People v. Privitera, Cr. 8323

• Decision Date: 10 November 1977
• Docket Number: Cr. 8323
• Citation: 141 Cal.Rptr. 764,74 Cal.App.3d 936
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. James Robert PRIVITERA, Jr., et al., Defendants and Appellants.

Page 764

141 Cal.Rptr. 764

74 Cal.App.3d 936

The PEOPLE of the State of California, Plaintiff and Respondent, v. James Robert PRIVITERA, Jr., et al., Defendants and Appellants.

Cr. 8323.

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

Nov. 10, 1977.

Opinion on Hearing, See 153 Cal.Rptr. 431, 591 P.2d 919.

Walter Maund and Bamberg & Flanigan by Daniel F. Bamberg, San Diego, for defendant and appellant James R. Privitera, Jr.

Patrick J. Hennessey, Jr., San Diego, for defendant and appellant Winifred Agnes Davis.

Stephen Torney, San Diego, for defendant and appellant Carroll Ruth Leslie.

Appellate Defenders, Inc. by Paul Bell, San Diego, and S. J. Sinton, La Jolla, for appellants Phyllis Blanche Disney and William Turner.

Evelle J. Younger, Atty. Gen., James R. Winkler, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., A. Wells Petersen, and Robert M. Foster, Deputy Attys. Gen., for plaintiff and respondent.

STANIFORTH, Associate Justice.

Under California Health and Safety Code section 1707.1, ¹ it is a misdemeanor to sell, deliver, prescribe or administer any drug or device to be used in the diagnosis, treatment, alleviation or cure of cancer which has not been approved by the designated federal agency (21 U.S.C.S. § 355) or by a state board (Health & Saf. Code § 1704).

Defendants, James Robert Privitera, Jr., a medical doctor, William David Turner, Phyllis Blanche Disney, Winifred Agnes Davis, and Carroll Ruth Leslie, were convicted by jury of a felony, conspiracy to sell, to prescribe, an unapproved drug, laetrile, intended for the alleviation or cure of cancer. (Pen.Code § 182, subd. 1; Health & Saf. Code § 1707.1.) Davis and Turner were convicted of selling laetrile to be used for the alleviation or cure of cancer. (Health & Saf. Code § 1707.1.)

We view the evidence in the light most favorable to the judgments. (People v. Reilly, 3 Cal.3d 421, 425, 90 Cal.Rptr. 417, 475 P.2d 649.) The defendants were involved in a common plan to import, distribute and prescribe laetrile (also referred to as amygdalin or vitamin B-17) to cancer patients. Defendants Turner and Davis were the importers and chief suppliers of the drug. Defendants Leslie and Disney worked as the distribution network in various residential areas. Dr. Privitera prescribed amygdalin for cancer victims (or to undercover state agents represented to be cancer victims). Dr. Privitera referred patients to Turner and Davis to buy the amygdalin; Disney referred patients to Dr. Privitera for treatment.

The defendants told the prospective users of the drug that amygdalin was an effective treatment or cure for cancer. Substantial evidence supports the jury finding of a common plan or agreement to supply and prescribe amygdalin as a cancer cure. Laetrile has not been "approved" by a designated governmental agency.

I Contentions of the Parties Factual and Legal

Dr. Privitera contends that California Health and Safety Code section 1707.1 is an unconstitutional invasion of the cancer victim's right to obtain and use amygdalin in violation of rights guaranteed by the United States Constitution, Amendments I, IV, V, VI, VII, VIII, and XIV, and California Constitution, article I, sections 1, 7, 7(a) and 15. This, he asserts, is an invasion of the patient's right of privacy, his or her right to be left alone in choice of orthodox versus unorthodox treatment of cancer. As a corollary and necessary concomitant of the right of privacy of the patient, Dr. Privitera argues that the constitutional protection accorded the cancer victim's right to utilize amygdalin in a program of nutritional therapy extends to physicians willing to administer the drug and to persons willing to supply the drug for the cancer victim's use. Argues Dr. Privitera:

"The protection of constitutional guarantees of privacy and personal liberty, therefore, extends not only to the patient pursuing a course of nutritional therapy but to the physician who prescribes and administers the therapy and to the person who furnishes the essential components."

