IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S113433
v.
Ct. App. 3 No. C038946
LISA ROBIN MCCALL,
Trinity
County
Defendant and Appellant.
Super. Ct. No. 01F004B
A jury convicted defendant Lisa Robin McCall of possession of hydriodic
acid with intent to manufacture methamphetamine in violation of Health and
Safety Code1 section 11383, subdivision (c)(2) (section 11383(c)(2)), even though
no hydriodic acid was recovered from her residence. The conviction was based
upon (1) evidence that defendant possessed sufficient quantities of red phosphorus
and iodine to manufacture hydriodic acid, and (2) the court’s instruction, pursuant
to section 11383, subdivision (f) (section 11383(f)), that possession of red
phosphorus and iodine, with the intent to manufacture methamphetamine, shall be
deemed to be possession of hydriodic acid with the intent to manufacture
methamphetamine.
1
All statutory references are to the Health and Safety Code unless otherwise
indicated.
The Court of Appeal reversed the resulting judgment. It stated that the
“shall be deemed” language of section 11383(f) allowed the prosecution to obtain
a conviction under section 11383(c)(2) simply by proving the basic fact of
possession of red phosphorus and iodine. Thus, said the court, section 11383(f)
created an improper mandatory presumption because it relieved the prosecution of
its burden of proving the ultimate fact of possession of hydriodic acid. We
granted the Attorney General’s petition for review to determine whether the Court
of Appeal correctly characterized section 11383(f). We hold that the language in
question creates no presumption at all, but is simply a valid exercise of the
Legislature’s power to create substantive law and define crimes.
I. PROCEEDINGS BELOW
A. Underlying Facts
During a search of defendant’s cabin, sheriff’s deputies recovered, among
other items, boxes of ephedrine tablets, sinus medication containing
pseudoephedrine, red phosphorus, and iodine crystals, as well as the type of
equipment used to manufacture methamphetamine. By-products of the
ephedrine/hydriodic method of methamphetamine manufacture were found,2 but
no hydriodic acid was recovered.
Defendant was arrested and charged, in count 3, with possession of
hydriodic acid with intent to manufacture methamphetamine, a violation of
sections 11383(c)(2) and 11383(f). Section 11383(c)(2) provides, “Any person
who, with intent to manufacture methamphetamine . . . possesses hydriodic acid . .
. is guilty of a felony and shall be punished by imprisonment in the state prison for
2
The ephedrine/hydriodic acid method of methamphetamine manufacture is
described post, at page 3.
2
two, four, or six years.” Section 11383(f) provides that “possession of immediate
precursors sufficient for the manufacture of . . . hydriodic acid . . . shall be deemed
to be possession of the derivative substance. Additionally, possession of essential
chemicals sufficient to manufacture hydriodic acid, with intent to manufacture
methamphetamine, shall be deemed to be possession of hydriodic acid.”
B. The Jury Trial
At trial, the People’s first expert witness, Kevin Larson, a special agent
with the California Department of Justice, Bureau of Narcotics Enforcement,
explained that the ephedrine/hydriodic acid method of methamphetamine
manufacture was the prevalent method of manufacture in Northern California. In
this method, methamphetamine manufacturers extract pseudoephedrine from cold
tablets and add hydriodic acid. He added that hydriodic acid is itself a controlled
substance that is difficult to purchase so manufacturers typically manufacture their
own by heating red phosphorus and iodine in water, which causes the iodine to
turn into hydriodic acid. The pseudoephedrine and hydriodic acid are then
combined to manufacture methamphetamine.
Barry Miller, a criminalist with the California Department of Justice, added
that ephedrine can also be extracted from cold tablets and combined with
hydriodic acid to manufacture methamphetamine.3 He testified that ephedrine is
the immediate precursor of methamphetamine and that iodine is the immediate
precursor of hydriodic acid. He offered the opinion that defendant’s cabin
contained a laboratory to manufacture methamphetamine using the
3
While the essential chemicals remain the same, methamphetamine can also
be manufactured by mixing ephedrine, red phosphorus and iodine together and
heating the mixture (see, e.g., People v. Pierson (2001) 86 Cal.App.4th 983, 986),
or, as Criminalist Barry Miller testified, by mixing ephedrine, red phosphorus and
hydriodic acid together and heating the mixture.
3
ephedrine/hydriodic acid method, and that the cabin also contained a sufficient
quantity of pseudoephedrine, red phosphorus, and iodine to manufacture
methamphetamine.
The court instructed the jury that “Every person who, with the intent to
manufacture methamphetamine or . . . hydriodic acid, . . . possesses at the same
time . . . red phosphorus and iodine, is guilty of a violation of Health and Safety
Code section 11383(c)(1) [sic: (c)(2)], a crime. [¶] In order to prove this crime,
each of the following elements must be proved: [¶] A person possessed at the
same time . . . red phosphorous and iodine; and [¶] That person had the specific
intent to manufacture methamphetamine . . . . [¶] And further, for the purpose of
this section, possession of immediate precursors . . . sufficient for the manufacture
of hydriodic acid with the intent to manufacture methamphetamine, shall be
deemed to be in possession of hydriodic acid.” The verdict form reflects that
defendant was thereafter convicted of a violation of “Section
11383(c)(2)/11383(f).”
