Brief Bank # B-856 (Re: F 3.30 n5 [Conflict Between CJ 3.30 And Knowledge Requirement For Controlled Substance Offenses] / F 12.02 n15 [Importation Of Controlled Substance From Foreign Country: Federal Preemption Precludes Prosecution In State Court].)
CAVEAT: The file below was not prepared by FORECITE. FORECITE has not made any attempt to review or edit this material and is not responsible for its content or format. FORECITE cannot guarantee the information is complete, accurate or up-to-date. You are advised to conduct your own independent, comprehensive research on all issues addressed in the material below.
NOTE: The text of the footnotes appear at the end of each document.
Date of Brief: December 1999
ALERT: Both People v. Williams (2001) 25 C4th 441 [106 CR2d 295] and People v. Cleveland (2001) 25 C4th 466 [106 CR2d 313] were decided subsequent to the writing of this brief.
COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT, DIVISION ONE
PEOPLE OF THE STATE OF CALIFORNIA
Plaintiff and Respondent
v.
JOHN DOE
Defendant and Appellant
______________________________________
San Diego Superior Court Number SF0000000
Honorable Ernest Borunda, Judge
APPELLANT’S OPENING BRIEF
Robert Franklin Howell
1150 Silverado Street
La Jolla, California 92037
Telephone: (858) 270-0470
State Bar Number: 071273
Attorney for Appellant John Doe
By Appointment Of The Court Of Appeal
Through The Appellate Defenders, Inc.
Independent Case Program
JURISDICTION FOR APPEAL
John Doe appeals from the judgment of the San Diego County Superior Court. Appellant was convicted after jury trial before Judge Ernest Borunda of possession of steroids, and transportation of steroids, and sentenced to state prison for a determinate term of fourteen years. The appeal is from the judgment and is authorized under the provisions of Penal Code section 1237, subdivision (a).
STATEMENT OF THE CASE
Appellant was charged by amended information in count one with the unlawful transportation of steroids, a controlled substance (Health & Safety Code, § 11379, subd. (a)), and in count two with possession of steroids. (Health & Safety Code, § 11377, subd. (a). (CT 4.) The amended information further alleged that appellant had suffered two prior convictions for which a prison term had been served (Pen. Code, § 667.5, subd. (b)), and that appellant was subject to the Three Strikes Law (Pen. Code, § 667, subds. (b) through (i)), because he had suffered eight qualifying prior convictions. (CT 5-6.)
Appellant pleaded not guilty and denied the prior conviction allegations. (CT 179.) The case was tried to a jury before Judge Borunda over two trial days. (CT 189-193.) The jury convicted appellant on both counts. (CT 118, 119, 192, 193.)
The prior conviction allegations were tried to Judge Borunda, sitting without a jury, who found that each of them was true. (CT 194, 196.)
Appellant was sentenced to an aggregate determinate term of fourteen years. (CT 176, 198.)
The appeal is from the judgment. (CT 175.)
STATEMENT OF THE FACTS
Prosecution Case.
On June 27, 1998, at about 5:15 a.m., United States Custom Service employee Lynn Andrews was at work at the San Ysidro border crossing when appellant drove through lane 18, onto United States property, and approached her inspection station. [Footnote 2] (RT 49-50, 59.) Appellant was driving a blue Mazda and his friend, Mr. A, was in the front passenger seat. (RT 19, 52, 53.)
Andrews asked appellant if he had anything to declare or was bringing anything into the United States. (RT 53.) Appellant replied that he was not. (RT 53.) Andrews questioned appellant concerning the ownership of the Mazda. (RT 53.) Appellant handed Andrews paperwork concerning the car. (RT 53.) Andrews suspected that either there was something wrong with the papers on the vehicle or that there was something in the car because appellant appeared to be nervous, his hands shook when he handed over the papers, and his words seemed to stick in his throat when he talked. (RT 53.)
Andrews directed appellant to pull over to a secondary inspection area in order to investigate further. (RT 54.) After being relieved from checking traffic at her station, Andrews came over to appellant’s parked car. (RT 54-55.) Appellant did not have the actual registration for the vehicle. (RT 54.)
Andrews directed appellant and Mr. A to get out of the Mazda, and proceeded to search it. (RT 55.) Andrews found a bottle of Andriol (Exh. 3), which she believed to be a steroid, in the glove box of the car. Andrews found a box of Deca-Durabol (Exh. 4) and a box of Sostenon (Exh. 5), which she also believed to be steroids, in the center console between the two front bucket seats of the car. (RT 56, 60.) Andrews opened the boxes found in the console and noticed that each was packaged with a syringe. (RT 57.)
Andrews took appellant and Mr. A into the security office, and searched them for any additional drugs or contraband, apparently with negative results. (RT 58.)
City of Chula Vista undercover narcotics detective David Nellis, who was temporarily assigned to assist the United States Customs Service, contacted appellant, and took him upstairs to a small locked room at about 10:30 a.m. (RT 17.) Appellant was in handcuffs. (RT 30.) Nellis, in the presence of three other law enforcement officers, interrogated appellant after he was read and waived his Miranda rights. (RT 19-22.)
Nellis began the interrogation by telling appellant that they had found illegal “roids” in his car. (RT 38, 39, 30-31.) Appellant replied “that he was caught with his hand in the cookie jar.” [Footnote 2] (RT 27, 31, 35, 37.)
Appellant told Nellis that he went to Mexico with Mr. A to meet some girls on the beach in Rosarita, but that they had been unable to locate them so they stopped at a few bars on the way back to the border and then went into a pharmacy where he and Mr. A each asked to purchase some “muscle enhancers.” (RT 23, 31, 32, 39.) Appellant stated that he purchased a thirty day supply of injectable drugs for thirty dollars, and that Mr. A had purchased drugs in pill form for thirty dollars, and they had put them in the car and driven back to the border. (RT 24, 25, 37.) Appellant stated that he had gone to Mexico to purchase the drugs because they were a less expensive there than in the United States. (RT 25.)
Nellis took appellant out of the interrogation room and interrogated Mr. A alone in the room. (RT 27.) Mr. A adamantly denied being involved with the steroids and stated that he had no idea what they were talking about. (RT 28.) After talking to Mr. A for about twenty minutes, Nellis released him through a side door. (RT 27-28.) Nellis then contacted appellant, told him that Mr. A had been released, and informed him that they “were going to charge him with the steroids.” (RT 28.)
Appellant immediately became incensed and agitated. (RT 28, 40.) Appellant “stated that he wanted to come clean, that Mr. A had no spine, that he thought he would take some of the blame but in fact all the drugs were Mr. A’s and none were his … ” (RT 28, 32.) Appellant stated that it had been Mr. A’s idea to go to Mexico to pick up steroids. (RT 28-29.)
The drugs seized from the Mazda were analyzed by a forensic chemist employed by the Drug Enforcement Administration. (RT 41.) The chemist concluded: that the bottle of Andriol found in the glove compartment (Exh. 3) contained testosterone undecanoate, a steroid (RT 42-43, 48); that the liquid in the four bottles labelled Deco-Durabolin (Exh. 4) found in the console did not contain any steroids (RT 43, 46); and, that the two boxes labelled Sostenon 250 (Exh. 5) found in the console contained two syringes each which held steroids, which consisted of a combination of testosterone propionate, testosterone isocaproate, testosterone decanoate, and testosterone phenylpropionate. (RT 44, 48.)
Nothing on the outside of the boxes indicated that any of them contained “steroids,” but there was some indication that they contained “testosterone.” (RT 47-48.) Only if a person knew that testosterone was a steroid would he have realized from reading the packaging that he was purchasing steroids. (RT 48.)
Defense Case.
Appellant took the stand and testified in his own defense, as follows:
Appellant [Footnote 3] worked out at a gym in Orange County, where he met some girls who invited him to meet them to have a bonfire on the beach in Rosarito, Mexico. (RT 61-62, 72.) Appellant decided to go and took his friend, Mr. A, with him in appellant’s car, a Mazda RX-7. (RT 62.) Upon arriving at the beach, however, appellant and Mr. A could not find the girls, and so they decided to drive around and see the sights. (RT 63.)
After stopping in a couple of bars, Mr. A complained of a headache so they stopped near a drug store. (RT 63.) Appellant and Mr. A went into the drug store where Mr. A obtained aspirin. (RT 64.) Appellant asked the clerk if she had any “muscle enhancers.” (RT 64.) After the clerk brought out a few items, appellant attempted to communicate with her, although she spoke only broken English. (RT 65.) The clerk did not tell appellant that the items were steroids. (RT 65.) Appellant believed that he was only purchasing muscle enhancers. (RT 65.) The clerk informed appellant that if he was caught with the items at the border the only consequence would be that they would take the items away from him. (RT 65.)
Appellant purchased a thirty day supply of the muscle enhancers for seventy-five dollars. (RT 65-66, 71.) Mr. A purchased some pills. (RT 71.) Appellant put all of the items in a white paper bag, and placed the bag in the center console in his car. [Footnote 4] (RT 65-66, 71, 73, 74.) After stopping in another bar, appellant and Mr. A decided to go back across the border. (RT 66.)
Upon arriving at the border, customs officer Andrews asked appellant if he had anything “to declare,” and he replied that he did not. (RT 66, 76.) Andrews asked appellant for the registration to his car, but he did not have a registration because he had just purchased the car and had trouble obtaining the smog certificate necessary to complete the registration process. (RT 66-67, 85.) Appellant was nervous because it appeared that Andrews thought that the Mazda was stolen, and appellant was on parole. (RT 67, 77, 85.) Appellant complied with Andrews order to park in a nearby inspection area. (RT 67.)
Upon initial contact, Detective Nellis told appellant that steroids had been found in his car. (RT 67.) Appellant was confused, and explained to Nellis that he had merely purchased injectable muscle enhancers in a pharmacy, and that Mr. A had purchased the pills. (RT 67-68, 76, 77-78.) After Nellis informed appellant that Mr. A was being released and had placed the entire blame on him, appellant became angry, and as a result he lied and told Nellis that it had been Mr. A’s idea to go to Mexico to purchase the steroids. (RT 68, 72, 78, 84, 86-87, 88.) Appellant had never purchased steroids before, and he did not know what they looked like or how they were packaged. (RT 86.) Appellant did not know that any of the items he was purchasing were steroids, and first learned that they were from detective Nellis. (RT 68, 69, 79, 85.) Appellant had believed that he was merely purchasing muscle enhancers, such as were sold at health food stores such as GNC in Orange County. (RT 80, 85.) Nellis explained to appellant that possession of the substances was illegal, because they were steroids and it was illegal to possess steroids without a prescription. (RT 70, 81.) When Nellis told appellant that the substances in the car were illegal steroids, appellant stated: “Well, I guess I got caught.” (RT 70.)
ARGUMENT
I.
THE JUDGMENT ABRIDGES APPELLANT’S RIGHT TO FEDERAL DUE PROCESS OF LAW AND MUST BE REVERSED BECAUSE THERE WAS NO EVIDENCE THAT ANY OF THE SUBSTANCES SEIZED FROM APPELLANT WERE THE “ANABOLIC” STEROIDS OR SPECIFIC SUBSTANCES PROSCRIBED BY STATUTE.
The judgment abridges federal due process and must be reversed because there was no evidence adduced at trial that any of the substances seized from appellant were the “anabolic” steroids which are proscribed by Health and Safety Code sections 11377 and 11379.
A. The Statutes Under Which Appellant Was Charged And Convicted Proscribe Possession And Transportation Only Of “Anabolic” Steroids.
Appellant was charged and convicted of one count of violating Health and Safety Code section 11379, subdivision (a), in that he “did wilfully and unlawfully transport and offer to transport a controlled substance, to wit steroids … ” and one count of illegal “possession [of] a controlled substance, to wit, a steroid” in violation of Health and Safety Code section Code 11377, subdivision (a). (CT 4.) Neither section 11377 or section 11379, however, even contains the word “steroid” in the text. Each statute instead refers only to a “controlled substance.” Thus it is only a “controlled substance,” not necessarily all “steroids,” which are proscribed by these provisions.
Health and Safety Code section 109535 states: “‘Controlled substance’ means a substance as defined in Section 11007.” Health and Safety Code section 11007 states: “‘Controlled substance,’ unless otherwise specified, means a drug, substance, or immediate precursor which is listed in any schedule in Section 11054, 11055, 11056, 11057, or 11058.” Thus, unless a substance is listed in one of these schedules, it is not a “controlled substance” within the meaning of sections 11377 or 11379.
The only provision in section 11054, 11055, 11056, 11057, or 11058 which contains the term “steroid” is found in section 11056, which provides in relevant part (emphasis added):
§ 11056. Schedule III; substances included
(f) Anabolic steroids and chorionic gonadotopin. Any material, compound, mixture, or preparation containing chorionic gonadotropin or an anabolic steroid (excluding anabolic steroid products listed in the “Table of Exempt Steroid Products” (Section 1308.34 of Title 21 of the Code of Federal Regulations), as exempt from the federal Controlled Substances Act (Section 801 of Title 21 of the United States Code)), including, but not limited to, the following:
…
(30) Testosterone.
As these statutory provisions make clear, two things must be proven to a jury in order to establish that an accused is guilty of transportation or possession when the substance in issue is claimed to be a steroid which is also a “controlled substance.” First, the steroid must be an “anabolic” steroid. Second, even if the substance is an “anabolic” steroid it provides no basis for criminal liability unless it is proven that it is not one of the substances exempted by section 11056, subdivision (f). Unless there is proof both that the substance is an “anabolic” steroid and that it is not one of such substances which section 11056, subdivision (f) exempts, then the prosecution has failed to establish one of the elements of the crime, namely that the substance possessed or transported is a “controlled substance.”
There was no such proof in the case at bench. The only evidence concerning the nature of the substances allegedly possessed and transported by appellant was the testimony of forensic chemist Romulo Reyes of the Drug Enforcement Administration. Mr. Reyes testified that he tested three substances. He did not testify that any one of the three was an “anabolic” steroid. (RT 41-49.) He did not testify that any of the substances contributed to muscle growth. (RT 41-49.)
Neither Health and Safety Code section 11056 or any other California statutory provision defines “anabolic steroid.” However, the common understanding of the term “anabolic” is that it modifies the term “steroid” by identifying particular substances as promoting or contributing to muscle growth. [Footnote 5]
The fact of the matter is that natural (organic) testosterone is not an “anabolic steroid,” despite the fact that “testosterone” is listed in Health and Safety Code section 11056. “Anabolic steroids” are instead “synthetic derivatives of testosterone, having pronounced anabolic properties and relatively weak androgenic properties … ” (Dorland’s Illustrated Medical Dictionary (27th ed. 1988), “steroid,” at p. 1582.) This technical definition is consonant with the general lay understanding that an “anabolic” steroid is one which promotes muscle growth. (See Dorland’s, id. at p. 70, defining “anabolism” as “any constructive metabolic process by which organisms convert substances into other components of the organism’s chemical architecture.”)
Indeed, under the related provisions of Title 21, United States Code, to which section 11056 makes reference, and in particular under section 802, subdivision (42)(A) the critical term “anabolic steroid” is defined as follows (emphasis added):
The term “anabolic steroid” means any drug or hormonal substance, chemically and pharmacologically related to testosterone (other than estrogens, progestins, and corticosteroids) that promotes muscle growth, and includes –
…
(xxvi) testosterone,
… and
(xxvi) any salt, ester, or isomer of a drug or substance described or listed in this paragraph, if that sale, ester, or isomer promotes muscle growth.
Chemist Reyes in the case at bench did not testify, as explained above, that any of the substances which he examined promoted muscle growth. Indeed, none of these substances was identified to be the natural (organic) “testosterone” which section 11056, subdivision (f), lists but were instead identified by Mr. Reyes as being mere ester derivatives of testosterone, as explained more fully below.
