People v. Hardin

Citations: 149 Cal. App. 3d 994; 197 Cal. Rptr. 194; 1983 Cal. App. LEXIS 2500Docket: Docket Nos. 6330, 6331

Court: California Court of Appeal; December 15, 1983; California; State Appellate Court

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Defendant Frank D. Hardin was convicted of violating Health and Safety Code section 11379 for selling methamphetamine to a deputy sheriff, despite claiming that he sold "fake dope" as revenge against an informant. During the transaction, Hardin assured the officer that the substance would have a strong stimulant effect, but the actual substance contained only a small amount of methamphetamine—specifically, 757 milligrams with a methamphetamine content of "more than half a percent," classified as a "usable amount" by a forensic expert. The court ruled that the prosecution did not need to prove the substance had a quantity sufficient for abuse, rejecting Hardin's argument that he could not be convicted for selling an ineffective quantity of methamphetamine. Hardin, who had prior convictions and pleaded guilty to a separate charge, appealed both convictions. The court upheld the conviction in the principal case, leading to the affirmation of the second case due to no sentencing errors.

The analysis focused solely on whether methamphetamine was present and if it exceeded a trace amount, with no opposing evidence provided. The defendant argued that the substance sold to Officer Lavelle was merely Epsom salt, baking powder, and Vitamin B—essentially "fake dope"—intended to retaliate against informant Raines, and he claimed he did not intend to sell actual drugs. Convicted under Health and Safety Code section 11379 for selling methamphetamine as defined in section 11055, the defendant contended that for a conviction, the prosecution must demonstrate that the amount sold had the potential for abuse and a stimulant effect, referencing the case People v. Diamond (1970). Additionally, the defendant cited People v. Leal, which established that a conviction for selling a dangerous drug requires evidence of a "usable" quantity sufficient to produce a narcotic effect. The ruling in Leal indicated that possession of a minimal residue that is not usable for sale or consumption is insufficient for a conviction. Since the prosecution only established possession of trace amounts without proving usability, the case was remanded to the trial court to determine if the necessary factual elements were present for a valid conviction.

Proof of the intentional sale of a dangerous drug is established by demonstrating that the quantity sold was "usable for sale." Contrary to the defendant's argument, it is not necessary to show that the drugs sold would produce a typical "narcotic effect" upon consumption. An expert testified that the amount of methamphetamine involved was more than a trace and deemed usable, although the prosecution did not need to prove its specific effect on a user. The mere presence of methamphetamine in a completed sale differentiates this case from those involving minimal residues in possession cases. Even if a usable amount were required, the transaction's treatment by the parties as salable indicates it was indeed usable. The jury received instructions suggesting that a usable amount was necessary; however, this did not prejudice the defendant.

The court examined legislative intent regarding the sale of methamphetamine, noting a previous ruling that addressed the ambiguity surrounding the interpretation of "any narcotic." The court clarified that while possession statutes may not cover traces or residues, this does not apply to sales charges. Legislative clarity was deemed sufficient to interpret "any" as referring to drug quantity rather than type. The defendant's interpretation was further supported by a grammatical analysis of related statutes and a comparison to a Michigan case, which focused on statutory phrasing and its implications regarding quantities of substances with potential for abuse.

The defendant in Busby contended that the amount of a substance must be sufficient to demonstrate potential for abuse, requiring quantitative analysis. The Busby court rejected this interpretation, ruling that quantitative analysis is not necessary to establish criminal possession of drugs. The court reasoned that it is illogical to interpret legislative intent as requiring a specific determination of abuse potential for each prosecution. Moreover, the court clarified that the phrase 'having a potential for abuse' modifies 'any quantity of the following substances,' indicating that the statute applies regardless of quantity. The court established a rule of statutory interpretation, stating that ambiguous phrases should refer to the nearest preceding words rather than distant terms. The Legislature intended that the amount sold is irrelevant for defining a violation, particularly concerning methamphetamine sales. The statute explicitly states that any substance containing any amount of methamphetamine constitutes a violation. The judgment was affirmed, with concurring opinions from Zenovich, Acting P.J., and Hamlin, J. The appellant's petition for a Supreme Court hearing was denied on February 16, 1984. All statutory references pertain to the Health and Safety Code unless specified otherwise.