Filed 1/3/14
                              CERTIFIED FOR PUBLICATION

                                             COPY

               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                              THIRD APPELLATE DISTRICT
                                        (Sacramento)
                                              ----



THE PEOPLE,                                                      C066518

                 Plaintiff and Respondent,               (Super. Ct. No. 09F07350)

        v.

MATTHEW DOMINIC CARBONI,

                 Defendant and Appellant.




      APPEAL from a judgment of the Superior Court of Sacramento County, Lawrence
G. Brown, Judge. Affirmed.

      Aaron Williams, under appointment by the Court of Appeal, for Defendant and
Appellant.

      Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Senior Assistant Attorney General, Stephen G. Herndon and
Rachelle A. Newcomb, Deputy Attorneys General, for Plaintiff and Respondent.




                                               1
       A jury convicted defendant Matthew Dominic Carboni of possession of morphine,
hydrocodone and diazepam as well as transportation of morphine and hydrocodone. The
court granted Proposition 36 probation but stayed execution pending appellate review.
       At issue here is the statutory interpretation of former Health and Safety Code
section 11350, subdivision (a) (unless otherwise stated, statutory references that follow
are to the Health and Safety Code) former section 11352, subdivision (a), and former
section 11377, subdivision (a). Specifically we are asked to decide whether the so-called
“prescription defense” set forth in those statutes is available to persons other than the
person for whom the prescription was written.
       We hold that it does not and affirm the judgment.

                                FACTS AND PROCEEDINGS
       The Prosecution Case.

       On September 29, 2009, at approximately 11:45 a.m., U.C. Davis Police Officer
Maximiliano Thomas, patrolling a parking structure at the U.C. Davis Medical Center,
heard tires screeching and stopped the car that made the noise. Defendant was driving
the car and, when defendant was unable to provide Thomas with identification, Thomas
placed him under arrest. Thomas then searched defendant and found 207 pills inside a
prescription bottle in defendant’s right front pants pocket. The bottle contained 192
morphine pills, seven hydrocodone pills, and nine diazepam pills. (We note that the total
number of pills described adds to 208; the record does not explain the discrepancy.)
       Thomas described the container in which he found the pills as both an “old-
orange-prescription bottle with a white cap” with a Kaiser label and as a bottle with a
scratched-off label. As Thomas searched the defendant he found $407 (three $100 bills,
four $20 bills, four $5 bills, and seven $1 bills). Officer Thomas then took defendant to
the U.C. Davis booking station where defendant made a tape-recorded statement.




                                              2
       Defendant said the pills belonged to him and identified them as morphine,
“Norcos” (hydrocodone) for pain, and Valium (diazepam) for anxiety. The pills were
later confirmed to be those controlled substances.
       Defendant said he did not have a drug problem, denied selling the pills and told
Officer Thomas the pills were for defendant’s personal use. Defendant did not appear to
be under the influence of any drugs and Thomas did not have defendant tested for any
controlled substances. Defendant denied obtaining the pills at the hospital and said he
had brought the pills with him although he would not say where he had gotten them.
       Initially defendant also said he did not know how many pills were in the container,
but when pressed for a number, defendant agreed that there were over 100, probably
close to 200, morphine pills. Upon later questioning, defendant admitted he did not have
a prescription for the pills.

       The Defense Case.

       Timothy T. testified for the defense and told the jury the pills defendant possessed
were not defendant’s pills--they belonged to Timothy T.
       Timothy T. testified that on September 29, he had packed his household
belongings to move from his home in Orangevale to a home in Fair Oaks. Other people
helped including defendant who was a long time friend.
       Timothy T. had many medical conditions for which he had been prescribed
numerous medications. He had prostate cancer, had suffered strokes in the past, had
sustained a previous head injury, suffered from seizures, and had trouble with
incontinence. His medications included, among others, morphine, hydrocodone and
diazepam. Timothy T. testified that he took at least 30 morphine tablets per day for pain
as needed. He had been prescribed 420 morphine tablets and about 180 Vicodin or Norco
(hydrocodone) tablets per month, and diazepam. He carried half of his morphine
prescription with him in a pill bottle in which he also carried his prescribed hydrocodone


                                             3
and diazepam. He kept multiple kinds of pills--primarily those prescribed for pain--in
one prescription bottle because of the bulk of carrying several bottles in his pockets. He
also kept a list of his prescriptions in his wallet in case he was ever stopped or
questioned.
       On the day of his move, Timothy T. was carrying his pill bottle in his shirt pocket.
A friend accidentally backed a trailer into Timothy T., pinning him against the garage,
leaving a line across Timothy T.’s chest and crushing the pill bottle. When the trailer
moved away, Timothy T. fell and his pills spilled onto the ground. Defendant helped
Timothy T. pick up the pills and Timothy T. gave the pills he had picked up to defendant
to hold until they got to the new house.
       Timothy T. also said that on September 29, 2009, Peggy O. was his caregiver and,
later, his wife. Timothy T. did not recall whether Peggy O. came out to check on him
after the trailer backed into him. He attributed his inability to remember to his head
injury, seizures and many strokes. Timothy T. testified that he asked defendant to hold
his pills for him because he did not know where Peggy O. was at the time and he did not
have anything to put them in. Almost everything in the house, including his empty pill
bottles, had been boxed up. Timothy T. explained that, although defendant had not been
in charge of his pills, defendant was doing Timothy T. a favor by holding onto the pills
because of the accident. Defendant had provided other assistance to Timothy T. in the
past, including picking him up, feeding him, “babysitting” him, and doing all the “manly
things” so Timothy T. would not feel embarrassed.
       The parties stipulated that, as of September 29, 2009, Timothy T. had been
prescribed the following medications: “One Aspirin, one Docusate, six Gabapentin, one
Hydrochlorothiazide, Hydrocodone not to exceed eight pills a day, a half tablet of
Lisinopril, 14 morphine pills, Oxycodone not to exceed four pills a day, half pills of
Paroxetine, six Phenazopyridine pills and two Sennosides pills.” The parties also
stipulated that, based on Timothy T.’s “medical documents and valid prescription,” he

                                              4
was to take hydrocodone one to two tablets every eight hours as needed for pain, not to
exceed eight pills a day, oxycodone as needed but not to exceed four pills a day, and five
morphine pills in the morning, four in the afternoon, and five before bedtime for pain.
When asked about having been prescribed 14 morphine tablets per day as opposed to 30
morphine pills a day he claimed to have been taking, Timothy T. testified that the
dosages prescribed for morphine “changed all the time.”
       Peggy O. also testified to the events of September 29. Peggy O. had been in the
house and ran outside when she heard the accident. As Timothy T.’s care provider, she
coordinated his medications. Timothy T. had more than his usual three- or four-day
supply of pain pills in his pill container on the day of his move because it was not a
normal week due to the move. Timothy T. liked to control his pills, and Peggy O. and
Timothy T. were taking a trip to Oregon after the move.
       Peggy O. said that, after the pills spilled onto the ground, Timothy T. asked her if
she had her purse to put the pills in, but she did not. Since she was wearing “sweats,” she
had no pockets and she could not keep the pills on her person. She went inside to look
for anything they could put the pills in but Timothy T.’s empty, spare pill bottles had
been boxed up for the move. They had no other containers--not even a plastic bag.
       Peggy O. was concerned about children and animals finding the pills on the
ground. She and defendant helped pick up the pills and she gave the pills she picked up
to the defendant because Timothy T. had asked defendant to hold onto them. Peggy O.
did think that perhaps it would be better for her to take the pills inside, but Timothy T.
insisted that defendant take the pills, saying defendant “can handle it just fine.”
According to Peggy O., defendant said he could find something in his car to put the pills
in, but she did not see where the pills were placed.
       Peggy O. testified defendant helped her with Timothy T. “a lot.”
       K.P., a friend of Peggy O.’s, also testified and told the jury she had been helping
with the move. K.P. had just met defendant on the day of the move. While she was