Dr. Privitera does not challenge the validity of the general or specific regulatory laws to the extent they prohibit the advertisement of amygdalin as a cure for cancer (Health & Saf. Code § 1714); or require amygdalin be labeled in accordance with state law and regulations (Health & Saf. Code § 26463); or impose standards on the manufacturing and packing of amygdalin to insure quality and prevent adulteration or deterioration, or the prohibition of the sale of amygdalin to members of the general public for the purpose of treating cancer by persons other than licensed physicians (Health & Saf. Code § 26400, et seq.). (Health & Saf. Code §§ 1704, 26670, 1707.1, 1709; 17 Cal.Admin. Code § 10400.1.)

Rather, Dr. Privitera's challenge is directed to those laws, specifically the one of which he is convicted, insofar as they prohibit a duly licensed physician from administering amygdaline to cancer patients and which prohibit its sale to either licensed physicians or persons who have obtained prescriptions from a licensed physician. (Health & Saf. Code §§ 1700-1721.)

According to Dr. Privitera, this right of choice of medical treatment is a fundamental right of the individual and regulations limiting this right may be justified only by "compelling state interests"; the legislative enactments which seek to regulate or control in the areas of such fundamental rights must be narrowly drawn to protect only the legitimate state interests at stake.

The specific drug here supplied or prescribed is a substance known as amygdalin, also known as laetrile, and also known as vitamin B-17. Amygdalin is a by-product of apricot pits. The substance has been the subject of widespread public dispute as to its efficacy for the treatment of cancer. Orthodox medicine, as represented by the American Cancer Society, places it in the area of nostrums. Its proponents vary in their claims from that as a cure for cancer or as simply a nutritional aid causing the patient to gain weight, have a better appetite, and a better emotional outlook. It is generally conceded that amygdalin is nontoxic; it does not fall within the general ban of drugs which are toxic, habit forming, addictive, or otherwise distort reality. Conventional medicine regards the "evidence," "proof," of the curative effect of amygdalin as anecdotal in nature and contends the drug has never been established by scientific methodology to have any effect whatsoever upon either the cure or retardation of cancer growth. Despite the pros and cons of the experts in the field of medicine, and others from non-medical fields taking side on this issue, cancer victims in large numbers have sought the relief, whatever its nature, which is available from the use of this drug. Where, as in Mexico and in West Germany, the drug is available through doctors and clinics, cancer victims, able to travel, seek out and obtain the treatment.

Dr. Privitera points out that many cancer victims have investigated and evaluated the merits of surgery, radiation therapy or chemotherapy with the aid of competent medical advice and have made the highly personal decision; the benefits from such therapy is not sufficient to justify the risks which include disfigurement, debilitation, and accelerated death and for this reason have chosen to seek amygdalin as a treatment; other cancer victims have been advised that their condition is hopeless, their case is terminal and as a last resort before certain death, seek amygdalin.

Dr. Privitera contends many conceded cancer victims, competent and responsible adults, seek and use amygdalin as a food substance to ameliorate the horrifying physical wasting away of the body (cachexia) which accompanies cancer. Thus they seek amygdalin not only for its possible cancer curative benefits, but also for its known nutritional benefits. Cancer victims cannot be certain amygdalin will either cure or control cancer but they believe, based upon the anecdotal, personal experience approach, the drug provides relief from the terrible pain, mental malaise, the emotional depression and weight loss which mark the progression of their disease.

The People assert, contrary to Dr. Privitera's contentions, not a single accredited medical school in the State of California teaches amygdalin might be effective in the controlling or curing of cancer. Further the use of amygdalin as a form of nutritional therapy is officially regarded by the State Department of Health, the California Medical Association, the National Cancer Institute and a great block of practicing physicians, to be of no value whatsoever in the controlling or curing of cancer.

Dr. Privitera specifically contends section 1707.1 of the Health and Safety Code is unconstitutional. It is a denial of one aspect of individual "liberty" protected by the due process clause of the Fourteenth Amendment.

The patient, he asserts, has a right of "privacy" or "a guarantee of certain areas or zones of privacy." This is the individual right of independence in making certain kinds of important decisions. The very nature of the relationship, the act to be performed, the decision to be made, precludes unjustified state presence. It is "the right of the individual to be free in action, thought, experience and belief from governmental compulsion." (Kurland, "The Private I", University of Chicago Magazine 7 8, Autumn 1976.) It is that right voiced by Justice Brandeis in his dissent in Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed. 944, "the right to be let alone", "the right most valued by civilized men."

Historically this right of privacy was first articulated as a constitutional right in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510, a decision holding unconstitutional a statute prohibiting the use of contraceptives. However, the recognition of the existence, innate in every human being, of a zone of...