C. The Court of Appeal Opinion
The Court of Appeal stated that the court’s instructions effectively told the
jury that “it must find defendant possessed hydriodic acid if it found she
possessed the precursors of hydriodic acid, namely, red phosphorus and iodine.”
The Court of Appeal held that the “shall be deemed” language of section 11383(f)
created the type of mandatory presumption found unconstitutional in Ulster
County Court v. Allen (1979) 442 U.S. 140 (Ulster County) because the jury was
not free to reject the inference of the ultimate fact of possession of hydriodic acid
once it found the basic fact of possession of red phosphorus and iodine.
While the Court of Appeal acknowledged that a mandatory presumption
may be constitutional if proof of the basic fact or facts supports the inference of
4
guilt beyond a reasonable doubt, it held that such proof was lacking here: “while
there is a rational basis to conclude that red phosphorus and iodine are the
essential chemicals of hydriodic acid, there is no basis to conclude that those two
essential chemicals constitute hydriodic acid [because hydriodic acid] is a
different substance which does not come into existence until it is synthesized
from its essential components under a process of heat.”4 We disagree.
II. DISCUSSION
A. Presumptions
1. Mandatory
and
Permissible Rebuttable Presumptions
“[P]resumptions are a staple of our adversary system of factfinding. It is
often necessary for the trier of fact to determine the existence of an element of the
crime – that is, an ‘ultimate’ or ‘elemental’ fact – from the existence of one or
more ‘evidentiary’ or ‘basic’ facts.” (Ulster County, supra, 442 U.S. at p. 156.)
The term “presumption” is defined in section 600, subdivision (a) of the
Evidence Code: “A presumption is an assumption of [an ultimate or elemental]
fact that the law requires to be made from [an evidentiary or basic] fact or group
4
Both the trial court and Court of Appeal used the section 11383(f) phrases
“immediate precursors” and “essential chemicals” interchangeably, which is
technically incorrect. A “precursor” is “[t]hat which precedes another or from
which another is derived, applied especially to . . . a chemical substance that is
built into a larger structure in the course of synthesizing the latter.” (Stedman’s
Medical Dict. (27th ed. 2000) p. 1437.) Thus, Criminalist Barry Miller testified
that ephedrine is the immediate precursor of methamphetamine and that hydriodic
acid is not a precursor of methamphetamine, but is the essential chemical that
enables ephedrine to transform into methamphetamine. He also testified that red
phosphorus and iodine are not precursors of methamphetamine. He stated that
iodine, however, is a precursor of hydriodic acid because in making hydriodic acid
from red phosphorus and iodine, the red phosphorus is not itself converted in any
way, but instead is the essential chemical that enables the iodine to transform into
hydriodic acid.
5
of [such] facts found or otherwise established in the action. A presumption is not
evidence.” Put differently, presumptions “are conclusions that the law requires to
be drawn (in the absence of a sufficient contrary showing) when some other fact
is proved or otherwise established in the action.” (Assem. Com. on Judiciary,
com. on Assem. Bill 333 (1965 Reg. Sess.) [enacting Evid. Code] reprinted at
29B pt. 2, West’s Ann. Evid. Code (1995 ed.) foll. § 600, p. 3.)
This statutory definition of a “presumption” is incomplete, however,
because the law also recognizes the permissive presumption, “which allows – but
does not require – the trier of fact to infer the elemental fact from proof by the
prosecutor of the basic one and which places no burden of any kind on the
defendant.” (Ulster County, supra, 442 U.S. at p. 157, italics added.) Thus,
Evidence Code section 600, subdivision (a) defines a mandatory presumption,
which “tells the trier that he or they must find the elemental fact upon proof of the
basic fact, at least unless the defendant has come forward with some evidence to
rebut the presumed connection between the two facts.” (Ulster County, at p.
157.)
