IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
Opinion Number: 2009-NMSC-015
Filing Date: April 2, 2009
Docket No. 30,916
STATE OF NEW MEXICO,
Plaintiff-Respondent,
v.
CHARLOTTE QUICK,
Defendant-Petitioner.
ORIGINAL PROCEEDING ON CERTIORARI
Stephen K. Quinn, District Judge
Hugh W. Dangler, Chief Public Defender
Joseph P. Walsh, Assistant Appellate Defender
Carlos Ruiz de la Torre, Assistant Appellate Defender
Santa Fe, NM
for Petitioner
Gary K. King, Attorney General
Andrew S. Montgomery, Assistant Attorney General
Santa Fe, NM
for Respondent
OPINION
CHÁVEZ, Chief Justice.
{1} Charlotte Quick (Defendant) was convicted of possession of methamphetamine,
contrary to NMSA 1978, Section 30-31-23 (1990, prior to 2005 amendments) and possession
of methamphetamine with intent to distribute, contrary to NMSA 1978, Section 30-31-22(A)
(1990, prior to 2005 amendments). She claims her convictions subjected her to multiple
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punishments in violation of her right to be free from double jeopardy because they were
based on “acts which constitute one continuous offense.” For this reason, she requests that
we vacate her conviction for simple possession. The State argues that there was no double
jeopardy violation because the evidence of both use and sale of methamphetamine presented
at trial allowed the jury to find independent factual bases for both of Defendant’s
convictions. The Court of Appeals upheld Defendant’s convictions in a divided unpublished
opinion. State v. Quick, No. 27,013, slip op. at 15 (N.M. Ct. App. Jan. 24, 2008).
{2} We conclude that the separate crimes of possession and possession with intent to
distribute were intended by the New Mexico Legislature to apply in the alternative when
based on a single act of possession. Because the methamphetamine at issue was found in
Defendant’s control during a single occurrence, Defendant committed only one act of
possession. We therefore hold that Defendant was subjected to double jeopardy and remand
to the district court to vacate her conviction for possession of methamphetamine.
I. BACKGROUND
{3} There appears to be no dispute between the parties regarding the relevant facts of this
case. After receiving information that led him to believe that Defendant was using drugs,
Defendant’s probation officer made a visit to her house on April 18, 2005. During the visit,
he asked Defendant if she was using drugs and she looked toward her bedroom closet, where
he found a kit containing drugs and paraphernalia. The probation officer called a police
officer and they searched the room together, finding, among other things, (1) a container
with 7.03 grams of methamphetamine, a quantity which the probation officer and police
officer suggested was indicative of distribution; (2) a container with 2.71 grams of
methamphetamine; (3) a container with 0.61 grams of methamphetamine; (4) a pipe with
white residue, which the probation officer testified was probably used to smoke
methamphetamine; (5) syringes; (6) a funnel, which the probation officer testified was
probably used to put drugs in bags; (7) baggies, which the probation officer testified were
probably used to sell drugs; (8) straws; and (9) a scale, which the probation officer testified
was probably used to distribute drugs. In addition, the officers at the house noticed a large
number of telephone calls and observed “people that probably should not have been there.”
{4} Defendant appealed her convictions of possession of methamphetamine and
possession of methamphetamine with intent to distribute, claiming inter alia that her
conviction of both of these crimes violated her right to be free from double jeopardy. Quick,
No. 27,013, slip op. at 10. The Court of Appeals held in a 2-1 memorandum opinion that
Defendant was not subjected to double jeopardy. The majority concluded that Defendant’s
conduct was not unitary under the analysis first laid out in Swafford v. State, 112 N.M. 3,
810 P.2d 1223 (1991). Quick, No. 27,013, slip op. at 10-12. The Court concluded that the
“evidence [from trial] permitted the jury to reasonably conclude that Defendant possessed
some of the methamphetamine with an intent to distribute it, and that she separately and
distinctly possessed other methamphetamine for personal use.” Id. at 13. It arrived at this
conclusion because “Defendant and associated accoutrements of drug activity were
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sufficiently separate in space and apparent purpose to allow conviction for distinct crimes[.]”
