People v. Kaluna

KAUFMAN, P. J. Appellant, John C. Kaluna, was convicted of possessing a substance known as “Percodan” in violation of section 11500 of the Health and Safety Code. Percodan contains dihydrohydroxyeodeinone, a synthetic narcotic with a natural base, derived directly from codeine. At the trial, no proof was made as to the amount of this derivative present in the Percodan pills found in the possession of the appellant. The only contention on appeal is that the State failed to establish a prima facie case, as preparations containing less than a certain amount of dihydrohydroxyeodeinone can be dispensed without a prescription under section 11200 of the Health and Safety Code. Respondent concedes the validity of appellant’s argument if that statute is construed to include preparations containing codeine derivatives. Respondent, however, argues that Health and Safety Code, section 11200, applies only to preparations containing less than a certain amount of codeine, and not to preparations containing less than a certain amount of codeine derivatives.

Appellant was convicted of violating Health and Safety Code, section 11500, which reads as follows:

“Except as otherwise provided in this division, no person shall possess, transport, import into this State, sell, furnish, administer, or give away, or offer to transport, import into this State, sell, furnish, administer, or give away, or attempt to import into this State or transport a narcotic except upon the written prescription of a physician, dentist, chiropodist, or veterinarian licensed to practice in this State.”

Codeine is defined as a narcotic under Health and Safety Code, section 11001. Section 11002 further defines narcotics to mean “any of the salts, derivatives, or compounds . . . containing a narcotic or its salts, derivatives, or compounds.” Appellant concedes that dihydrohydroxyeodeinone is a narcotic within the above quoted statutory definitions.

The sole question presented by this appeal is whether Health and Safety Code, section 11200, includes preparations containing less than a certain amount of codeine derivatives, [36]such as dihydrohydroxycodeinone. The statute reads as follows:

“The provisions of this division requiring prescriptions and physicians’ reports do not apply to preparations containing not more than one grain of codeine in one fluid ounce, or, if a solid or semisolid preparation, in one avoirdupois ounce, without additional narcotics, or to mistura glyeyrrhiza compound, N. P. However, the exceptions herein provided do not except any person from the provisions of Section 11225 of this division.” (Section 11225 provides that every person who issues a prescription or dispenses or administers a narcotic shall make a detailed record thereof.)