Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Francisco City and County Super. Ct. No. 200137
NEEDHAM, J.
Maurice Brown appeals from a judgment entered after he was convicted of possessing cocaine base for sale and sentenced pursuant to Health and Safety Code section 11351.5. Brown contends he was denied equal protection and substantive due process because possessors of cocaine base for sale are punished more severely than possessors of cocaine powder for sale (Health & Saf. Code, § 11351). We will affirm the judgment.
I. FACTS AND PROCEDURAL BACKGROUND
Brown was charged with possession of cocaine base (cocaine, schedule I) for sale (Health & Saf. Code, § 11351.5). It was further alleged that Brown had three prior convictions (§ 11370), two prior drug convictions (§ 11370.2), and two prior prison terms (Pen. Code, § 667.5, subd. (b)). Because the issues on appeal pertain only to the constitutionality of his sentence, we need not summarize the factual circumstances giving rise to his arrest and conviction.
Except where otherwise indicated, all statutory references are to the Health and Safety Code.
A jury found Brown guilty as charged in January 2007. Brown admitted both prior drug convictions. In March 2007, he was sentenced to an aggregate term of 10 years, comprised of the middle term of four years under section 11351.5, plus two three-year terms for his two prior drug convictions (§ 11370.2, subd. (a)).
This appeal followed.
II. DISCUSSION
Brown contends he was denied equal protection and substantive due process “by the disparity in sentencing under the state laws created to punish crack cocaine possessors as opposed to powder cocaine possessors,” and his conviction should be reversed. Because he was convicted of not mere possession, but possession for sale, his actual objection is to the harsher punishment for those who possess cocaine base for sale (§ 11351.5), compared to the punishment for those who possess powder cocaine for sale (§ 11351).
A. The Statutory Scheme
Possession of cocaine base for sale is prohibited by Health and Safety Code section 11351.5, which applies to “every person who possesses for sale or purchases for purposes of sale cocaine base which is specified in paragraph (1) of subdivision (f) of Section 11054.” Cocaine base is categorized as a schedule I drug. (Health & Saf. Code, § 11054, subd. (f)(1).) The possession of cocaine base for sale is punishable “by imprisonment in the state prison for a period of three, four, or five years.” (§ 11351.5.)
Cocaine base, as used herein and as targeted by section 11351.5, refers to the isomer of cocaine commonly known as crack or rock cocaine. (See People v. Howell (1990) 226 Cal.App.3d 254, 260-262.) Brown’s use of the term cocaine powder refers to cocaine hydrochloride. (See ibid.)
“Cocaine, except as specified in Section 11054” is a schedule II drug. (§ 11055, subd. (b)(6).) Thus, possession of powder cocaine for sale is prohibited by Health and Safety Code section 11351, which applies to “every person who possesses for sale or purchases for purposes of sale (1) any controlled substance . . . specified in subdivision (b) . . . of section 11055.” The possession of powder cocaine for sale is punishable “by imprisonment in the state prison for two, three, or four years.” (§ 11351.)
The question, therefore, is whether it is unconstitutional to punish one who possesses for sale cocaine base, a schedule I drug, with three, four, or five years in prison, while punishing one who possesses for sale cocaine powder, a schedule II drug, for two, three, or four years in prison. Brown brings both a facial challenge and an as-applied challenge.
Respondent contends that Brown forfeited his constitutional challenge by failing to object in the trial court. Brown counters that a facial challenge to a statute does not require scrutiny of the facts and therefore is not forfeited. (See In re Sheena K. (2007) 40 Cal.4th 875, 885.) As to both his facial challenge and his as-applied challenge, we note that Brown’s argument is a legal one based on undisputed facts such as his conviction and prison term. We will therefore consider the issues Brown has raised.
“A facial challenge to the constitutional validity of a statute or ordinance considers only the text of the measure itself, not its application to the particular circumstances of an individual.” (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084 (Tobe).) Under a facial challenge, the claimant “ ‘must demonstrate that the act’s provisions inevitably pose a present total and fatal conflict with applicable constitutional prohibitions.’ ” (Ibid.)
