People v. Kessler

• Decision Date: 02 May 1967
• Docket Number: Cr. 12349
• Citation: 58 Cal.Rptr. 766,250 Cal.App.2d 642
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. Oscar Bernard KESSLER, Defendant and Respondent.

Page 766

58 Cal.Rptr. 766

250 Cal.App.2d 642

The PEOPLE of the State of California, Plaintiff and Appellant, v. Oscar Bernard KESSLER, Defendant and Respondent.

Cr. 12349.

Court of Appeal, Second District, Division 5, California.

May 2, 1967.

Hearing Denied June 28, 1967.

Thomas C. Lynch, Atty. Gen., and William E. James, Asst. Atty. Gen., Evelle J. Younger, Dist. Atty., Harry Wood, Chief Appellate Division, Los Angeles, and Robert J. Lord, Deputy Dist. Atty., for plaintiff and appellant.

Howard E. Beckler, Hollywood, for defendant and respondent.

HUFSTEDLER, Associate Justice.

The People appeal from an order dated March 15, 1966, granting respondent Kessler's motion to set aside and to dismiss the information against him pursuant to section 995 of the Penal Code. Kessler and his codefendants were charged with violating sections 11911 (unlawful possession for sale of restricted dangerous drug) and 11912 (unlawful sale of restricted dangerous drug) of the Health and Safety Code, for acts alleged to have occurred on November 12 and November 23, 1965. The restricted dangerous drugs involved were amphetamine sulphate, also known as benzedrine, and barbituric acid, namely secobarbital sodium, also known as seconal.

The appeal presents the question: Is a licensed drug wholesaler who sells or possesses for sale restricted dangerous drugs which are not in stock in correctly labeled containers, subject to prosecution for a felony under sections 11911 and 11912 of the Health and Safety Code, or is he subject to prosecution solely for a misdemeanor under the provisions of sections 4382 and 4393 of the Business and Professions Code?

Summary of the Evidence

The charges in the information pertain to three alleged sales transactions involving dangerous drugs, benzedrine and seconal, in which Kessler and his codefendants (Caliman, Copeland, Scott and Fisher) participated, occurring on November 12 and November 23, 1965. The sufficiency of the evidence to bind over Kessler for trial is not challenged, except insofar as that evidence bears upon his claim that he is not subject to prosecution under sections 11911 and 11912 of the Health and Safety Code.

A brief summary of the evidence follows:

On March 12, 1965, Caliman and Copeland met in a Rexall parking lot. The two men conversed, Copeland handed money to Caliman, and Caliman drove away in Copeland's Pontiac automobile. At about the same time Caliman and Copeland met each other, Kessler was observed parking his Cadillac in front of a garage at 303 1/2 North Hamel. He unlocked and entered the garage, removed a cardboard box and put it in the trunk of his car. Kessler then drove to a Ralph's Market parking lot, entered the store and returned with an empty East side beer cardboard case. Caliman drove into the Ralph's parking lot, parked the Pontiac next to Kessler's Cadillac. Caliman walked to the rear of the Cadillac where Kessler was standing. Kessler opened the trunk of the Cadillac, removed several brown glass jars from the trunk and placed the jars in the Eastside beer case. Caliman put the case and its contents into the trunk of the Pontiac, talked with Kessler and handed Kessler a quantity of money. Caliman drove back to the Rexall lot and returned the car to Copeland, who drove away. Copeland was stopped, arrested, and the car was searched shortly thereafter. Inside the trunk was found the Eastside beer carton containing ten glass jars, each holding about 1000 benzedrine pills.

Other charges in the information involve the same modus operandi, although the roles of Caliman and Copeland were sometimes played by other actors named as codefendants, and sometimes the jars contained seconal pills instead of benzedrine pills.

On November 23, 1965, the garage at 303 1/2 North Hamel was searched pursuant to a search warrant. Kessler was in the garage leaning over a large steamer trunk into which he was placing jars. He was arrested and on his person were found keys which opened the garage and the steamer trunk locks. Cardboard boxes containing unlabeled jars filled with thousands of benzedrine and seconal pills were also found in the garage.

The parties stipulated at the preliminary hearing that Kessler was a 'licensed wholesale pharmacist in the State of California * * * (having) a registration valid and in effect * * * to possess and furnish hypnotic drugs and dangerous

drugs.' Information Properly Filed Under Health and Safety Code Sections 11911 and 11912

Kessler contends that a licensed wholesaler of dangerous drugs cannot be prosecuted for violating sections 11911 and 11912 of the Health and Safety Code, because section 4393 of the Business and Professions Code, forbidding a wholesaler to furnish drugs to unauthorized persons, constitutes a special statute applicable to him, which operates to the exclusion of sections 11911 and 11912 of the Health and Safety Code. ¹ Kessler has misconceived the statutory scheme. Section 4393 is a general statute and sections 11911 and 11912 of the Health and Safety Code are special statutes penalizing his unlawful traffic in seconal and benzedrine.

