The PEOPLE, Plaintiff and Respondent, v. John G. ASTON et al., Defendants and Appellants.
OPINION ON REHEARING
Defendants John G. Aston and Carlita L. Hallett appeal from judgments (orders of probation) of conviction for unlawful possession for sale of cocaine, a controlled substance. (Health & Saf.Code, § 11351.)1 The trial court instructed the jury that it is unlawful to possess a controlled substance, “such as cocaine”, for sale.2 The People's chemical evidence showed only that the substance was (simply) “cocaine.” This led the jury to presuppose that the controlled substance statute regulates a discrete substance called cocaine which was the substance possessed by the defendants. The presupposition is false. The defendants attempted to show this by an instruction which informed the jury that only one form of cocaine, l-cocaine, is a controlled substance. The court refused to give the instruction. As a consequence an element of the offense was effectively removed from jury consideration and proof by the People. For that reason we will reverse the judgments.
On April 10, 1980, a search of defendants' residence, authorized by warrant, turned up quantities of a white powder, mainly packaged in paper bindles, and paraphernalia associated with the use of cocaine (razor blades, straws, a handheld mirror, a small spoon). Bruce Palmer, a State Department of Justice criminalist, tested the white powder and identified it simply as “cocaine.” The amount in the bindles was 6.83 grams, distributed mostly in one-gram and half-gram quantities. On cross-examination, Palmer was asked about the difference between l- (levo-) cocaine and d- (dextro-) cocaine. He explained that l-cocaine is an isomeric form derived from the coca leaf, whereas d-cocaine is “manufacture[d]” and is not “found in nature.” He testified that a polarimeter test would distinguish between them but that none of the tests he conducted would.
The defense offered testimony by its chemist, Dr. Ronald Siegel, which was heard outside the presence of the jury. Dr. Siegel agreed with Palmer: l-cocaine, he said, is derived from the coca leaf; d-cocaine is not, it is an isomer of cocaine which can be obtained only by synthesis. He testified they are not “chemically equivalent.” Moreover, he said, d-cocaine is not “pharmacologically active,” l-cocaine “produces all of the pharmacological affects [sic].” Siegel could not say whether the substance found in defendant's possession was l- or d-cocaine, since he had not performed any tests on it. He did say that d-cocaine “is not commonly found,” and is, in fact, “rare, very rare;” however, he had once encountered it in analyzing a “street seizure.” The trial court excluded the proffered testimony, saying it was improbable the substance tested was d-cocaine and refused a proposed defense instruction that the jury must find, beyond a reasonable doubt, that the substance was l-cocaine.3
“L-cocaine or [d]-cocaine? That is the question.” (U.S. v. Bockius (5th Cir.1977) 564 F.2d 1193, 1194.)
The instruction given by the trial court (See fn. 2, ante.), together with the People's chemical tests, led the jury to presuppose that the controlled substance statute regulates a discrete substance called cocaine. The defendants' instruction challenged the presupposition. It singled out l-cocaine as the only controlled form of cocaine and thereby tendered the definitional question: which forms of cocaine are controlled substances? 4 The defendants' evidence that there is a substance called d-cocaine, which is not chemically equivalent to l-cocaine and is not pharmacologically active, was offered in aid of that definitional purpose. The trial court refused the defendants' instruction because their expert witness testified d-cocaine is rarely found. In so doing the trial court confused the definitional question—Is d-cocaine a statutorily controlled substance?—with the adjudicative question—Is the substance possessed actually d-cocaine?
The source of the trial court's confusion is its treatment of the requested instruction as a pinpoint instruction. A pinpoint instruction pinpoints the evidentiary theory of the defense, directs the attention of the jury to the evidence to which the theory is material, and emphasizes that the People bear the burden of ultimate persuasion on the issue thus pinpointed. (See People v. Adrian (1982) 135 Cal.App.3d 335, 185 Cal.Rptr. 506.) A pinpoint instruction presupposes that the jury has been adequately instructed on the substantive elements of the offense. It does not resolve a question of statutory meaning. (See e.g. People v. Rincon-Pineda (1975) 14 Cal.3d 864, 885, 123 Cal.Rptr. 119, 538 P.2d 247 [corroboration]; People v. Sears (1970) 2 Cal.3d 180, 189–190, 84 Cal.Rptr. 711, 465 P.2d 847 [motive]; People v. Roberts (1967) 256 Cal.App.2d 488, 492–494, 64 Cal.Rptr. 70 [identification]; People v. Gomez (1972) 24 Cal.App.3d 486, 490, 100 Cal.Rptr. 896 [alibi]; People v. Sanchez (1947) 30 Cal.2d 560, 184 P.2d 673 [self defense].) Since a pinpoint instruction generally “relat[es] particular facts to [a] legal issue” (Sears, supra, 2 Cal.3d at p. 190, 84 Cal.Rptr. 711, 465 P.2d 847), it need not be given unless the “particular facts” are before the jury. That, of course, requires admissible evidence of such facts. The trial court refused defendants' instruction for lack of admissible evidence (to pinpoint). It said it was the “remotest of possibilities” the substance was d-cocaine. (See fn. 3, ante.) That meant, so the court said, that the evidence was speculative and consequently irrelevant. (See Evid.Code, § 210; 1 Jefferson, Evidence Cal. Benchbook (2d ed. 1982) § 21.3 (rule (2).) 5
But the defendants did not offer the evidence to show the substance they possessed was in fact d-cocaine.6 That fact becomes material only upon resolution of the definitional question.
A definitional question requires a definitional answer. That turns here on the meaning of the controlled substance statute. The semantic task is a judicial one. The “interpretation of a statute and the question of its applicability to any given set of facts are exclusively the province of the court.” (People v. Thomas (1945) 25 Cal.2d 880, 897, 156 P.2d 7; see also Pen.Code § 1124, Evid.Code § 310.) It is true that not every statute requires a judicial interpretation. Some employ words “commonly understood by those familiar with the English language ․” (People v. Anderson (1966) 64 Cal.2d 633, 639–640, 51 Cal.Rptr. 238, 414 P.2d 366.) Their meanings are fixed by the way the language is commonly used by the lay public. (See People v. Kimbrel (1981) 120 Cal.App.3d 869, 872, 174 Cal.Rptr. 816.) The jury, being a part of that public, can be expected to understand and correctly apply the language and may be safely instructed in the words of the statute. But if a statute has a “technical meaning peculiar to the law”, the court must determine its meaning and instruct the jury accordingly. (See People v. Anderson, supra, 64 Cal.2d pp. 639–640, 51 Cal.Rptr. 238, 414 P.2d 366; see also People v. Thomas, supra, 25 Cal.2d 880, 156 P.2d 7; 18 Cal.Jur.3d, Criminal Law, § 875, pp. 586–587.)
