Brief Bank # B-835 (Re: F 12.00d Possession Of Controlled Substance: Use Alone Not Sufficient To Prove Possession (HS 11350 or HS 11377).)
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SUPREME COURT
STATE OF CALIFORNIA
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
vs.
JOHN DOE,
Defendant and Appellant.
___________________________________/
On Appeal From Judgment Of The Superior Court Of California
Los Angeles County
Honorable Charles C. Lee, Trial Judge
APPELLANT’S OPENING BRIEF ON THE MERITS
So’Hum Law Center Of
RICHARD JAY MOLLER
State Bar #95628
P.O. Box 1669
Redway, CA 95560-1669
Telephone: (707) 923-9199
Attorney for Appellant
By Appointment of the Supreme Court
ARGUMENT
I. THE PROSECUTOR’S CLOSING ARGUMENT WAS BASED ON A LEGALLY INCORRECT THEORY OF GUILT THAT EQUATED DRUG INTOXICATION WITH DRUG POSSESSION, THEREBY DENYING APPELLANT HIS DUE PROCESS RIGHT TO A FAIR TRIAL
A. The Relevant Facts
In his closing argument the prosecutor repeatedly and forcefully argued that the jury should convict appellant of possession solely on the basis of his drug intoxication:
As you look at this evidence, certainly the most compelling evidence is that the defendant was under the influence of P.C.P. and you think to yourself, “Well, gosh, is there any way on this planet you could physically become under the influence of P.C.P. if you didn’t possess it at some time before you became under the influence?” It’s kind of hard to sit and get drunk on beer if you don’t have any beer; Okay? [¶] (RT 137 [emphasis added].)
So the only evidence that you have before you, Ladies and Gentlemen, all points to the fact that the defendant was clearly under the influence that night in the back of the police department, and in the van that he is sitting—found sitting by the police officers, is a vial of P.C.P.
Now, you can go into your deliberation room and you can say, “Well, Gee, how do we know that was the vial and we know he’s on P.C.P.”? We know he got there by being in possession of P.C.P. How do we know that was the P.C.P.? Maybe he had another bottle at home, or maybe he had five other bottles at home. That’s not the issue.
The only issue for you to decide, Ladies and Gentlemen, is, do you believe in the truth of this allegation that on November—on or about November the 3rd, 1995, the defendant was in possession of a controlled substance, that controlled substance being P.C.P.?
And it does not necessarily require that you all unanimously agree that it was some P.C.P. from this vial. That is simply additional evidence that what he was under the influence was clearly P.C.P., and in order to get under the influence, he had to possess P.C.P. Pretty simple process. [¶] (RT 138-139 [emphasis added].)
So you make your decision based upon the evidence here, and I believe that the evidence here, clearly, beyond a reasonable doubt, establishes that the defendant had to have been in possession of P.C.P. in order to get under the influence of P.C.P. on November the 3rd, in the evening hours. (RT 140 [emphasis added].)
Appellant’s counsel argued that appellant did not possess the vial, but of course he was not able to address the prosecutor’s legal argument that intoxication alone was a sufficient basis to convict appellant of possession:
Now, why does the prosecutor go through all of this trouble to bring in this vial and put it in evidence and have testimony of officers who found it under the seat with an expert for chemical analysis of that substance, if the prosecutor doesn’t want you to believe that Mr. Doe, by circumstantial evidence, was in possession of that P.C.P. in that vial? Where is the evidence beyond a reasonable doubt that Mr. Doe, by circumstantial evidence, was in possession of that P.C.P. in that vial? Where is the evidence beyond a reasonable doubt that Mr. Doe exercised control over that vial?
Again, getting back, it was found underneath the seat. No fingerprints; no evidence of his van; no evidence of him driving. “Such a person had knowledge of its presence.” Where is the evidence beyond a reasonable doubt that Mr. Doe had knowledge that it was there? (RT 154-155.)
In his rebuttal, the prosecutor ignored the vial and drove home his argument that drug intoxication alone was a legally sufficient basis to convict appellant of possession.
What do we know? We know that the woman comes into the police station and basically the police, at her direction, go out to find this van parked in the handicapped slot with Mr. Doe sitting in the van. And Mr. Doe is wasted; Okay? He is intoxicated on P.C.P.
And then, of course, one could speculate. “Well, Gee, how do we know that this was not an immaculate intoxication? That he was simply overcome with P.C.P. spirit or something, out of outer space or something?
We know because we have a lifetime of experience. You don’t get drunk unless you take in the intoxicant. You can’t take in the intoxicant if you don’t have it. Very simple. Very simple deductive process. I can’t drink beer until I’m drunk unless I have beer to drink.