Id. at 15. The dissent would have held that “there was nothing to distinguish which
methamphetamine pertained to which charge because all of the methamphetamine was
discovered in Defendant’s home and because it all formed the basis for both charges.” Id.
at 19 (Castillo, J., dissenting). To the dissenting judge, it was not enough that the drugs
could have been used for either possession or sale. Id. at 20.
{5} We granted Defendant’s petition for writ of certiorari on the issue of whether she was
“subjected to double jeopardy when she was charged with and convicted of possession of
methamphetamine with intent to distribute and possession of methamphetamine when all of
the contraband was found in the same place at the same time[.]” State v. Quick, 2008-
NMCERT-002, 143 N.M. 667, 180 P.3d 674. We reverse the Court of Appeals and remand
to the district court to vacate Defendant’s conviction for possession of methamphetamine.
II. DISCUSSION
{6} Defendant claims that her convictions subjected her to multiple punishments in
violation of her right to be free from double jeopardy, because her single act of possessing
methamphetamine was used to convict her of both possession and possession with intent to
distribute. We review such claims de novo. State v. Alvarez-Lopez, 2004-NMSC-030, ¶ 38,
136 N.M. 309, 98 P.3d 699.
{7} In the context of multiple punishments within a single proceeding, double jeopardy
“does no more than prevent the sentencing court from prescribing greater punishment than
the legislature intended.” Missouri v. Hunter, 459 U.S. 359, 366 (1983). “[W]here the
legislature has explicitly authorized multiple punishment the judicial inquiry is at an end,
[and] multiple punishment is authorized and proper[.]” Swafford, 112 N.M. at 9, 810 P.2d
at 1229. In other words, the Legislature is not restrained by double jeopardy from atomizing
a defendant’s conduct into multiple punishments if they are imposed in a single proceeding.
The courts, however, are restrained from doing so without legislative authorization, and
therefore legislative intent must be the touchstone of our inquiry.
{8} The problem of multiple punishments arises in either of two situations: when a
defendant claims to have been convicted (1) of several different crimes or (2) of multiple
counts of the same crime, despite legislative intent to impose fewer punishments under the
circumstances. Id. at 8, 810 P.2d at 1228. The former situation, which Defendant raises
here, is known as a double description case. Id. In a double description case such as
Defendant’s, we must ultimately decide “whether the facts presented at trial establish that
the jury reasonably could have inferred independent factual bases for the charged offenses.”
State v. Franco, 2005-NMSC-013, ¶ 7, 137 N.M. 447, 112 P.3d 1104 (emphasis added)
(internal quotation marks and citation omitted). If, given the evidence presented at trial and
the statutory definitions of the crimes the jury must have unreasonably parsed the evidence
to have found Defendant guilty of the charged offenses, then Defendant was subjected to
double jeopardy.
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{9} Defendant’s situation resembles several cases recently decided by the New Mexico
Court of Appeals. In State v. Contreras, the Court of Appeals considered the case of a
defendant convicted of both trafficking and possession of cocaine. 2007-NMCA-045, ¶ 22,
141 N.M. 434, 156 P.3d 725, cert. quashed, 2007-NMCERT-011, 143 N.M. 157, 173 P.3d
764. In Contreras, the defendant had taken undercover agents who wished to purchase drugs
with him to a residence to complete the transaction. Id. ¶ 2. He showed one of the agents
a bag of cocaine, measured a quantity for the agent, and kept the rest. Id. ¶ 3. After his
conviction, the defendant claimed a violation of his right to be free from double jeopardy,
and the Court of Appeals rejected the argument. Id. ¶ 23. The Court reasoned that different
conduct was the basis of each charge, since
(1) Defendant had possession of the cocaine when he got it from his supplier,
(2) Defendant then brought the cocaine into the bathroom and put it on the
counter so that he could separate a portion to sell to [the agent], and (3) once
he completed the sale with [the agent], Defendant kept a portion of the
cocaine. The State thus provided the jury with sufficient factual bases for
finding that Defendant possessed the cocaine both before and after he sold
some of it to [the agent].
Id. ¶ 22.
{10} Defendant argues that in this case, unlike Contreras, the State is unable to distinguish
between the categories of methamphetamine for personal use and for distribution. The State
responds that in this case, the distinction between the factual bases underlying the
convictions is even clearer since there is actual evidence of personal use.
