8157 Version 1.000 Lawyerdude1989@yahoo.com 888 476 8954
9 Cal.4th 1236 , 40 Cal.Rptr.2d 722; 893 P.2d 717
California Supreme Court May 8, 1995
The actual opinion is further below. About 2 pages below this supplementary material.
This page is http://www.lawyerdude.netfirms.com/8157.html
Related pages:
My annotations to a default opinion by the state bar: http://www.lawyerdude.netfirms.com/7576.html
This same case at Findlaw.com : http://login.findlaw.com/scripts/callaw?dest=ca/cal4th/9/1236.html
This same case at the court of appeal where Palaschak won: Whoops. Gotta find that.
Defamatory lies by the state bar: http://www.lawyerdude.netfirms.com/6691.html
How some dumbass federal clerk named Katapodis thought she could suspend me! http://www.lawyerdude.netfirms.com/brosnan.html This contains a much more detailed chronology and many more links.
Chief federal clerk admits that I was not suspended on the day of the raid: http://www.lawyerdude.netfirms.com/brosnan.jpg
Update: Judge Real, age 82, has tried to “get” Steve Yagman: Http://www.lawyerdude.netfirms.com/judgreal.html
The smoking gun letter: http://www.lawyerdude.netfirms.com/brosnan.jpg
Those bastards delayed 4 months in writing this letter!
Letter by another dumbass clerk illegally trying to suspend me without a hearing! http://www.lawyerdude.netfirms.com/notice.jpg
Ming case says that I have a right to a hearing! http://www.lawyerdude.8m.com/ming.html
Here is a picture of the affidavit in support of the search warrant:
http://www.lawyerdude.netfirms.com/search1.jpg
http://www.lawyerdude.netfirms.com/search2.jpg
http://www.lawyerdude.netfirms.com/search3.jpg
http://www.lawyerdude.netfirms.com/search4.jpg
The state bar lies about my federal license and falsely accuses me of a felony!
http://www.lawyerdude.netfirms.com/6691.html
My disbarment page: http://www.circuitlawyer.8m.com/5453.html
The defamatory post still remains posted: From http://www.calbar.ca.gov/calbar/2cbj/96jan/2cbj5.htm
Story of The Raid at the Good Nite Inn: http://www.circuitlawyer.8m.com/5460.html
Omnibus brief from Raid at Good Nite Inn circa 1993 http://www.lawyerdude.8m.com/1172.html
Lawyerdude’s Motion to fire Public Defender after Raid at Good Nite Inn where police kept diaries and computers for a year: http://www.lawyerdude.8m.com/1200.html
Link to the smoking gun letter http://www.lawyerdude.netfirms.com/brosnan.jpg from Chief Clerk Leonard Brosnan of the Federal Court in Los Angeles proving that I was indeed licensed at the time of the Raid at the Good Night Inn!
My disbarment page is/ was page http://www.circuitlawyer.8m.com/5453.html but page 5453 has been superseded and swallowed up by this page 8157.
Case law re disbarment: http://www.lawyerdude.8k.com/
The opinion to disbar me for doing perfect bankruptcies while perfectly licensed in federal bankruptcy court http://www.circuitlawyer.8m.com/5452.pdf
The California Supreme Court opinion overturning my victory re my misdemeanor LSD case: http://www.lawyerdude.netfirms.com/8157.html
The opinion of the court of appeal awarding a victory to me in the LSD case: Whoops, gotta find that. December 1993.
It is in violation of the constitution to disbar me in federal court automatically upon state court disbarment but they did it anyway:
Theard 1957 http://www.lawyerdude.8k.com/theard.html
Selling is the 1917 case on which this case is founded. http://www.lawyerdude.8k.com/selling.html
Schware is 1957 precedent: http://lawyerdude.8k.com/schware.html
Ruffalo 1968 depends on Theard for precedent: http://www.lawyerdude.8k.com/Ruffalo.html
Konigsberg 1 1957 is precedent: http://www.lawyerdude.netfirms.com/konig1.html
Konigsberg 2 1961 is interesting: http://www.lawyerdude.netfirms.com/konig2.html
This page is mentioned on page http://www.lawyerdude.8m.com/5123.html
Here is the disbarment for doing bankruptcies: http://www.circuitlawyer.8m.com/5452.pdf No hearing. Void.
Here is the suspension turned into disbarment: http://www.lawyerdude.8m.com/2656.html Did this without notice.
