People v. Demery

• Decision Date: 14 April 1980
• Docket Number: Cr. 34299
• Parties: The PEOPLE, Plaintiff and Respondent, v. Leroy William DEMERY, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 814

163 Cal.Rptr. 814

104 Cal.App.3d 548

The PEOPLE, Plaintiff and Respondent, v. Leroy William DEMERY, Defendant and Appellant.

Cr. 34299.

Court of Appeal, Second District, Division 4, California.

April 14, 1980.

Rehearing Denied June 11, 1980.

Richard H. Levin, Los Angeles, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Howard J. Schwab and William R. Pounders, Deputy Attys. Gen., for plaintiff and respondent.

JEFFERSON, Associate Justice.

By consolidated information, defendant, a doctor, was charged in 35 counts with the offenses of prescribing a controlled substance not in his regular practice, all in violation of Health and Safety Code section 11154. ¹ Nine of the counts were charged as felonies, and the remaining counts were charged as misdemeanors. Defendant entered pleas of not guilty.

Defendant's motion to set aside the information, made pursuant to section 995 of the Penal Code, was denied. Defendant's motion for a judgment of acquittal, made pursuant to section 1118.1 of the Penal Code, was denied. Trial was by jury. ² The jury found defendant guilty as charged.

Criminal proceedings were adjourned and, pursuant to Penal Code section 1203.03, defendant was ordered delivered to the custody of the Director of Corrections for a diagnostic study. Upon return to court, probation was denied and defendant was sentenced to state prison for the term prescribed by law on the nine felony counts (VII, IX, XI, XVII, XIX, XXII, XXVII, XXIX and XXXI). The sentence on count VII was ordered to run consecutively with the sentence on count XXVII; all of the other felony counts were ordered to run concurrently with counts VII and XXVII.

Defendant was ordered imprisoned in county jail for the term of one year on the misdemeanor counts. Those counts numbered XXI and lower were ordered to run concurrently with each other and with count VII, to be served in state prison. All misdemeanor counts XXIII and higher were ordered to run concurrently with each other and concurrently with count XXVII, and also to be served in state prison.

Defendant has appealed from the judgment of conviction.

I A Summary of the Evidence

Since defendant has challenged the sufficiency of the evidence to support his conviction as one attack upon his conviction, we briefly summarize the evidence adduced below. In essence, the prosecution sought to prove that, from April 2, 1975, through May 7, 1976, nine undercover agents representing different investigative agencies visited defendant's office at 6213 South Main Street in Los Angeles and obtained from him prescriptions for Ritalin, Nembutal, Empirin Codeine, and Quaaludes, all of which were controlled substances. ³

On April 2, 1975, Investigator Voveris went to defendant's office at about 6:30 a. m. and found two persons already waiting there. By 8:30 a. m., there were 15 people in line. By 9:30 a. m., the office was opened by Ronald Ransom, an employee of defendant, at which time there were 50 people in line. Ransom had the waiting persons "sign in" on a clipboard roster. Voveris signed in; he was not asked to provide identification nor was there any discussion with Ransom of any medical complaint Voveris had. Voveris was called by name and number at 12:30 p. m. Although this was his first visit to the office, he filled out nothing by way of patient information or a record of medical complaints. Voveris went into defendant's office where defendant, dressed in a white smock, was seated behind a desk. The room was approximately five by ten feet, and contained no medical equipment. Defendant introduced himself and Voveris asked for a prescription for Ritalin. Defendant asked him his name and for identification; Voveris gave him his driver's license. Defendant then completed a three-by-five card with Voveris' name, address, birthdate, and the present date. Voveris also asked for a prescription for Nembutal. Defendant asked no further questions, but gave Voveris the prescriptions for Ritalin (100) and Nembutal (30). Voveris asked how much he owed, and was told $3. Voveris paid this amount to defendant.

Voveris was followed into the doctor's office by Undercover Agent Tucker, who asked for Desoxins and Ritalin. The defendant stated that Tucker could not have both, and would have to choose one or the other because they were both "uppers." Tucker chose Ritalin; defendant wrote a prescription for Ritalin, and, pursuant to Tucker's request, wrote prescriptions for Empirin Codeine and Quaaludes as well. Tucker also paid defendant $3. Tucker saw another room at the office during his visit, a room which appeared to be an examining room and contained a scale. Tucker did not voice any physical complaint to defendant while they transacted their business.