                                              5
inside the house, K.P. heard a commotion, went to the door, and saw Timothy T. on the
ground near a trailer with a lot of people around him. She knew that Timothy T. suffered
from seizures and assumed that is what had occurred. She went back inside and was not
aware at that time that Timothy T. had dropped his pills. Later, as she was leaving and
walking to her car, she saw two pills on the ground. K.P. gave them to Peggy O. and she
and Peggy O. then went out to look for more.
       Defendant testified and told the jury he and others picked up the pills. He further
testified, “They are all Tim’s pills. He is dying of cancer. We want[ed] to give him back
his medication,” so they put the pills in an empty pill container defendant found by some
garbage near the garage. Defendant testified he handed the container of pills they had
picked up to Timothy T. The two of them went to defendant’s car so defendant could
drive Timothy T. to his new home. According to defendant, Timothy T. put the pill
container, along with some other items, on the floorboard of defendant’s car.
       Before they could leave, defendant received a phone call about Ronnie B., a
patient at U.C. Davis Medical Center. Ronnie B. suffered from cancer, was being
discharged from the hospital and needed a ride. Defendant planned to pick Ronnie B. up,
take him to his home, and return to Timothy T.’s home. Timothy T. did not go with
defendant to the hospital. According to defendant, Timothy T. left the pill container on
the floorboard of defendant’s car along with some other items and asked defendant to
take the pills to Timothy T.’s new house. Defendant put the pill container in the glove
box.
       The hospital was not ready to discharge Ronnie B. when defendant arrived
sometime between 11:00 a.m. and 11:20 a.m. After visiting Ronnie B., defendant went
back to his car around 11:45 a.m. He was concerned that he was driving a company car
with someone else’s pills so he put the pill container on the seat, explaining that he could
either claim them or throw them out of the window if stopped by a law enforcement
officer. As he started to leave his parking space, his tires screeched and he was stopped

                                             6
by U.C. Davis Police Officer Thomas. When Thomas waved his flashlight for defendant
to pull over, defendant took the container with the pills off the seat and put it in the
pocket of his pants.
        Defendant testified that he planned to return the pills to Timothy T., but after he
was arrested, he told the officer that the pills were his because he was scared. He was
worried about losing his job and about being in a company car. He did not want the car
to be seized. He admitted it would have been better to tell the officer the pills belonged
to someone else who had a prescription for them, but at the time he thought it would be
better to “just take the blame for them and try to save the company vehicle, not get fired.”
He further testified, “I was willing to take the fall for the pills in order to not have my
bosses and the company brought into this.”
        Defendant was familiar with the medications in the container because he had seen
Peggy O. give them to Timothy T. when Timothy T. asked for them by name. In
addition, defendant had been prescribed both diazepam and hydrocodone in the past; he
had just recovered from a broken ankle. Defendant admitted that he had never been in
charge of dispensing Timothy T.’s pills for him. He further admitted that he used “very
poor judgment” when speaking to Officer Thomas by claiming numerous times that the
pills belonged to him and by refusing to explain where he got the pills.

                                        DISCUSSION
                          The Scope of the “Prescription Defense”
        In this matter, defendant was charged in five counts with violations of former
sections 11350, subdivision (a), 11352, subdivision (a), and 11377 subdivision (a).
        At the time of trial, former section 11350, subdivision (a) provided in relevant
part:




                                               7
       “. . . every person who possesses [certain controlled substances] unless upon the
written prescription of a physician . . . shall be punished by imprisonment in the state
prison.” (Stats. 2000, ch. 8, § 3, p. 50.)
       Similarly, former section 11352, subdivision (a) provided;
       “. . . every person who transports [certain controlled substances] unless upon the
written prescription of a physician . . . shall be punished by imprisonment in the state
prison for three, four, or five years.” (Stats. 2000, ch. 8, § 5, p. 51.)
       Former section 11377, subdivision (a) provided, again in relevant part:
       “. . . every person who possesses [certain controlled substances] unless upon the
prescription of a physician . . . shall be punished by imprisonment in a county jail for a
period of not more than one year or in the state prison.” (Stats. 2008, ch. 292, § 3,
p. 2360.)
       At trial, defendant requested the court instruct the jury on what has come to be
referred to as the “prescription defense.” Specifically, defendant asked the court to add
the word “unlawfully” before the word “possessed” or “transported” in the first element
of each instruction on possession and each instruction on transportation of a controlled
substance. Defendant also asked the court to add to the instructions on both possession
and transportation, an appropriate variation of the language relating to the prescription
defense found in CALCRIM No. 2304 which reads as follows:
       “The defendant is not guilty of possessing [a controlled substance] if (he/she) had
a valid, written prescription for that substance from a physician . . . licensed to practice in
California.” (CALCRIM No. 2304.)
       After much discussion, the trial court refused to so instruct which defendant now
assigns as error.
       The question is whether the prescription defense to possession or transportation of
a controlled substance, available to a person for whom the prescription is written, extends
also to others who possess or transport the controlled substance “consistent with the

                                               8
prescription” or for the benefit of the prescription holder. We are thus asked to construe
the relevant statutory language of former sections 11350 subdivision (a), 11352
subdivision (a), and 11377, subdivision (a).
       The fundamental objective of statutory interpretation is to determine and
effectuate legislative intent. (People v. Trevino (2001) 26 Cal.4th 237, 240.) To
determine such intent, we look first to the words of the statute, giving them their usual
and ordinary meaning. (Id. at p. 241.) When statutory language is clear and
unambiguous, there is no need for construction and courts should not indulge in it.
(People v. Weidert (1985) 39 Cal.3d 836, 843.)
       The statutory language at issue in this matter is clear and unambiguous. As
regularly understood, a prescription identifies both a controlled substance and a specific
patient. Thus, the “person” to whom the language of the statutes applies is the person for
whom the prescription was written. The words, “unless upon the written prescription of a
physician, dentist, podiatrist, or veterinarian,” in the sections at issue here, clearly modify
the act of possession or transportation by the person for whom the prescription is written.
(Former § 11350; see also former §§ 11352, 11377.) It is not enough that the drugs in
question were issued pursuant to a valid prescription, to be possessed or transported later
by anyone with a noncriminal reason for doing so.
       We find support for our view of this matter in the California Supreme Court’s
opinion in People v. Martin (2001) 25 Cal.4th 1180 (Martin). In Martin, the court
considered the scope of the “momentary” or “transitory” possession defense to
possession of controlled substances.
       “In People v. Mijares (1971) 6 Cal.3d 415 (Mijares), this court held that, under
limited circumstances, momentary or transitory possession of an unlawful narcotic for the
sole purpose of disposing of it can constitute a defense to a charge of criminal possession
of the controlled substance. [Citation.] Nearly two decades later, the court in People v.
Cole (1988) 202 Cal.App.3d 1439 (Cole) read our decision in Mijares as holding that

