APPEAL from the Superior Court of Riverside County. Michele D. Levine, Judge. Affirmed. (Super. Ct. No. RIF138999).
The opinion of the court was delivered by: King J.
CERTIFIED FOR PUBLICATION
Defendant Walter Becker was convicted of numerous offenses stemming from an assault he perpetrated against Pauline and Rudy Neitz in the Neitz's Rubidoux apartment on April 4, 2007. Following the incident, police apprehended defendant and found various drugs in his possession, including 10 tablets of the drug MMDA, commonly known as Ecstasy.
As pertinent to this appeal, defendant was charged in count 5 with possession of "Ecstasy" for sale (Health & Safety Code, § 11378)*fn1 and was convicted of the lesser included offense of simple possession of Ecstasy (§ 11377). Defendant was sentenced to 12 years in prison, including eight months on count 5.
Defendant claims insufficient evidence supports his conviction for possession of Ecstasy because Ecstasy is neither a controlled substance nor an analog of any controlled substance for purposes of section 11377. He further argues he was deprived of his due process right to notice of the charge in count 5 because the information did not indicate he would be prosecuted based on the theory that Ecstasy is an analog of a controlled substance for purposes of section 11378 or 11377. We reject these claims.
On April 3, 2007, Pauline and Rudy Neitz and several children were living in an apartment in Rubidoux. That day, defendant's digital camera was taken from a nearby apartment, and "some kids" told defendant that Pauline's four-year-old niece had taken it. Defendant went to the Neitz's apartment and asked Pauline to ask her niece whether she had the camera. Pauline agreed to ask her niece about the camera.
Around 10:00 p.m. on April 4, defendant came back to the Neitz's apartment and asked Pauline whether she had found his camera. Pauline told him they had not found his camera, though they had searched for it in their apartment. Defendant took a pistol from his sweat jacket, held it in the palm of his hand, and showed it to Pauline. Rudy then stepped in front of Pauline and began arguing with defendant. Pauline went into the kitchen and called 911.
While Pauline was on the phone with the 911 dispatcher, defendant pointed the gun at Rudy and the two men "started fighting." Defendant struck Rudy several times with the gun. Rudy heard Pauline yell, "[w]atch out," and a shot rang out. At that point, defendant ran out the apartment door and down the stairs. Rudy was angry and chased defendant down the stairs. Near the bottom of the stairs, defendant turned, pointed the gun at Rudy again, and said, "You better watch your back." Rudy stopped chasing defendant and went back to his apartment to check on his family.
Later that evening, sheriff's deputies apprehended defendant a short distance from the Neitz's apartment. In defendant's pants pocket, they found a plastic bag containing separate baggies of marijuana, rock cocaine, and 10 Ecstasy pills. Criminalist Kristen Rager testified that Ecstasy is the street name for "3, 4-methylenedioxymethamphetamine or MDMA." She tested two of the 10 pills found in defendant's possession and found they contained MDMA.
Investigator Bender testified concerning the effects on an individual who would take an Ecstasy tablet. He said: "It's initially much like cocaine. It's methyldioxy methamphetamine, that is what MDMA is. So from the methamphetamine, logically it's a stimulant, so you would get a dramatically raised heart rate, your heartbeat would go to 120, 130 beats per minute. You would be infused with adrenaline, norepinephrine.... your pupils would dilate and become very large. You would be very excited...." ...