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

PEOPLE of the State of California, Plaintiff and Appellant, v. David Leroy DANIELS, Defendant and Respondent.

David Leroy DANIELS, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF SAN BERNARDINO, Respondent; PEOPLE of the State of California, Real Party in Interest.

Cr. 6451, Civ. 13648.

Decided: October 11, 1974

Lowell E. Lathrop, Dist. Atty. and Joseph A. Burns, Deputy Dist. Atty., for the People. Charles E. Ward, Public Defender, and Henry R. Kraft, Deputy Public Defender, for David Leroy Daniels.


Defendant was charged with and convicted after a trial by jury of two counts of selling a restricted dangerous drug (former Health & Saf.Code, § 11912).1 He thereafter moved for a new trial, and the motion was granted by the trial court on the basis that an erroneous instruction had been given to the jury. The People appeal from the order of the court granting the motion for a new trial. Defendant2 petitions this court for a writ of mandate/prohibition seeking to restrain the superior court from taking any further steps or proceedings, including the retrial of defendant, on the ground that destruction of physical evidence deprived defendant of due process.


At approximately 7 p. m. on February 23, 1972, Raul Cervantes, a special officer employed by the Barstow Police Department, stopped to give three hitchhikers a ride in his car. Defendant got into the back seat on the lefthand side of the car, The two other hitchhikers, who later identified themselves as ‘Robert’ and ‘Keith,’ got into the car. Robert sat in the back on the right side and Keith sat in the front passenger seat. As Cervantes drove, Keith asked him if he knew anyone who wanted to buy some ‘orange sunshine,’ a term which Cervantes knew from experience referred to LSD. Cervantes replied, ‘yes, I do, how much a hit [?]’ Keith replied, $2 a hit.' Cervantes said that he would take five hits. Defendant handed Cervantes five small orange barrel-shaped tablets. Cervantes then gave Keith $10 from Barstow city funds.

The hitchhikers had asked Cervantes to drop them off at a gas station. As he was pulling into the gas station, Cervantes said to no one in particular, ‘why don't you meet me here tomorrow and I will buy some more [?]’ Defendant answered, ‘how about 11:00 o'clock [?]’ Cervantes replied, ‘I will be here; if you will.’ Defendant then arranged to meet Cervantes the following day in front of a music store across the street from the gas station.

On the following day, Cervantes met defendant as arranged. Defendant said he did not have the ‘stuff’ because he did not know whether Cervantes was a narcotics officer. Defendant and Cervantes then walked across the street to some railroad tracks. Defendant then picked up a small yellow plastic prescription jar next to the railroad tracks. He asked Cervantes how many he wanted. Cervantes said he would take ten. Defendant counted out ten capsules, put them back into the container and handed it to Cervantes. Cervantes gave defendant $20 from Barstow city funds.

After receiving the tablets on each occasion, Cervantes marked each tablet with his initials and the date and turned the evidence over to Sergeant Robert Eaton of the Barstow Police Department.

The evidence was placed in an evidence locker at the police department, and was later delivered personally by an employee of the police department to the crime laboratory of the San Bernardino County Sheriff's Department.

The tablets were tested by a criminalist who determined that they contained a lysergic acid derivative.

Defendant was arrested in April 1972. He was arraigned on April 6 and released on his own recognizance on April 13. Defendant failed to appear in court on May 18, 1972, the date set for preliminary hearing, and a bench warrant was issued. Defendant was located in Ohio. He refused to waive extradition, and a governor's warrant was issued on July 19, 1973. Defendant was then returned to California.

It appears that sometime in March 1973 the evidence in the custody of the crime laboratory (the tablets and prescription container) was destroyed pursuant to a laboratory policy of destroying evidence one year after its receipt unless otherwise directed. Defense counsel had received laboratory reports through the normal process of discovery, but did not discover the destruction of the evidence until the commencement of trial.

The Appeal


The trial court granted the motion for new trial on the ground that it should have given an instruction on specific intent (CALJIC 3.31) rather than the instruction on general intent it gave (CALJIC 3.30). On appeal, the People contend that the offense of selling a restricted dangerous drug in violation of former Health and Safety Code, section 11912 [now section 11379] is a general intent crime and not a specific intent crime.


