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PEOPLE v. DENISON

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Court of Appeal, First District, Division 2, California.

The PEOPLE, Plaintiff and Respondent, v. David B. DENISON, Defendant and Appellant. IN RE: David Brian DENISON, On Habeas Corpus.

Nos. A077542, A082619.

Decided: November 10, 1998

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Laurence K. Sullivan, Supervising Deputy Attorney General, Rene A. Chacon, Deputy Attorney General, Gregory A. Ott, Deputy Attorney General, Counsel for Plaintiff/Respondent. Alan Siraco, Attorney at Law, Counsel for Defendant/Appellant/ Petitioner.

David Brian Denison appeals from his conviction for possession of cocaine and related drug paraphernalia.   He argues the police stop of the car he was driving to conduct a probation search of his passenger violated his right, under the Fourth Amendment of the United States Constitution, to be free from unreasonable searches and seizures.   He also argues his ensuing detention was unnecessarily prolonged and the seizure of a brown paper bag from his car, his subsequent arrest, and the search of his person and his residence were all improper, in violation of his Fourth Amendment rights.   We conclude the stop of appellant's car was permissible incident to the stop of his passenger, who was subject to warrantless searches as a condition of his probation.   Moreover, the brief detention of appellant, and the seizure of the bag were also proper in the circumstances of this case.1

However, appellant also contends for the first time in a petition for writ of habeas corpus that simple possession of Valium, upon which probable cause to arrest him was based, is not in fact a crime, and that his attorneys' failure to challenge probable cause to arrest on that ground constituted ineffective assistance of counsel at both the trial and appellate levels.   Thus, according to appellant, even if the stop, detention, and seizure were not improper, his conviction must be vacated.2  Because we find that appellant received ineffective assistance of trial counsel, we shall grant the petition for writ of habeas corpus and vacate the judgment.

PROCEDURAL BACKGROUND

On February 14, 1996, a complaint was filed charging appellant with possession of cocaine (Health & Saf.Code, § 11350, subd. (a));  possession of a hypodermic needle and/or syringe (former Bus. & Prof.Code, § 4149);  and possession of a smoking device used for smoking a controlled substance (Health & Saf.Code, § 11364).   The cocaine possession count alleged two probation ineligibility clauses (Health & Saf.Code, § 11370, subds. (a), (c);  Pen.Code, § 1203, subd. (e)(4)).3  After a preliminary hearing held on July 8 and July 11, 1996, the trial court denied appellant's motion, pursuant to section 1538.5, to suppress all evidence obtained from his car, person, and residence.4

An information mirroring the complaint was filed on July 22, 1996.   Appellant's motion to set aside the information pursuant to section 995 was denied on October 18, 1996.

On October 29, 1996, appellant pleaded guilty as charged and admitted the probation ineligibility allegations.   On January 3, 1997, the trial court struck one probation ineligibility clause, found the case to be an unusual one pursuant to section 1203, subdivision (e)(4), and California Rules of Court, rule 413(c)(2)(ii), suspended imposition of sentence, and placed appellant on probation for three years on condition he serve six months in county jail on count 1, with 30-day concurrent terms on counts 2 and 3.5 This timely appeal followed.

On May 8, 1998, appellant filed a petition for rehearing and a petition for writ of habeas corpus.   We granted the petition for rehearing on May 21, 1998 and, after concluding that the habeas petition stated a prima facie claim for relief, we issued an order to show cause, directing the filing of a return and a traverse.   We have determined, on the basis of the return and the traverse, that there are no disputed factual issues requiring an evidentiary hearing with respect to the ineffective assistance of counsel claim raised by appellant.

FACTUAL BACKGROUND 6

At about 5:40 p.m. on February 1, 1996, Marin County Sheriff's Department officer Kami Pfeffer went to the San Rafael home of William Magner to conduct a probation search of Magner, who was on probation and had a warrantless search and seizure condition.7  Pfeffer was accompanied by four other police officers and one probation officer.   After receiving no answer to their knocks on the front and rear doors, the officers were standing in the driveway talking when they saw a gold Ford Escort drive toward the house.   Pfeffer knew that such a car was “associated” with the residence and so informed the other officers.   As the vehicle slowed at the residence, probation officer Broom advised the other officers that Magner was in the car.   The car then accelerated and left the area of the residence.

Officer Hutchinson got into his patrol car and stopped the Ford Escort;  officers Pfeffer and Broom arrived seconds later.   Broom asked Magner, who was sitting in the front passenger seat, to step out of the car.   Appellant, who was in the driver's seat, remained in the car while Broom pat-searched Magner.8  Meanwhile, Pfeffer spoke with appellant in order to determine who owned the car.   Appellant told her that he had just recently purchased the car from someone named Bob Barnett.   A DMV check confirmed the car was registered to Bob Barnett.   After Magner had exited the car, Broom saw and retrieved a crumpled brown paper bag from the floor on the passenger side of the car.   Broom opened the bag and saw several Valium pills loose inside.9  In response to a question from Broom, both men denied that the bag was theirs.

Appellant and Magner were then arrested.10  During a search incident to appellant's arrest, Pfeffer found a syringe in one of appellant's jacket pockets and a small baggie of suspected cocaine in another.   Pfeffer then searched appellant's car and found a glass pipe used to smoke controlled substances under the front driver's side seat.

After the arrests, the officers returned to the residence and conducted a “protective sweep” of the house to ensure, for officer safety, that no one was inside.   While doing so, the officers found several syringes, another pipe, and other drug paraphernalia in appellant's bedroom;  these items were visible from the entrance to the bedroom.

DISCUSSION

I. Issues Raised on Direct Appeal

 Appellant challenges the trial court's denial of his motion to suppress on several grounds.   In reviewing the reasonableness of a warrantless search and seizure, such as occurred here, we are bound by the trial court's factual findings as long as they are supported by substantial evidence.  (People v. Stoffle (1991) 1 Cal.App.4th 1671, 1677, 3 Cal.Rptr.2d 257.)   However, we independently determine whether, based on those factual findings, the search and seizure were reasonable.  (Ibid.)

A.

 Appellant first contends the officers' stop of his car to initiate a probation search of Magner violated appellant's constitutional right to be free from unreasonable searches and seizures.

 Under California law, reasonable cause is not required before officers may invoke a probation search and seizure condition, and a search pursuant to a probation search condition without reasonable cause is permissible so long as the decision to search is not arbitrary or intended to harass.  (People v. Bravo (1987) 43 Cal.3d 600, 609, 238 Cal.Rptr. 282, 738 P.2d 336.)   Here, the evidence supports the trial court's finding that the officers harbored no impermissible motives in stopping appellant's car.   Appellant does not argue that the officers were attempting to harass Magner or were using the probation search as a pretext for searching appellant or his car.  (See People v. Bravo, supra, 43 Cal.3d at p. 609, 238 Cal.Rptr. 282, 738 P.2d 336.)   Rather, the officers were simply trying to effect a search of Magner pursuant to the terms of his probation.

