Hamernik

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 pain pump had been emptied of medication. 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).

We agree with defendant that the trial court erred by substituting…