And counsel adeptly says there are the elements of the offense of possession, one must exercise control in order to ingest the intoxicant. I’ve got to be in control of it, unless of course, someone is holding me down and force-feeding me this intoxicant; okay? But you cannot speculate on things, these kind of wild imaginations, what might have been or could have been. You have to rely on the evidence.
Now, you have to be aware of the presence. It’s a little hard to get yourself loaded if you’re not aware of the presence of what you’re getting yourself loaded on. And the nature of it. If I sit down with a six-pack of Budweiser, and I drink that six-pack of Budweiser, I know the nature of it. And if I get intoxicated on that six-pack, it’s because I knew the nature of it. That’s why I drank it.
And it has to be an amount sufficient to be used as a controlled substance. Well, a controlled substance is kind of self-medication. I want to get high. So there has to be evidence beyond a reasonable doubt that there was a sufficient quantity for Mr. Doe to get high. He was high. He was intoxicated.
Actually, the amount needed for the offense, you have to have enough to get loaded. He had certainly enough to get loaded on it. If he didn’t, he would have been sober. So all of those elements are conclusively proven based upon the condition that Mr. Doe is in at the time he’s found. Very simple. Very simple process.
Now, the vial of P.C.P. in the van in which Mr. Gonzales—or Mr. Doe is found is certainly circumstantial evidence, that it is P.C.P. we’re talking about. Okay?
If someone finds me laying [sic] in the street, smelling of beer and heavily intoxicated, and I am surrounded by Budweiser bottles, it’s going to be pretty easy to figure out what substance it is that got me drunk. Okay? Although, maybe I didn’t get drunk on one of those bottles or two of those bottles; it may have been one that’s over behind the bushes that added the final touch. That’s not the issue here, so don’t be misled, Ladies and Gentlemen. [¶] (RT 159-161 [emphasis added].)
What is interesting is that, at a time when Mr. Doe is very—what appears to be very slow in reacting and moving very slowly, his heart is beating at 100 beats a minute when he’s sitting, and his blood pressure is 160 over 140. Talk about ready to blow a pipe.
You know, here’s a guy that is certainly—his body is reacting to this substance, and they’re so contrary. Usually you would expect, you know, when your heart rate starts to go up and your blood pressure is climbing, you’re kind of frenzied, but here he’s almost stuporous. He’s not responding to the commands by the police. He’s moving slowly, and yet inside his body he’s sweating and his heart is pounding and his blood pressure is up. (RT 163-164 [emphasis added].)
B. The Prosecutor’s Closing Argument That Drug Intoxication, Standing Alone, Is Sufficient To Convict Appellant Of Possession Is Contrary To California Law And The Great Weight Of Authority
Contrary to long-established California precedent, as well as precedent in virtually all other jurisdictions that have considered the issue, the prosecutor incorrectly told the jury that it could convict appellant of possession of PCP solely on evidence that he was intoxicated by the drug.
Although intoxication may be evidence of prior possession of illegal drugs (People v. Palaschak, supra, 9 Cal.4th at 1242), such evidence, standing alone, cannot sustain a conviction for possession. (Id. at 1240-1241.) Thus, the prosecutor’s argument not only was contrary to the legal definition of possession in California, it also violated due process.
In Palaschak, the state showed that the defendant had asked an employee to obtain LSD for him, that she obtained the LSD and gave him some of it the day before his arrest, that he shared the LSD with the employee on the day of his arrest, that he offered to share the LSD with another employee, that he was intoxicated on LSD at the time of his arrest, and that he admitted voluntarily ingesting LSD on the day of his arrest. (Id. at 1238.) Relying on broad dicta in other cases, the court of appeal reversed the conviction for possession on the ground that the defendant did not have possession of the drug at the time of his arrest—i.e., he already had ingested it.
In upholding the conviction, this Court held that a drug possession charge could “be based on direct or circumstantial evidence of past possession. . . . [T]he narcotics possession statutes do not require proof of possession at the very time of arrest.” (Id. at 1242.) The Court thus sanctioned the use of evidence that the defendant had possessed the LSD the day before and the day of his arrest, and that he was intoxicated at the time of his arrest. The Court, however, declined to overturn the long-standing rule that evidence of intoxication, standing alone, is not sufficient to convict a defendant of possession. On the contrary, the Palaschak Court twice endorsed that rule.
There may be some justification for holding, as prior cases have held, that evidence of ingestion of drugs, standing alone, should not be deemed adequate to sustain a possession charge, although that issue is not presently before us. Ingestion, whether or not accompanied by useless traces or residue, at best raises only an inference of prior possession. (Id. at 1240-1241 [emphasis in original].)
