Filed 5/14/18
                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                           DIVISION SIX


THE PEOPLE,                                    2d Crim. No. B283895
                                            (Super. Ct. No. 2015033556)
     Plaintiff and Respondent,                   (Ventura County)

v.

JOSE ANTONIO ESPINOZA,

     Defendant and Appellant.



            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
                                                                        1
clonazepam pills) in a jail facility (Pen. Code, § 4573.6, subd. (a))
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.


       All further statutory references are to the Penal Code,
        1


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 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 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. The manner in
                                                  2



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


      Appellant has an extensive “rap sheet” and had nine
      2


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.
