*1 S198434. July 2013.] [No. PEOPLE, Plaintiff and Respondent,
THE DAVIS, Defendant and EDWARD Appellant. ZACHARY *3 Counsel *4 Castillo, Court,
Carla under by the John appointment and Supreme Raphling, under the Court of appointment by for Defendant and Appeal, Appellant. Harris, General, Gillette, D. Kamala Attorney Dane R. Chief Assistant General, Winters, Pamela C. Attorney Hamanaka and Lance E. Assistant General, Daniels, Attorneys Lawrence M. Scott A. and S. Taryle Stacy Schwartz, General, Attorneys for Plaintiff and Deputy Respondent.
Opinion
CORRIGAN, J. here is the question presented of the sufficiency The evidence to a material is a controlled the prove given substance regulated by 3,4- Health and Safety Code. a Specifically, may jury infer that properly (MDMA) is controlled methylenedioxymethamphetamine solely based on its name, chemical when that substance not listed in the code? We conclude name, alone, that evidence of MDMA’s chemical is insufficient to standing the material is a controlled substance.
I. BACKGROUND 31, 2009,
At a rave in Los Angeles December defendant party Zachary Edward Davis sold undercover officer Romeo Rubalcava blue police two pills $20. for Defendant was arrested with a he along second man consulted during the transaction. As officers man approached, second discarded a clear additional plastic bag blue Defendant was with containing pills. charged Code, sale and (Health for sale a controlled substance. & possession Saf. (a), 11378.)1 §§ undesignated statutory Safety Subsequent references are to the Health and Code. trial, sold the two defendant pills testified that he tested
At a criminalist and the discarded The two pills a of the pills. representative sample did not elaborate The criminalist Ecstasy.” contained “M.D.M.A. or sample which was admitted of the His lab drug. report, on the chemical composition evidence, 3,4-methylenedioxymethamphetamine. identified the as pills in can a the effects which Ecstasy drug, as party Officer Rubalcava described In its effects on the user. to 24 hours. He did not further explain last up find the substance had to argued closing, jury prosecutor The instructions and verdict “Ecstasy.” was defendant sold possessed as to the substance at issue counts referred controlled forms on both and “Ecstasy.” “Methylenedioxymethamphetamine” aof of sale and simple possession The convicted defendant days court that defendant serve 90 (§ 11377). The trial ordered substance as a condition of three county jail years’ probation. evidence It held that sufficient The Court of affirmed judgment. even there was “neither though stipula- defendant’s convictions supported meets the definition of showing tion nor that MDMA testimony expert It took notice of or controlled substance analog.” judicial controlled substance chemical composition treatises to draw conclusions about MDMA’s scientific as matter of It further reasoned and its relationship methamphetamine. name, which the term “common sense” that MDMA’s chemical “ includes ” negating suffix or term any and does “not ‘methamphetamine’ includ[e] inference that the defendant pills the inference (e.g., supported ‘pseudo’),” *5 or of methamphetamine to Officer Rubalcava contained some quantity sold amphetamine.2
II. DISCUSSION to and Sixth Amendment Fifth Amendment due right process “[The] to a beyond . the to a jury to trial . . right jury require (2001) v. (People Sengpadychith of crime.” reasonable doubt element a every 316, 739], “In 851, omitted.) italics 324 27 P.3d 26 Cal.4th Cal.Rptr.2d evidence in the we view the sufficiency challenge, a of evidence reviewing of any whether rational trier verdict and determine most favorable light a beyond the crime elements of proven fact could have found the essential 643, Cal.4th reasonable doubt.” Gonzalez 893, 1242].) P.3d Cal.Rptr.3d were claim that instructions Court of also considered defendant’s The observe, however, that neither grant question. review on that We
deficient. We did not defining substance” instruction “controlled nor CALJIC contains standard CALCRIM analog” not enumerated in sections for those substances and “controlled substance 2300-2302; 12.00-12.03.) (See, CALJIC Nos. through e.g., CALCRIM Nos. 11058.
