People v. Aston, Cr. 11261

CourtCalifornia Court of Appeals
Writing for the CourtJohn K. Van de Kamp and George Deukmejian, Atty. Gens., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., William George Prahl, Patricia C. Esgro, Garrett Beaumont; BLEASE; CARR; EVANS
Citation162 Cal.App.3d 658,208 Cal.Rptr. 754
Decision Date13 December 1984
Docket NumberCr. 11261
PartiesThe PEOPLE, Plaintiff and Respondent, v. John G. ASTON et al., Defendants and Appellants.

Page 754

208 Cal.Rptr. 754
162 Cal.App.3d 658
The PEOPLE, Plaintiff and Respondent,
v.
John G. ASTON et al., Defendants and Appellants.
Cr. 11261.
Court of Appeal, Third District, California.
Dec. 13, 1984.

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Breyer, Aiello & Aiello, Arnold David Breyer, Mount Shasta and Mark T. Susnow, Larkspur, for defendants and appellants.

John K. Van de Kamp and George Deukmejian, Atty. Gens., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., William George Prahl, Patricia C. Esgro, Garrett Beaumont, J. Robert Jibson, Raymond L. Brosterhous, Deputy Attys. Gen., for plaintiff and respondent.

OPINION ON REHEARING

BLEASE, Associate Justice.

Defendants John G. Aston and Carlita L. Hallett appeal from judgments (orders of probation) of conviction for unlawful possession for sale of cocaine, a controlled substance. (Health & Saf.Code, § 11351.) 1 The trial court instructed the jury that it is unlawful to possess a controlled substance, "such as cocaine", for sale. 2 The People's chemical evidence showed only that the substance was (simply) "cocaine." This led the jury to presuppose that the controlled substance statute regulates a discrete substance called cocaine which was the substance possessed by the defendants. The presupposition is false. The defendants attempted to show this by an instruction which informed the jury that only one form of cocaine, l-cocaine, is a controlled substance. The court refused to give the instruction. As a consequence an element of the offense was effectively removed from jury consideration and proof by the People. For that reason we will reverse the judgments.

FACTS

On April 10, 1980, a search of defendants' residence, authorized by warrant, turned up quantities of a white powder, mainly packaged in paper bindles, and paraphernalia associated with the use of cocaine (razor blades, straws, a handheld mirror, a small spoon). Bruce Palmer, a State Department of Justice criminalist, tested the white powder and identified it simply as "cocaine." The amount in the bindles was 6.83 grams, distributed mostly in one-gram and half-gram quantities. On cross-examination, Palmer was asked about the difference between l- (levo-) cocaine and d- (dextro-) cocaine. He explained that l-cocaine is

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an isomeric form derived from the coca leaf, whereas d-cocaine is "manufacture[d]" and is not "found in nature." He testified that a polarimeter test would distinguish between them but that none of the tests he conducted would.

The defense offered testimony by its chemist, Dr. Ronald Siegel, which was heard outside the presence of the jury. Dr. Siegel agreed with Palmer: l-cocaine, he said, is derived from the coca leaf; d-cocaine is not, it is an isomer of cocaine which can be obtained only by synthesis. He testified they are not "chemically equivalent." Moreover, he said, d-cocaine is not "pharmacologically active," l-cocaine "produces all of the pharmacological affects [sic]." Siegel could not say whether the substance found in defendant's possession was l- or d-cocaine, since he had not performed any tests on it. He did say that d-cocaine "is not commonly found," and is, in fact, "rare, very rare;" however, he had once encountered it in analyzing a "street seizure." The trial court excluded the proffered testimony, saying it was improbable the substance tested was d-cocaine and refused a proposed defense instruction that the jury must find, beyond a reasonable doubt, that the substance was l-cocaine. 3

DISCUSSION

"L-cocaine or [d]-cocaine? That is the question." (U.S. v. Bockius (5th Cir.1977) 564 F.2d 1193, 1194.)

I

The instruction given by the trial court (See fn. 2, ante.), together with the People's chemical tests, led the jury to presuppose that the controlled substance statute regulates a discrete substance called cocaine. The defendants' instruction challenged the presupposition. It singled out l-cocaine as the only controlled form of cocaine and thereby tendered the definitional question: which forms of cocaine are controlled substances? 4 The defendants' evidence that there is a substance called d-cocaine, which is not chemically equivalent to l-cocaine and is not pharmacologically active, was offered in aid of that definitional purpose. The trial court refused the defendants' instruction because their expert witness testified d-cocaine is rarely found. In so doing the trial court confused the definitional question--Is d-cocaine a statutorily controlled substance?--with the adjudicative question--Is the substance possessed actually d-cocaine?

A.

The source of the trial court's confusion is its treatment of the requested instruction as a pinpoint instruction. A pinpoint instruction pinpoints the evidentiary theory of the defense, directs the attention of the jury to the evidence to which the theory is material, and emphasizes that the People bear the burden of ultimate persuasion on the issue thus pinpointed.