Most courts agree that a stop of a vehicle includes a stop of all of its occupants.  (See People v. Bell (1996) 43 Cal.App.4th 754, 761-764, 51 Cal.Rptr.2d 115 [citing cases].)   While acknowledging that Magner had relinquished his Fourth Amendment rights as a condition of his probation, appellant contends that his own Fourth Amendment rights precluded the stop because the officer had no reasonable suspicion that either he or Magner was involved in criminal activity.  (See Terry v. Ohio (1968) 392 U.S. 1, 19, 88 S.Ct. 1868, 20 L.Ed.2d 889.) 11

We have found no cases addressing the precise question presented here, although several cases have addressed relevant issues to the one before us in this case.   First, in United States v. Hensley (1985) 469 U.S. 221, 224, 105 S.Ct. 675, 83 L.Ed.2d 604, police stopped a car in reliance on information that the driver was the subject of a “wanted flyer” before confirming whether an arrest warrant had been issued.   On approaching the vehicle, an officer recognized the passenger as a convicted felon and saw the butt of a revolver protruding from underneath the passenger's seat.  (Ibid.) The passenger was arrested and, following a search of the car in which additional guns were found, the driver also was arrested.  (Id. at pp. 224-225, 105 S.Ct. 675.)   The United States Supreme Court held that such a stop was justified even though it was a stop to investigate an already completed crime, which “does not necessarily promote the interest of crime prevention as directly as a stop to investigate suspected ongoing criminal activity.”  (Id. at pp. 228, 232, 105 S.Ct. 675.)

In determining the limits on stops to investigate past criminal activity, the court applied a test, “grounded in the standard of reasonableness embodied in the Fourth Amendment, [which] balances the nature and quality of the intrusion on personal security against the importance of the governmental interests alleged to justify the intrusion.”  (United States v. Hensley, supra, 469 U.S. at p. 228, 105 S.Ct. 675.)   The court then discussed the importance of the governmental interest in investigating past crimes:  “ [W]here police have been unable to locate a person suspected of involvement in a past crime, the ability to briefly stop that person, ask questions, or check identification in the absence of probable cause promotes the strong government interest in solving crimes and bringing offenders to justice.   Restraining police action until after probable cause is obtained would not only hinder the investigation, but might also enable the suspect to flee in the interim and to remain at large.”  (Id. at p. 229, 105 S.Ct. 675.)

In In re William J. (1985) 171 Cal.App.3d 72, 217 Cal.Rptr. 163, a police officer stopped the car the defendant was driving because there was an outstanding arrest warrant for the passenger.   When the stop revealed the defendant was in possession of a billy club, the officer arrested him as well.  (Id. at p. 75, 217 Cal.Rptr. 163.)   On appeal, the defendant argued that the stop was unlawful because the officer had no reasonable suspicion that he was involved in criminal activity.   The defendant asserted that Hensley allows an investigatory stop only if there is a reasonable suspicion that the person driving was involved in a completed felony.   He argued that since the police only had reason to suspect the passenger, he-the driver-should not have been stopped.   The Court of Appeal disagreed:  “If we were to adopt such an untenable rule, then legions of criminals throughout the land could hire drivers, who are upstanding citizens with no past criminal involvement, to chauffeur them around our streets and highways in open, notorious view.   As smug passengers they could wave to the police who could only watch in frustration as they passed by.   A momentary stop of an automobile by police to investigate a passenger reasonably believed to be involved in a past crime is proper.   It creates a minimal inconvenience to the driver of that automobile, when balanced against the government's interest in apprehending criminals.”   (Id. at p. 77, 217 Cal.Rptr. 163.)

Finally, in United States v. Pagel (7th Cir.1988) 854 F.2d 267, 268-269, officers executed a parole search of a parolee's motel room.   During the search, which occurred in the presence of the parolee, one of the officers went outside to look for the parolee's car.  (Id. at p. 269.)   The officer observed the defendant driving the parolee's car past the motel and, after stopping the car, officers searched in and near it, finding drug paraphernalia and cocaine.  (Id. at p. 270.)   The appeals court rejected the defendant's argument that the authority to conduct a parole search of the car did not give the officer the right to stop the car while he was driving it.   The court explained:  “The target of the stop and search was [the parolee's] property, not [defendant] Pagel, and the search of the car by [officer] Lane was lawful under the applicable Wisconsin regulations.   It was, of course, necessary to stop the car before Lane could search it, but the stop itself did not violate Pagel's Fourth Amendment rights.   That Pagel happened to be driving the car at the time [officer] Endres executed the stop to enable Lane to search it cannot render an otherwise legal stop and search illegal.   Indeed, under Pagel's reasoning, any time a third person not the target of a lawful search pursuant either to a warrant or a valid regulation such as Wisconsin's happened to be in the residence or car that was the target of the search, the search would be rendered illegal.   Nonsense.”  (Id. at p. 271.)

Hensley and In re William J. stand for the proposition that investigative stops of vehicles may be justified even when there is no suspicion of present or ongoing criminal activity, and that, in determining the propriety of a stop, it is necessary to balance the security and privacy interests of the individual against the government interests at stake.   (United States v. Hensley, supra, 469 U.S. at p. 228, 105 S.Ct. 675;  In re William J., supra, 171 Cal.App.3d at pp. 76-77, 217 Cal.Rptr. 163.)   United States v. Pagel instructs that the existence of a probation search condition justifies the stop of a probationer's vehicle, even if there is no independent justification for stopping the driver.  (854 F.2d at p. 271.)  In re William J. stands for the additional proposition that if a stop is permissible as to a passenger in a car, it is also permissible as to the driver, the rationale being that the government's interest in preventing criminals from insulating themselves from capture by being perpetual passengers far outweighs the minimal inconvenience to the car's driver.  (171 Cal.App.3d at p. 77, 217 Cal.Rptr. 163;  see also People v. Bell, supra, 43 Cal.App.4th at p. 761, 51 Cal.Rptr.2d 115;  People v. Williams (1995) 33 Cal.App.4th 467, 476-477, 39 Cal.Rptr.2d 358.)

The similar, but not identical, question we face is:  Can probationers with a search condition insulate themselves from probation searches by being a passenger in the vehicle of another?   While we do not attempt to answer this question as to every such case, we do find that the reasoning of Hensley, William J., and Pagel supports the conclusion that the stop of appellant's car to effect a search of Magner was justified in the circumstances of the present case.