How Katapodis, low level federal clerk, ruined my law office due to mistake of law www.lawyerdude.8k.com/5742.html
New 17 March 03: Here is a good link about a guy having problems with the 7th circuit: http://www.guerrillanews.com/cocakarma/page10.html
Highlights of this article:
Overview:
In December 1994 I served my Lawyer’s Manifesto upon www.lawyerdude.8k.com/5753.html the California Bar and the California Supreme Court. It was embedded in a federal civil rights lawsuit http://www.circuitlawyer.8m.com/1875.htm to force them to follow my manifesto. In reaction they retaliated and disbarred me for my first discipline ever. They recalled a mere suspension and upgraded it in retaliation. There are 2 bar opinions in the same case - weeks apart! I am missing one of those opinions - the upgrade. The first one, filed on 24 May 1995, is about LSD and traffic tickets and some cases that I could not handle because I was in jail - and about my secretaries who were dying to be on TV - and I got them on TV. The bar should not have taken their complaints seriously. Hard Copy is merely entertainment. I provided the names of the girls; it is not like they some sort of investigation. Inside Edition paid me to do the show - and I provided them with video footage and the information about the girls. The 2nd opinion was filed on May 1, 1995 - prior to the filing of the first one?
I have not yet uploaded my refutation to this deceptive writing from David Wesely - who is not a judge but merely a prejudice lawyer hired by the very prosecutors who argue the cases before him - and paid by the state bar who is the prosecution. This bad opinion is rebutted by me at http://www.lawyerdude.8m.com/2656.html In pdf it is in 3 parts as follows: bar1.pdf , Bar2.pdf , and bar3.pdf.
The other opinion (at page 5452) is about bankruptcies. For those of you who have asked me why I was disbarred, you may find the bar's decision (at 5452 below) to be something different than what I told you. I was telling you about the one decision. I had forgotten about the decision regarding bankruptcies. I went to one hearing - the one about traffic tickets - until I was kicked out, but I was not aware of the second hearing - the one about bankruptcies. This was disbarment by default. It was a terrible shock to be disbarred by default! I was not even aware of a hearing. None of my bankruptcy clients complained about my work; if there was a complaint it was a result of my envelopes not being mailed because the police took them in the Raid at the Good Nite Inn . This was an outfall from the Raid at Good Nite Inn. After spending 9 months in jail for bogus traffic tickets (driving while my license suspended - unconstitutionally suspended - no valid reason) I resumed my bankruptcy practice after first checking on the status of my federal license. At first a federal court low lever clerk named Izabell Katapodis took it upon herself to disbar me. See page www.lawyerdude.8k.com/5742.html I took it up with Leonard Brosnan the Clerk of the U.S. District Court. He talked to Chief Judge Real who told him that my license indeed could not be suspended without due process.
The district attorney, who has a special interest in me because of my outspoken condemnation of unjust laws regarding drugs and sex, called Katapodis and she lied to them telling them that my federal license was suspended. She, of course, was wrong.
The police set up a raid by pretending to be bankruptcy clients. They police put me in jail for a week. Immediately after being arrested I explained to the police that they were wrong. They must have believed me because they did not ever file a criminal complaint but they kept my computers, money, laser printer, answering machine, and all my stuff for a year. If they could not put me out of business legally , they would do it illegally.
There is a lot more to this story.
Chronology of Operative Events:
1988 Palaschak happily practicing law in Ventura California.
1989 Palaschak receives speeding ticket returning from Superior Court in Bakersfield, California, on Interstate 5 and attempts to litigate the ticket near Magic Mountain, California.
1990 Palaschak receives another speeding ticket. Eventually his failure to properly deal with these (and a mistake of the court in assessing duplicate points) tickets caused them to eventually and mistakenly blossom into a erroneous suspension of his driving license. Although the suspension was unconstitutional and a legal nullity, Palaschak did not deal with it properly.
1990 Palaschak appears on The Love Connection.
1991 May 7. Police arrive at Palaschak’s office during his birthday party and confiscate LSD from the purse of Palaschak’s secretary, Jessica Jobin.
1991 November. Palaschak appears on Hard Copy and Inside Edition.
1991 Palaschak receives several tickets for driving on a suspended license.
1992 January. Palaschak mistakenly pleads guilty to driving on a suspended license. Sentenced to 1 year in jail.
1992 March 20. Palaschak begins his jury trial for 2 felonies and a misdemeanor regarding the LSD in the purse of his secretary. She copped a deal and testified against him.
1992 April 1. Mike Tyson goes to prison. Palaschak goes to jail so serve a year long sentence on a traffic ticket.
1992 April 1 We begin this story around April 1, 1992. . I went to jail on April 1, 1992 - same day as Mike Tyson went to jail. This was in the middle of my LSD trial. For some years I had been living the good life. I was on The Love Connection with Chuck Woolery. I had achieved my goal of acquiring a nice law office. I had a big yellow pages ad. I was doing bankruptcies.
On April 1, 1992 I was in the middle of my trial for having eaten LSD at my birthday party on May 8, 1991. Around April 1, 1992 I had to go to jail to serve a year sentence for minor traffic tickets. This is another long story but some of these cases were still on appeal and all of them should have been on appeal. To this day, 14 years later I have no idea how the appeal turned out!
Ironically, my new yellow pages ad hit the streets in the new phone books around April 1. I first saw the ad some days/ weeks later in the jail law library. I never answered any calls from that ad because I never did go back to that office. I was in jail from April 1, 1992 until January 1993 - 9 months.
