Getz v. Superior Court

Opinion

NARES, J. Walter Layton Getz, Jr. (Getz), seeks a writ of prohibition after the superior court denied his Penal Code section 995 motion to dismiss count two of an information charging him with possession/sale of ephedrine, in violation of Health and Safety Code1 section 11106, subdivision (f). We issued a stay of trial, and now after argument we grant the petition.

Factual and Procedural Background

On August, 25, 1988, an undercover officer assigned to the narcotics task force was introduced to Getz as a source for acquiring ephedrine, a precursor chemical in the manufacture of methamphetamine. On August 26, the same undercover officer sold Getz 10 pounds of ephedrine for $2,800. After Getz left the purchase location, he was surveilled by other officers assigned to the case. Early in the morning of August 27, Getz was arrested while driving through the California desert towards the Arizona border. The arresting officers seized 10 pounds of ephedrine from Getz’s car.

A felony complaint filed in the municipal court charged Getz in the first count with possession/sale of ephedrine (§ 11106, subd. (f)) and in the [1169]second count with selling/furnishing nonnarcotic controlled substances (§ 11379). At the preliminary hearing, the court discharged Getz on the first count for lack of sufficient evidence and bound him over on the second count.

In the information filed in superior court, the People realleged violation of section 11106, subdivision (f) as count two. Getz filed a Penal Code section 995 motion to dismiss count two of the information for lack of an evidentiary basis necessary to find probable cause. Specifically, Getz argued he was not required to have a permit to receive ephedrine under the plain meaning of section 11106, and could not be charged with violation of the permit requirement.

After requesting supplemental briefs from both sides and finding this case did not involve out-of-state precursor chemicals, the trial court denied Getz’s motion, finding sufficient evidence to support both counts of the information. The court found subdivision (f) of section 11106 was the charging section of the statute, defining the nature of the proscribed conduct. The court further found it was the legislative intent that all conduct involving transfer of ephedrine was prohibited unless otherwise permitted by the statute.