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Name: People v. Mooring
Case #: A143470
Court: CA Court of Appeal
District 1 DCA
Division: 5
Opinion Date: 09/27/2017

Expert testimony that pills possessed by defendants matched pills displayed on “Ident-A-Drug” website was properly admitted because the website came within the published compilation exception to the hearsay rule and was not testimonial. Officers executed a search warrant on Mooring and Davis’ shared home and found over 4,000 prescription pills. Using Ident-A-Drug, a subscription-based, login controlled website that compiles information from the Food and Drug Administration and pharmaceutical manufacturers, the prosecution’s criminalist presumptively identified the pills as various controlled substances. Mooring and Davis were convicted of various drug possession for sale charges. They appealed, arguing that the criminalist’s testimony regarding the content of the Ident-A-Drug website was inadmissible hearsay. Held: Reversed in part. Evidence Code section 1340 provides that evidence of a 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 section 1270. This court concluded the Ident-A-Drug website was an organized compilation of information from reliable sources that was generally accepted in the scientific community. The court distinguished its decision in People v. Stamps (2016) 3 Cal.App.5th 988 because the People in that case had conceded Ident-A-Drug’s content was hearsay and proposed no hearsay exception. The Court of Appeal further determined that Ident-A-Drug’s content was not testimonial because the website’s primary purpose was to collect and compile information about pharmaceutical pills and not to gather or preserve evidence for criminal prosecution. The testimony was admissible.

In light of the circumstantial evidence, chemical testing was not necessary to prove the identity of the controlled substances. Appellants acknowledged that chemical analysis is not required to establish the identity of a controlled substance but argued that the evidence in this case was insufficient to prove the pills were controlled substances. However, the criminalist presumptively identified the prescription pills and testified she did not believe they were counterfeit. The appellants’ doctor also testified that the defendants were each prescribed numerous prescription pills, some of which were found in pill bottles among the 4,000 pills in their home. There was also sufficient evidence to establish that the appellants had constructive possession of the various pills because the appellants jointly occupied the home in which the drugs were found.

Appellants’ conviction for violating Health and Safety Code section 11351 must be reversed because the prosecution failed to prove that dihydrocodeinone/Vicodin is a controlled substance under the relevant code sections. Appellants were convicted of possessing dihydrocodeinone/Vicodin under Health and Safety Code section 11351, which makes it a felony to possess for sale a controlled substance specified in section 11055, subdivisions (b) or (c), or section 11056, subdivision (h). Here, appellants were charged with possessing “dihydrocodeinone, a controlled substance,” and the jury was told it would be referred to as Vicodin. Neither dihydrocodeinone nor Vicodin are specifically listed in sections 11055 and 11056 as a controlled substance. The Court of Appeal rejected the People’s argument that dihydrocodeinone is the same controlled substance as hydrocodone. (See People v. Davis (2013) 57 Cal.4th 353.) As a result, the evidence was insufficient to establish that appellants possessed a controlled substance in violation of section 11351 for this count. The court reversed the judgment on this single count and remanded for resentencing, but otherwise affirmed all other drug convictions.

The full opinion is available on the court’s website here: