People v. Nelson (1985)

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Appellate Department, Superior Court, Los Angeles.

[Crim. A. No. 23173. June 11, 1985.]

THE PEOPLE, Plaintiff and Respondent, v. THEODORE COBURN NELSON, Defendant and Appellant.

[Crim. A. No. 21732. June 11, 1985.]

THE PEOPLE, Plaintiff and Respondent, v. FRED NELLIS WOLF, Defendant and Appellant.

[Crim. A. No. 21733. June 11, 1985.]

THE PEOPLE, Plaintiff and Respondent, v. ANTHONY THOMAS VITALE, Defendant and Appellant.

[Opinion certified for partial publication. ]

(Opinion by Cooperman, P. J., with Bernstein and Shabo, JJ., concurring.)


Leo Fasen, Robert T. Jacobs and Jeffrey Brodey for Defendants and Appellants.

Gary R. Netzer, City Attorney, Jack L. Brown and Arthur B. Walsh, Deputy City Attorneys, for Plaintiff and Respondent.



Defendants Theodore Coburn Nelson, Fred Nellis Wolf, and Anthony Thomas Vitale were charged in a misdemeanor complaint with delivering, furnishing, or transferring, etc. drug paraphernalia in violation of Health and Safety Code section 114.7, subdivision (a). fn. 1 [171 Cal. App. 3d Supp. 5] Following a jury trial, defendants were found guilty as charged. Each defendant was then sentenced, which sentence was suspended, and placed on summary probation on certain terms and conditions. On appeal from the judgments defendants attack their respective convictions and orders of probation. Finding no merit to defendants' contentions, we affirm. fn. 2

The record of the trial proceedings reflects the following facts: fn. 3

Defendant Nelsois the co-owner with his wife of "Penny Lane," a retail store located at 6711 Hollywood Boulevard, Los Angeles, California. Defendants Vitale and Wolf are employed at Penny Lane as manager and salesperson, respectively. Penny Lane stocks and sells novelties such as T-shirts and posters. In addition, however, the store has a substantial supply of items which, in the opinion of several experts o testified at trial, are drug paraphernalia as that term is defined in section 11014.5, the companion section to section 11364.7, subdivision (a).

These materials included bongs (small water pipes), roach clips (devices for holding burning marijuana cigarettes), coke kits (packages containing items commonly used for preparing and ingesting cocaine), coke spoons (small spoons used for inhaling cocaine), as well as items which have legitimate uses such as scales and bulk chemicals but which, in the opinion of the expert witnesses, were stocked by the store for the purpose of weighing and preparing drugs and narcotics. Prior to January, 1983, the sale of such merchandise was not unlawful. However, when section 364.7 took effect on that date, Penny Lane employees, at Nelson's order, erect signs declaring that the same merchandise which they had always sold was now being offered for sale only for legitimate purposes.

On January 21, 1983, David Turnquist, a detective with the Los Angeles Police Department, entered Penny La in plain clothes. Defendant Wolf was working at the time. Turnquist asked for a "bong" and was sold one by Wolf. Subsequently, the police entered and seized several boxes of suspected drug paraphernalia. During the course of the seize, defendant Nelson appeared at the store, identified himself to the police as the owner, and admitted that he had anticipated the police action.

On February 10, 1983, Kenneth Cook, a detective with the Los Angeles Police Department, entered Penny Lane in plain clothes. A conversation ensued between Cook and defendant Vitale, who was working at the time, during which Vitale declined to sell drug paraphernalia to Cook.

The next day, February 11, police officers with a search warrant seized additional supplies of chemicals and other drug paraphernalia On May 6, [171 Cal. App. 3d Supp. 6] 1983, police officers, again with a search warrant, seized further quantities of paraphernalia. At trial, the officers explained why in their opinion the items seized on all three occasions constituted drug paraphernalia.

Harold M. Wallack, who had sold tobacco and tobacco products his entire working life, explained on behalf of the People why none of the miniature pipes a bongs seized at Penny Lane were suitable for smoking tobacco.

The defense called Los Angeles Police Officer David Richardson as its initial witness. Richaron's testimony essentially corroborated the opinion of the People's witnesses at the items seized from Penny Lane were drug paraphernalia. Each defendant tn testified. Although all admitted varying degrees of familiarity with drug paraphernalia and usage, each disclaimed any intent for the items sold in Penny Lane to be used for the preparation or ingestion of controlled substances.


Prior to trial, each defendant filed a demurrer challenging the validity of section 11364.7, subdivision (a), on constitutional grounds. At the conclusion of a consolidated hearing on the matters, the court overruled the demurrers.

[1a] On appeal fn. 4 defendants reassert their position that section 11364.7, subdivision (a), constitutionally infirm. The thrust of their challenge is that section 11364, subdivision (a), is void for vagueness. fn. 5 [2] "As generally stated, the void-f-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. [Citations.]" fn. 6 (Kolender [171 Cal. App. 3d Supp. 7] v. Lawson (1983) 461 U.S. 352, 7 [75 L. Ed. 2d 903, 909, 103 S. Ct. 1855].)

