard of review applies to a tria l court’s determination of the relevance of evidence, as well as to wh ether the evidence’s proba tive value is substantially outweighed by its prejudicial effect. [Citations.]” ( People ex rel. Lockyer v. Sun Pacific Farming Co. (2000) 77 Cal.App.4th 619, 639-640.) Under this standard, the appellate

court will interfere with the trial court’s di scretion only when it co ncludes that no judge could have reached the challenged result. ( Smith v. Smith (1969) 1 Cal.App.3d 952, 958.)4 B. No Abuse of Discretion Appellant argues that the trial court a bused its discretion by admitting Bowden’s testimony vis-à-vis the Ident-A-Drug Web site without proper foundation having been laid for the site’s reliability or general acceptan ce in the field. Appellant claims that this

constituted a violation of section 403. Section 403, subdivisions (a)(1) and (2 ) state that, “[t]he proponent of the proffered evidence has the burden of produci ng evidence as to th e existence of the preliminary fact, and the proffered evidence is inadmissible unless the court finds that

there is evidence suffici ent to sustain a finding of the ex istence of the preliminary fact, when: (1) [t]he relevance of the proffered evidence depends on the existence of the preliminary fact; [or] (2) [t]he preliminary fact is the personal knowledge of a witness concerning the subject matter of his testimony.” A preliminary fact serves as the founda tion for a court admitting a greater piece of evidence. For example, “[t]he existence of a conspiracy at the time the statement is made is the preliminary fact to the admissibility of the coco nspirator’s statement.” ( People v.

Herrera (2000) 83 Cal.App.4th 46, 61 ( Herrera ).) The standard of review for the trial court, when examining evidence offered under section 403, is whether it is supported by the preponderance of the evidence. ( Herrera , supra , 83 Cal.App.4th at p. 61.) Although preliminary fact questions are ultimately deci ded by the jury, the judge’s function is “ ‘to

determine whether there is evid ence sufficient to perm it a jury to decide the question.’ ” ( People v. Lucas (1995) 12 Cal.4th 415, 466-467.) 3 In weighing th e evidence of a preliminary fact, a trial judge necessarily exercises discretion, but should not admit a preliminary fact without proper indicia of reli ability; to do so would result in abuse of the court’s discretion. ( People v. Lucas

, supra , 12 Cal.4th at p. 466-467.) Where a party claims the trial court erred in admitting eviden ce, the determination of harm is reviewed in light of the entire record. ( Brea v. McGlashan (1934) 3 Cal.App.2d 454, 466.)

3 This analysis was reaffirmed in People v. Cottone (2013) 57 Cal.4th 269, 283-284.5 In the instant case, the re liability of the Web site is the preliminary fact to the admissibility of Bowden’s testimony regardin g the nature of appellant’s pills. The prosecution had the burden of establishing the reliab ility of the Web site by the preponderance of the evidence. (§ 403, subd. (a)(1); Herrera, supra, 83 Cal.App.4th at p. 61.) When Bowden was asked to establis h the trustworthiness of the Ident-A-Drug Web site, he testified that it was a Web site commonly used in his cr ime lab, and he had

used it numerous times to visu ally identify pills. However, Bowden was unaware of who authored the Web site, whet her it was hosted by the govern ment or a private entity, whether experts beyond his crime lab relied upo n it, whether there were any publications on the reliability of this Web s ite, and whether any organizations have certified the IdentA-Drug Web site for use in recognizing controlled substances. Although the prosecution presented a sk eletal foundation for the Web site’s reliability, the foundation was nevertheless suffi cient for the jury to weigh the evidence’s credibility. 4 However, appellant relies on People v. McChristian (1966) 245 Cal.App.2d 891 ( McChristian ), to argue that visual identificati ons of an alleged drug’s outward appearance is insufficient due to its speculative nature. In McChristian , a police officer thought he saw balloons inside of the defendant’s mouth an d, believing they contained heroin, unsuccessfully tried to recover the ballo ons from the fleeing defendant. ( Id. at pp. 894-895.) The evidence of the heroin wa s dismissed despite the police officer’s firm

belief that the balloons contained heroin be cause the balloons were never recovered or entered into evidence. ( Id. at pp. 896-897.) Appellant’s case is distinguishable from

McChristian because appellant’s narcotics were re covered, entered into evidence, and inspected by Bowden, an expert in drug identifica tion and analysis. Moreover, appellant’s admission regarding the nature of the pills was consis tent with Bowden’s Ident-A-Drug identification. Accordingly, th e trial court did not abuse its discretion by submitting this prelim inary question to the jury. (§ 1220.)