A little later in the opinion, the Court expressly noted that prior cases striking down possession convictions based only on intoxication or trace residues “reached defensible results on their facts.” (Id. at 1242.) In other words, drug intoxication is evidence of prior possession, but intoxication alone is not proof of prior possession and it is not a sub-species of possession, for the simple reason that intoxication could be involuntary. (Id. at 1241.)
In appellant’s case, the prosecutor repeatedly and exclusively argued that appellant’s intoxication alone at the time of his arrest was a sufficient basis to convict him of possession. (See RT 139 [“in order to get under the influence, he had to possess P.C.P. Pretty simple process.”]; RT 140 [“the defendant had to have been in possession of P.C.P in order to get under the influence of P.C.P. on November 3rd, in the evening hours.”]; RT 159 [“You don’t get drunk unless you take in the intoxicant. You can’t take in the intoxicant if you don’t have it. Very simple. Very simple deductive process.”]; see also RT 137, 159-161.) In fact, the prosecutor argued that whether appellant possessed the vial of PCP found under the driver’s seat was irrelevant; according to the prosecutor, the vial was simply evidence of his intoxication, not, as one would expect, that intoxication was evidence of possession of the vial. (RT 138-139 [“How do we know that [the vial] was the P.C.P.? Maybe he had another bottle at home, or maybe he had five other bottles at home. That’s not the issue. . . . And it does not necessarily require that you all unanimously agree that it was some P.C.P., from this vial. That is simply additional evidence that what he was under the influence was clearly P.C.P. And in order to get under the influence, he had to possess P.C.P. Pretty simple process.”]; RT 161 [“the vial of P.C.P. in the van in which Mr. Gonzales—or Mr. Doe is found is certainly circumstantial evidence, that it is P.C.P. we’re talking about.”].) In contrast to the facts in Palaschak, there is no evidence that appellant arranged to obtain PCP, that he possessed PCP the previous day, that he shared PCP with others, or that he voluntarily ingested PCP. The only common element in the two cases is the defendants’ intoxication.
The prosecutor in the present case did not argue, as Palaschak instructed, that ingestion “at best raises only an inference of prior possession.” (Id. at 1241.) Rather, he repeatedly told the jury that it could convict appellant of possession of PCP based solely on his intoxication, without deciding whether appellant actually possessed the PCP found in the van. (RT 137-139, 159-164.)
The prosecutor’s argument that appellant “possessed” PCP because he had ingested it was legally incorrect and misled the jury about the law. In 1980, for example, the California Attorney General conceded that after consuming a drug, the user no longer has dominion and control over the substance consumed, which are elements of the crime of possession, and thus does not “possess” it, as that word is used in the drug laws. (See Violation of Penal Code Section 4573.6, 63 Ops.Cal.Atty.Gen. 282 (1980).) Subsequently, a court of appeal agreed “for the obvious reason that a person is not in control of a substance that is en route through his digestive system.” (People v. Spann (1986) 187 Cal.App.3d 400, 403.) The Spann court distinguished a law proscribing ingestion of illegal drugs—which “implicates the physiological processes of the body leading to addiction”—from a law proscribing possession—“which does not.” (Id. at 404.) Previous California cases had reached a similar conclusion. (See People v. Sullivan (1965) 234 Cal.App.2d 562, 565 [possession may not be based solely on the fact that the defendant was under the influence of heroin]; People v. Leal (1966) 64 Cal.2d 504, 510-511 [evidence of heroin intoxication and a heroin injection kit are not enough to prove possession].)
In Palaschak, this Court agreed with previous cases that ingestion “at best raises an inference of prior possession.” (People v. Palaschak, supra, 9 Cal.4th at 1241.)
As stated in [People v.] Sullivan [1965] 234 Cal.App.2d [562], 565, if proof of ingestion of illegal drugs were sufficient to sustain a possession charge, then every person under the influence of an illegal drug could be charged with possessing it because, logically, one who ingests a drug must have possessed it at least temporarily. Yet it is arguable that not all occasions of drug use necessarily and inevitably involve criminal possession. For example, depending on the circumstances, mere ingestion of a drug owned or possessed by another might not involve sufficient control over the drug, or knowledge of its character, to sustain a drug possession charge. (Ibid.)
In other words, some people may ingest an illegal drug—in a spiked drink or a cigarette laced with PCP—not knowing about the drug, and thus without ever possessing it in the legal sense of dominion and control. As this Court stated in Palaschak, “it is arguable that not all occasions of drug use necessarily and inevitably involve criminal possession.” (Ibid.)
