1

Filed 7/25/13



## IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE , ) ) Plaintiff and Respondent, ) ) S 1 9 8 434
v. ) ) Ct.App. 2/4 B229615 ZACHARY EDWARD DAVIS , ) ) Los Angeles County Defendant and Appellant. ) Super. Ct. No. BA367204

________________________________ ____ )

The question presen ted here is the sufficiency of the evidence to prove a given material is a controlled substance regulated by the Health and Safety Code. Specifically, may a jury properly infer that 3,4

- methylenedioxymethamphetamine (MDMA) is controlled based solely on i ts chemical name, when that substance is not listed in the code? We conclude that evidence of MDMA‟s chemical name, standing alone, is insufficient to prove the mater ial is a controlled substance.

I

. BACKGROUND At a rave party in Los Angeles on December 31, 2009 , defendant Zachary
Edward Davis sold undercover police officer Romeo Rubalcava two blue pills f or $20. Defendant was arrested along with a s econd man he consulted duri ng the
transaction . As officers approached, the second man discarded a clear plastic bag containing 19 additional blue pills. Defendant was charged with sale and2

possession for sale of a controlled substance . ( Health & Saf. Code, §§ 1 1 379,

su bd. (a) , 1 1378 .) 1 At trial, a criminalist testified that he tested the two pills defendan t sold and a representative sample of the 19 discarded pills

. The two pills and the sample
contained “M. D

. M

. A

. or E cstasy.” The criminalist did not elaborate on the chemical composition of the drug. His lab report, which was admitted in
evide nce, identi fied the pills as 3, 4

- m ethylenedioxymethamphetamine. Officer
Rubalcava described E cstasy as a party drug , the effects of which can last up to 24
hours. He did not further explain its effects on the user. In closing , the prosecutor argued that the jury h ad to find the substance defendant possessed and sold was “Ecstasy.” T he jury instructions and verdict forms on both counts referred to the
controlled substance at issue as “ Methylenedioxymethamphetamine ” and
“E cstasy.”
The jury convicted defendant of sal e and simple possession of a controlled
substance (§ 11377). The trial court ordered that defendant s erve 90 days in the county jail as a condition of three years ‟ probation

. The Court of Appeal affir med the judgment . It held that sufficient evidence
sup ported defendant‟s convictions even though there was “neither a stipulation nor expert testimony showing that MDMA meets the definition of a controlled substance or controlled substance analog.” It took judicial notice of scientific
treatises to draw conc lusions about MDMA‟s chemical composition and its relationship to methamphetamine. It further reasoned as a matter of “common
sense” that MDMA ‟s chemical name , which includes the term

“ „ methamphetamine ‟ ” and does “not includ [e] any suffix or term negat ing the

1 Subsequent undesignated statutory references are to the Health and Safety Code.3

inference (e.g., „pseudo‟), ” support ed the inference that the pills defendant sold to
Officer Rubalcava contained some quantity of methamphetamine or amphetamine

. 2
II. DISCUSSION

“ [The] Fifth Amendment right to due process and Sixth Amendment righ t to jury trial .

. . require the prosecution to prove to a jury beyond a reasonable doubt every element of a crime .” ( People v. Sengpadychith (2001) 26 Cal.4th 316,
324 , italics omitted .) “In reviewing a sufficiency of evidence challenge, we view
the ev idence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. ” ( People v. Gonzalez (2012) 54 Cal.4th 643, 6 53.)
The Health and Safe ty Code lists the various substances it controls in five extensive schedules. (§§ 11054

- 11058.) The listings include “official, common, usual, chemical, [and] trade name[s].” (§ 11053.) The code also regulates

“ analogs ” of listed controlled substances (analogs) , as we discuss below. Defendant was convicted of violating s ections 11377 and 11379 , subdivision (a) , which p rohibit the possession and sale, respectively, of various
controlled substance s identified in the schedules. Section 11055, subdivision (d)(1) lists under Schedule II: “[a] mphetamine , its salts, optical isomers, and salts of its optical isomers

. ” Subdivision (d)(2) of that section lists “[ m ] ethamphetamine, its salts, isomers, and salts of its isomers

. ” Subdivision (d)
further provides t hat “any material, compound, mixture, or preparation” containing

2 The Court of Appeal also considered defendant‟s claim that the jury instructions were deficient. We did not grant review on that question. W e observe , however, that neither CALCRIM nor CALJIC contains a standard jury instruction defining “controlled su bstance” and “controlled substance analog” for those substances not enumerated in sec tions 11054 through 11058 . (See e.g., CALCRIM N os. 2300

- 2302 ; CALJIC N os. 12.00

- 12.03.)4

“any quantity” of any listed substance having a “stimulant effect on the central nervous system,” including amphetamine and methamphetamine, is a controlled
substance.
Section 11054 sets out Schedule I substances. It identifies “ 3, 4

