Kaluna

I dissent.

Section 11500 Health and Safety Code provides, so far as here material:

“Narcotic” within the meaning of this section includes “codeine” (Health & Saf. Code, §11001, subd. (d)) and “any of the salts, derivatives, or compounds of” codeine (Health & Saf. Code, §11002).

If the codeine derivative included in percodan is covered by this latter provision then the possession of percodan without a prescription can only be a violation of section 11500 if percodan contains more than one grain of the codeine derivative in each avoirdupois ounce. The people made no proof of the proportionate amount of this codeine derivative in the percodan possessed by appellant.

The meaning of the word “codeine” as used in section 11200 is the crucial question. Appellant argues that it should be construed to include the derivatives of codeine. The People argue that it should be strictly construed to include codeine alone and to exclude its derivatives. At first blush it strikes a reader as very doubtful that the Legislature would intend to require a prescription for derivatives of codeine in those cases where it requires no prescription for the primary drug, codeine, from which the…

I concur in the judgment. The only question is whether the exemption of specified preparations of codeine (Health & Saf. Code, § 11200) also exempts the preparation of dihydrohydroxycodeinone. Since the latter is a derivative of codeine, this view would not be unreasonable if only sections 11200 and 11002 were to be considered. But the Legislature has recognized the existence of dihydrohydroxycodeinone, and the need to specify both this drug and codeine when it means to include both. (Health & Saf. Code, § 11166.12.) Sections 11200 and 11166.12 were both before the Legislature for amendment in 1953. In view of the clear recognition of the two drugs as separate subjects of legislation, I cannot construe section 11200 as impliedly including dihydrohydroxycodeinone.

Appellant, John C. Kaluna, was convicted of possessing a substance known as “Percodan” in violation of section 11500 of the Health and Safety Code. Percodan contains dihydrohydroxyeodeinone, a synthetic narcotic with a natural base, derived directly from codeine. At the trial, no proof was made as to the amount of this derivative present in the Percodan pills found in the possession of the appellant. The only contention on appeal is that the State failed to establish a prima facie case, as preparations containing less than a certain amount of dihydrohydroxyeodeinone can be dispensed without a prescription under section 11200 of the Health and Safety Code. Respondent concedes the validity of appellant’s argument if that statute is construed to include preparations containing codeine derivatives. Respondent, however, argues that Health and Safety Code, section 11200, applies only to preparations containing less than a certain amount of codeine, and not to preparations containing less than a certain amount of codeine derivatives.

Appellant was convicted of violating Health and Safety Code, section 11500, which reads as follows:

Codeine is defined as a narcotic under Health and…