Prop 47 Loophole Finds Man Charged With Felony Possession of Testosterone

Yolo County Courthouse - New

Yolo County Courthouse - New

Judge Paul Richardson held a West Sacramento man to answer for felony possession of roughly 15 ml of testosterone, during a preliminary hearing on Wednesday that the judge acknowledged raised interesting legal issues.

On December 8, 2015, the Yolo County District Attorney’s office, in a multi-jurisdictional effort, conducted a compliance check on registered sex offenders under Penal Code section 290 registration requirements. A team of investigators, led by Detective Greg Elliot of the Woodland Police Department, conducted a search of the West Sacramento home of Joseph Blake.

Mr. Blake was convicted in 2006 of a violation of PC section 314.1 (public exposure). In addition, he was on probation for possession of methamphetamine. According to testimony from Det. Elliot, at 9 am the team of officers did a “knock and announce.”

Mr. Blake opened the door and complied with the search. A female was found in the residence, who also had a criminal record.

In the main bedroom, they found a glass vial in a camera bag labeled “testosterone.” Officers also found a stun gun in working order and two glass pipes. Mr. Blake admitted to possessing each of the items, although he indicated that the vial was old and had been given to him by a friend.

He was arrested for violation of parole and charged with possession of a stun gun and drug paraphernalia, both misdemeanors in addition to the felony charge for possession of testosterone.

Boyd Lasater, a senior analyst with the State Department of Justice, was assigned to determine the contents of the vial. He testified that the injection vial appeared to have been used as the seal was removed. It had the capacity of about 30 ml and he estimated it to be half full.

He testified that the contents were somewhat different from the label, stating it was “dihydrotestosterone propionate.” He said it was a Schedule III drug under the androgen family, but lacked the expertise to explain what function this hormone performed.

While the defense attorney, Deputy Public Defender Richard Van Zandt, briefly questioned whether the amount of the substance was a usable quantity, Deputy District Attorney Jared Favero argued that, under the law, “usable” was “enough to manipulate.” Mr. Lasater testified that he “could swirl” the contents and that the vial was half full. Judge Richardson agreed.

The bigger issue is the law here. Mr. Van Zandt, during his arguments, “urged the court to act as a gatekeeper here, more so in this case.”

He noted that there are two versions of Health and Safety Code section 11377 – one which was enacted by the state legislature and the other that was adopted by the voters as part of Proposition 47.

Under subdivision (a) of section 11377 it says that subsection (f) of section 11055 specifies that “unless upon the prescription of a physician, dentist, podiatrist, or veterinarian, licensed to practice in this state, shall be punished by imprisonment in a county jail for a period of not more than one year…”

However, PC section 11377 subsection (b)(1) adds that a person “who has not previously been convicted of a violation involving a controlled substance specified in subdivision (f) of Section 11056, is guilty of a misdemeanor.”

But Mr. Van Zandt pointed out that, under Prop. 47, subsection (b) which pertained to “exotic drugs” like testosterone was scrapped. He argued that Prop. 47 got rid of this section entirely, leaving subsection (a) in place, which would make the current charge a wobbler, a crime that can be either a misdemeanor or a felony.

He argued that there is no way that the intent of Prop. 47 was to increase the penalties from a misdemeanor to a wobbler.

Deputy DA Favero countered that, under Prop. 47, it was the clear preference that all possession of dope would be treated as a misdemeanor, but there is one big exception – that exception is for defendants who either had previous convictions for certain serious crimes, including rape, murder and sex crimes against children, or who are required to register as sex offenders for prior sex offense convictions.

He argued that the new law treats PC section 290 registrants differently.

Judge Richardson noted that he had received no briefing on this issue. However, based on his understanding of the law, Prop. 47 indeed made the determination by the voters that personal use amounts of a controlled substance like meth would be a misdemeanor, however, there was an exception for PC section 290 registrants and therefore, when considering the case in total, he said he cannot avoid that question.

He held Mr. Blake to answer for all three counts, including the felony count one. He denied the defense’s request to treat count one as a wobbler under H&S section 11377 (a).

The arraignment on the information will be held on January 7. However, Judge Richardson acknowledged that this was an “interesting” case and requested a briefing by the defense by the next hearing.

—David M. Greenwald reporting

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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    1. Davis Progressive

      For the most part the laws aim at possession rather than use.  Unless you are under the influence of a controlled substance operating a vehicle while impaired or unless you are basically so intoxicated you can’t take care of yourself (647F) there is really no law to deal with use.

  1. hpierce

    Reminds me of when one of my co-workers tried to tease another because of his premature baldness… the second one paused, then replied, “a man only has so much hormones… if you want to use yours to grow hair, that’s your choice”.

      1. hpierce

        Consider it my belated Christmas gift to you, Frankly… I was there when the exchange took place, so it is a true story…

        Oh, and the initiator was laughed at by all the others who heard, and was more circumspect thereafter…

  2. Davis Progressive

    This is where the reformers get too clever for their own good.  They wanted to figure out a way to get prop 47 approved and they figured, let’s make an exemption for sex offenders who have to register.  Not sure why the two should be linked,but in the process of writing a law that could get voter approval they probably accidentally increased the penalty for schedule 3 drugs possessed by sex offenders and now here we are.

    1. Napoleon Pig IV

      Good point. Much like the proliferation of cockroaches is no big deal in the distant forest or swamp but very unwelcome in the kitchen or among the fine linens, the mindless proliferation of mindless laws would be much less damaging if not mindlessly (and often selectively) enforced by mindless minions of an overreaching State (or county, as the case may be).

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