We hold that a drug wholesaler who possesses dangerous drugs, including amphetamine (e.g., benzedrine) or hypnotic drugs (e.g., seconal) which are not in stock in correctly labeled containers, or who sells such drugs without a proper prescription or authorized purchase order is not chargeable with a misdemeanor under any section of the Business and Professions Code, but is chargeable with a felony pursuant to sections 11911 and 11912 of the Health and Safety Code.

The legislative intent to penalize violations of those portions of the dangerous drug statutes (Bus. & Prof.Code, ch. 9 art. 8) dealing with hypnotic drugs (seconal) and amphetamine (benzedrine) compounds (art. 8, §§ 4227, 4230) under the provisions of division 10.5 of the Health and Safety Code (including §§ 11911 and 11912) and not under section 4393 of article 12 of the Business and Professions Code, is demonstrated by the structure of chapter 9 and by the language and the legislative history of the relevant code sections.

Chapter 9 of the Business and Professions Code, entitled 'Pharmacy', is divided into thirteen articles. Within each article are grouped statutes which relate to the subject matter of that article. The subject matter of some of the articles has general application throughout the chapter. For example, article 2 contains general definitions and article 12 (including §§ 4382, 4393) contains prohibitions and offenses against the chapter generally. The subject matter of other chapters is special; for example, article 7, 'Poisons', and article 8, 'Dangerous Drugs'. The definition of the term 'drug' is found in section 4031 ² of article 2, which applies throughout the chapter 'UNLESS OTHERWISE INDICATED' (S 4030 ³). the general definition of drug is inapplicable to article 8, which contains a specific definition of dangerous drugs. Section 4211 of article 8 defines 'dangerous drug' as any drug unsafe for self-medication and includes: '(a) Any hypnotic drug. 'Hypnotic drug' includes * * * barbituric acid derivatives * * * or any compounds or mixtures or preparations that may be used for producing hypnotic effects * * * (c) Amphetamine * * * or compounds or mixtures thereof * * * (l) Hypnotic drugs when combined and compounded with nonhypnotic drugs.' Section 4211 was not amended in 1965.

Of the dangerous drugs defined in section 4211 the Legislature has selected two kinds of drugs which are subjected to more stringent control than all other dangerous drugs; namely, hypnotic drugs (e.g., seconal) and those drugs described in subsection (c) of section 4211 (e.g., benzedrine). Persons who furnish hypnotic drugs must have special licenses and must use special order forms (§§ 4222, 4223, 4224). Additional restrictions are placed upon prescriptions for both hypnotic drugs and amphetamine. (§ 4229.) Section 4227 of article 8, as amended in 1965 ⁴, and section 4230 ⁵, dealing respectively with furnishing and possessing dangerous drugs, likewise distinguish hypnotic drugs and amphetamine (benzedrine) from other dangerous drugs. In terms applicable here, sections 4227 and 4230 forbid a wholesaler ⁶ to possess or to furnish ⁷ seconal or benzedrine unless the drugs are in stock in correctly labeled containers or are possessed or furnished pursuant to an authorized prescription or authorized purchase order form.

The intent to prescribe different, and more severe, penalties for violating the statutes controlling possession and distribution of hypnotic drugs and amphetamine is evidenced by the language and legislative history of section 4235 of article 8 and sections 11911 and 11912 of the Health and Safety Code.

Prior to the revision of article 8 in 1965, the article contained four penal provisions: section 4233 (violation of hypnotic drug provisions of article 8, a misdemeanor ⁸); section 4234 (furnishing dangerous drug to minor, a felony); section 4235 (violation of article 8 in respect of dangerous drugs other than hypnotics, a misdemeanor ⁹); and section 4237 (forgery of prescription for dangerous drug, a misdemeanor). In 1965, in one bill (Senate Bill No. 381),

the Legislature added division 10.5 to the Health and Safety Code (§§ 11901, 11903, 11910--11915) and amended the statutes found in article 8 of the Business and Professions Code. Section 4233 (hypnotic drug violation, a misdemeanor) was repealed. Section 4234 was amended. ¹⁰ Section 4235 (the former general dangerous drug misdemeanor provision) was amended to read: 'Every person who violates any provision of this article [DELETED: * * *] other than [DELETED: * * *] [ADDED: Section 4230 or Section 4227 insofar as su

ch sections relate to hypnotic drugs or any preparation included in subdivision (c) of Section 4211], is guilty of a misdemeanor.' (The deleted portions of former section 4235 are indicated by asterisks and the added language...