The People claim the language of section 11055 is sufficiently common that it can be understood and applied by the jury.7 That claim is belied by the technical terms of the statute. The People rely on federal cases, involving the virtually identical federal controlled substances act,8 which say or imply that it is the jury's function to resolve the definitional question whether d-cocaine is a controlled substance. (See United States v. Orzechowski (7th Cir.1976) 547 F.2d 978, 985–986, cert. den. 431 U.S. 906, 97 S.Ct. 1701, 52 L.Ed.2d 391; United States v. Umentum (7th Cir.1976) 547 F.2d 987, 992–993, cert. den. 430 U.S. 983, 97 S.Ct. 1677, 52 L.Ed.2d 376; United States v. Wilburn (10th Cir.1977) 549 F.2d 734, 737; United States v. Hall (9th Cir.1977) 552 F.2d 273, 275–276; United States v. Posey (10th Cir.1981) 647 F.2d 1048, 1052–1053; cf. United States v. Bockius, supra, 564 F.2d at p. 1194, fn. 1 (“For purposes of this appeal, we will assume ․ that of the eight cocaine isomers L-cocaine is the only illegal form of [cocaine].”); United States v. Luschen (8th Cir.1980) 614 F.2d 1164, 1169 (issue waived).) Courts in three other states have reached the same conclusion. (People v. Phelan (1981) 99 Ill.App.3d 925, 55 Ill.Dec. 600, 426 N.E.2d 925; Leavitt v. State (Fla.App.1979) 369 So.2d 993; State ex rel. Huser v. Rasmussen (1978) 85 Wis.2d 441, 270 N.W.2d 62, on rehg. from 84 Wis.2d 600, 267 N.W.2d 285; State v. McNeal (1980) 95 Wis.2d 63, 288 N.W.2d 874.) 9
We take issue with these cases in only one respect. They confuse the functions of court and jury. They do so, we think, because of a failure to distinguish between two kinds of facts, adjudicative facts and legislative facts. These kinds of facts are distinguished chiefly by the purposes they serve. Adjudicative facts are “facts concerning the immediate parties—who did what, where, when, how, and with what motive or intent ․” (2 Davis, Administrative Law Treatise, § 15.03, p. 353.) Adjudicative facts are normally a matter for jury determination. Legislative facts, on the other hand, are “facts which help the tribunal determine the content of law and of policy and help the tribunal to exercise its judgment or discretion in determining what course of action to take.” (Ibid.) They are naturally a matter for judicial determination. Facts relevant to the determination of statutory meaning are legislative in kind because they help the tribunal determine the content of law. (See generally, McCormick, Evidence (2d ed. 1972) Judicial Notice, § 328, p. 759.) We are here concerned with legislative facts. To what substances does the language of section 11055 refer? Is d-cocaine among them? The answer involves not only the text and syntax of the section, but, because the statute uses terms of organic chemistry, the facts of organic chemistry as well. These facts bear on meaning because they are facts relevant to a specialized language usage.
United States v. Gould (8th Cir.1976) 536 F.2d 216 is instructive on this point. At issue was whether cocaine hydrochloride is a “derivative” (a statutory term) of the coca leaf and is thereby a controlled substance as defined by federal law. (See fn. 6, ante.) The court said: “The District Court ․ was judicially noticing such a legislative fact when it recognized that cocaine hydrochloride is derived from coca leaves and is a schedule II controlled substance within the meaning of § 812 [of the federal law]. [¶] Through similar reasoning, this judicially noticed fact simply cannot be appropriately categorized as an adjudicative fact. It does not relate to ‘who did what, where, when, how, and with what motive or intent,’ nor is it a fact which would traditionally go to the jury. See 2 K. Davis, Administrative Law Treatise ․ at § 15.03. The fact that cocaine hydrochloride is a derivative of coca leaves is a universal fact that is unrelated to the activities of the parties to this litigation.” (Id., at p. 220.) To let the jury decide this question “would be preposterous, ․ permitting juries to make conflicting findings on what constitutes controlled substances under [the] law.” (Gould, supra, 536 F.2d at p. 221.). Indeed, if the meaning of “controlled substance” could jump about from case to case, the statute would quickly run aground on constitutional shoals. Juries are transitory, the meaning of a criminal statute cannot be.
The source of confusion in the federal cases is that the facts concerning the existence and properties of d-cocaine are used both to establish the meaning of “controlled substance” and to establish whether the substance within the criminal charge is in fact a controlled substance. It is the definitional purpose of their use which places them in the judicial domain.
By what means may a court determine the facts of technical language usage? One answer is by judicial notice. (See generally, Davis, supra, at § 15.03.) That means is permitted by the Evidence Code. The comment to section 452 says that “[s]ubdivisions (g) and (h) [permit the court to notice] facts which are accepted as established by experts and specialists in the natural, physical, and social sciences, if those facts are of such wide acceptance that to submit them to the jury would be to risk irrational findings.” (Evid.Code, § 452, comment, p. 352.) This comment is directed to facts which are the normal grist for the jury's mill. But if judicial notice may be taken of such facts for an adjudicative purpose, it must also be available for the noticing of the same facts for a definitional purpose. That we have done.
We have noticed facts contained in recognized treatises on organic chemistry as well as other materials bearing on the meaning of the controlled substances act. The noticed materials include those submitted by the People. Except for reasons to be discussed, the People take no objection to them. The Attorney General claims these texts, or some of them, cast doubt on the meaning we attribute to the statutory language. But these claims are premised on nothing more than simple errors in reading. (See fns. 13 and 14, post.) As will be seen, the meanings gleaned from these sources tightly fit the text and syntax of the statute.
That brings us to the statute which defines the substances material to this case, section 11055, subdivision (b). For its meaning, we look first, as we must, to its text.10 (See Nunez v. Superior Court (1983) 143 Cal.App.3d 476, 480, 191 Cal.Rptr. 893; 2A Sutherland, Statutory Construction (4th ed. 1973) § 47.01, p. 70.)
We begin by noting that section 11055, subdivision (b) distinguishes between naturally-occurring and synthetic substances. It says: “Any of the following substances [are controlled substances], whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by combination of extraction and chemical synthesis.” This distinction finds employment in the definition of controlled substance. The definition says that the controlled substances are “[c]oca leaves and any salt, compound, derivative, or preparation of coca leaves, and any salt, compound, derivative, or preparation thereof which is chemically equivalent or identical with any of these substances, but not including de cocainized coca leaves or extractions which do not contain cocaine or ecgonine.” (Emphasis added.)
The defendants were convicted of possession for sale of “cocaine”. That word appears only in the last clause of the definition. That clause identifies the kind of cocaine which is a controlled substance by negative implication. It says substances are not controlled if they are “decocainized coca leaves or extractions which do not contain cocaine or ecgonine.” (Emphasis added.) That necessarily implies that the kind of cocaine which is controlled is contained within the naturally-occurring “coca leaves.” That substance is l-cocaine. (See Hawks, Cocaine: The Material, in National Institute on Drug Abuse, Research Monograph 13, Cocaine: 1977 (1977) pp. 47–58.) “[E]cgonine”, is grammatically paired with l-cocaine as a controlled substance because it is the “principal part of the [l-] cocaine molecule.” (The Merck Index (9th ed. 1976) § 3461, p. 461.)
