Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F3053.
ROBIE, J.
At a probation revocation hearing, the trial court found defendant Angelina Mae James violated the terms of her probation by using a controlled substance. As a consequence, the court terminated defendant’s probation and imposed a three-year prison sentence.
Defendant appeals the termination of her probation contending that the court should not have admitted hearsay statements contained in the laboratory report of defendant’s drug test. Specifically, she contends the second portion of the laboratory report was not admissible under either the business record exception or the reliable hearsay exception to the hearsay rule, and the People failed to show good cause why the laboratory report was presented in lieu of live testimony. Finding no merit in her argument, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2006, defendant was charged with one count of corporal injury to a cohabitant and one count of vandalism. She pled no contest to the corporal injury charge in exchange for the dismissal of the vandalism charge. She was placed on three years’ probation.
Petitions for revocation of probation were sustained on three prior occasions. On February 19, 2010, the probation department filed yet another petition for revocation of probation alleging that defendant violated the terms of her probation by using methamphetamine.
In a probation revocation hearing on April 20, 2010, the only evidence submitted by the People was defendant’s drug test results. The laboratory report containing the results includes two parts. The first part shows the results of an initial drug test that test for the presence of amphetamines and opiates. The second part shows the results of a detailed test identifying the types of amphetamine and opiate.
Ken Cole, a microbiologist with the public health laboratory for Shasta County, testified that he analyzed defendant’s urine specimen for the first part of the test. The test resulted in a positive reading for the presence of amphetamines and opiates, but the test did not determine the type of amphetamine and opiate in defendant’s urine. To determine the type of amphetamine and opiate, the urine sample was sent to another laboratory for a confirmation test, but Cole was not involved with the second test and did not see the results. He did testify that the confirmatory test is relied upon for amphetamines and opiates and that those are the only drugs that are sent out for a confirmation test. Based on the initial test alone, Cole said he could “make the assumption there is an amphetamine and an opiate in that urine specimen, ” but could not “tell you which one it is because we’re screening for a general group of amphetamines and opiates.” At the hearing, no witness was called to testify about the second test conducted on defendant’s urine specimen. The second test, however, confirmed the presence of amphetamine and opiate, and also determined them to be methamphetamine and hydrocodone.
Defense counsel objected to the admission of the second part of the laboratory report as inadmissible hearsay. The court overruled the objection because “[t]here was sufficient business record exception testimony to have the foundation laid.”
The court sustained the petition against defendant explaining that “although there was some confusion demonstrated in the testimony of Mr. Cole about presumptive tests, confirmatory tests, he did indicate that he was satisfied from his own test that there were controlled substances in the sample....” (Italics added.) The court later sentenced defendant to three years in prison with a recommendation of placement into the Pregnant and Parenting Women’s Alternative Sentencing Program.
DISCUSSION
Defendant contends the trial court abused its discretion by admitting the laboratory report; however, the substance of her argument is really that the court abused its discretion by admitting the second portion of the report, which showed the result of the second, more detailed test, showing the presence of methamphetamine. While it appears from the record that it is questionable whether the adequate foundation for the second portion of the laboratory report was laid by Cole, it is of no consequence because the trial court did not rely on the second portion of the report in making its ruling. The court based its ruling on Cole’s testimony “that he was satisfied from his own test that there were controlled substances in the sample....” This testimony was based only on the top portion of the laboratory report, which indicated defendant had at least 300 nanograms of opiates and amphetamines per milliliter of urine. So, even if the trial court improperly admitted the second portion of the laboratory report, it was not prejudicial because the court did not rely on that part of the report in making its ruling.
Thus, the question becomes whether the first portion of the laboratory report, and Cole’s testimony based on that portion of the report, was sufficient to prove a probation violation. The prosecution is required to prove a probation violation by a preponderance of the evidence. (People v. Rodriguez (1990) 51 Cal.3d 437, 441, 447; People v. Kurey (2001) 88 Cal.App.4th 840, 849.) On a challenge to the sufficiency of such evidence, the judgment must be upheld on appeal if it is supported by substantial evidence, i.e., evidence from which a fact finder could reasonably conclude that the standard of proof (here preponderance of evidence) has been met. (Kurey, at pp. 848-849; People v. Johnson (1980) 26 Cal.3d 557, 576.)
During the course of arguing prejudice from the allegedly erroneous admission of the second part of the laboratory report, defendant argues a finding that she violated probation could not be based solely on the top portion of the laboratory report. More specifically, she argues that evidence of amphetamine use is insufficient to establish a probation violation because “there are legal over-the-counter and prescription medications that contain amphetamine....” Defendant, however, offered no evidence at trial to support this contention. On appeal, she previously asked us to take judicial notice of two medical journal articles to establish this contention, but we denied that request. Accordingly, on the record before us, we cannot say that the presence of amphetamine in defendant’s urine might have been from something other than a controlled substance. Therefore, we must affirm the trial court’s ruling.
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON, Acting P. J., HOCH, J.