                                               9
‘possession of illegal drugs solely for the purpose of disposal does not constitute
unlawful possession,’ and further concluded the defense ‘is not limited to possession for
“brief moments” only.’ [Citation.]” (Martin, supra, 25 Cal.4th at p. 1182.)
       The Martin court ultimately concluded the holding in Cole was an overly-broad
reading of Mijares. (Martin, supra, 25 Cal.4th at p. 1190.) Noting that case law has
consistently held that the possession of enumerated controlled substances is unlawful
“ ‘without regard to the [possessor’s] specific intent in possessing the substance,’ ” (id. at
p. 1190) the court held that the defense of transitory possession applied only to a
momentary or transitory possession for the purpose of disposal. (Id. at p. 1191.)
       Significantly, the Martin court agreed with the analytical underpinnings of the
Court of Appeal decisions in People v. Sullivan (1989) 215 Cal.App.3d 1446, People v.
Hurtado (1996) 47 Cal.App.4th 805, and People v. Frazier (1998) 63 Cal.App.4th 1307
(Martin, supra, 25 Cal.4th at p. 1190) each of which rejected the expansive reading of
Mijares set forth in Cole. In each of those cases, the Court of Appeal disagreed with
Cole because the Cole holding brought into question the subjective intent of the person
possessing the controlled substances. As stated by the Hurtado court, “. . . expansion of
the [momentary possession] defense to lengthier possession incidental to a defendant’s
‘intent’ to dispose of those items rewrites the statutory requirements by introducing a new
element of ‘specific intent to retain.’ ” (Hurtado, at p. 814.)
       So too here. To accept defendant’s invitation to expand the scope of the
prescription defense to persons other than those for whom the prescription is written so
long as that possession or transportation was consistent with the prescription, rewrites the
statutory requirements of the offenses at issue to add a specific intent to act in a way that
is not consistent with the prescription even assuming those acts which are deemed
consistent with the prescription could be determined in the first place. It would,
moreover, add an element to the offense of possession or transportation to be proved
beyond a reasonable doubt by the prosecution, that is, that the possession or

                                              10
transportation was not consistent with the prescription. Again, adopting the language of
Hurtado, “we are not authorized to so revise the Legislature’s description of a criminal
offense.” (Hurtado, supra, 47 Cal.App.4th at p. 814.)
       Of course this may create something of a legal conundrum, as restriction of the
defense to the person for whom the prescription is written, in theory, makes criminal the
possession and transportation of a prescribed controlled substance dispensed at a
pharmacy to a person intending merely to take the controlled substance to a patient
confined at home. But, if this difficulty is at all significant in practical terms, it is for the
Legislature, not the court, to remedy it.
       Defendant argues that restricting the prescription defense to the person for whom
the prescription was written leads to such absurd results that this cannot be what the
Legislature intended. Perhaps. But we may take guidance from an observation made by
Justice Holmes in the majority opinion he authored in McBoyle v. United States (1931)
283 U.S. 25 [75 L.Ed. 816]. There the question was whether a federal statute outlawing
the interstate transportation of “an automobile, automobile truck, automobile wagon,
motor cycle, or any other self-propelled vehicle not designed for running on rails”
covered the interstate transportation of an airplane. (Id. at p. 26 [75 L.Ed. at p. 818].)
Deciding it did not, Justice Holmes cautioned: “When a rule of conduct is laid down in
words that evoke in the common mind only the picture of vehicles moving on land, the
statute should not be extended to aircraft, simply because it may seem to us that a similar
policy applies, or upon the speculation that, if the legislature had thought of it, very likely
broader words would have been used.” (Id. at p. 27 [75 L.Ed. at pp. 818-819].)
       Defendant also argues that he should have the benefit of the rule of lenity, that is
that the court should construe the statutory language in a light most favorable to
defendant. However, even where statutory language can be read in more than one way,
the rule of lenity does not always apply. (People v. Manzo (2012) 53 Cal.4th 880, 889.)
“Rather, the rule applies ‘ “only if the court can do no more than guess what the

                                               11
legislative body intended; there must be an egregious ambiguity and uncertainty to justify
invoking the rule.” ’ [Citation.] In other words, ‘the rule of lenity is a tie-breaking
principle, of relevance when “ ‘two reasonable interpretations of the same provision stand
in relative equipoise . . . .’ ” ’ [Citation.]” (Ibid.) We do not find the rule of lenity to
apply here.
       Our dissenting colleague places reliance on two Court of Appeal decisions and one
California Attorney General’s opinion.
       In People v. Ard (1938) 25 Cal.App.2d 630 (Ard) the defendant was charged with
and convicted of the possession of morphine and codeine. The defendant, a nurse,
received the drugs for the use in care of a patient who held a prescription for them as the
nurse was escorting the patient to Texas. Some 30 days after their arrival in Texas, the
patient died and the defendant returned to California with the drugs where he was
arrested. Affirming the judgment because the defendant continued to possess the drugs
after the patient’s death, the court observed that “at one time” the defendant came within
the prescription exception, that is, before the patient’s death. Upon the patient’s demise
the prescription exception no longer applied. (Id. at p. 631.)
       Since the question before the Ard court was not whether the prescription defense
was available to the defendant while he cared for the patient during the patient’s lifetime,
we consider the court’s observation that the nurse had the benefit of the prescription
defense “at one time” to be dicta. “ ‘Language used in any opinion is of course to be
understood in the light of the facts and the issue then before the court, and an opinion is
not authority for a proposition not therein considered. [Citation.]’ (Ginns v. Savage
(1964) 61 Cal.2d 520, 524, fn. 2.)” (Elisa B. v. Superior Court (2005) 37 Cal.4th 108,
118.) Even if not dicta, we would respectfully disagree with the court’s observation in
Ard.
       The dissent also relies on language in People v. Wallace (1952) 109 Cal.App.2d
676 (Wallace). There, on July 10, 1950, a visitor at the defendant’s residence had a

                                               12
prescription filled for 36 tablets of dolophine, a drug containing morphine. After the
prescription holder took two tablets, he left, and left the bottle containing the remaining
tablets at the defendant’s residence. Upon finding the bottle, the defendant locked it in a
jewelry box. The police executed a search warrant at the residence on July 26, 1950, and
found the pill bottle by then containing only 27 tablets. (Id. at pp. 677-678.)
       The defendant argued that when a guest legally obtains narcotics and then
inadvertently leaves them in the home of the host who then locks them up for
safekeeping, that act did not constitute an unlawful possession. The court observed that
“[i]f [those] were the facts there might be merit in [the defendant’s] argument.”
(Wallace, supra, 109 Cal.App.2d at p. 679.) But, the trial court found those were not the
facts seen in the light most favorable to the prosecution which were instead, among other
things, that the defendant admitted at the time of the search she knew the bottle contained
dolophine, admitted the bottle belonged to her, admitted that she had consumed some of
the tablets and claimed to have a prescription for the dolophine and that those facts were
sufficient to discount the defendant’s claim of mere safe-keeping for the prescription
holder.
       The Wallace court did say, “If the trial court had believed the testimony that
appellant was merely the involuntary custodian of the tablets inadvertently left in her
home by [the prescription holder], it would have been justified in finding that her
possession was not unlawful.” (Wallace, supra, 109 Cal.App.2d at p. 679.) Once again
we consider these observations dicta and, once again, if not dicta we must disagree with
the court’s statements for the reasons stated earlier in our opinion.
       Finally, defendant invites our attention to an opinion of the Attorney General
which, he argues, supports his reading of the statute. In 1988, the Attorney General was
asked to render an opinion whether a home care companion hired to perform services in
the employer’s home could lawfully administer drugs to or engage in nasogastric tube or
gastrostomy feeding of the employer when the companion is (a) unlicensed and

                                             13
uncertified, (b) a certified nurse assistant, or (c) a certified home health aide. The
Attorney General concluded that “[a] home care companion hired to perform services in
the employer’s home, whether certified as a nurse assistant or home health aide or
uncertified and unlicensed, may lawfully administer non-prescription drugs but not
controlled substances to the employer in the employer’s home; and may not lawfully
engage in nasogastric tube or gastrostomy feeding of the employer in the employer’s
home.” (71 Ops.Cal.Atty.Gen. 190 (1988).)
       During the course of the Attorney General’s analysis, he noted that possession of a
controlled substance is a felony “unless upon the written prescription of a physician.”
The Attorney General then went on to observe “[w]e interpret this clause as removing the
possession proscription on a controlled substance which has been lawfully prescribed for
a patient by a practitioner from the patient and others whose possession of the drug is
consistent with the prescription. (See People v. Ard (1938) 25 Cal.App.2d 630 and
People v. Wallace (1952) 109 Cal.App.2d 676.) This permits a companion to handle a
drug prescribed for his or [her] employer in ways that are consistent with the prescription
short of actual administration of the drug and which do not constitute the practice of
medicine or nursing.” (71 Ops.Cal.Atty.Gen. at p. 193.)
       First of all, we do not find the Attorney General’s observation in this regard
necessary to the opinion he rendered. He was asked whether home health care providers
could administer drugs to their employer (“administer” meaning the direct application of
a drug into the body of a person (71 Ops.Cal.Atty.Gen. at p. 193), not whether they were
authorized to possess them generally. Second, and more importantly, in so opining, the
Attorney General relied on Ard and Wallace which we have decided are not persuasive
on the issue before us. Third, we simply disagree with the Attorney General’s
conclusions on this point for the reasons we have stated herein.
       The trial judge did not err in refusing to instruct the jury on the prescription
defense.