Chemist Reyes did not testify that Exhibit 3 (white plastic bottle, labelled Andriol, containing 30 capsules) was found to contain the pure testosterone mentioned in section 11056, subdivision (f); instead he testified that the pills contained “testosterone undecanoate.” (RT 42.) The derivative substance “undecane” is not an anabolic steroid but is instead “a colorless petroleum hydrocarbon.” (Dorland’s at p. 1785.)
Chemist Reyes testified that Exhibit 4 (box labelled Deco-Durabolin) did not contain steroids of any type. (RT 43.) Thus, there was no evidence that either the first or second substance was an “anabolic steroid.”
Chemist Reyes testified that Exhibit 5 (two boxes, each labelled Sostenon 250) contained four syringes filled with liquid which was analyzed and found to consist of “steroids,” which were a “combination” of four substances: “testosterone proprionate, testosterone isocaproate, testosterone decanoate, and testosterone phenylpropionate.” (RT 43-44.)
The first of these substances, testosterone propionate, is an ester derivative of testosterone, not testosterone. The term “propionate” is defined as “any salt of propionate acid.” (Dorland’s, at p. 1365.) Proof only that a substance is a mere “propionic” derivative of testosterone does not suffice to establish that it is an “anabolic steroid.” (United States v. Orduno-Aguilera (9th Cir. 1999) 183 F.3d 1138, 1139-1141.)
The second substance found in exhibit five, “testosterone isocaproate” is also a mere ester derivative, and is not actual testosterone. The term “isocaproate” is a combination of the terms “iso” and “caproate.” The term “iso” when used in the context of chemistry is principally defined to “denote[] a structural isomer; used in trivial names of alkanes to indicate a one-carbon branch next to the end of a chain … ” (Dorland’s Illustrated Medical Dictionary (27th ed. 1988) at p. 858.) The term “caproate” is principally defined to be “any salt of caproic acid,” and “caproic acid” is the “trivial name for the 6-carbon straight chain, saturated fatty acid … ” (Id. at p. 265.)
The third substance found in Exhibit 5, testosterone decanoate, is the same as that which was found in Exhibit 3, and as shown hereinabove is a mere ester derivative, not testosterone or an “anabolic” steroid.
The fourth (and final) substance found in Exhibit 5, testosterone phenylpropionate, is also a mere ester derivative. The term “propionic” (as shown above) is a mere ester derivative, and not testosterone. The term “phenyl” refers to “the univalent radical, C6H5,” (Dorland’s at p. 1278), or in other words is merely a chemically altered form of propionic acid, a substance which does not contain testosterone. [Footnote 6]
There was, therefore, no evidence before the jury that any one of the three substances tested was “testosterone,” and in fact each was a synthetic substance which, although derivative of testosterone, had a different chemical composition. Moreover, there was no evidence before the jury that any of these synthetic derivative substances had any “anabolic” properties. There was, in short, a total failure of proof of a necessary element of the prosecution case — that the substances were “controlled” as defined by statute.
This case is very similar to the very recent decision in United States v. Orduno-Aguilera, supra. In Orduno-Aguilera the government relied upon the testimony of another DEA chemist to establish that the substances in the defendant’s possession were testosterone propionate, doldenone undecylenate, and testosterone enanthate. The Ninth Circuit reversed because the government failed to establish that any of these substances satisfied the statutory definition of “anabolic steroid” which as already noted (ante at p. 14) included “testosterone.”
B. The Government Failed To Prove That The Substances Seized From Appellant Were Not Excepted From Being “Controlled.”
A second and equally critical black hole in the prosecution’s evidence was its failure to adduce any proof that any of the substances in issue were not exempt from the definition of “anabolic steroid.” Even assuming — purely for the purposes of argument — that the prosecution had produced evidence that one of these substances was an “anabolic” steroid, it failed to prove that any of them were not one of the substances which are exempt from the statute on its face. As set forth ante at page 11, Health and Safety Code section 11056 contains specific exemptions from its definition of “anabolic steroid” those “steroid products listed in the ‘Table of Exempt Anabolic Steroid Products’ (Section 1308.34 of Title 21 of the Code of Federal Regulations) … ” The government in the case at bench, however, failed to offer any proof before whether the substances identified by DEA chemist Reyes were one of the exempted substances.
Because the government failed to offer such proof, it failed to prove an essential element of the charges. It can be expected that the government will seek to rescue the convictions by arguing that the exemption from the definition of “controlled substances” set forth in section 11056 was not part of the prosecution case but instead an affirmative defense. Such a claim fails because the exemption in issue forms the definition of what is proscribed. That definition is plainly part of the government’s case, as to which it bears the burden of proof, since it is not illegal to possess or transport substances which are not “controlled.” The government accordingly bears the burden of proof, and the exemption is not an affirmative defense, under the test established by the California Supreme Court in In re Hornef (1908) 154 Cal.355, 360 (quoting with approval other authority; emphasis added):
The question is whether the exception is so incorporated with, and becomes a part of, the enactment as to constitute a part of the definition or description of the offense; for it is immaterial whether the exception or proviso be contained in the enacting clause of section, or be introduced in a different manner. It is the nature of the exception, and not its location, which determines the question. Neither does the question depend upon any distinction between the words ‘provided’ or ‘except’ as they may be used in the statute. In either case the only inquiry arises whether the exception, or that which is contained in the proviso, is so incorporated with, as to become, in the manner above stated, a part of the enacting clause. If it is so incorporated, it shall be negatived, otherwise it is a matter of defense.’
It is manifest that the exemption contained within section 11056 is part of the very definition of “controlled substance” and not a matter of affirmative defense under the controlling Hornef test. The government accordingly had the obligation to negative the exemption from the statutory scheme.
This is not a case in which the exemption consists of affirmative proof of facts which are “peculiarly” within the knowledge of the accused, and therefore is properly a matter of affirmative defense which must be proven by the accused. (See generally Morrison v. California (1934) 291 U.S. 82, 91 [78 L.Ed.2d 664, 670-671]; People v. Henley (1999) 72 Cal.App.4th 555 [85 Cal.Rptr.2d 123, 128].) The exemption instead delimits the statutory definition of the substances which are proscribed, and it is therefore the government which has an affirmative duty to negative the exception in pleading and proof. (People v. Gott (1994) 26 Cal.App.4th 881, 887-888.)
The Gott case, cited just above, is not materially distinguishable from the case at bench. In Gott the Court of Appeal considered the provisions of Health and Safety Code section 11056, which provided that any person who received ephedrine from outside the State must have a person except that no permit was required for any drug containing ephedrine “which is lawfully sold, transferred, or furnished over the counter without a prescription or by a prescription pursuant to the federal Food, Drug, and Cosmetic Act (21 U.S.C., § 301 et seq.) or regulations adopted thereunder.” Applying the Hornef test, the Court of Appeal concluded that the exception was not an affirmative defense but instead was a part of the prosecution case in chief, for which there was no substantial evidence, and reversed the conviction.
In the case at bench, as in Gott, the government failed to discharge its burden. Here, the goivernment failed to marshall proof that the substances in question were not exempt from the specific statutory definition. The government therefore failed to adduce substantial evidence that the substances in issue were “controlled substances,” as that term is used in Health and Safety Code sections 11377 and 11379.
C. Federal Due Process And The Substantial Evidence Standard.
Because the government failed to prove an essential element of both offenses, the judgment offends due process of law and must be reversed. “[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” (In re Winship (1970) 397 U.S. 358, 364.) This means that the fundamental fairness guarantee of the Due Process Clause requires the prosecution to prove beyond a reasonable doubt every element of the offense.” (McMillan v. Pennsylvania (1986) 477 U.S. 79, 85.) The “Due Process Clause requires the prosecution to prove beyond a reasonable doubt all of the elements included in the definition of the offense of which the defendant is charged.” (Patterson v. New York (1977) 432 U.S. 197, 211; emphasis added.) This principle was expressly applied to state court proceedings in Jackson v. Virginia (1979) 443 U.S. 307, 319.) The test under Jackson is whether “‘after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Mitchell v. Prunty (9th Cir. 1997) 107 F.3d 1337, 1339, fn. 3; see People v. Reyes (1974) 12 Cal.3d 486, 500; cf. People v. Perez (1992) 2 Cal.4th 1117, 1125.)
D. Retrial Is Barred By Double Jeopardy.
Where, as here, a judgment must be reversed because there is no substantial evidence to support the underlying conviction, retrial is barred by the double jeopardy provisions of the Fifth Amendment. (Burks v. United States (1978) 437 U.S. 1; In re Johnny G. (1979) 25 Cal.3d 543, 546-547.) The prosecution is also barred from attempting to bring other charges based on the same course of conduct or substance possession. (Kellett v. Superior Court (1966) 63 Cal.2d 822, 827; see Sanders v. Superior Court (1999) ___ Cal.App.4th ___ [1999 WL 1063573, Court of Appeal No. B133621].)
The judgment should accordingly be reversed in its entirety, with directions to the superior court to dismiss the entire action with prejudice.
II.
HEALTH AND SAFETY CODE SECTIONS 11377 AND 11379 ARE UNCONSTITUTIONAL AS APPLIED IN THIS CASE BECAUSE THE IMPORTATION OF A CONTROLLED SUBSTANCE FROM A FOREIGN COUNTRY INTO THE UNITED STATES IS AN ACTIVITY WHICH IS PREEMPTED BY THE COMMERCE CLAUSE OF THE UNITED STATES CONSTITUTION AND BY ENACTMENTS OF THE UNITED STATES CONGRESS.
Even assuming, arguendo, that there was some evidence that the substances in issue are “controlled substances” within the purview of Health and Safety Code sections 11377 and 11379, the use of those statutes to prosecute and punish appellant was outside of the jurisdiction of California courts because appellant’s possession and transportation of these substances [Footnote 7] was inseparable from the importation of them into the United States. The importation of all items into the United States, including controlled substances, is an activity subject to the exclusive control of the federal government and is preempted by the Commerce Clause and by exhaustive Congressional regulation of the field.
A. Appellant’s Conduct Was Limited To Importation Across The International Border.
There was no evidence, other than the testimony of United States Customs officer Lynn Andrews, concerning appellant’s activity in entering the United States or the reason for the stop and search of the vehicle. Officer Andrews testified that she was on duty inspecting “people, vehicles, and things as they come across the border … looking for contraband, drugs, [and] merchandise” when appellant drove up in her lane at the San Ysidro port of entry. (RT 50.) The area where she stopped appellant in his vehicle was only two hundred to three hundred feet from the international border. (RT 51, 52.) The purpose of her contact with appellant was to determine whether he was bringing anything into the United States. (RT 53.) The search of appellant’s car was made to determine whether his application for entry to the United States should be granted. (RT 55.)
The possession of the substances was incidental to their transportation across the border, which in turn was inseparable from the act of importing them from Mexico. Thus the application of both section 11377 and section 11379 of the Health and Safety Code in this case was exclusively to conduct inseparable from the act of importation across the international border. [Footnote 8]
B. Regulation Of Imports Into The United States Is A Matter Of Exclusive Federal Regulation So That State Action Which Affects The Flow Of Such Commerce Is Preempted.
There are four reasons why California Health and Safety Code sections 11377 and 11379 — as applied in this case — are preempted.
1. Importation Of Goods And Substances From Foreign Countries Is Within The Exclusive Control Of The Federal Government Regardless Of Declared Congressional Intent.
Article I, section 8, clause 3 of the United States Constitution states in relevant part: “Congress shall have Power … To regulate Commerce with foreign Nations, and among the several States … ”
The United States Supreme Court has consistently held and emphasized that “‘[t]he Commerce Clause, even without implementing legislation by Congress is a limitation upon the power of the States.'” (Boston Stock Exchange v. State Tax Comm’n. (1977) 429 U.S. 318, 328, quoting Freeman v. Hewit (1946) 329 U.S. 249, 252, and quoted with approval by the California Supreme Court in Star-Kist Foods Inc. v. County Of Los Angeles (1986) 42 Cal.3d 1, 9, cert den. 480 U.S. 930.) The very purpose of the Commerce Clause is to prohibit states from impeding federal uniformity in an area where federal uniformity is essential. (See Japan Line, Ltd. v. County Of Los Angeles (1979) 441 U.S. 434, 448-449 [explaining why “[f]oreign commerce is pre-eminently a matter of national concern” and collecting authorities].) “Laws which concern the exterior relations of the United States with other nations and governments are general in their nature, and should proceed exclusively from the legislative authority of the nation.” (Bowman v. Chicago & N.R. Co. (1888) 125 U.S. 465, 482; cf. Japan Line, Ltd. v. County Of Los Angeles (1979) 441 U.S. 434, 448 [California tax on cargo containers owned by foreign entity and used exclusively in international commerce struck down]; Star-Kist Foods, Inc. v. County Of Los Angeles, supra, 42 Cal.3d 1, 16 [California tax exemption scheme which applied to foreign inventories transshipped through state struck down].)
The importation of controlled substances across our borders is an area where federal uniformity is essential, as the United States Supreme Court explained in Board of Trustees v. United States (1933) 289 U.S. 48, 56:
The words of the Constitution “comprehend every species of commercial intercourse between the United States and foreign nations. No sort of trade can be carried on between this country and any other, to which this power does not extend.” (Citations omitted.) It is an essential attribute of the power that it is exclusive and plenary. As an exclusive power, its exercise may not be limited, qualified, or impeded to any extent by state action. (Citations omitted.)
The right to control imports and exports across the international border therefore does not rest with the States, but solely with the United States Congress. (Id. at pp. 56-59.) “The principle of duality in our system of government does not touch the authority of the Congress in the regulation of foreign commerce.” (Id. at p. 57.) “The control of importation does not rest with the state[s] but with the Congress.” (Id. at p. 59.)
The provisions of Health and Safety Code sections 11377 and 11379 — as applied in this case — abridge this inherent federal power and are unconstitutional.
2. Even Assuming Arguendo That The Commerce Clause Does Not By Itself Operate To Pre-Empt The Field Of Importation Of Substances From Abroad, The United States Congress Has Done So Through Legislation Which Covers The Field.
Article VI of the United States Constitution provides in relevant part: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; … shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
The United States Congress has plenary power to prohibit the importation of narcotics. (See Brolen v. United States (1915) 236 U.S. 216; Daut v. United States (9th Cir. 1968) 405 F.2d 312, cert den. 402 U.S. 945. This power stems from the Commerce Clause (Butterfield v. Stranahan (1904) 192 U.S. 470, 492), which includes “every species of commercial intercourse between the United States and foreign nations.” (Board Of Trustees v. United States (1933) 289 U.S. 48, 56.) This power is “exclusive and plenary.” (Ibid.) It may not be impeded or qualified to any extent by actions of a State. (Id. at pp. 56-57.) Where Congress has acted under the powers granted to it by the Constitution and has manifested an intent to occupy a field any contrary or supplemental State law is invalid and unconstitutional. (Pennsylvania v. Nelson (1955) 350 U.S. 497, 502, 504, [Smith Act preempts “supplemental” Pennsylvania Sedition Act in criminal proceeding against person charged with sedition against federal government]; see Ex Parte Anderson (1951) 125 Mont. 331, 334, 238 P.2d 910 [state statute prohibiting transportation of women for immoral purposes preempted by Mann Act].)
The Congressional purpose to preempt a particular field “may be evidenced in several ways. The scheme of federal regulation may be so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it. (Citations omitted.) Or the Act of Congress may touch a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject. (Citation omitted.) Likewise, the object sought to be obtained by the federal law and the character of the obligations imposed by it may reveal the same purpose.” (Rice v. Santa Fe Elevator Corp. (1947) 331 U.S. 218, 230, quoted with approval in Ray v. Atlantic Richfield Co. (1978) 435 U.S. 151, 157; see Pennsylvania v. Nelson, supra, 350 U.S. 497, 504-505.)