 Probation search conditions further the important government interests of deterring “ ‘further offenses by the probationer and [of ascertaining] whether he is complying with the terms of his probation.’ ”   (People v. Bravo, supra, 43 Cal.3d at p. 610, 238 Cal.Rptr. 282, 738 P.2d 336, quoting People v. Mason (1971) 5 Cal.3d 759, 763, 97 Cal.Rptr. 302, 488 P.2d 630;  see also People v. Constancio (1974) 42 Cal.App.3d 533, 540, 116 Cal.Rptr. 910 [“The [probation search] condition is obviously designed to minimize the risk to the public safety inherent in the conditional release of a convicted offender.”].) In addition, although appellant is correct that those who merely associate with probationers retain their right to be free from unreasonable searches and seizures, it is also true that the privacy interests of one who owns or controls items or areas jointly with a probationer “ ‘must be to some extent restricted in the public interest.’ ”   (people v. boyd (1990) 224 cal.app.3d 736, 749, 274 cal.rptr. 100, citation omitted.)   Although this lessened expectation of privacy is most often applied to individuals living with probationers, that is not the only circumstance in which a non-probationer's privacy interests may be restricted.  (See, e.g., People v. Boyd, supra, 224 Cal.App.3d at p. 749, 274 Cal.Rptr. 100 [finding that defendant who had spent night with one parolee in another parolee's trailer consequently had lessened expectation of privacy].)

Here, not only was appellant transporting Magner in his car, but an officer recognized appellant's car as “associated” with Magner's residence.   Moreover, appellant's actions upon seeing the officers at the house are consistent with an effort to avoid contact with them.12  We therefore conclude that the minimal inconvenience to appellant of a brief stop of his car was outweighed in this case by the strong government interest in effecting a probation search of Magner.   To decide otherwise would enable a person in Magner's position to flout an agreed-upon probation search condition, and thus to effectively frustrate the substantial government interest involved.

B.

 Having found the stop permissible, we must now decide whether, nonetheless, appellant's detention was unnecessarily prolonged in violation of his Fourth Amendment rights.   As a preliminary matter, we disagree with respondent's assertion that appellant waived this issue by failing to raise it before the judge hearing his section 1538.5 motion.13  (See People v. Auer (1991) 1 Cal.App.4th 1664, 1670, 2 Cal.Rptr.2d 823 [prohibiting defendant from raising an issue on appeal since “the People were not placed on notice of the necessity to present evidence refuting the theory defendant [sought] to raise․”].)  We find that the facts and legal principles applicable to the issue of appellant's detention are not substantially different from those raised pursuant to the motion to suppress.   Thus, because our review of this issue will work no injustice to respondent, we find that the issue is not waived.

Appellant argues that a non-probationer's right to be free from unnecessary intrusion could be respected if the officer executing the search condition were to detain him or her no longer than necessary to “(1) remove the probationer from the car, and (2) inquire as to whether he or she has any belongings in the car.”   In the present case, the evidence shows that after the car was stopped, the officers focused on removing Magner from the car in order to execute the probation search.   Their only interest in appellant at that point was in determining whether he (as opposed to Magner) owned the car.   This brief detention pursuant to the legitimate stop of Magner did not violate appellant's Fourth Amendment rights.  (Cf. United States v. Hensley, supra, 469 U.S. at p. 228, 105 S.Ct. 675;  In re William J., supra, 171 Cal.App.3d at pp. 76-77, 217 Cal.Rptr. 163.)   Furthermore, it was not until officer Broom seized the paper bag and found Valium inside-which we conclude was permissible (see section III., infra)-that appellant was arrested.   Appellant does not dispute that the contents of the bag gave the police probable cause to arrest him.   Accordingly, we reject appellant's challenge to his detention.

C.

 Appellant's next contention is that officer Broom's seizure of the brown paper bag violated his constitutional right to be free from unreasonable searches and seizures.

Magner's probation search condition included the right to search and seize “any ․ property under his[ ] control at any time․”  Thus, the critical question is whether Broom reasonably suspected the bag was controlled by Magner.   If so, it was within the scope of the probation search.  (See People v. Boyd, supra, 224 Cal.App.3d at p. 745, 274 Cal.Rptr. 100.)   The evidence at the preliminary hearing showed the paper bag was on the floor of the front passenger side of the car near Magner's feet.   The trial court found that this alone was sufficient to support Broom's seizure of the bag pursuant to the probation search.

Appellant argues the evidence does not support a finding that the bag was possessed or controlled by Magner rather than appellant.   Although there was nothing to show the bag belonged to Magner, the issue is whether he had control over the bag regardless of whether appellant also had control over it, or even owned it.   As the Court of Appeal explained in People v. Boyd, supra, 224 Cal.App.3d at p. 749, 274 Cal.Rptr. 100:  “Even if the nonparolee roommate's claim of ownership sounds reasonable, reasonable suspicion may be predicated on the parolee's possession or control of the object.”  (See also People v. Palmquist (1981) 123 Cal.App.3d 1, 12-13, 176 Cal.Rptr. 173.) 14

 Appellant cites a Fifth District case, People v. Montoya (1981) 114 Cal.App.3d 556, 562, 170 Cal.Rptr. 624, for the proposition that if there is “but a 50-50 chance” that an item belongs to a person subject to warrantless search pursuant to a parole or probation condition, the police are under a duty to inquire as to who owns the item before seizing or searching it.   Montoya 's “50-50” rule has been criticized, however, in several subsequent cases, including two cases from the Fifth District.   In People v. Boyd, supra, 224 Cal.App.3d at p. 749, 274 Cal.Rptr. 100, the Fifth District “reject [ed] a mechanical application of the Montoya rule to every parole search [,]” finding that “[s]uch a rigid rule would unnecessarily bind the officer to the answer given, regardless of its veracity.”  (See also People v. Britton (1984) 156 Cal.App.3d 689, 701, 202 Cal.Rptr. 882 [Fifth District case, finding “[a]n officer could hardly expect a parolee would claim ownership of an item which he knew contained contraband”];  People v. Palmquist, supra, 123 Cal.App.3d 1, 12, 176 Cal.Rptr. 173 [finding Montoya 's reasoning “less than persuasive”].)   We agree with the Boyd court that the better rule is that “[t]he officer must reasonably suspect that the object is owned, controlled or possessed by the parolee [or probationer] for the search to be valid.   Depending upon the facts involved, there may be instances where an officer's failure to inquire, coupled with all of the other relevant facts, would render the suspicion unreasonable and the search invalid.”  (People v. Boyd, supra, 224 Cal.App.3d at p. 749, 274 Cal.Rptr. 100, fn. omitted.)

In the present case, inquiry as to ownership of the bag was not required both because the evidence regarding the bag's location created a reasonable suspicion that the bag was under Magner's control, and also because of the unlikelihood that such an inquiry would have resulted in a truthful answer.15  (See People v. Tidalgo (1981) 123 Cal.App.3d 301, 306, 176 Cal.Rptr. 463 [“[W]here police officers do not know who owns or possesses a residence or item and such information can be easily ascertained, it is incumbent upon them to attempt to ascertain ownership in order to protect the privacy interest of both probationer and nonprobationer.”], emphasis added.)