{11} Another recently-decided case is State v. Lopez, 2008-NMCA-002, 143 N.M. 274,
175 P.3d 942 (filed 2007), cert. denied, 2007-NMCERT-012, 143 N.M. 213, 175 P.3d 307.
In Lopez, the defendant had been convicted, like Defendant, of possession of
methamphetamine and possession of methamphetamine with intent to distribute. Id. ¶ 1.
This conviction resulted from the discovery of methamphetamine when police entered the
defendant’s house after receiving information leading them to believe that drugs were being
sold there. Id. ¶ 3. In the defendant’s bedroom, the police found a small amount of
methamphetamine, a scale, two spoons, baggies, plastic wrap, aluminum foil, and “other
trafficking-related drug paraphernalia.” Id. ¶ 5. A larger amount of methamphetamine was
found in the defendant’s shorts after she was taken to the hospital complaining of pain. Id.
The defendant claimed that her right to be free from double jeopardy was violated when she
was convicted of both possession and possession with intent to distribute for a single course
of conduct. Id. ¶ 11. The State argued that the conviction for possession was supported by
the methamphetamine seized at the defendant’s home, and the conviction for possession with
intent to distribute was supported by the methamphetamine found in the defendant’s clothing
at the hospital. Id. ¶ 15. The Court of Appeals agreed with the defendant, holding that her
conduct was unitary because all of the drugs came from her home and
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[t]here was no evidence indicating that the methamphetamine she had at the
home, whether it was discovered in the home or on her person at the hospital,
and even if the substances discovered were different in quantity or
packaging, should be separated into different categories of “mere
possession,” and “possession with intent to distribute.” The evidence
strongly supports the conclusion that Defendant possessed all
methamphetamine in question at the residence and that its purpose could
have been both for personal use and for distribution.
Id. ¶ 17.
{12} Defendant argues that just as in Lopez, the drugs in her case were all seized at the
same time and in the same place, and no specific quantities have been identified as being
intended for either use or distribution. The State responds that it has presented evidence that
Lopez lacked: specifically, distinct evidence of use (use paraphernalia and small quantities
of the drug) and distribution (scales, baggies, and large quantities of the drug). The State
claims that this “heterogeneity of the evidence” distinguishes this case from Lopez by
allowing the jury to find, via inferences about Defendant’s intent, that different quantities
of the drug were for different purposes.
{13} We begin our analysis by noting that despite this dispute over the import of New
Mexico precedent, the parties agree that the offense of simple possession is a lesser included
offense of possession with intent to distribute, and is therefore the same offense for double
jeopardy purposes if the two charges are based on the same act or transaction. We agree
with the parties.
{14} In State v. Armendariz, we explained that
[a]bsent clear legislative intent [demonstrating that two offenses should be
punishable separately], we follow the rule of statutory construction known
as the “Blockburger test,” taken from Blockburger v. United States, 284 U.S.
299 (1932). This test focuses strictly upon the elements of the statutes. The
applicable rule is that, where the same act or transaction constitutes a
violation of two distinct statutory provisions, the test to be applied to
determine whether there are two offenses or only one is whether each
provision requires proof of an additional fact which the other does not.
2006-NMSC-036, ¶ 21, 140 N.M. 182, 141 P.3d 526 (internal quotation marks and citation
omitted)).
{15} Under the Blockburger test, possession, Section 30-31-23, is clearly subsumed by
possession with intent to distribute, Section 30-31-22(A). To be convicted of possession,
the State must show that Defendant both possessed a controlled substance
(methamphetamine) and knew that she possessed a controlled substance. Section 30-31-23;
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State v. Wood, 117 N.M. 682, 684, 875 P.2d 1113, 1115 (Ct. App. 1994); see generally UJI
14-3102 NMRA. To be convicted of possession with intent to distribute, the State must not
only prove both of the elements of possession, but also prove that Defendant intended to
transfer the controlled substance to another person. Section 30-31-22(A); see generally UJI
14-3104 NMRA. Therefore, possession is clearly subsumed. See Lopez, 2008-NMCA-002,
¶ 20 (“[P]ossession with intent to distribute has one additional element that simple
possession does not have: intent to transfer the substance to another. However, proving a
violation of possession with intent to distribute necessarily requires the State to prove
Defendant possessed the methamphetamine. Therefore, . . . simple possession is subsumed
within possession with intent to distribute.” (citations omitted)).
