PEOPLE v. McDANIEL (1978)

OPINION

A jury found the appellant guilty of violation of Health and Safety Code section 11355 and he was sentenced to an indeterminate term in state prison.

FACTS

On February 15, 1977, while driving in an unmarked vehicle, two undercover narcotics officers were asked by one of the four occupants in a passing vehicle whether the officers wanted to buy some “acid.” One of the officers replied affirmatively and asked what the price was. Figures of $25 and $2 were mentioned by the occupants of the other vehicle. The two officers and the four occupants then drove to an alley.

Officer Willey got out of his car and walked to the other car. The occupants of the car advised him that he would be doing business with appellant who was seated in back. Willey walked to the rear and began speaking to appellant. He asked how much appellant wanted for a “hit” and was told $2. He then told him that since it was dark he was not going to show appellant any money until he actually saw what he was buying. They agreed to walk to a lighted area and when they arrived there appellant showed him a clear plastic bag which contained approximately 10 slips of yellow paper with blue dots on them. Willey asked if they were $2 a hit and was told that they were. Willey recognized these dots as a method of packaging LSD. He then identified himself as an officer, withdrew his weapon and informed appellant that he was under arrest.

Simultaneously with the above activity, the other officer was arresting the occupants of the car. Willey tried to watch the people in the car while at the same time he was struggling with appellant, attempting to get the bag from him. In the struggle, he saw appellant take the bag and move it toward his face. After subduing appellant, Willey recovered the plastic bag and discovered that there was nothing in it. He searched the area but failed to find anything.

Subsequently, Miss Macardican, an occupant of the vehicle, gave Willey a Marlboro cigarette box. It contained 126 pieces of paper similar to those he observed in the plastic bag appellant possessed. At trial it was stipulated that a criminalist for the Department of Justice would testify that the substance contained in those pieces of paper was not a controlled substance.

Willey advised appellant of his Miranda rights and asked what happened to the hits of acid appellant had shown him. Appellant refused to make a statement. He did, however, tell the officer that the substance was “bunk,” and that they did not have him on anything.

Appellant testified that he had been stabbed and robbed shortly before the incident with the officers. His motive for engaging in the transaction was to obtain money to be able to feed himself and Patty Macardican, his fiancee. He testified that his scheme was to transact the sales in the car while it was still running so that when they would get the money they could take off without delivering anything to the customers.

Appellant denied ever showing any papers with dots to Officer Willey because he never had any. He claimed that he was being set up and denied ever having seen any such dots before coming to court. He also denied making the statement to Willey.

A motion for acquittal under Penal Code section 1118.1 was timely made based on the absence of evidence of an actual transfer of a noncontrolled substance between the appellant and the officer. The prosecution agreed that there was no such transfer. The court denied the motion and said:

“All right, the clerk will enter the notation in the minutes when she arrives, but in any event, the motion is denied, and the record will reflect that the defendant is present with his attorney. But I would want to point out that the central issue appears to be whether or not there must be a delivery. We have had an opportunity to look at the books. It would appear to me that a delivery in fact is not necessary, but under the status of the evidence at the present time, the jury could believe beyond a reasonable doubt that after an offer to the sale of LSD was made, that there was a subsequent offer to deliver a substance in lieu of a controlled substance, and I want to spell that out, because if I'm in error, then the defendant would have a good record upon which to appeal.”

Consistent with this ruling, the judge instructed the jury:

“Every person who agrees, consents, or offers to unlawfully sell, furnish, administer, or give away any controlled substance, and then offers to deliver, furnish, administer, or give away any other substance in lieu of a controlled substance, is guilty of a crime.” [FN1]

DISCUSSION

At date of trial, Health and Safety Code section 11355 provided in pertinent part that:

“Every person who . . . offers to . . . sell . . . any controlled substance . . . to any person . . . and then . . . delivers . . . or offers . . . to have . . . delivered . . . to any person any other . . . substance . . . in lieu of any such controlled substance shall be punished . . . .”

