People v. Nelson

• Decision Date: 11 June 1985
• Citation: 218 Cal.Rptr. 279,171 Cal.App.3d Supp. 1
• Court: California Superior Court
• Parties: 171 Cal.App.3d Supp. 1 The PEOPLE, Plaintiff and Respondent, v. Theodore Coburn NELSON, Defendant and Appellant. The PEOPLE, Plaintiff and Respondent, v. Fred Nellis WOLF, Defendant and Appellant. The PEOPLE, Plaintiff and Respondent, v. Anthony Thomas VITALE, Defendant and Appellant. Crim. A. 21731 to Crim. A. 21733. Appellate Department, Superior Court, Los Angeles County, California

Page 279

218 Cal.Rptr. 279

171 Cal.App.3d Supp. 1

The PEOPLE, Plaintiff and Respondent, v. Theodore Coburn NELSON, Defendant and Appellant.

The PEOPLE, Plaintiff and Respondent, v. Fred Nellis WOLF, Defendant and Appellant.

The PEOPLE, Plaintiff and Respondent, v. Anthony Thomas VITALE, Defendant and Appellant.

Crim. A. 21731 to Crim. A. 21733.

Appellate Department, Superior Court, Los Angeles County, California.

June 11, 1985.

As Modified on Denial of

Rehearings July 3, 1985.

Certified for Partial Publication ^*

Leo Fasen, Los Angeles, Robert T. Jacobs, Marina Del Rey, and Jeffrey Brodey, Beverly Hills, for defendants and appellants.

Gary R. Netzer, City Atty., Jack L. Brown and Arthur B. Walsh, Deputy City Attys., for plaintiff and respondent.

COOPERMAN, Presiding Judge.

Defendants Theodore Coburn Nelson, Fred Nellis Wolf, and Anthony Thomas Vitale were charged in a misdemeanor complaint with delivering, furnishing, or transferring, etc. drug paraphernalia in violation of Health and Safety Code section 11364.7, subdivision (a). ¹ Following a jury trial, defendants were found guilty as charged. Each defendant was then sentenced, which sentence was suspended, and placed on summary probation on certain terms and conditions. On appeal from the judgments defendants attack their respective convictions and orders of probation. Finding no merit to defendants' contentions, we affirm. ²

The record of the trial proceedings reflects the following facts: ³

Defendant Nelson is the co-owner with his wife of "Penny Lane," a retail store located at 6711 Hollywood Boulevard, Los Angeles, California. Defendants Vitale and Wolf are employed at Penny Lane as manager and salesperson, respectively. Penny Lane stocks and sells novelties such as T-shirts and posters. In addition, however, the store has a substantial supply of items which, in the opinion of several experts who testified at trial, are drug paraphernalia as that term is defined in section 11014.5, the companion section to section 11364.7, subdivision (a).

These materials included bongs (small water pipes), roach clips (devices for holding burning marijuana cigarettes), coke kits (packages containing items commonly used for preparing and ingesting cocaine), coke spoons (small spoons used for inhaling cocaine), as well as items which have legitimate uses such as scales and bulk chemicals but which, in the opinion of the expert witnesses, were stocked by the store for the purpose of weighing and preparing drugs and narcotics. Prior to January 1, 1983, the sale of such merchandise was not unlawful. However, when section 11364.7 took effect on that date, Penny Lane employees, at Nelson's order, erected signs declaring that the same merchandise which they had always sold was now being offered for sale only for legitimate purposes.

On January 21, 1983, David Turnquist, a detective with the Los Angeles Police Department entered Penny Lane in plain clothes. Defendant Wolf was working at the time. Turnquist asked for a "bong" and was sold one by Wolf. Subsequently, the police entered and seized several boxes of suspected drug paraphernalia. During the course of the seizure, defendant Nelson appeared at the store, identified himself to the police as the owner, and admitted that he had anticipated the police action.

On February 10, 1983, Kenneth Cook, a detective with the Los Angeles Police Department, entered Penny Lane in plain clothes. A conversation ensued between Cook and defendant Vitale, who was working at the time, during which Vitale declined to sell paraphernalia to Cook.

The next day, February 11, police officers with a search warrant seized additional supplies of chemicals and other drug paraphernalia. On May 6, 1983, police officers, again with a search warrant, seized further quantities of paraphernalia. At trial, the officers explained why in their opinion the items seized on all three occasions constituted drug paraphernalia.

