PEOPLE v. THOMAS (1985)

OPINION

Appellant appeals from her conviction, after a jury trial, of offering to sell phencyclidine (Health & Saf.Code, § 11379.5) and her sentence to prison for the mitigated term of three years.   Appellant contends:  that the trial court erred in denying her motion to exclude testimony of events which took place on the day before the day she allegedly committed the crime;  that the evidence was insufficient to sustain her conviction;  and that Penal Code section 1203.07, subdivision (a)(6), which prohibits probation and suspension of sentence for any person convicted of offering to sell phencyclidine, as applied in her case, constitutes cruel and unusual punishment.

We conclude that the evidence of the prior day's events was properly admitted, that there was substantial evidence to sustain appellant's conviction, and that the sentence imposed did not constitute cruel and unusual punishment.

FACTS

On August 11, 1983, Detective Mueller, an undercover narcotics officer, purchased one-half ounce of phencyclidine (PCP) from Chicken George and told Chicken George he would be returning to purchase more.   Appellant was not present at this sale.

Mueller returned on August 16.   When he arrived, appellant was standing in a carport near Chicken George.   Several other individuals were also present.   Mueller made arrangements with Chicken George to purchase one ounce of PCP for $300.   Chicken George told Mueller to wait and went into a nearby apartment.   While waiting for Chicken George to return, Mueller asked appellant what was going on and she replied that Chicken George had sold some PCP to the other people present and they returned it because it was not good.   Appellant explained that she had told Chicken George not to sit in the carport with the bottle in his pocket because it would dissipate the potency of the PCP.   She stated that when the individuals came back, upset over their purchase, she took care of it for them.   Appellant asked Mueller what he was doing there and he told her that he was purchasing an ounce of “juice” from Chicken George.   Mueller asked appellant to find Chicken George and see what the delay was.   She went into the apartment and returned in two to four minutes, and said that Chicken George had passed out while trying to put the ounce of PCP together and that he told her to tell Mueller to come back the next day.

When Mueller returned the next day, August 17, Chicken George was in the carport with five or six other people, including appellant, who walked over to the passenger window of Mueller's car and asked, “What do you want?”   Mueller said, “Some more juice.”   She said, “Well, what do you want?   Another half ounce?”   Mueller said, “No, I wanted a full ounce.   That will be $300, right?”   She replied, “Yeah, that's right.   Okay.  Wait here.”   She walked back to Chicken George, who was 30 or 40 feet away, and spoke with him.

Chicken George turned and spoke to Eddie Rogers.   Rogers came over to Mueller's car and spoke to him, returned and spoke to Chicken George and then told Mueller to move his car into a carport.   Mueller moved the car and within several minutes about 12 people had gathered in or near the carport.   Everyone (including appellant), except Chicken George and one other individual, dispersed within 20 to 30 seconds of each other.   After the crowd dispersed, Chicken George came over and told Mueller, “Nobody does that here anymore.”

On the first day of trial defense counsel moved to exclude evidence of all conversations on August 16.   In denying the motion, the trial court said:

“I am going to permit the evidence to be introduced.   I think first of all that it is clear that the evidence as to everything except the statement of ‘Making it good’ is really not evidence, but [sic ] prior crime.   And it is certainly relevant evidence to the alleged crime that occurred on the 17th.

“As I understand it, there was conversation about the sale that was supposed to take place on the 17th.   There was testimony concerning it on the 16th.   And any testimony concerning this would certainly be relevant.

“It is about the very offense for which the Defendant is charged.

“With regard to the statement—alleged statement from the Defendant to the officer that—that [Chicken George] [sic ]—had warned him not to carry it in his pocket that it dissipated certainly goes to her knowledge of the substance.   And goes towards knowledge or in possession of the means that might have been useful or necessary in the commission of the crime charged.

“With regard to the statement that ‘She made the sale good’ to the—to alleged prior customers, I think this does tend to be evidence of a prior crime in that some of it makes good on a transaction.

“I think would have some criminal responsibility.   But I do think that under the law that the—that the Court is going to admit it on the issue of intent with which what she did on the 17th was done and also concerning her knowledge and possession of the means that might have been useful or necessary for the commission of the offense for which she is charged.”

Prior to trial, counsel for appellant never indicated what her defense would be.   At trial, she did not make an opening statement and did not present any evidence for the defense.   Her principal argument to the jury was reasonable doubt as to whether appellant had the requisite specific intent to sell PCP.

The prosecutor, in argument, referred to appellant's statement that she had taken care of the dissatisfied customers and urged that this implied she was working with Chicken George and was “even warranting his work.”

The court gave CALJIC 2.50, modified as follows:

“Evidence has been introduced which may show that the Defendant participated in a crime other than that for which she is on trial.   Such evidence if believed was not received and may not be considered by you to prove that she is a person of bad character or that she has a disposition to commit crimes.   Such evidence was received and may be considered by you for the limited purpose of determining if it tends to show the existence of the intent which is a necessary element of the crime charged or that Defendant had knowledge or possessed the means that might have been useful or necessary for the commission of the crime charged.”

DISCUSSION

I. THE COURT DID NOT ERR IN ADMITTING EVIDENCE OF THE AUGUST 16 CONVERSATIONS.

Appellant contends the court erred in admitting evidence of any of her conversations on August 16 with Mueller.   She asserts that the trial court's rationale was that the negotiations took place over two days (August 16 and August 17) and, therefore, there was a finding that a crime took place on August 16 without the benefit of a trial, and argues that Evidence Code section 1101, subdivision (b) is inapplicable because no criminal activity took place on August 16, and that the prior incident does not link her to any criminal activity on August 17.   She is wrong on all points.

 The testimony by Mueller that appellant went looking for Chicken George and after returning from his apartment told Mueller to return the next day was properly admitted because it was part of the transaction which took place on August 17.   Appellant's statement that she told Chicken George not to sit in the carport with the PCP in his pocket because it would dissipate its potency was also properly admitted.   Although not part of the transaction on August 17, neither was it evidence of prior crimes.   It was a statement of knowledge.¹  As such, it is not subject to the precise strictures imposed upon other crimes evidence and its probative value was high.   The only evidence about which there is any question is the making-good-on-the-bad-sale comment, which is, as the trial court noted, evidence of another crime.²

Appellant relies entirely on People v. Goodall (1982) 131 Cal.App.3d 129, 182 Cal.Rptr. 243, which we find inapposite;  and respondent argues that resolution of this issue “does not turn on the application of Evidence Code section 1101 [subdivision] (b), it turns on application of Evidence Code section 351” ³ —a statement with which we also disagree.   The evidence of the conversations which took place on August 16 is clearly relevant.   It shows that appellant probably had access to PCP and possessed knowledge about PCP, all bearing on whether she had a specific intent to sell PCP on August 17.   The question is whether a challenge to its admissibility is “otherwise provided by statute.”

Evidence Code section 1101 provides in pertinent part:

“(a) Except as provided in this section and in Sections 1102 and 1103, evidence of a person's character or a trait of his character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his conduct) is inadmissible when offered to prove his conduct on a specified occasion.

“(b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident) other than his disposition to commit such acts.” 4

“It is well established that evidence of other crimes is inadmissible to prove the accused had the propensity or disposition to commit the crime charged․  [T]he evidence is excluded because it has too much probative value;”  however, evidence of other crimes may be admitted if it logically tends to prove a material element in the People's case.  (People v. Guerrero (1976) 16 Cal.3d 719, 724, 129 Cal.Rptr. 166, 548 P.2d 366.)

