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Court of Appeal, Second District, Division 1, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Timothy Allen FOSTER, Defendant and Appellant.

Cr. 13572.

Decided: March 14, 1968

V. Lane Knight, Torrance, by appointment of the Court of Appeal, for appellant. Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., George J. Roth and Philippe J. Monet, Deputy Attys. Gen., for respondent.

By information defendant was charged with possession of marijuana in violation of section 11530, Health & Safety Code; a jury found him guilty. His motion for a new trial was denied and he was sentenced to the state prison for the term prescribed by law. Defendant appeals from the judgment and order denying motion for a new trial. The appeal from the order is dismissed (s 1237, Pen.Code; People v. Ing, 65 Cal.2d 603, 614, 55 Cal.Rptr. 902, 422 P.2d 590.)

On April 15, 1966, around 2:20 a.m., Officer Corbett, on a burglary stake-out, after observing defendant's suspicious conduct, attempted to apprehend him in his automobile after identifying himself and requesting defendant to pull to the curb; defendant looked at the officer and started speeding down Sunset Boulevard; a chase with siren and spotlight ensued during which the officer observed him extend his left arm out of the driver's window and throw a bottle containing marijuana over the roof of the car onto the lawn of a house; upon defendant's arrest a search of his pants pocket revealed some zig-zag papers.

Appellant's sole contention is that section 11530, Health and Safety Code, does not properly describe a crime and that a violation of the provisions thereof, either by act or omission, is not punishable because the ‘possession of a narcotic’ is not an act proscribed by the Penal Code; that Penal Code, section 6, forbids punishment for criminal acts except as prescribed or authorized by the Penal Code.

The Penal Code became effective in 1873; it contained section 61 which remains in effect today. The Legislature captioned the section ‘Effect of Code Upon Past Offenses'; and by its own terms section 6 was intended to affect only past offenses. All it says is that after 12 o'clock noon on January 1, 1873, the only acts cognizable as crimes in California are those defined in the Penal Code and the statutes which were specifically preserved by it and in those municipal, county or township ordinances in force at that time. Penal Code, section 23, which enumerated the statutes ‘continuing in force’ referred to in section 6, was repealed in 1959, leaving no such statutes in effect. Thus, if we give validity to appellant's contention contrary to legislative intent, the result would be a removal from the list of crimes in California any not set forth in the Penal Code, and an invalidation of all city and county ordinances having criminal sanctions passed after January 1, 1873.

It is clearly apparent from the language of section 6 that the Legislature never intended to limit criminal offenses in this state to those listed in the Penal Code; its only intention was thereby to eliminate common law or statutory offenses existing prior to 1873 except for those which it specifically provided would continue in existence. Nor does it appear from section 6 that the Legislature intended to regulate future legislative acts (criminal laws) or direct where they shall be placed or prohibit future Legislatures from placing criminal statutes in other codes for convenience. Thus, we find no inconsistency between section 6 and section 11530, Health and Safety Code.

To our knowledge no reported case involves the specific issue herein raised, although on various grounds our courts have upheld the constitutionality of California statutes prohibiting the possession of narcotics and dangerous drugs. (See People v. Widener, 220 Cal.App.2d 826, 830, 34 Cal.Rptr. 130; People v. Glaser, 238 Cal.App.2d 819, 824, 48 Cal.Rptr. 427, and cases cited therein.) A statutory provision otherwise constitutional and valid is not void simply because found in any particular code (County of Butte v. Merrill, 141 Cal. 396, 399, 74 P. 1036), and there is no requirement that penal statutes to be valid be a part of the Penal Code. (Ex parte Liddell (1892), 93 Cal. 633, 29 P. 251.) In Liddell, the Supreme Court said at page 640, 29 P. at page 253: ‘We think there is no merit in the contention that section 16 (State Reform School Act) is void because not made a part of the Penal Code. It is true, it could have been enacted as an amendment to the Code, and perhaps it would have been more consistent with our system of codification if it had been, but We know of no provision which requires penal statutes to be made a part of the Code.’ (Emphasis added.) In In re Porterfield (1946), 28 Cal.2d 91, 168 P.2d 706, at page 712, 167 A.L.R. 675, on code separation the Supreme Court said: ‘The mere fact that labor unions are treated in the Labor Code and professions in general by the Business and Professions Code does not mean that the act of an employee of a labor union in soliciting workers to become members of a particular union does not constitute engaging in an occupation or business subject to license for purposes of regulation or revenue. Labor unions exist for very practical business as well as social reasons. The code separation is for convenience only. It is a well-recognized rule that for purposes of statutory construction the codes are to be regarded as blending into each other and constituting but a single statute. (Proctor v. Justice's Court (1940), 209 Cal. 39, 43, 285 P. 312; County of Butte v. Merrill (1903), 141 Cal. 396, 399, 74 P. 1036; Clarke v. Mead (1894), 102 Cal. 516, 520, 36 P. 862.)’

Since there is nothing in section 6, Penal Code, directing future Legislatures where to place criminal laws, a statutory provision otherwise constitutional and valid is not void because found outside of the Penal Code and there is no requirement that penal statutes be made a part of the Penal Code, we conclude that section 6 does not forbid punishment for a criminal act which is a violation of the provisions of section 11530 of the Health and Safety Code.

Inasmuch as we find no inconsistency between section 6, Penal Code, and section 11530, Health and Safety Code, we deem it unnecessary to discuss whether the later statute making acts proscribed by the Health and Safety Code criminal, effects an implied repeal of Penal Code, section 6.

The judgment is affirmed.


1.  ‘No act or omission, commenced after twelve o'clock noon of the day on which this Code takes effect as a law, is criminal or punishable, except as prescribed or authorized by this Code, or by some of the statutes which it specifies as continuing in force and as not affected by its provisions, or by some ordinance, municipal, couty, or township regulation, passed or adopted, under such statutes and in force when this Code takes effect. Any act or omission commenced prior to that time may be inquired of, prosecuted, and punished in the same manner as if this Code had not been passed.’

LILLIE, Associate Justice.

WOOD, P.J., and FOURT, J., concur.

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