On its face the statute is violated by one who offers to sell a controlled substance and then offers to deliver a substitute. Despite this plain language, it is now settled that an offer to sell the contraband will satisfy the first element of the crime, but a mere offer to deliver the noncontrolled substance will not suffice for the second element. As we shall see, an adequate delivery is now firmly established as a judicially imposed addition to the statutory requirements.

In People v. Shephard (1959) 169 Cal.App.2d 283, 337 P.2d 214, the court rejected a contention that Health and Safety Code section 11502^[FN2] was unconstitutionally vague. The opinion includes this statement:

“There is a reasonably adequate disclosure of the legislative intent regarding the evil to be combatted in language giving fair notice of practice to be avoided. (Citation.) A reading of the section discloses that it is a crime for a person to agree to sell a narcotic to someone, and then to deliver instead a non-narcotic substance.” (People v. Shephard, supra, 169 Cal.App.2d at p. 289, 337 P.2d at p. 217.)

Similar language was used by the Supreme Court in dicta found in People v. Brown (1960) 55 Cal.2d 64, 67, 9 Cal.Rptr. 816, 357 P.2d 1072.

The constitutional attack was renewed in People v. Hicks (1963) 222 Cal.App.2d 265, 35 Cal.Rptr. 149. Again, the court found the meaning of the section clear, stating at pages 271 and 272, 35 Cal.Rptr. at page 153:

“It says, so far as applicable here, that every person who offers to sell a narcotic and delivers a nonnarcotic substance is guilty of a crime. This is true, whether at the time of the offer the offeror actually intends to deliver a narcotic or intends only to deliver a nonnarcotic. It is the delivery of a nonnarcotic that completes the crime.”

Whether or not is was really necessary to require a delivery to hold the statute constitutional, the language of these cases is clear and the concept became important in cases considering whether section 11355 is a specific intent crime.

Sale of a controlled substance is a general intent offense (People v. Daniels (1975) 14 Cal.3d 857, 861, 122 Cal.Rptr. 872, 537 P.2d 1232), but the crime of offering to sell a controlled substance is committed only if the perpetrator has the specific intent to actually sell a controlled substance. (People v. Jackson (1963) 59 Cal.2d 468, 30 Cal.Rptr. 329, 381 P.2d 1.) Some cases did hold that section 11355 is a specific intent crime. (See People v. Sweet (1967) 257 Cal.App.2d 167, 65 Cal.Rptr. 31, and People v. Contreras (1964) 226 Cal.App.2d 700, 38 Cal.Rptr. 338.) Recent cases, however, have authoritatively decided that only a general intent is necessary. (People v. Haines (1975) 53 Cal.App.3d 496, 125 Cal.Rptr. 735; People v. Lechlinski (1976) 60 Cal.App.3d 766, 131 Cal.Rptr. 701.)

In each of the cases cited above, the facts showed an actual physical transfer of the substitute substance. But in People v. Ernst (1975) 48 Cal.App.3d 785, 121 Cal.Rptr. 857, this was not true. There the defendant engaged in extensive negotiations for the sale of cocaine and eventually produced a quantity of a substance that he said was cocaine. Instead of completing the sale, the officers arrested the defendant and seized the material. It was not a controlled substance.

The trial court granted the defendant's motion to set aside the information because the evidence at the preliminary hearing did not establish the delivery of the substance.

The order was reversed. The court held that judicial interpretation of the statute had imposed a burden on the People to prove delivery of the noncontrolled substance. That does not mean that there has to be a completed physical transfer. Declining to apply technical contract rules to narcotic deals, the court said:

“We do not attempt to define the precise outlines of a delivery under section 11355. We merely hold that in view of the purpose of the act and the particular circumstances of this case the apparent tender of the narcotic for which the parties had negotiated and the accepted invitation to sample an amount sufficient to satisfy the buyer there was an adequate delivery to require defendants to plead to the information. Nor do we believe that our interpretation gives new life to the issue of uncertainty resolved in People v. Shephard, supra, 169 Cal.App.2d at pages 288-289, 337 P.2d 214.” (People v. Ernst, supra, 48 Cal.App.3d at p. 792, 121 Cal.Rptr. at p. 861.)

