People v. Telfer

section 11379.6^[1] (count I); possession of hydriodic acid and ephedrine with intent to manufacture methamphetamine, in violation of section 11383, subdivision (c) (count II); and possession of methamphetamine with intent to sell, in violation of section 11378 (count III).

Charles demurred to count II of the amended information, on the grounds that the substance proscribed by section 11383 was hydriotic acid, not hydriodic acid as alleged in the information, and thus “the facts stated do not constitute a public offense . . . .” (Pen. Code, § 1004, subd. 4.) Marilyn joined in the demurrer. After the trial court overruled it, both defendants pleaded not guilty.

A jury found Charles guilty on all three counts. Marilyn was acquitted on the manufacturing count, but was found guilty as to counts II and III. Charles was sentenced to the aggravated term of seven years on count I. On counts II and III, he was sentenced to the middle terms of four and two years, respectively, both to run concurrently with that imposed on count I. Marilyn received a sentence of the middle terms of four and two years on counts II and III, respectively, to be served concurrently.

Contentions

The defendants contend that the trial court erred by instructing the jury with CALJIC No. 1.20 (5th ed. 1988).^[2] Charles also challenges the trial court’s use of CALJIC Nos. 3.30, 4.35, and 4.36. Finally, both defendants contend that the evidence does not support their conviction on count II, arguing that there was no evidence that they possessed the chemicals specified in subdivision (c) of section 11383.

In an unpublished portion of this opinion, we find that the trial court’s erroneous jury instruction regarding mistake of fact (CALJIC No. 4.35) requires the reversal of the defendants’ convictions as to counts II and III. Otherwise, we affirm.

Discussion

A. CALJIC No. 1.20^[13]

B. CALJIC No. 3.30

In count I of the information, the defendants were charged with manufacturing methamphetamine in violation of section 11379.6.^[4] The jury was instructed with CALJIC No. 3.30, concerning general criminal intent.^[5] Charles contends that the jury should have been instructed that, to prove a violation of section 11379.6, the People must show not only that the defendant manufactured a controlled substance, but also that the defendant knew that the substance which he had manufactured was that controlled substance. Noting that knowledge of the narcotic nature of the substance possessed is a necessary element of a charge of possessing a controlled substance (citing People v. Jenkins (1979) 91 Cal.App.3d 579 , 583 [ 154 Cal.Rptr. 309 ]), he argues that “[t]here is no reason, in law or in logic, why that requirement should not also apply to section [11379.6.]”

As will be shown, we conclude that there is no reason to extend the judicially created requirement of knowledge of the physical character of a substance to a charge of manufacturing under section 11379.6.

CALJIC No. 3.30 embodies the statutory requirement that, ordinarily, “[i]n every crime or public offense there must exist a union, or joint operation of act and intent . . .” (Pen. Code, § 20.) That intent is variously known as mens rea, a guilty mind, guilty knowledge, or some other term denoting a culpable mental state. (1 Witkin & Epstein, Cal. Criminal Law (2d ed. 1988) Elements of Crime, §§ 97-98, pp. 115-117.)

However, that general rule does not always apply to public welfare offenses created by statute. (1 Witkin & Epstein, supra, § 110, at pp. 129-131.) As our Supreme Court said long ago: “A mistake of fact, or a want of intent, is not in every case a sufficient defense for the violation of a criminal statute. Statutes enacted for the protection of public morals, public health, and the public peace and safety are apt illustrations of the rule just

announced. [Citations.] . . . ‘The maxim actus non facit reum, nisi mens sit rea,[^[6] ] does not always apply to crimes created by statute, and therefore if a criminal intent is not an essential element of a statutory crime, it is not necessary to prove any intent in order to justify a conviction. Whether a criminal intent or guilty knowledge is a necessary element of a statutory offense is a matter of construction to be determined from the language of the statute, in view of its manifest purpose and design. There are many instances in recent times where the Legislature in the exercise of the police power has prohibited, under penalty, the performance of a specific act. The doing of the inhibited act constitutes the crime, and moral turpitude or purity of the motive by which it was prompted and knowledge or ignorance of its criminal character are immaterial circumstances on the question of guilt. The only fact to be determined in these cases is whether the defendant did the act. . . .”’ (People v. McClennegen (1925) 195 Cal. 445 , 469-470 [ 234 P. 91 ], quoting from 8 R.C.L., p. 62.)