Evidence Code section 600, subdivision (b) defines the term “inference”
and provides: “An inference is a deduction of fact that may logically and
reasonably be drawn from another fact or group of facts found or otherwise
established in the action.” Like a presumption, “an inference is not itself
evidence; it is the result of reasoning from evidence.” (Assem. Com. on
Judiciary, com. on Assem. Bill 333 (1965 Reg. Sess.) [enacting Evid. Code]
reprinted at 29B pt. 2, West’s Ann. Evid. Code, supra, foll. § 600, p. 4.) There is
no substantive difference between the “inference” defined in Evidence Code
6
section 600, subdivision (b) and the “permissive presumption” defined by the
high court in Ulster County.5
In addition, the mandatory and permissive presumptions contemplated by
Evidence Code section 600 are rebuttable. As provided in Evidence Code section
601, “A presumption is either conclusive or rebuttable. Every [mandatory or
permissible] rebuttable presumption is either (a) a presumption affecting the
burden of producing evidence or (b) a presumption affecting the burden of
proof.”6
In other words, whether the fact finder may find the elemental fact upon
proof of the basic fact (a permissive presumption) or must find the elemental fact
upon proof of the basic fact (a mandatory presumption), the defendant has the
opportunity to rebut the presumed connection between the basic and ultimate
facts. (See Ulster County, supra, 442 U.S. at p. 157.) In deciding whether a
rebuttable presumption in a criminal case is mandatory or permissive, “the jury
instructions generally will be controlling, although their interpretation may
require recourse to the statute involved and the cases decided under it.” (Ibid.)
5
See Ulster County, supra, 442 U.S. at page 157: “The most common
evidentiary device is the entirely permissive inference or presumption, which
allows – but does not require – the trier of fact to infer the elemental fact from
proof by the prosecutor of the basic one . . . .” (Italics added.) See also Harris,
Constitutional Limits on Criminal Presumptions as an Expression of Changing
Concepts of Fundamental Fairness (1986) 77 J. Crim. L. & Criminology 308, 335
(“ ‘Permissive presumptions’ are not really presumptions at all. Instead, they are
simply inferences drawn from evidence. They do not shift the prosecution’s
burden of production, and the jury is not required to abide by them. An instruction
about a ‘permissive presumption’ is really an instructed inference. (Fn. omitted.)”)
For ease of analysis, we will refer to an inference as a permissive presumption.
6
Conclusive presumptions are discussed post, at pages 9-13.
7
Because a mandatory rebuttable presumption “tells the trier of fact that he
or they must find the elemental fact upon proof of the basic fact, at least until the
defendant has come forward with some evidence to rebut the presumed
connection between the two facts,” it is a “troublesome” evidentiary device in a
criminal case since the prosecution bears the burden of establishing guilt beyond
a reasonable doubt. (Ulster County, supra, 442 U.S. at p. 157.) The prosecution
“may not rest its case entirely on a [mandatory rebuttable] presumption unless the
fact proved is sufficient to support the inference of guilt beyond a reasonable
doubt.” (Id. at p. 167.)
In
People v. Roder (1983) 33 Cal.3d 491 (Roder), we construed the
mandatory rebuttable presumption contained in Penal Code section 496, which
informed the jury that if it found that the defendant was a dealer in secondhand
merchandise who bought or received stolen property under circumstances that
should have caused him to make a reasonable inquiry of the seller’s legal right to
sell the same, it shall presume the defendant bought or received such property
knowing it to be stolen, unless from all the evidence it had a reasonable doubt that
the defendant knew the property was stolen. (Roder, at pp. 495-496.) We stated
that this was “a classic example” of a mandatory rebuttable presumption, “for it
‘tells the trier [of fact] that he or they must find the elemental fact upon proof of
the basic fact, at least unless the defendant has come forward with some evidence
to rebut the presumed connection between the two facts.’ ” (Id. at p. 501, quoting
Ulster County, supra, 442 U.S. at p. 157.) Echoing the high court in Ulster
County, we held that a mandatory rebuttable presumption is “reconcilable with
the prosecution’s burden of proof . . . only if the basic fact proved compels the
8
inference of guilt beyond a reasonable doubt.” (Roder, supra, 33 Cal.3d at p.
498, fn. 7.)7
2. Conclusive
Presumptions
As noted, Evidence Code section 601 classifies presumptions as “either
conclusive or rebuttable.” Evidence Code section 620 provides that all
“presumptions established by this article and all other presumptions declared by
law to be conclusive, are conclusive presumptions.”8 For example, Evidence
Code section 622 provides that “[t]he facts recited in a written instrument are
conclusively presumed to be true as between the parties thereto . . . but this rule
does not apply to the recital of a consideration.” Elections Code section 2026
provides that “[t]he domicile of a Member of the Legislature or a Representative
in the Congress of the United States shall be conclusively presumed to be at the
residence address indicated on that person’s currently filed affidavit of
registration.” In fact, there are over 150 California civil statutes that utilize the
term “conclusively presumed” within the statutory definition.9
Unlike mandatory rebuttable presumptions and permissive rebuttable
presumptions, the conclusive presumptions contemplated by Evidence Code
section 620 are irrebuttable by definition, prompting Witkin to say: “[A]
7
To save its constitutionality, we held that the mandatory rebuttable
presumption of Penal Code section 496 should be construed as a legislatively
prescribed rebuttable permissive presumption on retrial. (Roder, supra, 33 Cal.3d
at pp. 505-506.)
8
The article referred to in Evidence Code section 620 is article 2, entitled
Conclusive Presumptions. Article 2 contains Evidence Code sections 620, 622,
623, and 624.
