PEOPLE v. SCHADE

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Court of Appeal, Sixth District, California.

The PEOPLE, Plaintiff and Respondent, v. Hugh I. SCHADE, Defendant and Appellant.

No. H009896.

Decided: June 15, 1994

Carlo Andreani, San Francisco (Under appointment by the Court of Appeal), for appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Sr. Asst. Atty. Gen., Stan M. Helfman and Michael E. Banister, Deputy Attys. Gen., for respondent.

Dr. Hugh Schade was charged with twenty-six counts of illegal prescription of a controlled substance.  (Health & Saf.Code, § 11153.) 1  He was also charged with one count of involuntary manslaughter after one of his patients committed suicide.  (Pen.Code, § 192, subd. (b).)  After a jury trial, Schade was convicted of involuntary manslaughter and thirteen counts of prescription of a controlled substance.

On appeal, Schade argues the trial court erred in (1) failing to sua sponte instruct the jury on the definition of the word “addict”;  (2) improperly instructing the jury under Health and Safety Code section 11153;  (3) failing to give a unanimity instruction;  and (4) failing to sua sponte instruct the jury that section 11153, subdivision (a)(2) was a specific intent offense.   Schade also contends there was insufficient evidence that his conduct was the proximate cause of his patient's death, thereby requiring that the involuntary manslaughter conviction be reversed.

We conclude the trial court erred in failing to define the word “addict” for the jury.   Schade's convictions for violating section 11153 must therefore be reversed.   We affirm Schade's conviction for involuntary manslaughter.

Facts and Procedural Background

A. Background

The facts pertinent to the issues on appeal are summarized below.

Rhonda Sorenson was a diversion investigator for the Federal Drug Enforcement Administration (DEA).   She monitored the purchase, maintenance, storage, distribution and sale of prescription drugs.

Sorenson noticed that Schade (hereafter appellant) had purchased in 1985 a large quantity of drugs.   Appellant purchased over 1,000 grams of Codeine and 40 grams of hydrocodone (also known as Vicodin or Anexia).   In Sorenson's experience, these were unusually large quantities.

According to Sorenson, the average doctor in northern California purchased 12 grams of Codeine in 1985.   Reports established that appellant was the number one purchaser of Codeine.   The second largest purchaser of Codeine in 1987 was the medical facility of the Santa Rita County Jail.

Appellant purchased 43 grams of hydrocodone as compared to the national average of .64 grams.   In 1987, appellant purchased 58,000 tablets of Tylenol with Codeine as compared to an average in 1986 of 2,217 tablets purchased by other doctors.

The DEA also monitored appellant's prescription practices.   Records at pharmacies and state offices indicated that appellant was prescribing only Schedule II drugs, such as Percodan and Percocet, which are more addictive than Schedule III drugs.

Although appellant stored and dispensed drugs at his two medical offices, he only registered one of them with the DEA.   He also stored drugs in his home.   The DEA regulations require doctors to register any location where drugs are stored or dispensed.   Sorenson had never encountered a doctor who stored drugs at home.

In 1987, the DEA obtained a warrant to conduct an audit of appellant.   After the audits were completed, significant shortages were discovered.   Although appellant claimed that he and his wife used Codeine regularly, such usage still did not account for all of the shortages.

Appellant provided Sorenson with health claim forms and patient records for some 47 patients.   Sorenson turned these over to the State Medical Board for review.

At the request of the DEA, Gerald McClellan, Senior Special Investigator with the State Medical Board, conducted an investigation into appellant's medical practices.   McClellan was qualified as an expert in the investigation of offenses involving prescription drugs.

After the DEA audits, McClellan prepared profiles of between 40 and 50 of appellant's patients.   These patients appeared to be receiving frequent large prescriptions over a long period of time.   In February 1988, McClellan turned over most of the patient profiles to three independent medical experts for review.   The experts were Dr. Frederick Meyers, Dr. Stanley Hanfling, and Dr. Steven Feinberg.

Dr. Frederick Meyers, Professor Emeritus of Pharmacology at the University of California, San Francisco, was one of the founders of the Haight Ashbury drug abuse clinic.   Dr. Meyers was qualified as an expert witness in medicine, standards of practice, and physical and psychological effects of drug abuse.

Dr. Stanley Hanfling, a general practitioner in San Mateo for approximately 30 years, was qualified by the court as an expert medical witness.

Dr. Steven Feinberg, Director Of Rehabilitation at Mills Peninsula Hospital in San Mateo and Burlingame, was qualified as an expert witness in medicine, chronic pain and rehabilitation.

On July 20, 1988, a search warrant was executed.   Forty-six original patient records were seized from appellant's offices in Los Gatos and San Jose.   After a newspaper article described the search, several patients contacted McClellan on their own accord.   One of the patients, Diana Cantore, was not named in the original warrant.   Her records were obtained pursuant to a subsequent warrant executed in November 1988.   All of the patients signed medical releases for their records.

On September 12, 1988, appellant was arrested.   An amended information charged him with twenty-six counts of illegal prescription of a controlled substance.  (Health & Saf.Code, § 11153.)   He was also charged with one count of involuntary manslaughter after one of his patients committed suicide by overdosing on narcotics.  (Pen.Code, § 192, subd. (b).)

B. Expert Witnesses

Dr. Meyers, Dr. Feinberg, and Dr. Hanfling were qualified as expert witnesses at trial.   Other physicians qualified as experts included Dr. Kevin Olden.   Olden was qualified as an expert in medicine, gastroenterology, psychiatry, and addiction to alcohol and drugs.   Dr. Kenneth Peters was qualified by the court as an expert in headache.   Dr. Jonathan Feinberg (no relation to Steven Feinberg) was qualified as an expert in alcohol and chemical dependency.   Dr. Otto Neubuerger was qualified as an expert.   He was a general practitioner and a member of a medical committee that produced a paper entitled “The Painful Dilemma.”   The article was based upon the notion that not everyone who takes narcotics develops a tolerance and becomes addicted.   Dr. Harvey Rose, a family practitioner, was qualified by the court as an expert witness.   Rose was a consultant to the committee that produced “The Painful Dilemma.”   Dr. Michael Margoles was qualified as an expert in orthopedics and chronic pain.   Dr. Lorne Eltherington was qualified as an expert witness in the treatment of chronic, nonmalignant pain.

C. Prescription Practices

At trial, there was testimony about twenty-six patients who had allegedly received illegal prescriptions from appellant.   Of the twenty-six patients, more than half were receiving large amounts of Codeine from appellant.   Approximately one-fourth of the patients were receiving large amounts of Percodan or Percocet, and another quarter were receiving large amounts of Valium or Darvon.

Although appellant's patients had a variety of ailments, a frequent complaint was chronic or migraine headaches.   Other ailments included neck pain, back pain, sinusitis, cough, and knee pain.   None of appellant's patients had cancer, or any other terminal illness.

Although we need not detail the testimony regarding each patient, for illustrative purposes we shall summarize the testimony relating to one of appellant's patients, Gary Gustafson (count two).

Gary Gustafson was appellant's patient from February 1982 through June 1987.   During 1986, Gustafson received 4,900 Tylenol/Codeine No. 4 pills (60 mg.) from appellant.   Gustafson was treated with Codeine and Elavil for chronic headache and depression.   He often received 100 Codeine pills at a time and was instructed to take 12–14 pills a day.   During the five-year period in which appellant treated Gustafson, Gustafson's complaints included headache, cold, bronchitis, pneumonitis, neck pain, hemorrhoids, sinusitis, allergic rhinitis, hypertension, hernia, situational anxiety, dizziness, chest pain, puncture wound, laceration, fractured rib, allergies and depression.

Dr. J. Feinberg testified that appellant's dispensing pattern during that five-year period was grossly excessive.   Appellant was aware that Gustafson was addicted to codeine.   Feinberg stated that appellant's medical practice was grossly negligent, served no legitimate medical purpose, and put the patient at risk.   According to Feinberg, there was no indication that appellant considered diagnostic possibilities, that he took medical or family histories, that he ordered x-rays or lab work, or that he referred the patient to other doctors.

Dr. Rose testified that Gustafson suffered from chronic headaches.   He stated that appellant was appropriately treating Gustafson for the legitimate medical purpose of headaches.   Rose stated that Gustafson was dependent on the medication to function but was not addicted because the medication was not causing him harm.   Dr. Rose had patients taking as much medication.   Dr. Rose testified that persons such as Gustafson were tough patients.   Rose said that Gustafson's average daily intake in 1987 of 16.4 codeine pills a day was not excessive.

Appellant testified that he supplied narcotics to Gustafson in good faith and with a legitimate medical purpose.

At trial, Dr. Meyers reviewed thirteen patient files.   He concluded, “Well, in looking at all of the material available, and looking at the duration of the behavior, and at the pattern of patients' behavior, and at the pattern of [appellant's] reaction, I think there is absolutely no question but that he was not performing an adequate good faith medical examination.   That his prescribing was not a good faith effort at treatment, but that his motivation was nominal, that he was consciously and deliberately misusing habituating drugs to tie these patients to his office to exploit their need for drugs, or either real or perceived to assure a regular income from office visits and the sale of the medication.  [¶]  I see no other explanation for the lack of any change, any progression in the treatment, for no reaction to changes in the patient, or clues from other doctors or pharmacists or family that he was mishandling the patients.”

D. Using Narcotics to Control Pain

There was an abundance of testimony about the propriety of prescribing narcotics for patients experiencing pain.   Dr. Meyers testified about the proper treatment of a pain patient with a legitimate medical complaint.   According to Dr. Meyers, proper treatment would include taking a history and conducting a hands-on physical examination.   The doctor should not simply rely upon the patient's statements about pain symptoms without actually conducting a physical examination.   The doctor should adequately document the history and examination for future reference.   Lab work, x-rays, blood tests, referrals and consultations with other doctors could also be required.

Dr. Meyers testified that pain patients' treatment should begin with a non-narcotic drug unless the patient has “crushing severe pain.”   A patient complaining of a headache would first be given a neurological exam, and have his or her blood pressure checked.   Only then would drugs be considered.

Dr. Hanfling had treated many patients for headache, neck pain, muscle strain, and pain from broken limbs.   He was very careful about prescribing pain pills.   When Dr. Hanfling felt the patient's condition warranted a narcotic, he would prescribe 10–15 pills with instructions to take 5 pills a day for a few days, and warn the patient about the side effects and danger of addiction.   Only with advanced cancer patients did Dr. Hanfling feel that narcotics were appropriate for chronic pain.   Dr. Hanfling would never prescribe as many as 100 pills at a time.   Dr. Hanfling said it was very rare for a patient to need narcotics for a chronic migraine headache.   If Dr. Hanfling suspected a patient was in chronic pain, he referred the patient to a specialist instead of administering narcotics.