The Supreme Court applied that rule to a charge of possession of marijuana in violation of former section 11160^[7] in People v. Gory (1946) 28 Cal.2d 450 [ 170 P.2d 433 ]. There, marijuana was discovered in a box near the defendant’s bed in a dormitory room shared by 30 other men. The defendant denied any knowledge of the presence of the marijuana in his box. The issue on appeal was the trial court’s refusal to instruct the jury that guilt required findings that the defendant knowingly possessed the objects and knew of their character.

Citing McClennegen, the court held that mere possession was sufficient to constitute the statutory offense. (Gory, supra, 28 Cal .2d at pp. 453-454.) However, in explaining the meaning of “possession,” the court reasoned that a person could not possess an object unless that object was within that person’s intentional control, and that a person could not intend to control an object unless he knew of the object’s existence. (Id., p. 455.) Accordingly, the court drew a “distinction between (1) knowledge of the character of the object and the unlawfulness of possession thereof as embraced within the concept of a specific intent to violate the law, and (2) knowledge of the presence of the object as embraced within the concept of ‘physical control with the intent to exercise such control,’ which constitutes the ‘possession’ denounced by the statute. It is ‘knowledge’ in the first sense which is . . . immaterial but ‘knowledge’ in the second sense is the essence of the offense.” (Id., pp. 455-456, italics omitted.) It held that the jury should have

it was in disregard of the law and therefore indicating his specific intent to violate the law, and defendant’s possession of marijuana knowing its nature but innocent that its possession constituted a violation of the law.” (Id., at p. 160.) The court then proceeded to disapprove all of the cases relied upon by the Gory opinion to the extent that they indicated that possession of narcotics, without knowledge of their narcotic nature, would support a conviction. (Ibid.)

As a result of that interpretation of Gory, it is now clear that, in regard to a prosecution for possession of a narcotic, “knowledge of the narcotic character of the article possessed is an essential ingredient of the offense” of possession of narcotics. (Winston, supra, 46 Cal.2d at p. 161; accord, People v. Williams (1971) 5 Cal.3d 211 , 215 [ 95 Cal.Rptr. 530 , 485 P.2d 1146 ].) This same requirement of knowledge of the physical character of the substance has been extended, without analysis, to prosecutions for the sale of controlled substances. (People v. Ballard (1956) 145 Cal.App.2d 94 , 99 [ 302 P.2d 89 ]; People v. Basler (1963) 217 Cal.App.2d 389 , 398 [ 31 Cal.Rptr. 884 ]; People v. Lopez (1967) 254 Cal.App.2d 185 , 188 [ 62 Cal.Rptr. 47 ]; People v. Innes (1971) 16 Cal.App.3d 175 , 178 [ 93 Cal.Rptr. 829 ]; People v. Daniels (1975) 14 Cal.3d 857 , 860 [ 122 Cal.Rptr. 872 , 537 P.2d 1232 ].)

The defendant asks us to extend this same rule to the manufacturing of controlled substances. The answer to that request depends upon whether knowledge of the physical character of the substance being manufactured is an element of the statutory offense. (People v. McClennegen, supra, 195 Cal. at p. 469.) To determine the Legislature’s intent, we look first to the language of the statute.^[8] (People v. Knowles (1950) 35 Cal.2d 175 , 182 [ 217 P.2d 1 ]; People v. Aston (1985) 39 Cal.3d 481 , 489 [ 216 Cal.Rptr. 771 , 703 P.2d 111 ].) Nothing in the words chosen by the Legislature either explicitly or implicitly conditions guilt upon knowledge of the physical character of the substance being manufactured. To the contrary, its failure to include any qualifying words such as “knowingly” or “intentionally” indicates that it did not intend that either guilty knowledge or intent would be elements of the offense. (In re Marley (1946) 29 Cal.2d 525 , 529 [ 175 P.2d 832 ]; Brodsky v. Cal. State Bd. of Pharmacy (1959) 173 Cal.App.2d 680 , 688 [ 344 P.2d 68 ].)