{16} The Blockburger test is nothing more than “a rule of statutory construction[,]”
Hunter, 459 U.S. at 366, embodying the commonsense understanding that “[i]f proving the
violation of one statute always proves a violation of another statute, . . . it would appear that
the legislature was creating alternative bases for prosecution but only a single offense.”
George C. Thomas III, A Unified Theory of Multiple Punishment, 47 U. Pitt. L. Rev. 1, 26-28
(1985). To apply this to the offenses in question, the Blockburger test leads us to the
conclusion that the Legislature intended that when an individual’s conduct satisfies all the
elements of simple possession, and there is also evidence that the defendant intended to
distribute the controlled substance, she may be convicted of the more serious offense of
possession with intent to distribute, instead of simple possession.
{17} The State’s position would require us to hold that the Legislature intended that when
a portion of the controlled substance in a defendant’s possession is intended for distribution,
that portion can be the basis of a possession with intent to distribute conviction, while the
remaining portion may support a conviction of simple possession. We reject this contention.
The State has conceded that it could not convict a defendant of multiple counts of possession
with intent to distribute based on a single quantity of drugs, regardless of whether the
defendant intended to distribute the drugs to different people. Neither, presumably, may a
defendant be convicted of multiple counts of simple possession based on multiple packages
of drugs in his or her possession. Under both statutes, the prohibited act is simply possession
of a particular controlled substance. The controlled substances statutes do not define
possession, but UJI 14-3130 NMRA states that “[a] person is in possession [of a controlled
substance] when he knows it is on his person or in his presence, and he exercises control
over it.” This accords with our Court’s decisions that define possession in the context of a
controlled substance as “care, control and management.” See, e.g., State v. Mosier, 83 N.M.
213, 215, 490 P.2d 471, 473 (Ct. App. 1971) (decided under former law). We think it
reasonable to conclude that the entire quantity of a particular controlled substance under one
person’s control at any one time defines the possession prohibited by Sections 30-31-22 and
-23. In other words, “[i]n possession-oriented offenses, the proscribed item is the allowable
unit of prosecution.” Fenoglio v. State, 252 S.W.3d 468, 478 (Tex. App. 2008) (emphasis
added).
{18} Although this case involves two different possession-based offenses, nothing in the
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language of the statutes at issue suggests to us that the actus reus of these crimes–the control
of all of a particular type of controlled substance by the defendant at a given time–should be
construed differently. The State argues that the element of intent to distribute in the greater
offense should lead to the inference that if different intents can be discerned for different
portions of the controlled substance, a jury should be able to use each portion as the basis
for a different conviction. We might be convinced if simple possession included the element
of intent to use. However, Section 30-31-23 does not require a defendant to intend to do
anything with the drugs in his or her possession. Therefore, in the context of the foregoing
discussion of the meaning of possession, we believe the Legislature intended that when a
defendant can be demonstrated to have intended to sell any portion of the particular
controlled substance in his or her possession, the controlled substance should not be parsed
into “two separate possessions.” Instead, the defendant may be convicted of possession with
intent to distribute or simple possession–but not both–for the entire quantity of the controlled
substance.
{19} Having determined that the two offenses are meant to be alternatives to one another
when the evidence can support the finding of only one act of possession, our task is to decide
if there were, in fact, multiple acts in this case. In other words, we must decide whether
Defendant’s conduct was unitary. “We determine whether the conduct was unitary through
the elements of the charged offenses and the facts presented at trial.” Lopez, 2008-NMCA-
002, ¶ 16 (internal quotation marks and citation omitted); see also Thomas, supra at 20
(“[T]he unitary conduct issue depends entirely on what the legislature intended to be the unit
of conviction, rather than on a space-time analysis of the defendant’s physical actions.”
(footnote omitted)).
