People v. Spann

• Decision Date: 25 November 1986
• Citation: 187 Cal.App.3d 400,232 Cal.Rptr. 31
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. William Carter SPANN, Defendant and Appellant. Crim. 14627.

Page 31

232 Cal.Rptr. 31

187 Cal.App.3d 400

The PEOPLE, Plaintiff and Respondent, v. William Carter SPANN, Defendant and Appellant.

Crim. 14627.

Court of Appeal, Third District, California.

Nov. 25, 1986.

Valencia & Wong and Robert Valencia, Berkeley, under appointment by Court of Appeal, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Robert D. Marshall, Supervising Deputy Atty. Gen., David De Alba, Deputy Atty. Gen., for plaintiff and respondent.

BLEASE, Associate Justice.

Defendant was observed to be under the influence of a substance, determined to be Valium, while an inmate in the Butte County Jail. This evidence was used to prove that he "possessed" an unauthorized narcotic substance or drug in jail in violation of Penal Code section 4573.6. He was sentenced to state prison. ¹ On appeal he contends that the presence of the proscribed substance in his system does not constitute possession and cannot circumstantially prove pre-ingestion possession. We agree and will reverse the judgment.

FACTS

On October 7, 1984, defendant was an inmate of the Butte County Jail. A correctional officer observed that his speech was slurred, he was unstable on his feet, and that his eyes were partially closed as though he were intoxicated. Defendant had been an inmate at the facility for some six months. Suspecting that defendant was under the influence of an illicit substance, the officer caused a blood sample to be drawn.

A forensic pathologist for the California Department of Justice testified that the blood sample contained quantities of diazepam and nordiazepam. Diazepam is a generic term for Valium and nordiazepam is created within the body when diazepam is metabolized. Valium may be taken orally or by injection. The pathologist opined that defendant had ingested Valium a few hours before the blood sample was drawn, basing the conclusion on the relative amounts of diazepam and nordiazepam present in the blood sample. The pathologist did not know how much diazepam had been ingested by defendant, although the amount in his blood was "several times" above the lower threshold of the drug's detection, which is .05 milligrams per liter.

The jail rules were introduced into evidence. They permit only those narcotic substances which are prescribed by a physician and administered by a nurse.

At the time of the alleged offense defendant was receiving two prescribed medications, Soma and lithium carbonate. Valium had not been prescribed for him. Shortly after the blood sample was drawn defendant became unruly, stating that his life was over at the age of 38. He was subdued with the use of handcuffs, Mace, and an injection of Vistaril.

This was the evidence upon which the judgment of conviction was predicated, giving rise to this appeal.

DISCUSSION

At the time of the alleged offense Penal Code section 4573.6 provided: "Any person who knowingly has in his possession in any [jail], any narcotics or drugs in any manner, shape, form, dispenser or container [ ], without being authorized to so possess the same by the rules of the [jail] or by the specific authorization of the [person in charge], is guilty of a felony." ² (Stats.1970, ch. 848, § 3.)

At issue is the meaning of "possession" as used in that section. ³ The sole proof that defendant "possessed" Valium is that he was under its influence in jail and that the amount in his body was well above the level of scientific detection.

A.

It was contended at trial that possession extends to the presence of the proscribed substance in the body after consumption. The Attorney General does not pursue this theory on appeal. He impliedly concedes, by reference to an opinion of his office, that after consumption the user no longer has dominion and control over the substance consumed and hence does not possess it. (See Violation of Penal Code Section 4573.6, 63 Ops.Cal.Atty.Gen. 282 (1980).) We agree for the obvious reason that a person is not in control of a substance that is en route through his digestive system. If support is needed for this unremarkable conclusion it is contained in the cases upon which the opinion of the Attorney General relies and allied authority.

Evans v. State (1931) 24 Ala.App. 196, 132 So. 601, a prohibition era case, held that whiskey was not "possessed" when it "is in the man" after consumption. (See also, e.g. Nethercutt v. Commonwealth (1931) 241 Ky. 47, 43 S.W.2d 330; liquor in the stomach is not "possessed.") Similarly, State v. Downes (1977) 31 Ore.App. 1183, 572 P.2d 1328, 1330, holds that phencyclidine (PCP) is not possessed by the user after it has been injected into his arm. (See also, e.g., Franklin v. State (1969) 8 Md.App. 134, 258 A.2d 767, accord, heroin; State v. Flinchpaugh (1983) 232 Kan. 831, 659 P.2d 208 accord, cocaine.) Other cases have consistently held that taking a drink, i.e. using alcohol, was lawful when possession was unlawful. (See e.g. Sizemore v. Commonwealth (1924) 202 Ky. 273, 259 S.W. 337; Colbaugh v. United States (8th Cir.1926) 15 F.2d 929.)

