Metropolitan News-Enterprise


Thursday, October 2, 2008


Page 1


Court: Upholds Sentencing Disparity for Crack, Powder Cocaine


By STEVEN M. ELLIS, Staff Writer


This district’s Court of Appeal yesterday rejected a constitutional challenge to California’s higher statutory sentence for possessing crack cocaine for sale as opposed to powder cocaine.

Ruling that the Legislature had a rational basis to treat the substances differently because of distinctions in their routes of administration, chemical makeup, manner of sale, and physiological and psychological effects, Div. Seven rejected a man’s claims that the state’ sentencing disparity violated due process and equal protection.

However, in an unpublished portion of its opinion, the court held that Los Angeles Superior Court Judge Frederick N. Wapner’s denial of Ronald Ward’s request for in camera review of documents pertaining to officers who arrested him in an undercover sting was error, and conditionally reversed Ward’s conviction on drug charges to allow him to determine whether the documents contained any relevant, admissible evidence he could have presented at trial.

Ward was arrested in 2006 and charged with sale of a controlled substance and possession of cocaine base for sale after he allegedly sold a rock of crack cocaine to an undercover Los Angeles Police Department narcotics officer.

Undercover Sting

At trial, the officer testified that he observed Ward throw the plastic-wrapped rock on the ground at the direction of another man, Derrick Sutton, and that Ward did so immediately after telling the officer to throw his money on the ground, which the officer did. The officer also said that the transaction occurred immediately after he declined a demand by Sutton to smoke a pipe of drugs to allay Sutton’s suspicions.

Ward was convicted of both charges, and argued on appeal that the higher statutory sentence for possessing cocaine base for sale in Health and Safety Code Sec. 11351.5 versus the sentence for powder cocaine in Sec. 11351 violated both substantive due process and equal protection of the laws under the federal and state constitutions.

Asserting that his personal liberty was a fundamental interest, he contended that the Court of Appeal should apply strict scrutiny in its review.

Rational Basis Review

But, Justice Laurie D. Zelon rebuffed Ward’s request, noting that the California Supreme Court has ruled that the rational basis test applies to equal protection challenges based on sentencing disparities, and that courts examining a claim that a law violates substantive due process look to whether it has a real and substantial relation to the object sought to be obtained.

Applying the California Supreme Court’s presumption in favor of upholding legislative enactments unless they are clearly, positively and unmistakably unconstitutional, she wrote that, “[a]s the two drugs are not the same, Ward’s argument that the distinct punishments for possessing each substances are ‘[d]ifferent and disproportionate penalties [that] may not be imposed for the same crime’ is contradicted by the facts.”

Zelon pointed to the Ninth Circuit Court of Appeals’ opinion in United States v. Harding (1992) 971 F.2d 410, which explained:

“Although crack and powder cocaine are different forms of the same drug, the routes of administration, their physiological and psychological effects, and the manner in which they are sold set the two forms of the drug apart. Crack is normally smoked in a glass pipe, while powder cocaine is most often ingested nasally.

“Because it is smoked, crack has a quicker and more intense effect on the brain than powder cocaine ingested nasally, causing a greater desire for more. Crack is also sold in smaller quantities and lower unit prices than powder cocaine, thereby reducing the financial barrier which had previously limited cocaine usage.”

Concluding that there was rational support for the Legislature to enact the statutes, and that Ward had failed to show that the law treated two similarly situated groups in an unequal manner, Zelon wrote that both of Ward’s constitutional claims failed.

Conditional Reversal

However, she nonetheless ordered Ward’s convictions conditionally reversed based on Wapner’s erroneous denial of a Pitchess motion with respect to the records of two officers involved in the sting. Ward claimed that he had merely been walking through the area at the time of the alleged sale, and contended that the two officers had fabricated the events leading up to his arrest.

Writing that Ward had offered a plausible scenario presenting an assertion of specific misconduct that was both internally consistent and supportive of his proposed defense, Zelon remanded the matter to the trial court with directions to conduct an in camera hearing to see if the documents contained relevant, discoverable information, and to order a new trial if there was a reasonable probability the outcome would have been different had such information been disclosed.

Justices Fred Woods and Frank Y. Jackson joined Zelon in her opinion.

The case is People v. Ward, 08 S.O.S. 5571.


Copyright 2008, Metropolitan News Company