                                              14
                                  DISPOSITION
      The judgment is affirmed.



                                                HULL   , Acting P. J.



I concur:



      ROBIE              , J.




                                      15
MURRAY, J.
           I respectfully dissent.
           At issue here is the statutory interpretation of Health and Safety Code former
sections 11350, subdivision (a)1 and 11377, subdivision (a),2 which provided
that possession of specified controlled substances is not unlawful if the controlled
substance is possessed “upon the . . . prescription of a physician . . .” and former
section 11352, subdivision (a),3 which provided that transportation of a controlled
substance is not unlawful if the transportation is “upon the . . . prescription of a physician
. . . .”
           At trial, defendant presented evidence that the pills belonged to his friend, who
had a valid prescription for them, and that his friend had asked defendant to transport the




1   Undesignated statutory references are to the Health and Safety Code.

  At the time of trial, section 11350, subdivision (a), provided: “Except as otherwise
provided in [Division 10, Uniform Controlled Substances Act], every person who
possesses [morphine or hydrocodone], unless upon the written prescription of a
physician, dentist, podiatrist, or veterinarian licensed to practice in this state, shall be
punished by imprisonment in the state prison.” (Stats. 2000, ch. 8, § 3, p. 50,
italics added.)
2 At the time of trial, section 11377, subdivision (a), provided: “Except as authorized by
law and as otherwise provided in subdivision (b) or Section 11375, or in Article 7
(commencing with Section 4211) of Chapter 9 of Division 2 of the Business and
Professions Code, every person who possesses [diazepam], unless upon the prescription
of a physician, dentist, podiatrist, or veterinarian, licensed to practice in this state, shall
be punished by imprisonment in a county jail for a period of not more than one year or in
the state prison.” (Stats. 2008, ch. 292, § 3, p. 2360, italics added.)
3  At the time of trial, section 11352, subdivision (a), provided: “Except as otherwise
provided in [Division 10], every person who transports [morphine or hydrocodone],
unless upon the written prescription of a physician, dentist, podiatrist, or veterinarian
licensed to practice in this state, shall be punished by imprisonment in the state prison for
three, four, or five years.” (Stats. 2000, ch. 8, § 5, p. 51, italics added.)

                                                 1
pills to the friend’s new residence. Defense counsel initially requested the trial court to
instruct on transitory possession and to add the word “unlawfully” to the instructions on
the charged offenses. He also complained that the prescription defense in CALCRIM
No. 2304 was too narrow, as it applies only to the prescription holder and would result
in absurd consequences. After doing its own research and reviewing People v. Ard
(1938) 25 Cal.App.2d 630 (Ard), People v. Wallace (1952) 109 Cal.App.2d 676
(Wallace), and an Attorney General opinion (71 Ops.Cal.Atty.Gen. 190 (1988)), the trial
court rejected the request to instruct on transitory possession, but stated it would modify
the prescription defense instruction to read, “[t]he defendant is not guilty of possessing [a
controlled substance] if Timothy T[.] had a valid written prescription for that substance
from a physician. And the defendant . . . possessed the [controlled substance] . . . for
purposes consistent with the prescription.” The court indicated there was substantial
evidence to support such an instruction and it would be up to the jury as to whether it
believed the defense story. However, after an additional objection by the prosecution
(which was registered at an unrecorded bench conference), the trial court ultimately
declined to give the modified prescription drug defense instruction or to add the word
“unlawfully” to the instructions on the charged offenses. Defense counsel complained
that this left defendant without a defense and requested the modified prescription defense
instruction. The court declined.
       Defendant contends his possession and transportation of his friend’s pills were
consistent with the prescription his friend had for those pills. He further contends that
the trial court erred in refusing to instruct the jury that possession or transportation of a
controlled substance is not unlawful when the possession or transportation is consistent
with the prescription.
       Unlike the majority, I do not view the statutory language as sufficiently clear to
restrict the prescription defense to the prescription holder. The statute is ambiguous.



                                               2
       Apart from the ambiguity, the unacceptable consequence of the majority’s
statutory construction of these provisions of the California Uniform Controlled
Substances Act (hereafter CSA; § 11000 et seq.) is to criminalize common, everyday
activity involving the handling of prescription medications by someone authorized to
do so by the prescription holder. This result was clearly not intended by the Legislature.
By adhering to principles of statutory construction, considering related statutes and
applying the reasoning of prior decisional law, we can avoid this unintended result by
construing the language, “upon the . . . prescription of a physician” to encompass
possession and transportation of a controlled substance by a person other than the patient
for whom the controlled substance was prescribed when the possession or transportation
is consistent with the prescription. Possession or transportation of a controlled substance
is consistent with the prescription when the possession or transportation benefits the
patient by facilitating the prescribed use of the drug. Any possession or transportation
that does not facilitate the prescribed use of the drug by the patient is inconsistent with
the prescription and is unlawful.
       Because the evidence supported the prescription defense as so construed,
defendant was entitled to an instruction on the defense. The failure to so instruct was
not harmless. Accordingly, I would reverse the judgment.
                                A. Statutory Construction
       1.     General Principles
       “As in any case involving statutory interpretation, our fundamental task here is to
determine the Legislature’s intent so as to effectuate the law’s purpose. [Citation.] We
begin by examining the statute’s words, giving them a plain and commonsense meaning.
[Citation.] We do not, however, consider the statutory language ‘in isolation.’ [Citation.]
Rather, we look to ‘the entire substance of the statute . . . in order to determine the scope
and purpose of the provision . . . . [Citation.]’ [Citation.] That is, we construe the words
in question ‘ “in context, keeping in mind the nature and obvious purpose of the statute

                                              3
. . . .” [Citation.]’ [Citation.] We must harmonize ‘the various parts of a statutory
enactment . . . by considering the particular clause or section in the context of the
statutory framework as a whole.’ ” (People v. Murphy (2001) 25 Cal.4th 136, 142
(Murphy).)
       While we must ordinarily give a plain language reading to the words of a statute, it
has long been a settled principle of statutory interpretation in our state that the language
of a statute should not be given a literal meaning if doing so would result in absurd
consequences which the Legislature did not intend. (See People v. Leiva (2013)
56 Cal.4th 498, 506, 508, 510; People v. Pieters (1991) 52 Cal.3d 894, 898; Younger v.
Superior Court (1978) 21 Cal.3d 102, 113.) Despite the fact that this court has analyzed
the applicability of the absurd consequences exception or otherwise recognized the
existence of this rule on occasions too numerous to cite here (e.g., People v. Fenton
(1993) 20 Cal.App.4th 965, 969), the majority relies on a quotation involving the
statutory interpretation of federal law to avoid application of the exception. (Maj. opn.,
p. 11.) I think Justice Holmes’s observation has no application here. In interpreting the
possession and transportation statutes, we are “obligated to ‘adopt a common sense
construction over one leading to mischief or absurdity.’ ” (In re Greg F. (2012)
55 Cal.4th 393, 410 (Greg F.), italics added.)4




4  When statutory language may reasonably be given more than one interpretation, courts
look to a variety of extrinsic aids, including legislative history, public policy, and the
statutory scheme of which the statute is a part. (People v. Cornett (2012) 53 Cal.4th
1261, 1265 (Cornett); People v. Zambia (2011) 51 Cal.4th 965, 972.) As originally
enacted in 1929, a predecessor statute prohibited possession “excepting upon the
written order or prescription of a physician.” (Stats. 1929, ch. 216, § 1, pp. 380-381.)
However, the available legislative history of the Health and Safety Code possession
and transportation statutes does not expressly address the issue presented here.