9
There is but one conclusive presumption in the Penal Code: Penal Code
section 1016, which provides that “A defendant who does not plead not guilty by
reason of insanity shall be conclusively presumed to have been sane at the time of
the commission of the offense charged . . . . ”
9
conclusive or indisputable presumption is entirely different from the ordinary
rebuttable presumption: [N]o evidence may be received to contradict it. Hence, it
is more accurately described as a rule of substantive law rather than of evidence.
[Citations.]” (1 Witkin, Cal. Evidence (4th ed. 2000) Burden of Proof and
Presumptions, § 160, p. 301.)
Wigmore took a dim view of the term “conclusive presumption”: “In
strictness there cannot be such a thing as a ‘conclusive presumption.’ Wherever
from one fact another is said to be conclusively presumed, in the sense the
opponent is absolutely precluded from showing by any evidence that the second
fact does not exist, the rule is really providing that where the first fact is shown to
exist, the second fact’s existence is wholly immaterial for the purpose of the
proponent’s case; and to provide this is to make a rule of substantive law and not
a rule apportioning the burden of persuading as to certain propositions or varying
the duty of coming forward with evidence.” (9 Wigmore on Evid. (Chadbourn
rev. ed. 1981), § 2492, pp. 307-308, fn. omitted.)10 Our court has adopted the
Wigmore view. (See People v. Dillon (1983) 34 Cal.3d 441, 474 (Dillon).)
Moreover, our court has repeatedly rejected defendants’ attempts to invoke
the term conclusive presumption as a means to challenge the constitutionality of
criminal law statutes. For example, in Dillon, supra, 34 Cal.3d 441, a case
decided after Ulster County, the defendant argued the felony-murder rule created
an unconstitutional “conclusive presumption” by relieving the People of its
10
Accord, Hoffman, Thinking About Presumptions: The ‘Presumption’ of
Agency from Ownership as Study Specimen (1997) 48 Ala. L.Rev. 885, 898
(“Careful verbalists have, however, renounced the notion of ‘irrebuttable’ or
‘conclusive’ presumptions, recognizing them for what they are: rules of
substantive law masquerading as rules of proof.”).
10
burden to prove malice upon proof of the defendant’s intent to commit the
underlying felony. (Dillon, at p. 472.)
We disagreed and stated: “We are led astray if we treat the ‘conclusive
presumption of malice’ as a true [rebuttable] presumption; to do so begs the
question whether malice is an element of felony murder. And to answer that
question, we must look beyond labels to the underlying reality of this so-called
‘presumption.’ [¶] Although the drafters of the Evidence Code chose to
perpetuate the traditional distinction between rebuttable and ‘conclusive’
presumptions (id., §§ 601, 620), they apparently did so in order to emphasize that
the code provisions on the topic were largely continuations of prior law. But they
were not misled by their own terminology: in their accompanying note the
drafters frankly acknowledged that ‘Conclusive presumptions are not evidentiary
rules so much as they are rules of substantive law.’ [Citation.]” (Dillon, supra,
34 Cal.3d at p. 474.) We concluded: “ ‘Attempts to explain the [felony-murder]
statute to the jury in terms of nonexistent “conclusive presumptions” tend more to
confuse than to enlighten a jury unfamiliar with the inaccurate practice of stating
rules of substantive law in terms of rules of evidence.’ ” (Id. at p. 475.)11
Despite the fact that we have maintained that a statute that employs the
phrase “shall be conclusively presumed” is simply stating a rule of substantive law
(see Dillon, supra, 34 Cal.3d at p. 474), there is much confusion regarding the
11
Accord, Burg v. Municipal Court (1983) 35 Cal.3d 257, 265 (Penal Code
“section 23152, subdivision (b), does not create a conclusive presumption of
intoxication, nor does it ‘eliminate[] the prosecution’s burden of proof when the
accused is found to have [0.10] percent, by weight, of alcohol in [his] blood.’
Instead, the statute defines, in precise terms, the conduct proscribed.”).
11
term “conclusive presumption” because it has been incorrectly utilized to describe
mandatory rebuttable presumptions.12
For example, in Carella v. California (1989) 491 U.S. 263 (per curiam)
(Carella), the high court found unconstitutional two California mandatory
rebuttable presumptions: (1) the Vehicle Code section 10855 presumption that a
person who intentionally fails to return a rented vehicle within five days after the
rental agreement expires “shall be presumed to have embezzled the vehicle”; and
(2) the Penal Code section 484, subdivision (b) presumption that “[i]ntent to
commit fraud is presumed” if a person fails to return, within 20 days after a
written demand, personal property rented pursuant to a written contract.
The
Carella trial court’s instructions to the jury, because they contained no
rebutting language, erroneously implied that these presumptions were conclusive
as to the defendant. Perhaps for this reason, Justice Scalia’s concurring opinion in
Carella refers to the two presumptions as “mandatory conclusive presumptions”
(Carella, supra, 491 U.S. at p. 268) and as “conclusive presumption[s]” (id. at p.