L-cocaine is an asymetric stereoisomer of cocaine. It is distinguished from other stereoisomers of cocaine by its optical 11 and physiological properties. (See Hackh's Chemical Dictionary (4th ed.) “cocaine”, p. 165.) The physiological property which makes l-cocaine the subject of drug abuse legislation is that it is a stimulant to the central nervous system. (See Cocaine: Its Use For Central Nervous System Stimulation Including Recreational and Medical Uses, in Research Monograph 13, Cocaine: 1977, supra, at pp. 137–150; see also Hackh's Chemical Dictionary, supra, “cocaine”, at p. 165; Hawks, supra, at pp. 47–48.)
“[E]xtractions” of coca leaves, except those which “do not contain [l-]cocaine or ecgonine,” are also defined as controlled substances. “Extraction” is a term used to refer to the process by which substances are produced from “substances of vegetable origin”. (See Hackh's Chemical Dictionary, supra, “extract”, p. 259) 12 It embraces the non-synthesized ways of obtaining substances from coca leaves and specifically refers to any “salt, compound, derivative, or preparation of coca leaves.”
Controlled substances are also defined to include “any salt, compound, derivative, or preparation thereof which is chemically equivalent or identical with any of these substances [meaning substances containing the l-cocaine or ‘ecgonine’].” (Emphasis added.) This sensibly relates to substances produced by synthesis, which are “identical” to or the “equivalents” of l-cocaine or ecgonine. (See U.S. v. Erickson (8th Cir.1979) 611 F.2d 255, 257; U.S. v. Wilburn (10th Cir.1977) 549 F.2d 734, 737.) “Chemically identical” means a synthetic product whose molecular structure is a precise three dimensional molecular copy 13 of the naturally-occurring l-cocaine or its constituent ecgonine. That rules out an asymetric stereo-isomer of l-cocaine. (See fn. 11, supra.) “Chemically equivalent”, on the other hand, appears aimed at isomers of l-cocaine which, though not chemically identical, are equivalent in the possession of the physical property which makes l-cocaine the concern of substance abuse legislation, namely its property as a stimulant to the central nervous system.
In summary, three kinds of substances are controlled: coca leaves and extractions therefrom which contain l-cocaine or its active constituent ecgonine; substances which are precise synthetic copies of l-cocaine or ecgonine; and substances which differ from l-cocaine (or ecgonine) in molecular structure but which possess its psychoactive property as a stimulant to the central nervous system. This conclusion is consistent with a common pharmacological definition of cocaine 14 as “ecgonine methyl ester benzoate” and “l-cocaine” obtained “[f]rom the leaves of Erythroxylon coca Lam. and other species [thereof] ․ or by synthesis.” (The Merck Index, supra, § 2408; emphasis added.)
By these definitions, d-cocaine is not a controlled substance. It is revealingly known as “pseudoocaine.”.” 15 It is a “[s]tereo-isomer of natural cocaine.” (The Merck Index, supra, § 7697, p. 1025.) All this is made clear in the leading study on the structure of pseudococaine. (See Findlay, The Three-dimensional Structure of the Cocaines. Part I. Cocaine and Pseudococaine (1954) 76 Journal of the American Chemical Society, pp. 2855–2862.) In comparing the structures of cocaine and pseudococaine Findlay focuses on the principle part of the l-cocaine molecule, ecgonine. D-cocaine is not “chemically identical” with l-cocaine because its three-dimensional structure is not identical to the structure of l-cocaine.16 It is, rather, an asymetrical mirror image of l-cocaine. Similarly, its principle molecular constituent, d-ecgonine, is the asymetrical mirror image of ecgonine. (See Findlay, The Three-dimensional Structure of the Cocaines. Part I. Cocaine and Pseudococaine, supra, at p. 2855.)
These seemingly simple mirror image differences make for profound differences in physiological properties.17 Alice was on the right track when she asked: “Perhaps Looking glass milk isn't good to drink? ” (Gardner, The Annotated Alice (1960) p. 181, and see p. 183, note 5.) In view of this fundamental organic phenomenon, it is not surprising that d-cocaine is not within the controlled substance statute. It is not a stimulant to the central nervous system. (See Merck Index, supra; see also Matsuzaki, Comparative Effects of Cocaine and Pseudococaine on EEG Activities, Cardiorespiratory Functions, and Self-administration Behavior in the Rhesus Monkey (1978) 57(1) Psychopharmacology, pp. 13–20.) In fact it may be behaviorly inactive. (See Stereoselective Behavioral Effects of Cocaine and a Phenyltropane Analog, The Journal of Pharmacology and Experimental Therapeutics, Vol. 225, No. 3, pp. 509–510.) 18
The People do not, except for their reading errors, dispute this analysis. Rather, they suggest that all isomeric forms of cocaine, without regard to their psychoactive properties, are “included by inference” in the statutory definition of controlled substances by analogy to People v. Van Alstyne (1975) 46 Cal.App.3d 900, 121 Cal.Rptr. 363. Van Alstyne was followed in People v. St. Amour (1980) 104 Cal.App.3d 886, 894–896, 163 Cal.Rptr. 187; People v. Hamilton (1980) 105 Cal.App.3d 113, 116–117, 164 Cal.Rptr. 153; People v. Spurlock (1980) 112 Cal.App.3d 323, 326, 169 Cal.Rptr. 320. These cases are inapposite.
In Van Alstyne, the statute which proscribed the sale of “Cannabis Sativa L.”, was written under the assumption that marijuana is monotypical, rather than polytypical, in species. Van Alstyne thus construed the term, “Cannabis sativa L”, to “include[ ] all plants popularly known as marijuana that contain the toxic agent THC.” (Van Alstyne, supra, 46 Cal.App.3d at p. 917, 121 Cal.Rptr. 363; emphasis added) and therefore found the questioned substances to be within the statutory definition. What is important to note is that the varieties of marijuana plants at issue contained the “toxic agent” to which the proscription of the law was directed. They were chemically equivalent in the possession of that toxic property. That is not the case here, for d-cocaine is not chemically identical or equivalent to l-cocaine and, unlike the varieties of marijuana, it does not possess the physiological properties of l-cocaine.
The People would nonetheless construe the statute to apply to d-cocaine by its inclusion within the newly-added term “isomer.” 19 In 1980, section 11055, subdivision (b)(4), was amended to make explicit reference to isomers: “Coca leaves and any salt, compound, derivative, or preparation of coca leaves, and any salt, compound, isomer, derivative, or preparation thereof which is chemically equivalent or identical with any of these substances ․ [etc.]” Stats. 1980, ch. 749, § 1, eff. July 28, 1980, ch. 1223, § 1.) The People claim this amendment clarifies the Legislature's intent to include all isomers of cocaine within the statute, without regard to their chemical equivalency to the psychoactive l-cocaine. Assuming, for purposes of argument, that “isomer” is a clarifying addition, the People misread the statute. Its syntactic placement makes it clear that “isomer” is modified by the requirement of chemical equivalency; that isomeric forms of cocaine are not within the statute unless they are chemically equivalent or identical.20
The syntax makes policy sense. Given the primary emphasis the controlled substance statute gives to the psychoactive effects of controlled substances, it does not follow that, by the addition of the word “isomer”, the Legislature intended to regulate substances which do not have the cerebral-spinal stimulant effect (let alone no behavioral effect) to which the regulation of “cocaine” is directed.