The trial court principally relied on People v. Holquin, 229 Cal.App.2d 398, 40 Cal.Rptr. 364, in granting the new trial motion. In Holquin, the court, relying on People v. Brown, 55 Cal.2d 64, 9 Cal.Rptr. 816, 357 P.2d 1072, and People v. Jackson, 59 Cal.2d 468, 30 Cal.Rptr. 329, 381 P.2d 1, held that the crime of furnishing a narcotic required the specific intent to furnish a narcotic. (People v. Holquin, supra, 229 Cal.App.2d at p. 402, 40 Cal.Rptr. 364.) Both Brown and Jackson, however, involved offers to sell. In both cases, the Supreme Court held that a person is guilty of the offense of offering to sell narcotics if he makes an offer to sell with the specific intent to sell a narcotic. (People v. Brown, supra, 55 Cal.2d at p. 68, 9 Cal.Rptr. 816, 357 P.2d 1072; People v. Jackson supra, 59 Cal.2d at pp. 469–470, 30 Cal.Rptr. 329, 381 P.2d 1.)3

Apparently the first time specific intent is mentioned in relation to a sale is in People v. Holquin, supra, 229 Cal.App.2d at page 402, 40 Cal.Rptr. at page 366, where the court said: ‘. . . the reasoning of the Brown and Jackson cases, supra, establishing that a specific intent to effect a change of possession of a narcotic upon a sale or offer to sell is an element of those crimes, applies with equal force to the crime of furnishing a narcotic.’ Holquin's misreading of Brown and Jackson in reciting that a specific intent is necessary where a person is charged with a sale of a narcotic was repeated in dicta in People v. Newman, 5 Cal.3d 48, 54, 95 Cal.Rptr. 12, 16, 484 P.2d 1356, 1360, where the Supreme Court said: ‘As we have seen, section 11911 requires proof that defendant possessed dangerous drugs for the purpose of selling them. [Citation.] As such, it seems apparent that the offense is a ‘specific intent’ crime akin to the crimes of selling or offering to sell a narcotic (see People v. Jackson, 59 Cal.2d 468, 469, 30 Cal.Rptr. 329, 381 P.2d 1; People v. Brown, 55. Cal.2d 64, 68, 9 Cal.Rptr. 816, 357 P.2d 1072; People v. Monteverde, 236 Cal.App.2d 630, 637, 46 Cal.Rptr. 206), or furnishing a narcotic (see People v. Holquin, 229 Cal.App.2d 398, 402–403, 40 Cal.Rptr. 364).' It is notable that People v. Monteverde, 236 Cal.App.2d 630, 46 Cal.Rptr. 206, is also a case in which the defendant was convicted of offering to sell a narcotic. There, the court said: ‘A breach of the applicable statute (Health & Saf.Code, § 11501) occurs when there is an offer to sell the narcotic, accompanied by a specific intent to sell [citations].’ (236 Cal.App.2d at p. 637, 46 Cal.Rptr. at p. 212.)

Neither Holquin nor Newman, therefore, explicitly holds that a specific intent is a necessary element of the crime of selling a narcotic. Nor do Brown or Jackson or Monteverde stand for that proposition. Indeed, the parties have not cited, nor have we found, a case which holds that a specific intent to sell is a necessary element in the crime of sale of a restricted dangerous drug.

Moreover, several cases seem to suggest that a specific intent to sell is not an essential element. (See, e. g., People v. Innes, 16 Cal.App.3d 175, 178, 93 Cal.Rptr. 829, 831 [‘The elements of the offense of selling a restricted dangerous drug are the sale thereof with knowledge of the dangerous drug character of the substance sold.’]; People v. Lopez, 254 Cal.App.2d 185, 188, 62 Cal.Rptr. 47, 50 ['the elements of the offense charged in the instant case are the sale, exchange, barter, or gift of marijuana with knowledge that the substance so handled is a narcotic.']; People v. Ballard, 145 Cal.App.2d 94, 99, 302 P.2d 89, 92 [‘the prosecution must show that the defendant knew the narcotic character of the substance sold by him.’].)

Actually, the labels ‘specific intent’ and ‘general intent’ are of little utility because the meaning of those terms vary with the context in which they are used. (See People v. Hood, 1 Cal.3d 444, 456, 82 Cal.Rptr. 618, 462 P.2d 370; People v. Rocha, 3 Cal.3d 893, 897, 92 Cal.Rptr. 172, 479 P.2d 372.) If we must characterize the crime of selling a restricted dangerous drug as one or the other, we are compelled to the conclusion that it is a general intent crime. ‘When the definition of a crime consists of only the description of a particular act, without reference to intent to do a further act or achieve a future consequence, we ask whether the defendant intended to do the proscribed act. This intention is deemed to be a general criminal intent. When the definition refers to defendant's intent to do some further act or achieve some additional consequence, the crime is deemed to be one of specific intent.’ (People v. Hood, supra, 1 Cal.3d at pp. 456–457, 82 Cal.Rptr. at p. 626, 462 P.2d at p. 378.) (Emphasis supplied.)