Dr. Steven Feinberg testified as an expert in chronic pain.   In his experience, most chronic pain patients were not treated with narcotics.   Chronic pain patients who would benefit from narcotics should see specialists, go through rigorous psychological testing, and be monitored.   The standard of care for prescribing narcotics for a chronic pain patient is to have the patient see a pain specialist to see if there are other ways of treating the pain.   Dr. Feinberg was familiar with the article, “The Painful Dilemma.”   He worried that the article would “somehow give practitioners some comfort level in using long term narcotics for minor problems under the title of chronic pain.”

According to Dr. Olden, prescribing narcotics for chronic pain was acceptable if the underlying medical cause was incurable and life threatening, such as cancer.   Dr. Olden stated that “The Painful Dilemma” was a “troublesome document because it gives a number of messages which can be confused.”   The article was not endorsed by the American Medical Association or the American Society of Addiction Medicine.

Dr. Olden testified that narcotics are not appropriate for tension headaches.   Narcotics themselves can cause headaches.   Dr. Olden stated that “There is no role for the chronic administration of narcotics in migraine headache․”

Dr. Peters testified that the initial evaluation of a first time patient for chronic headache should include a complete history, a physical examination, and a neurological examination.   Such an evaluation may demonstrate the need for blood tests, lab tests and scans.

Dr. Jonathan Feinberg testified that narcotics might be appropriate for acute pain on a short-term basis but are not appropriate for chronic pain.   Dr. Feinberg acknowledged that there was some disagreement within the medical community over the use of narcotics for chronic pain.

Dr. Neubuerger discussed the article “The Painful Dilemma.”   He stated that the article addressed the problem of individuals consumed with “chronic intractable pain.”   According to Dr. Neubuerger, this was pain that lasts months and years and that cannot be relieved by usual methods of treatment.

Dr. Rose testified that he has prescribed narcotics to chronic pain patients with nonmalignant ailments.   According to Dr. Rose, the quality of life is the “bottom line” and the doctor should be able to prescribe narcotics when necessary to restore function in the patients' lives.

Dr. Rose testified that, in 1981, he was prosecuted for prescribing to known addicts, and although he was found guilty, the appeal was dismissed because the state lost part of the trial transcript.

Dr. Margoles testified that he has prescribed narcotics for some of his patients with chronic, nonmalignant pain.

Dr. Lorne Eltherington used different approaches in treating pain, including the use of narcotics.   He testified that chronic pain patients are difficult to treat.   Dr. Eltherington approved of the article entitled “The Painful Dilemma.”   He testified that there is too much “under treatment” of patients largely out of guilt at the risk of addicting the patient and being sanctioned.   Dr. Eltherington found “absolutely overwhelming” evidence that some patients with chronic, nonmalignant pain can be successfully treated with high doses of narcotics for long periods of time.

E. Addiction

There was much evidence about the meaning of addiction.   Dr. Meyers testified that the term addiction generated “a certain amount of confusion.”   He preferred the term “compulsive abuse.”   He believed a description of addiction should emphasize compulsive drug use and drug seeking behavior, combined with a high tendency to relapse after withdrawal sets in.

Dr. Hanfling defined addiction as “a state of drug use which produces a condition of tolerance meaning that the medication that initially worked doesn't work over prolonged period[s] requiring more medication for the same condition.  [¶] Plus when the medicine was withdrawn there are feelings that occur with something we call withdrawal which are very uncomfortable and unpleasant and such that many people who are in this state continue to take the medication to avoid the withdrawal situation.”

Dr. S. Feinberg testified that addiction “is a psychological dependence.”   “Addiction has to do with a craving for medication.  [¶] An illness unto itself which has nothing to do with the pain, even.   The patients just seek the medication for the sake of the medication alone.”

Dr. Olden's definition of addiction included the factors of (1) physical tolerance;  (2) withdrawal;  and (3) persistent drug seeking behavior, in which the patient tends to ignore the negative impact the drug is having on his or her life.

The American Medical Association defined addiction as “a chronic disorder characterized by the compulsive use of a substance resulting in physical, psychological, or social harm to the user and continued use despite the harm.   Psychological dependence which emphasizes the compulsive use of drugs is now often used interchangeably with the term addiction.”

Dr. J. Feinberg stated that addiction meant a person started to develop a tolerance for the drug, and the person “start[ed] exhibiting drug seeking behavior which really takes over their life in a way that is over and above the reason they started the medication in the first place and that if they stopped the drug abruptly they start having withdrawal.”

Dr. Neubuerger stated that people who become addicted develop self-destructive tendencies.

Dr. Rose described dependency as a condition where a person needs to continue taking a drug in order to prevent withdrawal and the recurrence of pain.   The term “psychological dependency” was the old term used to describe addiction and meant that the person craves medication for the “high” it gives them.   After time, the person no longer feels the “high” but must continue taking the medication to prevent withdrawal.   Dr. Rose stated that a person was an addict “when a person takes a substance, for whatever reasons, and continues to use that substance despite the adverse effect that substance has on his being physically, psychologically, socially, legally, financially, whatever adverb you wish to use, and the person continues to take that substance, with compulsion and loss of control despite the adverse effects it has upon his life and his being, ․”

Dr. Margoles identified two types of psychological dependency.   First, the addict depends upon the drug to get high.   Second, the addict depends upon the drug to reduce anxiety and tension.   Margoles also identified two types of physical dependency.   These were (1) the patient needs the drug to reduce pain;  and (2) the patient needs the drug to avoid withdrawal.   As a variant of physical dependency, Dr. Margoles identified physiological dependency in which the medication becomes part of the patient's metabolism and produces withdrawal when withheld.

Dr. Eltherington equated addiction with psychological dependence.   According to Dr. Eltherington, addicts experience a “high” from drugs whereas chronic pain patients only experience a reduction in pain.   Dr. Eltherington stated that not everyone who experiences withdrawal is an addict.

F. Manslaughter Charge

Appellant was charged with involuntary manslaughter in connection with the death of one of his patients, John Barker.   Barker started seeing appellant in December 1985, and continued to see appellant until Barker died in 1987.

During his first visit, Barker complained of chronic headache, sinusitis, and allergic rhinitis.   Appellant took a partial medical history and gave Barker Darvocet and 30 Tylenol/Codeine No. 3 pills (30 mg.).   There was nothing to indicate that appellant sent for Barker's medical records.   In Dr. Olden's view, the history taken by appellant was inadequate with regard to the headache.   Dr. Olden also stated that giving these drugs on the first visit was irrational and without justification.

In 1986, Barker complained of insomnia caused by his breakup with his girlfriend.   In Dr. Olden's opinion, at that point, appellant should have taken a depression history, including questions about suicide attempts.

Dr. Olden identified over 20 office visits when Barker was given 100 Darvocet or Darvon, 4 instances where Barker was given 30 Dalmane, and 9 instances where Barker was given quantities ranging from 30 to 200 sleeping pills, antidepressants or muscle relaxants.   On 11 occasions, Barker was given these pills in combination.   These pills were given out from September 30, 1986 until September 17, 1987.   In Dr. Olden's opinion, Barker was addicted to Darvocet.   Dr. Olden stated that these dispensing practices were irrational, out of control, extremely dangerous, contraindicated, and indefensible.   He opined, “The prescribing of sleeping medicines in the presence of the high doses of Darvon that were being prescribed posed another special danger in that the addition of these medications on top of Darvon made the risk of an overdose, accidental death more likely.”

On August 22, 1987, Barker was admitted to the hospital after attempting suicide.   Admission records from Mission Oaks Hospital dated August 22, 1987 were reviewed by Olden.   The records revealed that Barker was diagnosed as suffering from an overdose of multiple medications combined with alcohol.   A suicide note was found.

The nursing entry for 11 a.m. August 22 read, “Dr. Schade reexamined patient.   Discharge orders written by MD.  [¶] Dr. Schade stated the patient may have been suicidal last night but is not today.  [¶] MD has indicated patient to report to Santa Clara County Mental Health Office next week.  [¶] MD does not feel patient needs to be sent directly from Mission Oaks Hospital for psych. eval.”

There was testimony that appellant violated the standard of care by approving Barker's discharge from Mission Oaks Hospital without first obtaining a psychiatric clearance.

Dr. Olden read appellant's admission summary into the record.   In the summary, appellant explained that Barker had made a suicide gesture rather than a “serious suicide attempt.”   Appellant recommended that Barker be discharged because Barker could not pay for his hospitalization.   According to Dr. Olden, Barker should have been transferred to a free county facility instead of being discharged because Barker was at “high risk for further suicide attempts.”

Barker visited the Adult and Child Guidance Center on August 25, 1987.   The initial diagnostic impression stated that Barker appeared to be in a “major depression.”   The recommendation was “reduce depression and ․ monitor for suicidal ideation[/]attempt.”   The records indicate that appellant gave Barker 100 Darvocet on that date.   According to Dr. Olden, it was “indefensible” to give a suicidal patient that quantity of Darvocet, especially only three days after a serious suicide attempt.

On September 3, 1987, appellant gave Barker 25 Xanax.   Xanax is a depressant similar to Valium.   Dr. Olden's review of notes from Barker's visit on that date led him to believe Barker was in a crisis and should have been referred to a psychiatric emergency room.   Although appellant recommended that Barker go to the county's Emergency Psychiatric Services (EPS), Olden opined that appellant should have arranged for Barker to be sent there.

Barker again attempted suicide around September 1, 1987.   September 3 records from EPS and Valley Medical Center indicate a series of telephone calls between those institutions and appellant concerning Barker's second suicide attempt two nights before by ingesting 30 Darvocet and drinking wine.

September 11, 1987, was the last time appellant saw Barker.   Records indicated that Barker was staying in a homeless shelter and visiting the mental health clinic every day.   Barker complained of sleeplessness and headache.   Barker asked appellant to refill his Darvocet prescription.   Appellant gave him 100 pills.   Appellant did not perform a physical examination or call the mental health clinic to verify Barker's purported daily visits.

On September 17, 1987, Barker was found dead.   The coroner's report listed the cause of death as a Darvocet overdose.   Although Barker had enclosed himself in a garage with a car running, the level of carbon monoxide in his blood was low.   According to Dr. Olden, this indicated that Barker was dead before he could inhale enough of the fumes to poison himself.   The levels of Darvocet and its metabolites in Barker's blood were very high.

Dr. Olden concluded that appellant was dispensing inappropriate and dangerously high amounts of narcotics in the absence of any good faith attempt to investigate the causes of Barker's complaints.   There were “clear warnings that this fatal overdose was coming” which appellant had “ample opportunity” to consider.   Appellant's continued dispensing of large amounts of narcotics to Barker went “beyond the bounds of gross negligence and incompetence” and resulted in Barker's death.   The fact that appellant continued to prescribe lethal doses of Darvocet to Barker after he tried to kill himself by overdosing was a direct cause of Barker's death.