Other state courts follow this reasoning. The Kansas Supreme Court unanimously agreed that “[d]iscovery of a drug in a person’s blood is circumstantial evidence tending to prove prior possession of the drug, but it is not sufficient evidence to establish guilt beyond a reasonable doubt.” (State v. Flinchpaugh (1983) 232 Kan. 831, 659 P.2d 208, 212.) The Flinchpaugh court further explained:
The absence of proof to evince knowledgeable possession is the key. The drug might have been injected involuntarily, or introduced by artifice, into the defendant’s system. The prosecution did not establish that defendant ever knowingly had control of the cocaine. . . . In the narrow holding of this case, we find that evidence of a controlled substance assimilated in one’s blood does not establish possession of that substance . . . nor is it adequate circumstantial evidence to show prior possession by that person. Other corroborating evidence combined with positive results of a blood test could be sufficient evidence to prove guilt beyond a reasonable doubt depending on the probative value of the corroborating evidence. (Ibid.)
Similarly, the Washington Supreme Court held: “Evidence of a controlled substance after it is assimilated in a person’s blood does not establish possession or control of that substance.” (State v. Hornaday (1986) 105 Wash.2d 120, 126, 713 P.2d 71, 75-77.) [Footnote 1]
A Minnesota court of appeal held that “evidence of a controlled substance in a person’s urine specimen does not establish possession . . . nor is it sufficient circumstantial evidence to prove prior possession beyond a reasonable doubt absent probative corroborating evidence of actual physical possession.” (State v. Lewis (Minn.App. 1986) 394 N.W.2d 212, 217.) An Ohio court of appeal also agreed that while “the presence of alcohol in appellant’s system is circumstantial evidence of prior possession . . . this evidence is not enough, without additional corroborating evidence, to prove prior possession beyond a reasonable doubt within the jurisdiction where the charges were brought.” (Logan v. Cox (1993) 89 Ohio App. 349, 624 N.E.2d 751, 755.) The Alaska court of appeals also held that “a defendant cannot be convicted for possession of cocaine in his or her body.” (State v. Thronsen (Alaska App. 1991) 809 P.2d 941, 943.) [Footnote 2]
Only one state court found ingestion to be an adequate basis for possession, and that holding occurred in the unique pharmacological circumstances of that case. (Green v. State (1990) 250 Ga. 625, 398 S.E.2d 360, 361-362 [cocaine metabolites in probationer’s urine sample, plus evidence that cocaine metabolizes in the human body very quickly, was sufficient circumstantial evidence of cocaine possession].) Moreover, in Green there was additional evidence that the defendant had been dealing drugs in “a heavy drug activity area” at the time of his arrest. (Green v. State (1990) 194 Ga.App. 343, 390 S.E.2d 285, 286.) As the Georgia Supreme Court pointed out, the presence of cocaine metabolites in urine is only circumstantial evidence of possession, and that the presence of metabolites could be the result of innocent ingestion. (Green v. State, supra, 398 S.E.2d at 362 & n.2.)Only the lower federal courts arguably have a different view, although the federal cases arise in the quite different context of terminating supervised release under 18 U.S.C. section 3583(g). [Footnote 3] Those cases hold that the state may meet its burden of proving drug possession by showing the defendant’s drug use by a preponderance of the evidence. (See United States v. Blackston (3rd Cir. 1991) 940 F.2d 877, 892; United States v. Hancox (10th Cir. 1995) 49 F.3d 223, 224-225.) One federal court of appeals agreed with the district court judge that “[t]here can be no more intimate form of possession than use. . . . [I]t’s just errant sophistry that somebody has knowingly and willfully used a controlled substance and simultaneously claims that that does not necessarily imply possession.” (United States v. Rockwell (10th Cir. 1993) 984 F.2d 1112, 1114-1115.)
These federal cases, however, are inapplicable to appellant’s case. First, they involve construction of a federal statute, not the California statute. Second, even in Rockwell, the court demanded proof that the defendant “knowingly and willfully” used the drugs; the decision thus is much more like the facts in Palaschak, where there was evidence that the defendant obtained and voluntarily ingested the drugs, in addition to being intoxicated. Third, the federal cases are not criminal cases requiring proof beyond a reasonable doubt of criminal activity. Rather, they involve violations of the conditions of release—conditions not necessarily limited to proscriptions on criminal activity—that may be proved by only a preponderance of the evidence. Thus, the constitutional due process concerns are far less significant.
In short, the virtually unanimous view of the courts is that a criminal conviction for possession of drugs requires more than proof of intoxication. Intoxication itself is not possession, as that term is used in California’s drug laws, and at best raises an inference of prior possession. Thus, the prosecutor impermissibly relied on a legally incorrect theory. Such evidence of use, standing alone, is not sufficient to sustain a conviction for possession.
