P. v. Kokkeby

Filed 11/18/08 P. v. Kokkeby CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

A jury found defendant Jimmy Kokkeby guilty of possession of a controlled substance, Fentanyl. Defendant contends the verdict was error because there was insufficient evidence to prove that he knew that he was in possession of a controlled substance. As discussed below, we find no prejudicial error and affirm the judgment.

Background

Fentanyl is a synthetic opiate about 80 to 100 times more potent than morphine. It is prescribed in minute dosesmeasured in microgramsfor the management of severe, chronic pain. Fentanyl is frequently diverted for illegal use. Highly addictive, it is classified as a Schedule II controlled substance by the federal Drug Enforcement Administration (DEA). Fentanyl is also a controlled substance under state law, and as such its possession without a prescription is unlawful. (Health & Saf. Code,  11055, subd. (c)(8), 11350, subd. (a).)^[1]

A facility of ALZA Corporation located in Vacaville (ALZA) manufactures pharmaceutical preparations, including a skin patch containing Fentanyl. ALZAs bulk supply of raw Fentanylan off-white powdery substanceis stored in blue containers some two feet high. These blue drums have a unique, tapered shape and are labeled in two placesby regulationto indicate that they contain Fentanyl. ALZA keeps its raw Fentanyl in locked vaults. When the drug is needed to complete a work order, vault workers remove one or more of the blue containers and transport them on a cart or pallet to a staging room where pharmacy personnel take custody. To avoid contamination, trained pharmacy workers open the containers only in a clean dispensing room. These workers wear suits with breathing apparatus when handling raw Fentanyl, because contact with the powder is dangerous and breathing it can cause respiratory arrest. The special suits are yellow and worn only when handling Fentanyl. Pharmacy workers wear another, a white suit, when handling other substances.

ALZA uses five different controlled substances, including Fentanyl, in the medications it produces. In 2004, the facilitys number one commercial product was a Fentanyl skin patch. In June of that year, defendant began working at ALZA as a temporary employee. He initially completed a three-day training course. His training included a 90-minute introduction to controlled substances, which defendant attended with about 10 other newly hired employees. The instructor of the class utilized PowerPoint images. One such image provided a definition of the DEAs Schedule II controlled substancessubstances with an accepted medical use, but a high potential for abuse and addictionand gave a short list of examples that included Fentanyl. Another image listed Fentanyl as the fourth of five controlled substances handled at ALZA, and the instructor explained to the class that these five controlled substances had a high potential for abuse and unlawful diversion, so [the trainees would] know to be careful with them.

Defendant worked in the pharmacythat portion of the ALZA facility where raw drugs are weighed and dispensed for individual work orders. He had not been trained to handle Fentanyl, but others who were so trained did handle that drug in the particular area where defendant worked. One pharmacy worker testified that about half of the workers in his shift were trained to handle Fentanyl, and that each team of workers usually included at least one individual who had experience handling the drug. A facility manager agreed that, because defendant was not trained how to handle Fentanyl, he would know not to touch the stuff.

On October 17, 2004, after working at ALZA for over three months, defendant was working the swing or second shift in the pharmacy. The work scheduled for that date included the weighing of some Fentanyl. A security camera videotaped one area of the pharmacy during that shift. At one point, the tape showed an unattended cart holding a Fentanyl container. An individual dressed in his operators attire, approached the cart and took the container to a corner of the room outside the cameras range. A few minutes later, the individual reappeared in the cameras view, and left the container in its original position after taking a couple [of] minutes to fasten its lid.

A pharmacy worker who arrived for the grave or third shift found defendant lying down, unresponsive and breathing heavily, in an office adjacent to the pharmacy dispensing rooms. He was wearing his clean zone suit. After calling for ALZAs emergency response team, the worker noticed two paper cups on the desk near defendant, one containing a clear liquid and the other a powder. Later testing showed that the powder was approximately 108 grams of Fentanyl.