Nancy Anderson was Barker's girlfriend until late 1986.   He lived in her home for a little over a year.   Barker's headaches resulted from an automobile accident in high school.   He took Darvocet regularly for the headaches.   He frequently took as many as 8 to 12 per day.   He made two suicide attempts before actually committing suicide.   After his second suicide attempt EPS staff called Anderson.   She told them she did not feel that Barker actually wanted to die.   She told them that he was severely depressed and wanted help.

Anderson felt that Barker was addicted to Darvocet.   He was frightened to not have the drug on him.   He abused the drug by taking it too often, too long, and in too great a quantity.   Barker often talked about suicide to Anderson.   Anderson was sure he would again try to kill himself.

On September 18, 1986, Barker saw a neurologist named Dr. Rosario for his chronic headache.   Barker's previous physician, Dr. Vernal, had referred Barker to Rosario.   As a result of that visit, appellant agreed with Rosario's recommendation to switch Barker from Darvocet to Darvon because Darvocet had adversely affected Barker's liver.   After appellant ordered a liver test and found it normal, he put Barker back on Darvocet because it was a stronger drug and more readily absorbed than Darvon.

After Dr. Rosario examined Barker and took his history, he submitted a written report to appellant.   Dr. Rosario concluded in his report to appellant that Barker had become addicted to Darvocet after long-term use and stated that Barker “even admits that he will take some even though he is not really hurting.”

Appellant visited Barker in the hospital after his first suicide attempt.   At that time, appellant spoke with Barker's half-brother, Lindsay.   Lindsay told appellant that Barker was taking “an incredible amount of Darvocet over the years.”   Lindsay also told appellant that Barker often had many medications in his room, including Lithium, and would often take three or four Darvocet and two large glasses of wine at night, yet still be unable to sleep.   In his report, appellant decided Barker had made a suicide gesture, rather than an actual attempt, because he had taken a relatively small amount of pills compared with the pills at his actual disposal.

Appellant testified that the last time he saw Barker was September 11, 1987.   Barker's headache was worse, and appellant gave him a Darvocet refill.   Appellant stated that Barker did not seem depressed that day, and did not seem to be at risk for suicide.   The last thing Barker said to appellant as he left appellant's office was “Nobody really cares about what happens to me.”   Appellant told Barker that he cared about him.   Barker said, “Well, then you're the only one.”   Appellant testified he was not aware of Barker's second suicide attempt.

G. Verdict and Sentencing

A judgment of acquittal was entered on five counts of violating section 11153.   The jury determined that appellant was not guilty of eight counts of violating section 11153.   Appellant was convicted of 13 counts of violating section 11153.   The jury also convicted appellant of involuntary manslaughter.

Appellant was sentenced to two years for the manslaughter conviction.   On count 24, the court imposed a consecutive eight-month term.   Concurrent two-year terms were imposed on counts 2, 3, 6, 7, 9, 14, 17, 19, 22, 25, and 26.   The court imposed a two-year term on count 16 but stayed execution pending service of the sentence on counts 24 and 27.   Appellant was sentenced to a total of two years and eight months in prison, with 240 days presentence credits.   Appellant's bail motion was granted.

Discussion

I. Sua Sponte Duty to Define “Addict”

 Appellant contends the trial court erred in failing to sua sponte instruct the jury about the definition of the word “addict.”   We agree.

A. Jury Instruction

The jury was instructed, “You are further instructed that among the ways a doctor can violate this code section is the issuance of an order purporting to be a prescription which is issued not in the usual course of professional treatment, or an order for an addict or habitual user of controlled substances which is issued not in the course of professional treatment or as part of an authorized methadone maintenance program, for the purpose of providing the user with controlled substances sufficient to keep him or her comfortable by maintaining customary use.”  (Emphasis added.)

The word “addict” was not defined for the jury.

B. Language of Section 11153

Health and Safety Code section 11153, subdivision (a) provides, “(a) A prescription for a controlled substance shall only be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his or her professional practice.   The responsibility for the proper prescribing and dispensing of controlled substances is upon the prescribing practitioner, but a corresponding responsibility rests with the pharmacist who fills the prescription.   Except as authorized by this division, the following are not legal prescriptions:  (1) an order purporting to be a prescription which is issued not in the usual course of professional treatment or in legitimate and authorized research;  or (2) an order for an addict or habitual user of controlled substances, which is issued not in the course of professional treatment or as part of an authorized methadone maintenance program, for the purpose of providing the user with controlled substances, sufficient to keep him or her comfortable by maintaining customary use.”  (Emphasis added.)

C. Legislative History

In 1982, section 11153 was repealed and a new version of the statute was enacted.   The new version was intended to strengthen existing law and broaden its reach.   Prior to 1982, section 11153 was one paragraph with no subdivisions or subparagraphs.   It applied only to practitioners issuing prescriptions for controlled substances to addicts or habitual users, as now described in subdivision (a)(2).2  The language contained in subdivision (a)(1) was added in 1982, providing that any prescription issued “not in the usual course of professional treatment or in legitimate and authorized research” was illegal.   In addition, the first sentence of the statute was added.   It states that “[a] prescription for a controlled substance shall only be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his or her professional practice.”  (See Stats.1982, ch. 1284, § 3, p. 4753.)

The new language was taken directly from the Federal Regulations.  (21 CFR 1306.04) According to the reports accompanying the 1982 assembly bill (AB 3376), one of the reasons for the changes was to bring section 11153 in line with parallel federal regulations to facilitate prosecutions.   The changes were prompted as well by concerns about growing numbers of “prescription mills” where practitioners issued prescriptions for large amounts of high abuse drugs which were then being diverted to the illegal street market.   The supporters of the bill felt that the existing statute did not adequately cover those circumstances.

 Thus, the changes in section 11153 were intended to clarify and strengthen the statute to reach not only practitioners prescribing drugs for known addicts or habitual users but also to target physicians and pharmacists issuing high volume prescriptions for controlled substances with no legitimate medical purpose.   Consistent with this intent, the statute adds stronger language.   Whereas the repealed statute provided only that any person issuing a prescription within its meaning may be charged with violating the law, the new version uses the word “shall” and provides in a new subdivision that violators “shall” be punished by imprisonment, fine, or both.3

D. Meaning of Section 11153

In light of this history, it is clear that the current version of section 11153 is more expansive than its predecessor.   Under present law, a prescription for a controlled substance is illegal if it is not issued for a legitimate medical purpose by a practitioner acting in the usual course of his or her professional practice.  Section 11153 includes two examples of illegal prescriptions.   First, a prescription is illegal if it is not issued in the usual course of professional treatment or in legitimate and authorized research.   Second, a prescription is illegal if it is an order for an addict or habitual user of controlled substances, “which is issued not in the course of professional treatment or as part of an authorized methadone maintenance program, for the purpose of providing the user with controlled substances, sufficient to keep him or her comfortable by maintaining customary use.”

Interestingly, the Legislature did not delete the old language of section 11153 and replace it with the current language.   Instead, it broadened the reach of section 11153 by adding the first sentence, and then listing two types of illegal prescriptions.   Since the former prohibition against prescribing to addicts was expressly retained, it seems clear that the Legislature intended that this conduct remain illegal.   The new language, on the other hand, was meant to cover a different type of activity.   In fact, the legislative history—relating to the growth of “prescription mills”—confirms that the new language was intended to reach a different type of illegal conduct.

At first blush, the two subdivisions within section 11153 seem duplicative, thereby causing the potential for confusion regarding their interpretation.   This is because both subdivisions (a)(1) and (a)(2) appear to criminalize prescriptions “issued not in the course of professional treatment.”   While subdivision (a)(1) prohibits such prescriptions without qualification, subdivision (a)(2) contains the same prohibition and also forbids prescriptions “for an addict or habitual user ․ for the purpose of providing the user with controlled substances, sufficient to keep him or her comfortable by maintaining customary use.”   Thus, the prohibition within subdivision (a)(2) appears to be subsumed within subdivision (a)(1).   Under this reading, a failure to prove addict status under subdivision (a)(2) would not be fatal to a prosecution so long as there was proof of the second element—that the prescription was not issued in the course of professional treatment.

A closer examination of the statutory language convinces us that subdivision (a)(2) cannot be interpreted in this manner.   For one thing, if a violation of subdivision (a)(2) automatically constituted a violation of subdivision (a)(1), then subdivision (a)(2) would be redundant.   Prosecuting an individual under subdivision (a)(2) would be pointless because it would always be easier to prove a violation of subdivision (a)(1).

 We doubt the Legislature intended such an anomalous result.   It must be assumed that the Legislature does not engage in idle acts, and that all of the words of a statute have meaning.   A statute must be considered as a whole, with its parts being harmonized as much as possible.   (In re Bandmann (1958) 51 Cal.2d 388, 393, 333 P.2d 339.)   It is a “cardinal rule” that a construction under which some words in a statute are rendered surplus should be avoided;  some effect should be given to every word and phrase.  (1 Witkin & Epstein, Cal.Crim.Law (2d ed. 1988) § 36, p. 45;  citing State of South Dakota v. Brown (1978) 20 Cal.3d 765, 776, 144 Cal.Rptr. 758, 576 P.2d 473.)

 We believe subdivision (2) must be read in its proper context.   When so considered, the reference in subdivision (a)(2) to “not in the course of professional treatment” refers to the treatment of narcotics addiction, as carefully regulated pursuant to Health and Safety Code section 11215 et seq.   Using controlled substances to treat addicts for addiction is permissible under certain carefully limited circumstances.  (See e.g. Health & Saf.Code, § 11220 [prohibiting the prescribing or furnishing of controlled substances to treat an addict if the prescribing or furnishing occurs more than thirty days after the addict's first treatment].)   Subdivision (a)(2) incorporates this limited exception by virtue of its reference to “not in the course of professional treatment.”

This interpretation is also supported by the fact that subdivision (a)(1)'s reference to professional treatment differs from subdivision (a)(2)'s reference in one small, but very significant, respect.   Subdivision (a)(1) refers to the “usual course of professional treatment” while subdivision (a)(2) simply refers to “course of professional treatment.”   Excluding the word “usual” from subdivision (a)(2) makes sense if “course of professional treatment” refers to professional treatment of narcotics addiction.   As made abundantly clear by the carefully defined laws described within Health and Safety Code section 11215 et seq., the treatment of narcotics addiction cannot be considered to be “usual.”

Besides eliminating a redundancy within subdivisions (a)(1) and (a)(2), our interpretation avoids a possible inconsistency within subdivision (a)(2) itself.   As noted, subdivision (a)(2) prohibits “an order for an addict or habitual user of controlled substances ․ for the purpose of providing the user with controlled substances, sufficient to keep him or her comfortable by maintaining customary use” unless the order is issued “in the course of professional treatment or as part of an authorized methadone program.”

