California Court of Appeals, Fourth District, Second Division
modified Aug. 2, 2016.
from the Superior Court of Riverside County, No. RIF1204202,
Irma Poole Asberry, Judge.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Katz, under appointment by the Court of Appeal, for Defendant
D. Harris, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Julie L. Garland, Assistant
Attorney General, Melissa Mandel and Stephanie H. Chow,
Deputy Attorneys General, for Plaintiff and Respondent.
by Miller, J., with Hollenhorst, Acting P. J., and McKinster,
Cal.Rptr.3d 652] MILLER, J.
Defendant and appellant Kristie Marie Hamernik was a licensed
vocational nurse employed at the Vista Cove Care Center in
Corona. Defendant was suspended from work but returned to the
facility purportedly to retrieve personal items. While at the
facility, she entered the room of one of her former patients,
Eiko Dorsch. Eiko used a mechanism called a CADD pain
pump, which delivered pain medication to her intravenously.
After defendant visited Eiko, the medication in the pain pump
was empty. Defendant was found guilty of attempted possession
of a controlled substance.
makes two claims on appeal as follows: (1) the trial court
erred by finding that attempted possession of a controlled
substance was a lesser included offense of possession of a
controlled substance, thereby substituting the attempted
possession of a controlled substance for the drug possession
charge after granting defendant's motion to dismiss the
greater charge at the end of the People's case-in-chief,
and (2) the trial court erred by admitting prior acts
evidence pursuant to Evidence Code section 1101, subdivision
agree with defendant that the trial court erred by
substituting attempted possession [204 Cal.Rptr.3d 653] of a
controlled substance for the possession of a controlled
substance. Moreover, we reject that we can correct the error
by ordering the trial court to amend the information or that
such error was harmless. We reverse defendant's
AND PROCEDURAL HISTORY
information filed against defendant by the California
Attorney General's Office charged her with unlawful
possession of a controlled substance, Dilaudid, in violation
of Health and Safety Code section 11350, subdivision (a)
(count 1). She was also charged with misdemeanor theft from
an elder of property not exceeding $950 within the meaning of
Penal Code section 368, subdivision (d)(2) (count 2). After
the presentation of evidence, the trial court dismissed the
possession of a controlled substance charge, and substituted
attempted possession of a controlled substance for the charge
in count 1, a lesser related offense. The jury found
defendant guilty of attempted possession of a controlled
substance within the meaning of Penal Code section 664 and
Health and Safety Code section 11350, subdivision (a).
Defendant was found not guilty of theft from an elder.
she was convicted, defendant filed a motion to have her
conviction of attempted possession of a controlled substance
reduced to a misdemeanor pursuant to Penal Code section
1170.18, e.g., Proposition 47. The motion was granted. On
November 14, 2014, defendant was granted summary probation
for a period not to exceed 36 months. Defendant filed a
notice of appeal on November 21, 2014.
Dorsch was Eiko's daughter. In June 2012, Eiko was a
resident at Vista Cove Care Center in Corona (Vista Cove).
Eiko was 79 years old at the time; she was at Vista Cove
because she had terminal cancer. Defendant was a licensed
vocational nurse (LVN) and one of Eiko's nurses at Vista
Cove. The decision was made that Eiko not be treated with
chemotherapy drugs or radiation; she was treated with "
comfort measures," i.e., pain medication. The pain
medication was dispensed through a CADD pump.
28, 2012, at around 9:00 p.m., Debbie was visiting Eiko at
Vista Cove. At around that time, defendant came to Eiko's
room. Defendant was not wearing a uniform. Defendant sat on
the other bed in the room, which was empty. Debbie asked her
what she was doing. Defendant told her that she was hiding
from the other patients. Defendant did not otherwise talk to
Debbie and Eiko. Defendant was still in the room when Debbie
left to go home. Defendant was the only one in the room.
to that night, Debbie had seen defendant handling the CADD
pump belonging to Eiko. Debbie had seen her use a key to open
up the CADD pump; she had seen defendant touch buttons, and
had seen her handle the cassette that contained the pain
medication, which was placed in the CADD pump. Defendant had
touched the pump at least six times.
Cal.Rptr.3d 654] Debra Miller had worked at Vista Cove as a
certified nursing aide. Miller had cared for Eiko. The only
authority Miller had to touch the CADD pump was to reposition
it when she would move Eiko in the bed. On June 28, Miller
was in Eiko's room around 9:00 p.m. She saw defendant
sitting on the other bed in the room playing on her cell
phone. She was in regular clothes.
turned her back to defendant to write on a white board that
was in the room. She asked defendant if she would want to go
outside and have a cigarette during her break but defendant
told her she had quit smoking. When Miller turned back
around, defendant was standing over Eiko. She had the pain
pump in her hand. She told Miller that the medication was
almost gone. Defendant left the room. Miller went to her
supervisor because she thought it was strange defendant was
holding the pain pump.
Ladia was a registered nurse. In 2012, she was the shift
supervisor from 3:00 p.m. to 11:00 p.m. at Vista Cove. Ladia
supervised the giving of intravenous drugs including through
the CADD pump. As a registered nurse, she was qualified to
change the pain medication in the pumps. Defendant, as an
LVN, would not be allowed to remove an empty pain cassette
for a patient or change the dosage.
cared for Eiko. Ladia could not recall without the records
what kind of medication Eiko had in the CADD pump. Ladia
checked Eiko's pump at 3:30 p.m. on June 28; it was
working. There were 32 milliliters of pain medication
remaining in the pump. Ladia went to Eiko's room ...