There can be no question but that Congress has acted under the powers given to it by the Commerce Clause to regulate the importation of controlled substances into the United States. By enacting Public Law 91-513 (the Comprehensive Drug Abuse Prevention and Control Act of 1970) Congress intended to collect and streamline the diverse narcotic and controlled substance laws that Congress had enacted since 1914. (1970 U.S. Code Cong. & Admin. News 4566, 4571.) In particular, Title 21, Chapter 13, subchapter II (entitled “Import and Export”) was intended to replace all existing federal laws relating to the importation and exportation of narcotics. (Id. at p. 4638; see Historical Note to 21 U.S.C. § 801.) The principal statutes regulating importation of controlled substances are 21 U.S.C., sections 951, 952. Related federal regulations governing the importation of controlled substances include 21 C.F.R. 1312 et seq.
Importation of “anabolic steroids” is specifically prohibited, with certain exceptions, by the provisions of section 952, subdivision (a), because such steroids are specifically listed as a controlled substance in subsection (e) of schedule III of 21 U.S.C. section 812, United States Code. [Footnote 9] Section 952, subdivision (a), also sets forth several exceptions to the proscription against importation. Section 952, subdivision (b)(1), permits the importation of non-narcotic controlled substances listed in schedule III of section 812 “for medical, scientific or other legitimate uses … ” Subdivision (b)(2) of the same section permits importation “pursuant to such notification, or declaration, or in the case of any non-narcotic controlled substance in schedule III, such import permit, notification, or declaration, as the Attorney General may by regulation prescribe … ” [Footnote 10]
None of these exceptions — which expressly permit the importation of anabolic steroids — are found in Health and Safety Code sections 11377 and 11379, which on their face thus operate more restrictively and thus affirmatively conflict with the federal statutory regulation of importation of such substances.
Both the exhaustive manner in which Congress has regulated importation of controlled substances, and the positive conflict between the State statutory provisions and the federal provisions, vividly demonstrate that the state statutes are preempted insofar as they apply to importation of controlled substances.
3. Relevant Congressional Enactments Evidence An Intent To Preempt The Field Of Importation Of Controlled Substances.
The bulk of the Comprehensive Drug Control Act is contained in chapter 13 of Title 21, which is divided into two subchapters. Subchapter I is entitled “Control and Enforcement” and establishes five schedules of controlled substances. Subchapter I also delegates to the Attorney General the authority to add or delete substances from those schedules (§§ 811, 812) and provides for registration of manufacturers and distributors of controlled substances (§§ 821-830). Subchapter I also contains numerous other administrative and enforcement provisions (§§ 871-886).
The general provisions of Subchapter I include 21 U.S.C. § 903, which provides (emphasis added):
No provision of this subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the States, unless there is a positive conflict between that provision of this subchapter and that State law so that the two cannot consistently stand together.
No comparable or similar provision is contained in subchapter II. The presence of the specific and limited non-preemption provision in subchapter I, coupled the absence of such a provision in subchapter II, is strong evidence that Congress did intend that the enforcement provisions of subchapter II preempt the field. The express statement in subchapter I of non-preemption creates an implication that Congress did intend the companion provisions of subchapter II to hold such preemptive status, under the doctrine of expressio unium est exclusio alterius. (See Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit (1993) 507 U.S. 163, 168; People v. Rowland (1999) 75 Cal.App.4th 61 [88 Cal.Rptr.2d 900, 903]; 2A Sutherland, Statutory Construction (5th ed.) § 47.11, p. 165; 58 Cal.Jur. 3d Statutes, § 115, p. 503.)
Since Congress was so concerned that subchapter I not pre-empt State police powers that it acted to specifically preserve those powers under section 903, it should have been just as concerned about subchapter II, unless it had the different intent with regard to the latter subchapter, i.e., unless it intended to allow the natural preemption by the Commerce Clause of State attempts to control import and export of such substances. (See Lindh v. Murphy (1997) 521 U.S. 320, 329-330 [failure to make one chapter retroactive, in light of express retroactivity provision in earlier chapter of same legislation, held controlling on issue of retroactivity of later chapter].) Certainly, the provisions of section 903 make it evident that Congress was well aware of the need to invoke a non-preemptive clause in legislation pertaining to controlled substances in those specific areas where it had no intent to actually preempt the field. Congress, with that knowledge, chose instead to expressly limit the non-preemption clause to subchapter I. [Footnote 11]
As noted earlier, the United States Supreme Court has never questioned the “broad power of a State to regulate the narcotic drugs traffic within its borders … ” (Robinson v. California, supra, 370 U.S. 660, 664.) That power is preserved intact by section 903. However, neither the United States Supreme Court nor the United States Congress has recognized the power of any State to regulate the importation of any controlled substance from abroad. That, no doubt, is why Congress was so careful to limit the non-preemption provisions of section 903 to subchapter I, thereby preserving to the federal government the exclusive right to regulate imports and exports, as provided in subchapter II.
4. The Possibility Of Double Punishment Is Another Consideration Which Supports The Conclusion That The Field Of Importation Of Controlled Substances Is Preempted.
A judicial holding which would permit the States to “supplement” federal criminal laws with their own leads to the specter of double punishment. Such a ruling in this case would have that precise effect. Certainly, there is no shortage of federal criminal provisions under which appellant could have been prosecuted in this case. (See 21 U.S.C., §§ 951, 952; United States v. Von Mitchell (9th Cir. 1990) 939 F.2d 780 [offense of smuggling misbranded steroids]; United States v. Cambra (9th Cir. 1991) 933 F.2d 752 [illegal distribution of anabolic steroids]; United States v. Salas-Camacho (9th Cir. 1988) 859 F.2d 788 [prosecution for failure to declare anabolic steroids at primary inspection point at international border].)
The United States Supreme Court has held that this specter of double punishment is a valid consideration supporting a finding of federal preemption (Pennsylvania v. Nelson, supra, 350 U.S. 497, 509-510, fn. omitted):
We are not unmindful of the risk of compounding punishments which would be created by finding concurrent state power. In our view of the case, we do not reach the question whether double or multiple punishment for the same overt acts … has constitutional sanction. Without compelling indication to the contrary, we will not assume that Congress intended to permit the possibility of double punishment. (Citations omitted.)
5. Conclusion.
There are four sources for the conclusion that State regulation of importation of controlled substances into this Country has been preempted. First, the Commerce Clause itself operates to preempt the field, even in the absence of relevant Congressional legislation. Second, Congress has in fact exhaustively regulated the field of importation of controlled substances and has thereby demonstrated an intent to preempt the field, and State regulation of such imports positively conflicts with federal law because it is more restrictive. Third, the express limitation by Congress of the non-preemption clause found in section 903 of Title 21 to subchapter I, coupled with the absence of any similar clause in subchapter II, demonstrates a Congressional intent to preempt the field of import and export of such substances. And fourth, the specter of double punishment under competing federal and State criminal statutes supports a finding of federal preemption.
C. The Judgment Must Be Reversed.
Because importation of controlled substances across the international border is an activity which is beyond the police powers of the State of California, the use of Health and Safety Code sections to regulate and punish such conduct is unconstitutional and void. A State law that is preempted by federal law is “without effect.” (Maryland v. Louisiana (1981) 451 U.S. 725, 746; accord, McCulloch v. Maryland (1819) 17 U.S. (4 Wheat 316, 427.) The convictions under those sections, based on such conduct, must therefore be reversed. (See Halpin v. Superior Court (1972) 6 Cal.3d 885, 900, cert den. 409 U.S. 982 [evidence gathered through preempted State wiretapping activity excluded and judgment reversed]; Benanti v. United States (1957) 355 U.S. 96, 105-106 [similar to Halpin].)
III.
THE PROVISIONS OF HEALTH AND SAFETY CODE SECTIONS 11377 AND 11379 ARE TOO VAGUE TO GIVE A LAY PERSON REASONABLE NOTICE OF WHICH SUBSTANCES ARE ILLEGAL TO POSSESS AND TRANSPORT, SO THAT THE CONVICTIONS ABRIDGE APPELLANT’S RIGHT TO FEDERAL DUE PROCESS AND MUST BE REVERSED.
The provisions of Health and Safety Code sections 11377 and 11379 do not provide reasonable notice of the specific substances which are proscribed, and are therefore unconstitutionally vague. Prosecution of appellant under these provisions have deprived him of his Fourteenth Amendment right to due process of law.
A. The Statutes.
As already set forth (ante at p. 10), sections 11377 and 11379 proscribe only the transportation and possession of a “controlled substance.” In turn, Health and Safety Code section 109535 provides that a “controlled substance” means “a substance as defined in Section 11007.” And Health and Safety Code section 11007 states: “‘Controlled substance,’ unless otherwise specified, means a drug, substance, or immediate precursor which is listed in any schedule in Section 11054, 11055, 11056, 11057, or 11058.”
After proceeding through these nine code sections, a student of the Health and Safety Code then finds that the only mention of “steroids” which is contained in section 11054, 11055, 11056, 11057, or 11058 is found in section 11056, subdivision (f). That provision, however, while listing a number of chemical substances, also provides that some anabolic steroids are not proscribed, in the following language (emphasis added):
(f) Anabolic steroids … Any material compound, mixture, or preparation containing … an anabolic steroid (excluding anabolic steroid products listed in the “Table of Exempt Anabolic Steroid Products” (Section 1308.34 of Title 21 of the Code of Federal Regulations), as exempt from the federal Controlled Substances Act (Section 801 and following of Title 21 of the United States Code)) …
Thus, in order to ascertain whether a particular product is proscribed or is one of the exempt products one must, after examining the nine relevant California statutory provisions, journey to the Code of Federal Regulations. That journey, however, provides no final destination, for section 1308.34 of the Code of Federal Regulations in turn provides:
§ 1308.34 Exempt anabolic steroid products.
The list of compounds, mixtures, or preparations that contain an anabolic steroid that have been exempted by the Administrator from application of sections 302 through 309 and 1002 through 1004 of the Act (21 U.S.C. 822-829 and 952-954) and §§ 1301.13, 1301.22, and 1301.71 through 1301.76 of this chapter for administrative purposes only may be obtained by submitting a written request to the Drug and Chemical Evaluation Section, Drug Enforcement Administration, DC 20537.
It appears that the “Administrator” to which section 1308.34 makes reference is the Administrator of the Drug Enforcement Administration, to whom the power to add or delete particular substances to the “list” was delegated by the United States Attorney General (see 21 U.S.C., § 802, subds. (34) (35)(39)(41)), who in turn was delegated such power by the United States Congress. (See United States v. Goodman (5th Cir. 1979) 605 F.2d 870; United States v. Monroe (N.C. Cal. 1976) 408 F. Supp. 270, aff’d 552 F.2d 860, cert den. 431 U.S. 972.)
The California definition of “controlled substance” thus depends upon what the Administrator of the Drug Enforcement Administration — without notice to California citizens — may deem them to be in a list which can only be obtained by corresponding with the United States Drug Enforcement Administration. And, it is noted, nothing in section 1308.34 of the Code of Federal Regulations (or apparently any other statutory or regulatory provision) requires the Administrator to provide such a list, even after one is requested.
B. Unconstitutional Vagueness.
“No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids.” (Lanzetta v. New Jersey (1939) 306 U.S. 451, 453.) “That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties, is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law. And a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.” (Connally v. General Const. Co. (1926) 269 U.S. 385, 391.)
The “vagueness” which abridges the Due Process Clause consists in this case of the ambiguous term “controlled substance,” which is not adequately defined by statute or common law. “Words which are vague and fluid … may be as much of a trap for the innocent as the ancient laws of Caligula.” (United States v. Cardiff (1952) 344 U.S. 174, 176; see United States v. Culbert (1978) 435 U.S. 371 [“racketeering” cannot be required as an element of the crime (Hobbs Act violation) because the term is not defined].)
This wholly ambiguous term is not clarified by the statutory definition, which ultimately requires a lay citizen to refer to several different State statutes only to find that he must then consult an obscure provision of the Code of Federal Regulations, which in turn directs him to attempt to consult in writing by requesting the unpublished and continually changing promulgations of the Administrator of the Drug Enforcement Administration.
Such a complicated referent system cannot be the reasonable statutory notice which the Due Process Clause requires. The federal regulation in issue is part of a massive federal regulatory scheme aimed at the manufacturing and distribution of food and drugs. “The poor among us, the minorities, the average householder are not in business and not alerted to the regulatory schemes … and we assume they would have no understanding of their meaning and impact if they read them.” (Papachristou v. City of Jacksonville (1972) 405 U.S. 156, 162-163.) “[B]ecause we assume that Man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.” (Grayned v. City of Rockford (1972) 408 U.S. 104 [emphasis added]; accord: Rose v. Locke (1975) 423 U.S. 48; Kolender v. Lawson (1983) 461 U.S. 352.)
The notion that ordinary people should have reasonable notice of that which the law forbids is a eminently plausible one of ancient origin. The United States Supreme Court has described it as “the first essential of due process of law.” (Connally v. General Construction Co. (1926) 269 U.S. 385.) An important corollary to this principle is that a penal statute may not be so loosely worded as to encourage the arbitrary, discriminatory, or haphazard enforcement of its provisions. (See People v. Heitzman (1994) 9 Cal.4th 189, 199.) Indeed, in Kolender v. Lawson, supra, 461 U.S. 352, 358, Justice O’Connor suggested that this related principle was not a mere corollary but “the more important aspect of vagueness doctrine.” In the case at bench the statutes are unconstitutionally vague because they “encourage[] arbitrary enforcement by failing to describe with sufficient particularity” what is proscribed. (Kolender v. Lawson, supra, 461 U.S. 352, 361.) Certainly, possession and transportation of all substances is not, and cannot be, so proscribed.
These statutes do not provide reasonable notice to the man of average intelligence of what substances he may possess or transport without being subject to arrest and criminal punishment. They fail to provide reasonable guidance to law enforcement officers concerning what conduct may be policed and prosecuted. These statutes are accordingly “repugnant to the due process clause.” (Lanzetta v. New Jersey, supra, 306 U.S. at p. 453.)
C. The Judgment Must Be Reversed.
The statutes on their face are void for vagueness, at least in terms of their proscription of possession and transportation of “anabolic steroids,” and the judgment is therefore reversible per se.
Even assuming, arguendo, that the statutes are unconstitutionally vague only as specifically applied in appellant’s case, and that prejudice must be proven, the judgment must nonetheless be reversed because a critical issue in this case was notice. Appellant testified that he did not know that the substances were illegal steroids (RT 65, 80), and indeed (as noted in Part I of Argument) there was no evidence adduced at trial that they were. In addition, one of the three substances seized by law enforcement officials was conceded by the prosecution’s own chemist to not be a proscribed substance, to the evident surprise of the arresting officers. Finally, both the trial prosecutor [Footnote 12] and defense counsel [Footnote 13] recognized that the critical issue in the case was whether appellant “knew” that the items allegedly found in his possession were “controlled substances.” There is accordingly no basis to conclude, beyond a reasonable doubt, that the federal constitutional violation was harmless. (Chapman v. California (1967) 386 U.S. 18, 24.)
IV.
THE TRIAL COURT MADE NUMEROUS INSTRUCTIONAL ERRORS WHICH FATALLY INFECT THE JUDGMENT.
