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PEOPLE of the State of California, Plaintiff and Respondent, v. Reed Hadley HAINES, Defendant and Appellant.
Defendant was convicted of selling a substance in lieu of a restricted dangerous drug (Health & Safety Code, § 11917, now Health & Safety Code, § 11382).
The sole issue on appeal is whether this violation requires a specific intent to substitute a substance in place of a restricted dangerous drug.1
The decisions of the Courts of Appeal are in complete and irreconcilable conflict as to whether this crime requires a specific or general intent.
Three cases support the specific intent proposition: People v. Sweet [Second District, Division Two], 257 Cal.App.2d 167, 65 Cal.Rptr. 31; People v. Contreras [Second District, Division Two], 226 Cal.App.2d 700, 38 Cal.Rptr. 338; People v. Lopez [Second District, Division Three], 213 Cal.App.2d 668, 28 Cal.Rptr. 912.
Cases holding that only a general intent is required are: People v. Medina [First District, Division One], 27 Cal.App.3d 473, 103 Cal.Rptr. 721; People v. House [Fourth District, Division One], 268 Cal.App.2d 922, 74 Cal.Rptr. 496; People v. Northern [Second District, Division Five], 256 Cal.App.2d 28, 64 Cal.Rptr. 15; People v. Hicks [First District, Division One], 222 Cal.App.2d 265, 35 Cal.Rptr. 149.
To add to the confusion, hearings in the Supreme Court were denied in Hicks [general intent], Northern [general intent], Sweet [specific intent], and Medina [general intent].2
Thus, at the present time, trial judges in the area covered by District One and the area covered by District Four can, with some feeling of security, instruct on general intent. Since the Courts of Appeal in Districts Three and Five have never committed themselves, the trial courts in those jurisdictions may find themselves faced with a certain degree of uncertainty in this field. However, their problems are as nothing compared to those of the trial judges within the jurisdiction of the Second Appellate District. If a trial judge thinks his case is going to end up in Division Two or Three, discretion would indicate that an instruction on specific intent be given. On the other hand, if he thinks that his case is going to find its final resting place in Division Five, an instruction on general intent will suffice. A microcosm of the statewide problem would exist in this District were this court to hold Health & Safety Code, § 11917, to be a specific intent crime. Division One of this court has held that the crime requires only a general intent. Were we to hold that the crime requires a specific intent, trial judges in San Diego and Imperial Counties could safely instruct on general intent, but trial judges in San Bernardino, Riverside and Inyo Counties would be forewarned that a specific intent instruction was required. But what about Orange County? Appeals from that county are divided between Division One and Division Two. Thus, a decision by this court in conflict with a decision in Division One would leave the judicial process in Orange Couty in what might charitably be called a confused state.
Nevertheless, despite the above conflicts, we must exercise our own independent judgment in resolving this issue. Unfortunately for the defendant, we are in agreement with those cases which hold that the offense requires only a general criminal intent. Rather than review all of the arguments set forth at length in all of the above cases, we merely adopt the statement in People v. House, supra, 268 Cal.App.2d 922, at p. 925, 74 Cal.Rptr. 496, at p. 498: ‘Although there is a conflict in the court of appeal decisions in this state on the issue, we believe the opinion in People v. Northern, 256 Cal.App.2d 28, 35, 64 Cal.Rptr. 15, states the more reasonable point of view and adhere to the statement of the law therein that ‘it is immaterial to a violation of section 115033 whether the defendant either before or at the time of the delivery of the nonnarcotic substance, intends to deliver a narcotic or some innocuous material. The section is violated if there is an offer of a narcotic and a subsequent delivery of nonnarcotic substance.’ [Fn. omitted.]'
We hold that Health & Safety Cide, § 11917, now § 11382, does not require a specific intent to substitute a substance in place of a restricted dangerous drug. The offense is complete if there has been an offer of a restricted dangerous drug and a subsequent delivery of a substitute substance.
1. The issue was presented when the trial judge struck from CALJIC 12.23 the words ‘with the specific intent to substitute a substance in place of a restricted dangerous drug.’
2. While the significance of such a denial is a matter of some disagreement (see 6 Witkin, Cal.Proc.2d ed. §§ 669–670, pp. 4581–4584; Emslie v. State Bar, 11 Cal.3d 210, 229, 113 Cal.Rptr. 175, 520 P.2d 991; Di Genova v. State Board of Education, 57 Cal.2d 167, 178, 18 Cal.Rptr. 369, 367 P.2d 865), the matter becomes academic in view of the denial of hearings in cases holding both ways.
3. Health & Safety Code, § 11917, has not been frequently discussed in published decisions. However, that section was enacted in the same language as former Health & Safety Code, § 11503, except as to the length of sentence and the nature of the substance.
GARDNER, Presiding Justice.
TAMURA and WHYTE,* JJ., concur.
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