[1b] Defendants initially assert that the phrases "designed for use" and "marketed for use" in section 11014.5 are impermissibly vague for the reason that there are many items that "are not solely designed to be drug paraphernalia but are [dependent] up the ingenuity or purpose of the purchaser ..." We construe this argument to be an attack on the sufficiency of the mens rea or scienter element of section 11364.7, subdivision (a).

[3a] Defendants' remaining argument also concerns the adequacy of that element, albeit in conjunction with the phrase "reasonably should know" contained in subdivision (a) of section 11364.7. Defendants contend that this phrase forces a merchant to be "faced with the difficult, if not impossible, task of determining what gives rise to a reasonable belief that a purchaser tends to utilize the paraphernalia for an illegal purpose .... In short, t statute makes the retailer responsible for knowing what a customer intends to do with a purchase. This constructive knowledge [standard] as a basis for criminal liability is completely unacceptable and unconstitutional."

Defendants' two-prong position is grounded essentially in their concern that the state statu imposes a standard of virtual strict liability against a seller, in that the seller is held accountable even when an object has innocent, legitimate uses and is charged with a customer's undisclosed or disguised reason for purchasing an item that has the potential to be utilized as drug paraphernalia.

To evaluate defendants' vagueness claims, "we look first to the language of the statute, then to its legislative history, and finally to California decisions construing the statutory language." (Pryor v. Municipal Court (1979) 25 Cal. 3d 238, 246 [158 Cal. Rptr. 330, 599 P.2d 636].)

A. Statutory Language

We commence our three-part analysis with a threshold examination of the statutory language of the charged drug paraphernalia offense in the context of defendants' contentions.

Section 114.7, subdivision (a) reads: "It is a misdemeanor for any person to deliver, furnish, or transfer, or to possess with intent to deliver, furnish, or transfer, or to manufacture with intent to deliver, furnish, or transfer, drug paraphernalia, knowing, or under circumstances where one reasonably should know, that it will be used to plant, propagate, cultivate, [171 Cal. App. 3d Supp. 8] grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance in violation of this division."

The definition "drug paraphernalia" referred to in that subdivision is found in section 11015. Subdivision (a) reads in pertinent part: "'Drug paraphernalia' means all equipment, products and materials of any kind which are designed for use or marked for use, in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance in violation of this division ...."

This general definition is followed by a nonexhaustive list of eight examples of drug paraphernalia. (§ 11014.5, bd. (a)(1)-(8).) Each of the items listed in the eight examples is characterized as drug paraphernalia if it is "designed for use or marketed for use" with controlled substances. (Ibid) The eighth example, "Objects designed for use or marketed for use in ingesting, inhaling, or otherwise introducing marijuana, cocaine, hashish, or hashish oil into the human body," is itself further particularized by a nonexhaustive list of eleven examples. (§ 11014.5, subd. (a)(8))-(K).)

Subdivision (b) of section 11014.5 defines the phrase "marketed for use" to mean "advertising, distributing, offering for sale, displaying for sale, selling in a manner which promotes the use of equipment, products, or materials with controlled substances."

Subdivision (c) of that section lists seven factors that "a court or other authority should consider, in addition to all other logically relevant factors" to determine whether an object constitutes drug paraphernalia. Two of the listed factors are: "Statements by an owner or by anyone in control of the object concerning its use" and "Whether the owner, or anyone in control of the object, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products." (§ 11014.5, subd. (c)(1), (6).)

Subdivision (d) sets forth the Legislature's intent to sever, if possible, any invalid "provision of this section or the application thereof to any person or circumstance ... held invalid" from the remainder of the section's provisions.

From our perusal of the preceding statutory language, we observe that section 11364.7, subdivision (a), embodies the offense component while [171 Cal. App. 3d Supp. 9] section 11014.5 contains the definitional component of the drug paraphernalia offense at issue. Additionally, while section 11014.5 discusses no overt scienter requirement, section 11364.7, subdivision (a), exhibits at appears to be a two-tier or double scienter standard (i.e., "intent" and "knowing, or under circumstances where one reasonably should know").

[4] "The cardinal rule of statutory construction is that a provision is to be construed so as to effect the intent of the Legislature. [Citations.] When determining legislative intent, the plain meaning of clear statutory language should be followed unless there is compelling evidence that another meaning is intended. [Citations.]" (People v. DePaul (1982) 137 Cal. App. 3d 409, 414 [187 Cal. Rptr. 82].) [3b] Moreover, where the requisite scienter may be infused to clarify an ambiguous word or phrase, a statute will not be held void for vagueness. (People v. McCaughan (1957) 49 Cal. 2d 409, 414 [317 P.2d 974].)

[1c] Mindful of these principles, we conclude that the "designed for use or marketed for use" language in section 11014.5's definition of "drug paraphernalia" reflect the Legislature's attempt to assign the appropriate scienter to each category of offender within that section's ambit. (See Levas & Levas v. Village of Antioch, III. (7th Cir. 1982) 684 F.2d 446, 450. In other words, the "designed for use" phrase pertains to the state of mind of the manufacturer of an item while the "marketed for use" phrase refers to the seller, including distributor, of the item. The common denominator in both instances is that the requisite state of mind belongs to the person in control of the item at the time the item is manufactured, or delivered, furnished or transferred, etc.

