People v. Doss

• Citation: 6 Cal.Rptr.2d 590,4 Cal.App.4th 1585
• Decision Date: 01 April 1992
• Docket Number: No. B046265,B046265
• Court: California Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph Vincent DOSS, Defendant and Appellant.

Page 590

6 Cal.Rptr.2d 590

4 Cal.App.4th 1585

PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph Vincent DOSS, Defendant and Appellant.

No. B046265.

Court of Appeal, Second District, Division 2, California.

April 1, 1992.

Review Denied June 24, 1992.

Russell Iungerich, Gary E. Gibbs, Los Angeles, for appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Acting Sr. Asst. Atty. Gen., Linda C. Johnson, Supervising Deputy Atty. Gen., Paul C. Ament, Deputy Atty. Gen., for respondent.

MANELLA, Associate Justice. ^*

Defendant Joseph Doss, a pharmacist, was convicted following a jury trial of four counts of possession for sale of four controlled substances. In counts 1, 2, and 3, he was found guilty of possessing for sale Glutethimide (Doriden), Secobarbital/Amobarbital (Tuinal), and Amphetamine (Biphetamine), in violation of Health and Safety Code section 11378. In count 4, he was found guilty of possessing for sale Hydromorphone (Dilaudid) in violation of Health and Safety Code section 11351. He was placed on probation for a period of four years, on condition, inter alia, that he spend nine months in county jail and pay a $5,000 fine.

On appeal, defendant challenges both the legal and factual sufficiency of the evidence, the admissibility of the agent's expert testimony, and the trial court's denial of his motion to suppress. We affirm.

Summary of Evidence

The evidence, taken in the light most favorable to the judgment (People v. Barnes (1986) 42 Cal.3d 284, 303, 228 Cal.Rptr. 228, 721 P.2d 110), established that over a 15-month period, defendant, the owner of Medical Memorial Pharmacy, ordered and took possession of large quantities of certain controlled substances in high dosages. The drugs were of a type rarely prescribed by physicians but in high demand among the illegal street trade. At the end of the 15-month period, an audit of defendant's pharmacy revealed that none of the ordered drugs were in stock; that there were no prescription forms to account for the legal distribution of any of the drugs as required by law; that defendant had no inventory of drugs in stock as required by the Drug Enforcement Administration; and that there had been no reported burglaries of defendant's pharmacy to account for the disappearance of the drugs.

Bureau of Narcotics Enforcement Agent Paul King, after being found qualified as an expert, testified to the effects of the four drugs, to their popularity as street drugs, and to the rarity with which they were currently prescribed by physicians. He opined that if a pharmacy had ordered and taken possession of the quantities of Glutethimide (Doriden) and Dilaudid ordered by defendant over the period in question, and at the end of that period none of the drugs were in stock, no prescriptions existed to show their proper distribution, no packing or shipping invoices existed, no DEA-required inventory had been prepared, and there were no known thefts, the drugs had been possessed with the intent to engage in illegal street sales.

On appeal, defendant alleges the evidence was legally insufficient to warrant its submission to the jury and factually insufficient to sustain his convictions. He further challenges the qualifications of Agent King as an expert and alleges that his opinion testimony was improperly admitted. Finally, he challenges the trial court's denial of his motion to suppress evidence obtained by the State Board of Pharmacy inspector during his audit of defendant's pharmacy records.

Legal Sufficiency of the Evidence

Defendant alleges that the trial judge erred in allowing the case to go to the jury. Specifically, he contends that in the absence of evidence that he illegally possessed drugs outside pharmacy premises, he was immunized from prosecution by Business and Professions Code section 4230. As a matter of first impression, this case squarely presents the issue whether a pharmacist is immune from prosecution for illegal possession of controlled substances, absent evidence he removed the drugs from pharmacy premises.

Counts 1, 2, and 3 of the information charged defendant with possession for sale of Doriden, Tuinal, and Biphetamine, in violation of Health and Safety Code section 11378. That section provides in relevant part:

"Except as otherwise provided in Article 7 (commencing with Section 4211) of Chapter 9 of Division 2 of the Business and Professions Code, every person who possesses for sale any controlled substance.... shall be punished by imprisonment in the state prison." (Emphasis supplied.)

