[466]BEST, P. J. I respectfully dissent from part I of the majority’s opinion holding that substantial evidence was presented by the prosecution sufficient to support the jury’s finding that defendant possessed “cocaine base” for sale.
“When the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence—i.e., evidence that is credible and of solid value—from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. [Citations.]” (People v. Green (1980) 27 Cal.3d 1, 55 [164 Cal.Rptr. 1, 609 P.2d 468].)
In People v. Adams (1990) 220 Cal.App.3d 680 [269 Cal.Rptr. 479], Adams was convicted of possession of rock cocaine for sale in violation of Health and Safety Code1 section 11351.5. (Adams, supra, at p.683.) The evidence presented at trial showed that during a search when Officer Clerico pulled on the waistband of Adams’s shorts a baggie of what the officer believed to be rock cocaine fell to the sidewalk. Six “rocks” were in the baggie. Officer Clerico was ruled to be qualified as an expert on possession of rock cocaine for sale. He gave his expert opinion that the cocaine was possessed for sale based on, among other things, the size and number of rocks. Criminalist Brenda Smith testified the contents of the baggie weighed 1.01 grams and contained some cocaine. Smith was not asked and did not indicate whether the cocaine was cocaine base or rock cocaine. Officer Clerico referred to the substance as rock cocaine throughout his testimony and was conversant in the distinction between cocaine base and cocaine hydrochloride, but he did not indicate whether a chemical analysis had been performed to determine if the cocaine was cocaine base. (Id. at p. 684.)
We concluded there was no substantial evidence that proved the cocaine possessed by Adams was cocaine base as required by the statute under which he was convicted. (People v. Adams, supra, 220 Cal.App.3d at p. 688.) We reasoned that the statutes (§§ 11351.5, 11054, subd. (f)(1) and 11055, subd. (b)(6)) distinguish “cocaine base” from “cocaine.” In addition, the Legislature regards cocaine base and cocaine hydrochloride as different drugs and they are treated as such. The penalty for possession for sale of cocaine base (three, four, and five years in prison) is higher than for possession for sale of all other forms of cocaine (two, three, and four years in prison). Finally, there is a chemical difference between cocaine base and cocaine hydrochloride. (People v. Adams, supra, 220 Cal.App.3d at pp. 686-687; see also People v. Howell (1990) 226 Cal.App.3d 254, 260-261 [276 Cal.Rptr. 454].)
We rejected the argument that the evidence was sufficient to show Adams possessed rock cocaine based on the uncontradicted testimony of Officer [467]Clerico distinguishing “rock” or “base” cocaine from “powder” or cocaine hydrochloride, the packaging and appearance of the material and the criminalist’s chemical analysis which proved the material contained cocaine. (People v. Adams, supra, 220 Cal.App.3d at p. 687.)
While the officer referred to the substance in the two baggies possessed by Adams as “what I believed to be rock cocaine,” he was not qualified as an expert in the identification of cocaine or cocaine base, but rather as an expert in the possession of rock cocaine for sale. Moreover, neither the officer nor any other expert witness testified that a substance containing “cocaine base” as opposed to a substance containing “cocaine” as those terms are used in sections 11054, subdivision (f)(1) and 11055, subdivision (b)(6) could be identified by physical appearance alone. (People v. Adams, supra, 220 Cal.App.3d at pp. 687-688.)
In order to prove defendant was in violation of section 11351.5, it was incumbent on the prosecution to prove that the substance possessed for sale was “cocaine base” and not “rock cocaine.” Thus, even if, as the Attorney General submits, Officer Mills’s testimony, based on his established expertise, identified the substance as “rock cocaine,” the substance itself was admitted as an exhibit at trial, and there was circumstantial evidence that “rock cocaine” was being sold and smoked in the area where defendant was selling, there was insufficient evidence that defendant possessed “cocaine base” for sale.