In reaching this conclusion we rely primarily on the analysis of the United States Supreme Court in Hoffman Estates. In that case the Supreme Court had before it "a pre-enforcement facial challenge to a drug paraphernalia ordinance on the ground that it is unconstitutionally vague and overbroad. The ordinance in question requires a business to obtain a license if it sells any items at are 'designed or marketed for use with illegal cannabis or drugs.'" (Id, at p. 491 [71 L.Ed.2d at p. 367].)

The Hoffman Estates court disposed of Flipside's overbreadth argument by pointing out that "the overbreadth doctrine does not apply to commercial speech." (Id, at pp. 496-497 [71 L.Ed.2d at pp. 370-371].) Turning to Flipside's vagueness argument, the court reiterated the principle that "a scienter requirement may mitigate a law's vagueness, especially with respect to the adequacy of notice to the complainant that his conduct is proscribed." (Id, at p. 499 [71 L.Ed.2d at p. 499].) [171 Cal. App. 3d Supp. 10]

[5] The court then found the phrase "designed for use" not to be ambiguous, reasoning: "A principal meaning of 'design' is [t]o fashion according to a plan.' Webster's New International Dictionary of the English Language 707 (2d ed 1957). Cf. Lanzetta v. New Jersey, 306 U.S. 451, 454, n. 3, (1939). It is therefore plain that the standard encompasses at least an item that is principally used with illegal drugs by virtue of its objective features, i.e., features designed by the manufacturer. A business person of ordinary intelligence would understand that this term refers to the design of the manufacturer, not the intent of the retailer or customer. It is also sufficiently clear that items which are principally used for nondrug purposes, such as ordinary pipes, are not 'designed for use' with illegal drugs." (Id, at p. 501 [71 L.Ed.2d at p. 373].)

[6a] Similarly, the court next found "the alternative 'marketed for use' standard [to be] transparently clear ...." Based on its review of the ordinance's guidelines, which "refer to the display of paraphernalia, and to the proximity of covered items to otherwise uncovered items," the court concluded that "[t]he standard requires scienter, since a retailer could scarcely 'market' items 'for' a particular use without intending that use." fn. 7 (Id, at p. 502 [71 L.Ed.2d at p. 374].)

[1d] Although the phrases "designed for use" and "marketed for use" in the Hoffman Estates ordinance appeared in the offense provision instead of a definition provision, which is the case here, we conclude this to be a distinction without a difference. fn. 8 We therefore follow the cogent reasoning of the Supreme Court in Hoffman Estates and infuse the phrases "designed for use" and "marketed for use" in section 11014.5 with the requisite [171 Cal. App. 3d Supp. 11] element of scienter, which is construed solely from the viewpoint of the person in control of the item, i.e., the manufacturer or seller, without reference to a third person's state of mind.

[6b] This conclusion is further buttressed by a plain reading of the phrase "marketed for use" in the context of section 11014.5 as a whole. The unambiguous language of subdivision (b) of that section specifically defines that phrase to mean "advertising, distributing, offering for sale, displaying for sale, or selling in a manner which promotes the use of equipment, products, or material with controlled substances. "The clear import of this language is to focus only on the intent and actions of the seller. Additionally, subdivision (c) spotlights the owner or anyone in control of the object with regard to two of the seven enumerated factors that may be used to determine whether an object constitutes drug paraphernalia. There is nothing in the language of section 11014.5, however, which would give rise to an inference that the intent of a third person is relevant to the definition of what constitutes drug paraphernalia.

[3c] On the other hand, turning to the phrase "reasonably should know" in subdivision (a) of section 11364.7, we note that this phrase is already a part of the two-tier scienter component of that subdivision; thus, infusing scienter to clear up any vagueness is inapposite. We also note that this phrase is not further defined, nor is there anything in that section or in a related section which clarifies what that phrase signifies. We therefore must look elsewhere for guidance in this regard.

B. Legislative History

[7] It is a well-established principle of statutory construction that an enactment will be upheld against a claim of vagueness if its terms may be made reasonably certain by reference to legislative history. (People v. McCaughan, supra, 49 Cal.2d at p. 414; People v. Grubb (15) 63 Cal. 2d 614, 620 [47 Cal. Rptr. 772, 408 P.2d 100].) [3d] Accordingly, we pivot our attention next to a review of the legislative history of sections 110.5 and 11364.7 in conjunction with our construction of the phrases "designed for use," "marketed for use," and "reasonably should know."

Both sections 11014.and 11364.7 were added to the Health and Safety Code by the same enactment in 82. fn. 9 (Stats. 1982, ch. 1278, §§ 1, 2 [171 Cal. App. 3d Supp. 12] respectively, pp. 4725-4727.) As we observed in People v. Clark-Van Brunt (1984) 158 Cal. App. 3d Supp. 8, 10, footnote 1 [205 Cal. Rptr. 144], the plain purpose of the California Drug Paraphernalia statute, particularly section 11364.7, subdivision (a), and its companion, section 11014.5, is to "eliminate the use and sale of such items ...." We also observed that these statutes are "patterned after the Model Drug Paraphernalia Act [Model Act] drafted by [the Drug Enforcement Administration of] the United States Department of Justice." (Ibid)

In addition to California, at least 25 states have adopted drug paraphernalia legislation based on the provisions of the Model Act in varying degrees. fn. 10 The Model Act "and its progeny were designed to overcome the constitutional infirmities of early 'headshop' legislation. These laws were written in the belief that the sale of drug paraphernalia encourages the use and sale of illegal drugs. The [Model Act] drafters stated: '[T]he availability of Drug Paraphernalia has reached epidemic levels. An entire industry has developed which promotes, even glamorizes, the illegal use of drugs, by adults and children alike. Sales of Drug Paraphernalia are reported as high as three billion dollars a year.' [Model Act], Prefatory Note." (Stoianoff, supra, 695 F.2d at p. 1217.)