[Argument C omitted]
D. The Prosecutor’s Argument Based On A Legally Incorrect Theory Violated Federal And California Due Process And Requires Reversal Of Appellant’s Conviction Under Any Standard Of Review
1. The Error Is Reversible Under Green/Guiton
“When the prosecution presents its case to the jury on alternate theories, some of which are legally correct and others legally incorrect, and the reviewing court cannot determine from the record on which theory the ensuing general verdict of guilt rested, the conviction cannot stand.” (People v. Guiton (1992) 4 Cal.4th 1116, 1122, 1128-1130; People v. Green (1980) 27 Cal.3d 1, 69; see People v. Guerra (1985) 40 Cal.3d 377, 388-398.)
In Guiton, this Court specifically noted that it was not deciding “the exact standard of review of cases governed by Green, supra, 27 Cal.3d 1.” (People v. Guiton, supra, 4 Cal.4th at 1130.) The Guiton Court explained that Green‘s rule of reversal “has not been universal,” and there may be ways by which a court can “determine that error in the Green situation is harmless.” (Id. at 1130-1131.) Subsequently, this Court again noted, but did not decide this precise issue. (People v. Harris (1994) 9 Cal. 4th 407, 419, fn. 7.) Similarly, this case does not squarely present this issue because reversal is required under any standard of review.
Guiton emphasized the distinction, made in Griffin v. United States, supra, 502 U.S. 46, between erroneous legal theories, which usually require reversal, and erroneous arguments about the weight or factual import of the evidence, which generally do not. (People v. Guiton, supra, 4 Cal.4th at 1129-1130.) The Guiton opinion quoted Griffin at length:
That surely establishes a clear line . . . and it happens to be a line that makes good sense. Jurors are not generally equipped to determine whether a particular theory of conviction submitted to them is contrary to law—whether, for example, the action in question is protected by the Constitution, is time barred, or fails to come within the statutory definition of the crime. When, therefore, jurors have been left the option of relying upon a legally inadequate theory, there is no reason to think that their own intelligence and expertise will save them from that error. Quite the opposite is true, however, when they have been left the option of relying upon a factually inadequate theory, since jurors are well equipped to analyze the evidence. [citation] (Griffin, supra, 502 U.S. at p. 59, 116 L.Ed.2d at pp. 382-383, 112 S.Ct. at p. 474.)” (People v. Guiton, supra, 4 Cal.4th at 1125 [former emphasis added].)
A “legally incorrect theory” is one which could not “as a matter of law validly support a conviction of the charged offense.” (People v. Harris (1994) 9 Cal. 4th 407, 419 [emphasis in original].) Because the prosecution’s closing argument rested on a legally incorrect theory, appellant’s conviction can stand only if the jury based its verdict on an alternate, legally correct theory. Because there is no basis in the record to find that the jury relied only on such an alternate theory, appellant’s conviction must be reversed. (See Griffin v. United States (1991) 502 U.S. 46, 59, 112 S.Ct 466, 474, 116 L.Ed.2d 371, 382-383 [a prosecution theory that “fails to come within the statutory definition of the crime” violates due process]; Yates v. United States (1957) 354 U.S. 298, 312.)
The prosecutor did not argue that appellant possessed the vial of PCP found under the driver’s seat in the van. On the contrary, the prosecutor’s case for possession rested wholly on appellant’s intoxication; the prosecutor used the vial not as evidence of possession, but as circumstantial evidence that appellant was under the influence of PCP. (RT 139 [“And it does not necessarily require that you all unanimously agree that it was some P.C.P., from this vial. That is simply additional evidence that what he was under the influence was clearly P.C.P. And in order to get under the influence, he had to possess P.C.P. Pretty simple process.”]; RT 161 [“the vial of P.C.P. in the van in which Mr. Gonzales—or Mr. Doe is found is certainly circumstantial evidence, that it is P.C.P. we’re talking about.”].)
Moreover, nothing in the record remotely suggests that the jury based its verdict on a legally correct theory. The absence of evidence that appellant possessed the vial of PCP explains why the prosecutor repeatedly and exclusively argued a legally incorrect theory, namely that the jury could find appellant guilty of possession based solely on evidence that he was intoxicated. Such argument, in the absence of any legally correct or factually supportable theory of possession, requires reversal of appellant’s conviction.