{20} We hold that Defendant’s conduct could not have provided a basis for both
convictions. As noted above, the actus reus of both offenses is the control of all of a
particular type of controlled substance by the defendant at a given time. If the evidence
supports only one such actus reus, we must find Defendant’s conduct to be unitary. The
evidence in this case shows that all of the methamphetamine in question was seized from
Defendant’s room at the same time. This constitutes only one act of possession.
{21} Since Defendant’s possession of methamphetamine cannot reasonably be parsed into
multiple possessions, double jeopardy prevents her from being convicted of both possession
and possession with intent to distribute. This holding reconciles the opinions of the Court
of Appeals in Contreras and Lopez. In Contreras, where one of the defendant’s convictions
was for trafficking and the other was for possession, the two statutes at issue clearly defined
different prohibited acts which were supported by independent evidence, namely, the act of
trafficking cocaine and the act of possessing a different quantity of cocaine that remained
after the trafficking was complete. This was not the case in Lopez, which, like the case at
bar, involved two possession-based convictions based on different packages of drugs
possessed by the defendant at the same place and time.
III. CONCLUSION
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{22} Defendant’s right to be free from double jeopardy has been violated. We remand to
the district court to vacate her conviction for simple possession.
{23} IT IS SO ORDERED.
EDWARD L. CHÁVEZ, Chief Justice
WE CONCUR:
PATRICIO M. SERNA, Justice
RICHARD C. BOSSON, Justice
CHARLES W. DANIELS, Justice
MAES, Justice (specially concurring).
{24} I agree with the majority that the Legislature intended the crimes of possession of a
controlled substance, contrary to NMSA 1978, Section 30-31-23 (1990, prior to 2005
amendment), and possession of a controlled substance with intent to distribute, contrary to
NMSA 1978, Section 30-31-22 (1990, prior to 2005 amendment), to apply in the alternative
when based on a single act of possession. I also agree with the majority that, under the
circumstances of the present case, Charlotte Quick (Defendant) committed only a single act
of possession and, therefore, her convictions of both possession and possession with intent
to distribute violate the double jeopardy clause. I write separately, however, to clarify that
a defendant properly may be convicted of both simple possession and possession with intent
to distribute when the charges are based on separate acts of possession.
{25} In Swafford v. State, 112 N.M. 3, 13, 810 P.2d 1223, 1233 (1991), this Court
observed that “the double jeopardy clause clearly cannot operate to prohibit prosecution,
conviction, and punishment in a single trial for discrete acts violative of the same statute.”
Although it is a “fairly simple task” to identify discrete acts when those acts are “sufficiently
separated by either time or space,” difficulty arises when two or more acts are committed in
the same limited time period within the same geographic area. Id. at 13-14, 810 P.2d at
1233-34. Accordingly, “we look to whether a defendant's acts are separated by ‘sufficient
indicia of distinctness’ to be considered non-unitary conduct.” State v. Saiz,
2008-NMSC-048, ¶ 30, 144 N.M. 663, 191 P.3d 521 (citation omitted). “Distinctness may
be established by determining whether the acts constituting the two offenses are sufficiently
separated by time or space, looking to the quality and nature of the acts, the objects and
results involved, and the defendant's mens rea and goals during each act.” Id.; see also State
8
v. Franco, 2005-NMSC-013, ¶ 7, 137 N.M. 447, 112 P.3d 1104 (“To determine whether a
defendant's conduct was unitary, we consider such factors as whether acts were close in time
and space, their similarity, the sequence in which they occurred, whether other events
intervened, and the defendant's goals for and mental state during each act.”).
{26} “In drug cases, the question frequently arises whether a defendant’s entire cache of
drugs is to be considered as a single unit or as separate units for purposes of defining the
extent of his criminal activity.” United States v. Johnson, 977 F.2d 1360, 1374 (10th Cir.
1992).
Generally, courts which have considered the issue [of multiple prosecutions
under controlled substance statutes] have determined that separate
convictions for possession of the same controlled substance [with an intent
to distribute] will not violate the Double Jeopardy Clause if the possessions
are sufficiently differentiated by time, location, or intended purpose.