"In recent years communities across the country have come to believe that criminal laws prohibiting the possession, sale, and distribution of drugs do not adequately deter drug use, particularly among the young. Accordingly, many states, counties, and municipalities have enacted drug paraphernalia [laws] designed to stop or control the sale of equipment that can be used to grow, purify, store, ingest, inhale, or inject drugs. The drafting problem inherent in such [laws], however, is that few items are useful solely as drug implements, and an astonishing variety of ordinary articles can be converted to drug use. The Model Drug Paraphernalia Act, drafted by the Drug Enforcement Administration, is an attempt to write a statute that will be broad enough to deal with the problem effectively, yet not so broad that it impinges on constitutionally protected conduct or so vague that neither the law's targets nor its enforcers know what it means. The distinctive features of the Model Act are two: it attempts to give content to the necessarily general definition of drug paraphernalia by listing examples and factors to be considered; and it contains an intent requirement that is meant to mitigate any definitional uncertainty." (Levas and Levas v. Village of Antioch, Ill., supra, 684 F.2d at p. 449; fns. omitted.) [171 Cal. App. 3d Supp. 13]

The Model Act, as it has been adopted in its various manifestations by numerous states, counties, and municipalities, has been subject to vagueness challenges on the grounds that: (1) the act's scope encompasses both multipurpose objects with drug-related and legitimate uses as well as innocent items capable of drug use; and (2) violation of the act could be established by transferring a purchaser's intent to use an innocent object with proscribed drugs to an unaware seller. (See Garner v. White (8th Cir. 1984) 726 F.2d 1274, 1279.)

Every federal circuit court that is considered a vagueness challenge to an enactment based on the Model Act has held the enactment. fn. 11 Parenthetically, we note that the Ninth Circuit has not yet had the occasion to pass on the validity of the California drug paraphernalia statutes at issue.

Those circuit courts have categorically rejected the fist vagueness claim above by infusing a scienter element fn. 12 into the enactment into question to [171 Cal. App. 3d Supp. 14] nullify the possibility that a seller of objects which have innocent or legitimate uses as well as potentially proscribed drug uses would be subject to prosecution for a violation in the absence of a showing that the seller intended to sell, distribute, etc., the objects for use with controlled substances or cannabis.

As one court observed, "comments to the Model Act make clear that the potential defendant is the person control of the item. The comments state, for example: [¶] "To insure that innocently possessed objects are not classified as drug paraphernalia, Article I makes the knowledge or criminal intent of the person in control of an object a key element of the definition. Needless to say, inanimate objects are neither 'good' nor 'bad,' neither 'lawful' nor 'unlawful.' Inanimate objects do not commit crimes. But, when an object is controlled by people who use it illegally, or who intend to use it illegally, or who design or adapt it for illegal us the object can be subject to control, and the people subjected to prosecution .... [¶] Hinging the definition of drug paraphernalia on a specific content to violate, or to facilitate a violation of, the drug laws also provides a fair warning' to persons in possession of property potentially subject to this act. A statute is not unconstitutionally vague if it embodies a specific intent to violate the law. Comments to Model Act, quoted in Delaware Accessories Trade Association v. Gebelein [(D.Del. 1980)] 497 F. Supp. at 293 (Delaware court's brackets deleted)." (Murphy, supra, 742 F.2d 564, 571.)

Unlike section 11014.5, the definitional component of the Model Act has the phrases "used," "intended for use," as well as the phrase "designed for use," and does not include the phrase "marketed for use." We note, [171 Cal. App. 3d Supp. 15] however, that one version of that section at one time contained the language "used, intended for use," but this language was subsequently stricken and in its place the phrase "marketed for use" was substituted. (Assem. Amend. to Sen. Bill No. 341 (1981-82 Reg. Sess.) September 15, 1981.) We further note that prior to this deletion and substitution a proposed revision of section 11014.5 would have inserted the following language after subdivision (b): "For the purpose of this section, the phrase 'intended for use' shall refer to the intent of the person or business suspected or accused of using, possessing, delivering, furnishing, transferring, or manufacturing the equipment, materials, or products referred to in this section." (Sen. Amend. to Sen. Bill . 341 (1981-82 Reg. Sess.) May 13, 1981; adopted by Assem. on Aug. 10, 1981.)

At least one circuit court recognized that the phrase "intended for use" is broader than the phrase "marketed for use" before the Hoffman Estates court, because the "terminology less obviously refers to the acts of the defendant-merchant. Rather, it may permit some ambiguity in that it could refer to the intent of the manufacturer or of the purchaser." fn. 13 (Stoianoff, supra, 695 F.2d at p. 1220.) The Stoianoff court, and the other circuit courts construing the "intended for use" phrase, nonetheless defused any ambiguity or transferred intent problems by infusing the phrase with the appropriate scienter, e.g., "the retailer or distributor must sell or market an item with the intent that it be used with drugs ('intended for use')." (Ibid; see also Casbah, Inc. v. Thone (8th Cir. 1981) 651 F.2d 551, at p. 559; Murphy, supra, 742 F.2d at pp. 570-571 (collecting cases).)