Around April 1, 1992 I departed my nice law office in the gold glass building across from the court house. I would never see that office again - nor would I ever see much of the stuff in my office. That is another story.
I turned myself in at jail. During much of my LSD trial I was in custody but I always wore a suit at trial.
While I was in jail, the state bar illegally suspended my license with no hearing.
They based it on a felony conviction. There was no felony conviction! I have never been convicted of a felony! Here is proof: http://www.lawyerdude.netfirms.com/6691.html
Here is the story as told more contemporaneously in a Declaration that I wrote in a motion.
1992 Around April 3. Jury acquits Palaschak of two felonies but convicts him of misdemeanor possession of the 1 dose of LSD that he ate 3 hours before the police arrived.
1992 Around April 15. State Bar illegally suspends Palaschak who is in jail. The suspension is based on misdemeanor conviction for having eaten LSD.
1993 Around January: Palaschak is released from jail on the year long sentence for driving on suspended license. He immediately begins work on his brief for appeal of his misdemeanor LSD case.
January 1993. Upon being released from jail I was eager to find a way to make a living without a state bar license. I had been doing bankruptcies for a living before jail. I was released from jail for minor traffic tickets for which I had been sentenced to around a year in jail
Declaration of Palaschak Re: Conversations with Brosnan in Jan 93
I, Douglas Palaschak, declare the following under penalty of perjury: On approximately January 13 1994 I reviewed my January and February 1993 diaries which had been seized during the August 27, 1993 raid and placed in the court's exhibit department. The diaries confirm the following:
1993 Jan 18 On Monday Jan 18, 1993 I spent 3 hours keying the Ming decision into my laser printer so that I could print the decision without driving out to a copy shop.
1993 Jan 19 Page 30 reveals that on Jan 19, 1993 I had still not written a "Ming Motion" for federal court.
1993 Jan 26 On Tuesday 26 Jan 1993 at 9:24 I called 213-894-2085 to attempt to communicate with the Standing Committee on Discipline. The clerks would not or could not tell me who was on the committee or how I could reach them. Some clerk asked me why I desired to contact the committee. I explained my suspension situation. I talked to Brenda (probably Brenda Brannon). Brenda called back at 10:18 while I was gone and said that they had received a notice from the state bar on 22 May 1992 regarding my suspension. Brenda told me that I had not yet been suspended by the federal bar. At first she said that they had received no notice of my state suspension. Now she said that since I had reminded them they I would be sending me a notice of suspension shortly. I objected vehemently citing Ming. Brenda did not send a notice.
1993 Jan 26 Later that same day, Tuesday 26 Jan 1993, at 1:42 I called 213 894-2085 to try to reach the Standing Committee on Discipline. We went through a bunch of confusion and the clerk ultimately gave me a different number. I reached Izabell Katapodis, Brenda's supervisor who said Brenda was not there that day. I called again. I reached John McDonough. I eventually reached Leonard Brosnan and spend 11 minutes talking with him at about 1:50. It was a heated conversation. I told him about In Re Ming. I explained that the state bar suspension was unconstitutional because the conviction on which it was based was a misdemeanor and it was still on appeal. I explained that exigency is required to impose interim suspension while a case is on appeal. Brosnan said that he would run it buy the chief judge the next day.
1993 Jan 28 On January 28 1993 I chatted with my friend, retired Ventura Judge Robert Shaw, about the Ming decision and Bell v Burson http://www.circuitlawyer.8m.com/Burson.html http://www.lawyerdude.netfirms.com/bursonb.html and he agreed with my view that due process requires a Ming approach in my situation.
1993 Feb 1 On Monday Feb 1, 1993 I called Victoria Molloy at about 1:27 to remind her that she did not respond to my letter last week nor my last telephone call. Later, at 1:50 Molloy tells me to take up the Ming matter with general counsel for the bar. At about 3 pm I call 415-561-8200 and ask for Carol Rossi, general counsel, to call me back. At 3:46 I try several more times to reach Carol Rossi. Finally, when I ask to speak to Rossi's supervisor, Rossi is available. I explained Ming to Rossi. At 4:02 Rossi promised to call me back the next day.
I called Gert Hirschberg, former member (as I recall) of the board of governors of the bar.
1993 Feb 2 On Tuesday Feb 2 1993 at 3:14 I called the federal court to inquire as to the status of my federal license. I asked for Brosnan but could only reach Katapodis. Judge Real has not ruled on the issue yet. I ask specifically if I have been suspended and Katapodis says that I have not been suspended.
1993 Feb 9 On Tuesday Feb 9, 1993 I found a message from Carol Rossi, general counsel to the state bar (415-561-8848) on my answering machine citing 3 cases that were impertinent. The cases are: Margulis v STate Bar 845 F2d 215 (1988); Giannini v State Bar 847 F2d 1434 (1988), DC Ct of appeals v Feldman 75 L Ed 2d 206, 103, S Ct 1303 (1983). I drove to the law library and checked them and found them irrelevant or non-existent as cited.