269). But under California law, these two mandatory presumptions are actually
rebuttable.13 While Justice Scalia’s characterization is correct insofar as the
12
This is not surprising. Various commentators have acknowledged the
nettlesome task of properly characterizing presumptions. (See, e.g., Maguire,
Evidence: Common Sense and Common Law (1947) 183 [the “word presumption
has suffered badly from rough and careless handling”]; Broun, The Unfulfillable
Promise of One Rule for All Presumptions (1984) 62 N.C. L.Rev. 697, 697 [“The
legal term ‘presumption’ confuses almost everyone who has ever thought about it.
That confusion is fully justified. Not only are the concepts represented by the
term complex, but courts and legislatures have used the term in many different and
often inconsistent ways.”]; 2 McCormick on Evidence (5th ed. 1999) § 342, p. 433
[“One ventures the assertion that ‘presumption’ is the slipperiest member of the
family of legal terms, except its first cousin, ‘burden of proof.’ ”].)
13
Neither Penal Code section 484, subdivision (d) nor Vehicle Code section
10855 contains specific rebutting language; nonetheless, these two presumptions
(footnote continued on next page)
12
presumptions were understood by the jury, i.e., conclusive in that particular trial,
his characterization has created confusion in subsequent cases14 because a
mandatory rebuttable presumption that, due to instructional error, is presumed by
the jury to be conclusive in a particular trial is analytically distinct from an
Evidence Code section 620 conclusive presumption – the former is
unconstitutional under Ulster County as an improper mandatory presumption,15
and the latter simply describes a legislative enactment of substantive law.
(footnote continued from previous page)
are rebuttable presumptions pursuant to Evidence Code section 601 (see
discussion, ante, at p. 7) and the Carella jury should have been so informed.
14
For example, in Yates v. Evatt (1991) 500 U.S. 391, 406, footnote 10
(Yates), the high court, citing Justice Scalia’s concurring opinion in Carella,
referred to the presumption in Carella as a “conclusive presumption.” And, in
Neder v. United States (1999) 527 U.S. 1, 12, the high court specifically referred
to the California Vehicle Code section 10855 presumption at issue in Carella as a
“conclusive presumption.” Our court has not been immune from this misstep.
(See, e.g., People v. Cox (2000) 23 Cal.4th 665, 677 [referring to the mandatory
rebuttable presumption in Carella as a “mandatory conclusive presumption”]; and
People v. Flood (1998) 18 Cal.4th 470, 504 [referring to the mandatory rebuttable
presumption in Carella as an “improper conclusive presumption”].)
15
In Yates, the high court addressed another mandatory rebuttable
presumption that was conclusive as to the defendant, but did not, as it did in
Carella, refer to it as a conclusive presumption. Specifically, the defendant in
Yates was subject to a mandatory rebuttable presumption, but chose to rest after
the People’s case-in-chief. He presented no rebutting evidence. The high court
observed that “when a mandatory rebuttable presumption is applied in a case with
no rebutting evidence, [it] render[s] the presumption conclusive in its operation.”
(Yates, supra, 500 U.S. at p. 406, fn. 10.) The mandatory rebuttable presumptions
addressed in Carella and Yates are analytically indistinct: both operated
conclusively in the particular trial – in Carella due to instructional error, and in
Yates due to the defendant’s failure to rebut the presumption. We prefer the
terminology used in Yates: “mandatory rebuttable presumption . . . conclusive in
operation.”
13
B. The Proper Characterization of Section 11383(f)
It is against this backdrop that we analyze defendant’s contentions on
appeal. Defendant argues that, while the possession of hydriodic acid with intent
to manufacture methamphetamine is a crime under section 11383(c)(2), the
possession of the essential chemicals of hydriodic acid (red phosphorus and
iodine) with intent to manufacture methamphetamine is not a crime under section
11383(c)(2). Therefore, insofar as section 11383(f) deems the possession of red
phosphorus and iodine to be the possession of hydriodic acid, it mandatorily
presumes an element of the crime (possession of hydriodic acid) from a
noncriminal act (possession of red phosphorus and iodine), and impermissibly
lessens the prosecutor’s burden of proving all the elements of section 11383(c)(2).
Defendant suggests that the only way to avoid this constitutional infirmity is for
the Legislature to enact the separate substantive crime of possession of red
phosphorus and iodine with intent to manufacture methamphetamine.
We disagree. Section 11383(f), contrary to defendant’s contention, is not
phrased in the manner of a mandatory rebuttable presumption: there is no ultimate
fact to be presumed from one or more basic facts. Instead, the statute provides
that the possession of red phosphorus and iodine with intent to manufacture
methamphetamine shall be deemed to be possession of hydriodic acid with intent
to manufacture methamphetamine. The phrase “shall be deemed,” as utilized in
section 11383(f), simply creates a rule of substantive law; to wit, the possession of
red phosphorus and iodine with intent to manufacture methamphetamine is the
legal equivalent of possession of hydriodic acid with intent to manufacture
methamphetamine. Like the term “shall be conclusively presumed,” the term
“shall be deemed” simply creates substantive law.