Several related instructional errors undermined appellant’s federal constitutional rights to due process and jury trial, and require reversal: (1) the trial court affirmatively misled the jury concerning the meaning of “controlled substance” by instructing that any steroid was such a substance; (2) the trial court failed to define the terms “anabolic” and “controlled substance;” and, (3) the trial court erroneously instructed the jury that both offenses were general intent crimes so that it was irrelevant whether appellant had knowledge that it was illegal to possess or transport the substances, and, (4) the trial court erred by failing to clarify for the jury, after its written inquiry, the type of criminal intent and knowledge which was required for conviction. These errors, individually and cumulatively, deprived appellant of his Sixth Amendment right to jury trial and of his Fourteenth Amendment right to due process of law, and require reversal of the entire judgment.
A. Jury Instructions And Jury’s Inquiry.
The trial court gave the following instructions concerning what was a “controlled substance” the possession and transportation of which was illegal, and pertaining to the element of the accused’s knowledge of the nature of the substance (RT 109-110, emphasis added):
The following instructions are specific to count number one:
The defendant is accused in count number one of having violated section 11379 of the Health and Safety Code, a crime. Every person who transports, sells, furnishes, administers, or gives away steroids, a controlled substance, is guilty of a violation of Health and Safety Code section 11379, a crime.
In order to prove this crime, each of the following elements must be proved:
1. A person transported steroids, a controlled substance, and,
2. That person knew of its presence and nature as a controlled substance.
The following instructions are specific to count number two:
The defendant is accused in count number two of having committed the crime of illegal possession of a controlled substance, a violation of section 11377 of the Health and Safety Code. Every person who possesses steroids, a controlled substance, is guilty of a violation of Health and Safety Code section 11377, a crime.
There are two kinds of possession, actual and constructive possession.
Actual possession requires that a person knowingly exercise direct physical control over a thing.
Constructive possession does not require actual possession but does require that a person knowingly exercise over or (sic) the right to control a thing, either directly or through another person or persons.
One person may have possession alone, or two or more persons together may share actual or constructive possession.
In order to prove this crime, each of the following elements must be proved: one, a person exercised control over or the right to control an amount of steroids, a controlled substance; two, the person knew of its presence; three, that person knew of its nature as a controlled substance, and, four, the substance was in an amount sufficient to be used as a controlled substance.
The trial court gave these instructions pertaining to the element of intent (RT 110-111; emphasis added):
In the crimes charged in counts one and two, there must exist a union or join operation of act or conduct and general criminal intent.
General criminal intent does not require an intent to violate the law. When a person intentionally does that which the law declares to be a crime, he is acting with general criminal intent, even though he may not know that his conduct is unlawful.
An act committed or an omission made in ignorance or by reason of a mistake of fact which disproves any criminal intent is not guilty of a crime. Thus a person is not guilty of a crime if he commits an act or omits to act under an actual and reasonable belief in the existence of certain facts and circumstances which, if true, would make the act or omission lawful.
The trial court did not give any instructions: (1) which contained the word “anabolic;” (2) which advised the jurors that only those steroids which contributed to or promoted muscle growth were “controlled substances;” or, (3) which informed the jurors concerning the statutory exclusion (Health & Safety Code, § 11056, subd. (f)) from the definition of “controlled substances” of those chemical compounds listed by the United States Attorney General in section 1308.34 of the Code of Federal Regulations. (RT 98-111, 144; CT 97-116; see discussion ante in prior section of Argument.) The trial court did not give any other instructions which addressed the issue of criminal intent. (Ibid.)
In his final jury (rebuttal) argument, the trial prosecutor took the position that appellant should be convicted even if he did not know that the substances were controlled: “It doesn’t matter whether he knew they were legal or illegal … That’s not what is required. We don’t have to prove whether he knew they were legal or illegal.” (RT 142.) The prosecutor argued: “Mr. Doe doesn’t have to know that he’s breaking the law, Ladies and Gentlemen.” (RT 143.)
The jury was confused over the issue of intent, as reflected by the note which it sent to the trial judge during the course of deliberations. The trial judge did not address any of these questions specifically, but instead merely referred the jurors to the written jury instructions which had already been given (CT 117):
JURY INQUIRY
1. What are the specific elements to prove transportation?
2. What are the specific elements to prove possession?
3. Is it necessary that the defendant know (sic) that the evidence was specifically “steroids.”? (sic) What does the law say.
4. We are unsure if you can be guilty of transporting and not guilty of possession. What is the distinction?
5. Does he (defendant) have to know they were “steroids” or “controlled substance.”
…
COURT’S RESPONSE:
I am forwarding copies of the instructions. They should answer all of these questions. If not please send any additional questions to me.
No additional juror inquiries were made, and no additional instruction was given to the jury. (See RT 148-149.) The jury returned verdicts on both counts later the same day. (RT 149.)
B. The Trial Court Erred By Instructing That Possession And Transportation Of Any Steroid Was Sufficient For Conviction.
Only those steroids which are “anabolic,” i.e. which promote muscle growth, are “controlled substances” within the statutory scheme. (Health & Safety Code, §§ 109535, 11007, 11056, subd. (f); see discussion ante at pp. 10-13 and fn. 5.) And only those anabolic steroids which are not designated as exempt on the list of such substances maintained by the Administrator of the Drug Enforcement Administration fall within the California statutory definition. (See discussion ante at pp. 17-18.) The trial court accordingly erred when it instructed the jury that possession of any “steroid” sufficed for conviction under Health and Safety Code section 11377, and transportation of any “steroid” sufficed for purposes of conviction under section 11379.
C. The Trial Court Erred By Failing To Define The Terms “Controlled Substance” And “Anabolic Steroid.”
The right to jury trial includes the right to have the jury determine the relevant factual questions under appropriate instructions. (United States v. Voss (8th Cir. 1986) 787 F.2d 393, 398; People v. Cummings (1993) 4 Cal.4th 1233, 1314; People v. Figueroa (1986) 41 Cal.3d 714, 724.) While a trial court does not have a sua sponte duty to give clarifying instructions in the absence of a request where the terms employed in the instructions are “commonly understood by those familiar with the English language”, such a duty does arise where terms used in instructions have a “technical meaning peculiar to the law.” (People v. Anderson (1966) 64 Cal.2d 633, 640; see People v. McElheny (1982) 137 Cal.App.3d 396, 403 [“The legal definition of an assault is not one commonly understood by those familiar with the English language”]; People v. Pitmon (1985) 170 Cal.App.3d 38, 52 [use of term “force” in Pen. Code § 288 has special meaning requiring jury instructions]; People v. Hill (1983) 141 Cal.App.3d 661, 668 [legal definition of extortion not commonly understood]; People v. Kimbrel (1981) 120 Cal.App.3d 869, 872 [collecting cases]; 5 Witkin & Epstein, Cal. Criminal Law (1999 Supp.) pp. 275-276, § 2939 [collecting cases]).
It cannot be seriously disputed that lay persons do not commonly know or understand the legal definition of “controlled substance” as that term is used in Health and Safety Code sections 11007, 11056, subdivision (f), 11377 and 11379. It also seems self-evident that lay persons do not have knowledge of the contents of the list of exempt anabolic steroids kept by the Administrator of the Drug Enforcement Administration. Appellant also submits that the lay persons also do not know the difference between ordinary and “anabolic” steroids. The trial court therefore erred when it failed to provide instructions explaining the full definition of “controlled substance.”
D. The Trial Court Erred By Instructing That Appellant Could Be Found Guilty Even If He Did Not Know That It Was Illegal To Possess Or Transport The Substances In His Possession.
As quoted ante at p. 46, the trial court instructed the jury, inter alia, with CALJIC No. 3.30, to the effect that possession and transportation of controlled substances was a “general intent” crime and that “[g]eneral criminal intent does not require an intent to violate the law. When a person intentionally does that which the law declares to be a crime, he is acting with general criminal intent, even though he may not know that his conduct is unlawful.” (RT 109; emphasis added.)
CALJIC No. 3.30 should not be given in a case involving a charge or possession or transportation of a controlled substance, because it conflicts with the well-established principle that one is not guilty of possession of a substance unless he knows that it is “controlled,” i.e., that it is illegal to possess or transfer. As the California Supreme Court recently explained in People v. Coria (1999) 21 Cal.4th 868, 89 Cal.Rptr.2d 650, 657 (see also People v. Romero (1997) 55 Cal.App.4th 147, 157 [accused need not know of the precise chemical nature of the drug provided that he knew of its “controlled substance character”]):
[A]lthough criminal statutes prohibiting the possession, transportation, or sale of a controlled substance do not expressly contain an element that the accused be aware of the character of the controlled substance at issue (§§ 11350-11352, 11357-11360, 11377-11379), such a requirement has been implied by the courts. (Citations omitted.)
If one knows of the “controlled” character of the substance at issue then he must of course also know that it is illegal, since the term “controlled” can mean nothing other than “illegal” in the framework of the present statutory scheme. The language of CALJIC No. 3.30, however, eviscerates the requirement of knowledge by explicitly stating that “[w]hen a person intentionally does that which the law declares to be a crime, he is acting with general criminal intent, even though he may not know that his conduct is unlawful.” (Emphasis added; see RT 110.) By giving this instruction, the trial court in substance told the jury that it was irrelevant whether appellant knew of the “controlled nature” of steroids.
The language in CALJIC No. 3.30 addressing the accused’s knowledge of the character of the substance is not only erroneous in a “controlled substance” case, but unnecessarily so. [Footnote 14] In People v. Daniels (1975) 14 Cal.3d 857, 860, the California Supreme Court did not hold that the critical distinction between general intent and specific intent is one of “knowledge,” but instead is one of “temporal difference.” [Footnote 15] Quoting from People v. Hood (1969) 1 Cal.3d 444, 456, which is the leading case on the issue of the distinction between general and specific intent, the California Supreme Court in People v. Daniels, supra, 14 Cal.3d at p. 860, explained:
While both terms [specific intent and general intent] have been employed in more than one sense, thereby causing confusion (citations omitted), we have stressed an important temporal difference and have observed: ‘When the definition of a crime consists of only the description of a particular act, without reference to intent to do a further act or achieve a future consequence, we ask whether the defendant intended to do the proscribed act. This intention is deemed to be a general criminal intent. When the definition refers to defendant’s intent to do some further act or achieve some additional consequence, the crime is deemed to be one of specific intent.’ (Hood at pp. 456-457.)
In concluding that sale of narcotics was a “general intent” crime, the California Supreme Court in Ray explained further (14 Cal.3d at p. 861; emphasis added):
In the matter before us it is sufficient for a conviction that the defendant intentionally did that which the law declares to be a crime (citations omitted), i.e., that he intentionally sold (transferred to another for cash) a restricted dangerous drug with knowledge of its character. Proof that he intended to violate the law is not required.
The decisions in Daniels and Hood thus did not make the distinction between a specific intent crime and a general intent crime one of “knowledge” but instead one of “intent.” Had CALJIC No. 3.30 been couched in language of “intent” instead of using the term “know” it might be arguable that no conflict between the definition of general intent and the requirement that the accused have knowledge that the “controlled nature” of the substance he is possessing or transporting would arise. [Footnote 16] That, however, is not the case. The standard terms of CALJIC No. 3.30 refer to the accused’s knowledge, not intent. By giving CALJIC No. 3.30 in an unmodified, the trial court eviscerated the legal requirement that the accused is guilty only if he knows of the “controlled nature” of the substance he is charged with possessing and transporting.
Other cases have addressed the difficulty of preserving a requirement of “knowledge” in the context of crimes which are technically “general intent” crimes. In People v. Whitfield (1994) 7 Cal.4th 437, 450, the California Supreme Court, in addressing the admissibility of evidence of intoxication to reduce second degree murder to manslaughter, observed (emphasis added):
Although it can be argued that implied malice does not constitute a specific intent as described in Hood because it does not involve an ‘intent to do some further act or achieve some additional consequence,’ it is quite clear that implied malice does not fit Hood’s description of general intent, which is ‘an intent merely to do a violent act.’ (Citation omitted.) Although implied malice may not fall literally within the Hood formulation of specific intent, the element of implied malice that requires that the defendant act with knowledge of the danger to, and in conscious disregard of, human life, is closely akin to Hood’s definition of specific intent, which requires proof that the defendant acted with a specific and particularly culpable mental state.
Similarly, in the case of possession and transportation of a controlled substance, the requirement that the accused have knowledge that the substance is “controlled” (illegal to possess) is closely akin to Hood’s definition of specific intent.
The incongruity of giving instructions on general intent in cases in which the offense required a finding of guilty knowledge was addressed by this Court relatively recently in People v. Reyes (1997) 52 Cal.App.4th 975, a case involving a conviction of receiving stolen property. In Reyes an issue was presented concerning admissibility of evidence of mental disorders and intoxication to show that the accused did not know that the property was stolen. This Court held that the trial court, by instructing “that receiving stolen property was solely a general intent crime, to which voluntary intoxication was no defense” had erred. This Court held that by precluding the accused from presenting such evidence, and by giving the general intent instructions, the trial court had “unfairly denied [the accused] the opportunity to prove he lacked the requisite knowledge.” (People v. Reyes, supra, 52 Cal.App.4th 975, 986.)
In the case at bench, as in Whitfield and Reyes, the crimes of which appellant was convicted include an element of knowledge. By instructing the jury with the unmodified form of CALJIC No. 3.30, the trial court rendered irrelevant appellant’s testimony that he lacked such knowledge and precluded the jury from acquitting appellant on the basis that he lacked such knowledge.
Even assuming, arguendo, that the giving of CALJIC No. 3.30 was somehow “cured” by other instructions or argument of counsel, the trial court prejudicially erred when it failed to provide clarification on the issues of intent and knowledge in response to the jury’s written request for clarification. (See request, and the court’s response, which are quoted ante at p. 47.)
A trial court has an affirmative duty, which is based both on the Sixth Amendment and the provisions of Penal Code section 1138, to provide guidance and legal instruction to a jury which has asked for clarification of legal principles they have been asked to apply. (People v. Beardslee (1991) 53 Cal.3d 68, 97; People v. Vela (1985) 172 Cal.App.3d 237, 241.) While it may be unnecessary for a trial court to elaborate on the standard instructions when the original instructions are full and complete (People v. Hill (1992) 3 Cal.App.4th 16, 25), where a difficult issue such as intent is the subject of the jury’s inquiry, a trial court should carefully inform the jury of the applicable law “and not allow the troubled jury to rely on a layman’s interpretation of a superficially simple but actually complex [subject].” (United States v. Bolden (D.C. Cir. 1975) 514 F.2d 1301, 1309.)
“A jury’s request for re-instruction or clarification should alert the trial judge that the jury has focused on what it believes are the crucial issues in the case.” (People v. Thompkins (1987) 195 Cal.App.3d 244, 250.) In such a case, the court’s duty to instruct on the issue is not satisfied by merely rereading standard instructions which have already been provided to the jury. (See People v. Reynolds (1988) 205 Cal.App.3d 776, 778, disapproved on other grounds People v. Flood (1998) 18 Cal.4th 470.)
The trial court in this case accordingly erred by failing to address the subjects of the jury’s confusion and in particular by failing to clarify the type of knowledge and intent required.
E. The Instructional Errors Individually And Cumulatively Deprived Appellant Of His Sixth Amendment Right To Jury Trial And Require Reversal Of The Judgment.
The instructional errors in failing to define for the jury the terms “steroid” (to include “anabolic”) and “controlled substance” were prejudicial because those terms are not within the common knowledge of lay jurors, and there was no evidence adduced that the substances were actually “anabolic” (i.e., capable of promoting muscle growth) or were exempt from the list of controlled substances maintained by the Drug Enforcement Administration. Since one of the elements of both crimes is that the substances in issue were actually “anabolic” steroids which were not on the list of exempt substances, the failure to instruct foreclosed the jury from discharging its duty to make findings on the essential elements of both crimes.
