Baker

Petitioner Charles E. Baker seeks a writ prohibiting the respondent court from proceeding with a trial on seven counts, each charging violation of Health and Safety Code section 11912.

The facts underlying the charges are fairly summarized in the People’s brief:

Section 11912 of the Health and Safety Code provides in relevant part: “Except as otherwise provided in Article 8 (commencing with Section 4210) of Chapter 9 of Division 2 of the Business and Professions Code, every person who transports, imports into this state, sells, manufactures, compounds, furnishes, administers, or gives away, or offers to transport, import into this state, sell, manufacture, compound, furnish, administer, or *126 give away, or attempts to import into this state or transport any restricted dangerous drug, except upon the prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, shall be punished by imprisonment in the state prison for a period of five years to life. . . .”

The People seek to justify the prosecution under section 11912 by the argument that the act of prescribing is equivalent to selling or furnishing and that since the…

I dissent.

At a time when the entire nation is racked with the problem of drug abuse, especially among its younger people it is shocking to find that a medical doctor would so abuse the powers entrusted to' him and contribute to the drug abuse problem by engaging in activity which is as reprehensible as that of an ordinary street peddler of illicit drugs.

A reasonable interpretation of the various statutes which make up the regulatory scheme dealing with narcotics and dangerous drugs does not lead to the conclusion reached, by the majority concerning the intent of the Legislature. Against the backdrop of the Legislature’s continuing efforts to curb the illicit traffic in narcotics and dangerous drugs, I cannot ascribe to that body any intent to' carve out an exemption from the operation of the Penal statutes for doctors who use their power of prescription to engage in the illicit traffic.

In my opinion the majority errs in three significant ways.

(1) They fail to read into the term “prescription,” as contained in section 11912 of the Health and Safety Code, any of the traditional requirements of a valid prescription;

(2) They find an intent on the part of the Legislature to…

Joseph P. Busch, District Attorney, Harry Wood and Robert J. Lord, Deputy District Attorneys, for Real Party in Interest.

OPINION

ROTH, P.J.

Petitioner Charles E. Baker seeks a writ prohibiting the respondent court from proceeding with a trial on seven counts, each charging violation of Health and Safety Code section 11912.

The facts underlying the charges are fairly summarized in the People's brief:

"Each count involves the same basic factual situation: defendant, a doctor (whether it was adequately shown that he was licensed being in dispute), wrote a prescription without any showing of medical need therefor, simply at the request of the `patient.' In fact, these `patients' were undercover operatives. Defendant charged and collected $10 for each prescription. The undercover operators did not go further and have the prescriptions filled by a pharmacist. Thus, there was never any physical obtaining of the dangerous or narcotic drugs prescribed. Each prescribing of dangerous drugs was charged in the information as a count of violation of Health & Safety Code section 11912. These are the only counts in issue in the instant writ proceeding."

Section 11912 of the Health and…