As the Fifth Circuit stated in City of New Port Richey v. Fidelity & Deposit
Co. of Md. (5th Cir. 1939) 105 F.2d 348, 351: “We recognize that the legislature
14
cannot make certain [ultimate] facts conclusive proof of another ultimate fact
when there is no logical connection or probability in experience to connect them.
But the real legislative intent may not be to make a rule of evidence, but a rule of
substantive law, and if the legislature may constitutionally do the latter, the form
of words used will not defeat the intent. Statutes often say that certain acts ‘shall
be deemed,’ or ‘shall be held to be,’ or ‘shall be conclusively presumed to be’
something else which is enjoined or forbidden, when the real purpose and effect is
to enjoin or forbid those acts, and not to stultify the courts into really ‘deeming’ or
‘presuming’ one thing to be another.”
Indeed, the definitional phrase “shall be deemed” is a legislative staple that
appears in thousands of California statutes. In the Penal Code alone, the phrase
“shall be deemed” appears in over 125 provisions, and is often used, as in section
11383(f), to define one thing in terms of another. For example, Penal Code
section 12001, subdivision (j), provides that “For purposes of [Penal Code]
Section 12023 [“Every person who carries a loaded firearm with the intent to
commit a felony is guilty of armed criminal action”], a firearm shall be deemed to
be ‘loaded’ whenever both the firearm and the unexpended ammunition capable of
being discharged from the firearm are in the immediate possession of the same
person.” In essence, the “shall be deemed” language of Penal Code section 12001,
subdivision (j) expands the definition of “loaded” for purposes of Penal Code
section 12023.
Penal Code section 627.1 provides that “as used in this chapter” (Access to
School Premises”), an “outsider” is any person other than a student of the school,
“except that a student who is currently suspended from school shall be deemed an
outsider.” The “shall be deemed” language here expands the definition of
“outsider” to encompass suspended students.
15
Section
11054,
subdivision (a) provides: “The controlled substances listed
in this section are included in Schedule I.” Methaqualone is not one of the
substances listed. Section 11150.6 provides: “Notwithstanding . . . subdivision (a)
of Section 11054, methaqualone, its . . . isomers, and salts of its isomers shall be
deemed to be classified in Schedule I for the purposes of this chapter.” The “shall
be deemed” language in this instance expands the list of substances included in
Schedule I to include methaqualone.
Here,
section
11383(f) provides that “For purposes of this section,” the
“possession of essential chemicals sufficient to manufacture hydriodic acid, with
intent to manufacture methamphetamine, shall be deemed to be possession of
hydriodic acid.” (Italics added.) The “For purposes of this section” language of
section 11383(f) refers to section 11383(c)(2), which criminalizes the possession
of hydriodic acid with intent to manufacture methamphetamine. Section 11383(f),
therefore, simply expands the scope of section 11383(c)(2) to prohibit possession
of red phosphorus and iodine with intent to manufacture methamphetamine.
As such, section 11383(f) contains no presumption at all. Instead, section
11383(f) is nothing more than a definitional section that specifies the conduct
“deemed” criminal “[f]or purposes of” section 11383(c)(2). Section 11383(f) tells
us that “possession of hydriodic acid,” the conduct made criminal by section
11383(c)(2), does not, for purposes of that subdivision, merely carry its lay
meaning, but is a term of art that includes the possession of hydriodic acid’s
essential chemicals. Substantive due process allows lawmakers broad power to
select the elements of crimes, and to define one thing in terms of another. (See
Reno v. Flores (1993) 507 U.S. 292, 305 [due process requires “no more than a
‘reasonable fit’ ” between legislative ends and means]; Tracy v. Municipal Court
(1978) 22 Cal.3d 760, 765 [Legislature has broad power to define crimes].)
16
The legislative history of section 11383(f) supports the view that the
Legislature intended to criminalize the possession of red phosphorus and iodine
with intent to manufacture methamphetamine.
In 1972, the Legislature enacted the California Uniform Controlled
Substances Act (the Act). (Stats. 1972, ch. 1407, § 3, p. 2987 et seq.) Section
11383, as added by the Act, provided that “[a]ny person who possesses both
methylamine and phenyl-2-propanone (phenylacetone) at the same time with the
intent to manufacture methamphetamine is guilty of a felony . . . .” (Stats. 1972,
ch. 1407, § 3, p. 3024.)
In 1977, section 11383 was redesignated as section 11383, subdivision (a).
Its substantive language remained unchanged. Section 11383, subdivision (c), the
predecessor of section 11383(f), was enacted. It provided: “For purposes of this
section, possession of the immediate precursors sufficient for the manufacture of
methylamine and phenyl-2-propanone (phenylacetone) . . . shall be deemed to be
possession of such derivative substance.” (Stats. 1977, ch. 165, § 3.6, p. 640.)