Of course, the absence in former sections 11160 and 11500 of a statutory requirement of knowledge of the physical character of the substance did not prevent the judicial addition of such a requirement in cases involving the possession of controlled substances, such as Winston. We have searched those cases for a rationale which would apply to other fact situations, but

have come up empty-handed. (Cf. People v. Corkrean (1984) 152 Cal.App.3d 35 , 37-38 [ 199 Cal.Rptr. 375 ].)

For instance, the reasoning which motivated the court in Gory was that a person could not intentionally possess an article unless the supposed possessor knew of the existence of the article.^[9] However, it is certainly possible for a person to know of the existence of an article and to intentionally exercise physical control of that article, even though that person does not know the true physical character (such as the chemical composition) of that article. For instance, a person may knowingly possess a bag of white crystals which he believes to be sugar, although the substance is actually methamphetamine.

That rationale, therefore, does not support the result in Gorg and Winston, which expanded the rule of Gory to include knowledge of the physical character of the item possessed. The failure of that rationale to support the expansion of that knowledge requirement to a statute prohibiting manufacturing is even clearer, since (1) the concept of possession is entirely absent from the statute, and (2) one may intentionally engage in manufacturing— may intentionally mix two or more reactive chemicals together—without knowing the physical character of the substance which will be produced by such a mixture.

The only other rationale for the rule in Winston appears to be that relied on by People v. Cole, supra, 113 Cal.App.2d 253 . There, the court said that the possibility that a person could be criminally prosecuted for possession of marijuana when that person was under the honest but mistaken belief that the substance was actually alfalfa, tobacco or a roadside weed “would so clearly pass the bounds of reason as to be unthinkable.” (Id., p. 258.)

section 26280[^[10] ] are not ordinarily governed by section 20 of the Penal Code and therefore call for the sanctions imposed even though the prohibited acts are committed without criminal intent or criminal negligence.” (People v. Stuart (1956) 47 Cal.2d 167 , 172 [ 302 P.2d 5 , 55 A.L.R.2d 705 ]; accord, Brodsky v. Cal. State Bd. of Pharmacy, supra, 173 Cal.App.2d 680 , 688-691.) If the production of adulterated but harmless drugs can be punished without showing any guilty knowledge, it is certainly appropriate to apply the same standard to the production of dangerous stimulants such as methamphetamine.^[11]

In short, neither the language of the statute, the rationale of the narcotic possession cases, nor the defendant offers any reason which would compel us to require that, as an element of section 11379.6, the People must prove that the defendant was aware of the physical character of the substance being manufactured, i.e., that the product of the chemical synthesis in which he was engaged was methamphetamine. “In these circumstances, and in the absence of constitutional compulsion to construe the statute as requiring [such] knowledge . . . , we are not at liberty to construe section [11379.6] to comport with our [or the defendant’s] notions of reasonableness. [Citation.] Whatever the merit of [the defendant’s] argument, the proper forum for its resolution is the Legislature, not this court.” (People v. Corkrean, supra, 152 Cal.App.3d at p. 41; People v. Lanham (1991) 230 Cal.App.3d 1396 , 1404 [ 282 Cal.Rptr. 62 ].)

We conclude that CALJIC No. 3.30 adequately instructed the jury on the applicable law. Knowledge of the physical character of the substance being manufactured is not an element of section 11379.6. All that the People were required to prove was that the defendant had intentionally engaged in the activity specified in the statute: chemical extraction or chemical synthesis. So long as the product of the defendant’s activity was methamphetamine as had been charged, the defendant is guilty, even if he did not know that methamphetamine would be that product.

C., D.^[13]

Disposition

The judgment as to counts II and III is reversed as to both defendants. In all other respects, the judgment is affirmed.

Timlin, Acting P. J„ and McDaniel, J.,^[13] concurred.