Ross v. Municipal Court

Opinion

COBEY, Acting P. J.

Petitioner, Robert Jose Ross, appeals from an order of the superior court denying his petition for either a writ of mandate or a writ of prohibition. The appeal lies. (See Code Civ. Proc., §§ 1110, 1064, 904.1;

Mellinger

v.

Municipal Court,

265 Cal.App.2d 843, 845 [71 Cal.Rptr. 535].)

[577]

Petitioner seeks by this special proceeding to restrain further prosecution of the complaint against him in respondent court, following that court’s overruling of his demurrer to the complaint.

1

It is alleged in the complaint, on information and belief, that petitioner on or about January 11, 1974, at and in the City of Los Angeles, committed a misdemeanor, namely, a violation of Health and Safety Code section 11550, in that he did then and there willfully and unlawfully use and be under the influence of a controlled substance as defined in chapter 2 of the California Uniform Controlled Substances Act.

2

Petitioner contends that since the foregoing allegations of the complaint do not specify the controlled substance of which he was accused of having used and being under its influence, and since there exist at least 108 such substances within the scope of section 11550, he was not accorded statutorily or constitutionally adequate notice of the crime with which he was charged.

Penal Code section 952 provides, among other things, that the statement of the offense charged in the accusatory pleading “may be in the words of the enactment describing the offense or declaring the matter to be a public offense, or in any words sufficient to give the accused notice of the offense of which he is accused.”

Health and Safety Code section 11550 provides that “[n]o person shall use, or be under the influence of any controlled substance” as defined in various specified portions of the California Uniform Controlled Substances Act. Thus the wording of the complaint with respect to the offense charged approximates the wording of the statute except that the statute refers expressly to various specified portions of the act.