In 1995, section 11383 was expanded to its current form. (Stats. 1995, ch.
571, § 1, p. 4418.)16 Section 11383, subdivision (c) was redesignated as
16
Prior to 1995, section 11383 had been expanded (1) in 1987, by
criminalizing the possession of several new chemical combinations used to
manufacture methamphetamine and redesignating section 11383, subdivision (c)
as section 11383, subdivision (e), the forerunner of section 11383(f) (see Stats.
1987, ch. 424, § 1, p. 1589); (2) in 1988, by adding more chemicals to the list of
prohibited chemicals and redesignating section 11383, subdivision (e) as section
11383(f) (see Stats. 1988, ch. 712, § 3, p. 2363); (3) in 1992, by abandoning the
requirement that ephedrine and pseudoephedrine had to be possessed in
combination with other chemicals before such possession was criminal (see Stats.
1992, ch. 49, § 1, pp. 173-174); and (4) in 1993, by criminalizing the possession of
substances containing ephedrine or pseudoephedrine (see Stats. 1993, ch. 1, § 1, p.
60).
17
subdivision (c)(1), and section 11383(c)(2) was added. The following language
was added to section 11383(f), which had provided that “possession of immediate
precursors sufficient for the manufacture of . . . hydriodic acid . . . shall be deemed
to be possession of the derivative substance”: “Additionally, possession of the
essential chemicals sufficient to manufacture hydriodic acid, with intent to
manufacture methamphetamine, shall be deemed to be possession of hydriodic
acid.”
The Legislature’s purpose in enacting section 11383(c)(2) and amending
section 11383(f) was clearly stated in a report of the Assembly Committee on
Public Safety: “Hydriodic Acid (HI) was a substance sought after by operators of
illegal methamphetamine labs and has been the main reducing agent. Legislation
in 1993 added HI as a controlled substance. The criminals have found a loophole
with an HI substitute by purchasing large amounts of iodine and iodine crystals.
This bill would close that loophole by making it a felony to possess such
substitutes with intent to manufacture methamphetamine.” (Assem. Com. on
Public Safety, Rep. on Sen. Bill No. 419 (1995-1996 Reg. Sess.) as amended Mar.
28, 1995, p. 1, italics added.)
The manner of closing this loophole was also described in the report of the
Senate Committee on Criminal Procedure: “This provision would make possession
of iodine, for instance, with intent to manufacture methamphetamine, as culpable
as possession of the finished product.” (Sen. Com. on Criminal Procedure, Rep.
on Sen. Bill No. 419 (1995-1996 Reg. Sess.) Mar. 21, 1995, p. 6, italics added.)
The report also stated: “This bill would provide that possession of any essential
chemicals . . . sufficient to manufacture . . . methamphetamine are deemed to be
possession of the precursor itself. Thus, possession of iodine, which is used to
18
make hydriodic acid, would be legally equivalent to possession of hydriodic acid.”
(Ibid., italics added.)17
III. CONCLUSION
The Legislature, by extending the prohibition on possessing hydriodic acid
to include its essential chemicals, clearly intended to criminalize the possession of
red phosphorus and iodine where these two chemicals are found in sufficient
quantity to manufacture hydriodic acid and are possessed with intent to
manufacture methamphetamine.
Accordingly, we reject defendant’s contention that section 11383(f) creates
an unconstitutional mandatory rebuttable presumption. Instead, the “shall be
deemed” language of section 11383(f) simply expands the section 11383(c)(2)
definition of hydriodic acid to encompass its essential chemicals and thus defines,
in precise terms, the substantive crime of possession of the essential chemicals
sufficient to manufacture hydriodic acid, in this case, red phosphorus and iodine,
with intent to manufacture methamphetamine.
17
On September 30, 2003, the Governor approved Assembly Bill No. 158
(2003-2004 Reg. Sess.), which amends section 11383(f) to read: “Any person who
possesses immediate precursors sufficient for the manufacture of . . . hydriodic
acid . . . , with intent to manufacture methamphetamine, is guilty of a felony and
shall be punished by imprisonment in the state prison for two, four, or six years.”
Section 11383, subdivision (g) now provides: “Any person who possesses
essential chemicals sufficient to manufacture hydriodic acid or a reducing agent,
with intent to manufacture methamphetamine, is guilty of a felony and shall be
punished by imprisonment in the state prison for two, four, or six years.”
19
IV. DISPOSITION
The judgment of the Court of Appeal is reversed only insofar as it reversed
the conviction on count 3. The cause is remanded for the Court of Appeal to
resolve any outstanding issues regarding count 3. In all other respects, the
judgment of the Court of Appeal is affirmed.
MORENO, J.
WE CONCUR: GEORGE, C. J.
KENNARD,
J.
BAXTER,
J.
WERDEGAR,
J.
CHIN,
J.
BROWN,
J.