As a threshold matter, respondent argues that Brown cannot pursue a facial challenge, because possession for sale of powder cocaine is punishable by three or four (or two) years’ imprisonment (§ 11351), while possession for sale of base cocaine is punishable by three or four (or five) years’ imprisonment. (§ 11351.5.) Since a person who possesses cocaine base for sale can receive three or four years, as can a person who possesses cocaine powder for sale, it is not inevitable that a person convicted of possession of cocaine base for sale will receive a longer sentence than a person convicted of possession of cocaine powder for sale, and respondent thus urges that Brown cannot show the “ ‘act’s provisions inevitably pose a present total and fatal conflict with applicable constitutional prohibitions.’ ” (Tobe, supra, 9 Cal.4th at p. 1084, italics added.)
We disagree. The middle term in section 11351.5 will always be higher than the middle term under section 11351; similarly, the upper and lower terms under section 11351.5 will always be higher than their counterparts in section 11351. Thus, given the aggravating and mitigating factors for any particular defendant, and assuming those factors would be weighed the same whether the defendant was convicted of possessing cocaine base for sale or cocaine powder for sale (the parties making no argument to the contrary), the defendant would always receive a longer sentence under section 11351.5 than he would under section 11351.
Respondent next argues that Brown’s as-applied challenge fails, because Brown received a term of four years, which he could have received if he had been convicted of the cocaine-powder offense. Having received a sentence also available to one who possesses cocaine powder for sale, respondent insists, Brown has not shown he was treated differently. Again, we must disagree. The sentencing court found that the middle term should be applied. Under section 11351.5, that was four years. If the sentencing scheme of section 11351 had applied, it would have been three years. We therefore turn to the substance of Brown’s constitutional claims.
B. Equal Protection
The equal protection clause of the Fourteenth Amendment of the United States Constitution requires, essentially, that persons similarly situated must receive like treatment under the law, unless a sufficient government interest justifies disparate treatment. Brown’s equal protection challenge fails because (1) those who possess cocaine base for sale are not similarly situated with those who possess cocaine powder for sale; and (2) there is a rational basis for sentencing a defendant convicted of possession for sale of cocaine base to a longer term than a defendant convicted of possession for sale of powder cocaine.
1. Similarly Situated
“ ‘The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.’ ” (People v. Hofsheier (2006) 37 Cal.4th 1185, 1199 (Hofsheier).) The inquiry is not “ ‘whether persons are similarly situated for all purposes, but “whether they are similarly situated for purposes of the law challenged.” ’ ” (Id. at pp. 1199-1200, internal quotation marks omitted.)
Cocaine base is a schedule I drug, while cocaine powder is a schedule II drug. “A controlled substance must be placed in schedule I if (a) it has a high potential for abuse; (b) it has no currently accepted medical use in treatment in the United States; and (c) it lacks accepted safety for use under medical supervision.” (2 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Crimes Against Public Peace and Welfare, § 64, p. 573.) A schedule II drug “(a) [] has a high potential for abuse; (b) it has a currently accepted medical use in treatment in the United States or a currently accepted medical use with severe restrictions; and (c) abuse of the substance may lead to severe psychological or physical dependence.” (Id. at p. 574.) Thus, cocaine base and cocaine powder, although both cocaine, are distinct: cocaine base has no current use for medical treatment in this country and is even deemed unsafe to use under medical supervision.
Brown cites Howell, supra, for the proposition that cocaine hydrocholoride (powder) and cocaine base are both cocaine. (See Howell, supra, 226 Cal.App.3d at p. 261.) Actually, Howell states: “Suffice to note, cocaine base is not cocaine hydrochloride although both substances are cocaine.” (Ibid., italics added.) The court in Howell explained: although both substances derive from coca leaves, cocaine hydrocholoride is water soluble in the form of crystal or flakes and is usually ingested nasally, while rock or crack cocaine is cocaine hydrochloride after the hydrochloride is removed, in a hard rock-like form, and is generally smoked. (Id. at pp. 260-262.)
