People v. Davis

• Decision Date: 24 April 1979
• Docket Number: Cr. 17453,17463,18007,18036,18257 and 18419
• Citation: 92 Cal.App.3d 250,154 Cal.Rptr. 817
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Dennis Rodney DAVIS, David Maynard Kizer and Deborah May Kizer, Rickey AnthonyFields, Eldredge Payne Gregg, Charles Khalil Bateh, Carter Dean Clause, Defendants and Appellants.

Page 817

154 Cal.Rptr. 817

92 Cal.App.3d 250

PEOPLE of the State of California, Plaintiff and Respondent, v. Dennis Rodney DAVIS, David Maynard Kizer and Deborah May Kizer, Rickey AnthonyFields, Eldredge Payne Gregg, Charles Khalil Bateh, Carter Dean Clause, Defendants and Appellants.

Cr. 17453, 17463, 18007, 18036, 18257 and 18419.

Court of Appeal, First District, Division 3, California.

April 24, 1979.

Victor D. Vertner, San Jose, for defendants and appellants.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Robert R. Granucci, Martin S. Kaye, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

SCOTT, Associate Justice.

The issue presented in these consolidated appeals is whether California statutes making unlawful the possession, possession for sale, and sale of cocaine (Health & Saf.Code, §§ 11350-11351) deny appellants equal protection of the law, due process of the law, their right to privacy, and their right to be free from cruel and unusual punishment. ¹ We conclude that those statutes have no constitutional infirmities.

All appellants except one were convicted on their pleas of guilty. They make no contention that they did not in fact violate the statutes upon which they were convicted. Their challenge is solely to the constitutionality of the statutes in question. Originally, 33 defendants charged with various cocaine crimes in Santa Clara County made the contention of the unconstitutionality of the cocaine statutes. Their motions were consolidated. Expert testimony and documentary evidence were introduced by both the defendants and the People. The Honorable Bruce Allen, Judge of the Superior Court of Santa Clara County, made extensive findings and ultimately denied the defendants' constitutional challenges. The appeals of seven of the defendants are consolidated here. ²

The evidence produced includes the testimony offered by appellants of David Winston, former Chief Consultant for the California Assembly Committee on Health; Joel Fort, M. D., psychologist; and Dr. Ronald Siegel, psychologist and psychopharmacologist of the University of California at Los Angeles. Respondent offered the testimony of Dr. Salvatore Mule, pharmacologist, and Director and Assistant Commissioner of the New York State Office of Drug Abuse Services, Testing and Research Laboratory; and Dr. Keith Killam, Chairman of the Department of Pharmacology at the School of Medicine, University of California at Davis. Extensive documentary exhibits were received into evidence and considered by the court in reaching its conclusion. ³ The wealth of information gleaned from this testimony and documentary evidence supports Judge Allen's conclusion that "cocaine is a very toxic, powerful drug that is harmful both to the user and to other people, that widespread legal availability to the public would lead to more adverse effects on society than we have now . . .."

Judge Allen's order contains a synopsis of illicit use of cocaine in the United States, which we quote here in part:

"Cocaine is one of 14 alkaloids contained in the leaves of the coca plant, grown primarily in Bolivia and Peru. It is usually prepared as a hydrochloride salt in South America and for the illegal street market in the United States is often cut to 50% (more or less) purity with a variety of substances such as mannitol, lactose, glucose, lidocain, or procaine.

"Cocaine is a central nervous system stimulant. The Harrison Narcotic Act of 1914, which ended the legal availability of cocaine to the public, defined cocaine as a narcotic which is erroneous from a pharmacological standpoint.

"The coca leaf which contains the cocaine alkaloid and many other substances is widely used in parts of South America by chewing or sucking. The cocaine is by this method absorbed into the body through the mouth and gastric system where it is rapidly metabolized. Use of the leaf and its effects in South America are an entirely different matter from the refined substance cocaine which is illegally marketed in the United States. . . .

"Currently the price of cocaine in California is about $2,000.00 per ounce, $32,000.00 per pound on the illegal market, but is $25.00 per ounce if procured through legitimate channels from a pharmaceutical firm.