Thus in the case of selling a restricted dangerous drug the only intent necessary is to do the proscribed act, selling, with knowledge of the character of the drug. In an offer to sell, the proscribed act is the making of an offer. The intent must be to do a further act, i. e., sell. Thus Brown, Jackson and Monteverde all correctly hold that the offense of offering to sell must be accompanied by the specific intent to sell. But in the crime of selling, the defendant need only to intend to do the proscribed act, selling, and the crime is, therefore, a general intent crime.

But getting away from these not-too-helpful labels, the real question is whether the jury was correctly or incorrectly instructed as to the law. The court instructed the jury in the words of CALJIC 3.30 and CALJIC 12.21. CALJIC 3.30, as given by the court, read as follows: ‘In the crime charged in [Count of] [sic] the information, there must exist a union or joint operation of act or conduct and criminal intent. To constitute criminal intent it is not necessary that there should exist an intent to violate the law. Where a person intentionally does that which the law declares to be a crime, he is acting with criminal intent, even though he may not know that his act or conduct is unlawful.’ CALJIC 12.21, as given by the court, read: ‘Every person who sells, furnishes, or gives away a restricted dangerous drug with knowledge that the substance is a restricted dangerous drug, is guilty of a crime. Lysergic Acid derivative is a restricted dangerous drug.’

The jury was instructed that in order to find defendant guilty they must find he intended to do that which he did do, namely, sell a dangerous restricted drug, with knowledge that the substance was a dangerous restricted drug. The instructions were therefore proper, and the court's granting of the motion for new trial was error.

The Writ

After defendant's motion for new trial was granted, defendant made a non-statutory motion to suppress evidence pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215. The motion was denied. Defendant thereafter filed the instant petition.

Defendant seeks to restrain the superior court from proceeding to a new trial, on the ground that the destruction of the physical evidence in this case deprived the defendant of due process. Defendant contends that were the evidence not destroyed, the defense could have (1) established whether defendant's fingerprints appeared on the pill container, (2) ascertained whether the tablets contained lysergic acid diethylamide or any derivative or lysergic acid, or (3) established whether the substance had any hallucinogenic potential whatsoever.4

Inasmuch as we have determined in the appeal that the trial court erred in granting the motion for new trial, there will be no new trial, and the petition is rendered moot. (See 5 Witkin, Cal.Procedure (2d ed.) pp. 3893–3894.) We, therefore, do not reach the merits of the issues raised in the petition.


The order granting new trial is reversed, and the trial court is directed to enter judgment in accordance with the jury verdicts. The alternative writ heretofore issued is discharged and the petition for writ of mandate/prohibition is dismissed.


1.  Former Health and Safety Code, section 11912 read in pertinent part: ‘[E]very person who transports, imports into this state, sells, manufactures, compounds, furnishes, administers, or gives away, or offers to transport, import into this state, sell, manufacture, compound, furnish, administer, or give away, or attempts to import into this state or transport any restricted dangerous drug, except upon the prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, shall be punished by imprisonment in the state prison . . . ’‘Restricted dangerous drugs'was defined in former Health and Safety Code, section 11901 as including: ‘Lysergic acid,’ ‘LSD’ (lysergic acid diethylamide) . . . including their salts and derivatives, or any compounds, mixtures, or preparations which are chemically identical with such substances.'

2.  Defendant-Petitioner is hereinafter referred to as defendant.

3.  The elements of the offense of selling or offering to sell a restricted dangerous drug and that of the offense of selling or offering to sell narcotics are identical. (People v. Innes, 16 Cal.App.3d 175, 178, 93 Cal.Rptr. 829; People v. Allen, 254 Cal.App.2d 597, 600–601, 62 Cal.Rptr. 235.)

4.  We observe that had defendant not fled the jurisdiction, the evidence would have been in existence at the time of his trial inasmuch as the evidence was not destroyed until the lapse of one year from the time of receipt by the crime laboratory. Moreover, defendant's counsel made no request to examine the physical evidence until after being notified at the commencement of trial that the evidence had been destroyed.

KAUFMAN, Associate Justice.

GARDNER, P. J., and KERRIGAN, J., concur.

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