People v. Michals

California Court of Appeal Jan 22, 1974 No. Crim. 23381Published

Before: Dunn

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Holding. The court held that Health and Safety Code section 11910 was not preempted by Business and Professions Code sections 2390 and 2426, as the latter sections relate to professional licensing and conduct rather than the general criminal prohibition of drug possession.

Issues

Whether Health and Safety Code section 11910 is preempted by Business and Professions Code sections 2390 and 2426 regarding the possession of restricted dangerous drugs by a physician.
Whether the trial judge entertained a reasonable doubt of defendant's guilt as a matter of law based on comments made during oral argument.

Disposition. affirmed

Quotations verified verbatim against the opinion

“We do not find that these sections establish any exception to the general law section, namely, Health and Safety Code section 11910”

“Health and Safety Code section 11910 is not limited in its application. It applies to “every person” whether or not he be licensed as a practitioner of the healing arts.”

“Third, section 2390 relates to “use” and not to “possession,” the latter being the meat of section 11910 with which defendant was charged.”

Opinion

DUNN, J.

An information charged defendant with three violations of former Health and Safety Code section 11910, all felonies, in that, on 24 July 1972, he illegally possessed nembutal, amytol and benzedrine. After a nonjury trial, submitted on the transcript of the preliminary hearing, defendant was found guilty as charged. Proceedings were suspended and he was placed on probation under certain conditions. He appeals from the order for probation (judgment, Pen. Code, § 1237).

The record shows that Hermosa Beach Police Officer Cain observed a car being driven southbound in a northbound lane on Hermosa Avenue at 2:10 a.m. the morning of 24 July 1972. He stopped the car. Defendant, the driver, got out after some fumbling and difficulty, and thereafter failed to pass a simple balance test. Since he' had a slight odor of alcohol about him, Cain arrested him for driving under the influence of alcohol. Cain took defendant to the police station for booking. In defendant’s front and left rear pants pockets a number of loose tablets were found, namely, 24 capsules containing pentobarbital, a barbituric acid derivative, 5 capsules containing secobarbital and amobarbital, also a barbituric acid derivative,

[852]

and 52 amphetamine tablets. It was stipulated that defendant was a licensed physician and surgeon and possessed a valid narcotics license. However, when Cain advised defendant that he would additionally be charged under Health and Safety Code section 11910, the evidence showed that defendant did not so inform Cain, volunteering only that he was a “pusher.”

Health and Safety Code section 11910, as it existed

at the time, read in part: “Except as otherwise provided in Article 8 ... of Chapter 9 of Division 2 of the Business and Professions Code, every person who possesses any restricted dangerous drug, except upon the prescription of a physician . . . shall be punished by . . . .” Defendant contends that Health and Safety Code section 11910 is a general law and that specific state laws have pre-empted the criminal conduct charged, for which reason defendant’s conviction cannot stand, since he should have been charged only under the special laws, violations of which are misdemeanors. We disagree. Defendant cites

People v. Michals

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DUNN, J.

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