We conclude that the delivery requirement is now embedded in the law.

If, at this late date, we choose to return to a literal reading of section 11355 we must recognize that such a decision does give new life to the issue of uncertainty resolved in People v. Shephard, supra, 169 Cal.App.2d at pages 288-289, 337 P.2d 214. By construing the section to require an adequate delivery, appellate courts have avoided serious constitutional and legal questions. If we were writing on a truly blank slate and the constitutional issue had been briefed and argued, we might conclude that the statute as written meets constitutional standards.

Such a conclusion would not, however, insure the affirmance of the judgment. A requested instruction on specific intent was refused. A close reading of People v. Haines, supra, 53 Cal.App.3d 496, 125 Cal.Rptr. 735 and People v. Lechlinski, supra, 60 Cal.App.3d 766, 131 Cal.Rptr. 701 teaches us that the keystone of the rule that general intent only is required is the element of delivery. In Haines the Court of Appeal had decided that general intent was sufficient. The Supreme Court agreed but reassigned the case to the Court of Appeal “ ‘for the refiling of its opinion with an appropriate reference to People v. Daniels (1975) 14 Cal.3d 857, 122 Cal.Rptr. 872, 537 P.2d 1232,’ . . .” (People v. Haines, supra, 53 Cal.App.3d at p. 497, 125 Cal.Rptr. at p. 736.) Daniels decided that sale of narcotics, as distinguished from offer to sell narcotics, was a general intent crime. The common connection between sale of narcotics and violation of section 11355 is the element of delivery. Absent that common factor, the rationale of People v. Jackson, supra, 59 Cal.2d 468, 30 Cal.Rptr. 329, 381 P.2d 1 would compel proof of specific intent to deliver a nonnarcotic for conviction of violating section 11355 where the facts did not show an actual delivery.

We are persuaded that in the interest of certainty in the law we should accept the concept expressed in Ernst and not reopen the issue of constitutional clarity of the code section or renew the debate on the appropriate intent to require. We hold that section 11355 requires an adequate delivery of the substitute substance. As so interpreted, the section is not unconstitutionally vague and specific intent need not be proved.

We define adequate delivery. Offers or negotiations are not enough. To be an adequate delivery, there must be overt, direct and unequivocal activity directed toward a physical transfer of a specific and identified substance.

The court's instruction permitted a guilty verdict even if the delivery requirement was not proved. An essential element of the crime was omitted from the instructions. Even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. (People v. St. Martin (1970) 1 Cal.3d 524, 531, 83 Cal.Rptr. 166, 463 P.2d 390.) The failure to instruct on this essential element of the crime constituted prejudicial error. (See People v. Hebert (1964) 228 Cal.App.2d 514, 521, 39 Cal.Rptr. 539.)

The judgment is reversed.

I dissent. I respectfully disagree with the majority view that despite the apparently plain language of section 11355 of the Health and Safety Code, only a physical delivery will satisfy the requirements thereof.^[FN1] No California case relied on by the majority, cited by counsel, or found by independent research has had before it a factual situation under this section where, as here, there was no actual physical delivery. In People v. Shephard (1959) 169 Cal.App.2d 283, 337 P.2d 214, no issue was raised as to physical delivery; the broad language of the opinion was unnecessary to the decision. In People v. Brown (1960) 55 Cal.2d 64, 9 Cal.Rptr. 816, 357 P.2d 1072, the court was concerned with an offer to sell a narcotic under Health and Safety Code section 11501; although section 11355 (then s 11503) was discussed in the opinion for illustrative purposes, its interpretation was not before the court. In People v. Hicks (1963) 222 Cal.App.2d 265, 35 Cal.Rptr. 149, there was again no issue of nondelivery before the court; largely relying on Shephard, supra, and specifically limiting its holding to an analysis of the statute “ . . . so far as applicable here . . .” (p. 272, 35 Cal.Rptr. 149), the court made the generalization that the delivery of a nonnarcotic completed the crime. In People v. Ernst (1975) 48 Cal.App.3d 785, 121 Cal.Rptr. 857, the court found that there was an adequate delivery within the meaning of the word as used in the statute (p. 792, 121 Cal.Rptr. 857). Likewise, all other California cases which have been pointed out involved an actual physical delivery.^[FN2]