Because we conclude that, in the particular circumstances of this case, officer Broom reasonably suspected that Magner had control-whether joint or not-over the brown paper bag, appellant's claim must fail.  (See People v. Boyd, supra, 224 Cal.App.3d at p. 745, 274 Cal.Rptr. 100.) 16

D.

Appellant's final contentions are that his arrest and the search of his person and his residence violated his Fourth Amendment rights, and that the additional items seized were the “fruit of the poisonous tree” (Wong Sun v. United States (1963) 371 U.S. 471, 488, 83 S.Ct. 407), that is, their discovery resulted from the illegal search of appellant's car in which the Valium was discovered.   We need not reach these two contentions because we conclude, as discussed in section II., infra, that trial counsel was ineffective in failing to argue that there was no probable cause to arrest appellant based on the simple possession of Valium, since such possession is not a crime in this state, and that the subsequent search was improper on that basis.

II. Issues Raised in the Petition for Writ of Habeas Corpus

Having determined that the stop of appellant's 17 car, and the ensuing detention and seizure were proper, we must now address appellant's contention in his habeas petition that, nevertheless, his trial and appellate attorneys' failure to argue that mere possession of Valium is not a crime deprived him of effective assistance of counsel guaranteed by the United States and California Constitutions, requiring that the judgment be vacated.

 “To establish ineffective assistance of counsel, a petitioner must demonstrate that (1) counsel's representation was deficient in falling below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient representation subjected the petitioner to prejudice, i.e., there is a reasonable probability that, but for counsel's failings, the result would have been more favorable to the petitioner.  (Strickland v. Washington (1984) 466 U.S. 668, 687 [104 S.Ct. 2052, 80 L.Ed.2d 674];  People v. Mitcham (1992) 1 Cal.4th 1027, 1057-1058 [5 Cal.Rptr.2d 230, 824 P.2d 1277].)  ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’  (Strickland, supra, 466 U.S. at p. 694 [104 S.Ct. 2052].)”  (In re Wilson (1992) 3 Cal.4th 945, 950, 13 Cal.Rptr.2d 269, 838 P.2d 1222.)   In addition, counsel's failure to properly litigate a meritorious suppression motion may constitute ineffective assistance, as may a demonstrated failure to investigate all defenses of fact and law pertinent to the case.  (People v. Ledesma (1987) 43 Cal.3d 171, 222, 227, 233 Cal.Rptr. 404, 729 P.2d 839.)

Here, appellant claims, in particular, that both attorneys failed to raise the issue that petitioner's arrest, based on his possession of the Valium, lacked probable cause due to their failure to research the law pertinent to the case, and that absent their inadequate representation a more favorable result would have been reasonably likely.

A.

 Respondent makes several preliminary arguments regarding why we should not consider this petition for writ of habeas corpus, first contending that appellant's ineffective assistance of trial counsel claim has been waived because it could have been brought on direct appeal.   Respondent acknowledges that such claims “are often more appropriately litigated in a habeas corpus proceeding” (People v. Mendoza Tello (1997) 15 Cal.4th 264, 267, 62 Cal.Rptr.2d 437, 933 P.2d 1134) since they often require inquiry into matters outside the normal record on appeal.  (In re Harris (1993) 5 Cal.4th 813, 828, fn. 7, 21 Cal.Rptr.2d 373, 855 P.2d 391.) In this case, however, according to respondent, appellant does not rely on evidence outside the normal record on appeal, and the issue should have been raised on direct appeal.  (See In re Harris, supra, 5 Cal.4th at pp. 825, fn. 3, 829, 21 Cal.Rptr.2d 373, 855 P.2d 391.)   We disagree.   Appellant has submitted two declarations by appellate counsel as well as declarations by two attorneys experienced in criminal law in support of his claim.   The need for this type of supporting evidence, which is not part of the record on direct appeal, is precisely why a claim such as this one is appropriately brought in a petition for habeas corpus.  (See In re Harris, supra, 5 Cal.4th at p. 828, fn. 7, 21 Cal.Rptr.2d 373, 855 P.2d 391.) 18

Respondent further contends that this petition should have been brought in the trial court because the trial court is better situated to receive evidence pertaining to the tactical reasons for trial counsel's omissions and to conduct an evidentiary hearing, if necessary, to determine whether there is evidence to support a finding of probable cause to arrest appellant for possession of Valium for sale.   However, an evidentiary hearing is not warranted because we conclude, on the record before us, that (1) trial counsel's failure to raise the legality of simple possession of Valium was not reasonable in the circumstances, and (2) the evidence in the record does not support an arrest for possession of Valium for sale, and it would not be appropriate to introduce new evidence on that question in the context of this proceeding.  (See In re Wilson, supra, 3 Cal.4th at p. 958, 13 Cal.Rptr.2d 269, 838 P.2d 1222;  People v. Ledesma, supra, 43 Cal.3d at pp. 226-227, 233 Cal.Rptr. 404, 729 P.2d 839;  see also sections III., IV., infra.)

Finally, respondent contends that appellate counsel was not ineffective for failing to challenge the legality of petitioner's arrest on direct appeal because trial counsel had waived such a contention by failing to move to suppress on that ground in the trial court.   We need not decide whether or not appellate counsel's failure to raise the issue on direct appeal constituted ineffective assistance since any such inadequacy was rectified by the filing of the petition for rehearing and the present habeas petition.   Moreover, to the extent the question of the legality of petitioner's arrest was waived by trial counsel's failure to raise it in the trial court, petitioner's claim of ineffective assistance of trial counsel is supported thereby.

Having rejected all of respondent's preliminary contentions, we now turn to the merits of the habeas petition.

B.

 To determine whether counsel's representation was deficient, we first must ascertain whether, as appellant contends, simple possession of Valium without a prescription is not a crime.

The controlled substances schedules in the Health and Safety Code subclassify the substances listed therein according to their behavior in the body (e.g., opiates, stimulants, depressants, narcotics, etc.).  (Health & Saf.Code, §§ 11054-11058.)   Valium, the brand name for a depressant called Diazepam, is a schedule IV depressant.  (Health & Saf.Code, § 11057, subd. (d)(8).)

Simple possession of non-narcotic schedule IV controlled substances is covered by Health and Safety Code section 11377, which provides in relevant part:  “(a) ․ [E]very person who possesses any controlled substance which is (1) classified in Schedule III, IV, or V, and which is not a narcotic drug ․, unless upon the prescription of a physician ․ shall be punished by imprisonment in the county jail for a period of not more than one year or the state prison.”