We do not know of any type of treatment, except treatment for narcotics addiction, which would warrant providing controlled substances to an addict for the purpose of maintaining customary use.   Indeed, what ailment would require such treatment?   If professional treatment within subdivision (a)(2) does not refer to treatment for narcotics addiction, then subdivision (a)(2) would authorize prescribing controlled substances to avoid withdrawal as part of the treatment for any affliction, so long as it was in the “course of professional treatment.”   Prescribing controlled substances to an addict for the purpose of maintaining customary use, as part of the professional treatment for a headache, for example, would be legal.   Such a result is nonsensical, confounds the legislative intent to facilitate prosecutions, and plainly violates the statutory scheme carefully regulating the use of controlled substances to treat narcotic addiction.

The language of section 11153's predecessor, section 11162.5, repealed in 1972, also supports our interpretation.   Section 11162.5 provided, in pertinent part, “An order purporting to be a prescription issued to an addict or habitual user of narcotics, not in the course of professional treatment but for the purpose of providing the user with narcotics sufficient to keep him comfortable by maintaining his customary use, is not a prescription within the meaning and intent of this division․”  (See also People v. Anderson (1972) 29 Cal.App.3d 551, 559, 105 Cal.Rptr. 664, emphasis added.)

Thus, under section 11153's predecessor, the word “but” established that professional treatment and prescribing controlled substances for the purpose of keeping an addict comfortable, did not constitute two separate requirements of the subsection.   Accordingly, we are confident that subdivision (a)(2) prohibits an order for an addict or habitual user of controlled substances for the purpose of providing the user with controlled substances, sufficient to keep him or her comfortable by maintaining customary use, unless the order is issued in the course of professional treatment for narcotics addiction or as part of an authorized methadone maintenance program.

Consistent with this interpretation, an understanding of the meaning of addict is plainly crucial to an understanding of the conduct prohibited.   If jurors do not know what an addict is, then it would be difficult for the jurors to determine whether a pharmacist or practitioner has violated the statute.

Although section 11153 refers to an addict or habitual user, this case was tried on the theory that some of appellant's patients were addicts.   As already noted, there was an abundance of expert testimony regarding the particular characteristics of addiction.   It was a key part of the trial.   By contrast, the case was not prosecuted on the theory that appellant's patients were “habitual users.”   The prosecution argued that the patients were addicts, not habitual users, and the fact of addiction was the pivotal theory around which the case revolved, and upon which appellant was required to defend.

With this in mind, we next consider whether the term “addict” has a technical meaning, thereby requiring that it be defined for the jury.

E. Instruction On Addict

 “It is the duty of the court in criminal cases to give of its own motion instructions on the general principles of law pertinent to such cases, even though they are not proposed or presented in writing by the parties themselves.”  (People v. Heddens (1936) 12 Cal.App.2d 245, 247, 55 P.2d 230;  People v. Carrasco (1981) 118 Cal.App.3d 936, 949, 173 Cal.Rptr. 688.)

As explained by the California Supreme Court in People v. Flannel (1979) 25 Cal.3d 668, 160 Cal.Rptr. 84, 603 P.2d 1, “even in the absence of a request, a trial court must instruct on the general principles of law governing the case, i.e., those principles relevant to the issues raised by the evidence, but need not instruct on specific points developed at trial.  [Fn. omitted.]  ‘The most rational interpretation of the phrase “general principles of law governing the case” would seem to be as those principles of law commonly or closely and openly connected with the facts of the case before the court.’ ”  (People v. Flannel, supra, 25 Cal.3d at p. 680–681, 160 Cal.Rptr. 84, 603 P.2d 1;  see also People v. Iverson (1972) 26 Cal.App.3d 598, 604, 102 Cal.Rptr. 913, emphasis added.)

 Jurors need not be instructed about the meaning of words commonly used.   Such words are presumed to be within the understanding of a person of ordinary intelligence.  (5 Witkin & Epstein, Cal.Crim.Law (2d ed. 1989) § 2939, p. 3607.)   However, jurors must be instructed on the meaning of technical terms.  “The law is settled that when terms have no technical meaning peculiar to the law, but are commonly understood by those familiar with the English language, instructions as to their meaning are not required.”  (People v. Anderson (1966) 64 Cal.2d 633, 639, 51 Cal.Rptr. 238, 414 P.2d 366;  see also People v. Hill (1983) 141 Cal.App.3d 661, 668, 190 Cal.Rptr. 628.)

“A trial court has no sua sponte duty to give amplifying or clarifying instructions in the absence of a request where the terms used in the instructions given are ‘commonly understood by those familiar with the English language’;  it does have such a duty where the terms have a ‘technical meaning peculiar to the law.’  [Citation.]”  (Latter emphasis added;  People v. Kimbrel (1981) 120 Cal.App.3d 869, 872, 174 Cal.Rptr. 816;  see also People v. Dasher (1988) 198 Cal.App.3d 28, 36, 243 Cal.Rptr. 486;  People v. Jones (1971) 19 Cal.App.3d 437, 447, 96 Cal.Rptr. 795.)

Examples of words which need not be defined include “solvent” and “insolvent” (People v. Roth (1934) 137 Cal.App. 592, 606, 31 P.2d 813);  “possession” (People v. Bill (1934) 140 Cal.App. 389, 396, 35 P.2d 645);  and “lewd, dissolute or immoral” (People v. Deibert (1953) 117 Cal.App.2d 410, 419, 256 P.2d 355).

1. Addiction As A Medical Concept

As noted above, courts must instruct on words which have a “technical meaning peculiar to the law.”  (See People v. Kimbrel, supra, 120 Cal.App.3d at p. 872, 174 Cal.Rptr. 816, emphasis added.)   Addiction is a medical concept.   Must it still be defined?   We conclude that addict must be defined.

Properly interpreted, the phrase “technical meaning peculiar to the law” should read “technical meaning peculiar to the law [being enforced].”   Since the law being enforced (section 11153), includes a technical term (addict), which was commonly or closely and openly connected with the facts of the case (People v. Flannel, supra, 25 Cal.3d 668, 681, 160 Cal.Rptr. 84, 603 P.2d 1), the court should have defined that term for the jury.

This interpretation comports with common sense.   Whether or not a technical term is a “legal” term, its complexity will obviously still pose problems for jurors.   We see no reason why jurors should be given definitions of technical legal terms, but be forced to grapple with the meaning of other technical terms within a statute.

Moreover, one could argue that “legal term” fairly refers to any word used within a statute, since that word forms part of the statutory description of the law itself.   Thus, the term “addict” is a legal term because it is part of the law at issue—section 11153.

For example, in People v. Burns (1948) 88 Cal.App.2d 867, 200 P.2d 134, the defendant was charged with spousal-beating—infliction of an injury resulting in a “traumatic condition.”   The court held it was prejudicial error not to instruct on the court's own motion on the meaning of the term “traumatic condition.”   In so doing, the court extensively discussed the term “traumatic condition,” making it clear that it involved a medical concept.

Significantly, the Burns court then concluded that “ ‘The rule is that it is the duty of the court in criminal cases to give, sua sponte, instructions on the general principles of law pertinent to such cases where they are not proposed or presented in writing by the parties themselves.   It is not the duty of the court to give such instructions upon specific points developed through the evidence introduced at the trial, unless such instructions are requested by the party desiring them.  [Citations.]’  ․ An instruction defining ‘a traumatic condition’ was on a principle of law pertaining to the offense charged.   It was not on a point developed through the evidence introduced at the trial.   It should have been given by the court on its own motion.”  (People v. Burns, supra, 88 Cal.App.2d at pp. 874–875, 200 P.2d 134, emphasis added.)

2. The Meaning Of Addict Is Not A Factual Issue

 In this case, as in Burns, the term “addict” involves a principle of law pertaining to the offense charged.   It was not simply “a point developed through the evidence introduced at the trial.”  (Id. at p. 874, 200 P.2d 134.)   It was not simply a factual issue.   Nor was it a component of an evidentiary theory developed through the testimony of the lay and expert witnesses and the argument of counsel.   In general, the trial court must instruct the jury on the law as opposed to instructing the jury on the facts.   (5 Witkin & Epstein, Cal.Crim.Law (2d ed. 1989) § 2921, p. 3583.)   While facts were quite naturally introduced about appellant's practice of prescribing controlled substances to his patients, whether those facts justified the legal conclusion that appellant had prescribed to “addicts” wholly depends upon how the term “addict” is defined.

3. Case Law Defining Addict

An abundance of authority demonstrates that the word “addict” is not a term commonly understood, but one which has a technical meaning, thereby warranting definition.   For example, in People v. Victor (1965) 62 Cal.2d 280, 42 Cal.Rptr. 199, 398 P.2d 391, the court discussed the meaning of the word “addict” and decided it should be defined despite the fact that it was “primarily a medical concept.”  (Id. at p. 300, 42 Cal.Rptr. 199, 398 P.2d 391.)   In Victor, the defendant was committed to the department of corrections for being “in imminent danger of becoming addicted to narcotics.”   (See former Pen.Code, §§ 6500–6510.)   On appeal, defendant claimed “in imminent danger of becoming addicted to narcotics” was unconstitutionally vague.

In rejecting this contention, the court noted that “Little guidance is to be derived, unfortunately, from the various statutory definitions of the word ‘addict’ that have been promulgated over the years [citations].   Their changing content reflects an understandable hesitancy and experimentation on the part of the Legislature in defining what is primarily a medical concept, but it precludes us from distilling any consistent pattern of statutory expression.”   (People v. Victor, supra, 62 Cal.2d at p. 300, 42 Cal.Rptr. 199, 398 P.2d 391.)

Nonetheless, the Victor court did define addict.   It concluded that although “no single definition of ‘addiction’ may be satisfactory for all purposes, there is general agreement that abuse of an addictive depressant drug ․ will tend to produce in the user the three characteristic mental and physical responses of the addiction process:  i.e., emotional dependence, tolerance, and physical dependence.”  (People v. Victor, supra, 62 Cal.2d at p. 302, 42 Cal.Rptr. 199, 398 P.2d 391, emphasis added.)

In People v. Piangenti (1965) 235 Cal.App.2d 850, 45 Cal.Rptr. 538, the defendant was convicted of driving while addicted to narcotics.  (See former Veh.Code, § 23105.)   On appeal, the court decided the defendant was entitled to have the jury instructed on the definition of “ ‘addicted to the use ․ of narcotic drugs․' ”  (Id. at p. 853, 45 Cal.Rptr. 538.)   The court noted that “[t]he total lack of guidance [about the meaning of ‘addict’] to the jury permitted them to base a finding of present addiction on nothing but the admitted fact that defendant had been a user for a long period of time.”  (Id. at p. 854, 45 Cal.Rptr. 538, emphasis added.)

