People v. Medina

• Decision Date: 28 August 1972
• Docket Number: Cr. 9710
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Alan Ralph MEDINA, Defendant and Appellant.

Page 721

103 Cal.Rptr. 721

27 Cal.App.3d 473

PEOPLE of the State of California, Plaintiff and Respondent, v. Alan Ralph MEDINA, Defendant and Appellant.

Cr. 9710.

Court of Appeal, First District, Division 1, California.

Aug. 28, 1972.

Hearing Denied Oct. 25, 1972.

Ozro W. Childs, San Francisco, for appellant (By appointment of the Court of Appeal).

Evelle J. Younger, Atty. Gen., of State of California, Joyce F. Nedde, Eugene Kaster, Deputy Attys. Gen., San Francisco, for respondent.

MOLINARI, Presiding Justice.

This is an appeal by defendant from a judgment entered pursuant to a jury verdict finding him guilty of violation of two counts of section 11503 of the Health and Safety Code. ¹ Section 11503 makes it unlawful to offer to sell a narcotic and to deliver some substance in lieu of a narcotic. ²

The evidence adduced at the trial disclosed that defendant on two occasions sold five capsules, which he represented to be 'mescaline,' to an undercover narcotics agent. Upon analysis none of these capsules contained a narcotic or a restricted dangerous drug. One of the criminologists who made the analysis testified without objection to the composition of 'mescaline.' He stated, 'Mescaline is a compound that is found and can be extracted from peyote cactus. The correct name is la flora. It acts as a psychomatic agent. . . . It can be manufactured synthetically.' He stated that the law classifies mescaline as a narcotic.

Defendant contends that section 11503 requires a specific intent to substitute a non-narcotic for the promised narcotic and that it was error for the court to have refused to so instruct the jury. We have concluded that section 11503 is not a specific intent crime and that the court properly rejected the proffered instruction. ³

It is useful to begin by contrasting section 11503 with those statutes which make it a crime to offer to sell a narcotic or a restricted dangerous drug. (§§ 11501, 11912.) It has been held that these statutes require proof of a specific intent to make a sale. (People v. Jackson, 59 Cal.2d 468, 469--470, 30 Cal.Rptr. 329, 381 P.2d 1; People v. Allen, 254 Cal.App.2d 597, 602, 62 Cal.Rptr. 235.) ⁴ If specific intent is present, the offense is complete at the time of the offer. Delivery of the promised narcotic or dangerous drug is not an essential element of the crime. (People v. Jackson, supra, 59 Cal.2d 468, at p. 469, 30 Cal.Rptr. 329, 381 P.2d 1; People v. Allen, supra, 254 Cal.App.2d 597, at p. 602, 62 Cal.Rptr. 235.) On the other hand, this court has previously stated that in applying section 11503 'the important element is the delivering of a nonnarcotic substance after agreeing, with whatever intent, to deliver a narcotic.' (People v. Hicks, 222 Cal.App.2d 265, 273, 35 Cal.Rptr. 149, 154.) ⁵ This comparison serves to highlight the difference between the statutes and to focus upon the issue raised by defendant which is whether there must be a specific intent to deliver a substance which is not a narcotic.

The cases pertaining to this issue are in conflict. In People v. Lopez, 213 Cal.App.2d 668, 675, 28 Cal.Rptr. 912, and in People v. Sweet, 257 Cal.App.2d 167, 171, 65 Cal.Rptr. 31, it was found that section 11503 required a finding of specific intent to deliver a nonnarcotic. However, in both of these cases the defendant was charged with aiding and abetting a violation of section 11503, a distinction which we consider to be significant. In People v. Contreras, 226 Cal.App.2d 700, 702, 38 Cal.Rptr. 338, it was also stated that section 11503 required proof of specific intent to deliver a nonnarcotic. However, the court cited no authority nor did it give any reasons for its determination, and we are thus unable to view its statement as a definitive pronouncement on the elements of the crime proscribed by section 11503. ⁶

In People v. Northern, 256 Cal.App.2d 28, 35, 64 Cal.Rptr. 15, the court determined that section 11503 did not require a finding that there was specific intent to deliver a nonnarcotic. In reaching its decision the court analyzed the legislative purpose as well as the prior decisions pertaining to the section. The court's conclusion was drawn in part from this court's decision in Hicks and it was subsequently followed in People v. House, 268 Cal.App.2d 922, 925, 74 Cal.Rptr. 496. We are persuaded that the conclusion reached in Northern represents a correct appraisal of the elements of the offense proscribed by section 11503.