The and Health Code lists the Safety various substances it in controls (§§ 11054-11058.) “official, five extensive schedules. The listings include common, usual, chemical, (§ trade 11053.) The code also [and] name[s].” regulates of listed “analogs” controlled substances as (analogs), we discuss below. 11379,
Defendant was convicted of violating sections 11377 and (a), sale, subdivision which and prohibit possession of respectively, various controlled 11055, substances identified the schedules. Section (d)(1) salts, subdivision lists Schedule II: under its “[a]mphetamine, optical isomers, and salts of its isomers.” optical (d)(2) Subdivision of that section salts, isomers, lists its “[m]ethamphetamine, and salts of its isomers.” (d) material, mixture, Subdivision further or provides “any compound, preparation” containing “any quantity” of listed any substance having “stimulant effect central nervous system,” including amphetamine methamphetamine, is a controlled substance. “3,4-
Section 11054 out I sets Schedule It substances. identifies (MDA) methylenedioxy as a amphetamine” (§ controlled substance. (d)(6).) material, subd. It further defines as controlled substance “any mixture, or compound, preparation” containing “any listed quantity” any substances, MDA, “salts, hallucinogenic isomers, or including any and salts of isomers” (§ of such substances. (d).) In added Legislature 6.5 to the code to chapter regulate analogs. (Stats. 1988, 712, 4, ch. 2364.) It found that § controlled substance laws “have, were being by circumvented the use of analogs which are represented have, or are intended to have effects on the central system nervous which to, than, are substantially similar greater controlled substances classi- fied in Sections 11054 and 11055 .... These analogs grave present dangers to the health and Therefore, of the safety this state. it people is the intent of the that a controlled Legislature substance ... considered identical, for of the purposes ... to the penalties punishment substance in Section 11054 or 11055 of which it an (§ 11400.) analog.”
An is defined as a analog (1) substance that: has a substantially substance, has, similar chemical structure as the (2) controlled or is repre sented as or having, is intended to have a substantially similar or greater stimulant, or effect on the central depressant, hallucinogenic system nervous (§ (b)(1) as the controlled substance. & (2).)3 MDMA, The Health and Code does not list Safety 3,4-methylene- or a dioxymethamphetamine, Ecstasy as controlled substance. That substance
3 (c) general exceptions Section subdivision sets forth to the definition. (1) contains any quantity if it scheme statutory fall within the
can nonetheless MDA, or methamphetamine, as amphetamine, such of a controlled substance as a that MDMA Proof analog. qualifies of an (2) or meets the definition out in sections crimes set element of the or an analog controlled substance 1151, 1155-1156 v. Becker Cal.App.4th and 11379. (Becker).) Cal.Rptr.3d 856] of or sale for possession convictions of have Appeal upheld The Courts and the chemical composition testimony regarding MDMA based on expert v. Silver People (1991) 230 Cal.App.3d effects of the In drug. (Silver), the defendant was sale for possession convicted of Cal.Rptr. 354] had a that MDMA testified experts and sale of MDMA. Two prosecution it an making to methamphetamine, chemical structure substantially similar that MDMA and metham testifying analog. disagreed, Two defense experts had different effects on that were different chemical compounds phetamine (Id. of concluded that 392-393.) at The Court Appeal the user. pp. evidence supporting was substantial of the testimony experts prosecution’s (Id. 396.) at verdicts. jury’s Becker, supra, convicted of the defendant was Cal.App.4th In that MDMA contains testified investigator A MDMA. possessing that causes an effect on the user and that it has a stimulant methamphetamine adrenaline, rate, hallucinogenic has a excitability. and It also increase in heart loud noise. bright lights fascinated with effect the user to become causing (Id. that, testimony, held from this 1153-1155.) at The Court of Appeal pp. that MDMA either contained concluded reasonably could have (Id. 1155-1156.) that at drug. pp. an of analog or was methamphetamine demonstrate, and Becker Silver find that MDMA is a the jury may As on evidence of MDMA’s chemical substance or based Here, recog as the of Court or effects on user. its composition nized, establishing that testimony nor the record contains neither stipulation analog. the definition of controlled substance MDMA meets took notice judicial the Court of Appeal Over defendant’s objection, them, court concluded that both several learned treatises.4 Relying that amphetamine and MDMA are derivatives “[i]n methamphetamine from another is a may produced derivative chemistry, compound treatises court also referenced in one or more The steps.” compound elements, name reflects its component that MDMA’s chemical “verif[y] extension, and, by amphetamine.” which include methamphetamine 96; 2005) English (2d Oxford Toxicology page ed. Holstege, Encyclopedia of Baer and 26, 2011); (as (3d 2001) of Oct. Stedman’s <http://www.oed.com> Dictionary ed. Online *7 1164, 1196; Zumdahl, 516, (2d Principles (28th 2006) Chemical Dictionary pages Medical ed. 1995) page ed. 39. 360 sources,
While the Court of referred to Appeal, having outside satisfied the substance, itself that in as a controlled pills question qualified v. those sources were not the People Peevy (1998) 17 Cal.4th (See before jury. 1184, 865, 1207 1212].) P.2d All Cal.Rptr.2d 953 had [73 before it awas chemical name not listed in schedule of any the code. An appellate court cannot take notice judicial of additional facts failed at trial to affirm a conviction. (People v. Jackson (1992) 7 Cal.App.4th 1367, accord, 5]; 1373 Zepeda U.S. (9th v. Cal.Rptr.2d 2013) Cir. [10 705 F.3d 1052, 1064-1065.) The critical record evidence could is whether “the inquiry reasonably (Jackson of support finding guilt a reasonable doubt.” beyond v. (1979) 307, 560, Virginia 443 U.S. 2781], 318 L.Ed.2d 99 S.Ct. italics [61 added.)