The case before this court is on its facts therefore one of first impression. By its language, the majority would in effect repeal the specific enactment of the Legislature which makes it a crime, after an agreement or offer to sell a controlled substance, to then either sell, furnish, transport, administer, or give, or offer, arrange, or negotiate to have sold, delivered, transported, furnished, administered, or given to any person any other liquid, substance or material in lieu thereof. There are at least 24 different ways the second element of the statute can be satisfied according to its language (People v. Ernst, supra, 48 Cal.App.3d at p. 790, 121 Cal.Rptr. 857); the majority of this court would strike out 23 of these ways, leaving only one way viable.

No cogent reason has been given for disregarding the plain language of the Legislature; such action will be based only upon judicial interpretations and dicta in cases where the issue was not properly before the court.

It has been held that a conviction for violation of Health and Safety Code section 11355 does not require a showing of or instruction regarding specific intent if there is an offer to sell a narcotic and a subsequent delivery of a nonnarcotic substance. (People v. Lechlinski, supra, 60 Cal.App.3d 766, 131 Cal.Rptr. 701.) So long as any one of the elements specifically set forth by the Legislature as an alternate to delivery is shown by the evidence, no specific intent instruction should be required.

I would affirm the judgment.

FOOTNOTES

FOOTNOTE.  

1.  This instruction was a modification of CALJIC No. 12.04. The unmodified instruction provides:“Every person who agrees, consents, or offers to unlawfully sell, furnish, administer, or give away any controlled substance, and then sells, furnishes, administers, or gives away any other substance in lieu of a controlled substance, is guilty of a crime.”

2.  Section 11355 was originally enacted as section 11502 and then re-enacted as section 11503. The language with which we are concerned in this case has not been changed.

1.  Section 11355 of the Health and Safety Code provides in pertinent part as follows:“Every person who agrees, consents, or in any manner offers to unlawfully sell, furnish, transport, administer, or give (1) any controlled substance specified in subdivision (b) or (c) of Section 11054, specified in paragraph (10), (11), (12), or (17) of subdivision (d) of Section 11054, or specified in subdivision (b) or (c) of Section 11055 or, (2) any controlled substance classified in Schedule III, IV, or V which is a narcotic drug to any person, or offers, arranges, or negotiates to have any such controlled substance unlawfully sold, delivered, transported, furnished, administered, or given to any person And then sells, delivers, Furnishes, transports, administers, or gives, or offers, arranges, or negotiates to have sold, delivered, transported, furnished, administered, or given to any person any other liquid, substance or material in lieu of any such controlled substance shall be punished by imprisonment . . ..” (Emphasis added.)

2.  These include People v. Northern (1967) 256 Cal.App.2d 28, 64 Cal.Rptr. 15; People v. House (1969) 268 Cal.App.2d 922, 74 Cal.Rptr. 496; People v. Medina (1972) 27 Cal.App.3d 473, 103 Cal.Rptr. 721; and People v. Lechlinski (1976) 60 Cal.App.3d 766, 131 Cal.Rptr. 701.

MEYERS,[FN*] Associate Justice (Assigned). FN* Assigned by the Chairperson of the Judicial Council.

HOPPER, Acting P. J., concurs.