In People v. Green, supra, 27 Cal.3d at 71-73, for example, this Court reversed because the evidence on the legally incorrect theories was significantly stronger than on the legally correct theory. The Court declined to “speculate” about what theory the jury followed, in the absence of clear evidence, because to do so would “usurp the fact-finding function of the jury.” (Id. at 70-71.) In People v. Farley (1996) 45 Cal.App.4th 1697, 1709-1710, the appellate court reversed because it could not determine whether the jury relied on the prosecutor’s argument based on a legally incorrect theory or whether the jury rejected the testimony of the defendant and relied on a legally correct theory. Similarly, another appellate court reversed because there was “nothing in the record suggesting the jury relied on the [legally correct] theory,” rather than the legally incorrect theory, and the court could not “presume the jury would have perceived [the] legal defect and based its verdict solely on the remaining [legally correct] theory of guilt. (People v. Llamas (1997) 51 Cal.App.4th 1729, 1740-1741.)
In contrast, in People v. Harris, supra, 9 Cal. 4th at 419, this Court determined reversal was not required where all four of the prosecutor’s “taking theories” did not, as a matter of law, violate the definition of “immediate presence.” Thus, if, as appellant has argued, the prosecutor’s theory of the case did violate the definition of “possession” as a matter of law, reversal is required.
2. The Error Is Reversible Under Chapman
In People v. Harris, supra, 9 Cal. 4th at 424 & fn. 11, this Court questioned whether Green error should be reviewed under Chapman v. California (1967) 386 U.S. 18, 24, 17 L.Ed.2d 705, 87 S.Ct. 824, to determine whether it appears “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” (See People v. Flood (1998) 18 Cal.4th 470, 475.) That standard puts the burden on the state to prove beyond a reasonable doubt that the error was harmless. In People v. Smith (1998) 62 Cal.App.4th 1233, 1238, the court found that a “reasonable doubt arises [under Chapman] where, although the jury was instructed on alternate theories, there is no basis in the record for concluding that the verdict was based on a valid ground.” The Smith court reversed because “the prosecutor argued three different theories to support a second degree murder conviction, including the erroneous theory of felony murder, and [the court could not] discern from the record which theory provided the basis for the jury’s determination of guilt.” (Id. at 1239.)
A review of the entire record, including the evidence, argument and instructions, does not show beyond a reasonable doubt that the jury found appellant guilty solely on the basis of the legally correct theory that appellant knowingly possessed the vial of PCP found in the van, rather than on the basis of the prosecutor’s legally incorrect theory that appellant must have possessed PCP because he was under the influence of it.
The evidence that appellant was under the influence of PCP was overwhelming. An officer had to repeatedly order appellant to stand up and put his hands behind his head, before appellant finally complied. (RT 39-40.) The officer observed that appellant moved very slowly, was sweating, had a blank stare on his face, and exuded a distinct ether-type odor characteristic of persons under the influence of PCP. (RT 43-45, 51.) [Footnote 4]
Based on these facts, as well as appellant’s high pulse rate and high blood pressure, a government drug recognition expert, testified that appellant was under the influence of PCP. (RT 79, 65-73.) The state presented no evidence, however, where appellant got the drugs, when he ingested them, or whether he ingested the drugs voluntarily.
Not only did the prosecutor repeatedly tell the jury that such evidence was a sufficient basis for conviction, he repeatedly emphasized appellant’s intoxication, especially in his rebuttal argument, when appellant had no opportunity to respond. (See RT 159 [“And Mr. Doe is wasted; Okay? He is intoxicated on P.C.P.]; RT 164 [“he’s almost stuporous”].)
By contrast, there was virtually no evidence that appellant possessed the vial of PCP found beneath the driver’s seat. Appellant’s wife, who was probably the driver, was most likely in possession of the vial. When the police approached the van, appellant was sitting on the passenger side—in the opening for the sliding door. Incoherent and disoriented to the point of being stupefied, he certainly was in no condition to have driven the van. (RT 35-40, 56-57, 64, 114-115.) There was no evidence about his wife’s drug habits. The police did not find appellant’s fingerprints on the vial. There was no evidence that appellant owned the van, that he had driven it recently, or that he ever drove it. (RT 38-40, 57, 63, 119; cf. People v. Spelio (1970) 6 Cal.App.3d 685, 689 [evidence that “the contraband was found in appellant’s car and that no one other than he ever drove the car, was sufficient for the trier of fact to find that appellant exercised dominion and control over the marijuana.”].)
The only evidence was that he sat in the back of the van in an intoxicated state. Moreover, he was so intoxicated that he probably could not have seen, much less exercised dominion or control over, the small vial of PCP beneath the driver’s seat. There was no evidence that the PCP he ingested came from the vial, and no evidence that he ingested the PCP voluntarily or knowingly. In other words, this is not a case where the record establishes appellant’s possession of PCP as a matter of law. (See People v. Flood, supra, 18 Cal.4th at 505-506; People v. Garcia (1984) 36 Cal.3d 539, 555-556.) Therefore, the error of the prosecutor’s reliance on a legally incorrect theory cannot be said to have been harmless beyond a reasonable doubt.