Our Legislature apparently entertained a similar concern. Although it initially attempted to cure such potential ambiguity by the addition the specific scienter language to construe the phrase "intended for use," it, instead, subsequently chose the more limited phrase "marketed for use."

We note that an overwhelming majority of the circuit cases involved a vagueness challenge to the phrase "designed for use." Every court, except one, in the respective cases relied primarily on the Hoffman Estates decision in rejecting the challenge unequivocally. (See, e.g., Tobacco Accessories, etc. v. Treen (5th Cir. 1982) 681 F.2d 378, 384-385, fn. 14; General Stores, Inc. v. Bingman (10th Cir. 1982) 695 F.2d 502, 504; Stoianoff v. [171 Cal. App. 3d Supp. 16] State of Mont., supra, 695 F.2d at pp. 1219-1220; Florida Businessmen, etc. v. City of Hollywood (11th Cir. 1982) 673 F.2d 1213, 1218-1219; Garner v. White, supra, 726 F.2d at pp. 1282-1283.)

The one exception, Casbah, Inc., supra, was decided prior toHoffman Estates, supra, and thus did not have the benefit of the Supreme Court's analysis. Nonetheless, the Casbah, Inc. court essentially anticipated that decision when it upheld the "designed for use" phrase in the Nebraska statute by finding that the "statute adequately defines the mental state required to render an item drug paraphernalia and refers to the intent of the person charged with violation." (Casbah, Inc. v. Thone , supra, 651 F.2d at p. 559.)

As for the second claimed vagueness problem, one court labeled the "transferred intent" problem as the "prosecution of one person on the basis of the unknown intent of another." (New England Accessories Trade v. City of Nashua (1st Cir. 1982) 679 F.2d 1, 5.) fn. 14

Those federal circuit courts that have considered the issue found no transferred intent problem in fact existed. fn. 15 These courts essentially concluded that the two-tiered scienter standard of the Model A, which is tracked by section 11364.7, presents no danger that an innocent seller would be at risk of prosecution for the unknown intent of a purchaser for the simple reason that the seller must already have intended that the object be so for drug use before his knowledge of its use by a buyer comes into play. fn. 16 In these [171 Cal. App. 3d Supp. 17] circumstances, it is not constitutionally improper that the seller be required to open his eyes to the objective realities of the sale ... As more than one court has noted, there are many statutes which utilize a 'reasonably should know' or similar standard [] and which had withstood constitutional attack. [Citations and fn. omitted.])"' (Casbah, Inc. v. Thone , supra, 651 F.2d at p. 561; accord Florida Businessmen, etc. v. City of Hollywood, supra, 673 F.2d p. 1219; New England Accessories Trade Ass'n, Inc. v. Tierney (1st Cir. 1982) 691 F.2d 35, 36-37; New England Accessories Trade v. City of Nashua, supra, 679 F.2d at pp. 5-7; General Stores, Inc. v. Bingaman , supra, 695 F.2d at p. 504; Kansas Retail Trade Co-op. v. Stephan (10th Cir. 1982) 695 F.2d 1343, 1346; Weiler v. Carpenter (10th Cir. 1982) 695 F.2d 1348, 1349-1350; Stoianoff v. State of Mont., supra, 695 F.2d at pp. 1221-1222; Camille Corp. v. Phares , supra, 705 F.2d at pp. 223, 230-231; Garner v. White, supra, 726 F.2d at pp. 1278-1279; see also Murphy v. Matheson, supra, 742 F.2d at pp. 570-571.)

We concur with the conclusion one circuit court that the Casbah, Inc. court's reading of the "reasonably should know" language finds support in the comments by the drafters of the Model Act who "explained their own understanding of the proper construction of that language: [¶] The knowledge requirement of Section B is satisfied when supplier: (i) has actual knowledge an object will be used as drug paraphernalia; (ii) is aware of a high probability an object will be used as drug paraphernalia; or (iii) is aware of facts and circumstances from which he should reasonably conclude there is a high probability an object will be used as drug paraphernalia. Section B requires a supplier of potential paraphernalia to exercise a reasonable amount of care. He need not undertake an investigation into the intentions of every buyer, but he is not free to ignore the circumstances of a transaction. Suppliers of objects capable of use as paraphernalia may not deliver them indiscriminately. Since each element of section B must be proven beyond a reasonable doubt, legitimate, prudent suppliers will not be affected by this section. [Model Act] Comments, Art. II." (Stoianoff, supra, 695 F.2d at p. 1221.)

From the foregoing review of the legislative history we confirm our earlier conclusion that the phrases "designed for use" and "marketed for use" [171 Cal. App. 3d Supp. 18] are not impermissibly vague, and we further conclude that the phrase "reasonably should know" is likewise not impermissibly vague.

