P. v. Peterson

Filed 1/15/10 P. v. Peterson CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Shasta)

----

A jury found defendant Charles Peterson guilty of two counts of engaging in oral copulation with a minor; soliciting a minor to use a controlled substance; two counts of providing lewd material to a minor; inducing false testimony; four counts of contributing to the delinquency of a minor; possessing methamphetamine; possessing clonazepam; possessing an unlawful smoking device, and possessing marijuana. Defendant was sentenced to an aggregate term of ten years in state prison.

On appeal, defendant contends that statements he made to a psychotherapist as a condition of probation were involuntary and, thus, the trial court erred in ruling the statements could be used to impeach defendant if he testified at trial after his plea was set aside. He also claims, among other things, that there was insufficient evidence to support his conviction for possessing clonazepam.

We shall reverse the judgment because, as we will explain, the trial court committed prejudicial error in ruling that defendants statements to the psychotherapist could be used to impeach him at trial if he were to testify. We also conclude that retrial on the charge of possessing clonazepam is barred by the prohibition against double jeopardy because, as the People concede, evidence presented by the prosecution was insufficient to support the conviction. In light of our decision, we need not address the other contentions raised by defendant on appeal.

FACTS

During 2000, 16-year-old Cheyenne S. and 16-year-old J.K. purchased methamphetamine from defendant and spent time at his apartment while they were truant from school. In exchange for drugs, Cheyenne worked for defendant delivering methamphetamine to customers, cleaning his apartment, and babysitting his four-year-old son.

Defendant occasionally would view child pornography at the apartment and show it to Cheyenne, J., and other teenage girls who frequented his home. Defendant would give them drugs in exchange for their dancing naked in front of him, kissing each other, performing various sex acts on him, and allowing him to perform oral sex on them.

On the afternoon of October 5, 2000, Officer Brian Berg was looking for truants at defendants apartment complex, which was known for a high level of drug activity. Seeing Cheyenne and J., who appeared to be of high school age, he placed them in the back of the patrol car and tried to contact their parents. Cheyenne told Berg that defendant had drugs in his apartment, and she described where they were located.

When Officer Berg contacted defendant, he suspected defendant might be under the influence of methamphetamine. In response to Bergs inquiries, defendant said he did not have any drugs in his apartment. After defendant consented to a search of the residence, Berg used the information Cheyenne gave him to search certain areas of the apartment where he found a useable amount of marijuana remnants, a substantial amount of methamphetamine, and a pipe for smoking methamphetamine. Berg arrested defendant, searched him, and found two tablets of a medication for which he did not have a prescription. Defendant denied any knowledge that drugs were in his residence.

When officers executed a search warrant at defendants apartment, they discovered a four-inch glass pipe. After first denying the pipe belonged to him, defendant accused the officers of planting it in his residence. He then claimed it was a vase for small flowers. Officers seized defendants computer, which contained images of child pornography and indications that the computer had been used to access child pornography sites.

Cheyenne testified defendant told her she and J. should tell the police that defendant had been set up; the drugs had been planted in his home . . . .

Defense

Katherine Emmons, who had done babysitting and housekeeping chores for defendant in 2000 when she was a teenager, testified she never saw defendant use drugs and have any pornography. According to Emmons, pretty much everybody who hung out at defendants home used his computer. Cheyenne and J. frequented defendants apartment, but Emmons usually asked them to leave whenever she was there because they were troublemakers.

Nickle Stoner testified that when he was borderline on 18, he would go to defendants apartment to smoke marijuana, drink cognac, and play video games. According to Stoner, he did not see defendant use methamphetamine, and Cheyenne and J. usually brought their own methamphetamine to defendants home.

DISCUSSION

I

Defendant contends the trial court erred in ruling that admissions he made to a psychotherapist during a treatment program mandated as part of a prior grant of probation could be used to impeach him at trial. Before addressing his contention, it is helpful to set forth the tangled procedural posture of this case to provide context.

A

The crimes charged against defendant were committed in 2000. However, his trial did not occur until March 2008 for the following reasons:

Defendant was charged in case No. 00F10289 with possessing child pornography; three counts of engaging in oral copulation with a minor; soliciting a minor to use a controlled substance; two counts of providing lewd material to a minor; inducing false testimony; and three counts of contributing to the delinquency of a minor. It was further alleged that he committed the offenses while released on his own recognizance in case No. 00F8353, in which he was charged with possessing methamphetamine.