That same day Undercover Agent Yeary signed in at defendant's office and asked defendant for various drugs. Defendant asked what the drugs were for; Yeary responded: "No particular reason." Yeary was given prescriptions for the drugs he sought. Throughout the following months, other agents visited defendant and obtained prescriptions without undergoing any medical examination or discussion of any physical complaints. Ransom told one agent that defendant saw 60 people a day. The only change in procedure noted by the investigators as time went on was that the price paid increased from $3 to $5.

When Agent Coburn visited defendant, she asked for Ritalin. Defendant stated to her that she did not appear to be depressed; she replied: "Well, we all like to get up once in awhile." Some of the agents' conversations with defendant were secretly tape recorded by them and the tapes (and transcripts thereof) were admitted into evidence at the trial.

The prosecution presented the testimony of Dr. Ronald Okun, Chief of Research in clinical pharmacology at Cedars-Sinai Hospital, and an Associate Professor of medicine and pharmacology at UC Irvine and UCLA. Dr. Okun combined research, teaching and treatment in the field of drugs. He testified as to the characteristics of various controlled substances. Ritalin, he stated, is used for the very limited purpose of treating minimal brain disfunction in children. Nembutal, a brand name for phenobarbital, is used to combat sleeplessness. Both Nembutal and Quaaludes are depressants, and their use is contraindicated under certain circumstances.

Dr. Okun declared that he was familiar with the standard of practice in the medical community; that a minimal standard involved communication with the patient concerning physical complaints, an attempt to find the cause of the symptoms by taking a medical history, and a physical examination directed toward finding a cause for the symptoms and ruling out contraindications for the use of certain drugs. These procedures, said Dr. Okun, were ordinarily employed by physicians before prescribing drugs.

Defendant testified in his own behalf. He had obtained a degree in osteopathy in 1960 before coming to California. His practice at the South Main address was at first general; then became a maternity practice; then became oriented toward surgery; and, finally, was "emotionally oriented" although he was not a psychiatrist. Defendant declared that he had prescribed drugs for Voveris and Tucker because they had told him they had drinking problems. Other agents had indicated problems with sleeplessness, back strain or overweight. Some of the agents he did not remember. He explained the tape recordings by stating that "you can do anything with electronics."

II Sufficiency of the Evidence

Contrary to defendant's contention on appeal, the evidence of defendant's violations of Health and Safety Code section 11154 was persuasive and overwhelming. Viewing all of the evidence defense and prosecution clearly justified defendant's conviction. We must conclude that any rational trier of fact could find that each element of every offense charged against defendant was proved beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560.)

III The Constitutionality of Health and Safety Code Section 11154

Defendant contends that section 11154 of the Health and Safety Code is too vague, uncertain and indefinite to provide a standard by which a trier of fact may determine a defendant's guilt, and, therefore, is unconstitutional as a denial of due process of law. Defendant argues specifically that the language set forth in the section, "except in the regular practice of his profession," and "not under his treatment for a pathology or condition," can have no meaning to a juror since it cannot be derived from the juror's ordinary experience.

Generally, "[s]tatutes must be upheld unless their unconstitutionality clearly, positively and unmistakably appears (citation). Mere difficulty in ascertaining the meaning of the statute . . . will not render it nugatory . . . ." (People v. Anderson (1972) 29 Cal.App.3d 551, 561, 105 Cal.Rptr. 664, 670 (upholding Health and Saf.Code § 11162.5 in the face of constitutional challenge).)

It is true, of course, that "(t)he requirement of a reasonable degree of certainty in legislation, especially in the criminal law, is a well established element of the guarantee of due process of law. . . . 'All are entitled to be informed as to what the State commands or forbids'. . . ." (In re Newbern (1960) 53 Cal.2d 786, 792, 3 Cal.Rptr. 364, 368, see, also, People v. McCaughan (1957) 49 Cal.2d 409, 317 P.2d 974.) However, sufficient warning is all that is constitutionally required; and sufficient warning is present if the statutory language makes it reasonably certain as to what is prohibited. (People v. Superior Court (Hartway ) (1977) 19 Cal.3d 338, 138 Cal.Rptr. 66, 562 P.2d 1315.)

Another general principle which is applicable here is that " '(t)he required meaning, certainty and lack of ambiguity may appear on the face of the questioned st...