1993 Feb 11 On Thursday Feb 11, 1993 I wrote to Carol Rossi, general counsel of the state bar. I think this was the day I wrote to Brosnan also.
1993 Feb 16 Tuesday Feb 16 1993 Carol Rossi left a message for me. Her number is 415-561-8848.
1993 Feb 18 Thursday 18 February 1993 I begin working on my LSD brief by scanning the text of Spann into my computer. Spann is the case that says that once you have eaten the drug the crime of possession is no longer possible and did not happen.
1993 Feb 22 Monday 22 February 1993 I meet Victoria Molloy in person at state bar offices.
1993 Feb 23 Tuesday February 23, 1993 I have several conversations and debates with Carol Rossi (in her capacity as counsel for state bar judge Lise Pearlman - who issued the unconstitutional interim suspension) and Victoria Molloy. Carol Rossi says to write her a letter. I remind her that I already wrote to her on February 11.
At this point nothing further was done by anybody on the federal suspension matter until the investigation by the Ventura district attorney. I had no standing to do a ming motion because my license had not been suspended although the federal bar had been notified by the state bar and by me - and the chief judge had been informed - and I attempted to reach the standing committee on discipline.
(The foregoing declaration was signed by Douglas Palaschak in December 1993. It was subsequently upgraded by adding a date to the beginning of every paragraph and then inserted into this web page. )
Okay, so I have protested to the Federal Court and I won! High School Graduate Katapodis who had the audacity to disbar a lawyer on her own say so with no hearing has now corrected herself!
1993 August Meanwhile around August 1993 some dumbass had 60 seconds of problems finding my motel room where I eventually did his bankruptcy. This dumbass called the police. The District Attorney mistakenly thought that I was prohibited from doing bankruptcies. They were wrong. One thing that I learned in this case is how relatively stupid the district attorney employees are! I was truly amazed!
I had no idea that there was a District Attorney investigation underway until they raided my office in August 1993.
But first, let me convince you that I had a federal license then on the day of the raid. Here is a letter where the Chief Federal Clerk Leonard Brosnan ( this was before Pierce Brosnan had become so famous) admits that I was indeed licenses. Remember, he is no lawyer either.
Here is the letter from Federal Clerk Brosnan at this link: http://www.lawyerdude.netfirms.com/brosnan.jpg December 10, 1993 is the date on the letter. I had been out of jail almost a year before the federal court did the right thing! Then, two weeks later, on the day before Christmas, the Court of Appeal ruled in my favor and overturned my misdemeanor conviction of possession of the LSD that I ate. However, I had been sleeping in my car in September, October, November, and December 1993. I could not do bankruptcies because the District Attorney seized all my office equipment, money, files, computers, laser printer, everthing !
Okay now that I have proven to you that I had a federal license, let’s backtrack.
The state bar may not regulate the practice in federal court. Cowen v Calabrese (1964) http://www.lawyerdude.netfirms.com/cowen.html at 230 Cal App 2nd page 870.
Lets go back to early 1993. I did my research. I was on solid legal ground in stating that the state bar may not regulate the practice in federal court. I wanted to be sure. It would look bad to get out of jail and then go right back in jail. The state bar may not regulate the practice in federal court; several blustery but ignorant Ventura judges spoke to the contrary from the bench but they were wrong and the issue was not before them. I had done my research. There is an opinion of the California Attorney General that back me up when I say that practice in the federal court may not be hampered by practice in the state court. The opinion of the California Attorney General is from 1990 and is citied at 71 Op At Gen 175 at page 180. This opinion cites the case of Cowen V Calabrese (1964) at 230 Cal App 2nd page 870 which says:
“The State Bar Act of California does not purport to regulate the practice of lawyers before the United States Courts, or their referees. In re McCue, 211 Cal. 57, 66 [293 P. 47], makes clear the fact that: ‘The State Bar Act and other statutes enacted for the purpose of regulating the practice of law in this state are applicable to our state courts only. The federal courts are governed entirely by federal enactment and their own rules as to admission and professional conduct. This state, should it attempt, and we do not think it has, to regulate the practice of law in the federal courts or to place any restrictions [230 Cal.App.2d 873] or limitations upon the persons who might appear before the federal courts within this state, would be acting entirely without right and beyond its jurisdiction.’ " - Cowen v Calabrese (1964) http://www.lawyerdude.netfirms.com/cowen.html Okay, so you see I was on solid legal ground in doing bankruptcies. When I got out of jail I had very little money. I lived at a motel. I ran ads in the Los Angeles Times. My expensive full page bankruptcy ad in the local phone book was no longer working because I had lost that phone number. However, the Los Angeles Times brought in enough business. I had done about 10 bankruptcies when the raid happened.
1993 Aug 25 The federal court wrote me a letter purporting to suspend my federal license without a hearing. I did not receive the letter until I retrieved my belongings from the motel some days after the raid. The investigating raiders from the district attorney office left the letter ft in my room on the 27th.