In March 2001, pursuant to People v. West (1970) 3 Cal.3d 595, defendant pled no contest to possession of methamphetamine (case No. 00F8353), possession of child pornography, and two counts of oral copulation (case No. 00F10289). In exchange, the remaining charges would be dismissed, and he would receive probation. The written plea form stated a no contest plea would result in a finding of guilt, which would have the same legal consequences as a finding of guilt. However, at the plea hearing, the court stated: Basically, youre acknowledging--not saying you did the act, but that you feel your exposure, if you went to trial, is too great, that its in your interest to enter the plea at this time; is that a fair statement? Defendant replied affirmatively and entered his no contest plea.

At the sentencing hearing, the court sentenced defendant to a term of five years in state prison, suspended the execution of the sentence, and placed him on formal probation for three years. As conditions of probation, the court ordered that defendant participate in counseling, as directed by the probation officer, and to meaningfully participate in, comply with and follow all the rules and requirements of, and complete a recognized adult sex offender treatment program.

In October 2002, the prosecutor initiated proceedings to revoke probation because defendant was violating the condition requiring him to comply with and complete the sex offender treatment program. A hearing on the motion was continued on several occasions.

On March 14, 2003, defendant filed a petition for a writ of error coram nobis to set aside his pleas in case Nos. 00F8353 and 00F10289 on the ground he was not advised he would be required to admit his guilt in order to successfully complete the sex offender program. When defendant began the program, Dr. Armstrong advised him that he had to admit all of the allegations in the police reports or be terminated from the program. Under duress, defendant wrote that he had done the things in the report; but when Dr. Armstrong asked for details, defendant replied he could not provide any because he had not done the things alleged. According to defendant, Dr. Armstrong told him to make something up or he would be terminated from the program and sent to prison. Dr. Armstrong informed him that his no-contest plea was an admission of guilt and that, if he did not admit his guilt, he should not be in the program. Under the circumstances, defendant lied about the details of the crimes in order to stay in the program, until he [h]ad a nervous breakdown and could not do it anymore.

Defendant averred that, if he had known he would actually have to admit his guilt and provide the details of the crimes, he would not have entered a no contest plea under People v. West, supra, 3 Cal.3d 595. Defendants attorneys declared that at no time did they advise him he would have to admit his guilt as part of the treatment program, and that they did not know this was a requirement of the program until after judgment was rendered.

The court observed that a visiting judge, in a department other than the one in which sexual offenders were usually handled, had allowed defendant to enter a no contest plea, even though sexual offenders were required to plead guilty in order to receive a grant of probation and assignment to the SORT sexual offender program. In fact, sex offenders usually were interviewed by a psychotherapist, who then provided the court with a risk assessment prior to sentencing, and advised the defendant of the parameters of the SORT program, including that the offender must be willing to admit his guilt to be accepted into the program. This procedure was not followed in defendants case, causing him to be thrust into a program that required him to admit his guilt in order to successfully complete probation, despite his consistent claims of innocence. Statements by the judge who accepted the plea confirmed defendants belief that his no contest plea was not an admission of guilt; and defendant was never made aware until after he was sentenced that he would need to admit the details of his crimes to succeed on probation.

Thus, the court found the evidence substantiated that there had been an unintentional nondisclosure of a linchpin component of the grant of probation, that defendant had entered his plea in good faith based on the absence of knowledge concerning this linchpin, and that this deprived him of his free will and judgment in making the plea. Accordingly, the court granted the petition, set aside the pleas, and reinstated all of the dismissed charges.Thereafter, the two cases were consolidated for trial.

B

At trial, defense counsel moved to exclude any statements defendant made during the SORT program, on the ground they were protected by the psychotherapist-patient privilege (Evid. Code,  1014).

The prosecutor contended that, if defendant testified on his own behalf and denied committing any of the crimes or having those sexual proclivities, then his prior statements and the sexual history he was required to complete as part of the sex offender program should be admissible for impeachment because defendant was not entitled to commit perjury.