3. The Error Is Reversible Under Watson
Even if the prosecutor’s theory could be considered to be a “factually inadequate theory” under Griffin v. United States, supra, 502 U.S. at 58, the prosecutor’s closing argument was reversible error under the traditional Watson test. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Guiton, supra, 4 Cal.4th at 1129-1130.) A review of the entire record demonstrates a reasonable probability that the jury found appellant guilty solely on the prosecutor’s legally incorrect theory that appellant must have possessed PCP because he was under the influence of it. As described above, the evidence appellant possessed the vial of PCP found in the van was so weak that the prosecutor relied almost exclusively on his theory that appellant’s intoxication alone was sufficient proof that appellant was in possession of PCP. In short, it is reasonably probable that the jury would not have found appellant guilty of possession of PCP if the prosecutor had not equated use with possession.
E. The Prosecutor’s Argument—Relying On Use To Prove Possession—Violated The Rule That Where The Legislature Has Enacted A Specific Statute That Addresses A Specific Matter And Prescribes A Sanction, The People May Not Prosecute Under A General Statute That Covers The Same Conduct, But That Prescribes A More Severe Penalty
The prosecution relied heavily—virtually exclusively—on appellant’s use and intoxication to prove possession. Thus, it equated being under the influence of an illegal drug—a misdemeanor offense—with drug possession—a felony—thereby transforming the case from one with a maximum penalty of one year into a case with a maximum penalty of 25 years to life. While appellant could not challenge the state’s decision to bring a felony prosecution for possession of PCP based on the PCP vial found in the van, the prosecutor’s improper argument eviscerated the carefully crafted legislative distinctions among drug crimes, and violated the rule that where conduct is prescribed by both a specific and a general statute, and the specific statute imposes a lesser penalty, the prosecution must proceed under the specific statute. [Footnote 5]
In People v. Leal (1966) 64 Cal.2d 504, 511-512, this Court explained the importance of preserving this distinction:
The legislature has established many categories of offenses, to which it has annexed punishments which vary widely in degree. In construing section 11500 [possession of narcotics], we recognize the need to preserve for it a separate and independent place in the statutory plan and one which harmonizes with other parts of that plan. In so doing, we cannot overlook the fact that the possession of minute traces of narcotics residue poses, if anything, less danger of future harm and is less probative of an intent to use narcotics in the future, than the possession of narcotics implements, an offense which the Legislature has denominated a misdemeanor. (Health & Saf. Code, 11555.)
The most compelling explanation for the vast disparity between the punishments annexed to sections 11500 and 11555 is that section 11500 applies to those who by their possession of narcotic substances have created a potentiality for future use or sale.
The court of appeal subsequently elaborated on the Leal reasoning:
This history of the [California] drug laws shows a consistently different classification and punishment of the use and possession of regulated substances, with use (or being under the influence) invariably treated as less culpable or not culpable at all. Given this differential treatment, it is obvious that the Legislature did not intend mere use to constitute possession. (People v. Spann, supra, 187 Cal.App.3d at 406.)
After discussing the facts and holding in People v. Sullivan (1965) 234 Cal.App.2d 562, 565 [possession may not be based solely on the fact that the defendant had used heroin, which is a separate offense] and People v. Leal (1966) 64 Cal.2d 504, 510-511 [evidence of heroin intoxication and a heroin injection kit are not enough to prove possession], the Spann court concluded:
What flows from these cases is that one crime cannot be made into another either directly, by admixing their elements, or indirectly by circumstantial reasoning. The ultimate fact of one offense cannot be used to prove the categorically different ultimate fact of another offense. The legislature, by its separate categorization and punishment of the offenses necessarily concluded otherwise. . . . To conclude otherwise would be to transmute one crime into another or to transmute wholly noncriminal conduct into criminal conduct, in short to engage in a form of legal alchemy. (People v. Spann, supra, 187 Cal.App.3d at 408 [emphasis added].)
Other states also prohibit prosecutors from transmuting illegal use into illegal possession. For example, an Oregon court of appeal reversed a conviction for drug possession based on an undercover officer testimony that he witnessed another person injecting the defendant with a “controlled substance,” later identified as PCP. (State v. Downes (1977) 31 Or.App. 1183, 572 P.2d 1328, 1330.)
If we were to accept the state’s theory, everyone guilty of criminal use of drugs . . . , subject to a maximum term of one-year imprisonment, would also be guilty of criminal activity in drugs . . . , subject to a maximum term of imprisonment of ten years. Not only would there be no necessity for [the crime of using drugs], but the apparent legislative scheme of treating illegal use as a less serious offense than illegal possession would be thwarted. (Ibid.)