The failure to define “controlled substances” was prejudicial in another sense, because the critical issue in the case was appellant’s knowledge and intent. If the jury had known that only those substances which were not exempted by the Administrator of the Drug Enforcement Administration were “controlled” under the California statutory scheme, it undoubtedly would have had a greater appreciation of appellant’s claim that he also lacked knowledge that those particular substances were “controlled,” i.e., illegal to possess or transport.
The foregoing instructional failures are important, but of even greater prejudice was the trial court’s erroneous instructions that any steroid was a controlled substance and that it was irrelevant whether or not appellant knew that it was illegal to possess or transport such substances.
As appellant has already pointed out, the critical issue in this case was intent and knowledge. (See discussion ante at p. 42.) Appellant testified that he believed that he was merely purchasing muscle enhancers, and thought, based on a conversation with the clerk who sold the items, that if they were discovered at the border it would be a mere technical trade violation so that all that would happen is that the items would be confiscated. (RT 65.) Appellant testified that upon arrest he was confused, and explained to Nellis that he had merely purchased injectable muscle enhancers in the pharmacy. (RT 67-68, 76, 77-78.) Appellant testified that he had never purchased steroids before, that he did not know what they looked like or how they were packaged, and that he did not know that any of the items he was purchasing were steroids, and first learned that they were from detective Nellis. (RT 68, 69, 79, 80, 85.)
By instructing the jury that it was irrelevant whether appellant’s knew that possession and transportation of the substances was illegal, the trial court withdrew from the jury its duty to determine whether appellant knew of the allegedly “controlled nature” (illegality) of the substances.
That these errors were prejudicial is demonstrated by the jury’s questions on the issues of what is a “controlled substance” and knowledge and intent, in particular in light of the trial court’s refusal to provide the jury with guidance on those issues beyond that which had already been given to them in the jury instructions already delivered.
The affirmative instructional errors are subject to harmless error analysis under the standard applicable to errors of federal constitutional dimension. (People v. Flood (1998) 18 Cal.4th 470, 482-504.) The errors of omission are also subject to the same standard, because they foreclosed jury consideration of appellant’s exculpatory evidence and removed elements of the charges from the jury’s consideration, thereby depriving appellant of his Sixth Amendment right to jury trial. (People v. Coria, supra, 89 Cal.Rptr.2d at p. 659; People v. Reyes, supra, 52 Cal.App.4th at p. 986.)
It is evident that, with regard to the errors in instruction concerning the elements of the “controlled” nature of the substance, and appellant’s knowledge of that “controlled” nature, reversal is required because “the record contains evidence that could rationally lead to a contrary finding with respect to [those] omitted element[s].” (Neder v. United States (1999) ___ U.S. ___ [119 S.Ct. 1827, 1839, 144 L.Ed.2d 35]; see People v. Stanfill (1999) ___ Cal.App.4th ___ [1999 WL 1126285, Court of Appeal No. A082782, filed December 9, 1999; Conde v. Henry (9th Cir. 1999) ___ F.3d ___ [1999 WL 1083969, Ninth Circuit No. 98-56445].)
Appellant submits that each instructional error was prejudicial and requires reversal. However, assuming arguendo that this Court finds that one or more of these errors was individually harmless, appellant in the alternative submits that the cumulative effect of the errors was prejudicial. “[A] series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error. (Citations omitted.)” (People v. Hill (1998) 17 Cal.4th 800, 844; see In re Jones (1996) 13 Cal.4th 552, 583; In re Sixto (1989) 48 Cal.3d 1247, 1264-1266; In re Cordero (1988) 46 Cal.3d 161, 190; see People v. Ledesma (1987) 43 Cal.3d 171, 191-227.)
V.
THE TRIAL COURT ERRED BY INSTRUCTING WITH CALJIC NO. 17.41.1 BECAUSE THAT INSTRUCTION IMPINGED UPON APPELLANT’S SIXTH AND FOURTEENTH AMENDMENT RIGHTS TO A UNANIMOUS JURY VERDICT AND TO JURY NULLIFICATION.
The trial court instructed with CALJIC No. 17.41.1, [Footnote 17] which provides (RT 146):
The integrity of a trial requires that jurors at all times during their deliberations conduct themselves as required by these instructions. Accordingly, should it occur that any juror refuses to deliberate or expresses an intention to disregard the law or to decide the case based on penalty or punishment, or any other improper basis, it is the obligation of the other jurors to immediately advise the court of the situation.
The criminal justice system has experienced an increasing frequency of cases in which majority jurors, usually in an eleven-to-one situation favoring guilt, report to the court that the holdout juror is not deliberating. The issue arises whether the holdout juror is merely disagreeing with the majority, but the usual result is that the trial court replaces the holdout juror with an alternate, after which a guilty verdict typically is shortly reached.
The magnitude of the problem is such that the California Supreme Court has recently granted review in several cases which appear to raise the issue: People v. Metters, S069442; People v. Rodriguez, S073219; and People v. Cleveland, S078537. The problem has also been recognized in the federal appellate system. (See United States v. Symington (9th Cir. 1999) ___ F.3d ___ [1999 Daily Journal D.A.R. 6295, 1999 WL 415345, 99 C.D.O.S. 4890].) The California Supreme Court has also granted review in two cases to consider the nature or role of jury nullification: People v. Williams, S066106; In re Odam, S077469.
A. Right To Unanimous Jury.
The trial court erred in the case at bench by giving CALJIC No. 17.41.1 because this instruction invited majority jurors to exercise undue pressure on minority jurors. A minority juror, who simply disagrees with the majority on the merits of the case, may under the instruction be accused of misconduct by failing to deliberate to the satisfaction of the majority. As the Second Circuit Court of Appeals observed in United States v. Thomas (2d Cir. 1987) 116 F.3d 606, 622:
Consider a case where, for example, a strong majority of the jury favors conviction, but a small set of jurors — perhaps just one — disagrees. The group of jurors favoring conviction may well come to view the ‘holdout’ or ‘holdouts’ not only as unreasonable, but as unwilling to follow the court’s instructions on the law.
The threat of reporting such alleged misconduct can be used to force the holdout juror to cave in and change his or her vote. The instruction itself can be used to manipulate the removal of the holdout juror. When such a dismissal is manipulated by the majority jurors who are frustrated by the holdout, the majority has impermissibly exercised control over the composition of the jury. [Footnote 18] (People v. Roberts (1992) 2 Cal.4th 271, 325.)
The Sixth Amendment right to a unanimous jury verdict is abridged when a deliberating juror is dismissed and the record reveals a possibility the dismissal occurred because that juror had doubts about the sufficiency of the government’s evidence. (United States v. Symington, supra; United States v. Thomas (2d Cir. 1987) 116 F.3d 606, 611-613, 624; United States v. Brown (D.C. Cir. 1987) 823 F.2d 591.)
Even where such a dismissal does not occur, the instruction has an inherently coercive effect on the jury deliberation process. The state and federal constitutions guarantee the privacy and secrecy of jury deliberations. (People v. Oliver (1987) 196 Cal.App.3d 423, 429; United States v. Brown (D.C. Cir. 1987) 823 F.2d 591, 596; see Pen. Code, § 167.) The purpose is to encourage the free, frank, and uninhibited discussion necessary to the performance of the jury’s vital truth-seeking function. (See United States v. Thomas (2d Cir. 1997) 116 F.3d 606, 618-619; People v. Collins (1976) 17 Cal.3d 687, 693 [importance of “personal reactions and interactions as any individual juror attempts to persuade others to accept his or her viewpoint”.)
CALJIC No. 17.41.1 chills this essential free discussion in advance, by putting jurors on notice that their every word may be reported to the trial court at any time by their fellow jurors in the event of even an imagined impropriety. This is a prospect which is likely to pressure jurors to forego their independence of mind and conceal even legitimate concerns which they may have about the strength of the evidence, rather than exercise the candor that is vital to the integrity of the deliberative process as constitutionally envisioned.
Appellant exercised his right to jury trial pursuant to the provisions of the Sixth Amendment to the United States Constitution and article I, section 16 of the California Constitution. He therefore had a federal constitutional right to a unanimous jury. (Apodaca v. Oregon (1972) 406 U.S. 404.) That constitutional right was abridged because the challenged instruction coerced potential holdout jurors into agreeing with the majority, as explained above. (See Perez v. Marshall (9th Cir. 1997) 119 F.3d 1422, 1426-1428.)
B. Interference With The Power Of Jury Nullification.
The invitation in the instruction for majority jurors to “snitch off” a potential holdout juror constitutes an unconstitutional intrusion into the deliberative process of the jury, by vitiating the power of the jury to nullify.
Jury nullification was part of the English right of trial by jury. (See Bushnell’s Case (C.P. 1670) 124 Eng. Rep. 1006 [6 Howell’s 999] [decision freeing a member of the jury arrested for voting to acquit William Penn when the vote was considered against the law and evidence]; Murphy, Integrating The Constitutional Authority Of Civil And Criminal Juries, 61 Geo. Wash. L. Rev. 723, 753-754.
Jury nullification was acknowledged in the early days of America as well. Alexander Hamilton argued for jury nullification in the trial for seditious libel of John Peter Zenger, perhaps one of the most famous examples of the application of this concept in the history of the United States. In that regard, John Adams wrote that the jury’s power to nullify stems from the nature of the general verdict, and that each juror must find the verdict according to his own understanding, judgment, and conscience. (See Scheflin, Jury Nullification: The Right To Say No (1972) 45 S. Cal. L. Rev. 168, 173.)
“[H]istorical practice is relevant to what the Constitution means by such concepts as trial by jury.” (United States v. Gaudin (1995) 515 U.S. 506, 515.) Since jury nullification was an accepted tenet of Anglo-American law at the time the Sixth Amendment was adopted, that right was implicitly included in the concept of the guarantee of trial by jury as set forth in that constitutional provision. [Footnote 19]
Indeed, the United States Supreme Court has recognized that the jury retains the power to render a not guilty verdict even where acquittal is inconsistent with the law given by the court. (See Dunn v. United States (1932) 284 U.S. 390, 393-394.) In Duncan v. Louisiana (1968) 391 U.S. 145, 155-156, the United States Supreme Court observed:
Those who wrote our constitution knew from history and experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority … Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased or eccentric judge …
The Duncan Court also observed that when a jury renders a verdict that is at odds with the verdict the trial court would have rendered, it is usually because the jurors are serving the very purpose for which they were created. (Id. at p. 57.) The observations contained in Duncan have been interpreted as a recognition by the United States Supreme Court that “the jury’s fundamental function is not only to guard against official departures from the rules of law, but on proper occasions themselves to depart from unjust rules or their application.” (Kadish & Kadish (1973) Discretion To Disobey: A Study Of Lawful Departures From Legal Rules, p. 53.)
Many circuits of the federal courts have also acknowledged the power of the jury to nullify. For example, the D.C. Circuit observed in United States v. Dougherty (D.C. Cir. 1972) 473 F.2d 1113, 1130, that “[t]he pages of history shine on instances of the jury’s exercise of its prerogative to disregard uncontradicted evidence and instructions of the judge”; and the Ninth Circuit has stated, “[t]he jury has the inherent power to pardon one no matter how guilty.” (United States v. Schmitz (9th Cir. 1975) 525 F.2d 793, 794; see also United States v. Dougherty (D.C. Cir. 1972) 473 F.2d 1113, 1136; United States v. Sepulveda (1st Cir. 1993) 15 F.3d 1161, 1190; United States v. Spock (1st Cir. 1969) 416 F.2d 165; United States v. McCracken (5th Cir. 1974) 488 F.2d 406, 418-419 [collecting cases]).
California courts have not spoken with a uniform voice on the subject, although as noted earlier (ante at p. 58), clarification may soon come from the California Supreme Court in Williams or Odam.
In People v. Dillon (1983) 34 Cal.3d 441, the plurality opinion did not directly address the issue whether the jurors should have been instructed on their nullification power, since the case was reversed on other grounds. However, in a concurring opinion, Justice Kaus placed his considerable imprimatur on the notion that jury nullification was a viable part of the legal system.
Several panels of the Court of Appeal have followed the view that jury nullification is a legitimate part of the legal landscape that must be accepted, if not encouraged. [Footnote 20] (People v. Nichols (1997) 54 Cal.App.4th 21; People v. Baca (1996) 48 Cal.App.4th 1703, 1707; People v. Fernandez (1994) 26 Cal.App.4th 710, 714; see also People v. Sanchez (1997) 58 Cal.App.4th 1435, 1452-1457 [dis. opn. of Johnson, J.].) Appellant is not aware of any case — state or federal — which holds that the jury does not have the power to nullify.
The right to trial by jury is eviscerated if a juror is denied the right to apply the facts of the case to the law in a manner consistent with that juror’s personal sense of morality. As the Ninth Circuit recognized, “the jury must not be reduced to the position of a mere ministerial agent by a direction on their very thought, thereby withholding of a vital right due them.” (Morris v. United States (9th Cir. 1946) 156 F.2d 525, 529.) As Justice Rosen of the Third Circuit Court Of Appeals has observed: “We must bear in mind that the confidentiality of the thought processes of jurors, their privileged exchange of views, and the freedom to be candid in their deliberations are the soul of the jury system.” (United States v. Antar (3d Cir. 1994) 38 F.3d 1348, 1367 (conc. opn. of Rosen, J.).
The giving of CALJIC No. 17.41.1 also removed from the jurors their [Footnote 21] Sixth Amendment right to function as the final barrier between an unjust prosecution and conviction, and thereby abridged the Constitution.
C. The Error Requires Reversal.
As explained above, the erroneous instruction deprived appellant of his Sixth Amendment right to jury trial. Appellant further contends that the instruction also deprived him of his Fourteenth Amendment right to due process by depriving him of his right to a unanimous jury verdict. Since these are errors of federal constitutional dimension, under a prejudice analysis the burden falls on the government to demonstrate, beyond a reasonable doubt, that the error did not affect the verdict. (Chapman v. California (1986) 386 U.S. 18, 24.)
However, appellant submits that this error is one which defies assessment of its actual impact on the jury, rendering the error akin to an erroneous instruction on the burden of proof, i,.e., that this is structural error. Reversal is accordingly required without resort to a prejudice analysis. (See Arizona v. Fulminante (1991) 499 U.S. 279, 309; Sullivan v. Louisiana (1993) 508 U.S. 275, 280 [reversal required where “there has been no jury verdict within the meaning of the Sixth Amendment.”)
VI.
THE JURY WAS MISDIRECTED BECAUSE THE CRIME OF TRANSPORTATION OF A CONTROLLED SUBSTANCE REQUIRES THAT THE TRANSPORTATION BE FOR A PURPOSE OTHER THAN MERE PERSONAL POSSESSION OR USE; IT REQUIRES A FURTHER SPECIFIC INTENT TO SELL, TRANSFER OR DISTRIBUTE THE SUBSTANCE.
In People v. Rogers (1971) 5 Cal.3d 129, 131, the appellant argued “that one who transports marijuana for his own personal use rather than for sale or distribution is not guilty of illegal transportation.” The California Supreme Court, over a spirited and lengthy dissent and by a mere 4-3 vote, rejected this contention, and held that Health and Safety Code “section 11531 requires only a knowing transportation of marijuana, whether for personal use, sale, distribution, or otherwise.” (People v. Rogers, supra, 5 Cal.3d at p. 137.)
More recently, in People v. Eastman (1993) 13 Cal.App.4th 668, the appellant argued that the crime of transportation of a controlled substance under the provisions of Health and Safety Code section 11379 required the intent to transfer possession and did not include movement merely for purposes of personal use. The Fourth Appellate District, Division Two, rejected this contention, holding that the decision in Rogers was controlling and that it was therefore bound by stare decisis to reject the claim. (People v. Eastman, supra, 13 Cal.App.4th 668, 674.)