C. California Cases

Our last inquiry concerns the construction of the phrases designed for use," "marketed for use," and "reasonably should know" by the courts of California. Initially, we point out that, to date, no appellate court has construed these phrases in the context of sections 11014.5 and 11367.5. fn. 17

Bamboo Brothers v. Carpenter (1982) 133 Cal. App. 3d 116 [183 Cal. Rptr. 748] is the only California decision which has addressed a drug paraphernalia law based on the Model Act. The enactment in question was an ordinance adopted by the County of Santa Barbara, California. The definitional provision of the ordinance adopted the Model Act's phrases "used, or intended to use," which in section 11014.5 the Legislature rejected in favor of the "marketed for use" alternative. The ordinance also included the "design for use" phrase and a knowledge requirement similar to the one in section 113.7, i.e., "knowing, or ... where one reason probably should know". fn. 18

In concluding that the phrase "designed for use" was not impermissibly vague, the Bamboo Brothers court reliedHoffman Estates, supra, and Casbah, Inc., supra. (Id, at p. 130.) Although the court did not expressly address the phrases "use, or intended to use," it did note that the Supreme Court in Hoffman Estates "upheld an even broader, less specific ordinance against a vagueness challenge ...." (Ibid.)

The Bamboo Brothers court then rejected appellants' transferred intent" argument by pointing out that the ordinance "does not make crime out of constitutionally protected or innocent conduct because of the actions or statements of persons other than the alleged defendant. Rather the requirement of knowledge and intent on the part of the defendant does provide adequate notice and does sufficiently prevent arrest, prosecution or conviction of persons for innocent activities or mistake." (Id, at p. 130.) [171 Cal. App. 3d Supp. 19]

[8] Based on the foregoing we reaffirm our conclusions, ante, concerning the clear meaning of the phrases "designed for use," "marketed for use," and "reasonably should know." fn. 19


* * *

The judgments are affirmed.

Bernstein, J., and Shabo, J., concurred.

FN 1. All future references to "section" are to the Health and Safety Code unless otherwise indicated.

Defendants were originally charged in separate misdemeanor complaints. In Los Angeles Municipal Court case No. 3128160 Nelson and Wolf were charged with committing a violation on January 21, 1983. In case No. 31268 Nelson and Vitale were charged with a violation on February 11, 1983, and in case No. 31256811 Nelson was charged with another violation on May 6, 1983. Prior to trial, however, the three complaints were consolidated under case No. 318160 with the different charges renumbered as separate counts, i.e., counts one through three charged, respectively, the alleged violations occurring on January 21, February 11, and May 6.

FN 2. At this juncture no in-depth discussion of the case history is necessary. Instead, the relevant proceedings are addressed post, in the context of defendants' specific contentions.

FN 3. Inasmuch as defendants do not attack the sufficiency of the evidence to support the judgments, a brief summary of the facts suffices.

FN 4. No discussion is required here with regard to parts II and III, which dispose of defendants' remaining contentions that do not merit publication. See footnote, ante, page Sup 1.

FN 5. Preliminarily, we dispose of defendants' overbreadth claim as untenable. They confuse the vagueness and overbreadth doctrines. When defendants urge that they cannot determine whether section 11364.7, subdivision (a), regulates items that have lawful or innocent uses, they are complaining of vagueness, not overbreadth. (SeeHoffman Estates v. Flipside, Hoffman Estates (1982) 455 U.S. 489 fn. 9 [71 L. Ed. 2d 362, 102 S. Ct. 1186] (herein Hoffman Estates).)

FN 6. It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application." (Grayned v. City of Rockford (1972) 408 U.S. 104, 108-109 [L.Ed.2d 222, 227-228, 92 S. Ct. 2294]; fns. omitted.)

FN 7. The text of the Village of Hoffman Estates ordinances set out in an appendix to the Supreme Court opinion. (Id, at pp. 505-507 [71 L.Ed.2d at pp. 375-377].)

FN 8. That ordinance, which was not based on the federal Model Drug Paraphernalia Act (hereafter Model Act), imposed a civil fine of not less than $10 and not more than $500 for each violation. The court acknowledged that "economic regulation is subject to a less strict vagueness test because its subject matter is often more narrow, and because businesses, which face economic demands to plan behavior carefully, can be expected to consult relevant legislation in advance of action." The court further acknowledged that there is "greater tolerance of enactments with civil rather than criminal penalties because the consequences of imprecision are qualitatively less severe." (Id, at pp. 498-499 [71 L.Ed.2d at p. 372].) After noting that the village conceded that the ordinance is "quasi-criminal," the court applied a strict test and concluded that "Flipside's facial challenge fails because, under the test appropriate to either a quasi-criminal or a criminal law, the ordinance is sufficiently clear as applied to Flipside." (Id, at pp. 499-500 [71 L.Ed.2d at p. 372].)

We therefore find no significance in the fact that the ordinance before the Supreme Court involved civil penalties and an on-the-face challenge while the present action involves criminal penalties (imprisonment for not more than one year, fine of not more than $1,000, or both; § 11364.7, subd. (b)) and an as-applied challenge to the phrases "designed for use" and "marketed for use." (Accord Stoianoff v. State of Mont. (9th Cir. 1983) 695 F.2d 1214, 1220.)