Brown fails to establish that this difference is so immaterial that those who possess cocaine base for sale are nonetheless similarly situated to those who possess cocaine powder for sale. He refers us to a “commentator” who has asserted that “cocaine base ‘is nothing more than powder cocaine cooked up with baking soda.’ ” This merely confirms the substances are different. He also cites the same authority for the proposition that “[w]holesalers deal in powder; retailers deal in [cocaine base]” Ironically, this statement confirms that those who possess cocaine powder for sale are not similarly situated to those who possess cocaine base for sale: wholesalers and retailers comprise different segments of a market and target different clientele.
Because those who, like Brown, possess cocaine base for sale are not similarly situated with those who possess cocaine powder for sale, Brown has no equal protection claim.
2. Rational Basis
Even if possessors of cocaine base for sale and possessors of cocaine powder for sale were similarly situated, Brown would still fail to establish an equal protection violation, because a sufficient government interest justifies the sentencing disparity.
We first consider the appropriate test. Relying on People v. Olivas (1976) 17 Cal.3d 236, 243, Brown contends that the strict scrutiny standard applies because section 11351.5 affects a fundamental interest—his personal liberty—in causing him to be sentenced to an additional year in prison. Under the strict scrutiny standard, “ ‘ “the state bears the burden of establishing not only that it has a compelling interest which justifies the law but that the distinctions drawn by the law are necessary to further its purpose.” ’ ” (Hernandez v. City of Hanford (2007) 41 Cal.4th 279, 299.)
Brown is incorrect. Olivas, supra, 17 Cal.3d 236, applied the strict scrutiny standard where a statute granted a court discretion to commit a juvenile convicted in adult proceedings to the California Youth Authority for a period longer than an adult would be incarcerated. (Id. at pp. 250-251.) As our Supreme Court has since explained, Olivas does not mandate application of the strict scrutiny standard to every equal protection challenge to penal statutes authorizing different sentences for comparable crimes. (People v. Wilkinson (2004) 33 Cal.4th 821, 837 (Wilkinson).) To the contrary, a “defendant . . . ‘does not have a fundamental interest in a specific term of imprisonment or in the designation a particular crime receives.’ ” (Id. at p. 838.) Thus, in Wilkinson the rational basis test was applied where the defendant contended that the statutory scheme for battery on a custodial officer violated equal protection because it allowed battery without injury to be punished more severely than battery with injury. (Ibid.)
Here too, the rational basis test applies. (Wilkinson, supra, 33 Cal.4th at p. 838; People v. Alvarez (2001) 88 Cal.App.4th 1110, 1116 [rational basis test applies to equal protection challenge to “an alleged sentencing disparity”]; see also United States v. Coleman (2d Cir. 1999) 166 F.3d 428, 431 [where defendant challenged federal statute punishing crack cocaine traffickers more harshly than powder cocaine traffickers on equal protection grounds, “sentencing classifications distinguish[ing] between dealing crack cocaine and dealing in powder cocaine . . . are hardly quasi-suspect classifications” and are “subject[] . . . only to rational-basis scrutiny”]; United States v. Thomas (4th Cir. 1990) 900 F.2d 37, 39 (Thomas) [federal law for crack offenses “does not discriminate on the basis of a suspect classification or the exercise of a fundamental right, and thus does not require heightened scrutiny;” “[i]n reviewing a sentence challenged on equal protection grounds, we ask whether ‘the legislature rationally could have decided that the classification would further the statutory purpose”].)