In Northern the court noted that various decisions respecting section 11503 had made reference to a report to the Legislature, 1953 Regular Session, by the Assembly Interim Committee of Judiciary. (See People v. Jackson, supra, 59 Cal.2d 468, 471, 30 Cal.Rptr. 329, 381 P.2d 1; People v. Shephard, 169 Cal.App.2d 283, 287--288, 337 P.2d 214.) The report provides in part that section 11503 'will cover the individual who agrees to sell, furnish, transport, or give away any narcotic, and then delivers some other liquid, substance, or material. These individuals are known to be in a position to violate the law; but, for some reason, they may feel that they are dealing with a law enforcement officer and thus deliver tobacco, water, or some other substance with the result that they have had the intent to commit the crime but are testing out the officer. At the present time, nothing can be done to that person, except to charge (him) with 'bunco."

As the court in Northern noted, the report proved faulty insofar as it postulated that an individual who specifically intended to sell a narcotic at the time he made the offer could only be charged with 'bunco.' (256 Cal.App.2d 28, 34, 64 Cal.Rptr. 15.) As we noted above, it has subsequently been established that an individual who specifically intends to sell a narcotic at the time he makes his offer is guilty of violating section 11501. (People v. Jackson, supra, 59 Cal.2d 468, 469--470, 30 Cal.Rptr. 329, 381 P.2d 1.)

The court in Northern, as did this court in Hicks, then referred to the following statement in Shephard as illustrative of the import of section 11503: "In any event, without the assistance of the interim committee report, it is apparent that the legislature had the intention of discouraging anyone from engaging or appearing to engage in the narcotics traffic. Anything which gives sustenance, solace, comfort or encouragement in the selling of narcotics or in the agreeing to sell narcotics, can be condemned, and properly so, by the legislature. It is clear that the statute in question was aimed at discouraging any traffic in narcotics and is therefore within the police power of the state." (People v. Shephard, supra, 169 Cal.App.2d 283 at p. 288, 337 P.2d 214 at p. 216.) The court in Northern thus observed that 'The vice which the statute attacks is one aspect of the narcotics traffic, not fraud or breach of contract.' (256 Cal.App.2d 28 at p. 34, 64 Cal.Rptr. 15 at p. 20.)

As the aim of the statute is not simply to proscribe fraudulent narcotics traffic, but rather to prohibit anyone from appearing to engage in narcotics traffic, it follows that the intent of the individual delivering the nonnarcotic substance is irrelevant. The offense is complete at the time of delivery regardless of the intent with which it is done. (People v. Hicks, supra, 222 Cal.App.2d 265, 273, 35 Cal.Rptr. 149.) This conclusion is consistent with other decisions which omit any requirement of specific intent in describing the elements of the offense. (People v. Jackson, 163 Cal.App.2d 355, 359, 329 P.2d 329; People v. Dalton, 172 Cal.App.2d 15, 22, 341 P.2d 793.) As specific intent to deliver a nonnarcotic is not required, the court properly refused to instruct the jury that it was an element of the offense. ⁷

Defendant next contends that certain provisions of the Health and Safety Code defining what is a narcotic are unconstitutionally vague in that they do not afford notice that mescaline is a narcotic. The sections under attack are subdivisions (l) and (m) of section 11001 which, in pertinent part, provide as follows: "Narcotics,' . . . means any of the following, whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis: . . . (l) All parts of the plant of the genus Lophophora whether growing or otherwise; the buttons thereof, the alkaloids extracted from any such plant; and every compound, salt, derivative, mixture or preparation of such plant. (m) Any substance (and any compound, manufacture, salt, derivative, or preparation thereof) which is chemically identical with any of the substances referred to in the foregoing subdivisions.'

In evaluating this claim we are guided by certain established principles of statutory construction. We note, first, that all presumptions are in favor of the validity of a statute; that mere doubt is not a sufficient basis for finding it constitutionally defective; and that the invalidity of a statute must be clear and unquestionable. (Dittus v. Cranston, 53 Cal.2d 284, 286, 1 Cal.Rptr. 327, 347 P.2d 671; Jones-Hamilton Co. v. Franchise Tax Bd., 268 Cal.App.2d 343, 349, 73 Cal.Rptr. 896.) We next observe that, although a criminal statute which is so indefinite, vague, and uncertain as to preclude ascertainment of the conduct which is prohibited is unconstitutional and void, a statute will not be found to be void for uncertainty if any reasonable and practical construction can be given to its proscription. (People v. Madearos, 230 Cal.App.2d 642, 644, 41 Cal.Rptr. 269; Kelly v. Mahoney, 185 Cal.App.2d 799, 803, 8 Cal.Rptr. 521.) As reasonable certainty is all that is required, a statute must be upheld if it can be made reasonably certain by reference to any established technical or common law meaning of the language in question. (In re Newbern, 53 Cal.2d 786, 792, 3 Cal.Rptr. 364, 350 P.2d 116; American Civil...