1993 Aug 27 August. Raid by investigators from the district attorney at room of Palaschak at the Good Nite Inn for doing bankruptcies. No criminal complaint was ever filed, but the prosecutor issued a press release accusing Palaschak of 7 felony counts of filing bankruptcies without a state license although a state license is not needed. Police confiscate Palaschak’s computers and printers and money and keep them for over a year. Palaschak is now banned from Good Nite Inn. He has only the money that he had in his pocket. He begins sleeping in his car and spending days working at a table in the corner of the law library using an old computer that he had previously given to his brother.
1993 Aug 27 9:15 a.m. Investigators from the Ventura district attorney obtain signature from Judge Joe Hadden on a search warrant for my motel room. That warrant and the affidavit are discussed further below
1993 Aug 27 Here is the District Attorney press release: http://www.lawyerdude.netfirms.com/press.jpg
1993 8 27
On Friday August 27, 1993 Three District Attorney Investigators raided my office at the motel. They took me to jail and kept me there 6 days and then turned me loose. I convinced the deputies of my innocence within seconds of their coming into the door. They handcuffed me. Later I talked with them again at the jail and explained the law to them. They have always been nice guys to me. They violated my rights but they were pleasant about it.
They had a search warrant that they procured from Judge Joe Hadden at 9:15 a.m. that day. Hadden apparently did not know the law! The application talked little about the law, but the affidavit shows that Katapodis lied!
Here is a picture of the affidavit in support of the search warrant:
http://www.lawyerdude.netfirms.com/search1.jpg
http://www.lawyerdude.netfirms.com/search2.jpg
http://www.lawyerdude.netfirms.com/search3.jpg
http://www.lawyerdude.netfirms.com/search4.jpg
The statement from Katapodis is related on page 4, here: http://www.lawyerdude.netfirms.com/search4.jpg She told them that I was suspended but this sorta contradicts the letter from Brosnan. The letter from Brosnan took a long time. They may have written it carefully. Apparently the District Attorney prompted the state bar and the federal bar to take action. Brosnan’s letter says that they received notice of “interim suspension” from the state bar on August 18, 1993. That was 18.5 months after the interim suspension happened. Katapodis says that she received notice in 1992. They obviously know about it 18 months earlier because that I when I present In Re Ming.
Katapodis willfully misled the District Attorney investigators by neglecting to mention that she has “unsuspended” me per In Re Ming - although Brosnan lied and said that the federal court had not received any official notification in 1992, but if that were the case then why would the federal court do the suspension in 1992 - which they obviously did. Katapodis admits it and so does Brosnon. Then they undid it because it was illegal. The second one was just as illegal.
They could not and can not suspend without due process their local rules to the contrary notwithstanding! On May 25th they took action. They did not send me the letter to the Good Nite Inn! That letter was left afterwards by the raiding party! The federal court obviously got that address from the District Attorney. Their was no other way of finding out. Obviously I had no notice of the purported suspension by the federal bar! Also, the federal bar suspension was illegal without a hearing. This is the ruling of In Re Ming http://www.lawyerdude.8m.com/ming.html which was the reason that my previous suspension by Katapodis was undone, and Brosnan’s letter is deceptive in not mentioning that fact.
The District Attorney took my computers, laser printer, and everything!
However, they did not file a criminal complaint against me! They knew that they were wrong.
They offered to give my stuff back if I would plead guilty to just one misdemeanor! They told the newspapers that I was arrested for 7 felonies and the papers printed it! Of course I was innocent.
1993 Aug 29 While I was in jail they motel cleaned out my room and put my few remaining things in a plastic bag. In the bag was a letter that the raiding party left behind. It is from the federal bar. Here is a picture of that letter: http://www.lawyerdude.netfirms.com/notice.jpg As I wrote on the letter, I did not receive the letter until I got released from jail on the 6th day after the raid. Incidentally, the jailers knew that I was scheduled for release. When I asked how much was my bail, they told me to just hold tight because I was scheduled to be released without bail on the 6th day.
Thereafter I wrote to Attorney Steve Pell to try to interest him in a defamation case but I heard nothing back from him. Here is a picture of my letter to him: Http://www.lawyerdude.netfirms.com/pell.jpg As I explained to Steve, the federal court people, Katapodis and Brosnan, are telling half truths.
1993 Dec 10. By letter the chief federal clerk admits that I was not suspended at the time of the raid at the Good Nite Inn on August 25, 1993 http://www.lawyerdude.netfirms.com/brosnan.jpg
1993 Dec 23. Court of Appeal awards victory to Palaschak reversing the misdemeanor conviction for LSD possession.
1994 January. Palaschak’s car engine breaks. The folks at Engine Place invite him to sleep in the room of the former mechanic at the shop.