Other crimes evidence is inherently prejudicial and must therefore be examined with care and received with extreme caution.  (People v. Sam (1969) 71 Cal.2d 194, 203, 77 Cal.Rptr. 804, 454 P.2d 700.)  “Our Supreme Court has been consistently rigorous in preventing the introduction of other crimes for the purpose of showing that the accused committed the offense with which he is charged.”  (People v. Salazar (1983) 144 Cal.Rptr.3d 799, 809, 193 Cal.Rptr. 1.)

 People v. Thompson, supra, 27 Cal.3d 303, 165 Cal.Rptr. 289, 611 P.2d 883, sets forth the current version of the analysis which the Supreme Court says is to be used in determining the admissibility of prior crimes evidence.

“[A]dmissibility depends upon three principal factors:  (1) the materiality of the fact sought to be proved or disproved;  (2) the tendency of the uncharged crime to prove or disprove the material fact;  and (3) the existence of any rule or policy requiring the exclusion of relevant evidence.   [Citations.]

“In order to satisfy the requirement of materiality, the fact sought to be proved may be either an ultimate fact in the proceeding or an intermediate fact ‘from which such ultimate fact[ ] may be presumed or inferred.’   [Citation.]  Further, the ultimate fact to be proved must be ‘actually in dispute.’  [Citation.]  If an accused has not ‘actually placed that [ultimate fact] in issue,’ evidence of uncharged offenses may not be admitted to prove it.  [Citations.]  The fact that an accused has pleaded not guilty is not sufficient to place the elements of the crimes charged against him ‘in issue.’   People v. Schader (1969) 71 Cal.2d 761, 775–776, fn. 13 [80 Cal.Rptr. 1, 457 P.2d 841] [citation].)”  [Final emphasis added.]  (Id., at p. 315, fns. omitted, 165 Cal.Rptr. 289, 611 P.2d 883.)

The emphasized sentence in the preceding paragraph (the Thompson doctrine) is the crux of the case at bench since the making-good-on-the-bad-sale comment is relevant to appellant's knowledge and intent and, while the trial court did not exercise its discretion under Evidence Code section 352 ⁵ on the record, we conclude, on the basis of all the facts, that the court's error was not prejudicial.   It is noteworthy that appellant did not argue until after oral argument, that the comment should have been excluded pursuant to Evidence Code section 352.

In People v. Perkins, supra, 159 Cal.App.3d 646, 205 Cal.Rptr. 625, the defendant was charged with burglary and receiving stolen property.   The trial court granted the prosecution's motion to admit evidence of a prior offense of receiving stolen property to prove intent and knowledge, and the evidence was admitted during the prosecution's case-in-chief.  (Id., at p. 649, 205 Cal.Rptr. 625.)   The defendant did not make an opening statement, present a defense, or independently raise the issue of intent or knowledge.  (Id., at pp. 651–652, 205 Cal.Rptr. 625.)   The appellate court, relying on the Thompson doctrine, ruled that the defendant did not place the ultimate facts of knowledge and intent in issue merely by entering a plea of not guilty;  therefore, the evidence of the prior crimes was erroneously admitted because the issue was not in dispute.  (Id., at pp. 651–652, 205 Cal.Rptr. 625.)   The fact that defense counsel addressed defendant's lack of knowledge in closing argument did not put the issue in dispute because “he was merely refuting the improper inferences raised by the admission of the uncharged offense.”  (Id., at p. 652, 205 Cal.Rptr. 625.)

If the Thompson doctrine were to be strictly interpreted—as it was by the Perkins court—appellant's comment regarding taking care of Chicken George's bad sales would have been admitted improperly as evidence of another crime prior to appellant's placing in issue the elements of the crime with which she was charged.

We conclude from an examination of People v. Schader (1969) 71 Cal.2d 761, footnote 13, 80 Cal.Rptr. 1, 457 P.2d 841, in that case (the sole citation of authority for the Thompson doctrine), the authorities cited in footnote 13, and other authorities that the Perkins result is not required by the Thompson doctrine.

The pertinent portion ⁶ of footnote 13 reads:

“ ‘The mere theory that a plea of not guilty puts everything material in issue is not enough for this purpose [of “raising an issue” on which evidence of other offenses may be introduced].   The prosecution cannot credit the accused with fancy defences in order to rebut them at the outset with some damning piece of prejudice.’  (Thompson v. The King [1918] A.C. 221, 232;  see also State v. Gilligan (1918) 92 Conn. 526, 532 [103 A. 649];  McCormick, Evidence (1954 ed.) § 157, p. 331.)”  (Id., at p. 776, 80 Cal.Rptr. 1, 457 P.2d 841.)

In Schader, which involved a robbery and the murder of a police officer:

“After defendant offered his explanation for his presence at the scene of the robbery, the trial court permitted the prosecution, over defendant's objection, to engage in two lines of cross-examination which defendant assigns as reversible error.”  (Id., at p. 768, 80 Cal.Rptr. 1, 457 P.2d 841.)

One line of cross-examination was the questioning of the defendant on “the details of a robbery for which defendant was convicted” six years prior to the charged crime, to show “ ‘common scheme, plan, or design ․ and ․ intent at the time of the offense charged.’ ”  (Ibid.)  The Supreme Court held that the trial court properly admitted the cross-examination on the details of the prior robbery since it “possessed sufficient probative value to outweigh its obviously prejudicial effect” (id., at p. 771, 80 Cal.Rptr. 1, 457 P.2d 841) and affirmed the convictions.⁷

Thus, the quoted language from footnote 13 had absolutely nothing to do with the facts, the issues, or the decision in Schader, and is, therefore, the rawest dicta.⁸

Less than 16 months after the decision in Schader, a unanimous court ⁹ decided People v. Archerd (1970) 3 Cal.3d 615, 91 Cal.Rptr. 397, 477 P.2d 421, in which the court upheld three judgments of conviction and sentences of death, and approved the introduction of evidence of other crimes prior to the defendant placing in issue the elements of the crime.

In Archerd, the defendant was charged with three counts of murder by poison (insulin).   The trial court admitted evidence of three similar uncharged murders to show common plan or scheme.   In finding no error, the court said:

“․ The evidence was relevant and tended to prove the issues of identity, intent, malice, premeditation, motive, knowledge of the means used to commit the crime, and modus operandi, and was admissible despite its prejudicial effects․

“There is no merit in the contention of defendant that until he puts in issue either identity, intent or other fact the People may not anticipate this and present evidence of other acts in their case in chief.   It is not necessary for the defendant to raise issues before the People may meet them where this is part of the prosecution's burden.   The People have the burden of establishing intent and identity.”  (People v. Archerd, supra, 3 Cal.3d at pp. 638–639, 91 Cal.Rptr. 397, 477 P.2d 421;  emphasis added.) 10

The court in People v. Perez (1974) 42 Cal.App.3d 760, 765–766, 117 Cal.Rptr. 195, recognized “[t]he possibilities of mischief” from reading Archerd as holding that evidence of prior or subsequent narcotic activity, to show knowledge, may be used even when there does not appear to be some genuinely controverted issue as to knowledge.  “The statement in Archerd cannot be used as a device by which prosecutors have carte blanche in every narcotic prosecution to present evidence of prior or subsequent narcotic activity to show knowledge of the narcotic nature of the substance involved in the primary prosecution.”  (Id., at p. 766–767, 117 Cal.Rptr. 195.)