Appellant submits that the better reasoned view is that set forth in the dissent authored by Justice Stanley Mosk, and joined by Justices Raymond Peters and Mathew Tobriner, in People v. Rogers, supra, 5 Cal.3d at pp. 139-152.) Appellant does not believe that he could improve upon the well reasoned and articulated exposition of Justice Mosk in the dissenting opinion, and therefore will not attempt to do so here.
In the case at bench, there can be no question but that the steroids were for mere personal use. If, as appellant contends, the transportation statute (Health & Safety Code, § 11379) applies only where the substance being transported is not for mere personal use, then its application to him abridges his right to federal due process because there is no evidence of any intent to sell, transfer or distribute the substances.
Appellant recognizes the likelihood that this Court will find that the Rogers decision is controlling, as did the Court of Appeal in Eastman. Appellant nonetheless requests that the Court address the claim in its opinion in this matter, in order that it be clearly preserved for purposes of presentation to the California Supreme Court, should the judgment not be reversed by this Court on other grounds.
CONCLUSION
The judgment should be reversed.
Dated: December 19, 1999.
Respectfully submitted,
Robert Franklin Howell
Attorney for Appellant
John Doe
OPENING BRIEF FOOTNOTES [Footnotes 1-21]:
Footnote 1: The text report that the contact occurred at 5:15 a.m. is based on Andrews’s testimony on cross-examination. On direct examination, Andrews appeared to agree with assertions by the prosecutor that the contact occurred five hours later, at 10:15 a.m. (RT 50, 52.)
Footnote 2: Detective Allen testified that throughout the interrogation appellant changed “his statement from ‘I knew they were illegal’ to ‘I’m not sure if they’re illegal’ to ‘My friend said if I was stopped at the border the only thing that would happen, they would be taken away from me and I would be let go.’ So his story or belief changed all the time.” (RT 26; see RT 32, 35.) Appellant stated to Allen that if he had thought that the drugs were illegal “he would have hid them better than just in the console.” (RT 26; see RT 33.)
Footnote 3: Appellant was convicted of four counts of robbery in 1988, two counts of assault with a deadly weapon in 1988, and possession of methamphetamine in 1994. (RT 70.)
Footnote 4: Mr. A later took the bottle of pills out of the bag to read the label, and then apparently placed them in the glove compartment of the car. (RT 74.)
Footnote 5: “Anabolic” is defined in Webster’s Third New International Dictionary (Unabridged) (Merriam-Webster, 1993) as follows: “1: relating to, characterized by, or promoting anabolism – steroids taken by athletes to increase muscular size temporarily – 2: of, relating to, or exhibiting anaboly.” The second definition does not apply, since the same source defines “anaboly” as “anything thrown up, prelude, act of delaying, ascent … : evolutionary differentiation involving the addition of new terminal stages to the ancestral pattern of morphogenesis.”
Footnote 6: The term “phenyl” is defined in Webster’s Third New International Dictionary (unabridged) (Merriam-Webster, 1993), at page 1696, to mean “a univalent radical C6H5 derived from benzene by removal of one hydrogen atom …”
Footnote 7: As noted above, appellant makes this argument in a purely arguendo fashion, and he is therefore not hereby conceding that the substances were “controlled substances” as that term in used in section 11379.
Footnote 8: Appellant does not claim that Health and Safety Code sections 11377 and 11379 are void on their face due to preemption, or that the State of California may not use these statutes to punish conduct which is separate from the importation of controlled substances across international borders. “A State might impose criminal sanctions, for example, against the unauthorized manufacture, prescription, sale, purchase, or possession of narcotics within its borders.” (Robinson v. California (1962) 370 U.S. 660, quoted in In re De La O. (1963) 59 Cal.2d 128, 135; see also People v. Gard (1978) 76 Cal.App.3d 998 [no federal preemption of sales of controlled substances by physician to another within the State].) The problem in this case is that no conduct other than importation across the international border was established by the evidence.
Footnote 9: Section 952, subdivision (b), provides in relevant part: “It shall be unlawful to … import into the United States from any place outside thereof, any non-narcotic controlled substance in schedule III …
Footnote 10: The federal regulations which specify the procedures which must be followed to secure the exceptions are found in 21 C.F.R. et seq.
Footnote 11: In People v. Duncan (1974) 40 Cal.App.3d 940, 957 the First Appellate District discussed a claim “that the federal government has preempted the field of the importation of marijuana from foreign countries and that the state statute is unconstitutional insofar as it refers to such importation.” The Court of Appeal recognized that the inclusion of the non-preemption provision in subchapter I, “and its exclusion in another might well indicate Congress’ intent that the provisions of section 903 not apply to subchapter II … ” (Id. at p. 959.) The Court of Appeal opined in dicta that “this is not necessarily the case” because the two subchapters originated in different committees, and when they “were combined, Congress included section 965 which provided that certain parts of subchapter I would apply to the operation of subchapter II. This section provides in pertinent part: ‘Part E of subchapter I of this chapter (which includes § 903, supra, shall apply with respect … to violations of this subchapter, to the same extent that such part applies … to violations of subchapter I of this chapter … ‘ It is therefore arguable that the criminal penalties imposed by section 952 of subchapter II are not intended ‘to occupy the field in which that provisions operates … to the exclusion of any State law on the same subject matter … unless there is a positive conflict.'” (Id. at p. 959.) Ultimately, the First Appellate District found that it was “unnecessary to resolve or apply the conflicting principles … or to determine the constitutionality of the prohibition against imports contained in the state statute.” (Id. at p. 960.) The language in Duncan discussing the application of the non-preemption provisions of section 903 to subchapter II by virtue of section 965 was not only dicta — it was also plainly erroneous. Section 965 of 21 U.S.C., which extends Part E of subchapter I to subchapter II, is irrelevant because 21 U.S.C. § 903 appears in Part F — not in Part E — of subchapter I, and thus has no application to subchapter II by virtue of section 965, the provision upon which the First Appellate District exclusively but mistakenly relied.
Footnote 12: The trial prosecutor in his final jury argument stated: “In this particular case, there’s only really one issue for you, and that is, did he know [the items were controlled substances] or did he not know.” (RT 139.)
Footnote 13: Defense counsel in his closing argument asserted that the critical issue in the case was “whether or not Mr. Doe knew the nature of the controlled substance that the People say he was in possession of. That’s it.” (RT 127.) Defense counsel based his argument on the lack of such knowledge. (RT 128-129, 131-133.)
Footnote 14: See People v. Coria (1999) 21 Cal.4th 868, 89 Cal.Rptr.2d 650, 657, in which the California Supreme Court stated that even assuming (without deciding) that manufacture of a controlled substance “is a general intent crime, that characterization would not preclude construing the provision as requiring knowledge of the character of the drug being manufactured.”
Footnote 15: Although appellant is not aware of any case which holds that either possession of anabolic steroids or transportation of such substances is a “general intent” crime, the California Supreme Court held that sale of narcotics was a “general intent” crime in People v. Daniels, supra, 14 Cal.3d at p. 861.) This holding may now, however, be open to substantial doubt and challenge. (See People v. Coria (1999) 21 Cal.4th 868, 89 Cal.Rptr.2d 650, 657 [acknowledging Daniels but rejecting argument that manufacturing methamphetamine “should be interpreted as a general intent statute “].)
Footnote 16: The language of the last sentence of CALJIC No. 3.30 is similar to the language quoted above from Daniels, with one very significant difference. While CALJIC No. 3.30 provides that the accused need not “know” that his conduct is unlawful, the Supreme Court in Daniels held instead that “[p]roof that he intended to violate the law is not required.” (14 Cal.3d at p. 861.)
Footnote 17: CALJIC No. 17.41.1 is a newly minted invention of the CALJIC Committee for which the drafters were apparently unable to muster any authority. (See 2 CALJIC (West Supp. January 1999), p. 2.)
Footnote 18: When a trial court inquires into allegations of juror misconduct during deliberations, it must exercise great care that it does not intrude into the thought processes of the deliberating jurors. (See United States v. Symington, supra; United States v. Thomas, supra, 116 F.3d at pp. 619-620; Mahoney v. Vandergritt (1st Cir. 1991) 938 F.2d 1490, 1492.) This rule is consistent with the overriding principle that the sanctity of jury deliberations must be inviolate. The courts must have paramount concern “for protecting and preserving the integrity of our jury system.” (Remmer v. United States (1956) 350 U.S. 377, 381.) These “long-recognized and very substantial concerns support the protections of jury deliberations from intrusive inquiry.” (Tanner v. United States (1987) 483 U.S. 107, 127.) “Any jury which has been out for a number of days or perhaps even a number of hours debating whether the government has established guilt beyond a reasonable doubt is going to be a jury within which strong differences have developed, and it is not for us, the judge or the lawyers, to inquire into chapter and verse of those differences, absent very compelling reasons.” (United States v. Calbas (2d Cir. 1987) 821 F.2d 887, 896.)
Footnote 19: The power of the jury to nullify also received early recognition in California. (People v. Lem You (1893) 97 Cal. 224, 228, overruled on other grounds in People v. Kobrin (1995) 11 Cal.4th 416, 427, fn. 7.)
Footnote 20: To appellant’s knowledge, no court has never gone so far as to hold that juries should be affirmatively instructed that they have the power to nullify. (See Sparf v. United States (1895) 156 U.S. 51, 106; People v. Partner (1986) 180 Cal.App.3d 178 [no right to jury instruction on right of nullification]); People v. Nichols (1997) 54 Cal.App.4th 21, 24-26; People v. Dougherty (D.C. Cir. 1972) 473 F.2d 1113, 1136.) Appellant does not contend that his jury should have been so instructed. Rather, appellant argues that his jury should not have been instructed that it was without the power to nullify. (See United States v. Sepulveda (1st Cir. 1993) 15 F.3d 1161, 1190.)
Footnote 21: Appellant has standing to assert the federal constitutional rights of the citizens who served on his jury. (See Powers v. Ohio (1991) 499 U.S. 400, 415; People v. Tapia (1994) 25 Cal.App.4th 984, 1029.)
Date of Brief: March 2000
COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT, DIVISION ONE
PEOPLE OF THE STATE OF CALIFORNIA
Plaintiff and Respondent
v.
JOHN DOE
Defendant and Appellant
______________________________________
San Diego Superior Court Number SF0000000
Honorable Ernest Borunda, Judge
APPELLANT’S REPLY BRIEF
Robert Franklin Howell
1150 Silverado Street
La Jolla, California 92037
Telephone: (858) 270-0470
State Bar Number: 071273
Attorney for Appellant John Doe
By Appointment Of The Court Of Appeal
Through The Appellate Defenders, Inc.
Independent Case Program
INTRODUCTION
In his opening brief, appellant John Doe set forth six appellate contentions, each of which warrants reversal of the judgment in whole or in part. The government has now filed its brief, in which it offers no express concessions, and asks that the judgment be affirmed without modification. In this brief, appellant will address each of the government’s arguments, within the organization of issues established in the appellant’s opening brief.
ARGUMENT
I.
THE JUDGMENT ABRIDGES APPELLANT’S RIGHT TO FEDERAL DUE PROCESS OF LAW AND MUST BE REVERSED BECAUSE THERE WAS NO EVIDENCE THAT ANY OF THE SUBSTANCES SEIZED FROM APPELLANT WERE THE “ANABOLIC” STEROIDS OR SPECIFIC SUBSTANCES PROSCRIBED BY STATUTE.
Appellant’s first contention is that the judgment abridges federal due process and must be reversed because there was no evidence adduced at trial that any of the substances seized from appellant were the “anabolic” steroids which are proscribed by Health and Safety Code sections 11377 and 11379. (AOB 10-22.) This argument consists of two parts: (a) the substances seized were not proven to be “anabolic” steroids, and; (b) the government failed to prove that the substances seized were not within a facial statutory exemption.
A. The Statutes Under Which Appellant Was Charged And Convicted Proscribe Possession And Transportation Only Of “Anabolic” Steroids.
Appellant contends, first, that the evidence was insufficient to establish that the substances seized were “controlled substances,” the possession and transportation of which is proscribed by Health and Safety Code sections 11377 and 11379, respectively. (AOB 10-17.) Appellant pointed out that the only form of steroid which is defined as a “controlled substance” is an anabolic steroid, under the literal terms of Health and Safety Code section 11056. (AOB 11.) Appellant also pointed out that a steroid is only “anabolic” if it promotes muscle growth, and that the terms “anabolic” and “steroid” are not synonymous, so that the term “anabolic steroid” is not an oxymoron. (AOB 12-13.) Finally, appellant argued that the only evidence concerning the nature of the substances seized was the testimony of forensic chemist Romulo Reyes, who did not testify that any one of the three substances seized was an “anabolic” steroid or that any of these substances promoted muscle growth. (AOB 12-17; RT 41-49.)
The government agrees that only “anabolic” steroids are proscribed by the relevant statutes, and in substance concedes that most of the substances which were seized are not “anabolic” steroids. (RB 12.) The government nonetheless argues, however, that one of these substances — testosterone propionate — is an anabolic steroid within the purview of the relevant statutes as a matter of law because it is included in a superseded manual which was formerly published by the American Medical Association for the specific and limited purpose of assisting doctors in treating various medical conditions through steroid therapy. The sole authority upon which the government relies for this assertion was never intended to provide definitive, or encyclopedic knowledge of drug compounds, was superseded by 1991, 1992, 1993, 1994, and 1995 editions, and thereafter was discontinued altogether. [Footnote 22] Thus the factual foundation of respondent’s argument cannot bear the evidentiary weight which respondent attempts to place upon it.
Respondent offers the bizarre argument that the government had no burden to adduce any evidence at trial that testosterone propionate is an anabolic steroid because it could have produced such evidence if it had been necessary, but it wasn’t necessary because the issue was one for the court and not the jury to decide. (RB 12-15.) Respondent has failed to comprehend the fundamental nature of an appellate claim that a conviction is not supported by substantial evidence.
Appellant does not agree with respondent that the factual question whether a particular chemical compound is a “controlled substance” as defined by the relevant statutes is a question for the court alone, because that is a factual element of the charged offense which cannot be decided by a court without vitiating the accused’s Sixth Amendment right to jury trial and Fourteenth Amendment right to due process of law. [Footnote 23]
This Court, however, need not decide that question, because it is entirely irrelevant to the issue presented by appellant. It is appellant’s contention that there was no proof that any substance seized from him was an “anabolic” steroid proscribed by statute. The issue in this case is whether there was evidence at trial of that element, not whether the proper trier of fact was a judge or a jury. Even in non-jury trials, the government must still adduce evidence of each element of a crime.
Respondent’s second contention, that it suffices that the government could have proven that testosterone propionate is an anabolic steroid, is also without merit. Even assuming, arguendo, that the government could have produced evidence that one or more of the substances seized was a proscribed “anabolic” steroid, the fact is that it failed to do so. The test on appeal is whether the government actually presented substantial evidence in the trial court of each fact necessary for conviction. The test is not whether the government could have presented such proof in the trial court. And the test is not whether an appellate court can itself take judicial notice of the truth of this dubious claim.
Even assuming, arguendo, that the trial court could have taken judicial notice that testosterone propionate is an “anabolic” steroid, that court did not do so. Before the trial court could take judicial notice of such a fact it would have had to give defense counsel notice of its intention to do so, and an opportunity to contest the propriety of such notice. (Evid. Code, §§ 453, 455, subd. (a).) “[W]here the matter noticed under [Evidence Code] Section 452 is one that is of substantial consequence to the action – even though the court may take judicial notice under Section 452 when the requirements of Section 453 have not been satisfied – the party adversely affected must be given a reasonable opportunity to present information as to the propriety of taking judicial notice and as to the tenor of the matter to be noticed.” (Portion of Law Revision Commission Comment to Evidence Code section 453.) Whether the substances seized were “controlled substances” warranting conviction under the charged code sections was certainly of “substantial consequence” to the action. Thus, the trial court could not take judicial notice without affording appellant an opportunity to contest that action, and it therefore cannot be presumed that the trial court did take such notice, unannounced to the parties. (See Estate of Russell (1971) 17 Cal.App.3d 758, 765 [unrequested notice of decedent’s will was improperly taken where opposing party was given no opportunity to contest propriety of doing so].)