The trial judge, Judge Curle (hereafter the court), who noted that he had a wealth of knowledge about the SORT program because he was the judge who managed the program for ten years, observed that defendant got the wrong judge for this issue, which is to say youve got the judge who in this county knows more about the SORT program than any other judge or judges put together. The court said the program was developed to rehabilitate defendants if possible, and to protect the community. As part of the program, there is an initial assessment in which the defendant indicates a willingness to make revelatory comments in order to be in the program. One of the qualifiers for the program is the defendant has to plead guilty; a no contest plea is not acceptable. The defendant ha[s] to come clean; otherwise, we dont let him in the program. The court did not know, but suspected, that the defendant had to waive confidentiality, even though the waiver form was not in the courts files. According to the court, Theres nothing between the defendant and the therapist that precludes the therapist from revealing what the defendant just told them . . . .

Thus, the court ruled that the statements and information were not protected but indicated that, if defendant was able to show the courts recollection of how the SORT program worked was wrong, then the court was willing to revisit the issue.

At the close of the prosecutions case-in-chief, the court told defense counsel it had left the door open relative to the question of your motion if [defendant] testifies. The courts position was that, in order to get into the SORT program, the defendant had to agree there is no patient/therapist privilege.

Defense counsel responded that, on the basis of the courts discussion, he was not prepared to go any further with the motion. In light of the courts ruling, defendant opted not to testify in his own defense.

C

Defendant argues the court erred in ruling that the statements he made to a psychotherapist under duress during his first grant of probation could be used to impeach him at trial if he testified. His claim of error is premised on the psychotherapist-patient privilege (Evid. Code, 1014), and on two other grounds that were not raised in the trial court: (1) the statements were inadmissible for impeachment or any other purpose because they were involuntary under the peculiar circumstances of this case and their admission would violate his Fifth Amendment right against self-incrimination; and (2) once the trial court granted the writ of coram nobis petition, defendants plea was withdrawn, and the charges were reinstated, then his constitutional due process rights under the Fourteenth Amendment required that he be returned to the status quo ante, which means any comments made to the probation officer or therapist as part of his treatment could not be used against him.

Acknowledging his trial counsel did not raise the latter two objections, defendant contends he may raise constitutional issues for the first time on appeal. He also argues that, if his counsels failure to object on the proper grounds at trial results in a forfeiture of the issue on appeal, then he received ineffective assistance of counsel. He observes that counsel moved to exclude his statements based on the psychotherapist/patient privilege at trial, and there is no tactical reason for failing to pursue meritorious constitutional grounds in support of the motion. Defendant claims he was prejudiced by the threatened introduction of his statements for impeachment because it prevented him from exercising his right to testify in his defense and precluded the jury from assessing the credibility of his denial of the charges.

Defendants claim of error concerns a fundamental right set forth in the Fifth Amendment to the United States Constitution, which provides that no person shall be compelled in any criminal case to be a witness against himself. As we shall explain, his claim has merit. Accordingly, he may raise it despite his lack of objection on this ground in the trial court. (People v. Vera (1997) 15 Cal.4th 269, 276 [A defendant is not precluded from raising for the first time on appeal a claim asserting the deprivation of certain fundamental, constitutional rights]; People v. Saunders (1993) 5 Cal.4th 580, 589, fn. 5 [double jeopardy claim]; People v. Holmes (1960) 54 Cal.2d 442, 443-444 [constitutional right to a jury trial].)

The resolution of defendants contention hinges upon whether his statements to the SORT program therapist were voluntary. If he was compelled to talk to the therapist and make incriminating statements, the statements were inadmissible for any purpose. (Mincey v. Arizona (1978) 437 U.S. 385, 398 [57 L.Ed.2d 290, 303]; People v. Peevy (1998) 17 Cal.4th 1184, 1193.) If, however, the statements were not compelled and their trustworthiness satisfies legal standards, then they could be used for impeachment, even if his plea was set aside, returning him to the position of being an innocent person charged with a crime. (Mincey v. Arizona, supra, 437 U.S. at pp. 397-398 [57 L.Ed.2d at p. 303]; People v. Brown (1996) 42 Cal.App.4th 461, 473-474; People v. Pacchioli (1992) 9 Cal.App.4th 1331, 1338-1341.) Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury.[Citations.] (Harris v. New York(1971) 401 U.S. 222, 225 [28 L.Ed.2d 1, 4]; People v. May (1988) 44 Cal.3d 309, 319.)