The court approved the admission of evidence that six days after the defendant sold heroin to an undercover agent (the basis of the charge against him), his home was searched pursuant to a warrant and a substantial quantity of heroin was found in the house and heroin paraphernalia was found on his person, applying the “general guidelines in this field” which it had “distilled for the guidance of trial judges and trial attorneys.”

The guidelines were:

“(1) The prosecution must prove every element of its case including the defendant's knowledge of the narcotic character of the substance involved.   [¶] (2) To prove this element, prior or subsequent narcotic activity on the part of the defendant is sometimes admissible.  [¶] (3) The trial court has the discretion to allow the defendant to admit his knowledge of the narcotic nature of the object involved in the primary prosecution.  [¶] (4) If the defendant stipulates to such knowledge, it is error to admit evidence of other narcotics activity.  [¶] (5) There is no duty imposed on the trial court to sua sponte elicit a stipulation from the defendant as to his knowledge of the narcotic character of the substance involved.  [¶] (6) It is not necessary for the defendant to raise this issue before the People can present such evidence.   [¶] (7) However, before admitting any such evidence, the court must determine that the probative value of that evidence outweighs its inherent prejudicial effect and find that the evidence is not merely cumulative with respect to other evidence which the People have used to prove the same issue․”  (Id., at p. 766, 117 Cal.Rptr. 195.)

In facing the very issue we confront, neither the Archerd court nor the Perez court applied the reasoning of footnote 13 from Schader to the essential elements of the crime charged.¹¹  And the error in the Perkins interpretation of the Thompson doctrine becomes even more obvious on examination of the very authorities on which the Schader court relied in the pertinent portion of footnote 13—Thompson v. The King (1918) A.C. 221;  State v. Gilligan (1918) 92 Conn. 526, 103 A. 649;  and McCormick, Evidence (1954 ed.) § 157, p. 331.

In Thompson v. The King, the defendant was convicted of committing acts of gross indecency with two boys on March 16, 1917, and of assaulting a police constable three days later.  (Thompson v. The King, supra, A.C. 221, at p. 224.)

“ ‘During the course of the trial evidence was tendered by the prosecution to prove that, when the [defendant] was arrested on March 19, two powder puffs were found upon him, and that in a drawer in one of the rooms where he lived photographs of boys were found, including twelve separate photographs and ten pasted in an album of naked boys in various attitudes.   Objection was raised to the admissibility of this evidence on the ground that none of these articles was connected with any charge on the indictment, and that the evidence could only serve to prove that the [defendant] was a person of evil character or disposition with regard to boys, and therefore was a person likely to commit the offence.   After argument the learned judge admitted the evidence as tending to corroborate the evidence of identification of the [defendant].’ ”   (Id., at p. 225.) 12

The defendant appealed to the House of Lords on the grounds that “the judge wrongly admitted evidence which was not relevant to any of the offences charged in the indictment;  and ․ the judge misdirected the jury by telling them they might take this evidence into consideration.”  (Id., at p. 224.) ¹³

The prosecution proved:  that the defendant “had, on March 16, in the urinal near the Turnham Green Railway Station committed the offence charged” (id., at p. 227);  that he had given the two boys “one shilling each, presumably as a reward for what they had done to him, or permitted him to do to them” (ibid.);   that he asked them to meet him “at the same place, ․ at the same time on the following Monday, the 19th, ‘to do it again’;  that they ․ went to the same place about the same time on the following Monday and found the [defendant] there talking to two men;  that he made a sign to them with his head;  that they followed him and waited for him when he went into a shop;  that after he had parted from his friends they followed him again, when he told them to go away, and said he had not time that day ․;  that he then gave them a two-shilling piece, the same amount as before, and again said ‘Go away’ adding ‘That tall man,’ pointing to Sergeant Blackmore, ‘is a policeman’ ” (id., at pp. 227–228);  and that “detective policeman Sergeant Weston ․ on the 19th” saw most of the events described above and after seeing the defendant “take something from his pocket and hand it to the boys ․ that he then rushed up and said to the [defendant], ‘I am a police officer.   What are you doing to these boys?’   To which the [defendant] replied, ‘I have not spoken to any boys.’ ”  (Id., at p. 228.)

The defendant made no reply when one of the boys, in his presence, told Sergeant Weston some of the events of March 16 and 19, “but struck the police officer and endeavoured to run away.”  (Id., at p. 224.)   At trial he testified “that he was not in the Turnham Green urinal on March 16, and that anything which took place between him and the boys on the 19th was as far as he was concerned quite innocent.   These were his defences.”  (Id., at p. 229.)

The appeal was heard before six Lords, each of whom wrote an opinion affirming the order of the Court of Criminal Appeal.   The most detailed of the opinions was by Lord Sumner, and it is this opinion which contains the genesis of the Thompson doctrine.

Lord Sumner concluded that evidence of both the powder puffs and the photographs was admissible “to prove the identity of the [defendant] with the person who committed the offences” (id., at p. 231), recognizing that the photographs presented a more difficult question.

“․ I think the powder puffs were clearly admissible․  They are direct evidence that the [defendant] was keeping the criminal's appointment and was the same man.14  This only makes the admissibility of the photographs more critical.   No jury could fail to be influenced by the discovery of them in the [defendant's] possession․  [¶] ․ All lawyers recognize, as part of their professional premisses, that there is all the difference in the world between evidence proving that the accused is a bad man and evidence proving that he is the man.   Laymen are apt to think that the difference, if any, is in favour of admitting the former.   There must be something to connect the circumstance tendered in evidence, not only with the accused, but with his participation in the crime․  Persons ․ who commit the offences now under consideration seek the habitual gratification of a particular perverted lust, which not only takes them out of the class of ordinary men gone wrong, but stamps them with the hall-mark of a specialized and extraordinary class as much as if they carried on their bodies some physical peculiarity․  I ․ think that the photographs, found as they were and after a short interval of time, tend to show that the [defendant] had this recognizable propensity, which it was shown was also the propensity of the criminal of March 16.   It was accordingly admissible evidence of his identity with that criminal.   Its weight was for the jury.”  (Id., at pp. 233–235;  fn. added.)

It was in this context that Lord Sumner penned the language that has traveled across an ocean and a continent and after 66 years passed through Professor McCormick, Schader and Thompson to Perkins.

“Before an issue can be said to be raised, which would permit the introduction of such evidence so obviously prejudicial to the accused, it must have been raised in substance if not in so many words, and the issue so raised must be one to which the prejudicial evidence is relevant.   The mere theory that a plea of not guilty puts everything material in issue is not enough for this purpose.   The prosecution cannot credit the accused with fancy defences in order to rebut them at the outset with some damning piece of prejudice.”   (Id., at p. 232.)

Thus, the very portion of Lord Sumner's remarks which has come down to us as authority for the Thompson doctrine was found by Lord Sumner (and the other five Lords) to be inapplicable to evidence offered—at least inferentially—in the prosecution's case in chief for the purpose of intent and identity.

