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People v. Hamernik

California Court of Appeals, Fourth District, Second Division

July 11, 2016

THE PEOPLE, Plaintiff and Respondent,
v.
KRISTIE MARIE HAMERNIK, Defendant and Appellant

         As modified Aug. 2, 2016.

          APPEAL from the Superior Court of Riverside County, No. RIF1204202, Irma Poole Asberry, Judge.

          Reversed.

Page 413

[Copyrighted Material Omitted]

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         COUNSEL

         Paul J. Katz, under appointment by the Court of Appeal, for Defendant and Appellant.

         Kamala 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.

         Opinion by Miller, J., with Hollenhorst, Acting P. J., and McKinster, J., concurring.

          OPINION

          [204 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[1] 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.

         Defendant 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 (b).

Page 416

         We 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 conviction.

         FACTUAL AND PROCEDURAL HISTORY

         A. Procedural History

         The 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.

         After 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.

         B. Factual History

         1. People's Case-in-chief

         Debbie 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.[2]

Page 417

         On June 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.

         Prior 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.

          [204 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.

         Miller 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.

         Esperanza 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.

         Ladia 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 ...


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