While it would therefore appear that simple possession of Valium is a crime, the specific provisions of Health and Safety Code section 11375, which was enacted in 1984, at the same time Valium was added to schedule IV, belie such an assumption.  (See People v. Craft (1986) 41 Cal.3d 554, 560, 224 Cal.Rptr. 626, 715 P.2d 585 [“ ‘[T]he various parts of a statutory enactment must be harmonized by considering the particular clause or section in the context of the statutory framework as a whole.’  [Citation.].”].) Health and Safety Code section 11375 provides in relevant part:  “(a) As to the substances specified in subdivision (c), this section, and not Sections 11377, 11378, 11379, and 11380, shall apply. [¶] (b) Every person who possesses for sale, or who sells, any substance specified in subdivision (c) shall be punished by imprisonment in the county jail for a period of not more than one year or state prison. [¶] (c) This section shall apply to any material, compound, mixture, or preparation containing any of the following substances:  [¶] (4) Diazepam.”   Accordingly, since Health and Safety Code section 11375 specifies that only possession of Valium for sale or its actual sale is a punishable offense, it follows that simple possession of Valium is not a crime.19

The only case we have found involving simple possession of Valium assumes that such possession is a crime pursuant to Health and Safety Code section 11377.  (People v. Spann (1986) 187 Cal.App.3d 400, 232 Cal.Rptr. 31.) 20  That case, however, is not helpful to our analysis because this assumption was not there at issue.   The only relevant discussion of this question we have found is contained in 2 Witkin & Epstein, Cal.Criminal Law (2d ed.1988) section 999(2), page 1128, in which the authors state, in the section on “Simple Possession”:  “Health & Saf.C. 11377 prohibits unlawful possession of those substances formerly classified as restricted dangerous drugs, except for those drugs specified in Health & Saf.C. 11375.”   This statement clearly supports our conclusion that, under section 11375, simple possession of Valium is not a crime.21

In addition, the legislative history of Health and Safety Code section 11375 demonstrates that the Legislature intended to criminalize only possession for sale and sale of Valium.22  Assembly Bill 3876, which, among other things, created the current version of Health and Safety Code section 11375, was intended to simplify and clarify state laws pertaining to controlled substances by making state schedules consistent with federal schedules.   In addition, 20 controlled substances, including Valium, which were regulated by federal law but which were not included on state schedules, were added to the state schedules, providing “state penalties that are comparable to the penalties for comparable substances.” 23

Although the initial version of AB 3876 apparently would have criminalized simple possession of Valium, in all later discussions of the penalties under AB 3876, simple possession of Valium, unlike possession for sale or sale, was not made an offense.   For example, a report on the bill, as amended on April 15, 1984, included a chart showing that while Valium would be added to the California Schedule IV, and while possession for sale or sale would be punishable by a county jail or prison sentence, simple possession of Valium and other sedatives would not be criminalized.   Thus, the legislative history supports our conclusion that the Legislature did not intend to criminalize simple possession of Valium when it enacted Health and Safety Code section 11375 and added Valium to the list of Schedule IV drugs.24

 Finally, we keep in mind that, even were there any ambiguity regarding the meaning of Health and Safety Code section 11375, “ ‘ “[the] defendant is entitled to the benefit of every reasonable doubt, whether it arise out of a question of fact, or as to the true interpretation of words or the construction of language used in a statute.” ’  [Citations.]”  (People v. Craft, supra, 41 Cal.3d at p. 560, 224 Cal.Rptr. 626, 715 P.2d 585;  see also People v. Gardeley (1996) 14 Cal.4th 605, 622, 59 Cal.Rptr.2d 356, 927 P.2d 713.)

Consequently, the officers in this case erred when they arrested appellant for possession of Valium since that possession did not provide probable cause for the arrest.

C.

Respondent claims that, even if simple possession of Valium under California law is not a crime, there are two other bases on which probable cause may be upheld.

1.

 Respondent first contends that even if simple possession of Valium is not prohibited under California law, it is proscribed by federal statute (21 U.S.C. § 844, subd. (a);  21 CFR § 1308.14, subds. (a), (c)(14)), and the police were therefore entitled to arrest appellant for simple possession of Valium under federal law.

 Appellant does not dispute that possession of Valium obtained without a doctor's “order” is a criminal offense under federal law.   He does argue, nonetheless, that respondent's federal law contention should not be considered because it is a new theory raised for the first time in these habeas proceedings.   Appellant is correct that, ordinarily, an arrest may not be justified by a new theory raised for the first time on review of a trial court's ruling on a suppression motion.  (See, e.g., Mestas v. Superior Court (1972) 7 Cal.3d 537, 542, 102 Cal.Rptr. 729, 498 P.2d 977;  People v. Superior Court (Simon) (1972) 7 Cal.3d 186, 198, 101 Cal.Rptr. 837, 496 P.2d 1205.)  “The obvious reason for that rule is to prevent ‘hunch’ arrests on the street, based on nothing more than confidence that a smart prosecutor will discover a legal basis in the courtroom.”  (Green v. Superior Court (1985) 40 Cal.3d 126, 137, 219 Cal.Rptr. 186, 707 P.2d 248, fn. omitted.)   However, there are numerous exceptions to this rule, such as “ ‘where there does not appear to be any further evidence that could have been introduced to defeat the theory in the trial court and therefore the question of application of the new ground to a given set of facts is a question of law.’  [Citations.]”  (People v. Watkins (1994) 26 Cal.App.4th 19, 31, 31 Cal.Rptr.2d 452;  see also Green v. Superior Court, supra, 40 Cal.3d at p. 137, 219 Cal.Rptr. 186, 707 P.2d 248.)

In the present case, the challenge in the trial court focused on the alleged unlawfulness of the initial stop, the subsequent detention, and the seizure of the paper bag containing the Valium.   There was no argument about the officers' probable cause-under either state or federal law-to arrest appellant for simple possession of Valium.25  Nor is there any evidence that the officers believed they had the authority to arrest appellant under federal law.  (See People v. Rodriguez (1997) 53 Cal.App.4th 1250, 1265.)   Nevertheless, there is no reason to believe appellant could have presented any further evidence suggesting the officers lacked probable cause to arrest him for possession of Valium in violation of federal law.   Thus, because the question is solely one of law, appellant cannot claim he was prejudiced by any lack of formal notice with respect to respondent's newly asserted theory.  (See Green v. Superior Court, supra, 40 Cal.3d at p. 138, 219 Cal.Rptr. 186, 707 P.2d 248.)

Now turning to the substance of respondent's new federal law theory, two California Courts of Appeal-both in the context of local enforcement of federal immigration laws-have concluded that “ ‘[t]he general rule is that local police are not precluded from enforcing federal statutes.   [Citations.]’ ”  (Gates v. Superior Court (1987) 193 Cal.App.3d 205, 215, 238 Cal.Rptr. 592, quoting Gonzales v. City of Peoria (9th Cir.1983) 722 F.2d 468, 474; 26  see also People v. Barajas (1978) 81 Cal.App.3d 999, 1004-1006, 147 Cal.Rptr. 195.)   In Barajas, the court further stated that “[t]he supremacy clause is a two-edged sword, and in the absence of a limitation, the states are bound by it to enforce violations of the federal immigration laws.   The statutory law of the United States is part of the law of each state just as if it were written into state statutory law.”  (People v. Barajas, supra, 81 Cal.App.3d at p. 1006, 147 Cal.Rptr. 195, italics in original.)