- methylenedioxy amphetamine” (MDA) as a controlled substance . (§ 11054, subd. (d)(6).) It further defines as a controlled substance “any material, compound, mixture, or preparation” containing “any quantity” of a ny listed hallucinogenic
substances , including MDA, or any “salts, isomers, and salts of isomers” of such
substances

. (§ 11054, subd. (d).) In 1988, the Legislature added c hapter 6.5 to the c ode to regulate analogs. (Stats. 1988, ch. 712, § 4 , p. 2364 .) It found that controlled substance laws were being circumvented by the use of analogs which “have, are represented to have, or are intended to have effects on the central nervous system which are substantially similar to, or greater than, the controlled substances classified in Sections 11054
and 11055 .

. . . These analogs present grave dangers to the health and safety of the people of this state. Therefore, it is the intent of the Legislature that a controlled substance analog .

. . be considered iden tical, for purposes of the penalties and punishment .

. . to the controlled substance in Section 11054 or 11055 of which it is an analog. ” ( § 11400.)
A n analog is defined as a substance that: (1) has a substantially similar
chemical structure as the cont rolled substance, or (2) has, is represented as having, or is intended to have a substantially similar or greater stimulant, depressant, or hallucinogenic effect on the central nervous system as the controlled substance. (§ 11401, subd. (b) (1) & (2) .) 3

3 Section 11401, subdivision (c) sets forth exceptions to the general definition.5

Th e Health and Safety Code does not list MDMA, 3,4

- methylenedioxymethamphetamine , or Ecstasy as a controlled substance . That
substance can nonetheless fall within the statutory scheme if it (1) contain s any quantity of a controlled substance such as ampheta mine, methamphetamine, or
MDA , or (2) meet s the definition of a n analog. Proof that MDMA qualifie s as a controlled substance or analog is an e lement of the crimes set out in section s 11377 and 11379

. ( People v. Becker (2010) 183 Cal.App.4th 1151, 1155

- 11 56 ( Becker ) .)
The Court s of Appeal have upheld convictions for possession or sale of
MDMA based on expert testimony regarding the chemical composition and effects
of the drug. I n People v. Silver (1991) 230 Cal.App.3d 389 ( Silver ) , the defendant
was convi cted of possession for sale and sale of MDMA. Two prosecution expert s testified that MDMA had a substantially similar chemical structure to methamphetamine, making it an analog. Two defense experts disagreed, testifying that MDMA and methamphetamine were different chemical compounds that had different effects on the user. ( Id . at p p . 392

- 393 .) The Court of Appeal concluded
that the testimony of the prosecution‟s expert s was substantial evidence supporting the jury‟s verdict s

. ( Id . at p. 396.)
In Becker , supra, 183 Cal.App.4th 1151, the defendant was convicted of possessing MDMA. A prosecution investigator testified that MDMA contain s methamphetamine and that it has a stimulant effect on the user that causes an increase in heart rate, adrenaline, and ex citability. It also has a hallucinogenic effect causing the user to become fascinated with bright lights and loud noise. ( Id

. at pp. 1153

- 1155.) T he Court of Appeal held that , from this testimony , the jury could have reasonably concluded that MDMA eithe r contained methamphetamine

or was an analog of that drug

. ( Id . at p p . 1155

- 1156 .)6

As Silver and Becker demonstrate, the jury may find that MDM A is a
controlled substance or analog based on evidence of MDMA‟s chemical composition or its effects on the use r. Here, as the Court of Appeal recognized , the record contains neither a stipulation nor testimony establishing that MDMA meets the definition of a controlled substance or analog. Over defendant‟s objection, the Court of Appeal took judicial notice of

se veral learned treatises. 4 Relying on th em , the court concluded that both methamphetamine and MDMA are derivative s of amphetamine and that “[i]n chemistry, a derivative is a compound that may be produced from another compound in one or more steps.” The co urt also referenced treatises to “verif[y] that MDMA‟s chemical name reflects its component elements, which include methamphetamine and, by extension, amphetamine.” While the Court of Appeal, having referred to outside sources, satisfied
itself that the pills in question qualified as a controlled substance, those sources

were not before the jury. (See People v. Peevy (1998) 17 Cal.4th 1184, 1207.) All the jury had before it was a chemical name not listed in any schedule of the c ode. An appellate court cannot take judicial notice of additional facts the prosecution failed to prove at trial to affirm a conviction. ( People v. Jackson (1992) 7 Cal.App.4th 1367, 1373; accord, United States v. Zepeda (9th Cir. 2013) 705 F.3d 1052, 1064

- 1065.) The critical i nquiry is whether “the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.” ( Jackson v. Virginia (1979) 443 U.S. 307, 318, italics added.)