"Cocaine in the United States is used illegally primarily by snorting or sniffing. The white powder is chopped into fine particles and about 25 mg. is deposited in lines about an inch long and 1/8 inch wide (matchstick size), then sniffed into the nose using a straw or rolled paper. The powder is thus deposited in the mucous lining of the nose from which it is readily absorbed into the blood stream. Another common but less frequent method is to dissolve the powder in water and inject it into the blood stream. This gives more immediate results to the user and is far more hazardous. Cocaine is also combined with heroin by many users into one injection called a speedball."

Cocaine was characterized as a psychoactive drug, meaning that it alters consciousness. Such drugs are pharmacologically subcategorized into stimulants such as caffeine, nicotine, amphetamines and cocaine, and depressants such as alcohol, barbiturates, tranquilizers and heroin. Hallucinogens are another category. All experts agreed that cocaine is not a narcotic. Narcotics, which are opium or opium derivatives such as heroin, are depressant drugs which produce physical addiction and are characterized by increased tolerance with continued use and withdrawal.

Appellants' experts, Dr. Joel Fort and Dr. Ronald Siegel, offered similar testimony. They testified generally that as a stimulant, cocaine increases brain activity, blood pressure, and body temperature, causing sleeplessness, euphoria and reduced appetite. Dr. Siegel also listed among cocaine's acute effects lessened fatigue, improved attentiveness and alertness, enhanced speed of learning and increased motor activity and speed with which complex tasks might be performed. Chronic effects include rhinitis, some fatigue, hyperexcitability, blurred vision, and sexual impotency.

Though cocaine may be ingested by mouth or through injection, most cocaine users inhale it through the nose. It is generally quickly metabolized by the body, with the effects lasting for approximately one-half to two hours. Both Fort and Siegel testified that, in general, cocaine users self-titrate, meaning they use only a limited amount of the drug and no more. This is because the optimum effect is produced with a specific dose and because the drug is so expensive to purchase. However, compulsive intravenous users do not self-titrate.

Dr. Fort admitted that increased availability of cocaine could lead to increased abuse. He also admitted that overdoses can lead to death, although he stated very few deaths have occurred as a result of ordinary cocaine use. In addition, some cocaine users suffer from formication the sensation of bugs crawling under the skin. Psychosis can also occur and cocaine can be psychologically habituating. While several studies have referred to numerous case histories associating cocaine with criminal or anti-social behavior, Dr. Fort felt that none of those histories have been sufficiently substantiated.

Siegel also conceded that cocaine can be psychologically addicting, can produce formication, and has caused nose sores and occasional death. However, he testified that reported deaths resulted from the atypical intravenous use. In his studies, Siegel found no anti-social behavior resulting from cocaine use and found its abuse rare. However, he admitted many researchers disagree with his conclusions. He also stated that cocaine research is still at a beginning stage and that more research is necessary, particularly as to long-term effects of regular use.

Dr. Fort, conceding all drugs have some risk, opined that cocaine is a low risk drug and its personal use should not be made criminal. As to sale, he testified that criminal sanctions should be retained as to large sellers. He made it clear that he was not advocating cocaine use. Dr. Siegel generally agreed with Dr. Fort's conclusions that personal use of cocaine should be decriminalized and selling should remain proscribed. Like Fort, Siegel did not advocate the use of cocaine, though he deemed it a relatively safe recreational drug.

David Winston testified that in 1971 the Assembly Committee on Health was approached by the Federal Commission on Uniform State Laws for the purpose of conforming California laws regarding drug classification with the Federal Uniform Controlled Substances Act. At that time, California law classified drugs in three categories narcotics, restricted dangerous drugs, and dangerous drugs while the federal law used five classifications listed merely as Schedules I through V (21 U.S.C. § 812). Cocaine was classified in California's pre-1972 statute as a narcotic. When hearings were held on the proposed amendment, no evidence was taken as to cocaine use or abuse, its medical or scientific uses, or any other factors which might be relevant to classification. However, Winston had no knowledge of what evidence was previously before the state or federal Legislatures when cocaine was originally proscribed and classified. The federal classifications were adopted in California in 1972 (Health & Saf.Code, §§ 11054-11058) as part of the Uniform Controlled Substances Act. Winston testified that in his opinion the amendment was non-substantive and was simply one of conformity.

Respondent's expert, Dr. Salvatore Mule, testified that there are five typical characteristics of stimulants such as cocaine. They are (1) psychoactive effects which may merge into depression or paranoid psychosis; (2) strong psychological dependence which causes drug-seeking behavior; (3) acute and chronic psychotoxicity; (4) absence of physical dependence; and (5) severe and often violent,...