Although the broad statements in Gates and Barajas might seem at first blush to encompass the circumstances of this case, the factual and legal underpinnings of those two cases, as well as of the relevant cases from other jurisdictions, are inapplicable to the present situation in several ways.   First, there was no involvement by or cooperation with federal officers in this case;  nor were any federal charges brought against appellant.   Indeed, there was no mention whatsoever of federal law at the time of petitioner's arrest or in any of the trial court proceedings.  (See Gates v. Superior Court, supra, 193 Cal.App.3d 205, 238 Cal.Rptr. 592 [arrest by local officers for violation of federal immigration law];  People v. Barajas, supra, 81 Cal.App.3d 999, 147 Cal.Rptr. 195 [same];  cf. United States v. Andersen (10th Cir.1991) 940 F.2d 593 [where defendant arrested by members of narcotics “strike force” composed of local, state, and federal officers, prosecution had option to charge defendant under state or federal narcotics statutes].)

Furthermore, all of the relevant cases cited by the parties in which local police, acting alone, arrested defendants for federal offenses involved uniquely federal crimes.  (See Gates v. Superior Court, supra, 193 Cal.App.3d 205, 238 Cal.Rptr. 592 [immigration];  People v. Barajas, supra, 81 Cal.App.3d 999, 147 Cal.Rptr. 195 [immigration];  see also Gonzales v. City of Peoria, supra, 722 F.2d 468 [immigration];  Davida v. United States (10th Cir.1970) 422 F.2d 528 [counterfeiting];  Marsh v. United States (2d Cir.1928) 29 F.2d 172 [prohibition];  United States v. Bumbola (2d Cir.1928) 23 F.2d 696 [prohibition];  compare United States v. Andersen, supra, 940 F.2d 593.)   California, on the other hand, has an extensive statutory scheme governing the possession and sale of controlled substances.  (See California Uniform Controlled Substances Act, § 11000 et seq.)   Even as it modified its controlled substance laws to be more consistent with federal law, the California Legislature intentionally omitted Valium from its simple possession statute (see Health & Saf.Code, §§ 11375, 11377;  see also section II., supra), which demonstrates that our Legislature intended that local law enforcement officers not make arrests for simple possession of Valium in California.   In these circumstances, to permit respondent to claim probable cause to arrest based on federal law would undermine this legislative intent.

Therefore, after evaluating the merits of respondent's newly asserted federal law argument, we conclude that respondent may not now justify petitioner's arrest on the ground that the officers had probable cause to arrest appellant for unlawful possession of Valium under federal law.

2.

 Respondent further contends that even if the officers could not have lawfully arrested appellant for simple possession of Valium, there existed probable cause to arrest him based on his possession of Valium for sale, and the trial court's ruling contained an implicit finding of possession for sale.  (See Health & Saf.Code, § 11375, subds. (b), (c)(4).)   Although a trial court's factual findings in ruling on a motion to suppress normally are reviewed for substantial evidence, (see People v. Loewen (1983) 35 Cal.3d 117, 123, 196 Cal.Rptr. 846, 672 P.2d 436), here, the trial court made no factual findings on this question.   Therefore, independent review is appropriate.

The only evidence in the record relating to petitioner's possession of the Valium is the following:  “50 dosage units” of Valium were found loose in a paper bag on the floor of petitioner's car;  no prescription bottle for the Valium was found;  and, according to the officer who testified at the preliminary hearing, a Department of Justice chemist concluded that 50 dosage units constituted a “usable amount” of Valium.   There was no expert testimony that the Valium was possessed for sale.   Nor was there any indication that the arresting officers believed appellant possessed the Valium for sale.

 A finding of specific intent to sell is necessary before a finding of possession for sale can be made.  (People v. Ruiz (1975) 14 Cal.3d 163, 165, 120 Cal.Rptr. 872, 534 P.2d 712;  In re Christopher B. (1990) 219 Cal.App.3d 455, 466, 268 Cal.Rptr. 8).   Possession of a large amount of a particular drug, along with expert testimony that the drug was held for sale, may itself afford a reasonable inference of possession for sale.  (See, e.g., People v. Grant (1969) 1 Cal.App.3d 563, 570, 81 Cal.Rptr. 812 [expert's opinion that quality and quantity of six ounces of uncut heroin showed that it was held for sale adequately supported conviction of possession of heroin for sale];  People v. Allen (1967) 254 Cal.App.2d 597, 603, 62 Cal.Rptr. 235 [expert's opinion that amount and manner of storage of 100,000 Benzedrine pills found in defendant's truck showed pills were meant for sale rather than personal use was sufficient to show possession for sale].)

Here, however, neither the quantity of Valium, nor its manner of storage, nor any other evidence shows an intent to possess the Valium for sale.   Thus, there is simply nothing in the record from which a finding could be made that appellant had the specific intent to sell the Valium and this “state of the record precludes us from speculating on the issue.”  (People v. Ledesma, supra, 43 Cal.3d at p. 227, 233 Cal.Rptr. 404, 729 P.2d 839.)   This is particularly true in light of the fact that this justification was not raised first in the trial court.  (See Mestas v. Superior Court, supra, 7 Cal.3d at p. 542, 102 Cal.Rptr. 729, 498 P.2d 977;  People v. Superior Court (Simon), supra, 7 Cal.3d at pp. 198-199, 101 Cal.Rptr. 837, 496 P.2d 1205;  see also section III. A, supra.)   Accordingly, we cannot infer an implicit finding by the trial court that appellant possessed the Valium for sale.

D.

 Having found that petitioner's arrest for simple possession of Valium cannot be justified under either state or federal law, and that, on this record, we cannot say the officers had probable cause to arrest appellant for possession of Valium for sale, we must determine whether trial counsel had any legitimate tactical reason for failing to challenge petitioner's arrest.  (See Strickland v. Washington (1984) 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674;  People v. Mitcham, supra, 1 Cal.4th at pp. 1057-1058, 5 Cal.Rptr.2d 230, 824 P.2d 1277.)