For these reasons we conclude that d-cocaine is not a controlled substance. That leads us to examine the consequences of the conclusion for this case.
The ultimate fact which had to be proved beyond a reasonable doubt was whether the substance possessed by defendants was l-cocaine or a similarly controlled substance. The jury was not told this. The instruction they were given lumped together, as one, both controlled and uncontrolled forms of cocaine. This is much the same thing as if the instruction failed to distinguish between “cocaine” and table salt. This failure was mirrored in the failure of the People's chemical evidence to distinguish between l- and d-cocaine. Consequently, the jury was deprived of the statutory standard by which to measure the materiality of the People's evidence and the People were not put to, and did not carry, the burden of ruling out d-cocaine as the substance possessed by defendants.21 These errors traverse several constitutional concerns.
The Due Process Clause establishes the right to have the jury determine every element of the offense. (See generally People v. Garcia (1984) 36 Cal.3d 539, 550, 205 Cal.Rptr. 265, 684 P.2d 826.) That cannot be done where the jury has been given an instruction which brackets as one both lawful and unlawful acts. “[W]hen a single-count indictment or information charges the commission of a crime by virtue of the defendant's having done both a constitutionally protected act and one which may be unprotected, and a guilty verdict ensues without elucidation, there is an unacceptable danger that the trier of fact will have regarded the two acts as ‘intertwined’ and have rested the conviction on both together.” (Street v. New York (1969) 394 U.S. 576, 588, 89 S.Ct. 1354, 1363–64, 22 L.Ed.2d 572, 582–583; see also Stromberg v. California (1931) 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117.) This principle equally applies where the lawfulness of the act is measured by statute. (See People v. Green (1980) 27 Cal.3d 1, 69–71, 164 Cal.Rptr. 1, 609 P.2d 468.) Here, the charge, together with the corresponding evidence, functioned to intertwine lawful and unlawful forms of cocaine thus disenabling the jury from determining whether the act charged was unlawful.
The ground upon which the trial court denied the defendants' instruction effected another constitutional error. In denying the defendants' instruction, which told the jury which form of cocaine is controlled, on the ground that it was improbable the substance possessed actually was d-cocaine, the trial court used an evidentiary device to substitute probability for reasonable doubt as the burden of proof of the ultimate fact of whether the substance possessed was a controlled substance.
That violates the due process clauses of our federal and state constitutions. An evidentiary “device must not undermine the factfinder's responsibility at trial ․ to find the ultimate facts beyond a reasonable doubt.” (Ulster County Court v. Allen (1979) 442 U.S. 140, 156, 99 S.Ct. 2213, 2224, 60 L.Ed.2d 777, 791; Cool v. United States (1972) 409 U.S. 100, 93 S.Ct. 354, 34 L.Ed.2d 335; see also Hughes v. Mathews (7th Cir.1978) 576 F.2d 1250).) Due process mandates that the state prove beyond a reasonable doubt “every fact necessary to constitute the crime with which [a defendant] is charged.” (In re Winship (1970) 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368, 375; Sandstrom v. Montana (1979) 442 U.S. 510, 520, 99 S.Ct. 2450, 2457, 61 L.Ed.2d 39, 48–49; Mullaney v. Wilbur (1975) 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508; Speiser v. Randall (1958) 357 U.S. 513, 525–526, 78 S.Ct. 1332, 1341–1342, 2 L.Ed.2d 1460, 1472–1473; see also People v. Burres (1980) 101 Cal.App.3d 341, 352, 161 Cal.Rptr. 593; People v. Hedrick, supra, 105 Cal.App.3d at p. 171.) Probability is not a constitutionally adequate measure of the burden of proof on an element of the offense.
The constitutional standard of reasonable doubt has (at least) two facets. The facet which distinguishes it from probability is that the factfinder must reach a subjective state of certitude of the guilt of the defendant.22 “[T]he reasonable doubt standard is indispensable, for it ‘impresses on the trier of fact the necessity of reaching a subjective state of certitude on the facts in issue.’ ” (Winship, supra, 397 U.S. at p. 364, 90 S.Ct. at p. 1078, 25 L.Ed.2d at p. 375; emphasis added, citation omitted; see also Jackson v. Virginia, supra, 443 U.S. at p. 315, 99 S.Ct. at p. 2786, 61 L.Ed.2d at p. 571; Tigar, The Supreme Court, 1969 Term (1970) 84 Harv.L.Rev. 1, 157; Tribe, Trial by Mathematics; Precision and Ritual In The Legal Process (1970) 84 Harv.L.Rev. 1329, 1373, n. 140.) The reason for this, says Winship, is that the “use of the reasonable-doubt standard is indispensable to command the respect and confidence of the community in applications of the criminal law. It is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. It is also important in our free society that every individual going about his ordinary affairs have confidence that his government cannot adjudge him guilty of a criminal offense without convincing a proper factfinder of his guilt with utmost certainty.” (397 U.S. at p. 364, 90 S.Ct. at p. 1072–73.) This policy requires the jury be brought to a subjective state of certainty of each fact necessary to constitute the offense charged.
The concept of probability does not contain this essential ingredient. Probability has to do with an objective measure of the likelihood something is the case. Probability may properly enter into the objective evaluation of the weight to be given some piece of evidence, and may support an objective finding of the reasonableness of the jury's determination (see fn. 22), though it does not measure the weight by which the evidence must constitutionally be judged. That is contained in the standard of reasonable doubt. The constitution requires that the cumulative effect of the evidence must “convince” the trier of fact to a subjective state of certitude of the existence of “ ‘every fact necessary to constitute the crime with which [the defendant] is charged.’ ” (See Jackson v. Virginia, supra, 443 U.S. at p. 315, 99 S.Ct. at p. 2787, 61 L.Ed.2d at p. 571; compare People v. Collins (1968) 68 Cal.2d 319, 66 Cal.Rptr. 497, 438 P.2d 33.) The “concept of reasonable doubt does not lend itself to being expressed in ․ probabilistic terms and ․ operates in an environment judicially structured to submerge probabilistic quantification in the factual complexity and uniqueness of specific cases.” (Nesson, Reasonable Doubt and Permissive Inferences: The Value of Complexity (1979) 92 Harv.L.Rev. 1187, 1191.) “The concept [of reasonable doubt] signifies not any mathematical measure of the precise degree of certitude we require of juries in criminal cases, but a subtle compromise between the knowledge, on the one hand, that we cannot realistically insist on acquittal whenever guilt is less than absolutely certain, and the realization, on the other hand, that the cost of spelling that out explicitly and with calculated precision in the trial itself would be too high.” (Tribe, supra, p. 1375; footnotes omitted.)