The issue was raised again in People v. O'Neil (1965) 62 Cal.2d 748, 44 Cal.Rptr. 320, 401 P.2d 928.   In that case, the trial court defined an addict as a person accustomed to or habituated to the use of narcotics.   The appellate court disagreed with this definition.   It determined that the term “addict” should be defined consistent with the court's conclusion in Victor.   Thus, the prosecution was required to show that the defendant was emotionally dependent on the drug, had developed a tolerance to its effects, and had become physically dependent so as to suffer from withdrawal.  (Id. at p. 754, 44 Cal.Rptr. 320, 401 P.2d 928.)

In People v. Bruce (1966) 64 Cal.2d 55, 64, 65, 48 Cal.Rptr. 719, 409 P.2d 943, the California Supreme Court implied that a trial court could base a finding of addiction upon either physical dependence or emotional dependence.   Although evidence of withdrawal was probative, it was not the essence of dependence.  (Id. at pp. 64–65, 48 Cal.Rptr. 719, 409 P.2d 943.)   Other courts appear to follow Bruce's definition.  (See e.g. People v. Beasley (1983) 145 Cal.App.3d 16, 21–22, 193 Cal.Rptr. 86, citing cases.)

In all of these cases, the courts went to considerable trouble to examine the meaning of the word “addict.”   In People v. Piangenti, supra, 235 Cal.App.2d 850, 45 Cal.Rptr. 538, the court expressly decided that the jury was entitled to a definition of addict.   In People v. Victor, supra, 62 Cal.2d 280, 42 Cal.Rptr. 199, 398 P.2d 391;  People v. O'Neil, supra, 62 Cal.2d 748, 44 Cal.Rptr. 320, 401 P.2d 928;  and People v. Bruce, supra, 64 Cal.2d 55, 48 Cal.Rptr. 719, 409 P.2d 943, the courts struggled to determine the meaning of the word “addict.”   The fact that these courts grappled with the meaning of this word supports our conclusion that it is a technical term.   It does not have a single commonly understood meaning.  (Victor, supra, 62 Cal.2d at p. 300, 42 Cal.Rptr. 199, 398 P.2d 391.)   We have found no case reaching the opposite conclusion.

4. Addict Must be Defined Even Though It Is Not An Element of Section 11153

 Section 11153 prohibits controlled substance prescriptions which are not issued for a legitimate medical purpose in the usual course of professional practice.   These are the elements of the offense.  (Cf. People v. Lonergan (1990) 219 Cal.App.3d 82, 267 Cal.Rptr. 887;  People v. Gandotra (1992) 11 Cal.App.4th 1355, 14 Cal.Rptr.2d 896, discussed post, in Part II of Discussion.)   Since the term “addict” is not an element of the offense but an example of an illegal prescription, must addict still be defined?   We believe that it must be defined.

First, as already noted, the court must instruct on “principles of law commonly or closely and openly connected with the facts of the case before the court.”  (People v. Flannel, supra, 25 Cal.3d at pp. 680–681, 160 Cal.Rptr. 84, 603 P.2d 1;  see also People v. Iverson, supra, 26 Cal.App.3d 598, 604, 102 Cal.Rptr. 913, emphasis added.)   If courts were required to instruct on elements only, then the quoted rule would so state.   It would refer to “elements” instead of referring to “principles of law commonly or closely and openly connected with the facts of the case before the court.”

Second, there is a distinction between defining elements of a crime and defining words within a statute that are not commonly understood.   When courts and commentators refer to the importance of defining for the jury the elements of a crime, they are generally referring to the importance of delineating those elements.   In other words, the elements of the crime must be identified for the jury.   Thus, in such a context, the word “define” refers to “defining the crime” in terms of its elements.   Generally, each element is identified or listed.   However, that does not mean that a definition of the meaning of each of those elements has to be provided.   It has never been the law that the trial court has an absolute duty to sua sponte define the meaning of each and every element of a criminal offense.

Accordingly, words which are commonly understood, including words which constitute an element of the offense, need not be defined.   However, technical terms, which are openly and closely connected to the facts of the case (regardless of whether they are elements), must be defined for the jury.

Applying this principle to CALJIC 12.45 demonstrates the soundness of our position.   CALJIC 12.45 concerns the offense of possession of a firearm by a narcotics addict.  (Pen.Code, §§ 12021, subd. (a);  12021.1.)   CALJIC 12.45 defines that offense, and then defines addiction.   It provides in part, “A person is addicted to the use of a narcotic drug:  [¶] 1. If [he][she] has become emotionally dependent on the drug in the sense that [he][she] experiences a compulsive need to continue its use, and [¶] 2. If [he] [she] has developed a tolerance to its effect and hence requires larger and more potent doses, and [¶] 3. If [he][she] has become physically dependent thereon so as to suffer withdrawal symptoms if [he][she] is deprived of [his] [her] dosage.  [¶] In order to prove such crime, each of the following elements must be proved:  [¶] A person is addicted to the use of a narcotic drug․”  (CALJIC No. 12.45, emphasis added.)

CALJIC 12.45 defines addict even though addict is a medical concept.   Is “addict” defined within CALJIC 12.45 because it is an element of Penal Code sections 12021, subdivision (a) and 12021.1?   We do not believe so.   As we have already discussed, the law has never required that the meaning of each and every element be defined for the jury.   Rather, the crucial question is whether the term is a technical one—one which is not commonly understood.   Quite clearly, addict is not commonly understood;  hence its definition within CALJIC 12.45—as a term with a technical meaning peculiar to the law.

5. Legislative History Supports Defining The Term “Addict”

The Legislative history of section 11153 further supports our analysis.   As already noted, prior to 1982, section 11153 was one paragraph with no subdivisions or subparagraphs.   It applied only to practitioners issuing prescriptions for controlled substances to addicts or habitual users, as now described in subdivision (a)(2).   If only elements needed to be defined, then the word “addict” would have had to be defined prior to 1982 but not after 1982.

Such an arbitrary and anomalous result should be avoided.   Prescribing to addicts is expressly prohibited under both versions of 11153.   Since the same conduct is expressly criminalized by both versions of section 11153, we believe that defendants prosecuted under either version of section 11153 should be entitled to have the trial court provide the jury with a definition of addict.

6. Trial Testimony Supports Defining The Term “Addict”

The fact that the term “addict” is a technical term, subject to differing definitions depending upon the source, was also aptly illustrated at trial.   There was an abundance of definitions of addiction given to the jury.   Nine expert witnesses testified on the characteristics of addiction.   All of the experts testified about the meaning of addiction but they could not all agree upon a single acceptable definition.4  Although many of the experts referred to the factors mentioned in Victor (physical dependence, emotional dependence, and tolerance), no single definition was universally accepted.   In addition, Dr. Meyers testified that the term “addiction” “leads to nothing but confusion.”   Dr. Margoles stated that addiction is “one of the worst terms we've ever invented.”

 Accordingly, we are convinced that “addict” is a technical term, not commonly understood, and was “ ‘commonly or closely and openly connected with the facts of the case before the court.’ ”  (People v. Flannel, supra, 25 Cal.3d at pp. 680–681, 160 Cal.Rptr. 84, 603 P.2d 1, emphasis omitted.)   When a statute includes a word which is not commonly understood, regardless of whether that word is an element or not, and the word is commonly or closely and openly connected with the facts of the case before the court, then the trial court has a sua sponte duty to instruct on the meaning of the term.

7. The People's Argument Is Unpersuasive

The People argue that People v. Bruce, supra, 64 Cal.2d 55, 48 Cal.Rptr. 719, 409 P.2d 943, is controlling.   Under Bruce, either type of dependence (physical or psychological) constitutes evidence of addiction.   According to the People, even if the jury had been properly instructed about the definition of addict pursuant to Bruce, a finding of addiction would have been even easier since Bruce identified either type of dependence as demonstrative of addiction.

We disagree.   First, we believe the definition of addict found in Victor and in CALJIC 12.45 is correct.   In any event, it would not necessarily have been easier to have convicted appellant if the jury had been instructed under Bruce.   The jurors could have disagreed about what addiction meant but have decided that if a patient met any definition of addict then the patient was an addict.   Thus, one juror might have believed a patient was an addict because the patient engaged in drug seeking behavior even though that juror did not believe the patient was psychologically or physically dependent.   Another juror might have believed a patient was psychologically dependent.   A third juror might have decided the patient was physically dependent.   A fourth juror might have believed the patient had developed a tolerance for the drug but was not psychologically or physically dependent, and so on.   Thus, it is conceivable that not defining “addict” for the jury (as opposed to defining it under Bruce ) made it easier for appellant to be convicted.

 In any event, the necessity for proper instructions defining a material part of an offense cannot be circumvented by speculating about what the jury might have done had the proper instruction been given.   We explain this conclusion below.

8. Reversible Error Analysis

 Over 30 years ago, the California Supreme Court first embraced the principle that “the defendant has a constitutional right to have the jury determine every material issue presented by the evidence.   Regardless of how overwhelming the evidence of guilt may be, the denial of such a fundamental right cannot be cured by article VI, section 4 1/2, of the California Constitution, for the denial of such right itself is a miscarriage of justice within the meaning of that provision.”  (People v. Modesto (1963) 59 Cal.2d 722, 730, 31 Cal.Rptr. 225, 382 P.2d 33, emphasis added.)

This concept was reaffirmed in People v. Sedeno (1974) 10 Cal.3d 703, 720, 112 Cal.Rptr. 1, 518 P.2d 913;  People v. Mayberry (1975) 15 Cal.3d 143, 157, 125 Cal.Rptr. 745, 542 P.2d 1337;  and People v. Reynolds (1988) 205 Cal.App.3d 776, 779, 252 Cal.Rptr. 637.

Even more recently, our own court followed the rule.   In People v. Shoals (1992) 8 Cal.App.4th 475, 10 Cal.Rptr.2d 296, we reversed defendant's conviction for maintaining a place for selling or using a controlled substance.   We concluded the trial court committed reversible error in failing to instruct the jury on the technical definition of “maintaining” and “opening” in Health and Safety Code section 11366.

We noted, “ ‘It is the trial court's duty to see that the jurors are adequately informed on the law governing all elements of the case to the extent necessary to enable them to perform their function.   This duty is not always satisfied by a mere reading of wholly correct, requested instructions.   [Citation.]  A trial court has a sua sponte duty (1) to instruct on general principles of law relevant to issues raised by the evidence [citation];  and (2) to give explanatory instructions when terms used in an instruction have a technical meaning peculiar to the law [citation].   A defendant has a constitutional right to have the jury determine every material issue presented by the evidence, and a denial of that right constitutes a miscarriage of justice regardless of the strength of the prosecution's case.  [Citation.]’ ”  (People v. Shoals, supra, 8 Cal.App.4th 475, 489–490, 10 Cal.Rptr.2d 296, quoting People v. Reynolds, supra, 205 Cal.App.3d 776, 779, 252 Cal.Rptr. 637;  Pen.Code, § 1138, emphasis added.)