The Attorney General has not formally requested that this Court take judicial notice that any of the various substances seized from appellant were “controlled substances” within the purview of the statute, and even if he had, it would be grossly inappropriate for this Court to do so. First, of course, to do so would amount to trial de novo in this reviewing court, since the trial court was not requested to, and did not, take such notice itself. For this Court to take judicial notice and thereby uphold the conviction would deprive appellant of his Sixth Amendment right to jury trial. (See Brosterhous v. State Bar (1995) 12 Cal.4th 315, 325 [refusal to take judicial notice on appeal of matter not presented first to trial court]; Grinnell v. Charles Pfizer & Co. (1969) 274 Cal.App.2d 424, 444 [refusal to take judicial notice on appeal of matter not noticed in trial court or presented to jury].)
Perhaps respondent is instead arguing that an appellate court may excuse the failure of the government to adduce evidence of an element of a crime on the grounds that it is “harmless error” if the appellate court can itself take such judicial notice. Appellant is aware of no legal authority for this remarkable assertion, and respondent cites none. Respondent’s suggestion that this Court “cure” the defect by taking judicial notice on appeal of the character of the substance comes too late, and its proffer of evidence has been made to the wrong court.
Respondent suggests that the Ninth Circuit Court of Appeals erred in reversing the conviction for possession of anabolic steroids in United States v. Orduno-Aguilera (9th Cir. 1999) 183 F.3d 1138, because it should have looked at the “medical book” [Footnote 24] and determined that testosterone propionate was a controlled substance within the purview of the federal statute. But there is no legitimate basis to distinguish Orduno-Aguilera from the case at bench. In both cases the statutes involved identified anabolic steroids as the controlled substance. In both cases a chemist testified only that testosterone propionate was a substance possessed by the accused. In both cases the government failed to prove that testosterone propionate was an anabolic steroid because there was no evidence that the substance in question promoted muscle growth.
The Attorney General, in passing, also offers the nonsensical assertion that there is no requirement in the California statutory scheme that the anabolic steroid “promote muscle growth.” This would be the same as saying that a statute which prohibited the possession of brown bears did not require that the bear be brown. The term “anabolic” is defined to be an adjective denoting the promotion of anabolism — “steroids taken by athletes to increase muscular size … ” (Webster’s Third New International Dictionary (Unabridged) (Merriam-Webster 1993). Health and Safety Code section 11056, subdivision (f), does not define all steroids as controlled substances. It defines, as here relevant, only “anabolic” steroids as such proscribed substances.
B. The Government Failed To Prove That The Substances Seized From Appellant Were Not Excepted From Being “Controlled.”
Appellant also contends that a second and equally critical black hole in the prosecution’s evidence was its failure to adduce any proof that any of the substances in issue were not facially exempt from the definition of “anabolic steroid” in section 11056, subdivision (f). definition of “anabolic steroid.” [Footnote 25] (AOB 17-21.)
Respondent asserts that it was not required to prove the substances were not exempt because the question was one for a judge and not a jury to resolve, again citing only People v. Medina, supra. (RB 15.) Again, respondent has failed to apprehend the essential Fourteenth Amendment due process requirement that the government must prove the elements of its case against the accused, regardless of whether a judge or jury sits as the trier of fact in the case.
Respondent argues that it had no duty to negative the facial exemption set forth in Health and Safety Code section 11056 because “there was no question that it fit within the list of prohibited drugs.” (RB 16-17.) Respondent asserts that since it was known in this case that the substance was, specifically, testosterone propionate, it was a “controlled substance” on the face of the statute. (RB 17.)
Respondent’s argument founders in at least three respects. First, the term “testosterone propionate” is not set forth anywhere on the face of the statute, as respondent asserts. Second, there was no proof, as has already been discussed, that testosterone propionate is in fact an “anabolic” steroid. Third, the facial exemption set forth in section 11056, subdivision (f), exempts all substances which are anabolic steroids but which are exempt by virtue of being scheduled in the applicable federal regulation. Thus, even if testosterone propionate were specifically mentioned in the statute as being an anabolic steroid, it would not be a “controlled substance” within the meaning of section 11056 if it were exempted by virtue of being listed in section 1308.34 of Title 21 of the Code of Federal Regulations.
Because the exemption is set forth on the face of the statute, and is a matter which is not subject to the special knowledge of the accused, the government bears the burden of disproving the exemption as part of its prima facie case. (In re Hornef (1908) 154 Cal.355, 360; People v. Gott (1994) 26 Cal.App.4th 881.) Respondent offered no proof in the trial court that the substances which were seized were not exempt. Indeed, respondent offers neither proof or argument in this Court that the substances were not exempt.
The government failed to prove in the trial court that the substances seized from appellant were “controlled substances” within the purview of Health and Safety Code sections 11377 and 11379. Whether such proof could have been adduced, or may be adduced in other cases, is simply not relevant.
The judgment, in its entirety, must be reversed.
II.
HEALTH AND SAFETY CODE SECTIONS 11377 AND 11379 ARE UNCONSTITUTIONAL AS APPLIED IN THIS CASE BECAUSE THE IMPORTATION OF A CONTROLLED SUBSTANCE FROM A FOREIGN COUNTRY INTO THE UNITED STATES IS AN ACTIVITY WHICH IS PREEMPTED BY THE COMMERCE CLAUSE OF THE UNITED STATES CONSTITUTION AND BY ENACTMENTS OF THE UNITED STATES CONGRESS.
Appellant’s second argument is that even assuming, arguendo, that there was some evidence that the substances in issue are “controlled substances” within the purview of Health and Safety Code sections 11377 and 11379, the use of those statutes to prosecute and punish appellant was outside of the jurisdiction of California courts because the importation of all items, including controlled substances, is an activity subject to the exclusive control of the federal government and is preempted by the Commerce Clause and by exhaustive Congressional regulation of the field. (AOB 23-36.)
A. Appellant’s Conduct Was Limited To Importation Across The International Border.
Appellant demonstrated, first, that the conduct for which he was convicted consisted exclusively of the importation of the substances across the international border. (AOB 23-24.) Respondent does not dispute appellant’s claim, or suggest that appellant was being punished for any conduct other than international importation. (See RB 18-21.)
The reason that appellant demonstrated that the conduct for which he was punished consisted entirely of international importation of goods was to show that the entire prosecution was for a pre-empted activity, not to suggest that California lacked territorial jurisdiction to prosecute appellant for non-preempted criminal activity. Respondent, however, has misconstrued appellant’s claim, and has rebutted a pure strawman.
Respondent asserts that “[a]ppellant’s main point is presented as a jurisdictional question.” (RB 20.) Respondent asserts that it must win this “main point” under this Court’s non-final decision in People v. Crusilla (1999) 77 Cal.App.4th 141. [Footnote 26] (Ibid.) Appellant is not sure which brief respondent read, but it is clear that appellant never argued any such “jurisdictional” issue, let alone that it was his “main point.” Respondent has evidently either confused the issue of federal preemption with that of jurisdiction, or had word processing material left over from another brief it did not wish to waste. Appellant has never claimed, as did the defendant in Crusilla, that a federal immigration inspector did not have the authority to arrest him. (Indeed, in this case the arrest was made by a state official, not a federal inspector.) Unfortunately, this confusion on the part of respondent has evidently caused it to fail to meaningfully respond to the federal preemption argument which appellant did raise.
B. egulation Of Imports Into The United States Is A Matter Of Exclusive Federal Regulation So That State Action Which Affects The Flow Of Such Commerce Is Preempted.
Distinctly separate from the bogus “main point” which respondent erroneously raises and gratuitously opposes, appellant argued that there are four reasons why California Health and Safety Code sections 11377 and 11379 — as applied in this case — are preempted.
1. Importation Of Goods And Substances From Foreign Countries Is Within The Exclusive Control Of The Federal Government Regardless Of Declared Congressional Intent.
Appellant argued that the statutes are preempted by the provisions of the Commerce Clause, i.e., Article I, section 8, clause 3 of the United States Constitution. (AOB 25-27.) It was appellant’s argument that the power to control imports into the United States belongs exclusively to the federal government because of the necessity for uniformity among the States in this regard. (Ibid.) Respondent is unable to offer any rejoinder whatsoever to this claim.
2. Even Assuming Arguendo That The Commerce Clause Does Not By Itself Operate To Pre-Empt The Field Of Importation Of Substances From Abroad, The United States Congress Has Done So Through Legislation Which Covers The Field.
Appellant argued, second, that even if the Commerce Clause did not by itself preempt all State regulation of imports from abroad, the United States Congress under the Supremacy Clause, i.e., Article VI of the United States Constitution, has the power to preempt State regulation and has actually done so through the enactment of legislation which exhaustively covers the field. (AOB 27-31.) Respondent does not dispute that Congress has the power to preempt State regulation, and does not contest appellant’s claim that Congress had demonstrated its intent to do so by exhaustively regulating the field. (See RB at pp. 18-19.)
Indeed, respondent offers the interesting argument that the state statutes are not preempted because they regulate “the same list of drugs prohibited and exempted by federal regulations.” (RB 19.) That, of course, is precisely appellant’s point. The regulation and control of these very same substances has been exhaustively undertaken by the United States Congress, which has dominated the field. [Footnote 27] Respondent appears not to realize that it is conceding, in substance and effect, the accuracy of appellant’s constitutional contention.
Both the exhaustive manner in which Congress has regulated importation of controlled substances, and the positive conflict between the State statutory provisions and the federal provisions, vividly demonstrate that the state statutes are preempted insofar as they apply to importation of controlled substances.
3. Relevant Congressional Enactments Evidence An Intent To Preempt The Field Of Importation Of Controlled Substances.
Appellant argued, third that Congress had demonstrated an intent to preempt the field of regulation of importation of controlled substances by the passage of the Comprehensive Drug Control Act (U. S. C., Title 21, ch. 13.) Respondent has failed to address this argument altogether. (See RB 18-21.)
4. The Possibility Of Double Punishment Is Another Consideration Which Supports The Conclusion That The Field Of Importation Of Controlled Substances Is Preempted.
Appellant argued, finally, that a judicial holding which would permit the States to “supplement” federal criminal laws with their own criminal penalty scheme leads to the specter of double punishment, a consideration which also militates for a finding of federal preemption. (AOB 34-35.) Respondent has again failed to address appellant’s argument. (See RB 18-21.)
5. Conclusion.
As explained above and in appellant’s opening brief, appellant has argued that there are four sources for the conclusion that State regulation of importation of controlled substances into this Country has been preempted. Respondent has not meaningfully contested any of these four arguments, but has instead raised a pure strawman of territorial jurisdiction.
Appellant also pointed out that, if the importation of controlled substances across the international border is an activity which is beyond the police powers of the State of California, the use of Health and Safety Code sections to regulate and punish such conduct is unconstitutional and void, and the judgment in this case must be reversed. (AOB 36.) Respondent again concedes appellant’s claim by failing altogether to address it. (See RB at pp. 18-21.)
III.
THE PROVISIONS OF HEALTH AND SAFETY CODE SECTIONS 11377 AND 11379 ARE TOO VAGUE TO GIVE A LAY PERSON REASONABLE NOTICE OF WHICH SUBSTANCES ARE ILLEGAL TO POSSESS AND TRANSPORT, SO THAT THE CONVICTIONS ABRIDGE APPELLANT’S RIGHT TO FEDERAL DUE PROCESS AND MUST BE REVERSED.
Appellant’s third argument is that the provisions of Health and Safety Code sections 11377 and 11379 do not provide reasonable notice of the specific substances which are proscribed, and are unconstitutionally vague. (AOB 37-43.) Appellant argued that the prosecution of him under these provisions has deprived him of his Fourteenth Amendment right to due process of law and requires reversal of the judgment. (Ibid.)
Appellant argued that the vagueness which abridges the Due Process Clause in this case consists of the ambiguous term “controlled substance,” which is inadequately defined by statute and case law. (See AOB 40.) Appellant pointed out that the term is not clarified by the California statutory scheme, which ultimately requires a lay citizen to refer to nine different State statutes only to find that he must then consult an obscure provision of the Code of Federal Regulations, which in turn directs him to attempt to consult in writing by requesting the unpublished and continually changing promulgations of the Administrator of the Drug Enforcement Administration. (See AOB 37-38.)
Respondent asserts that sufficient notice is given because appellant was charged in the information “with transporting steroids, a more specific charge since not all controlled substances are steroids.” (RB 23.) Appellant submits that due process is abridged when the only notice he is given of the proscribed conduct consists not of statutory notice, but of after-the-fact charges brought by the government. Respondent cites no authority for the proposition that a vague statute is cured by specificity in the charges actually filed, and appellant certainly is aware of none.
To the extent that respondent is contending that the statute itself was sufficiently specific, its argument falters by its own inability to furnish the list of substances exempt from the statutory scheme, as specified in Health and Safety Code section 11056, by incorporation of the federal regulation, which leads ultimately to a list compiled by a federal administrator. If the chief law enforcement officer of this State, the California Attorney General, cannot locate or obtain a copy of this list, how can he in good faith argue that the average lay man has notice of what is prohibited by virtue of it?
IV.
THE TRIAL COURT MADE NUMEROUS INSTRUCTIONAL ERRORS WHICH FATALLY INFECT THE JUDGMENT.
Appellant’s fourth contention is that several related instructional errors undermined appellant’s federal constitutional rights to due process and jury trial, and require reversal: (1) the trial court affirmatively misled the jury concerning the meaning of “controlled substance” by instructing that any steroid was such a substance; (2) the trial court failed to define the terms “anabolic” and “controlled substance;” and, (3) the trial court erroneously instructed the jury that both offenses were general intent crimes so that it was irrelevant whether appellant had knowledge that it was illegal to possess or transport the substances, and, (4) the trial court erred by failing to clarify for the jury, after its written inquiry, the type of criminal intent and knowledge which was required for conviction. (AOB 44-61.) Appellant argued that these errors, individually and cumulatively, deprived him of his Sixth Amendment right to jury trial and of his Fourteenth Amendment right to due process of law, and require reversal of the entire judgment. (Ibid.)
Respondent finds no fault with any of the instructions. (RB 24-29.) Analysis of the Attorney General’s response will proceed in accordance with the organization of issues established in the AOB.
A. Jury Instructions And Jury’s Inquiry.
Respondent offers no objection to appellant’s summary of the jury instructions and the jury’s inquiry during deliberations. (AOB 44-48; see RB 24-25.)
B. The Trial Court Erred By Instructing That Possession And Transportation Of Any Steroid Was Sufficient For Conviction.
Appellant contends that the trial court erred by instructing the jury that possession of any “steroid” sufficed for conviction under Health and Safety Code section 11377, and transportation of any “steroid” sufficed for purposes of conviction under section 11379. (RT 109-110; see AOB at p. 45.) Respondent contends that the trial court had no duty to instruct because the issue was one for the judge and not the jury, citing People v. Medina, supra.
The Medina decision is not persuasive authority for the proposition that a trial judge can decide whether a particular substance is “controlled” within the meaning of Health and Safety Code section 11056. The Medina case neither cites any authority for this claim and in turn, in the 28 years since it was decided, has never been cited by any other court as authority for it.