Commonwealth v. Rabb, 725 N.E.2d 1036, 1043 (Mass. 2000) (alterations in original)
(internal quotation marks and citation omitted); see also Johnson, 977 F.2d at 1374; United
States v. Maldonado, 849 F.2d 522, 524 (11th Cir. 1988); United States v. Blakeney, 753
F.2d 152, 155 (D.C. Cir. 1985); State v. Crawley, 889 A.2d 930, 936-38 (Conn. App. 2006);
Lane v. Commissioner, 659 S.E.2d 553, 558-59 (Va. App. 2008); In re Davis, 12 P.3d 603,
609-10 (Wash. 2000) (en banc). These factors are “meant to be disjunctive, with no one
determinative factor.” Rabb, 725 N.E.2d at 1043. Accordingly, although a supply of
narcotics generally is not divisible for purposes of prosecution, various stashes of a
controlled substance may be considered separate if the evidence indicates that they were:
(1) separated in space or time; or (2) intended for different purposes or transactions.
{27} “[A] determination of the existence of separate stashes is not constrained by any
particular measure of spatial or temporal distance,” Johnson, 977 F.2d at 1374, but close
proximity in space and time is indicative of unitary conduct. See Rabb, 725 N.E.2d at 1043
n.6 (noting that separate charges based on “multiple amounts of a controlled substance,
virtually identical in quality, hidden separately at one location” are “problematic” under the
double jeopardy clause). Likewise, lack of evidence indicating that the defendant had a
separate intent or purpose with respect to each individual stash is not necessarily fatal to the
determination that separate stashes existed, but, in the absence of other factors, is strongly
corroborative of unitary conduct. See State v. Lopez, 2008-NMCA-002, ¶ 17, 143 N.M. 274,
175 P.3d 942 (2007), cert. denied, 2007-NMCERT-012, 143 N.M. 213, 175 P.3d 307
(holding that the defendant did not separately possess two stashes of methamphetamine
because “it [was] obvious that the methamphetamine Defendant possessed at the hospital
came from her home” and there was no evidence to indicate that she had a separate intent
with respect to each stash); Johnson, 977 F.2d at 1374 (holding that the defendant separately
possessed two stashes of amphetamine because he “admitted to possession of the brown vial
amphetamine for personal use” and the jury reasonably could have inferred that “the larger
quantities of amphetamine contained in the thermos bottles” were for distribution); Lane,
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659 S.E.2d at 561 (holding that the defendant did not separately possess three stashes of
oxycodone because there was no evidence to indicate that he had a separate intent with
respect to each stash).
{28} The “separate stash” test incorporates the “sufficient indicia of distinctness”
factors—time, space, intent, purpose, and the quality and nature of the defendant’s
conduct—to determine whether an individual has committed multiple acts of possession of
a controlled substance. Accordingly, I would adopt this test to determine whether a
defendant’s conduct was unitary under Sections 30-31-22 and -23.
{29} With these principles in mind, I turn to the facts of the present case. First, the
evidence demonstrates that Defendant possessed three separate stashes of methamphetamine:
(1) a container with 7.03 grams; (2) a container with 2.71 grams; and (3) a container with
.61 grams. Although the methamphetamine was packaged separately, it was all found at the
same time and in the same location, namely, in Defendant’s bedroom. Second, although
there was evidence of both personal use and intent to distribute methamphetamine, there was
no evidence to indicate that the defendant had a separate intent or purpose with respect to
each of the individual stashes found. Stated another way, there was no evidence to indicate
which of the three stashes were intended for distribution and which were intended for
personal consumption.
{30} Because all of the methamphetamine possessed by Defendant was found in the same
place at the same time and there was no evidence to indicate that Defendant had a separate
intent or purpose with respect to each of the individual stashes found, Defendant’s conduct
was unitary in nature. Defendant’s conviction for both possession of methamphetamine and
possession of methamphetamine with intent to distribute therefore violates the double
jeopardy clause. Accordingly, I concur in the judgment of the majority opinion.
PETRA JIMENEZ MAES, Justice
Topic Index for State v. Quick, No. 30,916
CT CONSTITUTIONAL LAW
CT-DJ Double Jeopardy
CL CRIMINAL LAW
CL-CL Controlled Substances
CL-DR Distributing
CL-PS Possession
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CA CRIMINAL PROCEDURE
CA-DJ Double Jeopardy
CA-LO Lesser Included Offense
11