4 Baer & Holstege, Encyclopedia of Toxicology (2d ed. 2005) page 96; Oxford English Dict ionary Online (3d ed . 2001) <http:// www.oed.com> (as of Oct. 26, 2011); Stedman‟ s Medical Dict ionary (28th ed. 2006) pages 516, 1164, 1196; Zumdahl, Chemical Princip les (2d ed. 1995) page 39.7

We further reject the reasoning of the Court of Appeal and the Attorney
General t hat the jury could rely on “common sense” or “common knowledge” to infer from its chemical name that MDMA contains some quantity of methamphetamine or amphetamine. “An inference is a deduction of fact that may logically and reasonably be drawn from anothe r fact or group of facts found or otherwise established in the action.” (Evid. Code, § 600, subd. (b).) However, “[a] reasonable inference .

. . „may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or gu ess work. [¶] .

. . A finding of fact must be an inference drawn from evidence rather than .

. . a mere speculation as to probabilities without evidence.‟ [Citations.]” ( People v. Morris (1988) 46 Cal.3d 1, 21, quoting California Shoppers, Inc. v. Roya l Globe Ins. Co. (1985) 175 Cal.App.3d 1, 45 ; Morris disapproved on another ground in In re
Sassounian (1995) 9 Cal.4th 535, 543

- 544, fn. 5.) Here, the evidence to support the critical inference was lacking. Nor can the missing facts be deemed a matter of common knowledge. “[F]acts are deemed within the common knowledge of the jury only if they are matters of common human experience or well known laws of natural science.” ( People v. Love (1961) 56 Cal.2d 720, 732, disapproved on another ground in People v. Morse (1964) 60 Cal.2d 631, 637, fn. 2 , 649 .) If the People seek to excuse the production of evidence by urging the fact is one of common knowledge, the following test applies. First, “ is the fact one of common, everyday knowledge in that jurisdiction , which everyone of average intelligence and knowledge of things about him can be presumed to know; and [second,] is it certain and indisputable. ” ( Varcoe v. Lee (1919) 180 Cal. 338, 346

- 347, italics omitted.) “ [I]f there is any reasonable question whate ver as to either point, proof should be required.” ( Id . at p. 347.)8

The fact that t he appellate court and Attorney General rel y on a scientific
treatise to verify that chemical compound names reflect their composition
undermines the conclusion that common knowledge and common sense support
the verdict here. Aside from simple and well known binary compounds such as water (H 2 O ) and carbon dioxide (CO 2 ), we cannot confidently conclude that a lay j uror may draw any reliable inferences solely from a chemical n ame or formula. According to their own source, t he naming of chemical compounds involves a
multi

- step, technical process. ( Zumdahl, Chemical Principles, supra , § 2.9 , pp. 39

- 48 ; id

. , §§ 22.1

- 22.5, pp. 971

- 1003 .) It may be widely accepted within the
scie ntific community, and verifiable by resort to technical reference works , that a chemical name reflects its component elements. Yet many scientifically accepted facts remain far beyond the common knowledge of laypersons. (Cf. Arais v. Kalensnikoff (1937) 10 Cal.2d 428, 431; Melaleuca, Inc. v. Clark (1998) 66 Cal.App.4th 1344, 1356.) Customarily, such information is presented to the jury through qualified witnesses, subject to cross

- examination.
We further note that there appear to be relevant points of de bate. First, t he Attorney General and the Court of Appeal reach their conclusions based on o ne chapter from Zumdahl discussing chemical nomenclature and the process of naming simple inorganic binary compounds. (Zumdahl, Chemical Principles,

supra , § 2.9 , p . 39.) That chapter , however, does not address the process of naming complex organic compounds such as MDMA. ( See i d ., §§ 22.1

- 22.5 , pp. 971

- 1003.) Second, d efendant challenges the Attorney General‟s assertion
that MDMA “ contains ” methamphetamine (§ 11055, subd. (d)), arguing instead that a chemical compound is a new chemical substance in which its constituent
elements cease to exist as distinct entities. T hird, t he experts in Silver disagreed
about whether MDMA has a substantially similar chemical s tructure or effect to qualify as an analog of methamphetamine. ( Silver, supra, 230 Cal.App.3d at9

pp. 392

- 393.) We need not resolve the accuracy of any of these assertions. We simply observe that none of them is so c ertain , indisputable , and commonly kno wn that the appellate court could dispense with the requirement that evidence be presented to prove them. (See Varcoe v. Lee , supra, 180 Cal. at pp. 346

- 347 .) In short, “ the prosecution simply failed to close a[n] .