The standard of reasonable doubt supplies not only the measure of the weight which must be given to the evidence of an ultimate fact but determines the particular (subjective) effect which that weight must have upon the minds of the jurors to justify a finding of the fact. The members of the jury must be brought to a subjective state of certainty of the existence of each of the ultimate facts which constitute the offense charged. Here, the jury was not given that task at all. That the substance possessed by defendants was the controlled substance l-cocaine was an ultimate fact necessary to the commission of the crime with which they were charged. The jury was not told this because, as the trial court ruled, the defendants did not show that it was probable the substance they possessed was the (uncontrolled) d-cocaine and therefore not the (controlled) l-cocaine. By these means an evidentiary device unconstitutionally was used to usurp the function of the jury to determine whether the substance possessed by defendants was a controlled substance beyond a reasonable doubt.
The instruction given by the trial court also functioned as a conclusive presumption that the substance found in defendants' possession as tested was the controlled form of cocaine. Since the People's chemical tests did not distinguish between the controlled and uncontrolled forms of cocaine, the People were unconstitutionally relieved of the burden of proving so. (See Sandstrom v. Montana, supra, 442 U.S. at p. 523, 99 S.Ct. at p. 2458, 61 L.Ed.2d at p. 50; see also People v. Roder (1983) 33 Cal.3d 491, 189 Cal.Rptr. 501, 658 P.2d 1302; People v. Hedrick (1980) 105 Cal.App.3d 166, 171–172, 164 Cal.Rptr. 169.)
These errors are necessarily prejudicial. “[I]nstructions or ommissions which deny a defendant his right to have the jury decide each element of a charged offense are necessarily reversible error.” (People v. Garcia, supra, 36 Cal.3d at pp. 549–550, 205 Cal.Rptr. 265, 684 P.2d 826.) In Garcia the court applied that test to a jury instruction which completely eliminated the issue of intent to kill, as a special circumstance justifying the death penalty, from consideration by the jury. In like manner, the instruction in this case, when coupled with the People's chemical tests, which conjointly fused as one the lawful and unlawful forms of cocaine, completely eliminated from jury consideration whether the substance possessed by the defendants was the controlled form of cocaine. Such errors are reversible per se.
The judgments are reversed.
I respectfully dissent for a variety of reasons. Foremost is my belief that the extensive exposition on the chemical properties of cocaine is as extraneous to the appeal as it was at the trial. The opinion totally ignores the expert testimony presented by both prosecution and defense to the effect that the substance contained in the seized bindles was in fact cocaine in salt form as then defined in Health and Safety Code section 11055, subdivision (b)(4). Moreover, counsel for defendants conceded during closing argument that the substance was in fact cocaine “beyond a reasonable doubt.” The entire thrust of the defense at trial was not that the substance was not cocaine, but rather that the cocaine was possessed for personal use, not for sale; the character of the substance was conceded.
Bruce Palmer, a chemist from the Department of Justice, testified for the prosecution. He performed the only test on the powder found in the bindles taken from defendants' home and determined the contents to be cocaine extracted from the coca plant. On cross-examination, Palmer testified that he performs a battery of tests when doing a qualitative analysis of an unknown substance. The microcrystals he examined tested positively as cocaine and was in a salt form. Under cross-examination Palmer also explained the difference between d-cocaine and l-cocaine. D-cocaine polarizes light to the right while l-cocaine polarizes it to the left. In order to test for these forms, a polarimeter is used. Palmer did not conduct any tests which would elucidate the polarity of the cocaine tested nor did any other witness. On redirect examination, Palmer testified that the cocaine he analyzed was absolutely consistent with the cocaine he had analyzed in other cases, and he had no doubt the substance submitted for analyzation in this instance was cocaine. His testimony was positive and in no way equivocal. On re-cross, he testified that as far as he knew, d-cocaine had never been manufactured. (D-cocaine apparently is not found in nature.) Palmer rendered his opinion that the substance submitted for analyzation was l-cocaine even though he had not tested for d-cocaine. He also testified in his years of examination and testing of substances, including cocaine, he had not seen d-cocaine. His testimony was uncontroverted, and was the only evidence on the nature of the substance seized.
Dr. Robert Siegel was produced as an expert for the defense. He is a psychopharmacologist. The thrust of his testimony related to social habits and customs among cocaine users, and was presented to rebut the implication that defendants had possessed the cocaine for sale. Most of his testimony centered on the packaging and storing of cocaine. Siegel did not perform any test on the substance seized in the defendants' home. He microscopically looked at it but did not perform any chemical test. However, he did testify that the substance he observed was consistent with cocaine. Out of the presence of the jury, defense counsel offered to have Siegel testify on the differences between l-cocaine and d-cocaine. Siegel at that hearing stated that d-cocaine is not pharmacologically active, and that d- and l-cocaine are not chemically equivalent. He did acknowledge that d-cocaine is not commonly found and is extremely difficult to synthesize. In thousands of analyses performed on cocaine substances, Siegel testified he had found d-cocaine but once. Siegel also testified that in his experience, d-cocaine is extremely rare on the streets. Palmer testified as did Siegel that polarity testing is rarely done in state laboratories but routinely performed in federal laboratories. The federal laboratories find d-cocaine in less than one percent of the tests. The trial court sustained an objection to any testimony on d-cocaine because of the speculative nature of the proposed testimony, the lack of evidence of the possibility that the substance seized was d-cocaine, and the absence of any testing which could positively identify the cocaine as d-cocaine. All of the expert testimony indicated that the substance was in fact l-cocaine, a fact conceded by the defendants. The court found that the tests performed by Palmer, which were the only scientific tests performed, were consistent with those performed routinely by the state in narcotic prosecutions. The court further concluded the determination of the expert that the substance was cocaine in the generic sense, was the result of the only scientific test performed.
Aston's attorney stated in his closing argument that the evidence of “possession of cocaine for sale” was circumstantial with one exception. He stated, “we do have physical evidence, that's direct. We have bindles of powder that have been identified as cocaine. I'm not going to tell you that it isn't cocaine; you heard the chemist get on the stand and say that it is cocaine.” In the same vein, he later stated, “We have Bruce Palmer, chemist. He is qualified, you heard his qualifications. I accept it, I accept his testimony beyond a reasonable doubt there is cocaine in those bindles. It is there; there is cocaine in there. He's testified to that, he has convinced me. I'm convinced.”
The majority opinion adopts defendants' argument on appeal that isomers of cocaine were not prohibited by law at the time of defendants' arrest and as a consequence, Dr. Siegel's proposed speculative testimony as to d-cocaine and l-cocaine should have been permitted. I disagree.