Officer Mills obviously was familiar with rock cocaine. He had taken narcotics classes, talked to other officers about rock cocaine, arrested at least 150 persons for possession of rock cocaine. He testified that rock cocaine is cocaine base, a “concentrated form” of cocaine. Cocaine powder is made into a solid substance and instead of inhaling it, a user smokes rock cocaine through a pipe, sometimes known as a “straight shooter.” He also testified that defendant appeared to be engaging in drug transactions similar to those he had made arrests for in the past in connection with rock cocaine. Finally, he testified, after defendant appeared to discard something, Officer Eakin retrieved two packages of “rock cocaine.” However, when shown the two packages that criminalist Smith had identified as “chunky material containing] cocaine,” Mills identified them as “[t]he two bags of narcotics that were seized by Officer Eakin . . . .” Despite the Attorney General’s statements to the contrary, Officer Mills merely referred to the substance as “rock cocaine.” He did not give an opinion—lay or expert—that the material was cocaine base.
Moreover, Mills was never asked to identify the substance in the baggies, nor was he asked if he had identified cocaine base before or if cocaine base [468]was identifiable by appearance. Further, he did not relate anything he knew about cocaine base specifically to the substance in evidence. We cannot infer from his testimony that Mills was able to identify cocaine base by sight.
Although the nature of a substance may be proved by circumstantial evidence (People v. Sonleitner (1986) 183 Cal.App.3d 364, 369 [228 Cal.Rptr. 96]), the cases cited for that proposition are distinguishable from this case. In People v. Sonleitner, supra, defendant was found guilty of possession of cocaine based on police testimony even though none of the substance defendant possessed was recovered for analysis. The evidence showed that a codefendant went to meet his connection at the Cedar Street house. He was observed until he returned with a plastic baggie subsequently analyzed to contain approximately two and one-half ounces of cocaine. He stated he was delivering half of the agreed upon five ounces and would be going back for the other half. He was then arrested and police officers went to the Cedar Street residence. When the officers arrived, someone in the house yelled, “sheriffs are coming.” Officers saw defendant running to the bathroom with a two-ounce bottle in his hand. Defendant emptied the white crystalline powder contents of the bottle into the toilet, threw the bottle in and flushed. The bottle was recovered but without any powder or residue. The court concluded that the evidence strongly suggested that the substance destroyed by defendant was the other half of the cocaine partially delivered by the codefendant. (183 Cal.App.3d at pp. 367-369.)
People v. Sonleitner is distinguishable because there, the officer-witness testified the substance he saw had a white crystalline character resembling cocaine, and an analysis of the portion of the five ounces actually delivered showed it to be cocaine. (Also see, People v. Marinos (1968) 260 Cal.App.2d 735, 738-739 [67 Cal.Rptr. 452]; People v. Patterson (1959) 169 Cal.App.2d 179, 186 [337 P.2d 163]; People v. Tipton (1954) 124 Cal.App.2d 213, 217 [268 P.2d 196].) Testimony of that kind is absent in this case.
The circumstantial evidence here is too tenuous to support the inference that defendant possessed cocaine base beyond a reasonable doubt. Defendant’s transaction conduct, the money he possessed and his act of discarding the drugs just before he was apprehended could apply to any drug transaction. Further, the fact that one person was going to Nagi’s to purchase rock cocaine and that a straight shooter was found in the area is not dispositive in light of the officer’s testimony that Nagi’s was known as a place to find narcotics.
Finally, since defendant was charged with a chemically specific violation, possession of cocaine base for sale, the prosecution cannot rely on circumstantial evidence of the nature of the substance unless the record discloses [469]that cocaine base can be identified by its physical appearance when chemical analysis only reveals the substance contains cocaine. (See, e.g., Cook v. United States (9th Cir. 1966) 362 F.2d 548, 549 [court took judicial notice that whether a substance is a narcotic cannot be determined by mere inspection of its outward appearance].)