In State v. Gilligan, supra, 92 Conn. 526, 103 A. 649, the Supreme Court of Errors of Connecticut reversed a conviction of murder in the first degree, and ordered a new trial, where the trial court had allowed the introduction, in the state's case in chief, of evidence tending to prove that three other persons had been killed by the defendant.

The defendant operated a home for aged and invalid persons.   She provided care for such persons for life under written contracts to provide room, board, care, and nursing (and in some cases burial) for fixed fees, paid on execution of the contracts.

The prosecution proved:  that the victim (Andrews) entered the home in September 1912 at the age of 60 years;  that Andrews paid $1,000 for a life contract;  that early in May 1914 a couple sought admission to the home on the condition they could have the room occupied by Andrews and his roommate and were told they could have the room about June 1;  that the defendant borrowed $500 from Andrews a few weeks before his death;  that after his death the defendant denied having borrowed the money;  that Andrews' savings bankbook, showing the withdrawal of the $500, was in the defendant's possession;  that, on May 26, 1914, the defendant purchased two ounces of arsenic, saying she wanted it for rats, although there were no rats about the home;  that on May 29 Andrews ate a hearty supper, which was prepared and served by the defendant;  that at 5 o'clock the next morning, Andrews, vomiting, awakened his roommate, who called the defendant and suggested she call a doctor;  that throughout the day Andrews was attended only by the defendant;  that the defendant did not call a doctor until about 6 o'clock that evening;  that the doctor diagnosed the case as an attack of acute indigestion, and did not think Andrews was dangerously ill;  that the doctor was summoned again by the defendant about 9 o'clock the same evening and arrived that time just before Andrews died;  that the defendant advised the doctor that Andrews suffered from gastric ulcers (which was not true), and the death certificate so stated;  that as soon as the doctor left, the defendant sent for an undertaker, who removed the body;  that immediately on Andrews' death the defendant telegraphed the couple that wanted his room, told them the room was available and urged them to come;  that at about 10 o'clock, when Andrews had been dead an hour, the defendant telephoned Andrews' sister and told her that he was sick, that she was afraid he would not get well, but that it was not necessary for his relatives to come that night;  that the next day Andrews' sister was told by the defendant that he had died shortly after 10 o'clock the night before;  that Andrews' symptoms were consistent with arsenic poisoning;  that Andrews' body was embalmed with a fluid containing no arsenic, and, when exhumed two years after his death, was in a state of good preservation;  that arsenic in large amounts was found diffused through the organs of Andrews' body, and a larger quantity, many times a fatal dose, was found in crystal in his stomach;  and that, in the opinion of the prosecution's principal expert, one dose of arsenic had been administered 10 or 12 hours before death and another very large dose a short time before death.

The trial court then permitted the prosecution, over the defendant's objection, to introduce evidence that three other persons had died of arsenic poisoning at the home—on February 20, 1914, on April 6, 1914, and on December 3, 1914,—and circumstantial evidence tending to prove that, in each of these cases, the defendant had administered arsenic with malice aforethought.   This evidence was admitted “for the limited purpose of eliminating innocent intent in the commission of the principal act, and to exclude the probability of accident and mistake.”  (State v. Gilligan, supra, 103 A., at p. 651.)

Labeling the evidence in question as “evidence of other similar but unconnected crimes” (ibid.), the Connecticut court said:

“․ Such evidence, when offered in chief, violates the rule of policy which forbids the state initially to attack the character of the accused, and also the rule of policy that bad character may not be proved by particular acts․  The objection on the ground of policy applies exclusively to evidence of crimes which are logically unconnected with the principal crime;  that is to say, to evidence the probative effect of which is indirect, in the sense that its direct application is exhausted in showing that the accused was possessed of a bad character or of a disposition to commit the particular crime of which she is accused, and thereby it furnishes a justification for a conviction rather than proof of guilt of the specific offense․”  (Ibid.)

Applying these rules to the facts before it, the court concluded:

․ “In this case the question is whether evidence generally objectionable shall be admitted for the limited purpose of eliminating accident or mistake, and we think it would be an abuse of discretion to permit proof of similar but unconnected poisonings in a case where the state's evidence had already gone so far toward eliminating accident or mistake as to leave no reasonable doubt ․ that the poison, if administered by the accused, must have been knowingly administered.   Otherwise evidence inadmissible on the general issue would be admitted for the special purpose of characterizing an equivocal act, when the act in question was not equivocal, and so the only practical effect which the evidence could have would be to prejudice the accused and violate the policy of the criminal law․”  (Id., at p. 653;  emphasis added.)

Professor McCormick, in the 1954 edition of his Handbook of the Law of Evidence, section 157, at page 331, tells us:

“Two considerations, one substantive and the other procedural, affect the ease or difficulty of securing admission of proof of other crimes.   The first is that the courts are stricter in applying their standards of relevancy when the ultimate purpose of the state is to prove identity, or the doing by the accused of the criminal act charged than they are when the evidence is offered on the ultimate issue of knowledge, intent or other state of mind.   The second is that when the crime charged involves the element of knowledge, intent, or the like, the state will often be permitted to show other crimes in rebuttal, after the issue has been sharpened by the defendant's giving evidence of accident or mistake, more readily than it would as part of its case in chief at a time when the court may be in doubt that any real dispute will appear on the issue.”  (Emphasis added;  fn. omitted.)

With regard to the second consideration, Professor McCormick cited and quoted from Thompson v. The King (with the quote being the language, ante, p. 529), Gilligan, and People v. Knight (1923) 62 Cal.App. 143, 216 P. 96 (incorrectly cited as 92 Calif.App. 143).¹⁵

Thus, Thompson v. The King, and Gilligan (and McCormick by his quote from the former) discussed attempts by the prosecution to create an opportunity to bring in evidence of other crimes by concocting imaginary or farfetched defenses;  and only in Gilligan was the discussion relevant.

 From all of the foregoing, we conclude that the court in Thompson did not intend to include within the scope of matters not placed in issue by a not guilty plea, the essential elements ¹⁶ of the crime with which a defendant is charged, regardless of the defense.   We further conclude that the prosecution may introduce evidence of other crimes to prove any of those essential elements, unless the defendant concedes the existence of the element;  subject, of course, to the requirement that the evidence tend to prove the element and to “the existence of any rule or policy requiring the exclusion of relevant evidence.”  (People v. Thompson, supra, 27 Cal.3d, at p. 315, 165 Cal.Rptr. 289, 611 P.2d 883.)

 In the case at bench, there was no attempt by the prosecution to “credit the accused with fancy defences.”   The admissibility of the making-good-on-the-bad-sale comment by appellant did not depend on any fanciful defense.   It was relevant to matters which the prosecution had to prove—appellant's intent and her knowledge of the controlled substance in question—and it was not cumulative.   And we find that its probative value outweighed any prejudice to appellant.

II.

 THERE IS SUBSTANTIAL EVIDENCE TO SUSTAIN APPELLANT'S CONVICTION.

Appellant contends that, since she did not try to sell drugs on August 16, when Chicken George was passed out and she had the perfect opportunity to do so, she clearly was not a dealer;  that on August 17 she went to Mueller's car as a natural response since she had spoken to him on August 16;  that she made an innocent inquiry as to what he wanted and he brought up the subject of drugs;  that, since the record does not reveal what she said to Chicken George after her conversation with Mueller on August 17, no significance can be given to the “ghost” conversation;  that she merely responded to Mueller's request and did not have the specific intent to sell PCP;  and that, since no sale took place and it was clear Mueller wanted to buy, an offer to sell must not have been made.