In my view the trial court correctly refused to permit the testimony since Dr. Siegel had not performed any test on the substance and in fact admitted the substance appeared to be a salt form of cocaine, not an isomer of cocaine. The entire discussion by the majority gratuitously assumes evidence that the substance seized was or might have been d-cocaine.
The present attack on the cocaine statutes and the technical reference to the “d” and “l” types of cocaine is somewhat reminiscent of earlier similar attacks made on the statutory proscription against the use and distribution of marijuana relative to its original statutory definition. (See People v. Van Alstyne (1975) 46 Cal.App.3d 900, 121 Cal.Rptr. 363.)
I consider the discussion in People v. Van Alstyne, supra, 46 Cal.App.3d 900, 121 Cal.Rptr. 363, followed by People v. Hamilton (1980) 105 Cal.App.3d 113, 164 Cal.Rptr. 153, and People v. St. Amour (1980) 104 Cal.App.3d 886, 163 Cal.Rptr. 187, to be most apropos in this instance. Van Alstyne considered the question of whether a marijuana specie not then expressly described in Health and Safety Code section 11018 was nevertheless encompassed within the meaning of the section.
In Van Alstyne, the court was called upon to decide whether in light of the provisions of then section 11360 of the Health and Safety Code the Legislature intended to proscribe all forms of marijuana or only marijuana as described in section 11018 which mentioned only the specie sativa L.
In a lengthy well-reasoned opinion, the court concluded (pet. for hg. den.) that as described “the term ‘Cannabis sativa L.’ [as contained] in section 11018 must be construed as a general term which includes all plants popularly known as marijuana ․” (Id., 46 Cal.App.3d at p. 917, 121 Cal.Rptr. 363.)
At the time of defendant's arrest, “Coca leaves and any salt, compound, derivative, or preparation of coca leaves, and any salt, compound, isomer, derivative, or preparation thereof which is chemically equivalent or identical with any of these substances, but not including decocainized coca leaves or extractions of coca leaves which do not contain cocaine or ecognine” were included in the definition of “narcotic drug” under the Uniform Controlled Substances Act. (Health & Saf.Code, § 11019, subd. (d).) Also at that time, the schedule II list of controlled substances (Health & Saf.Code, § 11055) included an identical provision, except for the absence of the word “isomer.” (Health & Saf.Code, § 11055, subd. (b)(4).) In 1980, Health and Safety Code section 11055, subdivision (b)(4), was amended by inserting the word “isomer” before “derivative, or.” (Stats. 1980, ch. 1223, § 1.)
An overall perusal of the Uniform Controlled Substances Act unequivocally portrays a legislative intent to control drug abuse. In light of this general intent, the absence of an express word referring to a rare and obscure chemical form of cocaine not found in nature does not compel the conclusion that the Legislature intended to permit its use and sale. A closer examination of the history of the amendment imparts a clear intent on the part of the Legislature to conform the definition of “cocaine” in section 11055 of the Health and Safety Code to that in section 11019, and to correct an apparent drafting oversight.
The Legislative Counsel's Digest of a particular bill may provide a source of information on legislative intent. (See Rockwell v. Superior Court (1976) 18 Cal.3d 420, 443, 134 Cal.Rptr. 650, 556 P.2d 1101.) In this instance the digest comment submitted at the time of consideration of the proposed amendment to Health and Safety Code section 11055 provides such an insight. It provides:
“(1) Under present law, isomers of any salt, compound, derivative, or preparation of coca leaves are not expressly scheduled as a controlled substance under the California Uniform Controlled Substances Act, although the definition of ‘narcotic drug’ in such act expressly includes such isomers that are chemically equivalent or identical to any such salt, compound, derivative, or preparation.
“This bill would include in Schedule II of such act the above-described isomers, so as to conform to the definition of ‘narcotic drug.’ ” (Leg. Counsel's Dig. of Assem. Bill No. 2378 (1979–1980 Reg.Sess.).)
A further frequently used aid in determination of legislative intent are committee reports. “Statements in legislative committee reports concerning the statutory objects and purposes which are in accord with a reasonable interpretation of the statute are legitimate aids in determining legislative intent.” (Southern Cal. Gas Co. v. Public Utilities Com. (1979) 24 Cal.3d 653, 659, 156 Cal.Rptr. 733, 596 P.2d 1149.)
The bill analysis of the proposed amendment to section 11055, proposed by the Assembly Criminal Justice Committee stated, in pertinent part:
“Current law (Section 11350, Health and Safety Code) makes it a felony (punishable by imprisonment in state prison for a period not less than 2 years) to possess coca leaves, compounds, or any derivative thereof as described in Section 11055(b) unless by a written prescription of a physician. Technically, because the word ‘isomer’ was omitted from this section, possession of a coca isomer is not subject to the penalties as the punishment for a coca compound. An isomer is a compound but the configuration and the molecular makeup are slightly different thus causing problems in the courts because this technical issue could be raised by the defense․
“All indications point to the fact that the Legislature inadvertently omitted the word isomer from Section 11055(b)(4) of the Controlled Substances Act. The Criminal Justice Committee Consultant, Health Committee Consultant and Mr. Fred Williard, Executive Secretary of the State Board of Pharmacy all have indicated that they know of no reason why isomer would have been deliberately left out of the Act.
“This bill would merely make the law consistent by correcting what is an obvious error by making it a felony to possess a coca isomer.
“․ [T]he intent of the bill is to merely apply some consistency to law in an area where it appears that the Legislature inadvertently omitted a word from the original Controlled Substances Act.” (Assem.Crim.Justice Com.Bill Analysis, Assem.Bill No. 2957 (Apr. 7, 1980); emphasis ours and in original.) Further evidence of this intent is found in the bill analysis by the Senate Committee on Judiciary:
“7. Coca isomers
“This bill would expand the definition of cocaine to include ‘any isomer which is chemical [sic ] equivalent or identical.’
“This provision of the bill is identical to AB 2957 (Naylor) which is sponsored by the California District Attorney's Association and is also before this Committee.
“The CDDA asserts that the exclusion of the word ‘isomers' from the existing provision defining cocaine was a drafting error and an oversight. Proponent further asserts that the ambiguity in existing law has led to defendants' raising the defense that the substance in question was an isomer rather than cocaine.” (Sen.Com. on Judiciary, Bill Analysis, Assem.Bill No. 2378 (1979–1980 Reg.Sess.).)
I perceive the description of cocaine as originally contained in section 11055 to have been drafted with the popular meaning of the word, cocaine, in mind as the Van Alstyne court found was the case with the word marijuana. The conclusion of the majority opinion, that the Legislature intended to proscribe only naturally occurring forms of cocaine, is simply not borne out by the stated intent of the Legislature in its bill analyses, and appears to be an overzealous hypertechnical attack on the term “cocaine” in an attempt to circumvent the obvious and clear legislative intent to curb narcotic use.