These cases distinguish between the use of a proscribed substance, by its ingestion, consumption or injection for the purpose of its effect upon the body (or the condition of being under its influence), and its possession. Similarly, under California law, the proscription of the unprescribed use (or being under the influence) of a controlled substance (Health and Saf.Code, § 11550) ⁴ implicates the physiological processes of the body leading to addiction. (See People v. Davis (1966) 240 Cal.App.2d 496, 501, 49 Cal.Rptr. 663; People v. Velasquez (1976) 54 Cal.App.3d 695, 699-700, 126 Cal.Rptr. 656.) ⁵ Possession does not. ⁶

B.

These distinctions are deeply embedded in the California criminal law. "Scarcely a legislature since 1872, when California passed its first law concerning the administration of narcotics to commit a felony, has failed to adopt some law dealing with the problem." (See e.g. The Narcotic Problem (Prosser ed. 1954) 1 UCLA L.Rev. 405, 502, fn omitted.) The law was codified, in 1939, with the enactment of the Health and Safety Code. (Stats.1939, ch. 1079, p. 3003.) The transportation, distribution, or selling of "narcotics", as defined by former section 11001, was made punishable as a felony or misdemeanor in the discretion of the court. (Former §§ 11160, 11713.) The "use" of "narcotics" was not addressed except for use amounting to addiction, for which the addict could be jailed. (Former §§ 11720-11722.) In 1940 "possession" was added to the list of proscribed acts under former section 11160. (Stats.1940, First Ex.Sess., ch. 9, p. 18.) In 1945 the "use" of "narcotics" was made a misdemeanor. (Stats.1949, ch. 1475, § 25, p. 2571; § 11721.)

In 1949, the section with which we are concerned, Penal Code section 4573.6, was enacted to make the "possession" of "narcotics or drugs" in a custodial institution, without the authorization of custodial authorities, a felony. (Stats.1949, ch. 833, § 3, p. 1583.) It was preceded, in 1941, by Penal Code section 4573, which made it a felony to bring into any custodial institution "any narcotic, the possession of which is prohibited by Division 10" of the Health and Safety Code, the law described above (Stats.1941, ch. 1192, § 15, p. 2965), thus linking the law applying to custodial institutions to the nomenclature of the general criminal law of drugs.

In 1962, the offense of addiction (Health & Saf.Code, § 11721) was held unconstitutional. (Robinson v. California (1962) 370 U.S. 660, 667, 82 S.Ct. 1417, 1420-21, 8 L.Ed.2d 758, 762-763.) The Legislature responded by repealing that law and by creating a misdemeanor offense for the use of or being under the influence of "narcotics" (Stats.1963, ch. 913, § 1, p. 2162) in order to regulate the causes of addiction by constitutional means. (See People v. Davis, supra, 240 Cal.App.2d at p. 501, 49 Cal.Rptr. 663.) In 1965 the Legislature created the new classification of "restricted dangerous drug[s]" (former § 11901), and made their "possession" without prescription a misdemeanor (former § 11910). (Stats.1965, ch. 2030, p. 4603.) Their "use", however, was not made a crime.

In 1972 California repealed this law and replaced it with an amended version of the Uniform Controlled Substances Act. (Stats.1972, ch. 1407.) The drugs included within the repealed provisions were relabeled "controlled substances" ⁷ and separately classified in five schedules. (Ibid.) The term "narcotic drug" (as defined in new § 11019) was employed to distinguish substances within the schedules for purposes of their criminal classification and punishment (§§ 11350, 11377, and 11550.). The "possession" of most Schedule I and II substances was made a felony (§ 11350); the "possession" of most Schedule III, IV, and V drugs was made an alternate felony or misdemeanor (§ 11377.) The act addressed by separate chapter, the "Control of Users of Controlled Substances", and made the "use" of any "controlled substance" (or being under its influence) a misdemeanor. (§ 11550.)

In 1973 the Legislature removed certain substances from the felony provisions of section 11350 and transferred them to the alternate felony/misdemeanor provisions of section 11377. (Stats.1973, ch. 1078, art. 1, p. 2171, ff.) At the same time, the unprescribed use of a substance listed in Schedules III, IV or V was made a crime only if the substance "was a narcotic drug" as defined in section 11019. (§ 11550.) These revisions were accompanied by an urgency declaration that they were intended to cure inadvertent substantive changes made by the uniform act. (Stats.1973, ch. 1079, § 30, p. 2188.)

In 1976, section 11057, the list of Schedule IV substances, was amended to include Valium (diazepam). (Stats.1976, ch. 1035, § 5.5, p. 4638.) By virtue of section 11377, this made the unprescribed "possession" of Valium a crime punishable alternately as a misdemeanor or felony. (§ 11377.) However, since Valium is not a "narcotic...