 In order to prove an offer to sell PCP it must be shown that appellant offered to sell the drug with the specific intent to make a sale.  (People v. Innes (1971) 16 Cal.App.3d 175, 178, 93 Cal.Rptr. 829.)   The substantial evidence test as enunciated in People v. Johnson (1980) 26 Cal.3d 557, 578, 162 Cal.Rptr. 431, 606 P.2d 738, states:  “[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.”   It is the exclusive province of the trier of fact to determine the credibility of a witness and the truth or falsity of facts upon which a determination is made.  (People v. Thornton (1974) 11 Cal.3d 738, 114 Cal.Rptr. 467, 523 P.2d 267.)

In Innes, Florida, an undercover officer, went to an apartment complex to buy drugs from a man known as “Jim.”   After he ascertained that “Jim” no longer lived there and was starting to leave, he saw the defendant in the front yard.   The officer

“told defendant he had been working with Jim on a deal for some ‘reds' and asked defendant if she knew where he could get any ‘reds,’ in response to which defendant said ‘she didn't have any’;  asked defendant if she had any ‘whites' to which she made the same response;  and then asked defendant if she had any ‘acid,’ in response to which she said she did not and pointed to another girl in the area, saying ‘If you want to buy some reds go to her, she's a big dealer.’   Defendant, addressing Florida, then said either ‘do you want some mescaline’ or ‘do you want to buy some mescaline.’   In response Florida said ‘yeah’ and asked her ‘how much she could do.’   He testified by this reply he meant ‘how much she could sell.’   Defendant said ‘she would have to check’;  went into a nearby apartment;  returned in about five minutes;  removed a plastic bag from under her shirt and, as related by Florida in his testimony, ‘She told me that she had 13 caps and I believe also she said that they normally sold for $4.00 apiece and she was going to give me a break on the price.’ ”  (Id., 16 Cal.App.3d, at p. 177, 93 Cal.Rptr. 829.)

Following a substantial evidence challenge, the appellate court upheld the offer to sell mescaline.

“[T]he evidence does not support a finding defendant, prior to the time she exhibited to Florida the plastic bag containing ‘thirteen caps,’ had made an offer to sell him Mescaline.   At most, she ascertained he wanted to buy Mescaline and advised him she would check to determine how much, if any, Mescaline was available for sale.   There is no evidence of an offer to sell or an intent to make a sale at this time.

“When defendant produced the plastic bag and told Florida she could sell him ‘thirteen caps' which normally sold for $4 apiece but she was going to give him a break on the price, she made an offer to sell.   In light of the prior conversation between defendant and Florida respecting Mescaline it is reasonable to infer the object of the offer to sell was ‘thirteen caps' of Mescaline.”  (Id., at p. 178, 93 Cal.Rptr. 829.)

In People v. Encerti (1982) 130 Cal.App.3d 791, 182 Cal.Rptr. 139, the defendant was charged with numerous counts, including offering to sell heroin.   The magistrate dismissed the offer to sell charge following the preliminary hearing, finding that there was no offer.   The charge was reinstated by the district attorney.  (Id., at p. 794, 182 Cal.Rptr. 139.)

An undercover agent made two purchases of heroin from the defendant.   Following the second purchase, the agent asked if he could sell him an ounce of heroin.   He responded, “ ‘I can do ounces but it will cost you nine thousand per ounce.’ ”   The agent stated he might want to start with a smaller quantity.   The defendant replied, “ ‘That's okay with me.’ ”  (Id., at p. 795, 182 Cal.Rptr. 139.)   No further arrangements were made.

The question on appeal was whether there was sufficient cause to believe that defendant committed the offense which had been dismissed.  (Id., at p. 800, 182 Cal.Rptr. 139.)   The court found the defendant's

“declaration of willingness to provide an ounce of heroin at a prescribed price sufficient evidence of an offer, particularly when considered in light of the other sales made by [defendant].   While the sale itself was never consummated, and certain details—such as the time and place of the transaction—were left open, the essential terms were firmly stated.   In addition, [defendant] clearly exhibited a readiness and ability to enter into the heroin transaction on the terms stated.”  (Id., at p. 801, 182 Cal.Rptr. 139.)

The court acknowledged that the offer was not as easily identifiable as the offer in Innes and noted that it was dealing with the threshold determination of “sufficient cause” to try the defendant on the charge.   (Id., at p. 802, 182 Cal.Rptr. 139.)

Appellant argues that her conversation is less incriminating than that which took place in Innes, that she did not produce the drugs as did the defendant in Innes, and that her conversation is also less incriminating that the conversation in Encerti, because she did not suggest the price and only confirmed what Mueller said.

There are similarities between the case at bench and Innes.   In that case, as here, the officer approached the defendant without having met her previously, and without any knowledge or information that she was dealing, and engaged in a hit-or-miss conversation about drugs.   In Innes, it was only after the defendant had responded negatively to the officer's questions about three different drugs that she asked him if he wanted to buy some mescaline.   Appellant was present on August 16, when Mueller attempted to purchase drugs from Chicken George;  she relayed the latter's message to come back the next day;  and she talked with Mueller about PCP.   At that point, appellant's involvement was comparable to the defendant's in Innes prior to the time the latter “exhibited to Florida the plastic bag․  At most, she ascertained he wanted to buy [drugs] and advised him she would check [in Innes on the quantity available and here on the delay].   There is no evidence of an offer to sell or an intent to make a sale at this time.”  (People v. Innes, supra, 16 Cal.App.3d, at p. 178, 93 Cal.Rptr. 829.) ¹⁷

The events of August 17 are more akin to those in Encerti.   Mueller had spoken previously with appellant about PCP sales and had good reason to believe that she had some involvement with them when he told her he wanted “Some more juice.”   Appellant brought up the subject of quantity and confirmed the price when questioned by Mueller.   The essential terms of the transaction were stated firmly by Mueller and confirmed by appellant.   That the drugs were not produced is not fatal.  “[N]either delivery of the drug, an exchange of money, nor a direct, unequivocal act toward a sale are necessary elements of the offense.”  (People v. Encerti, supra, 130 Cal.App.3d 791, 800–801, 182 Cal.Rptr. 139.)

 Although the evidence is not overwhelming, appellant's actions and words were sufficient to constitute an offer to sell PCP.   That no sale took place on August 16 is a factor to be considered in ascertaining her intent, but is not determinative.   It is reasonable to infer that there was a reason why she was unable to complete a sale on that day.   It is also reasonable to infer that her approach to Mueller's car, on August 17, was for the purpose of selling drugs.   Although her initial inquiry could be viewed as an innocent one, when looked at in context it could also be viewed as involving drug sales.   Without knowing the exact words of appellant's conversation with Chicken George after speaking to Mueller on August 17, the logical inference is that she passed on the substance of what she and Mueller had said.   Chicken George appeared to be the ringleader and perhaps things needed to be cleared through him.   It is also reasonable to infer that after the offer was made by appellant, Chicken George thought something was wrong and called off the sale stating, “Nobody does that here anymore.”   This inference is supported by the quick dispersion of the group which had gathered.