20
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion People v. McCall
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted
Rehearing granted
__________________________________________________________________________________
Opinion No.
S113433Date Filed: January 15, 2004
__________________________________________________________________________________
Court:
SuperiorCounty: Trinity
Judge: Anthony C. Edwards and John K. Letton
__________________________________________________________________________________
Attorneys for Appellant:
Rebecca P. Jones, under appointment by the Supreme Court, for Defendant and Appellant.__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor General, Robert R. Anderson, ChiefAssistant Attorney General, Jo Graves, Assistant Attorney General, J. Robert Jibson, Janet E. Neeley and
Judy Kaida, Deputy Attorneys General, for Plaintiff and Respondent.
21
Counsel who argued in Supreme Court (not intended for publication with opinion):
Rebecca P. Jones5694 Mission Center Rd., PMB 452
San Diego, CA 92108-4355
(619) 269-7872
Judy Kaida
Deputy Attorney General
1300 I Street
P.O. Box 944255
Sacramento, CA 94244-2550
(916) 327-0306
22
| Date: | Docket Number: |
| Thu, 01/15/2004 | S113433 |
| 1 | The People (Plaintiff and Respondent) Represented by Judy Kaida Office Of The Attorney General P.O. Box 944255 Sacramento, CA |
| 2 | Mccall, Lisa Robin (Defendant and Appellant) Represented by Rebecca P. Jones Attorney at Law 5694 Mission Center Rd., PMB 452 San Diego, CA |
| Disposition | |
| Jan 15 2004 | Opinion: Affirmed in part/reversed in part |
| Dockets | |
| Feb 6 2003 | Petition for review filed in Sacramento by counsel for respondent (The People). |
| Feb 7 2003 | 2nd petition for review filed in San Diego by counsel for appellant Lisa Robin McCall. |
| Feb 10 2003 | Received Court of Appeal record 1 doghouse |
| Mar 26 2003 | Petition for Review Granted (criminal case) Appellant's petition for review Denied. Respondent's Petition for review Granted. Votes: George, CJ., Kennard, Baxter, Werdegar, Chin, Brown and Moreno, JJ. |
| Apr 11 2003 | Counsel appointment order filed Upon request of appellant for appointment of counsel, Rebecca P. Jones is hereby appointed to represent appellant on her appeal now pending in this court. Appellant's brief on the merits shall be served and filed on or before thirty (30) days from the date respondent's opening brief on the merits is filed. |
| Apr 22 2003 | Request for extension of time filed (in Sacramento) by respondent to file the opening brief on the merits on May 24, 2003. |
| May 2 2003 | Extension of time granted On application of resp. and good cause appearing, it is ordered that the time to serve and file the Opening Brief on the Merits is extended to and including 5-24-03. |
| May 14 2003 | Opening brief on the merits filed Respondent ( the people) |
| Jun 12 2003 | Request for extension of time filed Appellant to July 13, 2003, to file the answer brief on the merits. |
| Jun 16 2003 | Extension of time granted On application of appellant and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including July 13, 2003. |
| Jun 23 2003 | Received: Third District Court of Appeal order filed 6/3/2003. |
| Jun 30 2003 | Answer brief on the merits filed (in San Diego) by appellant |
| Sep 11 2003 | Compensation awarded counsel Atty Jones |
| Oct 1 2003 | Case ordered on calendar Tuesday, November 4, 2003 @ 1PM (Sacramento) |
| Oct 10 2003 | Received letter from: Attorney General dated 10-9-2003, informing the Court that on 9-30-2003, the Governor approved Assembly Bill No. 158, whcih amends Section 11383. Exhibit A attached. |
| Oct 22 2003 | Letter sent to: counsel advising them to discuss H&S Code section 11383, subdivisions (c)(2) and/or (f) etc. at oral argument. |
| Nov 4 2003 | Cause argued and submitted |
| Jan 15 2004 | Opinion filed: Affirmed in part, reversed in part Cause remanded to Court of Appeal. Majority Opinion by: Moreno, J. -- Joined by George, C. J., Kennard, Baxter, Werdegar, Chin, and Brown, JJ. |
| Feb 18 2004 | Remittitur issued (criminal case) |
| Feb 25 2004 | Received: Receipt for remittitur from Third Appellate District, signed for by G. Kelly, Deputy. |
| Mar 4 2004 | Returned record to Third District -- two doghouses, includes one red confidential file jacket. |
| Apr 26 2004 | Received: Letter from U.S.S.C. dated 4-20-2004, writ of certiorari filed 4-14-2004 placed on docket 4-20-2004 as No. 03-9901. |
| May 12 2004 | Compensation awarded counsel Atty Jones |
| Jun 28 2004 | Received: Letter from U.S.S.C. dated 6-21-2004 advising writ of certiorari is denied. |
| Briefs | |
| May 14 2003 | Opening brief on the merits filed |
| Jun 30 2003 | Answer brief on the merits filed |