. . evidentiary gap mandated by the ter ms of the statute

. . . allegedly violated.” ( People v. Acevedo (2003) 105 Cal.App.4th 195, 199.) Because it is not specifically listed in any schedule, e vidence of MDMA‟s chemical name, standing alone, is insufficient to prove that it contains a control led substance or meets the definition of a n analog. 5

“ [T] he matter in issue is

. . . not within the common knowledge of laymen

. ” ( Miller v. Los Angeles County Flood Control Dist. (1973) 8 Cal.3d 689, 702

. ) Thus, it was incumbent on the People to introdu ce competent evidence or a stipulation about MDMA‟s chemical structure or effects

. Without such evidence, there was no rational basis for a jury of laypersons to infer that 3,4

- methylenedioxymethamphetamine contains methamphetamine or amphetamine, or
that it has a substantially similar chemical structure or effect to methamphetamine or amphetamine

. The Court of Appeal erred in concluding that sufficient evidence supported defendant‟s convictions for possession and sale of a controlled
substance

.

5 Conversely, any substance expressly listed by any accepted name in sections 11054 through 11058 is a controlled substance as a matter of law, and the jury need not make any further finding in that regard. ( People v. Medina (1 972) 27 Cal.App.3d 473, 481; see also § 11007 [defining “ controlled substance ” ].)10 III. DI SPOSITION
T he judgment of the Court of Appeal is reversed.

CORRIGAN, J.

WE CONCUR:

CANTIL

- SAKAUYE, C. J. KENNARD, J. BAXTER, J. WERDEGAR, J. CHIN, J. LIU, J.1 CONCURRING OPINION BY CHIN, J.

I concur. The People proved that the blue pills defendant sold to the undercover police officer contained 3,4

- methylenedioxymethamphetamine (MDMA), commonly known as E c stasy, but it failed to prove that MDMA is a controlled substance. Accordingly, defendant‟s convictions of selling and possessing a controlled substance cannot stand. It appears that MDMA is a controlled substance, specifically, that it is
either an analo g of, or contains, a controlled substance, either amphetamine or methamphetamine. ( People v. Becker (2010) 183 Cal.App.4th 1151 , 1155

- 1156 ; People v. Silver (1991) 230 Cal.App.3d 389 , 392

- 396 ; see maj. opn., ante , at pp. 3

- 5 .) But this is so as a matter of fact, not as a matter of law. Whether MDMA is
a controlled substance is not a fact a court or jury can judicially notice. Here, the prosecution elicited from the expert that the substance contained MDMA, but it neglected to establish further that MDMA i s either an analog of or contain s either amphetamine or methamphetamine. Assuming, as the Becker and Silver cases indicate, MDMA is a controlled substance, it is unfortunate that t he prosecution has to prove this fact again and again in every prosecution for possessing or selling it. This problem no longer exists under federal law, because federal law specifically defines MDMA as a
controlled substance. (See U.S. v. Carlson (11th Cir. 1996) 87 F.3d 440, 444

- 445; U.S. v. Raymer (10th Cir. 1991) 941 F.2d 1031, 1045

- 1046.) If the Legislature2

wishes to do so, it can easily follow the federal example by specifically provid ing
that MDMA is a controlled substance.
In the meantime, trial courts will have to be careful to correctly instruct the jury that, as an element of the crime, it has to determine whether MDMA is a controlled substance. The court can easily do this by defining what is a controlled
substance , and a controlled substance analog , for those substances, such as MDMA, that are not specifically enum erated in the relevant statutes. (See maj.
opn., ante , at p. 3, fn. 2.) Moreover, it should be fairly easy to prove that MDMA is a controlled substance, although the prosecutor did not do so in this case. Presumably, most witness es with sufficient exper tise to testify that a substance
contain s MDMA would have sufficient expertise to testify additionally that MDMA is either an analog of or contains amphetamine or methamphetamine. But, unless and until the Legislature acts, prosecutors will have to elicit that additional testimony, and juries will have to make that determination

.
CHIN, J.See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Davis

__________________________________________________________________________________ Unpublished Opinion Original Appeal Original Pro ceeding Review Granted XXX 200 Cal.App.4th 205 Rehearing Granted

__________________________________________________________________________________ Opinion No. S198434 Date Filed: July 25, 2013

____________________________________________________________ ______________________ Court: Superior County: Los Angeles Judge: Barbara R. Johnson

__________________________________________________________________________________ Counsel: Carla Castillo, under appointment by the Supreme Court, and John Raphling, u nder appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka and Lance E. Winters, Assistant Attorneys General, Lawrence M. Daniels, Scott A. Taryle and Stacy S. Schwartz, Deputy Attorneys General, for Plaintiff and Respondent.Counsel who argued in Supreme Court (not intended for publication with opinion):

Carla Castillo 1563 Solano Avenue, PMB 286 Berkeley, CA 94707 (510) 527

- 1948 Stacy S. Schwartz Deputy Attorney General 300 South Spring Street, Suite 1702 Los Angeles, CA 90013 (213) 897

- 2252