I would also conclude that the trial court properly excluded the offered and totally speculative testimony of Siegel for two reasons. First, his testimony was not founded on any scientific testing performed or stated belief the substance was an isomer of cocaine, but was simply abstract and theoretical, which if admitted would have required the jury to indulge in pure unacceptable speculation. Second, I would also conclude that in light of Palmer's unequivocal statement that his testing revealed the substance to be cocaine and Siegel's concession that it probably was a salt form of cocaine, any testimony on the difference between l- and d-cocaine would have accomplished nothing, particularly in light of my perception of the intent of the statutes then extant. (Health & Saf.Code, §§ 11019, 11055.)
As a consequence I would find that each of the issues raised on appeal (1) that the court erred in failing to set aside the information because the defendants had not been legally committed by a magistrate before its filing that defendants were denied a substantial right during their preliminary examinations by failure to have produced a material witness, (2) that the trial court should have suppressed the evidence by virtue of defects in the search warrant, which assertedly contained misstatements and omissions and did not meet the Aguilar test, and (3) that the Dr. Siegel should have been permitted to testify to the difference between d-cocaine and l-cocaine should have been addressed, and when considered, rejected; the judgment should be affirmed.
I would affirm the judgment.
1. All further statutory references are to the Health and Safety Code unless otherwise noted.
2. The instruction, based upon CALJIC No. 12.01 (1979 rev.), reads: “[Defendant is charged with the commission of the crime of possession for sale of a controlled substance, a violation of Section 11351 of the Health and Safety Code.]“Every person who unlawfully possesses for sale any controlled substance, such as Cocaine, is guilty of the crime of possession for sale of a controlled substance.“In order to prove the commission of such crime, each of the following elements must be proved:“1. That a person unlawfully exercised control or had the right to exercise control over a certain controlled substance,“2. That such person had knowledge of its presence,“3. That such person had knowledge of its nature as a controlled substance,“4. That the substance was in an amount sufficient to be used for sale or consumption as a controlled substance, and“5. That such person possessed the controlled substance with the specific intent to sell the same. [¶] “The law recognizes two kinds of possession: actual possession and constructive possession. A person who knowingly has direct physical control over a thing is then in actual possession of it.“A person who, although not in actual possession, knowingly has the right of control over a thing, either directly or through another person or persons, is then in constructive possession of it.“[The law recognizes that one person may have possession alone, or that two or more persons jointly may share actual or constructive possession.]”
3. The court explained: “It seems to me that what we had in the course of the earlier examination was simply a reference to the fact that there are the two types. There is no indication that D-cocaine is extensive enough or widespread enough or is sufficiently often to be found that it is anything other in this case than the remotest of possibilities, which, of course, renders it, you know, not within the area of relevant or credible evidence that can be given to the jury. [¶] The testing that was done was from the evidence has indicated the routine lab testing, at least under the State of California, perhaps not under the Federal laboratories or laboratories for Federal Court uses. But nonetheless it employed the kinds of testing that is routinely used in the State and the conclusion was reached that the substance was cocaine in the general or perhaps generic sense that that term is used and as tested for purposes of these trials․”
4. The proposed instruction reads in full: “In the event that you find one of the defendants, or both of them, in possession of cocaine for personal use or for sale, you must find that the cocaine is a psycho-active substance and that the substance is a usable amount. You must further find that the cocaine is l-cocaine. This finding must be beyond a reasonable doubt.” This instruction was incomplete. As shown in the text, the instruction was incomplete in focusing on l-cocaine and not including, as controlled substances, ecgonine and their synthetic equivalents. However, the instruction “present[ed] the basic problem and could have been modified to eliminate the faults contained.” (People v. Guzman (1975) 47 Cal.App.3d 380, 386, 121 Cal.Rptr. 69.)
5. We do not reach the question of whether the trial court was right under California's minimal test of relevance. (Evid.Code §§ 210; cf. 1A Wigmore, Evidence (Tillers rev. 1983) § 28, pp. 968–976.) Nor do we reach the question of whether the court may constitutionally exclude such evidence. (See People v. Wetmore (1978) 22 Cal.3d 318, 326, fn. 6, 149 Cal.Rptr. 265, 583 P.2d 1308 and cases cited therein.)
6. The dissent makes much out of the defendants' concession the substance possessed was cocaine. But that was done after the defendants were denied the instruction which would have permitted them to challenge the prosecution's chemical tests. At that point there was nothing to do but concede. The dissent misses the whole point of the case. It was the prosecution 's burden to prove the substance possessed by defendants was proscribed.
7. The People and the dissent ignore the fact that the jury was not given the language of the statute but rather conclusory language which implied a discrete meaning. Nonetheless, the definitional question would have remained, requiring a defining instruction, had the jury been instructed in the language of the statute, because the statute is phrased in technical language.
8. The California law is derived from the Uniform Controlled Substances Act, drafted by the National Conference of Commissioners On Uniform State Laws. (See Uniform Controlled Substances Act, § 206, subd. (b)(4), 9 U.Law Ann. 227 (1979).) It was adopted in California in 1972. (Stats. 1972, ch. 1407, p. 2986 et seq.) The “Uniform Act was drafted to achieve uniformity between the laws of the several States and those of the Federal government.” (Handbook of The National Conference of Commissioners on Uniform State Laws (1970) p. 223.) The language of subdivision (b)(4) of section 11055 is virtually identical to that contained in the federal Comprehensive Drug Abuse Prevention and Control Act of 1970. (Pub.L. No. 91–513, 84 Stat. 1236.) The relevant section of the federal law, 21 United States Code section 812, subdivision (c), schedule II(a)(4) provides: “(4) Coca leaves and any salt, compound, derivative, or preparation of coca leaves, and any salt, compound, derivative, or preparation thereof which is chemically equivalent or identical with any of these substances, except that the substances shall not include decocainized coca leaves or extraction of coca leaves, which extractions do not contain cocaine or ecgonine.”
9. The Supreme Court of Iowa, however, held that, as a matter of law, d-cocaine is chemically equivalent to the cocaine derived from coca leaves. (State v. Gibb (Iowa 1981) 303 N.W.2d 673, 684–685.) The court reached this conclusion by means of the same grammatical mistake discussed in the text. (See the text adjacent to fn. 19.)
10. The dissent, with one exception (which turns out to be wrong; see fn. 20), dispenses with this seminal statutory inquiry, choosing instead simply to divine a conclusion—that d-cocaine is within the statutory proscription—without attempting to extract that meaning from the words of the statute except for the word “cocaine” which is ripped loose from its grammatical and biochemical moorings and simply made the repository for the dissent's preordained conclusion.