In Shoals, we decided that defining the words “maintaining” or “opening” was “necessary because the statute employs a technical, legal meaning of these terms which is not likely to be commonly understood.”  (Id. 8 Cal.App.4th at p. 490, 10 Cal.Rptr.2d 296.)   We reasoned that “Since defendant's due process rights include the right to have the jury determine every element of the offense [citation], and since ‘[i]t is the trial court's duty to see that the jurors are adequately informed on the law governing all elements of the case to the extent necessary to enable them to perform their function’ [citation], appellant's failure to request the instruction does not waive the issue.   A denial of the right to have the jury determine every material issue ‘constitutes a miscarriage of justice regardless of the strength of the prosecution's case.  [Citation.]’ ”  (Id. at pp. 490–491, 10 Cal.Rptr.2d 296, emphasis added.)

Likewise, we believe that the term “addict” was a material issue in this case.   As already discussed, a substantial portion of the trial was devoted to the concept of addiction and its meaning in the context of the use of controlled substances.   The term “addict” is a material part of section 11153.   It represented the linchpin of the People's theory of prosecution.   In addition, the prosecutor focused upon addiction during closing arguments.   The prosecutor argued, “Dr. Schade now explains this by saying when he used addiction in those days when he was treating his patients [as noted in his charts] he only meant physical dependency and that's okay.  [¶] Now he says the word addiction really means a kind of psychological dependency, a kind of self-destructive compulsion and even Dr. Schade says that's not okay.  [¶] Dr. Schade also would like you to believe that none of his patients were psychologically addicted․  That's according to Dr. Schade.  [¶] Well, ladies and gentleman, I submit to you that you can call this whatever you like because we all here know what we're talking about.  [¶] Somebody in this trial used the expression or—or the phrase, if it looks like a duck, if it walks like a duck, if it sounds like a duck, it's a duck.”   For these reasons, we believe that the failure to define addict is per se reversible error.

Even if we were to analyze the error under a Watson standard (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243), or under a harmless beyond a reasonable doubt standard (People v. Odle (1988) 45 Cal.3d 386, 414–415, 247 Cal.Rptr. 137, 754 P.2d 184), we would still conclude that the error requires reversal.   It is reasonably probable that appellant would have obtained a more favorable result had the error not occurred.  (People v. Watson, supra, 46 Cal.2d 818, 836, 299 P.2d 243.)   As already discussed, there were a myriad of definitions of addiction given at trial.   The jury could therefore “pick and choose” between these definitions in deciding whether appellant had prescribed to an addict.   In other words, the jury could have convicted appellant if a patient satisfied any of the definitions of addict.   On the other hand, if the jury had been instructed on the meaning of addict, then the jury would have had to have found that each patient met the three characteristics of addiction set forth in Victor, supra, 62 Cal.2d 280, 42 Cal.Rptr. 199, 398 P.2d 391 (and in CALJIC 12.45).   Thus, it is reasonably probable that appellant would have obtained a more favorable result on the grounds that some of appellant's patients may not have met this more stringent definition of “addict.”

9. Good Faith and Legitimate Medical Purpose

 We are not convinced by the dissent's suggestion that the concepts of legitimate medical purpose and good faith were more important than the meaning of the term “addict.”   First, the issue of good faith was hopelessly intertwined with the concept of addiction.   As the prosecutor stated, “You will see that in each one of these [counts] as we review it that Dr. Schade did not act in good faith when he continued to prescribe these unreasonable quantities for unreasonable length of time in the face of blatant and overwhelming addiction and drug abuse and—what's the expression—drug seeking behavior.”   In other words, if the evidence established that appellant prescribed to patients who met the definition of addict, then appellant did not act in good faith.

 It must be emphasized that good faith does not have a subjective meaning.   Appellant's good faith must be judged by his conduct, not merely his testimony.   If appellant prescribed to addicts under subdivision (a)(2) of section 11153, it would not matter that appellant believed in good faith that his prescription practices were proper.   Indeed, the jury was instructed, in pertinent part, that “A physician may prescribe controlled substances to his patient when the patient is suffering from a disease, pathology, ailment or injury other than addiction to a controlled substance which he in good faith believes requires treatment by a controlled substance.”  (Emphasis added;  see also Health & Saf.Code, § 11210.)   Accordingly, if the jurors determined that appellant repeatedly prescribed to patients meeting the definition of addict, then the jury would have to conclude that appellant had not acted in good faith.

Similarly, the meaning of the word “addict” was closely connected to the concept of “legitimate medical purpose.”   If appellant prescribed controlled substances to an addict under section 11153, then the prescription could not have been for a legitimate medical purpose in the usual course of professional treatment.   In fact, this is precisely why the definition of addiction was so crucial to this case.   Appellant claimed that his patients were not actually addicts (as he understood the term), and testified that he was justifiably prescribing controlled substances to alleviate his patients' pain.   In short, it is simply not possible to remove addiction from this case.   It was crucial to appellant's defense.   It was crucial to the People's theory of prosecution.

F. Conclusion

In this case, nine experts testified about the meaning of addiction.   Appellant claimed he was not prescribing to addicts.   The People argued otherwise.   Both sides emphasized addiction during their closing arguments.   Yet despite the pivotal role at trial of the term “addict,” and despite the fact that the experts could not agree on the definition of the term, the trial court still failed to define it for the jury.   In these circumstances, we are convinced that the court's failure to instruct the jury on the definition of addict is reversible error.   Appellant's convictions for violating section 11153 must therefore be reversed.

II. Section 11153 Jury Instruction 5

 Appellant argues the jury was improperly instructed on the elements of Health and Safety Code section 11153.   He claims the error requires that his conviction be reversed.   For reasons we shall explain, we disagree.

A. Jury Instruction

No standardized CALJIC instruction exists to define the elements of section 11153.   The trial court instructed the jury as follows:

“Pursuant to section 11153 of the Health and Safety Code any person who knowingly issues a prescription for other than a legitimate medical purpose in the usual course of his professional practice, is guilty of a felony.  [¶] A physician may prescribe controlled substances to his patient when the patient is suffering from a disease, pathology, ailment or injury other than addiction to a controlled substance which he in good faith believes requires treatment by a controlled substance.  [¶] That is a legitimate medical purpose and justifies a prescription in such quantity and for such a length of time as is reasonably necessary.

“It is immaterial whether the physician is correct in his diagnosis, improvident in his administration of controlled substance or varies from the practice of other physicians, unless he varies so much as to be unreasonable in quantity or length of time, or the evidence so convinces you, the jury, that he did not act in good faith.  [¶] The law with respect to Health and Safety Code section 11153, does not require him to be right.   It requires him to act in good faith in issuing the prescription and to issue it in reasonable amounts and lengths of time.

“In order to convict the defendant of any of the above crimes charged against him you must be convinced beyond a reasonable doubt that he has failed to comply with the standard.

“You are further instructed that among the ways a doctor can violate this code section is the issuance of an order purporting to be a prescription which is issued not in the usual course of professional treatment, or an order for an addict or habitual user of controlled substances which is issued not in the course of professional treatment or as part of an authorized methadone maintenance program, for the purpose of providing the user with controlled substances sufficient to keep him or her comfortable by maintaining customary use.

“Included in this instruction was the term good faith.   Good faith means honesty of purpose, freedom of intention to defraud, and faithfulness to one's duty or obligation.  [¶] It is the opposite of fraud and bad faith.”   (Emphasis added.)

At the request of defense counsel, the jury was also instructed that “You have heard evidence that Dr. Schade prescribed controlled substances in good faith to treat the patient's pain.  [¶] If you believe after considering all of the evidence as to each count of a violation of Health and Safety Code section 11153 that Dr. Schade acted in good faith in treating the patient you must acquit him of that charge.”

B. Analysis

Appellant argues that the jury instruction created two additional ways of violating the statute.   He claims the “reasonable amounts and lengths of time” language was improper because section 11153 does not contain a requirement that the physician prescribe medications in reasonable amounts and for reasonable lengths of time.   He also alleges the instruction permitted the jury to convict appellant if it determined that he was merely negligent.   We disagree.

Section 11153 is part of the Uniform Controlled Substances Act.   (Health & Saf.Code, § 11000 et seq.)   Like section 11153, section 11210 is also part of the act.  Section 11210 imposes three limitations upon physicians' furnishing and administering controlled substances to their patients.

First, section 11210 permits a physician to prescribe, dispense, or administer controlled substances “when the patient is suffering from a disease, ailment, injury or infirmities attendant upon old age, other than addiction to a controlled substance.”   Second, it provides that the physician may prescribe, dispense, or administer controlled substances “only when in good faith he believes the disease, ailment, injury, or infirmity, requires such treatment.”   Finally, the physician may prescribe, dispense or administer controlled substances “only in such quantity and for such length of time as are reasonably necessary.”  (§ 11210.)

 It is fundamental that “[s]tatutes relating to the same subject should be construed together and harmonized if possible.”  (1 Witkin & Epstein, Cal. Criminal Law (2d ed. 1988) Introduction to Crimes, § 36, p. 44;  citing People v. Caudillo (1978) 21 Cal.3d 562, 584–585, 146 Cal.Rptr. 859, 580 P.2d 274.)   In Caudillo, the court explained that “a statute should be construed with reference to the entire statutory system of which it forms a part in such a way that harmony may be achieved among the parts.”  (Internal quotations omitted.)

Perzik v. Superior Court (1991) 2 Cal.App.4th 898, 4 Cal.Rptr.2d 1 construed section 11210 with section 11153, when it concluded that “the language of section 11153 that ‘[a] prescription for a controlled substance shall only be issued for a legitimate medical purpose’ restates the principle [of section 11210] in slightly different form.”  (Id. at p. 902, 4 Cal.Rptr.2d 1.)

Similarly, we believe that the reasonable lengths of time and amount language simply restated, in a different form, the requirement that the prescription be issued for a “legitimate medical purpose in the usual course of professional practice.”   The quoted phrase has been interpreted as referring to the standard of care within the medical community.  (See e.g. People v. Demery (1980) 104 Cal.App.3d 548, 558, 163 Cal.Rptr. 814;  People v. Anderson, supra, 29 Cal.App.3d 551, 563, 105 Cal.Rptr. 664.)   Prescribing controlled substances in an unreasonable amount or for unreasonable lengths of time seems plainly incompatible with prescribing controlled substances for a legitimate medical purpose in the usual course of professional practice.   Thus, incorporating section 11210's requirement within the instruction was not improper.