FN 9. Sections 11014.5 and 11364.7 are the product of extensive perusal and revision of Senate Bill 341 by the Senate and the Assembly. (See Sen. Bill No. 341 (1981-82 Reg. Sess.); Sen. Amend. to Sen. Bill No. 341 (1981-82 Reg. Sess.) April 2, 23, 1981; May 6, 13, 1981; Ass. Amend. to Sen. Bill No. 341 (1981-82 Reg. Sess.) Aug. 10, 1981, Sept. 11, 15, 1981, and Aug. 4, 1982.)

FN 10. See Stoianoff, supra, at footnote 3 (collecting state states).

The Model Act was published in 1979. The background and history of the del Act is addressed in Note, The Model Drug Paraphernalia Act: Can We Outlaw Head Shops--And Should We? (1981) 16 Ga.L.Rev. 1. The complete text of the Model Act is set out at page 148, footnote 52.

FN 11. Most recently, the Utah Drug Paraphernalia Act was upheld in Murphy v. Matheson (10th Cir. 84) 742 F.2d 564 as were two Arkansas statutes in Garner v. White, supra. The Garner court listed the prior circuit cases upholding Model Act and non-Model Act legislation as well as two cases striking down non-Model Act legislation for lack of the requisite mens rea element. Those cases upholding Model Act legislation are: " Camille Corp. v. Phares, 705 F.2d 223 (7th Cir. 1983); Stoianoff v. Montana, 695 F.2d 1214, 1219 (9th Cir. 1983); Weiler v. Carpenter, 695 F.2d 1348 (10th Cir. 1982); Kansas Retail Trade Coop. v. Stephan, 695 F.2d 1343 (10th Cir. 1982); General Stores, Inc. v. Bingman, 695 F.2d 502 (10th Cir. 1982); Tobacco Accessories and Novelty Craftsmen Merchants Ass'n v. Treen, 681 F.2d 378 (5th Cir. 1982); Levas and Levas v. Village of Antioch, 684 F.2d 446 (7th Cir. 1982); New England Accessories Trade Ass'n, Inc. v. City of Nashua, 679 F.2d 1 (1st Cir. 1982); Florida Businessmen for Free Enterprise v. City of Hollywood, 673 F.2d 1213 (11th Cir. 1982). The only decision holding Model Act legislation unconstitutional was twice vacated and ultimately upheld on remand. Record Revolution No. 6 v. City Parma, 638 F.2d 916 (6th Cir. 1980), vacated and remanded,451 U.S. 1013, 101 S. Ct. 2998, 69 L. Ed. 2d 384 (1981), vacated and remanded,456 U.S. 968, 102 S. Ct. 2227, 72 L. Ed. 2d 840 (1982), upheld on remand, 709 F.2d 534 (1983). In addition, drug paraphernalia statutes different from the Model Act have also been upheld. [Hoffman Estates], supra; Nova Records, Inc. v. Sendak, 706 F.2d 782 (7th Cir. 1983); High Ol' Times, Inc. v. Busbee, 673 F.2d 1225 (11th Cir. 1982); Hejira Corp. v. MacFarlane, 660 F.2d 1356 (10th Cir. 1981). The two circuit court decisions striking down non-Model Act legislation are clearly distinguishable from Act 78. See Record Head Corp. v. Sachen, 682 F.2d 672 (7th Cir. 1982) (ordinance interpreted to lack a mens rea element and factors listed as useful in identifying drug instruments held to be of doubtful relevance); Geiger v. City of Eagan, 618 F.2d 26 (8th Cir. 1980) (ordinance lacked mens rea element, applied equally to tobacco smoking accessories, and contained vague characteristics purporting but failing to distinguish legal from illegal pipes)." (Garner, supra, 726 F.2d at p. 79, fn. 5.)

FN 12. As we previously noted, ante, pages Supp.10-Supp. 11, the infusion of a scienter requirement may obviate a potential vagueness problem. "However, it is evident that ... the 'scienter' meant must be some other kind of scienter than that traditionally known to the common law--the knowing performance of an act with intent to bring about that thing, whatever it is, which the statute proscribes, knowledge of the fact that it is so proscribed being immaterial .... Such scienter would clarify nothing; a clarificatory 'scienter' must envisage not only a knowing what is done but a knowing that what is done is unlawful or, at least, so 'wrong' that it is probably unlawful. Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67, 87 n. 98 (1960) (cited in [Hoffman Estates],455 U.S. at 499 n. 14, 102 S. Ct. at 1193 n. 14).

"As pointed out in Levas & Levas v. Village of Antioch, Illinois, 684 F.2d 446, 453 (7th Cir. 1982), the scienter requirement in statutes patterned after the Model Act is of the clarifying kind: Here the scienter requirement is not simply a circular reiteration of the offense--an intent to sell, offer for sale, display, furnish, supply or give away something that may be classifiable as drug paraphernalia. Rather the scienter requirement determines what is classified as drug paraphernalia: the violator must design the item for drug use, intend it for drug use, or actually employ it for drug use. Since very few of the items a paraphernalia ordinance seeks to reach are single-purpose items, scienteis the only practical way of defining when a multi-purpose object becomes paraphernalia. So long as a violation of the ordinance cannot be made out on the basis of someone other than the violator's knowledge, or on the basis of knowledge the violator ought to have had but did not, this sort of intent will suffice to distinguish 'the paper clip which holds the pages of this memorandum of opinion from an identical clip which is used to hold a marijuana cigarette.' [Italics in original]

"Compare Record Head Corp. v. Sach, 682 F.2d at 677-78 (drug paraphernalia ordinance that enumerated various factors to be considered in place of scienter requirement held unconstitutionally vague) with Levas , 684 F.2d at 453 (distinguishing Sachen on ground that intent requirement in Sachen ordinance could only be interpreted in circular, nonclarifying sense)." (Murphy, supra, 742 F.2d at p. 573.)