11. D-cocaine is an asymetric stereo-isomer of l-cocaine. The l-and d-prefixes mark these substances as stereoisomers. “Isomers are substances composed of molecules that contain identical atoms, but with the atoms linked together by topologically different structures․ [s]tereoisomers ․ are isomers that are topologically identical, but one cannot be superposed on the other.” (Gardner, Is Nature Ambidextrous (1983) Order and Surprise, pp. 106–107.) Stereoisomers display an optical activity. “Optical activity is caused by the interaction of the varying electric field of the light with the electrons in the molecule. It occurs when the molecules are asymetric—i.e. they have no plane of symmetry. Such molecules have a mirror image that cannot be superimposed on the original molecule. In organic compounds this usually means that they contain a carbon atom attached to four different groups, forming a chiral centre. The two mirror-image forms of an asymmetric molecule are optical isomers. One isomer will rotate the polarized light in one sense and the other by the same amount in the opposite sense. Such isomers are described as dextrorotatory or laevorotatory, according to whether they rotate the plane to the ‘right’ or ‘left’ respectively (rotation to the left is clockwise to an observer viewing the light coming towards him). Dextrorotatory compounds are given the symbol d or (+) and laevorotatory compounds l or (–).” (Daintith, Dictionary of Chemistry (1981) Optical Activity, p. 148; see also McGraw-Hill Encyclopedia of Chemistry (1983) “Optical Activity”, p. 696 and following; Morrison and Boyd, Organic Chemistry (3d ed. 1973), p. 119)
12. Technically, extraction is the process by which “cocaine” and “ecgonine” are obtained from the coca leaves and reduced to salts and other derived components. (See Hawks, supra, at p. 48.)
13. That is, whose molecular structure contains the same atoms arranged in the identical three-dimensional order.
14. Section 11053 provides: “The controlled substances listed or to be listed in the schedules ․ are included by whatever official, common, usual, chemical, or trade name designated.”
15. On rehearing the People challenge the majority opinion with the claim “D-cocaine is not D-pseudococaine, but is an entirely different substance.” This is solely a question of nomenclature. They say our reliance upon the ninth edition of the Merck Index, which said that pseudococaine is called d-cocaine, is misplaced because in the tenth edition “this erroneous reference has been deleted.” Not so. The tenth edition simply replaced d-cocaine with “dextrococaine,” just another name for the same substance. D- is a letter designation for dextro or dextrorotatory. (See fn. 11, supra.)In any event the name is completely irrelevant to the statutory definition of controlled substance. Only the naturally-occurring l-cocaine (and its constituent ecgonine) and chemically identical or equivalent substances are controlled. D-cocaine is none of these and for that reason is not a controlled substance. The People do not effectively dispute the statutory analysis leading to this conclusion. In fact, the People have submitted a study which says what we say: “[T]he [controlled substance] laws do not cover the diastereoisomers of cocaine ․” (Siegel and Cormier, The Preparation of d-Pseudococaine from l-Cocaine, Journal of Forensic Sciences, Vol. 25, No. 2, April 1980, p. 357.)
16. On rehearing the Attorney General takes the majority opinion to task for “understandably” erring “in concluding that D-cocaine does not contain ecgonine.” He claims: “A comparison of the molecular structure of L-cocaine and D-cocaine indicates that ecgonine is a major structural part of the D-cocaine molecule.” We are referred to a diagram in the 26 Journal of Forensic Sciences (1981) No. 1, page 24, figure 17 as evidence for the claim. It depicts an infrared spectrum of the (–) cocaine base and we are told: “D-cocaine is indicated as—Cocaine and L-cocaine is indicated as + Cocaine.” The problem with the argument is that the Attorney General has got the signs reversed. “Dextrarotatory [right handed] compounds are given the symbol d or (+) and laevorotatory [left handed] compounds l or (–).” (See also fn. 11, post.) This is standard organic chemistry notation, as is revealed in the authority to which the People directs us: “The symbols + and – are used to indicate rotations to the right [‘dextrorotatory’] and to the left [‘levrotatory’], respectively.” (Morrison and Boyd, Organic Chemistry (3d ed. 1973) p. 119.) The substance shown in Figure 17 of the Journal of Forensic Sciences, supra, is l -cocaine. Of course, it contains ecgonine. The Attorney General does not know a right-handed from a left-handed stereoisomer.
17. The differences have been aptly described by Martin Gardner: “As one would expect, right-and left-handed forms of any organic compound are exactly alike in all chemical properties except those that involve a right-left difference. They have the same specific gravity, melt at the same temperature, freeze at the same temperature, and so on. This is to be expected, because they are the same substance, and because the forces acting upon them (heat, gravity, and so on) show no bias toward right or left. Of course, the asymmetry of such a compound reveals itself in many ways. It will rotate a plane of polarized light. It may cause the compound to form crystals that have a certain handedness. And it will cause specific effects when the substance is swallowed by an animal or injected into an animal's bloodstream. Because an animal's body is made up largely of asymmetric compounds, it is easy to understand why stereoisomers of opposite handedness would have different effects on the animal. Lewis Carroll's White Knight, in Through the Looking Glass, sings a song in which the following lines occur:And now, if e'er by chance I put My fingers into glue,Or madly squeeze a right-hand foot Into a left-hand shoe․”(Gardner, The Ambidextrous Universe (1979) pp. 113–114.)
18. The Journal article said: “Studies of the stereoisomers of ․ cocaine suggest ․ that there is a high degree of stereoselectivity in the behavioral effects of this class of drugs․ [¶] Under [test] conditions, the dextrorotatory isomers of cocaine [d-cocaine, d-ecgonine] ․ were behaviorly inactive at doses up to 100 to 622 times the minimal effective doses of their respective levorotatory isomers [l-cocaine, ecgonine].
19. The court in Phelan, supra, interpreted language almost identical to that at issue here. (55 Ill.Dec. at p. 602, fn. 3, 426 N.E.2d at p. 927, fn. 3.) It said: “We agree with the experts that the statute, as presently structured, controls only one of [the] isomers, [of cocaine] ‘l’ cocaine”. (Id., 55 Ill.Dec. at p. 603, 426 N.E.2d at p. 928.)
20. The dissenting opinion argues that the addition of the word isomer was meant to include all isomers of cocaine within the definition of controlled substance. That is syntactically not the case, as is shown by the legislative history upon which the dissent relies. Assuming its relevance (See In-Home Supportive Services v. Workers' Comp. Appeals Bd. (1984) 152 Cal.App.3d 720, 738–740, 199 Cal.Rptr. 697), the legislative history expressly disavows the notion that all forms of cocaine are controlled. It says: “This bill would expand the definition of cocaine to include ‘any isomer which is chemical[ly] equivalent or identical.’ ” (See p. 770 of diss. opn. of Evans, J.; emphasis added.) That, of course, is precisely what the statute says.
21. Had the People's chemical evidence uniquely determined that the substance was l-cocaine, the error in instruction could not have been prejudicial for there would have been no point to the distinction between the forms of cocaine.
22. The reasonable doubt standard also contains an objective element. “A ‘reasonable doubt’, at a minimum, is one based upon ‘reason’ ”. (Jackson v. Virginia (1979) 443 U.S. 307, 317, 99 S.Ct. 2781, 2788, 61 L.Ed.2d 560, 572.) This requires that the jury's subjective state of certainty be supported by objective evidence of its reasonableness.
BLEASE, Associate Justice.
CARR, J., concurs.