                                              4
       2.     Analysis
       The majority concludes that the language of the statutes is unambiguous. They
state that, because a prescription identifies a specific patient, the “person” to whom
the language of the statutory prescription defense applies is necessarily limited to the
patient for whom the prescription is written. However, by the express terms of the
CSA statutes, “person” means the person who possesses or transports the controlled
substance and the statutes do not expressly state that the only “person” who can transport
or possess a controlled substance is the patient. The majority reasons that the language
“upon a prescription” modifies the act of possession or transportation, and therefore legal
possession or transportation is limited to the person for whom the prescription is written.
(Maj. opn., p. 9.) No explanation is offered for this non sequitur. That a prescription
identifies a specific patient does not suffice to limit the defense to the patient. Indeed, as
I explain post, the CSA, as well as statutes governing pharmacies, recognize that a patient
may depend on a household member or other agent or representative to handle the
patient’s prescription drugs.
       Additionally, the majority’s construction that the prescription defense applies
only to the prescription holder leads to absurd results, and we are obligated to avoid
a construction that results in absurdity. (Greg F., supra, 55 Cal.4th at p. 410.) Under
the majority’s construction, common life experiences would be criminalized, such as
the act of a person picking up a prescription from the pharmacy for an ill spouse, or
retrieving medications from a medicine cabinet, or assisting in unscrewing a medicine
bottle, or picking up medications that spill to the ground. Baby boomer adults would be
prevented from obtaining their parents’ medications from the pharmacy, transporting
those medications, and otherwise possessing their parents’ medications for the benefit
of their parents. Friends, neighbors and others who might also assist a patient would
face the same prohibition. A prescription holder who inadvertently leaves a prescribed
controlled substance at the home of an acquaintance, friend or relative, would expose that

                                              5
person to criminal liability.5 “ ‘Statutes must be given a reasonable and common sense
construction in accordance with the apparent purpose and intention of the lawmakers --
one that is practical rather than technical, and that will lead to a wise policy rather than
to mischief or absurdity.’ ” (People v. Clark (1966) 241 Cal.App.2d 775, 780.)
       I fully recognize that establishing public policy is a legislative function, not a
judicial function. (In re Firearm Cases (2005) 126 Cal.App.4th 959, 986.) But in an
apparent attempt to avoid the appearance of establishing policy, the majority has not
taken into consideration the legislative policy reflected in related legislative enactments.
“We must harmonize ‘the various parts of a statutory enactment . . . by considering the
particular clause or section in the context of the statutory framework as a whole.’ ”
(Murphy, supra, 25 Cal.4th at p. 142.) And we may look to related statutory enactments
for insight concerning legislative intent and policy. (See Cornett, supra, 53 Cal.4th at
pp. 1268-1269.) “It is our duty when interpreting statutes to adopt, if possible, a
construction which avoids apparent conflicts between different statutory provisions,
even if the provisions appear in different codes . . . .” (People v. Kennedy (2001)
91 Cal.App.4th 288, 292; see id. at pp. 292-293 (Kennedy) [interpreting the words
“any person” in Bus. & Prof. Code, § 4060 to not be limited to pharmacists].)
       The CSA itself contains a definition of “ ‘[u]ltimate user’ ” of prescribed
controlled substances broader than the prescription holder. That definition includes
“a person who lawfully possesses a controlled substance for his own use or for the use
of a member of his household.” (§ 11030, italics added.) Also included in the CSA is




5 Although the trial court ultimately declined to modify the possession and transportation
instructions here, the court recognized this dilemma. During the instruction conference
the court observed, “these aren’t wild scenarios in terms of prescription drugs, someone
having someone’s prescription drugs. There has to be something where if you are
picking up someone’s prescription for them, if you are a caretaker, or something of that
nature, there’s got to be some legal authority to have it, possess it, transport it, and --”

                                               6
a definition for the word “ ‘dispense,’ ” which includes the delivery of a controlled
substance to an “ultimate user” pursuant to the lawful order of a practitioner. (§ 11010.)
These provisions reflect the Legislature’s intent to allow spouses and others who live
with a patient to possess and transport the patient’s controlled substances.
       Looking to a related statutory scheme for further insight, the Pharmacy Law,
Business and Professions Code section 4060, provides, “No person shall possess any
controlled substance, except that furnished to a person upon the prescription of a
physician . . . .” (Italics added.) As in the Health and Safety Code possession and
transportation statutes, this language does not expressly limit the prescription exception
to the prescription holder.
       On the other hand, other Pharmacy Law provisions expressly allow a pharmacist
to dispense prescribed controlled substances to a patient’s “agent” or “representative”
without requiring that the agent or representative be the patient’s household member who
would qualify as an ultimate user under the CSA.6 (Bus. & Prof. Code, §§ 4059.5,




6 I also note that Pharmacy Board regulations authorized by the Pharmacy Law (Bus. &
Prof. Code, §§ 4001, subd. (a), 4001.1, 4005, 4006) also refer to the patient’s “agent.”
(Cal. Code Regs., tit. 16, § 1707.2 [pharmacist shall provide oral consultation to patient
“or the patient’s agent” unless consultation is refused by patient or agent]; see Huggins v.
Longs Drug Stores California, Inc. (1993) 6 Cal.4th 124, 132 [purpose of consultation
with the patient’s “agent” is “to assure that the pharmacist’s advice is put to good use for
the benefit of the patient”]; Cal. Code Regs., tit. 16, § 1707.1(a)(1)(C) [pharmacy shall
maintain certain information communicated by the patient “or the patient’s agent”]; Cal.
Code Regs., tit. 16, § 1793.1(b) [pharmacist may “[c]onsult with a patient or his or her
agent regarding a prescription” (italics added)]; Cal. Code Regs., tit. 16, § 1714.1(b)
[patient or “patient’s agent” may pick up refills]; Cal. Code Regs., tit. 16, § 1707.4(b)
[“Nothing in this section shall be construed as barring a pharmacy from also filling new
prescriptions presented by a patient or a patient’s agent . . .” (italics added)]; Cal. Code
Regs., tit. 16, § 1711(b) [medication error does not include any variation that is corrected
before furnishing the drug to the patient “or patient’s agent”].)

                                             7
subd. (b), 4075.)7 These provisions show that the Legislature has not intended the absurd
consequences that result from a narrow interpretation of the possession and transportation
statutes and has not intended to limit the possession and transportation of controlled
substances to the person for whom the prescription was written.
       Indeed, a predecessor version of Business and Professions Code section 4060
stated, “No person shall have in possession any hypnotic drug . . . except that furnished to
such person upon the prescription of a physician . . . .” (Bus. & Prof. Code, former
§ 4230, Stats. 1955, ch. 550, § 3, p. 1047, italics added.) In 1996, the wording “such
person” -- which easily lends itself to the narrow construction limiting the authority to
possess the prescribed drugs to the prescription holder -- was changed to “a person,” and
the section was renumbered to the current section 4060, as part of a comprehensive
legislative reorganization of the Pharmacy Law. (Stats. 1996, ch. 890, § 3, p. 4875
(Assem. Bill No. 2802).) The legislative history does not explain the change from
“such person” to “a person.” It indicates the general purpose of the reorganization was
to clarify a “complex and convoluted” law without making substantive changes. (Legis.
Counsel’s Dig., Assem. Bill No. 2802 (1995-1996 Reg. Sess.); Sen. Rules Com., Off.
of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 2802 (1995-1996 Reg.
Sess.) as amended August 8, 1996, p. 2.) The legislative history also reveals the intent




7 Business and Professions Code section 4059.5, subdivision (b) provides: “A
dangerous drug or dangerous device transferred, sold, or delivered to a person within
this state shall be transferred, sold, or delivered only to an entity licensed by the board,
to a manufacturer, or to an ultimate user or the ultimate user’s agent.” (Italics added.)