[I]n the ordinary case, if a witness under compulsion to testify makes disclosures instead of claiming the privilege [against self-incrimination], the government has not compelled him to incriminate himself. [Citation.] (Minnesota v. Murphy (1984) 465 U.S. 420, 427 [79 L.Ed.2d 409, 419] (hereafter Murphy).) However, the privilege need not be invoked and is self-executing in certain penalty cases, such as where the assertion of the privilege is penalized so as to foreclos[e] a free choice to remain silent, and . . . compe[l] . . . incriminating testimony. [Citation.] (Id. at p. 434 [79 L.Ed.2d at p. 424].) There must be a threat of punishment for relying on the privilege, as opposed to merely requiring the witness to appear and give truthful testimony about non-incriminating matters. (Id. at pp. 434-435 [79 L.Ed.2d at p. 424].)

Defendant asserts that he was not merely required to answer non-incriminating questions truthfully; he also was unable to invoke his Fifth Amendment privilege without the threat of penalty. He was compelled to answer questions about the crimes and was threatened with probation revocation and imprisonment if did not comply.

Relying on Murphy, supra, 465 U.S. at p. 435, fn. 7 [79 L.Ed.2d at p. 425, fn. 7], the People counter there is no penalty situation where the questions put to a probationer were relevant to his probationary status and posed no realistic threat of incrimination in a separate criminal proceeding and the privilege against self-incrimination was unavailable where answering questions might reveal a probation violation and constitute grounds for termination.

When Murphy is viewed in context, defendant has the convincing argument.

The terms of Murphys probation for a sexual offense in 1980 required he be truthful with the probation officer in all matters, and the failure to comply could result in his return to the court for a probation revocation hearing. (Murphy, supra, 465 U.S. at p. 422 [79 L.Ed.2d at p. 416].) His probation officer learned that, during treatment as a sex offender, Murphy admitted an uncharged rape and murder in 1974. The officer revealed this knowledge to Murphy, who became angry but admitted he had committed the rape and murder. (Id. at p. 423-424 [79 L.Ed.2d at pp. 416-417].) This evidence was introduced against him in a subsequent criminal prosecution. (Id. at p. 424 [79 L.Ed.2d at p. 417].)

The Supreme Court addressed whether Murphy's probation conditions merely required him to appear and give testimony about matters relevant to his probationary status--in which case he should have invoked his Fifth Amendment privilege--or whether the state went farther and required him to choose between making incriminating statements and jeopardizing his conditional liberty by remaining silent--in which case the privilege was self-executing. (Murphy, supra, 465 U.S. at p. 436 [79 L.Ed.2d at p. 425].) It concluded the state did not overstep its bounds, and Murphys privilege was not self-executing. On its face, Murphys probation condition proscribed only false statements; it said nothing about his freedom to decline to answer particular questions and certainly contained no suggestion that his probation was conditional on his waiving his Fifth Amendment privilege with respect to further criminal prosecution. (Id. at p. 437 [79 L.Ed.2d at p. 426].) There was no direct evidence that he confessed because he feared his probation would be revoked if he remained silent. (Ibid.)

The Supreme Court observed, A State may require a probationer to appear and discuss matters that affect his probationary status; such a requirement, without more, does not give rise to a self-executing privilege. The result may be different if the questions put to the probationer, however relevant to his probationary status, call for answers that would incriminate him in a pending or later criminal prosecution. There is thus a substantial basis in our cases for concluding that if the State, either expressly or by implication, asserts that invocation of the privilege would lead to revocation of probation, it would have created the classic penalty situation, the failure to assert the privilege would be excused, and the probationers answers would be deemed compelled and inadmissible in a criminal prosecution. (Murphy, supra, 465 U.S. at p. 435 [79 L.Ed.2d at pp. 424-425], fn. omitted.)

However, [t]he situation would be different if the questions put to a probationer were relevant to his probationary status and posed no realistic threat of incrimination in a separate criminal proceeding. . . . [] [A] State may validly insist on answers to even incriminating questions and hence sensibly administer its probation system, as long as it recognizes that the required answers may not be used in a criminal proceeding and thus eliminates the threat of incrimination. Under such circumstances, a probationers right to immunity as a result of his compelled testimony would not be at stake, [citations], and nothing in the Federal Constitution would prevent a State from revoking probation for a refusal to answer that violated an express condition of probation or from using the probationer's silence as one of a number of factors to be considered by the finder of fact in deciding whether other conditions of probation have been violated. [Citations.] (Murphy, supra, 465 U.S. at p. 435 [79 L.Ed.2d at p. 425], fn. 7, italics added.)