In addition, the jury could have found that appellant was aiding and abetting Chicken George in his offer to sell.   Both CALJIC 3.00 and CALJIC 3.01 (as modified by People v. Beeman (1984) 35 Cal.3d 547, 199 Cal.Rptr. 60, 674 P.2d 1318) were given.

The evidence in the instant case was susceptible of several interpretations.   That the jury found as the reasonable and credible interpretation the one resulting in a finding of guilt was within their purview and will not be disturbed on appeal.

III.

 PENAL CODE SECTION 1203.07, SUBDIVISION (a)(6), WHICH BARS PROBATION FOR THOSE CONVICTED OF OFFERING TO SELL PCP, DOES NOT CONSTITUTE CRUEL AND UNUSUAL PUNISHMENT AS APPLIED IN THIS CASE

Penal Code section 1203.07 provides in pertinent part:

“(a) Notwithstanding the provisions of Section 1203, probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, any of the following persons:

“․

“(6) Any person who is convicted of violating Section 11379.5 or 11380.5 of the Health and Safety Code by manufacturing, selling, or offering to sell phencyclidine, or using, soliciting, inducing, encouraging, or intimidating a minor to manufacture, compound, or sell phencyclidine.”

Appellant contends that the mandatory denial of probation, under the circumstances of this case, constitutes cruel and unusual punishment, arguing that the crime was a nonviolent one carrying a minimal threat to society, that her involvement in its commission was slight, and that she was becoming a contributing member of society.¹⁸  She also asserts that the punishment is unbalanced when compared to sentences for other crimes which are far more violent and dangerous to society, and that, in a sample of 12 sister states, none had provisions for mandatory prison sentences for this type of crime.

There are

“three techniques to be used in determining whether a particular penalty for a particular offense constitutes disproportionate punishment:  (1) consideration of the nature of the offense and/or the offender with particular regard to the degree of danger both present to society;  (2) comparison of the challenged penalty with the punishments prescribed in the same jurisdiction for different offenses which, by the same test, must be deemed more serious;  (3) comparison of the challenged penalty with the punishments prescribed for the same offense in other jurisdictions having an identical or similar constitutional provision [In re Lynch (1972) 8 Cal.3d 410, 425–427, 105 Cal.Rptr. 217, 503 P.2d 921].”  (People v. Madden (1979) 98 Cal.App.3d 249, 255, 159 Cal.Rptr. 381.) 19

 The Legislature is given the broadest discretion in enacting penal statutes and specifying punishment for crime.  (People v. Main (1984) 152 Cal.App.3d 686, 692, 199 Cal.Rptr. 683.)   Whether the punishment exceeds constitutional limits is a judicial function;  however, a statute will not be overturned unless its unconstitutionality clearly, positively and unmistakably appears.  (Ibid.)  In determining if punishment is cruel and unusual it is important to keep in mind that probation is a privilege granted by the Legislature, not a right.  (Id., at p. 693, 199 Cal.Rptr. 683.)

We could find no cases in California regarding subdivision (a)(6) of Penal Code section 1203.07;  there are cases, however, dealing with the mandatory denial of probation under subdivision (a)(2) which provides that probation shall be denied for:

“Any person who is convicted of violating Section 11352 of the Health and Safety Code by selling or offering to sell 14.25 grams or more of a substance containing heroin.”

In People v. Solorzano (1978) 84 Cal.App.3d 413, 148 Cal.Rptr. 696, the defendant challenged the mandatory prison sentence contained in Penal Code section 1203.07, subdivision (a)(2).   The court rejected his arguments that the statute violated the doctrine of the separation of powers, that the Constitution required the court to consider mitigating factors in granting or denying probation, and that the quantity limitations imposed for selling heroin bore no rational relationship to the purpose of the section.  (Id., at pp. 416–417, 148 Cal.Rptr. 696.)   The court did not embark on a Lynch analysis.

In People v. Madden, supra, 98 Cal.App.3d 249, 159 Cal.Rptr. 381, the defendant also challenged as cruel and unusual punishment the mandatory prohibition of probation required by Penal Code section 1203.07, subdivision (a)(2).   The Madden court applied the Lynch analysis.

 Although the sale or offer to sell heroin is a nonviolent crime ²⁰ “the Legislature could reasonably conclude that it is one of the most serious offenses, leading indirectly to death, illness, and other crimes which may involve violence.”  (Id., at p. 255, 159 Cal.Rptr. 381.)   By providing that the heroin involved must be at least one-half ounce the Legislature made a reasonable attempt to not punish those who deal in small quantities to support their habit.  (Id., at p. 257, 159 Cal.Rptr. 381.)   The court found that when comparing this section with other California penal statutes the Legislature has not singled out heroin dealers for disproportionate punishment.  “Probation has been denied for a broad range of offenders—primarily those who commit violent crimes, serious drug offenses, and those who repeat serious offenses.”  (Id., at p. 259, 159 Cal.Rptr. 381.)

After applying the third prong of Lynch, comparison with laws in sister states, the court found that California has adopted the minority position, but that this, standing alone, was not enough to find the probation ban unconstitutional.  (Id., at p. 260, 159 Cal.Rptr. 381.)

“The ban on probation for those who deal in one-half ounce or more of a substance containing heroin is not so disproportionate as to be unconstitutional.   The offense of selling heroin, particularly in large quantities, leads indirectly to the destruction of lives and to many other crimes.   The statute is not grossly out of line with other punishments in California or in a substantial number of other jurisdictions.   It also appears to serve proper penological purposes—punishment and protection of society by removal of the heroin dealer from the street.   While this ban on probation may also reach some offenders who are merely selling heroin to support their own habit, the possibility of commitment to CRC could mitigate the harsh effects of the probation ban on those offenders whose problems stem solely from their own narcotics addiction.”  (People v. Madden, supra, 98 Cal.App.3d at p. 260, 159 Cal.Rptr. 381.)

These cases are particularly instructive.   The dangers associated with PCP are as harmful, if not more harmful, than those associated with heroin.   Because PCP use is becoming a widespread problem;  because its users may be subject to outbursts of extreme violence, aggression and other forms of unpredictable behavior;  and because the danger to society imposed by users is so high,²¹ the Legislature classified dealings in PCP as serious crimes and determined that all persons involved in its manufacture and sale should be denied probation.   The drug is easy to make and cheap to buy;  therefore, the chances for abuse are heightened.   Only in recent years has PCP become a serious and pervasive problem, and some experimentation by the Legislature in fixing punishment is appropriate.  (People v. Gayther (1980) 110 Cal.App.3d 79, 90, 167 Cal.Rptr. 700.)   Considering the degree of danger this type of crime presents to society, the Legislature's concerns and actions are reasonable.

 Appellant also contends that this court could find cruel and unusual punishment by considering the nature of the offender, relying on People v. Dillon (1983) 34 Cal.3d 441, 194 Cal.Rptr. 390, 668 P.2d 697.

The defendant in Dillon, was a 17-year-old high school student.   He and two companions went to a marijuana farm to investigate and possibly steal some marijuana.   His companions were discovered and told if they returned they might get shot.   The defendant was discovered later and was ordered to leave while the farm owner (Johnson) pointed a shotgun at him.   The defendant and a friend discussed the matter further and considered various plans for stealing some of the marijuana and dealing with Johnson.