We cannot conclude that trial counsel's failure to challenge probable cause for the arrest “was the result of a considered or informed tactical decision.”  (In re Wilson, supra, 3 Cal.4th at p. 955, 13 Cal.Rptr.2d 269, 838 P.2d 1222.)   Petitioner's appellate counsel states in his declaration accompanying the habeas petition that trial counsel told him he (trial counsel) failed to raise or research the legality of possession of Valium because he believed it was illegal, and that he had no tactical reason for the omission.   Based on trial counsel's averments, as set forth in appellate counsel's declarations;  the opinions of two attorneys experienced in criminal law;  and our own conclusion that simple possession of Valium plainly is not a crime and there exists on this record no other rationale for upholding the arrest, it is clear that trial counsel's failure to argue against probable cause for his arrest “was not based on an informed and considered tactical determination, but resulted instead from ignorance or an erroneous interpretation of [California statutory law].” 27  (In re Wilson, supra, 3 Cal.4th at p. 955, 13 Cal.Rptr.2d 269, 838 P.2d 1222.)   Accordingly, it also is clear that counsel's performance fell below the standard of reasonable competence expected of criminal defense attorneys.  (See Strickland v. Washington, supra, 466 U.S. at p. 687, 104 S.Ct. 2052, 80 L.Ed.2d 674;  People v. Mitcham, supra, 1 Cal.4th at pp. 1057-1058, 5 Cal.Rptr.2d 230, 824 P.2d 1277.)

With respect to prejudice, during the search of petitioner's person and home incident to his arrest, drugs and paraphernalia were found on which the charges against him were based.   Since that evidence was obtained as a direct result of an unlawful arrest, it was inadmissible as “fruit of the poisonous tree.”  (Wong Sun v. United States, supra, 371 U.S. 471, 484, 487-488, 83 S.Ct. 407, 9 L.Ed.2d 441;  People v. Edwards (1969) 71 Cal.2d 1096, 1105-1106, 80 Cal.Rptr. 633, 458 P.2d 713.)   Thus, had counsel successfully challenged his arrest, appellant could not have been convicted of any of the offenses to which he ultimately pleaded guilty.   Accordingly, a more favorable result would have been, at the very least, reasonably likely had counsel raised the issue in the trial court.28  (Strickland v. Washington, supra, 466 U.S. at p. 694, 104 S.Ct. 2052;  In re Wilson, supra, 3 Cal.4th at p. 950, 13 Cal.Rptr.2d 269, 838 P.2d 1222.)

Having determined that appellant has met his burden of establishing that trial counsel's deficient performance was prejudicial, we conclude that appellant was deprived of effective assistance of counsel guaranteed by the federal and state Constitutions.   Accordingly, appellant is entitled to the requested habeas corpus relief.  (In re Wilson, supra, 3 Cal.4th at p. 958, 13 Cal.Rptr.2d 269, 838 P.2d 1222.) 29

DISPOSITION

The petition for writ of habeas corpus is granted.   The judgment of conviction is vacated and appellant is remanded to the Superior Court of Marin County.   Upon finality, the clerk shall remit a certified copy of this opinion to the superior court for filing, and respondent shall serve another copy thereof on the prosecuting attorney in conformity with Penal Code section 1382, subdivision (a)(2).  (See In re Wilson, supra, 3 Cal.4th at p. 958, 13 Cal.Rptr.2d 269, 838 P.2d 1222.)

FOOTNOTES

1.   We need not address the contentions raised on direct appeal regarding the propriety of the arrest and search for the reasons discussed in section I., D., infra.

2.   In this case, we address the unusual situation in which a criminal defendant files a petition for writ of habeas corpus following the filing of an opinion on direct appeal affirming the judgment of conviction, alleging that his trial and appellate counsel rendered ineffective assistance and requesting that the judgment be vacated.

3.   All further statutory references are to the Penal Code unless otherwise indicated.

4.   The issues raised in the suppression motion, like those raised on direct appeal, involved the propriety of the officers' stop of petitioner's vehicle to conduct a probation search of his passenger.   Petitioner's challenges to his subsequent detention, the seizure of the paper bag, his arrest, and the search of his person and home were all based on the alleged unconstitutionality of the initial stop.   No question was ever raised-until the filing of a petition for rehearing and the petition for writ of habeas corpus-regarding whether petitioner's possession of Valium supplied the probable cause to arrest him.

5.   On March 6, 1997, appellant's probation was revoked and then reinstated on the same terms, with an additional 30 days in jail on count 1.

6.   These facts are taken from the preliminary hearing transcript, at which officer Kami Pfeffer was the sole witness.

7.   Specifically, this probation condition stated:  “Defendant shall submit to search and seizure of his/her person, vehicle, residence, or any other property under his/her control at any time day or night, by any probation officer or peace officer, with or without probable cause, with or without a warrant.”

8.   Although the officers did not know it at the time of the stop, appellant lived with Magner in the San Rafael home.

9.   As it turned out, the bag contained 50 dosage units of Valium.

10.   Appellant was never charged with possession of Valium;  its discovery merely formed the basis for his arrest and the subsequent search.

11.   In Terry v. Ohio,supra, 392 U.S. at p. 19, 88 S.Ct. 1868, the United States Supreme Court explained that the central inquiry in deciding what circumstances short of probable cause justify an investigative stop or detention is “the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security.”

12.   We observe that had appellant stopped at his home and, with Magner, exited the car (which appeared to be their plan until they spotted the officers), the stop of which he now complains would never have occurred.

13.   Although appellant briefly raised this issue during the argument on his section 995 motion in the superior court, “[u]pon review of a motion to set aside an information, this court disregards the superior court's ruling and directly examines that of the magistrate [or judge at the preliminary hearing].”  (People v. Eid (1994) 31 Cal.App.4th 114, 125, 36 Cal.Rptr.2d 835.)

14.   Appellant's reliance on numerous cases, most of which involve receipt of stolen property, to argue that “mere proximity or opportunity to possess is insufficient to establish control over an item” is misplaced.   (See, e.g., People v. Leib (1976) 16 Cal.3d 869, 129 Cal.Rptr. 433, 548 P.2d 1105;  People v. Martin (1973) 9 Cal.3d 687, 108 Cal.Rptr. 809, 511 P.2d 1161;  People v. Zyduck (1969) 270 Cal.App.2d 334, 75 Cal.Rptr. 616.)   These cases simply are not analogous to the issue we address here.

15.   Indeed, after the paper bag was seized, both Magner and appellant denied ownership of it.

16.   That most of the cases in which courts have found joint control of an item involve cohabitants of residences does not mean, as appellant suggests, that it is not possible for a passenger in a car to have joint control over an item found in the car.

17.   To be consistent, we shall refer to Mr. Denison as “appellant” rather than as “petitioner” in this section of the opinion as well.

18.   Respondent attempts to invalidate appellate counsel's initial declaration on the ground that appellate counsel's “hearsay” recitation of a conversation with trial counsel does not constitute viable evidence outside the record.   However, even if appellate counsel's recitation of his conversation with trial counsel is “not persuasive” evidence of ineffective assistance of counsel (see People v. Beagle (1972) 6 Cal.3d 441, 457, 99 Cal.Rptr. 313, 492 P.2d 1), inclusion of that paragraph in his declaration does not render inadmissible either his declaration or the other additional material submitted in support of the habeas petition.We also observe that in his declaration accompanying the habeas petition, appellate counsel states he only became aware of the legality of simple possession of Valium after the filing of our opinion in the direct appeal.   Hence, the contention raised in this petition could not have been raised earlier.