4 We express no opinion re garding the general admissi bility of the Ident-A-Drug Web site, or any similar Web site.6 Nevertheless, appellant argues that the tr ial court abused its discretion by allowing Bowden to testify based upon information th at was unreliable and beyond the scope of his expertise. Appellant claims that th is constituted a viola tion of section 801. Section 801 states that, “If a witness is te stifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is: . . . (b) [b]ased on matter (including his special knowledge, skill, experience, training, and ed ucation) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that r easonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.” Although the premised material upon which an expert relies need not be admissible, it must still be of the type relied on by experts in the particul ar field when forming their opinions. ( People v. Gardeley (1996) 14 Cal.4t h 605, 618 ( Gardeley ).) The material an expert depends upon must be reliable in order to prevent the court from giving the expert creden ce when his underlying data lacks apparent integrity. ( Gardeley, supra, 14 Cal.4th at p. 618

. ) Hence, speculative sources or data are not the proper bases for expert opinion, and testimon y premised upon thes e foundations should be rejected by the trial court. ( Long v. California-Western States Life Ins. Co. (1955) 43 Cal.2d 871, 880.) That said, the trial court has broad discre tion when ruling on foundational matters upon whic h an expert may rely. ( Korsak v. Atlas Hotels, Inc. (1992) 2 Cal.App.4th 1516.) Consistent with this broad discretion, the na ture of a controlled substance may be established by circumstantial evidence, in cluding visual identifications by qualified experts. ( People v. Sonleitner (1986) 183 Cal.App.3d 364, 369-370.) Thus, to be deemed inadmissible, th e challenged material must be largely based on speculation or conjecture. ( Sargon Enterprises, Inc. v. Uni versity of Southern California (2012) 55 Cal.4th 747, 770.) In the instant case, the fa ct the foundation for the Iden t-A-Drug Web site was not exhaustively detailed does not suggest that Bowden’s conclusions were speculative, conjectural, or lacking a reasonable basis. Bowden had many years of experience as a7 criminalist testing and iden tifying illicit drugs. Bowden re asonably relied on the Ident-ADrug Web site–a reference tool he had used on numerous occasions–to confirm his visual inspection of the challenged pills. Indeed, similar methods of identification are common practice in many jurisdictions. ( Jones v. Commonwealth (Ky. 2011) 331 S.W.3d 249, 254-255 [qualified chemists visually iden tified a drug as alprazolam based upon its shape, color, and markings]); State v. Carter (La.App. 2008) 981 So.2d 734, 744 [expert in forensic chemistry identified the “gre en pills” as containi ng Hydrocodone by performing a “visual inspection and comparison with pictures in a book”]; State v. Stank (Wis.App. 2005) 708 N.W.2d 43, 55 [forensic scientist identif ied a pill as Oxycontin by, among other things, using a Physician’s Desk Reference ]. The fact that Bowden did not know particular details about th e tool he used to assist in identifying the pills–i.e. the Web site’s authors, who main tained the Web site, and whet her other experts beyond his office relied upon the Web site–does not estab lish that his identification was based on speculation or conjecture. Thus, we find that the materials Bowden relied upon to form the basis of his testimony are of the type re asonably relied upon by e xperts in his field,

and the trial court did not abus e its discretion in allowing his testimony. To the extent appellant insists that Bowden’s identifica tion was faulty for not including a chemical analysis, these challenges go to the weight of Bowden’s testimony, not its admissibility. However, assuming arguendo that the tria l court did err in allowing Bowden to rely on the Web site to identify the nature of the pills, appellant hi mself admitted to the same evidence offered against him by Bowden. Where a party-opponent admits to the same evidence offered against him, any error is manifestly harmless under any standard. ( People v. Mills (2010) 48 Cal.4th 158, 194.) Th us, appellant’s admission made Bowden’s identification of the pills s uperfluous and therefore harmless. ( People v. Barney (1992) 8 Cal.A pp.4th 798, 826.) C. No Undue Prejudice Appellant alleges that Bowden’s relia nce on the Web site was improper, which unduly prejudiced the jury, resulting in hi s conviction for possessing methamphetamine for sale. (§ 352.) Section 352 states that , “[t]he court in its discretion may exclude8 evidence if its probative value is substantia lly outweighed by the probability that its admission will (a) necessitate undue consumptio n of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”

“Exclusion of evidence under Evidence Code section 352 is reserved for those cases where the proffered evid ence has little evidentiary valu e and creates an emotional bias against the defendant.” ( Ajaxo Inc. v. E*Trade Group, Inc. (2005) 135 Cal.App.4th 21, 45.) “A trial court’s decision to admit or exclude evidence is a matter committed to

its discretion ‘ “and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of ju stice.” ’ [Citation.]” ( People v. Geier (2007) 41 Cal.4th 555, 585, overruled on another point in Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305.) This does not include prejudice th at stems from relevant , highly probative evidence. ( People v. Mullens (2004) 119 Cal.App.4th 648, 658.) Compelling evidence of similar, uncharged offenses may be highly probative of one’s intent in the charged crime, unless it is merely cumulative on the issue. ( People v. Balcom (1994) 7 Cal.4th 414, 422-423.) In the instant case, appellant was charged and found guilty of possessing methamphetamine with intent to sell. (H ealth & Saf. Code, § 11378.) The prosecution introduced evidence showing that appellant possessed 4.51 grams of methamphetamine, scales, baggies, a pipe, and pills that appe llant believed to be certain opiate-based narcotics. While appellant’s possession of th e pills was an uncharge d offense, the trial court allowed the evidence because it was pr obative of appellant’s intent to sell the methamphetamine. Because the ev idence is relevant and high ly probative of appellant’s intent for the crime charged, any prejudice ap pellant may have suffered did not rise to the level necessary for exclusion un der section 352. Thus, we find that the trial court did not abuse its discretion by allowing the presence a nd nature of appellant’s pills to be admitted to the jury.9 II. DISPOSITION Judgment is affirmed.10 _ ____________ ____________ REARDON, J.

We concur:

_____________ ____________ RUVOLO, P. J.

_____________ ____________ HUMES, J.