Harold M. Wallack, who had sold tobacco and tobacco products his entire working life, explained on behalf of the People why none of the miniature pipes and bongs seized at Penny Lane were suitable for smoking tobacco.

The defense called Los Angeles Police Officer David Richardson as its initial witness. Richardson's testimony essentially corroborated the opinion of the People's witnesses that the items seized from Penny Lane were drug paraphernalia. Each defendant then testified. Although all admitted varying degrees of familiarity with drug paraphernalia and usage, each disclaimed any intent for the items sold in Penny Lane to be used for the preparation or ingestion of controlled substances.

I.

Prior to trial, each defendant filed a demurrer challenging the validity of section 11364.7, subdivision (a), on constitutional grounds. At the conclusion of a consolidated hearing on the matters, the court overruled the demurrers.

On appeal ⁴ defendants reassert their position that section 11364.7, subdivision (a), is constitutionally infirm. The thrust of their challenge is that section 11364.7, subdivision (a), is void for vagueness. ⁵ "As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." [Citations.]" ⁶ (Kolen der v. Lawson (1983) 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903.)

Defendants initially assert that the phrases "designed for use" and "marketed for use" in section 11014.5 are impermissibly vague for the reason that there are many items that "are not solely designed to be drug paraphernalia but are [dependent] upon the ingenuity or purpose of the purchaser...." We construe this argument to be an attack on the sufficiency of the mens rea or scienter element of section 11364.7, subdivision (a).

Defendants' remaining argument also concerns the adequacy of that element, albeit in conjunction with the phrase "reasonably should know" contained in subdivision (a) of section 11364.7. Defendants contend that this phrase forces a merchant to be "faced with the difficult, if not impossible, task of determining what gives rise to a reasonable belief that a purchaser intends to utilize the paraphernalia for an illegal purpose.... In short, the statute makes the retailer responsible for knowing what a customer intends to do with a purchase. This constructive knowledge [standard] as a basis for criminal liability is completely unacceptable and unconstitutional."

Defendants' two-prong position is grounded essentially in their concern that the state statute imposes a standard of virtual strict liability against a seller, in that the seller is held accountable even when an object has innocent, legitimate uses and is charged with a customer's undisclosed or disguised reason for purchasing an item that has the potential to be utilized as drug paraphernalia.

To evaluate defendants' vagueness claims, "we look first to the language of the statute, then to its legislative history, and finally to California decisions construing the statutory language." (Pryor v. Municipal Court (1979) 25 Cal.3d 238, 246, 158 Cal.Rptr. 330, 599 P.2d 636.)

A. STATUTORY LANGUAGE

We commence our three-part analysis with a threshold examination of the statutory language of the charged drug paraphernalia offense in the context of defendants' contentions.

Section 11364.7, subdivision (a) reads: "It is a misdemeanor for any person to deliver, furnish, or transfer, or to possess with intent to deliver, furnish, or transfer, or to manufacture with intent to deliver, furnish, or transfer, drug paraphernalia, knowing, or under circumstances where one reasonably should know, that it will be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance in violation of this division."

The definition of "drug paraphernalia" referred to in that subdivision is found in section 11014.5. Subdivision (a) reads in pertinent part:

" 'Drug paraphernalia' means all equipment, products and materials of any kind which are designed for use or marketed for use, in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance in violation of this division...."

This general definition is followed by a nonexhaustive list of eight examples of drug paraphernalia. ( § 11014.5, subd. (a)(1)-(8).) Each of the items listed in the eight examples is characterized as drug paraphernalia if it is "designed for use or marketed for use" with controlled substances. (Ibid.) The eighth example, "Objects designed for use or marketed for use in ingesting, inhaling, or otherwise introducing marijuana, cocaine, hashish, or hashish oil into the human body," is itself further particularized by a nonexhaustive list of eleven examples. ( § 11014.5, subd. (a)(8)(A)-(K).)

Subdivision (b) of section 11014.5 defines the phrase "marketed for use" to mean "advertising, distributing, offering for sale, displaying for sale, or selling in a manner which promotes the use of equipment products, or materials with controlled substances."

Subdivision (c) of that section lists seven factors that "a court or other authority should consider, in addition to all other logically relevant factors" to determine whether an object constitutes drug paraphernalia. Two of the listed factors are: "Statements by an owner or by anyone in control of the object concerning its use" and "Whether the owner, or anyone in control of the object, is a legitimate...