In other words, the state can compel a probationer to answer questions relevant to his or her probationary status via a threat of probation revocation, but it cannot require a probationer to make incriminating statements unless it recognizes that the statements may not be used in a pending or later criminal prosecution.

Defendants case does not present a situation where he was simply required to give testimony about matters relevant to his probationary status. He did not plead guilty to the charged crimes, expressly agree to discuss his crimes in the SORT program as a condition of probation, waive his Fifth Amendment privilege, and freely discuss his crimes. Instead, defendant (1) consistently maintained his innocence, (2) did not plead guilty, (3) was advised by the court that his no contest plea was not an admission of guilt, (4) was not told he would have to admit his guilt as a condition of probation and hence did not agree to such a condition, and (5) was coerced into answering incriminating questions on pain of revocation of his probation and imprisonment if he did not comply. Defendant averred that he lied about his participation in the crimes and, if he had known he would have to admit his guilt to successfully complete probation, he would not have entered his no contest plea.

Based on the aforesaid facts, defendants petition for writ of coram nobis was granted, the judgment arising out of his no contest pleas was vacated, and he was permitted him to withdraw his plea.

Thus, the record discloses that defendant was required to choose between making incriminating statements or jeopardizing his conditional liberty if he remained silent. (Murphy, supra, 465 U.S. at p. 436 [79 L.Ed.2d at p. 425].) His statements, which were compelled by the threatened penalty of probation revocation and imprisonment, could not be used against him for any purpose, including impeachment. (Mincey v. Arizona, supra, 437 U.S. at p. 398 [57 L.Ed.2d at p. 303].)

Relying on what is known as the Luce-Collins rule, the People argue that defendant forfeited this issue because he did not testify at trial, which means the reviewing court cannot intelligently weigh the prejudicial effect of the error. (Luce v. United States (1984) 469 U.S. 38 [83 L.Ed.2d 443] [defendant who does not testify cannot appeal the denial of an in limine motion to prevent the use of prior convictions for impeachment]; People v. Collins (1986) 42 Cal.3d 378, 384-385 [defendant who does not testify cannot complain of a ruling that prior convictions are admissible for impeachment].)

Defendant retorts that he did not need to testify and permit himself to be impeached in order to preserve this issue, because it involved constitutional error as opposed to the erroneous use of a prior conviction for impeachment and, thus, the Luce-Collins rule is inapplicable. Defendant is correct.

[W]hen the defendant raises a pure issue of law concerning a fundamental constitutional right, the defendant need not testify to preserve error in the trial courts rulings on impeaching evidence. (People v. Brown, supra, 42 Cal.App.4th at p. 471; see also People v. May, supra, 44 Cal.3d at p. 314; U.S. v. Chischilly (1994) 30 F.3d 1144, 1150-1151 [Luce rule does not apply where the prosecution seeks to use an involuntary confession against the defendant].) [A]ny criminal trial use against a defendant of his involuntary statement is a denial of due process of law, even though there is ample evidence aside from the confession to support the conviction. [Citations.] (Mincey v. Arizona, supra, 437 U.S. at p. 398 [57 L.Ed.2d at p. 303], original italics.)

The People claim the issue is not a pure issue of law because we do not know the specific statements defendant made in the SORT program, and the trial court did not rule on whether the statements were voluntary. But we do know that defendants petition for writ of coram nobis was granted because he was misled about a linchpin component of his plea--the requirement that he admit guilt despite his claims of innocence. Moreover, the factual record from the coram nobis proceedings permits a determination that defendants statements concerned his sexual history with the victims and others were compelled.

Therefore, we must determine whether the error was prejudicial. The harmless error analysis under the beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705] (hereafter Chapman) is generally applicable to error under the United States Constitution, including the erroneous admission of involuntary statements. (People v. Neal (2003) 31 Cal.4th 63, 86.) The Chapman standard requir[es] the beneficiary of a [federal] constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. [Citation.] To say that an error did not contribute to the ensuing verdict is . . . to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record. [Citation.] Thus, the focus is what the jury actually decided and whether the error might have tainted its decision. That is to say, the issue is whether the . . . verdict actually rendered in this trial was surely unattributable to the error. [Citation.] (Id. at p. 86.)