Our conclusion is supported by People v. Lonergan, supra, 219 Cal.App.3d 82, 267 Cal.Rptr. 887.   In that case, a physician was convicted of violating section 11153.   At trial, an instruction was used which was virtually identical to the instruction used here.   The Lonergan instruction was the same except for one phrase.   The Lonergan instruction read, “ ‘unless he varies so much as to be unreasonable in quantity or length of time, or to convince you, the jury, that he did not act in good faith.’ ”   (Id. at p. 90, fn. 2, 267 Cal.Rptr. 887, fn. 2, emphasis added.)   In this case, the jury instruction read, “unless he varies so much as to be unreasonable in quantity or length of time, or the evidence so convinces you, the jury, that he did not act in good faith.”  (Emphasis added.)

The Lonergan court decided the instruction was proper.   It specifically rejected the claim the instruction permitted the jury to convict the defendant for merely negligent behavior.   The court stated, “The court's instructions, read as a whole, clearly informed the jury that a doctor may lawfully prescribe controlled substances for a pathology even if his diagnosis is wrong, his prescription writing is negligent or his manner of practice differs from that of other doctors.   The instructions did not tell the jury that an unreasonable variance from the practice of other doctors was enough for a felony conviction.   Rather, they informed the jurors that they must be convinced beyond a reasonable doubt that appellant failed to comply with a good faith standard when he issued the prescriptions on which the charges were based.   Good faith was thoroughly defined.   In fact the jury's verdict of acquittal as to the prescription issued to [patient] on her visit to appellant ․ reflects a determination that on that occasion appellant indeed acted in good faith.”  (Id. at p. 92, 267 Cal.Rptr. 887.)   We agree with the reasoning of Lonergan.

Further, even if it was improper to include the language in the instruction, we think that the instruction, viewed as a whole, clearly did not permit the jury to convict appellant for simple negligence.   The instruction used the word “knowingly.”   Thus, the jury instruction required that appellant knowingly violate section 11153.   It was not enough for appellant to merely prescribe a controlled substance in an unreasonable quantity or length of time;  he had to have done so knowingly.

Moreover, in order to be convicted, the jury had to find beyond a reasonable doubt that appellant violated section 11153—which is a stronger standard than the standard imposed for civil negligence.  (See e.g. United States v. Vamos (2d Cir.1986) 797 F.2d 1146, 1153.)

Our conclusion is bolstered by the instruction phrase, “[i]t is immaterial whether the physician is correct in his diagnosis, improvident in his administration of controlled substance or varies from the practice of other physicians, unless he varies so much as to be unreasonable in quantity or length of time, or the evidence so convinces you, the jury, that he did not act in good faith.”  (Emphasis added.)   Use of the phrase “varies so much” shows that in determining good faith the jury could conclude that defendant's conduct was so unreasonable as to indicate that he acted in bad faith.

 “In determining if the trial court erred in giving or not giving jury instructions, the reviewing court must consider the instructions as a whole and must assume that the jurors are intelligent beings capable of understanding and correlating all the instructions which are given to them.  [Citations.]  The correctness of the jury instructions is to be determined from the entire charge of the court and not from parts of an instruction or from a particular instruction.”  (People v. Lonergan, supra, 219 Cal.App.3d 82, 91–92, 267 Cal.Rptr. 887.)

In People v. Rippberger (1991) 231 Cal.App.3d 1667, 283 Cal.Rptr. 111, the court discussed criminal negligence as it applied to the defense of good faith.   In that case, the good faith defense was raised by Christian Scientist parents whose infant daughter died of meningitis.   Her only treatment was through prayer.

The appellate court explained, “A finding of criminal negligence is made by the application of the objective test of whether a reasonable person in the defendant's position would have been aware of the risk involved.   If the trier of fact determines that, on an objective analysis, a reasonable person in that position would have been aware of the risk, then the defendant is presumed to have had such an awareness․  Criminal negligence may be found even when a defendant acts with a sincere good faith belief that his or her actions pose no risk.   As long as the trier of fact determines that the defendant was unreasonable in that belief, the defendant's actual subjective belief is irrelevant.”  (People v. Rippberger, supra, 231 Cal.App.3d at p. 1682, 283 Cal.Rptr. 111;  citing Walker v. Superior Court (1988) 47 Cal.3d 112, 136–138, 253 Cal.Rptr. 1, 763 P.2d 852, emphasis omitted.)

 Appellant claims section 11153 is unconstitutionally vague.   Similar arguments have already been rejected.  (People v. Demery, supra, 104 Cal.App.3d at pp. 555–556, 163 Cal.Rptr. 814;  People v. Nunn (1956) 46 Cal.2d 460, 469, 296 P.2d 813;  People v. Braddock (1953) 41 Cal.2d 794, 801, 264 P.2d 521;  People v. Anderson, supra, 29 Cal.App.3d at p. 561, 105 Cal.Rptr. 664.)  People v. Gandotra, supra, 11 Cal.App.4th 1355, 1363–1365, 14 Cal.Rptr.2d 896 rejected a vagueness challenge to section 11153.   Appellant cites no authority holding that section 11153 is unconstitutionally vague.

 Finally, appellant claims he was prejudiced because the prosecutor's closing argument emphasized the objective consideration of appellant's conduct rather than subjective good faith.   However, surrounding circumstances are probative of subjective good faith.   The jury considers what appellant did, as well as what appellant says he meant to do.   To suggest that an objective consideration of appellant's prescribing practices is irrelevant to the jury's determination would mean that appellant's testimony that he acted in good faith would constitute an absolute defense.

Further, even if there was error, it could not have been prejudicial.   “Misstatement of the law concerning the elements of an offense or the defenses available to the accused is of course serious error.   Reversal is usually grounded upon a number of such misstatements, or upon erroneous instructions coupled with other errors, where the evidence is in substantial conflict.”  (5 Witkin & Epstein, Cal.Crim.Law (2d ed. 1989) § 2951, p. 3624, emphasis added.)   Reversal is not required unless there is a miscarriage of justice.   (People v. Epps (1973) 34 Cal.App.3d 146, 168, 109 Cal.Rptr. 733.)

In this case, there was a plethora of evidence that appellant failed to make any attempt at treating the relevant patients, except for prescribing medications.   The evidence established that appellant routinely failed to give physical examinations, conduct background into a patient's medical and family history, and did not order lab work, or refer the patient to other doctors.   Finally, the jury acquitted appellant of five of the counts of illegally prescribing a controlled substance.   Thus, the jurors were obviously able to distinguish between knowingly prescribing controlled substances without a legitimate medical purpose and lawful prescription practices.

III–V **

Disposition

Appellant's convictions for violating section 11153 are reversed.   Appellant's conviction for involuntary manslaughter is affirmed.

I agree with the majority opinion in all respects except its conclusion in Section I that the trial court had a sua sponte duty to define “addict.”   I agree that the word “addict” cannot be said to have a single commonly understood meaning.   I do not believe, however, that “addict” is an element of the offense of violating Health and Safety Code section 11153.   Nor do I find in this case that the term “addict” has a “ ‘technical meaning peculiar to the law.’ ”  (People v. Hill (1983) 141 Cal.App.3d 661, 668, 190 Cal.Rptr. 628.)   It seems to me that addiction, particularly within the context of a statute which focuses upon the treating practices of physicians, is essentially a medical rather than a legal concept.  (See, e.g., People v. Victor (1965) 62 Cal.2d 280, 300, 42 Cal.Rptr. 199, 398 P.2d 391 and People v. O'Neil (1965) 62 Cal.2d 748, 752, 44 Cal.Rptr. 320, 401 P.2d 928.)   Evidence of a patient's addiction may well bear upon the ultimate question whether the physician has acted in good faith and with a legitimate medical purpose in prescribing controlled substances for that patient.   But it does not, in my view, constitute a “general principle[ ] of law governing the case”, on which the trial court must instruct even in the absence of a request.  (People v. Flannel (1979) 25 Cal.3d 668, 681, 160 Cal.Rptr. 84, 603 P.2d 1.)   The meaning of addiction in this case was one component of an evidentiary theory developed through the testimony of the lay and expert witnesses and the argument of counsel.   There is no sua sponte duty to instruct on “specific points developed through the evidence introduced at the trial.”  (People v. Burns (1948) 88 Cal.App.2d 867, 873–875, 200 P.2d 134;  cf. People v. Flannel, supra, 25 Cal.3d at p. 681, 160 Cal.Rptr. 84, 603 P.2d 1.)   I would therefore conclude that there was no error here and I would affirm the judgment.

Appellant's argument on this issue is based upon the authority of the Supreme Court decisions in People v. Victor, supra, 62 Cal.2d 280, 42 Cal.Rptr. 199, 398 P.2d 391 and People v. O'Neil, supra, 62 Cal.2d 748, 44 Cal.Rptr. 320, 401 P.2d 928, and upon the subsequent Court of Appeal case, People v. Piangenti (1965) 235 Cal.App.2d 850, 45 Cal.Rptr. 538.   In Victor the court developed a three-part definition of addiction for purposes of the commitment statutes (former Pen.Code §§ 6500–6510, now Welf. & Inst.Code, § 3051).  O'Neil and Piangenti held that the failure to define addict in accordance with that definition in the context of Vehicle Code section 23105 was reversible error.

Former Vehicle Code section 23105 1 provided that it was a crime to drive a vehicle while “addicted to the use of any drug․”  Under prevailing case law interpreting that statute, an addict had been defined as a person who was “accustomed to or habituated to the use of narcotics.”  (People v. Kimbley (1961) 189 Cal.App.2d 300, 307, 11 Cal.Rptr. 519.)   If jurors considering a violation of section 23105 were to apply this definition of addict, however, they could conceivably convict a person who was, or had been, accustomed to using narcotics but posed no present danger on the highway.   The decisions in O'Neil and Piangenti were based in large part on the need to clarify for the jury the distinction between addiction and habituation, concepts which, as Victor had explained, were not synonymous.   In O'Neil, the trial court had given the incorrect definition.   In Piangenti, the court had given no instruction at all on the element of addiction.   In either case the failure to define addiction in accordance with the three components identified in Victor was error.

I agree with the reasoning in O'Neil and Piangenti but I find those cases to be distinguishable from ours.   First, unlike Vehicle Code section 23105, the statutory language of Health and Safety Code section 11153 includes “addict or habitual user.”   A more important difference, however, is that the status of a particular patient as an addict is not an element of the criminal conduct proscribed by section 11153.   The opening sentence of subdivision (a) states that “[a] prescription for a controlled substance shall only be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his or her professional practice.”   After explaining that both pharmacists and physicians bear responsibility for illegal prescriptions, the statute goes on, in subdivisions (a)(1) and (a)(2), to provide examples of prescriptions which are not legal prescriptions.   Subdivision (b) provides that “[a]ny person who knowingly violates this section” shall be subject to either felony or misdemeanor punishment.