A Vacaville police officer interviewed defendant four days after the incident, following the latters release from a hospital. Defendant reported that someone at the hospital had informed him he had been exposed to Fentanyl. He admitted he had scooped powder from the container in the ALZA pharmacy. Although the officer did not recall defendant stating expressly that he knew the powder was Fentanyl when he took it, he did recall that defendant told him he knew the substance he took was potent because other workers wore a special yellow suit when handling it. Defendant explained to the officer that he took the powder because he was contemplating suicide. He decided against the attempt, however, and said he had not intentionally ingested any of the powder. Defendant also told the officer he had intended to dispose of the powder in the event he decided not to use it, by pouring it into a sink drain. Evidently he passed out before he could do so.

An ALZA manager testified that defendant later admitted taking the powder, scoop[ing] it out with a cup and then hiding it in the off-camera corner where he had briefly taken the container. Defendant also told the manager he had mixed some of the powder with water in order to drink it, but did not like the way it looked.

An amended information, filed August 27, 2007, charged defendant with possession of a controlled substanceFentanyla felony violation of section 11350, subdivision (a). A second count charged defendant with felony vandalism. (Pen. Code,  594, subd. (b)(1).) On October 25, 2007, following trial, the jury returned a verdict finding defendant guilty of the first count and not guilty of the second. At the sentencing hearing held January 14, 2008, the trial court suspended imposition of sentence and granted defendant formal probation for a period of three years. This appeal followed. (Pen. Code,  1237, subd. (a).)

Discussion

Section 11350, subdivision (a) provides in relevant part that it is unlawful for a person [to] possess[] any controlled substance specified in subdivision . . . (c) of Section 11055 . . . unless upon [a] written prescription . . . . The substances thus specified include Fentanyl. ( 11055, subd. (c)(8).) One element of this offense requires proof that defendant knew of the substances nature or character as a controlled substance. (See CALCRIM No. 2304 (2007 ed.); see also People v. Horn (1960) 187 Cal.App.2d 68, 74-75.)

Defendant contends there is not substantial evidence to support the jurys verdict convicting him of a felony violation of section 11350, subdivision (a). He argues there was insufficient proof of his knowledge, either that the substance he took was Fentanyl, or that Fentanyl was a controlled substance.

In determining evidentiary sufficiency in a criminal prosecution, we review the entire record, in the light most favorable to the judgment, for the presence of substantial evidencethat which reasonably inspires confidence and is of solid valuesuch that  [a]ny rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  (People v. Marshall (1977) 15 Cal.4th 1, 34 (Marshall), quoting Jackson v. Virginia (1979) 443 U.S. 307, 319, italics in original; see also People v. Chatman (2006) 38 Cal.4th 344, 389.)

We have summarized above, in the light most favorable to the judgment, the evidence relevant to defendants knowledge. Defendant received initial training that included specific instruction concerning Fentanyl, that is, it was one of five controlled substances used at the ALZA facility. The PowerPoint presentation included a segment that listed Fentanyl as a controlled substance. Defendant worked in an area where Fentanyl, among other drugs, was measured and dispensed. His coworkers during any given shift typically included individuals experienced with handling Fentanyl. Defendant took a cupful of powder from a container with a unique shape, labeled Fentanyl in two places. One of the properties of Fentanyl is its extreme potency as pain medication, and defendant admitted knowing that the powder he took was potent. It is evident he believed ingestion of the powder might be an effective way to end his own life. Defendant further admitted knowing that the powder he took was a substance handled by workers wearing yellow suitssuits worn at ALZA only when handling the controlled substance Fentanyl. Defendant hid the powder in a corner after taking it, and intended to wash it down a drain in the event he did not use it.

We conclude the foregoing evidence provides substantial support such that any rational trier of fact could find, beyond a reasonable doubt, that defendant knew the powder he took on October 17, 2004, was the controlled substance Fentanyl. (Marshall, supra, 15 Cal.4th at p. 34.)

Disposition

The judgment is affirmed.

______________________

Marchiano, P.J.

We concur:

______________________

Swager, J.

______________________

Flinn, J.^*

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^[1]Further statutory references are to the Health and Safety Code unless otherwise indicated.

^*Judge of the Superior Court of Contra Costa County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.