People v. Alexander
| Decision Date | 21 March 1986 |
| Citation | 178 Cal.App.3d 1250,224 Cal.Rptr. 290 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Joanne ALEXANDER, et al., Defendants and Appellants. H000790. |
Conflicts Administration Program, Philip H. Pennypacker, Adm'r, under appointment by the Court of Appeal, Michael A. Kresser, Chief Appellate Atty., James McNair Thompson, under appointment by the Court of Appeal, San Jose, for defendants and appellants.
John R. Van de Kamp, Atty. Gen., Robert R. Granucci, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.
Did the Legislature's inadvertent elimination of the sanctions against selling phencyclidine ("PCP") cause a prosecution for such sales that had not yet reached final judgment to abate? As we explain, the answer is no.
Defendants Gregory Pina and Joanne Alexander appeal from judgments entered after a court trial in which they were found guilty of possession for sale and sale of PCP (Health & Saf.Code, §§ 11378.5, 11379.5). 1
On March 29 and again on April 2, 1984, undercover narcotics officers for the San Jose Police Department bought a bindle of PCP from defendants at their residence. On April 28, police returned and arrested them. At that time, both defendants consented to an immediate search of the premises, during which police found 6 to 7 PCP cigarettes and 21 grams of PCP, with an estimated street value of $1800 to $2300.
In October a preliminary examination was held, and on November 5, 1984, defendants were arraigned in the Santa Clara County Superior Court on an information charging them with possession for sale and sale of PCP. Both defendants pleaded not guilty.
On January 24, 1985, defendants moved to dismiss the charges of selling PCP on grounds that recent amendments to the Health and Safety Code repealed the proscription against sale of PCP and, therefore, that the proceedings against them on those charges abated as a matter of law.
The trial court denied the motion. Thereafter, defendant Pina was convicted of 2 counts of selling PCP and defendant Alexander was convicted of 1 count of possession for sale and 1 count of selling PCP. Both defendants received two 3-year prison terms, one for each count. The terms were made concurrent with each other.
On appeal, defendants reiterate their claim that the proceedings against them for selling PCP abated and, therefore, that the trial court erred in denying their motion to dismiss these charges. 2
We recount briefly the history of PCP regulation because it provides a valuable context within which to view the alleged "repeal" of the sanctions against selling PCP and helps explain our analysis and conclusion.
In 1972, the California Legislature passed the California Uniform Controlled Substances Act (the "Act"), section 11000 et seq., which provides a pervasive and unified system to regulate legitimate uses and control unlawful traffic in and the abuse of prescription and nonprescription drugs, certain chemical compounds, and organic substances. (Stats.1972, ch. 1407, § 3, [178 Cal.App.3d 1254] p. 2987; see Review of Selected 1972 California Legislation (1973) 4 Pacific L.J. 211.) The Act comprised a new division 10 of the Health and Safety Code. In passing the Act, the Legislature repealed, inter alia, former division 10, which regulated "Narcotics" and division 10.5, which regulated "Restricted Dangerous Drugs." (Stats.1972, ch. 1407, §§ 2, 4, pp. 2989, 3042; see generally, No. 40 West's Annot.Health & Saf.Code (1975 ed.) pp. 156, 179; see also Review of Selected 1972 California Legislation (1973) 4 Pacific L.J. 211, 382-383.) The new division 10 established a single, general category called "Controlled Substances," which was broken down into five separate lists or "schedules." ( §§ 11054-11058.) 3
For purposes of enumeration, the Act abandoned the distinction between "Narcotics" and "Restricted Dangerous Drugs" that had been embodied in former divisions 10 and 10.5. However, the Act indirectly maintained this distinction in setting forth the crimes involving controlled substances. Thus, article 1, chapter 6 of the Act( §§ 11350-11356) is headed "OFFENSES INVOLVING CONTROLLED SUBSTANCES FORMERLY CLASSIFIED AS NARCOTICS"; and article 5 ( §§ 11376-11382.5) is headed "OFFENSES INVOLVING CONTROLLED SUBSTANCES FORMERLY CLASSIFIED AS RESTRICTED DANGEROUS DRUGS." The sections in article 1 incorporate those controlled substances that were formerly called "Narcotics" by specific cross-reference to the five schedules. Similarly, the sections in article 5 incorporate those controlled substances that were formerly called "Restricted Dangerous Drugs" by specific cross-reference. (See §§ 11350, 11351, 11352, 11353, 11355, 11377, 11378, 11378.5, 11379, 11379.5, 11380, 11380.5, 11382.) Both article 1 and article 5 contain sections that proscribe, among other things, possession, possession for sale, sale, use of minors by adults to commit proscribed acts, and sale of substances falsely represented as controlled substances. Read together, the two articles form a set of complementary statutes covering all controlled substances. 4
In the original Act, the Legislature placed PCP on Schedule III, former section 11056, subdivision (b)(7). (See Stats.1972, ch. 1407, § 3, p. 2994.) At that time, PCP offenses were included in the general statutes proscribing acts involving substances formerly called "Restricted Dangerous Drugs." (See former §§ 11377-11380 (Stats.1972, ch. 1407, § 3, pp. 3021-3023, 3028).)
However, in 1978, in apparent reaction to the reported devastating effects of PCP, the Legislature changed this arrangement of PCP and PCP offenses in the Act. (See Review of Selected 1978 California Statutes (1979) 10 Pacific L.J. 247, 406-407.) The Legislature took PCP off Schedule III and placed it in a new subdivision (e) to Schedule II, section 11055. 5 Besides repositioning PCP, the Legislature deleted PCP from the general statutes proscribing possession for sale and sale and added sections 11378.5 and 11379.5. These sections specifically proscribed possession for sale and sale of PCP and increased the punishment for these offenses from 2, 3, or 4 years to 3, 4, or 5 years in state prison. 6 (Stats.1978, ch. 699, §§ 4, 5, pp. 2212-2213; cf. former §§ 11378 and 11379 (Stats.1976, ch. 1035, § 4, p. 4635 and ch. 1139, § 83, p. 5084).)