We further reject of the Court of reasoning and the General Attorney that the could rely on “common sense” or “common to infer knowledge” from its chemical name that MDMA contains some of quantity “An methamphetamine amphetamine. inference is a deduction of fact that may and be logically drawn reasonably from another fact or group of facts found or Code, in (Evid. 600, otherwise established the action.” § However, (b).) reasonable inference . . . not be ‘may “[a] based on alone, surmise, or on suspicion imagination, speculation, supposition, conjec ture, or guess work. [1] ... A finding of fact must be an inference drawn from evidence rather than ... mere as to speculation without probabilities v. (People Morris 1, evidence.’ (1988) 46 Cal.3d 21 [Citation.]” Cal.Rptr. [249 119, 843], 756 P.2d Shoppers, Inc. v. Royal Globe Ins. Co. quoting California (1985) 1, 45 Cal.App.3d Cal.Rptr. [Morris [221 disapproved 171] in In re 535, Sassounian another ground (1995) 543-544, 9 Cal.4th fn. 5 [37 446, Here, 527]].) 887 P.2d Cal.Rptr.2d evidence to the critical support was lacking. inference
Nor can the missing facts deemed a matter of common knowl are deemed edge. within the common of “[F]acts if knowledge jury only are matters of they common human or well known of laws natural experience v. Love (1961) 720, 777, science.” Cal.2d Cal.Rptr. [16 481, 809], 366 P.2d Cal.Rptr. on another People disapproved in ground 631, 637, Morse (1964) 60 Cal.2d fn. 33].) 388 P.2d Cal.Rptr. If the seek to excuse the People of evidence production by the fact is urging one of First, common test knowledge, following “is the fact one applies. common, everyday knowledge which jurisdiction, everyone of average intelligence knowledge things about him can be presumed know; (Varcoe [second,] is it certain and indisputable?” v. Lee 223], Cal. omitted.) 346-347 P. italics there is reasonable any “[I]f (Id. whatever as to either question should be point, proof at required.” 347.)
361 a scientific rely General Attorney court and The fact that appellate reflect their composition names compound that chemical verify treatise to sense sup and common that common knowledge the conclusion undermines binary compounds and well-known simple here. Aside from the verdict port con confidently we cannot and carbon dioxide (C02), such as water (H20) from chemical solely reliable inferences that a draw juror may any clude lay source, of chemical the naming According to their own name formula. (Zumdahl, Chemical Prin technical process. involves multistep, compounds 39-48; id., 22.1-22.5, 971-1003.) be 2.9, may It pp. pp. §§ ciples, supra, § resort to by and verifiable community, the scientific within widely accepted works, component a chemical name reflects its technical reference that beyond facts remain far Yet many scientifically accepted elements. (1937) 10 Cal.2d (Cf. Arais v. knowledge common of laypersons. Kalensnikoff 1344, Melaleuca, 1043]; v. 66 Cal.App.4th Inc. Clark P.2d [74 to the such information is 627].) presented Customarily, Cal.Rptr.2d witnesses, to cross-examination. subject through qualified First, the to be relevant of debate. points We further note that there appear based on reach their conclusions General and the Court of Attorney discussing process Zumdahl chemical nomenclature one from chapter Prin- (Zumdahl, Chemical naming inorganic binary compounds. of simple however, 2.9, not address the 39.) That does supra, chapter, ciples, § id., (See as MDMA. such naming organic compounds of process complex 22.1-22.5, Second, 971-1003.) Attorney defendant challenges pp. §§ (§ methamphetamine General’s that MDMA “contains” assertion a new chemical (d)), instead that a chemical is compound arguing cease to exist as distinct entities. its constituent elements substance which Third, about whether MDMA has substan- disagreed in Silver experts an of metham- effect to as similar chemical structure or qualify tially 392-393.) We need not (Silver, at supra, Cal.App.3d pp. phetamine. that none We observe simply resolve the of these assertions. accuracy any certain, known that commonly appellate so indisputable, of them is prove could with the evidence requirement presented court dispense Lee, 346-347.) (See Varcoe 180 Cal. at supra, pp. them. v. . short, evidentiary . . failed to close