The Business and Professions Code sections referred to above include section 4230, which provides:

"No person shall have in possession any controlled substance, except that furnished to such person upon the prescription of a physician, dentist, podiatrist, or veterinarian. The provisions of this section do not apply to the possession of any controlled substance by a manufacturer or wholesaler or a pharmacy or physician or podiatrist or dentist or veterinarian, when in stock in containers correctly labeled with the name and address of the supplier or producer." (Emphasis supplied.) ¹

Defendant contended below, and maintains on appeal, that Business and Professions Code section 4230 immunized him from prosecution because he was a pharmacist and there was no evidence he withdrew the missing drugs from the pharmacy premises.

The argument fails. The obvious purpose of Business and Professions Code section 4230 is to authorize the possession for sale of certain controlled substances by licensed pharmacists, on pharmacy premises, to those holding valid prescriptions. It does not confer blanket immunity on a pharmacist to deal drugs illegally from behind the counter or to possess them with that intent. Significantly, section 4230 authorizes the possession of certain controlled substances by "a pharmacy," rather than an individual pharmacist, and does so only on condition that the drugs be "in stock" in correctly labeled containers. (See People v. Kessler (1967) 250 Cal.App.2d 642, 646-647, 58 Cal.Rptr. 766.) Clearly, a pharmacist who purchases controlled substances with the intention of distributing them to persons not holding valid prescriptions is not conducting the ordinary business of the pharmacy, and the drugs are not "in stock" for the pharmacy's legal business.

Courts have consistently rejected claims by health care professionals of absolute immunity from prosecution for illegal possession and distribution of controlled substances. In United States v. Moore (1975) 423 U.S. 122, 96 S.Ct. 335, 46 L.Ed.2d 333, the Supreme Court held that a physician registered under the Controlled Substances Act could be prosecuted for dispensing controlled substances outside the usual course of his professional practice. The Court found no blanket exemption shielded physicians from prosecution for unauthorized distribution of controlled substances. Similarly, in People v. Marschalk (1962) 206 Cal.App.2d 346, 23 Cal.Rptr. 743, the court affirmed a nurse's conviction for illegal possession of a narcotic, rejecting her claim that she was privileged to possess the drug. Noting first that any privilege to possess a narcotic must be affirmatively shown by the defendant, the court continued:

"It is true that the general statutory plan is to grant certain privileges to physicians, pharmacists and others engaged in the care of the sick, in respect to the use of otherwise unlawful drugs. These privileges, however, are not absolute. (People v. Nunn (46 Cal.2d 460, 467 .) The statutes and cases carefully circumscribe the possession and use of narcotics by such privileged persons to the purpose of the privilege.... When the handling of the narcotic is for a purpose not connected with the privilege, the possession is unlawful. (People v. Ard, 25 Cal.App.2d 630 ; People v. Wallace, 109 Cal.App.2d 676 ; People v. Silver, 176 Cal.App.2d 377 .)" (206 Cal.App.2d at p. 350, 23 Cal.Rptr. 743.)

Pharmacists have fared no better. In People v. Kessler, supra, 250 Cal.App.2d at p. 645, 58 Cal.Rptr. 766, the court upheld a conviction of a licensed wholesale pharmacist for illegal possession for sale of dangerous drugs, where the drugs were not in stock in correctly labeled containers. And in People v. Silver (1979) 176 Cal.App.2d 377, 1 Cal.Rptr. 179, the court rejected a claim by a pharmacist that he could not be guilty of the unlawful possession of narcotics which he had lawfully acquired. In so doing, the court expressly approved an instruction that "[a] person in lawful possession of one of the listed narcotics becomes a violator of the statute if the possession ceases to be lawful." (Id. at p. 380, 1 Cal.Rptr. 179.) Although both Silver and Kessler involved a pharmacist's possession of drugs outside pharmacy premises, the distinction is immaterial, for the privilege of a pharmacist to possess controlled substances extends no further than the activities incidental to the lawful distribution of such substances. To hold otherwise would be to immunize from prosecution a pharmacist who blatantly advertised, "Controlled Substances Sold Here To The Highest Bidder--No Prescriptions Required." Simply put, a pharmacy is not a sanctuary from which controlled substances may be illegally distributed or possessed for that purpose. ²

Defendant does not contend the trial court improperly instructed the jury on the meaning of Business and Professions Code section 4230, but only that under section 4230 he could not have been found guilty of the charged offenses. Because we hold that section does not confer blanket immunity on a pharmacist to possess controlled substances for any purpose on pharmacy premises, the case was properly submitted to the jury.

Factual Sufficiency of the Evidence

Defendant argues that apart from the exemption provided by Business and Professions Code section 4230, the evidence was insufficient to...