  Business and Professions Code section 4075 provides: “No prescription for a
controlled substance transmitted by means of an oral or electronically transmitted order
shall be furnished to any person unknown and unable to properly establish his or her
identity. The board may by regulation establish procedures to prevent unauthorized
persons from receiving prescription drugs furnished to a patient or a representative of
the patient.” (Italics added.)

                                               8
to “remove obsolete provisions.” (Assem. Com. on Appropriations, Analysis of Assem.
Bill No. 2802 (1995-1996 Reg. Sess.) as amended May 7, 1996.) Thus, the legislative
history does not support either a construction which would allow persons other than
the patient to possess prescribed drugs or one that limits legal possession to the
prescription holder. But in the context of the various statutes involving prescription
medications, which allow people other than a prescription holder to lawfully handle
the prescription holder’s drugs, I believe it is telling that the Legislature dropped specific
language that more clearly limits the availability of the prescription defense to the
prescription holder.
       Decisional law also suggests the prescription defense is available to persons other
than the prescription holder. (Ard, supra, 25 Cal.App.2d 630; Wallace, supra,
109 Cal.App.2d 676.) I disagree with the majority’s dismissal of these cases.
       In Ard, the defendant was a nurse prosecuted for possessing his patient’s
prescription drugs a month after the patient died. The court in Ard concluded the
defendant’s right to possess ceased upon the patient’s death. (Ard, supra, 25 Cal.App.2d
at p. 631.) “Although appellant did at one time come within the exception that it is
unlawful to possess narcotics ‘except upon the written order or prescription of a
physician and surgeon’, his possession on the day of his arrest--some thirty days after
the death of the patient--was not a possession upon such written order or prescription,
even though he originally obtained the narcotics upon a valid prescription during the
lifetime of his said patient.” (Ibid., italics added.) Even if dictum, as asserted by the
majority, the court’s reasoning in Ard is consistent with the view that possession of a
controlled substance by someone other than the person for whom the controlled substance
is prescribed could be lawful.
       In Wallace, a guest inadvertently left his prescription narcotics in the hotel
room where the defendant resided. Two weeks later the police conducted a search
of the premises and found the pill bottle. When found, the pill bottle contained fewer

                                              9
pills than when left by the guest. Charged with unlawful possession, the defendant
claimed she was the involuntary custodian of her guest’s prescription narcotics.
(Wallace, supra, 109 Cal.App.2d at pp. 677-678.) In a court trial, the trial court found
the defendant guilty of unlawful possession. On appeal, the defendant contended that
when a guest legally obtains narcotics and inadvertently leaves them at the home of his
hostess, the retention of the drugs by the hostess is not unlawful possession. (Id. at
p. 679.) The Court of Appeal observed, “If these were the facts there might be merit in
the argument,” but those were not the facts most favorable to the prosecution. (Ibid.)
The court concluded that despite the guest’s prescription, which could have made the
defendant’s possession lawful, the evidence showed that the defendant had assumed
dominion and control by using some of the pills, so the evidence was sufficient to support
her conviction. (Id. at pp. 679-680.) Specifically, the court stated, “While the accused
may defend on the ground that his possession was lawful because the narcotics were
secured by a prescription issued to him, the fact that the prescription was issued to
another does not conclusively prove that the accused’s possession was lawful. If the
trial court had believed the testimony that [the defendant] was merely the involuntary
custodian of the tablets inadvertently left in her home by [the guest], it would have been
justified in finding that her possession was not unlawful. But it was not required to
believe that testimony. . . . In the instant case the trial court was justified in believing
that, even if [the guest] did leave the narcotics in [the defendant’s] possession
inadvertently, [the defendant] assumed control, dominion and possession of them for the
purpose of using them herself. This would render her possession unlawful. [¶] . . . Even
if [the defendant’s] possession . . . was originally lawful, by her exercising dominion over
the tablets and consuming some of them, her possession became unlawful.” (Id. at
pp. 679-680.) Thus, Wallace suggests that possession of prescribed drugs for purposes of
safekeeping by someone other than the patient is lawful, but if that person converts the
drugs for her own purposes, the possession is unlawful.

                                               10
       This view is supported by a 1988 Attorney General opinion referenced by the trial
court in this case, but now effectively disavowed by the People and criticized by the
majority. The Attorney General opinion relied, in part, on Ard and Wallace when asked
to consider whether a home care companion who was not a health care professional could
lawfully administer drugs to the employer. (71 Ops.Cal.Atty.Gen. 190 (1988).) The
Attorney General concluded a home care companion hired to perform services in the
employer’s home, whether certified as a nurse assistant or home health aide or uncertified
and unlicensed, could not lawfully administer controlled substances to the employer but
could lawfully possess the controlled substances when that possession is “consistent with
the prescription,” e.g., picking up the drugs at the pharmacy and transporting them to the
employer’s home at the employer’s request. (Id. at pp. 191-193.)
       Additional support for a construction including within the scope of the California
prescription defense a patient’s agent who possesses or transports the drugs for the
patient’s benefit can be found in federal case law construing the federal Controlled
Substances Act’s prohibition against possession of controlled substances unless obtained
“pursuant to a valid prescription.” (21 U.S.C. § 801 et seq., see § 844(a); United States v.
Forbes (D.C. Cir. 1975) 515 F.2d 676 (Forbes).) While federal law does not control
our interpretation of California statutes (People v. Mower (2002) 28 Cal.4th 457, 465,
fn. 2 (Mower)), federal cases interpreting federal law may provide guidance in our
interpretation of California statutes that have language and objectives parallel to the
federal statutes (Building Material & Construction Teamsters’ Union v. Farrell (1986)
41 Cal.3d 651, 658 [labor relations law]). California enacted the CSA in 1972 (Stats.
1972, ch. 1407, p. 2987 et seq.) to bring California into substantial conformity with
the federal Controlled Substances Act, specifically with respect to federal schedules
classifying controlled substances (Kennedy, supra, 91 Cal.App.4th at p. 296 [“overall
purpose of the Health and Safety Code revision was to harmonize state and federal drug
laws”]; accord, People v. Lazenby (1992) 6 Cal.App.4th 1842, 1845 [“California Uniform

                                             11
Controlled Substances Act was enacted to bring California into substantial conformity
with the federal law”]; 2 Witkin, Cal. Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 84, 86, pp. 726, 729).
       Section 844(a) of title 21 of the United States Code provides in pertinent part,
“It shall be unlawful for any person knowingly or intentionally to possess a controlled
substance unless such substance was obtained directly, or pursuant to a valid prescription
or order, from a practitioner, while acting in the course of his professional practice . . . .”
(Italics added.) This language is not identical but is similar to the California statutes
allowing possession “upon the” prescription of a physician. (Health & Saf. Code, former
§§ 11350, subd. (a), 11352, subd. (a), 11377, subd. (a).) I have found no case that
construes the words “person” and “prescription” in this statute as the majority construes
those words here.
       To the contrary, in Forbes, the D.C. Circuit Court interpreted the federal
prescription defense and held “in the case of someone other than the patient named in the
label, possession can be pursuant to the prescription only if he is acting on behalf of the
patient and in the course of carrying out the purpose of the prescription, i.e., if he is
acting as the agent of the patient. This latter result flows from the general rule of law
that whatever any person is legally capable of doing himself, he can do through another
as his agent. Since the patient can lawfully possess drugs issued pursuant to a
prescription in his name, it should follow that he can lawfully authorize another to
possess the drugs as his agent for purposes consistent with the prescription. It is of
course true that Congress did not specifically state that this type of agency relationship is
a valid defense to a charge of unlawful possession of a controlled substance, but we are
convinced that the necessity for the patient to create such relationships is sufficiently
common that Congress could not have reasonably contemplated that possession by an
agent of the patient in the course of carrying out the purpose of the prescription would be