FN 13. "Convicting persons based on what they should have known about the manufacturer's or designer's intent as revealed by the structural characteristics of a particular object does not present a problem of transferred intent. The intent of the manufacturer or designer is embodied in the object itself and is apparent to all who perceive it. All that is required is for persons to open their eyes to the 'objective realities' of the items sold in their businesses. The Casbah, Inc. [v. Thone (8th Cir. 1981) 651 F.2d 551, 561. In contrast, a purchaser's intent is typically unascertainable, and therefore presents a true transferred intent problem." (Garner , supra, 726 F.2d at p. 1282, fn. 8.)

FN 14. Defendants here do not directly raise a discriminatory enforcement claim in connection with their vagueness challenge. Pathetically, however, we concur with the New England court that a "vagueness attack [on the ground] that the statute does not provide proper standards for law enforcement officials to determine whether a merchant has intentionally sold drug paraphernalia to a customer knowing that it was going to be used with a controlled substance ... is but a variation on the 'transferred intent' theme (New England Associates Trade v. City of Nashua, supra, at p. 6.)

FN 15. Although the Seventh Circuit Court in Levas, supra, 684 F.2d 446 apparently let stand the district court's deletion of the phrase "or should reasonably know," the same circuit court expressly rejected this interpretation. In Camille Corp. v. Phares (7th Cir. 1983) 705 F.2d 223, the Seventh Circuit Court explained that this deletion was not challenged on appeal in Levas, and thus, the clarity of that phrase had not in fact "previously been addressed by this court." (Camille Corp., supra, at p. 230.) The Camille court then addressed the phrase "or should reasonably know" in the Model Act ordinance before it and concluded that the phrase was not impermissibly vague. (Id, at pp. 230-231.)

FN 16. In arriving at this conclusion the Casbah, Inc. Court (supra, at p. 561, fn. 12) adopted the analysis of Judge Stapleton Delaware Accessories Trade Ass'n v. Gebelein (D.Del. 1980) 497 F. Supp. 289, 294 who reasoned: "In the context of an alleged sale or delivery of drug paraphernalia, the Act requires the state to prove both (1) that the defendant intended that an item would be used for the production or consumption of controlled substances and also (2) that he either knew, or that he acted in a set of circumstances from which a reasonable person would known that the buyer of the item would thereafter use it for those purposes. So-called constructive knowledge thus has significance only in a situation where the defendant is selling or delivering items that he intends to be used to produce or consume illicit drugs in the first place. The legitimate merchant who sells innocuous items need make no judgment about the purpose of the buyer based upon the surrounding circumstances. The dealer, on the other hand, who sells innocuous items with the intent that they be used with drugs is, in effect, put on notice by the illicit nature of his activity that he must be careful to conform his conduct to the law. Even the illicit dealer, however, is not held legally responsible, as plaintiffs would suggest, for guessing what is in the mind of a buyer. The seller is safe as long as he does not actually know the buyer's purpose and as long as the objective facts that are there for him to observe do not give fair notice that illegal use will ensue."

FN 17. In People v. Clark Van-Brunt , supra, 158 Cal. App. 3d Supp. 8, no challenge was made to the constitutionality of these sections. Accordingly, we did not reach that issue. Likewise, the court in People v. Superior Court (Morton) (1984) 151 Cal. App. 3d 899 [199 Cal. Rptr. 153] expressly declared at it was "not pass[ing] upon the validity or scope of California's new statutory definition of 'drug paraphernalia', or upon the relevance of the federal decisions to the California drug paraphernalia statute. None of these issues before us." (Id, at p. 903, italics in original.) The Morton court, however, rejected the Hoffman Estates' construction of the term "designed for use" as a limiting construction on the items to be seized pursuant to a search warrant. (Id, at pp. 902-903.)

FN 18. The text of the ordinance is set out at 133 Cal. App. 3d 132-136.

FN 19. In upholding the Santa Barbara ordinance the Bamboo Brothers court expressly found no state preemption. (Id, at p. 122.) At that time no pervasive, comprehensive state scheme to regulate all drug paraphernalia existed. Instead, section 11364, which the court considered, merely makes it "unlawful to possess an opium pipe or any ... paraphernalia used for unlawfully injecting or smoking [certain specified controlled substances]." Moreover, section 11364.5 and Penal Code section 308, which the court also considered, pertained only to the regulation of drug paraphernalia with regard to minors. However, with the enactment of sections 11364.7 and 014.5, which essentially permeate the field of drug paraphernalia regulation, the Legislature expressed its intent to expand such regulation to adults as well. The fact that the Legislature intended preemption of the subject matter is al evident from our reading of section (1) of Senate Bill No. 341.

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