Under the rational basis test, the classification “ ‘ “ ‘must be upheld against [an] equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. Where there are “plausible reasons” for [the classification], “our inquiry is at an end.” ’ ” ’ ” (Hofsheier, supra, 37 Cal.4th at pp. 1200-1201, citations and edit marks omitted.) “[I]t is irrelevant whether the perceived reason for the challenged distinction actually motivated the Legislature . . . .” (Id. at p. 1201.) The appellant has the burden “ ‘ “to negative every conceivable basis which might support” ’ ” the classification. (Ibid., italics added.)
In support of his contention that the sentencing disparity for cocaine base and cocaine powder in California are irrational, Brown relies on United States v. Davis (N.D.Ga. 1994) 864 F.Supp. 1303 (Davis). In Davis, because four chemists and pharmacologists agreed that cocaine base was synonymous with cocaine [powder], the court applied the rule of lenity and ignored the increased penalty for cocaine base under federal law. (Id. at pp. 1304-1306.) Davis, however, involved the rule of lenity because it was unclear which of two statutory penalties should apply, in light of the specific expert witness testimony before that court; Davis did not address whether there was an equal protection violation. Moreover, as Brown acknowledges, Davis was disapproved in United States v. Fisher (4th Cir. 1995) 58 F.3d 96 (Fisher), based on the language of the subject statute as well as its legislative history, which reflected Congress’s intent to “carve out a heavier penalty for the particularly harmful form of cocaine known as ‘cocaine base’ or ‘crack.’ ” (Id. at p. 99, italics added.) Not only that, but Fisher went on to reject the appellant’s equal protection claim as well, noting it had “repeatedly affirmed the constitutionality of the sentencing ratio for cocaine and cocaine base against such equal protection and due process challenges.” (Id. at pp. 99-100.)
Other federal appellate courts have upheld the federal sentencing differential for cocaine base against equal protection challenges. In Thomas, the Fourth Circuit “concluded that distribution of cocaine base is a greater menace to society than distribution of cocaine powder and warranted greater penalties because it is less expensive and, therefore, more accessible, because it is considered more addictive than cocaine powder and because it is specifically targeted toward youth.” (Thomas, supra, (4th Cir. 1990) 900 F.2d at pp. 39-40.)
Also rejecting an equal protection claim, the Sixth Circuit concluded the disparity between federal laws pertaining to cocaine (powder) and crack were tied to a legitimate legislative interest, observing that “Congress was concerned that crack is a purer drug than cocaine and the speed with which it progresses to the brain ‘produces a significantly different effect that increases the likelihood of addiction.’ ” (United States v. Williams (6th Cir. 1992) 962 F.2d 1218, 1227 [federal statute treating one gram of crack as 100 grams of cocaine not violative of equal protection].) The court further cited Congress’s concern “that the special attributes of crack—its small size and cheap price per dose—could create other societal problems that required remedying. Senators noted that because crack is sold in small doses (called ‘rocks’) it is easier to transport and use, thereby increasing the difficulty of suppressing addiction. The cheap price of each ‘rock’ also permits children to afford cocaine for the first time, thereby exposing another segment of American society to drug addiction.” (Ibid.)
In the matter before us, there is a rational basis for the disparity in sentences authorized by section 11351.5 and section 11351. As discussed, cocaine base and cocaine powder are different substances. It is reasonable to conceive that the Legislature viewed the differences between schedule I drugs and schedule II drugs—including the fact that cocaine base as a schedule I drug has no currently accepted medical use—as a reason to impose a harsher penalty on those who possess for sale cocaine base. As federal appellate courts have observed, cocaine base poses a greater menace to society because it is less expensive, more accessible, more addictive, easier to transport and use, and more seriously threatens our children. In addition, respondent urges, it is reasonable to conceive that cocaine base has penetrated society more deeply, the drug has a larger market, and trafficking in it may cause greater violence and higher addiction rates. In sum, the distinction between possession of cocaine base for sale and possession of cocaine powder for sale, and the disparity in punishment for those crimes, is by no means arbitrary or irrational.