                                              12
unlawful under section 844(a).” (Forbes, supra, 515 F.2d at pp. 680-681, some italics
added, fns. omitted.)
       Like the court in Forbes, I conclude that the necessity for the patient to allow
other people to possess and transport prescription medications is sufficiently common
that our Legislature could not reasonably have contemplated that possession or
transportation by a person so authorized by the patient would be unlawful as long as
the possession or transportation is consistent with the prescription. Indeed, as I have
noted, related California statutes allow the patient’s “agent” (Bus. & Prof. Code,
§ 4059.5, subd. (b)) or “representative of the patient” (Bus. & Prof. Code, § 4075)
to possess the patient’s prescribed medications.
       Other states apply the prescription defense to the patient’s agent. (E.g., McCoy v.
State (Fla.App. 2010) 56 So.3d 37 (McCoy).) California courts may find the decisions
of courts in sister states to be persuasive where similar statutes are at issue. (Albers v.
County of Los Angeles (1965) 62 Cal.2d 250, 269.)
       In McCoy, the defendant carried her husband’s pills because his work clothes
lacked pockets. The Florida statute provides that “ ‘It is unlawful for any person to be in
actual or constructive possession of a controlled substance unless such controlled
substance was lawfully obtained from a practitioner or pursuant to a valid prescription or
order of a practitioner . . . .’ ” (McCoy, supra, 56 So.3d at p. 39, quoting Fla. Stats.
§ 893.13(6)(a).) The Florida District Court of Appeal construed “lawfully obtained” as
authorizing possession by persons who have a legally recognized reason for the
possession. (McCoy, supra, 56 So.3d at p. 39.) As in California, Florida statutes
governing pharmacies allow pharmacies to dispense medications to a patient or the
patient’s agent. (Ibid.) Noting that the defendant asserted she was holding her husband’s
pills on his behalf, the court reasoned that, if true, the defendant’s assertion established an
agency relationship authorizing the defendant’s possession of the pills. (Ibid.; see also
Ayotte v. State (Fla. App. 2011) 67 So.3d 330 [a defendant who was holding his

                                              13
girlfriend’s prescribed pills because she had no pockets in her evening attire was entitled
to a prescription defense instruction].)
       The court in McCoy noted case law from Utah and Missouri holding that the
prescription defense applied to persons other than the prescription holder. (McCoy,
supra, 56 So.3d at p. 39.) In State v. Miller (Utah 2008) 193 P.3d 92 (Miller), the Utah
Supreme Court reversed a conviction for failure to instruct on an “innocent possession”
defense where a homeowner cleaning up after a party possessed a pill bottle left behind
by a guest, intending to return it to the guest. (Miller, supra, at pp. 93-94, 95.) The court
held that the innocent possession defense allows for the temporary possession of a
controlled substance for the purpose of returning it to its lawful owner. (Miller, supra,
193 P.3d at p. 97.) In State v. Blocker (Mo. 2004) 133 S.W.3d 502 (Blocker), the
defendant was charged with the possession of a controlled substance he claimed had been
prescribed to his grandmother. That state’s prescription defense statute provided, “A
person may lawfully possess or have under his control a controlled substance if such
person obtained the controlled substance directly from, or pursuant to, a valid
prescription or order of a practitioner.” (Id. at p. 504.) The Missouri Supreme Court
held that the language “pursuant to” a valid prescription could provide a defense for
people who share a household with the prescription holder because the pharmacy law in
that state (like that in California) allowed drugs to be dispensed to an “ultimate user,”
defined as the patient or a household member. (Blocker, supra, at pp. 504-505.)
       The courts in Miller and Blocker pointed out absurd consequences that could
result if only the prescription holder could assert the prescription defense, e.g., a daughter
who no longer lives with her mother but picks up the mother’s prescription and drives it
to the mother’s home (Miller, supra, 193 P.3d at p. 96) or a husband or wife who has
constructive possession of a spouse’s drugs kept in their shared bathroom medicine
cabinet (Blocker, supra, 133 S.W.3d at p. 505).



                                             14
       Here, the People argue that, even if the prescription defense were construed to
apply to possession consistent with the prescription, it would not apply in this case, where
defendant was not the prescription holder’s “caregiver” and was not transporting the
drugs from the pharmacy to the holder’s home. But I see no reason to limit “possession
. . . consistent with the prescription” to those scenarios.
       Based on the authorities I have discussed, I would construe the statutory language
in former sections 11350, subdivision (a), 11377, subdivision (a) and 11352, subdivision
(a) -- “upon the . . . prescription of a physician” -- to mean that the possession or
transportation of the controlled substance must be consistent with the prescription.8
Based on the same authorities, I conclude that possession or transportation of a controlled
substance is consistent with the prescription when that possession or transportation
benefits the prescription holder by facilitating the prescribed use of the drug. Such
possession or transportation is lawful. On the other hand, any possession or
transportation that does not facilitate the prescribed use of the drug by the prescription
holder is inconsistent with the prescription and is unlawful.
       For example, if the defendant uses, sells, or gives the drug away or deprives the
patient of the benefit for which the medication was prescribed, even if the patient



8   I do not base my interpretation of the statutes on the rule of lenity construing criminal
statutes in the defendant’s favor, as urged by defendant. The rule of lenity applies
“ ‘ “only if the court can do no more than guess what the legislative body intended;
there must be an egregious ambiguity and uncertainty to justify invoking the rule.” ’
[Citation.] In other words, ‘the rule of lenity is a tie-breaking principle, of relevance
when “ ‘two reasonable interpretations of the same provision stand in relative equipoise
. . . .’ ” ’ [Citation.]” (People v. Manzo (2012) 53 Cal.4th 880, 889.) There is egregious
ambiguity and uncertainty here with regard to the question of whether the Legislature
intended to limit the prescription defense to the person who holds the prescription. Yet,
if the Legislature intended to apply the prescription defense to someone other than the
prescription holder, it must still be determined to whom the Legislature intended the
defense to apply and under what circumstances. Thus, the issue presented here cannot be
resolved by simply applying the rule of lenity.

                                              15
authorized the defendant to do so, such conduct would not be consistent with the
prescription and is unlawful. Wallace is an example of conduct that deprived the patient
of the beneficial use of the prescribed medication. Also, even if the defendant or a third
person does not benefit, possession or transportation would not be consistent with the
prescription unless the prescribed use of the drug by the prescription holder is facilitated.
Ard is one example of such conduct.
       I would also conclude that the question whether possession or transportation
is consistent with the prescription is a question to be determined by the trier of fact.
A defendant need only raise a reasonable doubt as to whether the possession or
transportation is lawful because the possession or transportation is consistent with the
prescription. The ultimate burden is on the prosecution to prove the possession or
transportation is unlawful. (Mower, supra, 28 Cal.4th at pp. 479-483 [a defendant need
only raise a reasonable doubt about whether his or her possession of the drug is lawful
because of a valid prescription]; People v. Montalvo (1971) 4 Cal.3d 328, 333, fn. 3.)
       Whether the evidence supports an instruction on this defense should be determined
by the usual rules. The trial court should simply determine whether there is sufficient
evidence for a reasonable jury to find in favor of defendant, i.e., whether there is
sufficient evidence, if believed, to raise a reasonable doubt. (People v. Salas (2006)
37 Cal.4th 967, 982-983 (Salas).) The court must make this determination without
reference to the credibility of witness testimony supporting the defense. (Ibid.; see also
People v. Trippet (1997) 56 Cal.App.4th 1532, 1549-1551 [even though the chance that
the defendant would prevail in convincing a jury that her transportation of two pounds of
marijuana was for her personal medical use was “remote,” the defendant was entitled to
an instruction on that point].)
       Contrary to the majority view, construing the prescription defense to include
possession or transportation by the prescription holder’s agent for the prescription
holder’s benefit does not add a specific intent element to the statutes. The authority