The People, as the beneficiary of the error, make no attempt to show that the ruling, which permitted defendant to be impeached with his compelled statements, was harmless beyond a reasonable doubt. They do not dispute that the ruling kept defendant from exercising his constitutional right to testify and to present his defense. Defendant denied committing the offenses but, had he so testified, his compelled statements would have been used against him, thereby undermining his credibility.

A confession is like no other evidence. Indeed, the defendants own confession is probably the most probative and damaging evidence that can be admitted against him. . . . [T]he admissions of a defendant come from the actor himself, the most knowledgeable and unimpeachable source of information about his past conduct. Certainly, confessions have profound impact on the jury, so much so that we may justifiably doubt its ability to put them out of mind even if told to do so. [Citation.] (Arizona v. Fulminante (1991) 499 U.S. 279, 296 [113 L.Ed.2d 302, 322].)

The charges hinged primarily on the testimony of Cheyenne S., since J.K. did not testify at trial. At the time of defendants crimes, Cheyenne was a regular user of methamphetamineand, according to one witness, Cheyenne usually brought her own methamphetamine to defendants home. She was caught being truant from school, was under the influence of drugs, and had marijuana in her possessionwhen she told Officer Berg she had incriminating evidence against defendant. Cheyenne, who had regular access to defendants home and sometimes spent the night there, said defendant had drugs. After defendant gave Berg consent to search the residence, Cheyenne told Berg where the drugs were stored. Cheyenne testified that defendant engaged in inappropriate sexual behavior with her and J., and that he showed them pornography on the computer. Evidence of pornographic material was found on the computer, but there was also evidence that several other people had access to and used the computer. Emmons never saw any pornography at defendants house and never saw him use drugs.

Accordingly, defendants culpability was largely dependent on Cheyenne S.s testimony, which cannot be said to have risen to the level of overwhelming evidence of guilt. The jury was prevented from hearing defendants denials or explanations. He could not choose to testify about the nonsexual offenses only--thereby preventing his impeachment--because doing so would have implicitly given credence to Cheyennes version of the sexual offenses. Thus, we cannot say the error was harmless beyond a reasonable doubt.

Because we must reverse on this ground, we need not address defendants assertions that the prosecutor committed misconduct when, in questioning a witness, the prosecutor referred to defendants admissions, and that the trial court erred in failing to instruct sua sponte on the misdemeanor of distributing harmful material to a minor (Pen. Code, 313.1) as a lesser included offense of providing lewd material to a minor (Pen. Code, 288.2, subd. (a)).

We must, however, address his claim that there is insufficient evidence to support his conviction for the possession of clonazepam. If the claim is meritorious, a retrial of the clonazepam count is barred by principles of double jeopardy. (Burks v. United States (1978) 437 U.S. 1, 16-18 [57 L.Ed.2d 1, 12-14]; People v. Hatch (2000) 22 Cal.4th 260, 271-272.) We decide that issue in Part II, post.

II

The People concede there was insufficient evidence to support defendants possession of clonazepam conviction. The concession is appropriate.

Officer Berg testified he found two pills in defendants sock. Defendant said that he used the pills for pain, but did not have a prescription for the medication. Berg took the pills to Owens Pharmacy, where a pharmacist looked in a book before telling Berg the pills were Clonodil, Klonopin. When defendant heard the name, he verified that it was the medication he possessed.

The prosecutor then asked Officer Berg what is Clonazepam? Berg testified that, to his knowledge, it is an antipsychotic. In his words, Its a scheduled drug which means its a controlled substance and illegal to possess without a prescription.

Thus, the evidence disclosed (1) defendant admitted he possessed Klonopin without a prescription, and (2) it is unlawful to possess clonazepam without a prescription. Although Klonopin is a brand name for clonazepam (www.drugs.com/klonopin.html), the jury was not made aware of this fact. Consequently, the evidence was insufficient to support the jurys determination that defendant possessed clonazepam, and defendant may not be retried on this count.

DISPOSITION

The judgment is reversed and remanded for further proceedings consistent with our opinion.

SCOTLAND , P. J.

We concur:

NICHOLSON , J.

ROBIE , J.

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