Dave McDonald, whose Pleasure Principle novelty shop was a downtown Mill Valley staple for more than 48 years, was found guilty in Marin County Superior Court on Tuesday of selling a fake illegal narcotic to an undercover officer more than 16 months ago. McDonald, who has a house in Fairfax, was acquitted of the other two counts he faced of possession of phenylpropanolamine with intent to sell it knowing that it would be used to make methamphetamine.
Judge Paul Haakenson's decision is the latest chapter in a saga that began with a dramatic, multi-agency raid of McDonald's shop in March 2011, when law enforcement agencies alleged that McDonald was found with 15 to 20 pounds of methamphetamine or meth precursor ephedrine. Those substances ended up testing negative for both of the alleged narcotics, and the eight felony charges McDonald initially faced were knocked down to three that focused more on his intent rather than the actual sale of illegal drugs.
Despite his acquittal on two of the three charges he faced, McDonald potentially faces a prison sentence of 16 to 36 months, though nothing is certain until the sentencing slated for Sept. 26.
"The charge is a felony-misdemeanor wobbler, which means it could possibly be knocked down to the lower charge of a misdemeanor," public defender Michael Coffino said after Judge Paul Haakenson gave his verdict in the case.
McDonald could get credit for the time he served in Marin County Jail, a three-month stint during which he said he lost more than 30 pounds because he couldn’t get access to a vegetarian meal.
McDonald declined comment on the decision until after his sentencing. He did say, however, that he was thrilled with the job that Coffino did in the case.
"He was absolutely brilliant," he said. "He didn't believe that I was guilty, and my whole reason for going to trial on this was that I didn't believe I was guilty either. The last thing I wanted to do was plead guilty to something I know I didn't do."
McDonald was found innocent on the first count, which pertained to McDonald possessing knowledge that the person to which he sold the substances was planning on manufacturing methamphetamine.
Prosecutors were unable to prove that McDonald believed that the manufacture of methamphetamine would be the outcome of the sale of the substances. The powder was purchased by agent Anthony Souza of the West Contra Costa County Narcotic Enforcement Team (West-Net) as part of a sting operation that resulted in a dramatic raid of McDonald's shop in late March 2011.
"The defendant could not have known, therefore the knowledge element is absent," Haakenson said.
The judge also found McDonald to be innocent on the third count, stating that it could not be proven that he possesed phenylpropanolamine, also a precursor to the manufacturing of meth. Although some of the powders in McDonald's shop tested positive for PPA (phenylpropanolamine) most did not. Out of 52 bags in the shop, the seven or eight offered to the officers may or may not have contained PPA, according to Haakenson.
Earlier Tuesday morning, Deputy District Attorney Sean Kensinger and public defender Michael Coffino spent their time before Haakenson presenting their closing arguments.
Kensinger stated the McDonald knew exactly what he was talking about with detecitve Souza from the initial buy.
"The defendant provided the detective with a white, powdery substance and knew exactly what the detective was ordering and why he wanted it," said Kensinger.
Kensinger argued that McDonald believed he was selling ephedrine to Souza and that he believed that the man would be using the substance to create methamphetamine.
Kensinger played an audio recording of McDonald and detective Souza in which the two men discuss temperature ranges. In the recording, McDonald gave Souza specific instructions for cooking meth, according to Kensinger.
Coffino countered by arguing that McDonald and the detective had conflicting assumptions of what was going on, and it was the meeting of two very different people that caused the case to arise in the first place.
Coffino argued that the prosecutor could not prove that McDonald knew that the nature or character of the powder he sold was that of a controlled substance, or that the defendant had any knowledge that the powder would be used to make meth. All the evidence is circumstantial, he said.
Coffino told the judge that McDonald was trying to get rid of the many old powders in his shop that were used as fillers for cocaine, rather than precursors to meth.
"There is not a single fact from which you can conclude that McDonald is talking about precursors or yields," said Coffino. In the audio recording in which temperature ranges were discussed, McDonald was actually talking about the process of cutting cocaine, according to Coffino.
On September 26, Judge Haakenson will decide on McDonald's punishment at a sentencing hearing scheduled for 9 a.m.