In “the simply a[n] . allegedly the statute . . violated.” mandated the terms of gap by 270].) it Because (2003) 105 Cal.Rptr.2d Acevedo Cal.App.4th schedule, evidence of MDMA.’s chemical in any is not listed specifically name, alone, a controlled that it contains is insufficient standing . . in issue . an matter analog.5 or meets the definition of substance “[T]he (Miller .” . . . v. Los laymen Angeles the common knowledge not within through expressly listed by any name in sections 11054 Conversely, accepted any substance law, need not make any further and the as a matter of 11058 is a controlled substance *9 689, County (1973) 1, Flood Control Dist. 8 Cal.3d Cal.Rptr. [106 Thus, 193].) 505 P.2d it was incumbent the to introduce People competent evidence or a about stipulation MDMA’s chemical structure or effects. evidence, Without such there was no rational basis a for jury to laypersons infer that 3,4-methylenedioxymethamphetamine contains methamphetamine or or that it amphetamine has a substantially similar chemical structure or effect to or The Court of methamphetamine amphetamine. erred in Appeal that concluding sufficient evidence defendant’s supported convictions for possession and sale of controlled substance.
HI. DISPOSITION
The judgment of Court of is reversed. J., Kennard, J., Baxter, J., Chin, C. Cantil-Sakauye, J., J., and Werdegar, Liu, J., concurred.
CHIN, J., Concurring. I concur.The that the blue People proved pills defendant sold to undercover officer contained police 3,4-methylene- (MDMA), dioxymethamphetamine commonly known as but it failed Ecstasy, to that MDMA is a controlled prove substance. defendant’s Accordingly, convictions selling possessing controlled substance cannot stand. substance,
It that MDMA is a appears controlled that it is specifically, of, contains, substance, either an or controlled either amphetamine or (2010) 1151, v. Becker methamphetamine. (People 183 Cal.App.4th 856]; 1155-1156 (1991) v. Cal.Rptr.3d People Silver Cal.App.3d 389, ante, 354]; 392-396 see Cal.Rptr. 358-359.) at maj. opn., But pp. fact, this is so as a matter of not as a matter of law. Whether MDMA ais controlled not Here, substance is a fact a court or can notice. judicially MDMA, elicited from the prosecution that the expert substance contained but it neglected to establish further that MDMA is either an analog of or contains either or amphetamine methamphetamine. indicate, as
Assuming, the Becker and Silver cases MDMA is a controlled substance, it is unfortunate that the has to this fact again and again in every prosecution for it. This possessing selling no problem law, longer exists under federal because federal law defines specifically MDMA (See (11th as a controlled substance. U.S.v. Carlson 1996) Cir. 87 F.3d 440, 444-445; (10th 1991) U.S. v. Raymer Cir. F.2d 1045-1046.) If finding regard. Medina 721]; that Cal.App.3d Cal.Rptr. 481 [103 see [defining substance”].) § “controlled so, by the federal example do it can follow easily wishes to Legislature MDMA a controlled substance. providing
specifically meantime, instruct correctly have to be careful In the trial courts will crime, is a that, whether MDMA it has to determine as an element of what is a do this defining court can easily by controlled substance. The substances, substance, for those a controlled substance analog, MDMA, the relevant statutes. enumerated in such that are not as specifically ante, Moreover, it (See 2.) fairly easy at fn. should maj. opn., *10 substance, not did although prosecutor that MDMA is to with sufficient expertise most witnesses Presumably, do so in this case. have sufficient expertise contains MDMA would testify that a substance or is either an contains additionally amphet- that MDMA testify But, acts, the Legislature unless until amine methamphetamine. will have juries to elicit that additional testimony, will have prosecutors make that determination.