Furthermore, the Medina case predates more recent and authoritative decisions, from higher courts, which make it clear that whether a particular element of a crime has been established cannot be removed by a trial court from the province of jury determination. (See, e.g., Gaudin v. United States (1995) 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 [materiality is a jury question because it is an element of the charged offense]; People v. Hedgecock (1990) 51 Cal.3d 395, 409 [element of offense must be determined by jury]; (People v. Figueroa (1986) 41 Cal.3d 714, 725 [instruction which removes power of jury to determine whether element of offense has been proven violates Due Process Clause by relieving government of burden of proving each element of offense beyond a reasonable doubt].)
C. The Trial Court Erred By Failing To Define The Terms “Controlled Substance” And “Anabolic Steroid.”
Respondent also argues that the trial court had no duty to define the terms “controlled substance” and “anabolic steroid” because that element of the charged offenses was also one for the jury to decide. (RB 25.) Again, respondent cites only Medina for this claim. As explained above, Medina is not persuasive or binding authority on this Court, particularly in light of more recent decisions which make it clear that it is the province of the jury and not of the court to decide whether all elements of a crime have been established.
D. The Trial Court Erred By Instructing That Appellant Could Be Found Guilty Even If He Did Not Know That It Was Illegal To Possess Or Transport The Substances In His Possession.
Appellant’s third claim of instructional error is that the trial court erred when it instructed the jury with CALJIC No. 3.30, to the effect that possession and transportation of controlled substances was a “general intent” crime and that “[g]eneral criminal intent does not require an intent to violate the law. When a person intentionally does that which the law declares to be a crime, he is acting with general criminal intent, even though he may not know that his conduct is unlawful.” (RT 109; emphasis added; AOB 50-57.) Appellant contended that this instruction was erroneous because conviction of controlled substance offenses requires knowledge that the substances are controlled. (AOB 50-57.)
Respondent argues that there was no error because both offenses were “general intent” crimes, citing People v. Winston (1956) 46 Cal.2d 151, 158, and asserts that since they are “general intent” crimes there is no requirement that the accused know of their “controlled” (illegal) character. (RB 27-28.) Respondent is wrong.
The “knowledge” which is required is that the substance which is possessed or transported is illegal to possess or transport, i.e., that it is a “controlled” substance. This Court made that clear in People v. Rushing (1989) 209 Cal.App.3d 618, 621 (emphasis added):
The essential elements of the offense of unlawful possession of a controlled substance are actual or constructive possession in an amount sufficient to be used as a controlled substance with knowledge of its presence and its nature as a controlled substance.
Thus, directly contrary to respondent’s claim, it is immaterial whether appellant knew of the actual chemical composition of the substances in his possession. The knowledge required for conviction is the knowledge that the substances are “controlled,” i.e., are illegal. The very cases cited by respondent are in agreement: People v. Romero (1997) 55 Cal.App.4th 147, 153-156, citing and discussing respondent’s other cited cases, People v. Guy (1980) 107 Cal.App.3d 593, and People v. Garringer (1975) 48 Cal.App.3d 827.
By instructing the jury with unmodified CALJIC No. 3.30, the trial court rendered irrelevant appellant’s testimony that he lacked knowledge of the “controlled” nature of the substances, and thereby precluded the jury from acquitting appellant on the basis that he lacked such knowledge.
E. The Instructional Errors Individually And Cumulatively Deprived Appellant Of His Sixth Amendment Right To Jury Trial And Require Reversal Of The Judgment.
Appellant also argued that the instructional errors were individually and cumulatively prejudicial. (AOB 57-61.) Respondent makes no attempt to dispute appellant’s harmless error analysis, and offers none of its own.
V.
THE TRIAL COURT ERRED BY INSTRUCTING WITH CALJIC NO. 17.41.1 BECAUSE THAT INSTRUCTION IMPINGED UPON APPELLANT’S SIXTH AND FOURTEENTH AMENDMENT RIGHTS TO A UNANIMOUS JURY VERDICT AND TO JURY NULLIFICATION.
In his opening brief, appellant also argued that the giving of CALJIC No. 17.41.1 abridged his Sixth Amendment right to jury trial and his Fourteenth Amendment right to due process of law. (AOB 62-71.) Respondent does not present any unanticipated arguments or authorities, and in light of this Court’s recent (although not yet final) decision in People v. Engleman (2000) 77 Cal.App.4th 1297, appellant will submit the issue based on the arguments and authorities already contained in his opening brief.
VI.
THE JURY WAS MISDIRECTED BECAUSE THE CRIME OF TRANSPORTATION OF A CONTROLLED SUBSTANCE REQUIRES THAT THE TRANSPORTATION BE FOR A PURPOSE OTHER THAN MERE PERSONAL POSSESSION OR USE; IT REQUIRES A FURTHER SPECIFIC INTENT TO SELL, TRANSFER OR DISTRIBUTE THE SUBSTANCE.
In his opening brief, appellant argued that the crime of transportation should be construed to require that the purpose of the transportation be for a purpose other than personal use, but acknowledged that the California Supreme Court has already rejected a similar claim, in People v. Rogers (1971) 5 Cal.3d 129, 131, and that the Fourth Appellate District, Division Two, has held that Rogers is stare decisis even though decided under a different statutory scheme. (People v. Eastman (1993) 13 Cal.App.4th 668.)
Respondent cites only Rogers and Eastman and proffers no new insights or arguments in its brief. Appellant will therefore submit the issue based on the arguments and authorities already contained in his opening brief.
CONCLUSION
The judgment should be reversed.
Dated: March 10, 2000.
Respectfully submitted,
Robert Franklin Howell
Attorney for Appellant
John Doe
REPLY BRIEF FOOTNOTES [Footnote 22-27]
Footnote 22: The manual upon which respondent relies — which is the only medical or scientific authority upon which the government relies — is the sixth edition of Drug Evaluations, which was published in 1986. When it was in effect, the publication had been “issued every two to four years since 1971 and [was] intended to provide health professionals with … information on the clinical use of drugs. It “serve[d] a role quite different from” a medical encyclopedia, and was instead intended “to provide a distilled, more practical therapeutic message. (Journal Of The American Medical Association, May 1, 1987; Vol. 257, pp. 2363-2364.) That publication was never intended to serve as an authority on definitions of drugs or particular substances. “[t]he book [did] a remarkable job of covering a lot of information by focusing on general principles and key points rather than encyclopedic detail. It is not, however, free of error or bias … ” (Ibid.) In 1991 the seventh edition superseded the sixth, and appeared in an entirely new format which called for annual revisions. (Journal Of The American Medical Association, July 17, 1991; Vol. 266: p. 424.) Even the new, revised version of the publication was intended only to be a treatment guide for the general practitioner, and it was cautioned that a specialist “might need greater detail from a book devoted specifically to these drugs.” (Ibid.) Pharmacists and lawyers, in particular, were cautioned to use other, more authoritative publications. (Ibid.) In 1995 the Drug Evaluations publication was discontinued altogether.
Footnote 23: The sole authority cited by respondent for this novel proposition is People v. Medina (1972) 27 Cal.App.3d 473, 478. (RB 12.) As appellant explains post under Argument IV, the Medina case is not persuasive authority for this contention and appears to have been overruled sub silentio by later decisions of the California Supreme Court and the United States Supreme Court. In any event, the Medina case is not on point since appellant is not arguing that the wrong entity decided his case, but instead that there was no evidence to support a determination of guilt by any trier of fact.
Footnote 24: Respondent does not identify which particular book it claims that the Ninth Circuit should have reviewed, but presumably it is relying on the only authority which it cited — the out-of-date, superseded 6th edition of Drug Evaluations discussed ante in footnote 2.
Footnote 25: Health and Safety Code section 11056 contains specific exemptions from its definition of “anabolic steroid” those “steroid products listed in the ‘Table of Exempt Anabolic Steroid Products’ (Section 1308.34 of Title 21 of the Code of Federal Regulations) … ”
Footnote 26: A petition for review in Crusilla was filed on February 7, 2000, and according to Westlaw is still pending at the time this brief was filed on March 13, 2000. The decision is Crusilla was therefore not final at the time it was cited by the Attorney General, and was therefore not citable authority. (Rules 976(d) and 977(a), California Rules of Court.) Since the Attorney General has nonetheless improperly chosen to rely upon non-citable authority, however, and since the case may become citable (absent an order of depublication or a grant of review) before the decision in this case is reached, appellant feels constrained to address it.
Footnote 27: Respondent erroneously asserts that there is no conflict or inconsistency between the California and federal regulatory schemes because each uses the same set or “list” of exemptions. (RB 20.) This assertion is demonstrably false as any even cursory comparison of the provisions of California Health and Safety Code section 11056 and Title 21, United States Code, section 952, subdivisions (a) and (b) will readily disclose. The exemptions set forth in these federal provisions are not also found in Health and Safety Code sections 11377 and 11379, which operate more restrictively and thus affirmatively conflict with the federal statutory regulation of importation of the same substances.
June 3, 2000
Mr Stephen M. Kelly
Clerk, Court of Appeal
Fourth Appellate District, Division One
750 “B” Street, Suite 300
San Diego, California 92101
Re: People v. John Doe, D032950
Dear Mr. Kelly:
On May 19, 2000, the Court filed an order requesting a letter brief from appellant Doe directed to the question of “the impact, if any, of the inclusion of testosterone propinate in a list of anabolic steroids contained in Civil Code, section 1812.97, subdivision (d)(6) on the issues in this case (including claims of insufficiency of the evidence and instructional error).” This letter brief is respectfully submitted in accordance with the Court’s May 19, 2000, order.
I. The Civil Code Provisions Are Not Relevant.
The provisions of Civil Code, section 1812.97, have no relevance whatsoever to any of the issues in this case.
Appellant was not charged in this case with the violation of any duty or obligation established by Civil Code section 1812.97, which does not purport to establish any criminal offense. Section 1812.97 instead establishes, in subdivision (a), only a requirement that a specific warning statement must be contained in “[e]very contract” for the “lease or rental of athletic facilities for construction … ” Subdivision (b) of section 1812.97 establishes that the warning statement “required pursuant to subdivision (a) shall be conspicuously posted in all athletic facilities in this state which have locker rooms.” And subdivision (c) provides that “[a]s used in this section, ‘anabolic steroids’ include, but are not limited to” specified compounds, including (in part 6) “[t]estosterone propionate.” (Emphasis added.)
By carefully limiting the list of compounds to be considered “anabolic steroids” to the civil provisions of section 1812.97, the Legislature expressly and unambiguously intended to preclude the use of that definition to those specific provisions. Because the limitation on the definition is express and unambiguous, there is no reasonable basis to attempt the importation of that carefully limited Legislative definition into any other body of law. “Other statutes dealing with the same subject as the one being construed — commonly referred to as statutes in pari materia — comprise [a] form of extrinsic aid useful in deciding questions of interpretation. However, in line with the basic rule on the use of extrinsic aids, other statutes may not be resorted to if the statute is clear and unambiguous.” (2B Sutherland, Statutory Construction (5th ed. 1992) § 51.01, p. 117.) Appellant submits that an evident and logical corollary to this principle is that when a statute expressly and unambiguously limits the application of a definition which it creates to its own particular provisions, it may not be used in a manner contrary to the expressed Legislative intent by attempting to apply it to interpret unrelated provisions found in a different statute, particularly where that statute covers a different subject matter, clearly has different goals, and provides markedly different consequences.
By including the specific substance “testosterone propionate” in the definition of “anabolic steroid” in Civil Code section 1812.97, the Legislature demonstrated beyond cavil that it was aware of that specific substance and knew how to particularly describe it when it wished to do so. Civil Code section 1812.97 was most recently amended in 1989. (Stats. 1989, c. 807, § 2.) Health and Safety Code section 11056 has twice been amended since then. (Stats. 1991, c. 294, § 1; Stats. 1995, c. 59, § 1.) Thus, the omission of any mention or reference to testosterone propionate from the provisions of Health and Safety Code section 11056 evidences a Legislative intent to not include it in the penal definition of “controlled substances” which section 11056 establishes. (See In re Thanh Q. (1992) 2 Cal.App.4th 1386, 1389; People v. Armstrong (1992) 8 Cal.App.4th 1060, 1067.)
Civil Code section 1812.97 is simply not a part of the “system of law” of which Health and Safety Code section 11056 is a part. The conclusion that laws are “in pari materia” and therefore “should be construed together is most justified, and light from that source has the greatest probative force, in the case of statutes relating to the same subject matter that were passed at the same session of the legislature, especially if they were passed or approved or take effect on the same day.” (International Business Machines v. State Bd. of Equalization (1980) 26 Cal.3d 923, 932, quoting earlier authority.) In addition, statutes which are found in two different codes may be considered to be in pari materia where one statute makes an “express reference” to the other. (Unzueta v. Ocean View School District (1992) 6 Cal.App.4th 1689, 1695.) Finally, “[s]tatutes are considered to be in pari materia when they relate to the same person or thing, to the same class of persons [or] things, or have the same purpose of object. Characterization of the object or purpose of more important than characterization of subject matter in determining whether different statutes are closely enough related to justify interpreting one in light of the other.'” (Walker v. Superior Court (1988) 47 Cal.3d 112, 124, fn. 4, quoting 2A Sutherland, Statutory Construction (4th ed. 1984) § 51.03, p. 467.) The two statutes in issue cannot be considered to be in pari materia under any of these guidelines.
The two statutes in issue bear no common legislative history. Neither makes any express reference to the other. And each has a separate purpose. Health and Safety Code section 11056 is part of a statutory scheme the object of which is the criminalization of anti-social behavior. Civil Code section 1812.97, on the other hand, was enacted because of Legislative concern over reports of inappropriate steroid use by the public, but in particular because of its “special concern with the dangers of steroid use among junior and senior high school students, both athletes and nonathletes.” (Stats. 1989, c. 807, subd. (a).) Thus one statute defines and serves to punish criminal behavior, while the other is a preventative health measure designed not to punish those who use steroids but to benefit them by warning of dangers of steroid use.
A far more appropriate referent for an in pari materia analysis is found in the relationship between Health and Safety Code section 11056 and federal law, to which that section does make an express reference. Health and Safety Code section 11056 specifically excludes “anabolic steroid products listed in the ‘Table of Exempt Anabolic Steroid Products’ (Section 1308.34 of Title 21 of the Code of Federal Regulations), as exempt from the federal Controlled Substances Act (Section 801 of Title 21 of the United States Code)) … ”
Since the California statute (Health & Safety Code, § 11056) makes specific reference to the federal statutory scheme as defining the substances which are “controlled,” the federal provisions and case law furnish the body of law which must be properly considered to be in pari materia with section 11056, not the completely unrelated Civil Code statute. (See Building Material and Construction Teamsters’ Union v. Farrell (1986) 41 Cal.3d 651, 658 [federal “precedents which reflect the same interests” as similar state statutes “furnish reliable authority in construing” the state provisions]; Thrifty Corporation v. County of Los Angeles (1989) 210 Cal.App.3d 881, 884 [state legislation patterned on federal law deemed to perpetuate the federal definitions of terms in common].) And the federal courts have concluded that testosterone propionic is not an “anabolic steroid” for purposes of that Act. (United States v. Orduno-Aguilera (9th Cir. 1999) 183 F.3d 1138, 1139-1141.)
Conclusion
In summary, the “system of law” of which Health and Safety Code section 11056 is a part is not the civil contractual provisions of Civil Code section 1812.97 which are designed to serve public health interests, but the parallel penal provisions of section 801 of Title 21 of the United States Code, to which section 11056 makes express and specific reference. And under the system of law of which Health and Safety Code section 11056 is a part, testosterone propionate is not considered to be an “anabolic steroid” or “controlled substance” subject to criminal penalties.
Accordingly, appellant submits that the provisions of Civil Code section 1812.97 have no application whatsoever to any of the issues in his case.
Respectfully submitted,
Robert Franklin Howell
Attorney for Appellant
John Doe
RFH/wp