1994 Jan 13 On approximately January 13 1994 I reviewed my January and February 1993 diaries which had been seized during the August 27, 1993 raid and placed in the court's exhibit department. The diaries confirm the following:
1994 Palaschak’s appointed lawyer failed to obtain the complete transcript. He had a leg operation. I never met him. He failed to let me approve the defective brief before he submitted it.
1994 Dec In December 1994 I served my Lawyer’s Manifesto upon www.lawyerdude.8k.com/5753.html the California Bar and the California Supreme Court. It was embedded in a federal civil rights lawsuit http://www.circuitlawyer.8m.com/1875.htm to force them to follow my manifesto. In reaction they retaliated and disbarred me for my first discipline ever. They recalled a mere suspension and upgraded it in retaliation.
1995 May 8 California Supreme Court overturns Palaschak’s previous victory at the court of appeal.
2006 3 10 March 10, 2006. These documents have been in storage for a long time. I received them from Ventura from my beach apartment garage this month. I have now uploaded them to help tell the story. When this happened in 1993 the internet was not available. There were barely word processors. Had I known then what I know now, and had the District Attorney not stolen my computers in the raid (based on a lying affidavit!) , and had they not illegally prevented me from making a living I would have been able to tell this story sooner.
People v. Palaschak (1995) 9 Cal.4th 1236 , 40 Cal.Rptr.2d 722; 893 P.2d 717
[No. S037601. May 8, 1995.]
THE PEOPLE, Plaintiff and Respondent, v. DOUGLAS ANDREW PALASCHAK, Defendant and Appellant.
(Superior Court of Ventura County, No. CR28428, Burt Henson, Judge.)
(Opinion by Lucas, C. J., expressing the unanimous view of the court.)
Glenn Durfee and Creig Alan Dolge for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Assistant Attorney General, Roy C. Preminger, David A. Wildman and Marc E. Turchin, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
LUCAS, C. J.
In this case, we consider whether a person who possesses illegal drugs prior to ingesting them may be convicted of the offense of possessing those drugs. As will appear, we conclude that the offender may be so convicted despite having ingested the drugs prior to arrest. To rule otherwise would read into the drug possession statutes a "possession when arrested" requirement that would permit persons facing arrest for possession of illegal drugs to avoid possession charges merely by ingesting those drugs.
Facts
Defendant Douglas Andrew Palaschak appeals from a judgment convicting him of possession of lysergic acid diethylamide (LSD). (Health & Saf. [9 Cal.4th 1238] Code, § 11377, subd. (a).) The record discloses the following facts, largely taken from the Court of Appeal opinion herein:
Jessica Jobin was a receptionist in the law office of defendant Douglas Andrew Palaschak. In early May 1991, defendant informed Jobin he had taken hallucinogenic drugs and wanted to try LSD. He asked if she knew where he could obtain that drug, and she agreed to inquire about finding some. Defendant cautioned Jobin not to tell anyone of this conversation.
On the evening of May 7, defendant loaned his car to Jobin so that she could obtain some LSD. Jobin drove to a "Dead Head House," occupied by ostensible fans of the Grateful Dead rock group. There, she eventually obtained 50 "hits" or doses of LSD in blotter paper form. On the following day, Jobin placed two hits of LSD in a birthday card and presented the card to defendant as a birthday gift. Defendant opened and read the card, and then placed it in his desk drawer.
One day later, defendant repeatedly asked Jobin to take some LSD with him. She finally agreed. Defendant consumed one and one-half hits of LSD and Jobin, one-half hit. Jobin and defendant were soon giggling in defendant's office. Melissa S., age 17, hired that day as a secretary, observed their antics. Defendant volunteered to Melissa that he was "frying on acid" and asked her to join them. Jobin gave Melissa two hits of LSD, which Melissa later discarded. Melissa stayed in defendant's office for awhile but then left and summoned police officers.
The police officers arrived at defendant's office and Jobin allowed them to enter. They found defendant and Jobin experiencing symptoms of LSD ingestion, namely, hallucinations, confusion, dizziness, and lip-licking. Defendant volunteered that he had taken LSD and requested assistance from the officers. Jobin produced the 46 remaining hits of LSD from her purse at the officers' request. The officers then arrested Jobin and defendant.
One month after his arrest, defendant admitted to two newspaper reporters that he had ingested LSD on the day of his arrest. He stated that the drug provided "a better social environment" in his office.
The prosecutor charged defendant with conspiracy to possess LSD (Health & Saf. Code, § 11377, subd. (a); Pen. Code, § 182), possession of LSD (Health & Saf. Code, § 11377, subd. (a)), and furnishing or attempting to furnish LSD to a minor (Health & Saf. Code, § 11380, subd. (a)). The jury acquitted defendant of conspiracy to possess LSD and of attempting to furnish LSD to a minor. The jury did, however, convict defendant of simple possession of LSD. [9 Cal.4th 1239]
During deliberations, the jury asked the trial judge whether "possession [has] to be at the time of arrest?" The trial judge declined to answer "Yes" or "No" but reinstructed the jury concerning the elements of the criminal offense of possession of a controlled substance. (CALJIC No. 12.00.)