The majority’s conclusion that Officer Mills’s testimony, “without objection that ‘rock cocaine’ is ‘base cocaine’ ” “establishes that the substance in question was cocaine base” begs the question of whether that testimony constitutes substantial evidence that defendant possessed cocaine base. Not all evidence is substantial evidence. In People v. Hunt (1971) 4 Cal.3d 231 [93 Cal.Rptr. 197, 481 P.2d 205], the defendant was convicted of unlawful possession of a restricted dangerous drug, methedrine. (former § 11911, now § 11378.) Officer Owens and several other officers went into the bedroom of tide apartment of Alan Hall. Owens saw the defendant (Hunt) seated on a chair with a hypodermic needle in his arm. At Hunt’s feet was an open blue and white travel case containing four 30-cc. vials of methedrine each bearing a pharmacy label with a prescription number, Hunt’s name and the physician’s name, Dr. Smith. Officer Owens, who had “extensive training, education, and experience relating to the possession of and trafficking in dangerous drugs,” testified “that based upon his experience it was his opinion that the methedrine found in the blue and white travel case . . . was possessed for sale. He said that his opinion was due ‘to the quantity involved, the over-all street value, the normal use by an individual.’ ” (People v. Hunt, supra, 4 Cal.3d at pp. 234-235.) In holding the evidence insufficient to sustain Hunt’s conviction, the California Supreme court stated:
“Although the officer testified that in his opinion the methedrine was possessed for sale, his testimony in the circumstances of this case may not be held to be substantial evidence to support the conviction, [f] In People v. Bassett, 69 Cal.2d 122, 141 . . . , Justice Mosk, speaking for a unanimous court, stated: ‘ “The chief value of an expert’s testimony in this field, as in all other fields, rests upon the material from which his opinion is fashioned and the reasoning by which he progresses from his material to his conclusion ... it does not lie in his mere expression of conclusion.” (Italics added.) (Carter v. United States (1957) 252 F.2d 608, 617 . . . .) In short, “Expert evidence is really an argument of an expert to the court, and is valuable only in regard to the proof of the facts and the validity of the reasons advanced for the conclusions.” (Italics added.) (People v. Martin (1948) 87 Cal.App.2d 581, 584 . . . ; accord, People v. Jones (1964) 225 Cal.App.2d 598, 611 . . . .)’” (People v. Hunt, supra, 4 Cal.3d 231, 237.)
As pointed out earlier, in the case at hand, Officer Mills was not qualified as an expert in the identification of controlled substances, was never specifically asked his opinion as to whether the substance possessed by defendant [470]was cocaine base or contained cocaine base, and never actually expressed an opinion in that regard. Even if we assume, as does the majority, that the totality of Officer Mills’s testimony amounted to an opinion that the substance possessed by defendant contained cocaine base, there is a complete absence of “the material from which his opinion is fashioned and the reasoning by which he progresses from his material to his conclusion.” (People v. Hunt, supra, 4 Cal.3d 231, 237.)
The majority seems to equate “inadmissible evidence introduced without objection” to “substantial evidence” without discussion of the quality or probative value of the evidence introduced. The majority concludes that Officer Mills’s testimony “introduced without objection, that appellant possessed rock cocaine and that rock cocaine is cocaine base—combined with the criminalist’s testimony that the substance in question tested positive for cocaine” (see maj. opn., ante, p. 465), constituted substantial evidence to support the verdict. Does the majority mean that standing alone Officer Mills’s testimony would not constitute substantial evidence that defendant possessed cocaine base? In my view, rather than lending weight to the officer’s testimony, the criminalist’s testimony that the substance in question merely contained cocaine actually lessens the weight to be given to the prosecution evidence. The criminalist’s failure to testify the substance contained cocaine base would logically lead to one of two reasonable inferences: that the criminalist tested for both cocaine and cocaine base and found the presence of cocaine only or, that the criminalist tested only for cocaine. It is not reasonable to infer, as the majority apparently does, that the criminalist found the substance to contain cocaine base but omitted to so testify.
Since there is no substantial evidence that defendant possessed cocaine base, the judgment should be reversed and the trial court directed to dismiss the information with prejudice. (People v. Adams, supra, 220 Cal.App.3d 680, 691.) The Attorney General’s contention that possession for sale of cocaine except cocaine base (§ 11350) is a lesser included offense of possession for sale of cocaine base (§ 11351.5) was rejected in People v. Adams at pages 690-691.
A petition for a rehearing was denied December 18, 1991, and appellant’s petition for review by the Supreme Court was denied February 20, 1992.
All statutory references are to the Health and Safety Code unless otherwise indicated.