Metropolitan News-Enterprise


Friday, October 28, 2011


Page 3


C.A. Faults Lack of Jury Instruction, but Agrees That ‘Ecstasy’ Is Illegal




A jury was entitled to infer that the psychoactive drug known as Ecstasy is a controlled substance or controlled substance analog, although it is not specifically listed as a controlled substance in the Health and Safety Code, the Court of Appeal for this district has ruled.

Div. Four Wednesday affirmed Zachary Edward Davis’ conviction for sale of a controlled substance and possession of a controlled substance. Los Angeles Superior Court Judge Barbara R. Johnson placed Davis on probation for three years, with a condition of 90 days in jail, after jurors found him guilty.

Davis was arrested two years ago at a New Year’s Eve rave party at the Los Angeles Coliseum. An undercover officer testified that he approached Davis and asked if he had any of the drug—the full name of which is methylenedioxymethamphetamine, usually shortened to MDMA—and Davis went to speak to another man.

After a brief conversation, Davis returned and sold the officer two blue pills for $20. Both men were arrested, and the other man was found in possession of 19 more pills.

The pills were tested and identified as containing MDMA.

The defense presented no witnesses, but argued that the defendant should be acquitted because the prosecution failed to prove that MDMA is a controlled substance under California law. The judge disagreed, and the jury found Davis guilty.

Presiding Justice Norman Epstein, writing for the Court of Appeal, acknowledged that in California, unlike under federal law, MDMA is not specifically listed as a controlled substance. The prosecution, however, presented substantial evidence from which the jury could infer that it is a controlled substance, the presiding justice concluded.

He explained that under the Health and Safety Code, it is a crime to possess “any controlled substance” as defined in various sections of the code. One of those is Sec. 11055, which identifies “[a]mphetamine, its salts, optical isomers, and salts of its optical isomers,” “[m]ethamphetamine, its salts, isomers, and salts of its isomers,” and “any material, compound, mixture, or preparation” containing “any quantity” of several substances having a “stimulant effect on the central nervous system,” including amphetamine and methamphetamine, as controlled substances.

The presiding justice also cited Sec. 11054(d), which identifies “methylenedioxy amphetamine” or MDA, and “any material, compound, mixture, or preparation” containing “any quantity” or any “salts, isomers, and salts of isomers” of any listed hallucinogenic substance, including MDA, as controlled substances.

Epstein further explained that under Sec. 11401, a “controlled substance analog,” meaning a substance that has a chemical structure similar to that of a controlled substance, or that is represented as having the same or a greater effect as a controlled substance, is treated as if it were the substance.

 In Davis’ case, the justice reasoned, the jury was entitled to infer from the name of the drug that it contains methamphetamine and amphetamine, and is thus a controlled substance under Sec. 11055. The appellate court, he said, can take judicial notice of scientific treatises that confirm that MDMA contains methamphetamine and amphetamine.

The presiding justice also addressed the defense argument that the judge erred by failing to give a sua sponte instruction requiring the jury to determine, as an essential element of the charged offenses, whether MDMA is a controlled substance, whereas the instructions as given specifically identified the drug as a controlled substance, leaving it to the jurors to determine whether the defendant sold or possessed the substance with knowledge that he possessed it and that it was a controlled substance.

The trial judge may have erred in not giving the instruction, Epstein said, because “we find MDMA’s status as a controlled substance to be an inference rather than a presumption.” But the error was harmless, he concluded, since there was no dispute, based on the evidence and arguments, that MDMA is a controlled substance.

The case is People v. Davis, 11 S.O.S. 5790.


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