[DEPUBLISHED BY ORDER]
APPEAL from a judgment of the Superior Court of
Sacramento County, Lawrence G. Brown, Judge. Affirmed. (Super. Ct. No.
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.
HULL, Acting P.J.
A jury convicted defendant Matthew Dominic Carboni of possession of morphine, hydrocodone and diazepam as well as [166 Cal.Rptr.3d 428] 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.
Defendant sad 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 [166 Cal.Rptr.3d 429] 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 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 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.
[166 Cal.Rptr.3d 430] 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 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 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.
[166 Cal.Rptr.3d 431] 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.
The Scope of the " Prescription Defense"
In this matter, defendant was charged in five counts with violations of former sections 11350, subdivision (a), 11352, ...