                                              16
cited by the majority, People v. Martin (2001) 25 Cal.4th 1180 (Martin), held that
the defense of “transitory” possession of drugs for the sole purpose of disposal could
not be expanded to include nontransitory possession, because to do so would inject a
new element of specific intent to retain.9 (Id. at pp. 1182, 1190-1191.) However,
application of the prescription defense to possession or transportation by a prescription
holder’s agent consistent with the prescription contemplates that the trier of fact will
determine whether the possession or transportation is objectively consistent with the
prescription. A defendant’s stated intent, as well as that of the person for whom the
controlled substance is prescribed and other factual circumstances are all considerations
for the jury. But that does not convert the offenses from general intent to specific intent
crimes. Indeed, Martin supports the proposition that general intent possession crimes
may be defended on grounds of innocent intent.
       In Martin, our high court addressed the parameters of the transitory or momentary
possession defense, reaffirming its holding in People v. Mijares (1971) 6 Cal.3d 415,
419, 422 (Mijares), that the possession has to be both momentary and for the purpose of
disposal for the defense to apply. (Martin, supra, 25 Cal.4th at p. 1191.) Martin stated,
“ ‘When a defendant relies on the Mijares defense, he or she essentially admits the
commission of the offense of simple possession of narcotics: The defendant exercised
control over the narcotics, he or she knew of its nature and presence, and possessed a
usable amount. [Citation.] However, the defendant additionally asserts that he or she
possessed the narcotics for the limited purpose of disposal, abandonment, or destruction.
Mijares does not serve to negate an element of the offense of possession of narcotics.
Instead, it offers a judicially created exception of lawful possession under certain specific




9 The transitory possession defense does not apply here, because defendant did not
intend to dispose of the drugs, and his possession was not transitory.

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circumstances as a matter of public policy, similar to the defenses of entrapment and
necessity.’ ” (Martin, supra, 25 Cal.4th at p. 1191, italics added.)
        Similarly, a construction applying the prescription defense to the prescription
holder’s agent or representative does not convert the offenses of possession and
transportation of controlled substances to specific intent crimes. Defendant intentionally
exercised control over the pills, knew what they were and knew that he possessed
them, and there was clearly a usable amount. Thus, similar to Mijares, defendant here
essentially admits all the elements of the possession and transportation offenses, but
asserts his conduct was innocent, because his possession and transportation were
consistent with the prescription, and thus, fall within the legislative exception, “upon the”
prescription of a physician. (Former §§ 11350, subd. (a), 11377, subd. (a), 11352, subd.
(a).)
                                 B. Substantial Evidence
        There remains the question whether the requested instructions were supported here
by substantial evidence -- evidence which, if believed by a rational jury, would have
raised a reasonable doubt as to whether defendant unlawfully possessed or transported his
friend’s prescription medications. (Salas, supra, 37 Cal.4th at pp. 982-983; People v.
Mentch (2008) 45 Cal.4th 274, 288.)
        I conclude there is sufficient evidence from which a rational jury could conclude
defendant possessed and transported the pills for the benefit of the prescription holder, his
friend Timothy T., to facilitate the later use of those medications by Timothy. Defendant
had the pills only because Timothy asked him to take the pills to Timothy’s new home
during the course of the move. Defendant knew Timothy had cancer and wanted
Timothy to have his pills. There is no evidence defendant used any of the pills or
otherwise possessed or transported the pills for his own benefit. Although defendant was
not Timothy’s regular care provider, defendant had helped care for Timothy in the past.
And Timothy’s regular care provider, Peggy O., had nowhere to keep the pills. Timothy

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testified he was the owner of the pills found on defendant, and it is undisputed that
Timothy had valid prescriptions. While it would be up to the jury to decide whether,
under the totality of the circumstances, defendant’s possession or transportation while off
on a side trip was at that time benefiting Timothy by facilitating the prescribed use of the
drugs, the evidence, if believed, could have raised a reasonable doubt on that point.
                               C. Harmless Error Analysis
       Defendant claims the error here was prejudicial because he relied on a defense
on which the trial court refused to instruct. Citing People v. Wright (2006) 40 Cal.4th 81,
98 [where our high court declined to decide which harmless error standard applies to a
trial court’s failure to instruct on a defense], the People argue that any error here was
harmless under either Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705]
(whether the error was harmless beyond a reasonable doubt) or People v. Watson (1956)
46 Cal.2d 818, 836 (whether it is reasonably probable a result more favorable to
defendant would have been rendered in the absence of the error). I would conclude the
error was not harmless under either standard.
       The People contend that “the jury could not have found that [defendant] possessed
or transported the controlled substances in a manner consistent with the prescription,”
noting that three different drugs belonging to Timothy T. were in an unmarked pill
container, defendant was not Timothy’s caretaker, he was not transporting the pills from
the pharmacy or to Timothy’s home, and defendant was not an involuntary custodian
since Timothy had asked defendant to hold the pills for him. Further, defendant knew his
possession was unlawful, having told the officer that the drugs belonged to him, and only
claiming at trial that the drugs belonged to Timothy and that he planned to return them.
       The People ignore that during deliberations, the jury repeatedly asked, and only
asked, about wrongful intent. The jury first asked for clarification on general intent and,
before receiving an answer to that question, asked “If . . . we may consider no wrongful
intent: [¶] . . . [¶] Is there a timeline for no wrongful intent[?]” (Original underscoring.)

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The court’s answer to the jury’s first question reiterated the principle of general intent
and said there need not be an intent to break the law. After providing its answer to the
first question, the court informed the jury that the second question would be answered if
the jury still had questions. Thereafter, the jury requested readback of the testimony of
Officer Thomas and defendant, but then asked for a response to its second question. The
court’s answer to the second question was that the instructions required proof of the
union of act and wrongful intent, and if the jury found the elements of the offenses
proven beyond a reasonable doubt, it must also find that defendant intended to commit
the acts when they were committed. The jury returned its verdict shortly after the court
responded to the jury’s last inquiry.10 The deliberations clearly focused on issues related
to the defense defendant sought to advance -- a defense for which there was no basis in
the instructions the jury received.11 Indeed, during closing argument, the prosecutor
capitalized on this circumstance, conceding that defendant “[p]robably . . . came into
possession of the pills [be]cause they broke on Mr. T[.], and Mr. T[.] handed them to
him,” but arguing that under the law given to the jury, it did not matter whether the jurors
believed defense witnesses. (See People v. Garceau (1993) 6 Cal.4th 140, 189 [in
concluding there was no reversible error, the court considered the arguments of counsel
and whether the jury sought clarification of the instructions challenged on appeal].) Yet,
the jury could have believed that defendant and the defense witnesses were telling the
truth at trial, that defendant told the officer the drugs were his to prevent a company car



10 The record is not entirely clear on the timing. The jury requested the readback at
3:30 p.m. The record does not indicate the time that the jury asked that its second
question be answered or the time the court provided its response. However, at 4:57 p.m.,
the jury announced it had reached verdicts.
11 I do not rely on defense counsel’s declaration in support of the motion for new trial,
in which he memorialized concerns expressed by a juror at the end of the trial. That
declaration is inadmissible. (Evid. Code, §§ 1150, 1200.)

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from being seized and losing his job, and that Timothy T.’s prescribed use of the drug
was facilitated by defendant taking custody of the drugs. The instructions, nevertheless,
compelled the jury to convict defendant.
      I would conclude the error was not harmless and reverse the judgment.


                                                       MURRAY               , J.




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