“ ․ They recruited six other classmates, and on the morning of October 17, 1978, the boys all gathered for the venture.   Defendant had prepared a rough map of the farm and the surrounding area.   Several of the boys brought shotguns, and defendant carried a .22 caliber semi-automatic rifle.   They also equipped themselves with a baseball bat, sticks, a knife, wirecutters, tools for harvesting the marijuana, paper bags to be used as masks or for carrying plants, and rope for bundling plants or for restraining the guards if necessary.   Along the way, they found some old sheets and tore them into strips to use as additional masks or bindings to tie up the guards.   Two or three of the boys thereafter fashioned masks and put them on.

“ ․ Although the testimony of the various participants was not wholly consistent, it appears that two of the boys abandoned the effort altogether, two others were chased away by dogs but began climbing the hill by another route, and defendant and his companion, with the remaining pair, watched cautiously just outside the field of marijuana.

“One of the boys returning to the farm then accidentally discharged his shotgun, and the two ran back down the hill.   While the boys near the field reconnoitered and discussed their next move, their hapless friend once more fired his weapon by mistake.   In the meantime Dennis Johnson had circled behind defendant and the others, and was approaching up the trail.   They first heard him coming through the bushes, then saw that he was carrying a shotgun.   When Johnson drew near, defendant began rapidly firing his rifle at him.   After Johnson fell, defendant fled with his companions without taking any marijuana.   Johnson suffered nine bullet wounds and died a few days later.”   (Id., at pp. 451–452, 194 Cal.Rptr. 390, 668 P.2d 697.)

Defendant was found guilty of felony murder.   The Supreme Court stated that defendant's state of mind from his testimony ranged “from youthful bravado, to uneasiness, to fear for his life, to panic.”  (Id., at p. 482, 194 Cal.Rptr. 390, 668 P.2d 697.)   Although a defendant's testimony is usually self-serving, the court thought that the judge and jury gave defendant's testimony substantial weight and credence.   After the jury reached its verdict, the judge stated that “ ‘This felony murder rule is a very harsh rule and it operated very harshly in this case.’ ”  (Id., at p. 484, 194 Cal.Rptr. 390, 668 P.2d 697.)   The jurors, through the foreperson, expressed that they had great difficulty in reaching a verdict and asked that the defendant be given “ ‘his best opportunity in life.’ ”  (Id., at p. 485, 194 Cal.Rptr. 390, 668 P.2d 697.)   The trial court committed him to the Youth Authority;  however, this commitment was overturned because he was statutorily ineligible, and he was sentenced to life in prison.  (Id., at pp. 486–487, 194 Cal.Rptr. 390, 668 P.2d 697.)

The California Supreme Court stated:

“Because of his minority no greater punishment could have been inflicted on defendant if he had committed the most aggravated form of homicide known to our law—a carefully planned murder executed in cold blood after a calm and mature deliberation.   Yet despite the prosecutor's earnest endeavor throughout the trial to prove a case of premeditated first degree murder, the triers of fact squarely rejected that view of the evidence:  as the jurors' communications to the judge made plain, if it had not been for the felony-murder rule they would have returned a verdict of a lesser degree of homicide than first degree murder.   Moreover, after hearing all the testimony and diligently evaluating defendant's history and character, both the judge and the jury manifestly believed that a sentence of life imprisonment as a first degree murderer was excessive in relation to defendant's true culpability:  as we have seen, they made strenuous but vain efforts to avoid imposing that punishment.

“The record fully supports the triers' conclusion.   It shows that at the time of the events herein defendant was an unusually immature youth.   He had had no prior trouble with the law, and, as in Lynch and Reed, was not the prototype of a hardened criminal who poses a grave threat to society.   The shooting in this case was a response to a suddenly developing situation that defendant perceived as putting his life in immediate danger.   To be sure, he largely brought the situation on himself, and with hindsight his response might appear unreasonable;  but there is ample evidence that because of his immaturity he neither foresaw the risk he was creating nor was able to extricate himself without panicking when that risk seemed to eventuate.

“Finally, the excessiveness of defendant's punishment is underscored by the petty chastisements handed out to the six other youths who participated with him in the same offenses․  [D]efendant received the heaviest penalty provided by law while those jointly responsible with him received the lightest—the proverbial slap on the wrist.

“ ․

“For the reasons stated we hold that in the circumstances of this case the punishment of this defendant by a sentence of life imprisonment as a first degree murderer violates article I, section 17, of the Constitution.   Nevertheless, because he intentionally killed the victim without legally adequate provocation, defendant may and ought to be punished as a second degree murderer.”  (People v. Dillon, supra, 34 Cal.3d at pp. 487–489, fns. omitted, emphasis added, 194 Cal.Rptr. 390, 668 P.2d 697.)

The case at bench is distinguishable.   Appellant was not a minor when she committed the crime, she was 34 years old;  there was no indication by the jurors or the judge that they had any problem with the case or that the judge thought appellant was being too severely punished;  and she had a previous conviction for receiving stolen property and theft of a credit card, although they occurred approximately nine years before the instant crime and she successfully completed probation.   Furthermore, appellant's actions were not a response to a suddenly developing situation which a reasonable person could conceive as life threatening.   The circumstances of this transaction allowed her a great deal of time to reflect upon what was happening and to make a choice before acting.   And she has not shown that her culpability is any less than others given the same punishment.

In examining the second prong of Lynch (comparison with punishments in the same jurisdiction for different offenses), appellant points to several crimes which she deems more serious and dangerous than an offer to sell PCP but which are not punished as severely.   Since the denial of probation for specified heroin dealers is not out of line with the other California penal statutes, we find that similar treatment of persons dealing in PCP is also not out of line.

 With regard to the third criterion of Lynch (comparison with punishments for the same offense in other jurisdictions), appellant has provided a sampling of the law in 12 sister states.   Of the twelve, two do not list offenses regarding PCP, eight do not impose mandatory prison terms (two of these do impose mandatory sentences for the second offense), one does not specifically list PCP, but it is possible that it would fit the classification requiring a mandatory prison term for the first offense, and one did not have the revised statutes available.

It would be impossible to conduct a proper analysis of the third Lynch criterion without a larger sampling of the states—ideally a complete sampling.   In any event, the cases dealing with the mandatory denial of probation for dealers in heroin are dispositive.  “The Lynch test is not to be mechanically applied;  if the latter two Lynch techniques indicate disproportionality, the first test is nonetheless dispositive.”  (People v. Gayther, supra, 110 Cal.App.3d 79, 90, 167 Cal.Rptr. 700.)

Considering the unpredictable dangers posed by PCP users, relevant policy considerations, and the need to curb the use and abuse of PCP, it cannot be said that a mandatory prison term in this case constituted cruel and unusual punishment absent some showing that appellant would suffer disproportionately from any confinement.   This latter consideration was suggested by appellant at her sentencing (see fn. 18, ante, p. 534) but was not pursued (and therefore was abandoned) on appeal.

The judgment is affirmed.

FOOTNOTES

FOOTNOTE.  

