In 1996 “GHB” was not a “controlled substance.” California first “scheduled,” some forms of GHB, or made it illegal, by placing it upon the list of prohibited substances in Health and Safety Code section 11055(e)(6), by passing urgency legislation that became effective on 2 December 1997 (See exhibits 58-59, 1997 AB6). As urgency legislation, the legislation became effective when the governor signed it and it was “chaptered.” On 1 January 2000, section 11055(e)(6) was amended to be more inclusive and GHB became listed section 11054(e)(3) and section 11056(c)(11). Thereafter, all forms of GHB became controlled substances.
GHB of any type was simply not a controlled substance in 1996, when the crimes charged herein occurred. Ergo, the trial team’s failure to research the law and investigate the facts as they relate to GHB, and to request proper jury instructions, resulted in years of imprisonment. Counsel committed a century of ineffective assistance of counsel by failing to read and know the law and apply it to the facts of this case
 See H&S 11007: “’Controlled Substance’ . . . means a drug . . . listed in any schedule in section . . . 11055 . . . .”
 In 1997 GHB was simply listed as “Gamma-hydroxybutyrate.” The drug is now listed in section 11054(e)(3): “Gamma hydroxybutyric acid (also known by other names; gamma hydroxy butyrate; 4-hydroxybutyrate; 4-hydroxybutanoic acid; sodium oxybate; sodium oxybutyrate), including its immediate precursors, isomers, esters, ethers, salts, and salts of isomers, esters, and ethers, including, but not limited to, gammabutyrolactone, for which an application has not been approved under Section 505 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. Sec. 355);” and 11056(c)(11): “Gamma hydroxybutyric acid, and its salts, isomers and salts of isomers, contained in a drug product for which an application has been approved under Section 505 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. Sec. 355).”
 And, of course, it was a failure of the ineffective defense team to not explore this issue. An expert, even used solely as a defense consultant, could have helped Diamond distinguish between the types of GHB and thereby could have afforded him the argument that Shawna may not have been administered the type of GHB that was illegal in 1997. The jury was instructed that the rape of Shawna was via a controlled substance and all counsel simply failed to inquire as to whether or not the type of GHB petitioner possessed was that which was prohibited in 1997.
GHB has a biphasic sedation pattern which is due, in part, to the two main types of receptors to which the drug binds. At lower concentrations, the drug binds more to one than another. At a higher concentration, the drug binds to the other receptor. The first causes more of an elevation in consciousness and mood. At the higher concentration, it tends to cause sedation. As a patient metabolizes the drug and concentrations lower, a sudden arousal is common. Importantly, GHB does not stop autonomic reflexes, such as smooth muscle contractions.
The videotapes demonstrated several important findings in view of the GHB pharmacology, which, in my opinion, exclude GHB as the drug causing the demonstrated findings. Specifically, the females shown as unconscious had very little, if any, nipple erection after extensive simulation. Also, there was no apparent anal “wink,” or contraction of the anus with peri-anal stimulation. Both of these reflexes are impossible to control for most people. They evidenced partial airway obstruction, with sonorous respiration for long periods, without any attempt to spontaneously correct their positions. This is indicative of a deep sedative state. There was also no attempt to move the left arm of one of the females, even though it was flexed and in what ordinarily would be an uncomfortable position where it stayed for a long period of time. This is another sign of deep sedation. One female moved during the videotape, changed her position and then reassumed a seemingly unconscious state. This is extremely atypical for someone under the influence of GHB, even in conjunction with other drugs, because as they metabolize the drug to a less sedated concentration, they often become hyper-awake and do not go back to an unconscious state.
In summary, the autonomic suppression, deep sedation with recurring sedation after partial wakening make GHB highly unlikely as the agent causing this videotaped syndrome.