19.   Health and Safety Code section 11375 additionally mandates lesser penalties than would otherwise apply under Health and Safety Code sections 11378, 11379, and 11380 for the sale or possession for sale of the substances specified in Health and Safety Code section 11375, subdivision (c).

20.   The parties also cite a 1998 case in support of their position;  however, our Supreme Court has granted review in that case.   (See People v. Pate (1998) review granted July 8, 1998 (S069807).)

21.   Respondent attempts to read Health and Safety Code section 11375 as not precluding prosecution for simple possession, first asserting that “subdivision (a) of section 11375 refers to section 11377 solely to clarify that the possession for sale of certain controlled substances should be prosecuted only as such, notwithstanding such offenses also constitute simple possession.”   Alternatively, respondent offers the theory that the inclusion of Health and Safety Code section 11377 in the exclusivity clause of section 11375 was the result of “legislative oversight.”   Neither explanation is persuasive, particularly in light of the rule that “ ‘a statute should not be given a construction that results in rendering one of its provisions nugatory.’  [Citations.].” (People v. Craft,supra, 41 Cal.3d at p. 560, 224 Cal.Rptr. 626, 715 P.2d 585.)

22.   We have previously granted respondent's request to take judicial notice of the State Archives file for Statutes 1984, Chapter 1635 (AB 3876).   Our legislative history discussion relies on the material contained in that file.

23.   Respondent asserts that this statement in the legislative history shows that AB 3876 was meant to align California schedules and prosecution thereunder with federal law.   To the extent the statement is in fact referring to comparable substances under federal, rather than state, law, it expresses a general goal of the legislation, whereas there is specific evidence in the legislative history (as explained in the text, infra ) of an intent not to criminalize simple possession of Valium.

24.   We are unimpressed with the Attorney General's attempt, in a petition for rehearing, to argue that Business and Professions Code section 4060 (formerly section 4230) makes simple possession of Valium a crime in the circumstances of this case.   To suggest, as respondent does, that the clear implication of a provision in the Uniform Controlled Substances Act (Health & Saf. Code, § 11375)-that simple possession of certain controlled substances is not a crime-is wrong and that such possession is in fact made a crime, though with a lesser penalty than under Health and Safety Code section 11377, in the Pharmacy chapter of the Healing Arts division of the Business and Professions Code is too far-fetched.   First, Business and Professions Code section 4060 applies to pharmacists and those who deal with them.  (See People v. Doss (1992) 4 Cal.App.4th 1585, 1591, 6 Cal.Rptr.2d 590 [“The obvious purpose of Business and Professions Code section 4230 [predecessor to section 4060] is to authorize the possession for sale of certain controlled substances by licensed pharmacists, on pharmacy premises, to those holding valid prescriptions.   It does not confer blanket immunity on a pharmacist to deal drugs illegally from behind the counter or to possess them with that intent.”];  People v. Barben (1979) 88 Cal.App.3d 215, 219, 151 Cal.Rptr. 717 [Division 2 of the Business and Professions Code, entitled “Healing Arts,” “is divided into various chapters which individually regulate the licensing and conduct of different health care providers, such as physicians, dentists, nurses, etc.   Chapter 9 thereof is devoted to the regulation of the pharmacy profession.”].)   Second, to give Business and Professions Code section 4060 the construction urged by respondent would put it in fundamental conflict with Health and Safety Code section 11375.   Given the apparent purpose of Business and Professions Code section 4060, it is inconceivable that the Legislature intended that it modify Health and Safety Code section 11375.   Early cases under the predecessor statute (section 4230) involving the prosecution of persons who were not pharmacists does not change our conclusion because Health and Safety Code section 11375 did not exist at the time those cases were decided.  (See, e.g., People v. Mason (1969) 276 Cal.App.2d 386, 81 Cal.Rptr. 195;  People v. Cox (1968) 263 Cal.App.2d 176, 69 Cal.Rptr. 410;  People v. Scott (1964) 224 Cal.App.2d 146, 36 Cal.Rptr. 402.)

25.   This case thus differs from the typical situation, in which probable cause to arrest is challenged in the trial court and the prosecution asserts on appeal a new basis for finding probable cause.

26.   Gonzales v. City of Peoria, supra, 722 F.2d 468, 474, gleans the rule quoted in Gates from a series of United States Supreme Court cases that actually stand for a slightly different proposition:  that the Supreme Court, “in cases under the Fourth Amendment, has long recognized that the lawfulness of arrests for federal offenses is to be determined by reference to state law insofar as it is not violative of the Federal Constitution.”  (Ker v. California (1963) 374 U.S. 23, 37, 83 S.Ct. 1623, 10 L.Ed.2d 726;  see also Miller v. United States (1958) 357 U.S. 301, 305, 78 S.Ct. 1190, 2 L.Ed.2d 1332;  Johnson v. United States (1948) 333 U.S. 10, 15, 68 S.Ct. 367, 92 L.Ed. 436;  United States v. Di Re (1948) 332 U.S. 581, 589-590, 68 S.Ct. 222, 92 L.Ed. 210.)

27.   We are unpersuaded by respondent's argument that trial counsel's failure to challenge probable cause was a reasonable tactical decision because such a challenge might have led to a prosecution for possession of Valium for sale.   Had trial counsel been aware of the state of the law, he could have effectively argued in the suppression motion both that simple possession of Valium is not a crime in California and that the evidence presented at the preliminary hearing did not support a finding that appellant possessed the Valium with the intent to sell it.   Counsel's failure to make such an argument was not reasonable in the circumstances.

28.   Pursuant to Business and Professions Code section 6086.7, we are required to report our reversal of the judgment on the ground of ineffectiveness of counsel to the State Bar of California for investigation of the appropriateness of initiating disciplinary action against trial counsel.  (See In re Sixto (1989) 48 Cal.3d 1247, 1265, fn. 3, 259 Cal.Rptr. 491, 774 P.2d 164.)

29.   Respondent suggests remanding the matter to the trial court for an evidentiary hearing to determine whether there existed probable cause to believe the Valium was possessed for sale.   However, as we already indicated earlier in this opinion, having found that petitioner's right to effective assistance of counsel was violated, the proper procedure is to vacate the judgment.  (See In re Wilson,supra, 3 Cal.4th at p. 958, 13 Cal.Rptr.2d 269, 838 P.2d 1222.)   We reach no conclusion regarding the likely result on a new motion to suppress should the District Attorney choose to retry appellant, with probable cause to arrest based on petitioner's alleged possession of Valium for sale.

KLINE, P.J.

LAMBDEN and RUVOLO, JJ., concur.

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