At sentencing, the trial judge reduced defendant's conviction to a misdemeanor offense and placed him on probation for 36 months, with a condition of 90 days' imprisonment in the county jail. On appeal, defendant contended that his conviction of possession of LSD was unsupported by substantial evidence. Although the Court of Appeal agreed, we will reverse its judgment.
Discussion
[1a] The Court of Appeal, by a two-to-one vote, ruled that defendant was improperly charged with possessing LSD because, by the time of his arrest, he had ingested the LSD formerly in his possession and no longer had "dominion and control" over the substance in his body. Because no statute criminalizes use or ingestion of LSD (see People v. Spann (1986) 187 Cal.App.3d 400, 404-406 [232 Cal.Rptr. 31] (hereafter Spann); but see Pen. Code, § 647, subd. (f) [being under influence of liquor, drugs or controlled substances in public place]), the Court of Appeal's reversal of defendant's conviction presumably would exonerate him entirely from criminal liability in this matter
The Court of Appeal majority relied primarily on cases holding that evidence of drug ingestion, such as nonusable residue or traces of narcotics, is insufficient to sustain an unlawful possession charge. (E.g., People v. Leal (1966) 64 Cal.2d 504, 510-512 [50 Cal.Rptr. 777, 413 P.2d 665] (hereafter Leal) [holding that possession of narcotics paraphernalia bearing useless traces or residue of narcotics is insufficient to sustain conviction for knowing narcotics possession]; Spann, supra, 187 Cal.App.3d at p. 409 ["noncriminal use of a controlled substance in an institution may not be ... bootstrapped into the crime of possession"]; People v. Sullivan (1965) 234 Cal.App.2d 562, 565 [44 Cal.Rptr. 524] (hereafter Sullivan) [holding that discovery of defendant's heroin kit containing minute traces of heroin residue was insufficient to establish possession]; see People v. Rubacalba (1993) 6 Cal.4th 62, 64-67 [23 Cal.Rptr.2d 628, 859 P.2d 708] [Leal rule limited to cases involving substances useless in form or quantity; no requirement exists that any particular purity or potential narcotic effect be proven].) [9 Cal.4th 1240]
The Court of Appeal relied heavily on the following language from the majority opinion in Sullivan: "Were we to accept evidence of recent past possession of narcotics as equivalent to proof of present possession of narcotics, then we could charge every addict who was currently hot with possession of a narcotic, since he must have had possession of the narcotic in the recent past in order to come under its influence." (234 Cal.App.2d at p. 565.)
We quoted the foregoing language with approval in an unlawful search case, stating that, "it seems clear that the mere presence of two burnt marijuana seeds would not give rise to a reasonable inference or strong suspicion that the occupants of the apartment in which the seeds were found were presently guilty of a crime. It is now well established that evidence of useless traces or residue of narcotic substances do not constitute sufficient evidence to sustain a conviction for possession of narcotics. [Citations.] Although the presence of two burnt marijuana seeds might reasonably suggest that defendant or another occupant of the apartment formerly possessed and used marijuana, that inference would not justify their arrest for present use, possession or sale." (People v. Fein (1971) 4 Cal.3d 747, 754 [94 Cal.Rptr. 607, 484 P.2d 583], italics added.)
The Court of Appeal majority also noted that the Legislature, in other contexts, has often punished use of drugs less severely than possession thereof (see Spann, supra, 187 Cal.App.3d at pp. 404-406), thus indicating some legislative intent to distinguish between use and possession of illegal drugs. According to the Court of Appeal majority, a rule that would allow a possession charge and conviction to be based solely on evidence of use might unduly blur the distinction between use and possession. Thus, the Court of Appeal majority concluded that "to prove possession the prosecution must show possession other than what the defendant had consumed."
The Court of Appeal dissent herein concluded there was ample evidence to sustain defendant's possession conviction. As the dissent observed, "[t]he People introduced substantial evidence to satisfy each of the[] elements [of possession required under CALJIC. No. 12.00]. Appellant exercised control over the LSD. He knew the LSD was in his office, knew it was a controlled substance, and knew it was a usable amount. [Fn. omitted.]"
The dissent's analysis seems correct, for we can discern no good reason why substantial evidence of past possession of LSD (within the period of the applicable statute of limitations) should be deemed insufficient to sustain a conviction of that offense. There may be some justification for holding, as prior cases have held, that evidence of ingestion of drugs, standing alone, [9 Cal.4th 1241] should not be deemed adequate to sustain a possession charge, although that issue is not presently before us. Ingestion, whether or not accompanied by useless traces or residue, at best raises only an inference of prior possession.