1.   It is not a crime to know the characteristics of a controlled substance.

2.   Although both parties, until after oral argument, took the position that none of the evidence of what was said on August 16 related to other crimes, counsel for respondent now concedes that he is “unable to conceive of a reasonably possible situation when making good on an illicit drug transaction, in order to satisfy unsatisfied customers, [which] would not involve criminal conduct.”   Counsel for appellant impliedly reaches the same conclusion since she applies “the reasoning of the Thompson [People v. Thompson (1980) 27 Cal.3d 303, 165 Cal.Rptr. 289, 611 P.2d 883] and [Alcala ] [People v. Alcala (1984) 36 Cal.3d 604, 205 Cal.Rptr. 775, 685 P.2d 1126] cases” to find “it is apparent that the events of August 16th could not have been admitted to show intent or common plan and scheme to act in a certain manner on August 17th.”

3.   Evidence Code section 351 provides:  “Except as otherwise provided by statute, all relevant evidence is admissible.”

4.   Not surprisingly, in view of their late conversion to the idea there was an other crimes issue here, neither party raised below or on appeal the effect of Proposition 8 (Cal. Const., art. I, § 28, subd. (d)) on Evidence Code section 1101.  People v. Perkins (1984) 159 Cal.App.3d 646, 649–650, 205 Cal.Rptr. 625 held that the “truth in evidence” provision of Proposition 8 did not abrogate Evidence Code section 1101.

5.   Evidence Code section 352 provides:“The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) creates substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”

6.   The other portions of footnote 13 discuss various aspects of the admissibility of cross-examination after a defendant's testimony which constituted a general denial.

7.   Justice Tobriner wrote the opinion in which Chief Justice Traynor and Justices Peters and Sullivan concurred.   Justices Burke, McComb and Schauer dissented only to the majority's reversal of the death penalty on other grounds.

8.   Interestingly, the Thompson doctrine is also dicta in Thompson.   While holding the trial court erred in admitting evidence of another robbery, which was offered to prove the defendant had an intent to steal at the time the charged offenses were committed, the court said:  “As shown by defense counsel's arguments to the jury, appellant placed [the] element [of specific intent to steal] in issue, and the evidence of the [other] robbery was not cumulative.   The requirements of materiality and necessity were met.”  (People v. Thompson, supra, 27 Cal.3d, at p. 318, 165 Cal.Rptr. 289, 611 P.2d 883;  emphasis added);  and Thompson tells us that one of the requirements of materiality is that “the ultimate fact to be proved must be ‘actually in dispute.’ ”  (Id., at p. 315, 165 Cal.Rptr. 289, 611 P.2d 883.)

9.   The court was comprised of five survivors from the Schader court—Justices McComb (who wrote the opinion), Peters, Tobriner, Burke and Sullivan;  a new member of the court, Justice Mosk;  and Justice Roth (assigned).

10.   Jefferson, referring to Archerd, says whether the prosecution is entitled to offer evidence of a prior offense on an issue such as intent or identity as part of its case in chief, “depends on whether, before the evidence is offered, defendant indicates that he is not raising the particular issue.   If no such indication is given, the prosecution may offer the evidence as part of its case in chief, because the prosecution has the burden of proving all elements of the offense, including intent and identity of defendant as the perpetrator.”  (2 Jefferson, Evidence Benchbook, (2d ed. 1982) § 33.6, p. 1201;  emphasis in the original.)

11.   Thompson mentions neither Archerd nor Perez.

12.   The report of the case does not reveal when, in the course of the trial, the evidence was tendered and admitted, although it may be inferred it was during the prosecution's case in chief as the report does indicate that the defendant “by his evidence sought to explain that these photographs had come into his possession for the purpose of artistic study.”  (Id., at p. 225.)

13.   The defendant had first appealed to the Court of Criminal Appeal which held the evidence was admissible on the issue of identity and dismissed the appeal.   The defendant then obtained from the Attorney General a certificate authorizing the appeal to the House of Lords.   (Id., at pp. 221–222.)

14.   “It is stated that powder puffs are some of the things with which persons who commit abominable and indecent crimes with males furnish themselves for the purpose of carrying out their criminal designs․  The possession of them is in my opinion admissible in evidence to show, when taken in connection with the facts proved, that the [defendant] harboured on that day an intent to commit an act of indecency with these boys should occasion offer.”  (Id., Opinion of Lord Atkinson, p. 230.)

15.   Knight was a child molesting case, in which “the defendant testified that he did on certain occasions place his hands upon the children's legs when taking them from the swing and slide, but that his act in doing so was only accidental and done with no evil intent․  [T]he state then offered and there was received in evidence the testimony of other little girls to show that the defendant had placed his hands under their clothing between their legs on different occasions.”  (Id., at p. 145, 216 P. 96.)The appellate court concluded that the defendant had “opened the door for the admission of such evidence” and was “in no position to complain of its reception.”  (Id., at p. 147, 216 P. 96.)   It also, however, recognized the “rule that evidence of other crimes is competent to prove the specific crime charged when it tends to establish intent, the absence of mistake, or accident, or a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other” (id., at p. 146, 216 P. 96) and did not suggest that such evidence was inadmissible in the prosecution's case in chief.

16.   I.e., those elements which the prosecution must prove to avoid the imposition by the trial court of the provisions of Penal Code section 1118 or section 1118.1.

17.   “The point at which a noncriminal preliminary statement becomes a criminal offer to sell is ․ not always easy to ascertain.”  (People v. Encerti, supra, 130 Cal.App.3d, at p. 801, 182 Cal.Rptr. 139.)

18.   At sentencing, appellant's counsel's only comment to the court's statement that it had no power to grant probation under section 1203.07, subdivision (a)(6) was to ask the court to declare the section unconstitutional on the ground that “it takes away the Court's discretion to consider each case on its individual merits.”   Appellant herself, however, advised the court that:  “I have claustrophobia and I would do just anything to get out of here without air and—going to—I have really been through a miserable and physical change.”   With the caveat that we may not be as indulgent in the future, we allow appellant to hang her cruel and unusual punishment argument on appeal on this extremely slender reed.

19.   The use of these techniques is referred to as a “Lynch analysis.”

20.   An offer to sell PCP is, of course, also a nonviolent crime.

21.   PCP is an illicit drug used only for its mind-altering effects.  “Low doses cause loss of inhibition.   Higher doses produce an excited, confused intoxication which can include any of the following:  muscle rigidity, loss of concentration and memory, visual disturbances, delirium, feelings of isolation and paranoia, convulsions, speech impairment, violent behavior, fear of death, and changes in body perception.”  (Stephen J. Levy, Managing the Drugs in Your Life:  A Personal and Family Guide to the Responsible Use of Drugs, Alcohol, Medicine (1983).)   It is quite volatile and can affect different users in vastly disparate ways ranging from withdrawal to severe agitation;  even experienced users cannot be certain how it will affect them each time.   PCP is cheap to buy and easy to make.  (Op. cit. supra.)“An increasing number of young people appearing violent, bizarre, unresponsive, extremely confused, or acutely psychotic are being seen in local emergency rooms.   With increased use of PCP, an upsurge in violent crimes that culminate in homicide is observed.”  (Phencyclidine (PCP) Abuse:  An Appraisal (National Inst. on Drug Abuse, research monograph No. 21, Aug. 1978) p. 90.)   Users of PCP may exhibit unpredictable bizarre or violent behavior when under its influence.  (Op. cit. supra.)

IVEY, Associate Justice **. FN**Assigned by the Chairperson of the Judicial Council.

FRANSON, Acting P.J., and WOOLPERT, J., concur.