At the same time, the Legislature increased the punishment for possession of certain precursors of PCP with intent to illegally manufacture PCP. 7 (See former § 11383 ().)
In 1981, the Legislature expanded section 11055, subdivision (e), (Schedule II) to include not only PCP, but also certain specified analogs of PCP. (See former § 11055, subds. (e)(1)-(e)(3) (Stats.1981, ch. 948, § 1, pp. 3619-3620).) The new subdivision also authorized the State Attorney General to add additional analogs to Schedule II. 8 (Id.)
In 1982, the Legislature continued its attack on PCP abuse. (See Review of Selected 1982 California Legislation (1982-83) 14 Pacific L.J. 357, 610-612.) The Legislature amended the Penal Code to preclude the granting of probation to persons convicted of knowingly furnishing or giving away PCP except in "unusual cases where the interests of justice would best be served." (Pen.Code, § 1203, subd. (e)(8); see Stats.1982, ch. 1282, § 2, p. 4743.) The Legislature also prohibited the grant of probation to or the suspension of the sentence of persons convicted of (1) possessing for sale more than a half ounce of PCP; (2) offering, attempting, or actually importing, transporting, or administering PCP; (3) offering, selling, or manufacturing PCP or inducing a minor to commit such acts; and (4) possession of precursors of PCP with the intent to manufacture PCP. (Pen.Code, § 1203.07, subds. (a)(4)-(a)(8); see Stats.1982, ch. 1282, § 3, pp. 4746-4747.) Finally, the Legislature added the manufacturing, selling, or compounding of more than a half ounce of PCP to those offenses which, when committed by a minor 16 years old or older, raise a presumption that the minor is unfit for trial in juvenile court. (Welf. & Inst.Code, § 707, subds. (b)(20) and (c); Stats.1982, ch. 1282, § 4.)
One anomaly in the Act that existed until 1984 was that for all purposes except the regulation of prescriptions, "controlled substances" were those listed in the five schedules. However, the sections regulating prescriptions ( §§ 11150-11208) used the schedules set forth in the Federal Controlled Substances Act (Tit. II, Pub.L. 91-513, 21 U.S.C. § 812). (See former § 11150.5 (Stats.1976, ch. 1305, § 7, pp. 4638-4639).) In chapter 1635 of the Statutes of 1984 ("chapter 1635"), the Legislature eliminated this dual schedule system and provided for the use of a single set of schedules for all purposes. (See Leg.Counsel's Dig., 14 West's Cal.Legis.Service (1984 ed.) p. 30.) The Legislature did this by repealing the California schedules and enacting new schedules which generally paralleled the federal ones.
Chapter 1635 made numerous changes in the schedules. Among them, it expanded the list in Schedule II, section 11055, of PCP related substances and reorganized their placement. 9 The new schedules necessitated enactment of conforming amendments to update the internal cross-references in other sections of the Act.
The conforming amendments to those sections relating to offenses involving controlled substances formerly called "Narcotics" reflected minor changes in cross-reference numbers, and caused no change in the substance of the law. 10
However, as to the sections which dealt with offenses involving substances formerly called ...
To continue reading
Request your trial
-
Daghlian v. Devry University, Inc., CV06-00994MMM(PJWx).
......& Inv., 253 F.3d at 527 (quoting People v. Massie, 19 Cal.4th 550, 569, 79 Cal.Rptr.2d 816, 967 P.2d 29 (1998), cert. denied, 526 U.S. 1113, 119 S.Ct. 1759, 143 L.E d.2d 790 (1999)). See ...Alexander, 178 Cal.App.3d 1250, 1261-62, 224 Cal. Rptr. 290 (1986) ("Chapter 1635's sudden inconsistent and incongruous treatment of PCP offenses .. strongly ......
-
Boultinghouse v. Hall, SA CV 07-142-AHM(E).
...substances according to five "Schedules." See Cal. Health & Safety Code §§ 11054-11058; 21 U.S.C. § 812; People v. Alexander, 178 Cal.App.3d 1250, 1256-57, 224 Cal.Rptr. 290 (1986) (describing 1985 revision of California's Controlled Substances Act included schedules which "generally parall......
-
People v. Florez
...predecessor statutes in the course of a complex reorganization of a portion of the code. Similarly, in People v. Alexander (1986) 178 Cal.App.3d 1250, 1265, 224 Cal.Rptr. 290, this court rejected a contention that the Legislature had impliedly pardoned the defendant for his sale of PCP when......
-
Pedro T., In re
... . Page 74 . 36 Cal.Rptr.2d 74 . 8 Cal.4th 1041, 884 P.2d 1022 . In re PEDRO T., a Person Coming Under the Juvenile Court Law. . The PEOPLE, Plaintiff and Respondent, . v. . PEDRO T., Defendant and Appellant. . No. S032514. . Supreme Court of California, In Bank. . Dec. 12, 1994. . ...Figueroa (1993) 20 Cal.App.4th 65, 69, 24 Cal.Rptr.2d 368, review den. Feb. 3, 1994 ("governing rule"); People v. Alexander (1986) 178 Cal.App.3d 1250, 1259, 224 Cal.Rptr. 290 ("common law rule"); People v. Community Release Bd. (1979) 96 Cal.App.3d 792, 799, 158 ......