Opinion
Docket No. 7029.
December 5, 1975.
Appeal from Superior Court of San Bernardino County, No. CR-29467, Thomas M. Haldorsen, Judge.
COUNSEL
Raymond A. Greenberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Evelle J. Younger, Attorney General, and Michael E. Lasater, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Defendant was convicted of selling a substance in lieu of a restricted dangerous drug (Health Saf. Code, § 11917, now Health Saf. Code, § 11382).
The sole issue on appeal is whether this violation requires a specific intent to substitute a substance in place of a restricted dangerous drug.
The issue was presented when the trial judge struck from CALJIC No. 12.23 (now CALJIC No. 12.04) the words "With the specific intent to substitute a substance in place of a restricted dangerous drug."
In an opinion which appeared briefly in the advance sheets, we pointed out the hopeless conflict between the decisions of the Courts of Appeal as to whether this crime requires a specific or a general intent. We held it was a general intent crime.
The Supreme Court granted a hearing and then retransferred the matter to this court "for the refiling of its opinion with an appropriate reference to People v. Daniels (1975), 14 Cal.3d 857, " which had come down after the filing of our original opinion. Daniels held that the selling of a restricted dangerous drug is a general and not a specific intent crime.
While Daniels involved sale of a restricted dangerous drug instead of sale of a substance in lieu of a restricted dangerous drug, we interpret this action of the Supreme Court to be an oblique holding that the offense of sale of a substance in lieu of a restricted dangerous drug is a general intent crime. (1) We therefore adopt the rationale of Daniels and hold that Health and Safety Code, section 11382, does not require a specific intent to substitute a substance in place of a restricted dangerous drug. The offense is complete if there has been an offer of a restricted dangerous drug and there is subsequent delivery of a substance in lieu thereof.
It would thus appear that those cases which hold this offense to be a specific intent offense were in error and that cases holding that this is a general intent crime correctly state the law. The editors of CALJIC may safely revise CALJIC No. 12.04 by striking therefrom the phrase "with the specific intent to substitute any other substance in place of a controlled substance."
People v. Sweet, 257 Cal.App.2d 167 [ 65 Cal.Rptr. 31]; People v. Contreras, 226 Cal.App.2d 700 [ 38 Cal.Rptr. 338]; and People v. Lopez, 213 Cal.App.2d 668 [ 28 Cal.Rptr. 912].
People v. Medina, 27 Cal.App.3d 473 [ 103 Cal.Rptr. 721]; People v. House, 268 Cal.App.2d 922 [ 74 Cal.Rptr. 496]; People v. Northern, 256 Cal.App.2d 28 [ 64 Cal.Rptr. 15]; and People v. Hicks, 222 Cal.App.2d 265 [ 35 Cal.Rptr. 149].
Judgment affirmed.
Kaufman, J., and McDaniel, J., concurred.
On December 24, 1975, the opinion was modified to read as printed above.