In short, the California Legislature carefully distinguished use and possession, a distinction that the prosecutor’s closing argument improperly erased.
Moreover, the prosecutor’s closing argument improperly permitted conviction under a general law—proscribing possession of certain drugs—despite the existence of a more specific statute with a lesser penalty—proscribing use. “The general rule [is] that where the general statute standing alone would include the same matter as the special act, and thus conflict with it, the special act will be considered as an exception to the general statute whether it was passed before or after such general enactment.” (People v. Jenkins (1980) 28 Cal.3d 494, 501; quoting In re Williamson (1954) 43 Cal.2d 651, 654; People v. Gilbert (1969) 1 Cal.3d 475, 479.) As further explained by this Court in Mitchell v. Superior Court (1989) 49 Cal.3d 1230, 1250:
People v. Gilbert, supra, 1 Cal.3d 475, 479-481, and People v. Jenkins, supra, 28 Cal.3d 494, 501-505, merely stand for the proposition that when the Legislature has enacted a specific statute addressing a specific matter, and has prescribed a sanction therefor, the People may not prosecute under a general statute that covers the same conduct, but which prescribes a more severe penalty, unless a legislative intent to permit such alternative prosecution clearly appears.
More recently, in People v. Coronado (1995) 12 Cal.4th 145, 153-154, this Court explained the rule as follows:
The “special over the general” rule . . . does not apply, however, unless “each element of the ‘general’ statute corresponds to an element on the face of the ‘specific’ [sic] statute” or “it appears from the entire context that a violation of the ‘special’ statute will necessarily or commonly result in a violation of the ‘general’ statute.'” (See People v. Jenkins (1980) 28 Cal.3d 494, 502; see also People v. Watson (1981) 30 Cal.3d 290, 295-296.)
According to the prosecutor, use of illegal drugs—as evidenced by intoxication—always constitutes illegal possession. In other words, violation of the prohibition of use of illegal drugs—a very narrow sub-species of “possession”—“will necessarily or commonly result in a violation of the ‘general’ statute.” (Ibid.) Because “use,” under the prosecution’s theory, is a sub-species of “possession,” the state has prosecuted an act governed by a “specific” statute, and punishable as a misdemeanor, under a more “general” statute, punishable as a felony. Such “legal alchemy” violates long-standing precedent and also requires reversal of appellant’s conviction for possession.
CONCLUSION
For the foregoing reasons, appellant respectfully requests this Court to reverse his conviction for drug possession and remand the case for a new trial.
Dated: August 22, 1999
Respectfully submitted,
_______________________
RICHARD JAY MOLLER
Attorney for Defendant/Appellant*
* Appointed counsel wishes to thank Professor John P. Dwyer of Boalt Hall, University of California at Berkeley for his assistance on this brief.
FOOTNOTES:
Footnote 1: If, on the other hand, the drug was not being assimilated in the body, but was ingested to be concealed and later recovered, the defendant was in legal possession. (See State v. Rudd (1993) 70 Wash.App. 871, 856 P.2d 699, 700-701 [“if a defendant ingests or otherwise conceals inside the body a balloon, baggie, or similar receptacle containing a controlled substance, and the contents of the receptacle are not assimilated into the body, but rather are recovered and admitted at trial, the evidence is sufficient to support a finding that the defendant possessed a controlled substance during the time the receptacle was in the body.”] [Emphasis added].) Of course, in the present case, the drug in appellant’s body was being assimilated, not concealed, which is why he was intoxicated.
Footnote 2: The Spann court cited the following authority for the proposition that assimilation of a drug in a body does not constitute possession:
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 Or.App. 1183 [572 P.2d 1328, 1330] holds that 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. (People v. Spann, supra, 187 Cal.App.3d at 403-404.)
Footnote 3: Section 3583(g) of Title 18 of the United States Code provides:
If the defendant is found by the court to be in the possession of a controlled substance, the court shall terminate the term of supervised release and require the defendant to serve in prison not less than one-third of the term of supervised release. (Emphasis added.)
Footnote 4: No other drugs, such as hallucinogens or narcotics, could account for the ether-like odor exuding from appellant. (RT 81-85.)
Footnote 5: Appellant presented this issue in both his opening and reply briefs filed in the court of appeal and in his petition for review citing Spann, Leal, McCarthy, and Sullivan. (See AOB at 7-8; ARB at 2; Appellant’s Petition for Review at 6-7.) Appellant has simply clarified and expanded the reasoning on this issue addressed in the above cases.