As stated in Sullivan, supra, 234 Cal.App.2d at page 565, if proof of ingestion of illegal drugs were sufficient to sustain a possession charge, then every person under the influence of an illegal drug could be charged with possessing it because, logically, one who ingests a drug must have possessed it at least temporarily. Yet it is arguable that not all occasions of drug use necessarily and inevitably involve criminal possession. For example, depending on the circumstances, mere ingestion of a drug owned or possessed by another might not involve sufficient control over the drug, or knowledge of its character, to sustain a drug possession charge. (See People v. Camp (1980) 104 Cal.App.3d 244, 247-248 [163 Cal.Rptr. 510] [essential elements of possession of controlled substance].)
But the broad dictum in Fein and Sullivan, both supra, suggesting that evidence of past possession is inadequate to sustain a conviction for present possession, makes little sense when applied to a case, such as the present one, in which there exists sufficient direct or circumstantial evidence of past possession, over and above evidence of mere use or ingestion. Here, as the People correctly observe, defendant was "charged with possession on May 9, 1991, not possession at the time of arrest."
A simple hypothetical example may help to illustrate the primary problem with the Court of Appeal majority's analysis. If the evidence showed that the defendant was in possession of an illegal drug which he destroyed by flushing it down the toilet, it is clear that defendant nonetheless could be convicted of illegal possession based on evidence (whether direct or circumstantial) that the substance was in his possession immediately before he was arrested. (See, e.g., People v. Mijares (1971) 6 Cal.3d 415, 422 [99 Cal.Rptr. 139, 491 P.2d 1115] [leaving intact rule sustaining narcotics possession charge despite defendant's disposal of contraband immediately prior to arrest]; People v. Wesley (1990) 224 Cal.App.3d 1130, 1145-1146 [274 Cal.Rptr. 326]; People v. Garcia (1967) 248 Cal.App.2d 284, 288-291 [56 Cal.Rptr. 217].)
Similarly, loss or destruction of evidence by ingestion should not defeat a possession charge. (See People v. Stump (1971) 14 Cal.App.3d 440, 443-444 [92 Cal.Rptr. 270] [possession of heroin established by circumstantial evidence despite loss of direct evidence by reason of defendant's swallowing balloons containing the drug]; People v. Bianez (1968) 259 Cal.App.2d 76, 80-81 [66 Cal.Rptr. 124]; People v. Chrisman (1967) 256 Cal.App.2d 425, [9 Cal.4th 1242] 431-432 [64 Cal.Rptr. 733] [charge of furnishing narcotics to another established despite consumption of drug]; People v. Smith (1960) 184 Cal.App.2d 606, 609-610 [7 Cal.Rptr. 607] [marijuana possession conviction sustained despite defendant's attempt to eat the evidence shortly before arrest].)
In short, we see no reason why a drug possession charge could not be based on direct or circumstantial evidence of past possession. As the concurring justice in Sullivan observed, the narcotics possession statutes do not require proof of possession at the very time of arrest. (234 Cal.App.2d at p. 567.)
[2] The essential elements of possession of a controlled substance are "dominion and control of the substance in a quantity usable for consumption or sale, with knowledge of its presence and of its restricted dangerous drug character. Each of these elements may be established circumstantially." (People v. Camp, supra, 104 Cal.App.3d at pp. 247-248; see People v. Williams (1971) 5 Cal.3d 211, 215 [95 Cal.Rptr. 530, 485 P.2d 1146] [essential elements of possession in narcotics cases may be established circumstantially]; People v. Rushing (1989) 209 Cal.App.3d 618, 621 [257 Cal.Rptr. 286] [same]; cf. People v. Rubacalba, supra, 6 Cal.4th 62 ["usable amount" requirement].)
[1b] The foregoing elements of possession were amply established by the evidence in this case, which included the testimony of a percipient witness, defendant's secretary, Jobin. Thus, the record shows that defendant requested and obtained from Jobin two doses or "hits" of LSD contained in a birthday card. Defendant kept the card for a day, then removed the LSD from the card and ingested one and one-half doses, giving the remaining half dose to Jobin. On being arrested, defendant readily admitted ingesting the drug. He confirmed this fact to news reporters. The arresting officers testified that defendant was under the influence of LSD, and lab technicians verified that the remaining doses of LSD in Jobin's possession were indeed LSD. As the Court of Appeal majority conceded, "there is no question that Defendant possessed LSD prior to ingesting it."
Although Fein and Sullivan reached defensible results on their facts, we disapprove the broad dictum in those cases to the effect that evidence of past possession cannot sustain a conviction for present possession. If, as in the present case, direct or circumstantial evidence establishes that the defendant possessed an illegal drug during the period of the applicable statute of limitations, no compelling reason appears why that evidence should not be sufficient to sustain a possession conviction. Certainly, the drug possession statutes contain no such requirement. The additional, fortuitous fact that the [9 Cal.4th 1243] defendant has consumed or ingested the drug likewise should not preclude a finding of his prior unlawful possession of it. The judgment of the Court of Appeal is reversed.
Mosk, J., Kennard, J., Arabian, J., Baxter, J., George, J., and Werdegar, J., concurred.
[End of Volume 9 Cal.4th]
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