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(See People v. Adrian (1982) 135 Cal.App.3d 335, 185 Cal.Rptr. 506.) A pinpoint instruction presupposes that the jury has been adequately instructed on the substantive elements of the offense. It does not resolve a question of statutory meaning. (See e.g. People v. Rincon-Pineda (1975) 14 Cal.3d 864, 885, 123 Cal.Rptr. 119, 538 P.2d 247 [corroboration]; People v. Sears (1970) 2 Cal.3d 180, 189-190, 84 Cal.Rptr. 711, 465 P.2d 847 [motive]; People v. Roberts (1967) 256 Cal.App.2d 488, 492-494, 64 Cal.Rptr. 70 [identification]; People v. Gomez (1972) 24 Cal.App.3d 486, 490, 100 Cal.Rptr. 896 [alibi]; People v. Sanchez (1947) 30 Cal.2d 560, 184 P.2d 673 [self defense].) Since a pinpoint instruction generally "relat[es] particular facts to [a] legal issue" (Sears, supra, 2 Cal.3d at p. 190, 84 Cal.Rptr. 711, 465 P.2d 847), it need not be given unless the "particular facts" are before the jury. That, of course, requires admissible evidence of such facts. The trial court refused defendants' instruction for lack of admissible evidence (to pinpoint). It said it was the "remotest of possibilities" the substance was d-cocaine. (See fn. 3, ante.) That meant, so the court said, that the evidence was speculative and consequently irrelevant. (See Evid.Code, § 210; 1 Jefferson, Evidence Cal. Benchbook (2d ed. 1982) § 21.3 (rule (2).) 5

But the defendants did not offer the evidence to show the substance they possessed was in fact d-cocaine. 6 That fact becomes material only upon resolution of the definitional question.

B.

A definitional question requires a definitional answer. That turns here on the meaning of the controlled substance statute. The semantic task is a judicial one. The "interpretation of a statute and the question of its applicability to any given set of facts are exclusively the province of the court." (People v. Thomas (1945) 25 Cal.2d 880, 897, 156 P.2d 7; see also Pen.Code § 1124, Evid.Code § 310.) It is true that not every statute requires a judicial interpretation. Some employ words "commonly understood by those familiar with the English language ...." (People v. Anderson (1966) 64 Cal.2d 633, 639-640, 51 Cal.Rptr. 238, 414 P.2d 366.) Their meanings are fixed by the way the language is commonly used by the lay public. (See People v. Kimbrel (1981) 120 Cal.App.3d 869, 872, 174 Cal.Rptr. 816.) The jury, being a part of that public, can be expected to understand and correctly apply the language and may be safely instructed in the words of the statute. But if a statute has a "technical meaning peculiar to the law", the court must determine its meaning and instruct the jury accordingly. (See People v. Anderson, supra, 64 Cal.2d pp. 639-640, 51 Cal.Rptr. 238, 414 P.2d 366; see also People v. Thomas, supra, 25 Cal.2d 880, 156 P.2d 7; 18 Cal.Jur.3d, Criminal Law, § 875, pp. 586-587.)

The People claim the language of section 11055 is sufficiently common that it can be understood and applied by the jury. 7 That claim is belied by the technical terms of the

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statute. The People rely on federal cases, involving the virtually identical federal controlled substances act, 8 which say or imply that it is the jury's function to resolve the definitional question whether d-cocaine is a controlled substance. (See United States v. Orzechowski (7th Cir.1976) 547 F.2d 978, 985-986, cert. den. 431 U.S. 906, 97 S.Ct. 1701, 52 L.Ed.2d 391; United States v. Umentum (7th Cir.1976) 547 F.2d 987, 992-993, cert. den. 430 U.S. 983, 97 S.Ct. 1677, 52 L.Ed.2d 376; United States v. Wilburn (10th Cir.1977) 549 F.2d 734, 737; United States v. Hall (9th Cir.1977) 552 F.2d 273, 275-276; United States v. Posey (10th Cir.1981) 647 F.2d 1048, 1052-1053; cf. United States v. Bockius, supra, 564 F.2d at p. 1194, fn. 1 ("For purposes of this appeal, we will assume ... that of the eight cocaine isomers L-cocaine is the only illegal form of [cocaine]."); United States v. Luschen (8th Cir.1980) 614 F.2d 1164, 1169 (issue waived).) Courts in three other states have reached the same conclusion. (People v. Phelan (1981) 99 Ill.App.3d 925, 55 Ill.Dec. 600, 426 N.E.2d 925; Leavitt v. State (Fla.App.1979) 369 So.2d 993; State ex rel. Huser v. Rasmussen (1978) 85 Wis.2d 441, 270 N.W.2d 62, on rehg. from 84 Wis.2d 600, 267 N.W.2d 285; State v. McNeal (1980) 95 Wis.2d 63, 288 N.W.2d 874.) 9

We take issue with these cases in only one respect. They confuse the functions of court and jury. They do so, we think, because of a failure to distinguish between two kinds of facts, adjudicative facts and legislative facts. These kinds of facts are distinguished chiefly by the purposes they serve. Adjudicative facts are "facts concerning the immediate parties--who did what, where, when, how, and with what motive or intent ...." (2 Davis, Administrative Law Treatise, § 15.03, p. 353.) Adjudicative facts are normally a matter for jury determination. Legislative facts, on the other hand, are "facts which help the tribunal determine the content of law and of policy and help...

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1 practice notes
  • Darby v. State, 8 Div. 181
    • United States
    • Alabama Court of Criminal Appeals
    • October 22, 1985
    ...both cocaine derived from coca leaves and its chemical equivalent." Id., at 45 (emphasis in original). Accord, People v. Aston, 208 Cal.Rptr. 754 (Cal.Ct.App.), rev'd, 39 Cal.3d 481, 216 Cal.Rptr. 771, 703 P.2d 111 (1985); Commonwealth v. Slyman, 334 Pa.Super. 415, 483 A.2d 519 (1984); Unit......
1 cases
  • Darby v. State, 8 Div. 181
    • United States
    • Alabama Court of Criminal Appeals
    • October 22, 1985
    ...both cocaine derived from coca leaves and its chemical equivalent." Id., at 45 (emphasis in original). Accord, People v. Aston, 208 Cal.Rptr. 754 (Cal.Ct.App.), rev'd, 39 Cal.3d 481, 216 Cal.Rptr. 771, 703 P.2d 111 (1985); Commonwealth v. Slyman, 334 Pa.Super. 415, 483 A.2d 519 (1984); Unit......

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