Undaunted, Brown contends the California Legislature has recognized the disparity in the penalties set forth in section 11351.5 and 11351, and Assembly Bill No. 337 (2007-2008 Reg. Sess.) (AB 337) will amend the Health and Safety Code and the Penal Code to make the punishment for all cocaine-related crimes equal. As of the time of his opening brief, he asserts, the bill “finished a third reading and passed the Assembly Appropriations Committee.” The fact that AB 337 passed the Assembly Appropriations Committee, however, does not mean any conclusion regarding this disparity was reached by our state Legislature, which contains a Senate as well. In any event, AB 337 died on February 4, 2008. (Assem. Bill No. 337 (2007-2008 Reg. Sess.) Current Bill Status at <http://www.leginfo.ca.gov/pub/07-08/bill/asm/ab_0301-0350/ab_337_bill_ 20080206_status.html> [“LAST HIST. ACTION: Died on third reading file”].) Accordingly, no legislative insight may be gleaned from AB 337: dead bills tell no tales.
Brown has requested judicial notice of legislative reports regarding AB 337, which proposed that anyone who possesses for sale cocaine base or cocaine would be punished by imprisonment for 30, 42, or 54 months. We grant the request.
Brown complains that the effect of imposing different penalties for possession of cocaine base for sale and possession of cocaine powder for sale have a prejudicial effect against African-Americans and the poor, who are more likely to possess cocaine base for sale than cocaine powder for sale. For this proposition, he refers us to a statistic cited in United States v. Armstrong (1996) 517 U.S. 456, 469, that more than 90% of persons sentenced in federal court in 1994 for cocaine base trafficking were African-American. Brown adds: “The California Assembly Committee on Appropriations Analysis states, regarding AB 337: ‘Equalizing penalties for crack and powder cocaine has long been a goal of various civil rights organizations and the defense bar. According to the author, “Whatever their intended goal, the reality is that disparate sentencing guidelines for similar drugs results in a pattern of institutionalized racism, with longer prison sentences given to African-Americans who are more likely to be addicted to and sell cocaine base (crack), and with shorter sentences meted out to Hispanic and White users and sellers of cocaine (which is injected or snorted).” ’ ” (Assem. Com. on Appropriations, Analysis of AB 337 (2007-2008 Reg. Sess.) pp. 3-4.)
No evidence to such an effect was presented to the trial court. But even assuming African-Americans and the poor in this state are presently convicted of crack-related crimes more often than other citizens, it does not necessarily follow that the sentencing distinction between cocaine base and cocaine powder is irrational, particularly given the many reasons discussed post for imposing a harsher sentence for cocaine base. If the Legislature believes that the disparate effect of sections 11351 and 11351.5 needs to be remedied, it is free to act. So far, it has not. Based on the arguments and the record in this case, the equal protection clause does not compel it to.
Lastly, we consider Brown’s reference to Kimbrough v. United States (2007) ___ U.S. ___ [128 S.Ct. 558] (Kimbrough).) The court in Kimbrough ruled that a federal court had discretion to sentence a defendant convicted of trafficking crack cocaine to a term less than what was provided in federal sentencing guidelines, taking into account the attendant circumstances and the disparity between the guidelines’ treatment of crack and powder cocaine offenses. (Id. at p. 575.) Deciding that a court can sentence a defendant to a lower term under appropriate circumstances, however, by no means suggests that a court cannot sentence the defendant to the statutory term without violating the equal protection clause.
In the final analysis, Brown has failed to establish that his sentence violated his constitutional right to equal protection.
C. Substantive Due Process
Brown does not present independent authority or argument in support of his substantive due process claim. To the extent he bases his claim on authority and argument discussed in connection with his equal protection claim, it is unavailing for the reasons stated ante. In any event, because no fundamental interest is at stake, the test for his substantive due process claim would be the rational basis test. Given the rational basis for the Legislature’s disparity in sentences for possession of cocaine base for sale and possession of cocaine powder for sale, his substantive due process claim is meritless.
III. DISPOSITION
The judgment is affirmed.
We concur. JONES, P. J., SIMONS, J.