As I read this statute, the elements of the offense are three:  (1) knowingly, (2) issuing a prescription for a controlled substance, and (3) for other than a legitimate medical purpose in the usual course of the physician's professional practice.   I would disagree with appellant's point of view that the only two illegal prescriptions under Health and Safety Code section 11153 are those specified in subdivisions (a)(1) and (a)(2).   Rather it seems to me that the opening sentence sets a broad standard for the issuance of prescriptions for controlled substances and subdivisions (a)(1) and (a)(2) are included as nonexclusive examples of ways the statute can be violated.   The language added when the statute was repealed and rewritten in 1982 was, in my opinion, primarily intended to strengthen and broaden the statute to encompass any prescribing practices outside the usual course of a physician's professional practice and with no legitimate medical purpose.

While there are few reported cases which have interpreted Health and Safety Code section 11153 since 1982, the two which have considered it appear to support the view I take.   In People v. Gandotra (1992) 11 Cal.App.4th 1355, 1363, 14 Cal.Rptr.2d 896, the Court of Appeal addressed a different aspect of the statute, but made the statement that “by its clear and unambiguous terms ․ [section 11153] prohibits practitioners from writing controlled substance prescriptions that have no legitimate medical purpose and that are outside the course of their usual professional practice.”

In People v. Lonergan (1990) 219 Cal.App.3d 82, 267 Cal.Rptr. 887, the Court of Appeal endorsed a lengthy instruction given by the trial court.   The trial court first informed the jury that “ ‘any person who knowingly issues a prescription for other than a legitimate medical purpose in the usual course of his professional practice is guilty of a felony,’ ” next explained in general the circumstances in which a physician's treatment with controlled substances would be consistent with a legitimate medical purpose and then stated that “ ‘[i]n order to convict the Defendant of any of the crimes charged against him you must be convinced beyond a reasonable doubt that he has failed to comply with this standard.’ ”   The court then further instructed the jurors in the language of subdivisions (a)(1) and (a)(2) of Health and Safety Code section 11153, telling them these were “ ‘among the ways a doctor can violate this [code section].’ ”  (Id. at p. 90, fn. 2, 267 Cal.Rptr. 887, fn. 2, emphasis added;  see also People v. Anderson (1972) 29 Cal.App.3d 551, 105 Cal.Rptr. 664 [court properly instructed on the elements of the offense of violating section 11162.5, the predecessor statute to section 11153.] )

Furthermore, appellant in this case was not charged with allegations that he had prescribed narcotics for addicts.   Rather the information set forth violations of Health and Safety Code section 11153 in terms of the three elements identified herein.   In each count it was alleged that defendant “did wilfully, unlawfully, knowingly, and feloniously prescribe and issue prescriptions for controlled substances to an individual, to wit [name of patient], without a legitimate medical purpose and not in the usual course of professional treatment.”   The jury verdict forms contained similar language.   The jurors were not asked to decide whether the patient in each case was an addict but whether the defendant was guilty or not guilty of violating section 11153 in that he “did wilfully, unlawfully, knowingly prescribe and issue prescriptions for a controlled substance to [patient] without a legitimate medical purpose and not in the course of professional treatment.”

The majority opinion concludes in section II that the instructions given in our case, which were modeled on those given in Lonergan, properly instructed the jurors on all of the elements of the offense of violating Health and Safety Code section 11153.   I agree with that conclusion.

Because I do not believe that “addict” is an element of Health and Safety Code section 11153, I would distinguish the decision in People v. Shoals (1992) 8 Cal.App.4th 475, 489–490, 10 Cal.Rptr.2d 296.  Shoals found a sua sponte duty to define the words “open” and “maintain” in Health and Safety Code section 11366.   That section provides that every person who “opens or maintains any place for the purpose of unlawfully selling, giving away, or using any controlled substance ․ shall be punished by imprisonment․”  The terms “open” and “maintain,” the court found, have a technical meaning peculiar to the law.   Because they were not defined, “[t]he jury was not instructed fully on the meaning of the elements of the offense․”  (People v. Shoals, supra, at p. 491, 10 Cal.Rptr.2d 296;  People v. Reynolds (1988) 205 Cal.App.3d 776, 252 Cal.Rptr. 637.)   Consequently, due process required reversal.  (People v. Shoals, supra, 8 Cal.App.4th at p. 490, 10 Cal.Rptr.2d 296.)

I would distinguish the several other cases cited by the appellant on the same basis, that the words in question had a “technical meaning peculiar to the law” and in each instance constituted an element of the offense.  (People v. Burns, supra, 88 Cal.App.2d 867, 873–875, 200 P.2d 134 [“traumatic condition”];  People v. Smith (1978) 78 Cal.App.3d 698, 710, 144 Cal.Rptr. 330 [“assault”];  People v. McElheny (1982) 137 Cal.App.3d 396, 403, 187 Cal.Rptr. 39 [“assault”];  see also CALJIC No. 12.45, which contains an instruction on “addict” for purposes of Penal Code section 12021, subdivision (a)(1), possession of a firearm by an addict.)

The majority concludes there was reversible error here because, even if not technically an element of the offense, the question of each patient's addiction was a material issue at trial, in fact was “the pivotal theory around which the case revolved, and upon which appellant was required to defend.”   To be sure there was abundant, and divergent, testimony during the course of this trial devoted to the meaning of addiction as that concept relates to pain management.   It was apparent that the medical community is divided on the question of the appropriate use of narcotics for treatment of patients in chronic pain.   One thing made clear by the expert testimony is that there is no commonly accepted medical standard by which to measure how much is too much to prescribe for any given patient presenting with complaints of chronic pain.   As appellant testified, each case will depend upon the doctor's assessment of the particular patient's level of comfort and ability to function.

As I view the record in this case, appellant's guilt or innocence did not turn simply on the question whether the patient was addicted to painkilling narcotics.   Indeed in several cases appellant's office notes indicated that the patient was abusing, overusing, habituated to or even addicted to the narcotics.   Rather the question was whether under the circumstances of each particular case, appellant's prescriptions of narcotics served a legitimate medical purpose.   That required the jury to evaluate all of the evidence introduced at trial in order to determine whether the doctor was treating the patient in good faith.   The evidence included not only evidence bearing on the patient's addiction, such as the amounts of drugs prescribed, the nature and effects of the particular drugs, the frequency of the prescriptions, whether the amounts increased, and whether the patient frequently made excuses about lost or stolen drugs or engaged in other drug-seeking behavior, but it also included evidence of appellant's conduct in relation to that patient, such as whether prescriptions were issued without seeing the patient, the extent of any physical examination performed, the presence or absence of any case history taken, and whether the doctor referred the patient to specialists or tried other treatments before prescribing narcotics.   And finally the jury was required to test this mass of evidence against the range of expert medical testimony on customary procedures and practices in the community and on the subject of the complex interrelation between pain management and prescription drug addiction.

Defense counsel emphasized in closing that “this case comes down to really in large portion the issue of good faith.   Did Dr. Schade act in good faith?”   The jury was instructed on good faith at defendant's request, as follows:  “You have heard evidence that Dr. Schade prescribed controlled substances in good faith to treat the patient's pain.  [¶] If you believe after considering all of the evidence as to each count of a violation of Health and Safety Code section 11153 that Dr. Schade acted in good faith in treating the patient you must acquit him of that charge.”   In virtually all of the 21 counts submitted to the jury, there was considerable evidence relating to addiction.   In every case appellant had prescribed substantial amounts of narcotics over extended periods of time.   In my view the jury's verdicts of acquittal on eight counts reflect a determination, based upon all of the evidence, that appellant's treatment of those patients was in good faith for a legitimate medical purpose.  (See People v. Lonergan, supra, 219 Cal.App.3d at p. 92, 267 Cal.Rptr. 887.)

I believe the question of the patient's addiction to the prescribed drugs in each case was an important part of the evidence developed at trial.   But I do not see it as a “general principle[ ] of law governing the case.”  (People v. Flannel, supra, 25 Cal.3d at p. 681, 160 Cal.Rptr. 84, 603 P.2d 1.)   And I do not believe the circumstances of record warranted the extraordinary step of judicial interference in the management of defendant's case.   It is entirely possible, particularly in light of the consensus of the experts that there is no accepted standard in this area of medical practice, that counsel may have decided against requesting an instruction which would limit the jurors' consideration of the myriad circumstances of each patient's case by introducing the standardized three-part definition developed in Victor.   Tactical decisions such as this must be entrusted to the parties in the first instance.   In any event no such instruction was requested here, and in my opinion none was required sua sponte.

I would find no error and I would therefore affirm all of the judgments of conviction for violating Health and Safety Code section 11153.

FOOTNOTES

1.   All further unspecified statutory references are to the Health and Safety Code.

2.   Former section 11153 provided, “The responsibility for the proper prescribing and dispensing of controlled substances is upon the practitioner, but a corresponding liability rests with the pharmacist who fills the prescription.   An order purporting to be a prescription issued to an addict or habitual user of controlled substances, which is not in the course of professional treatment nor part of an authorized methadone maintenance program, for the purpose of providing the user with controlled substances, sufficient to keep him comfortable by maintaining his customary use, is not a prescription within the meaning and intent of this division;  and the person filling such an order, as well as the person issuing it, may be charged with violation of the law.”  (Stats.1972, ch. 1407, § 3, pp. 3001–3002.)

3.   Section 4 of Statutes 1982, chapter 1284, page 4753, provides, “It is the intent of the Legislature that the provisions of this act be construed so as not to overrule any case law or other judicial findings interpreting Section 11153 of the Health and Safety Code.”

4.   The United States Code also includes definitions of the word “addict.”   Under 21 United States Code section 802, addict is defined as, “The term ‘addict’ means any individual who habitually uses any narcotic drug so as to endanger the public morals, health, safety, or welfare, or who is so far addicted to the use of narcotic drugs as to have lost the power of self-control with reference to his addiction.”Under 42 United States Code, section 201(k), an addict is defined as “any person who habitually uses any habit-forming narcotic drugs so as to endanger the public morals, health, safety, or welfare, or who is or has been so far addicted to the use of such habit-forming narcotic drugs as to have lost the power of self-control with reference to his addiction.”

5.   Even though we conclude that appellant's convictions for violating section 11153 must be reversed, we will consider appellant's other contentions since they may arise upon retrial.

FOOTNOTE.   See footnote *, ante.

1.   Vehicle Code section 23105 was repealed by Stats.1981, c. 940, p. 3568, sections 18, 19.   It is now contained in Vehicle Code section 23152, subdivision (c).

ELIA, Associate Justice.

COTTLE, P.J., concurs.