Lead Opinion
Opinion
We granted review to consider (i) whether “drug quantity” enhancements imposed pursuant to Health and Safety Code section 11370.4
I. Facts
Defendant Errol Pieters arranged a sale of cocaine to an undercover police officer in July 1987. He was arrested in a vehicle containing just over 11 pounds of a white, powdery substance, later proved to be 83 percent cocaine. A jury convicted defendant of violating Health and Safety Code section 11352 (offer to sell or transportation of a narcotic; hereafter section 11352) and Penal Code section 182.1 (conspiracy), and found true the allegation that the substance containing cocaine weighed more than 10 pounds (§ 11370.4, subd. (a)(2)). The trial court sentenced defendant to a total of eight years in state prison, consisting of a mitigated base term of three years for the section 11352 violation and a consecutive term of five years for the section 11370.4 enhancement.
Defendant appealed, contending that his sentence violated the double-base-term limit and that because he possessed less than 10 pounds оf pure
II. The Double-base-term Limitation
Quantity enhancements under section 11370.4 were enacted in 1985. (Stats. 1985, ch. 1398, § 3, pp. 4948-4949.) The express legislative purpose in adding this section was “to punish more severely those persons who are in the regular business of trafficking in, or production of, narcotics and those persons who deal in large quantities of narcotics as opposed to individuals who have a less serious, occasional, or relatively minor role in this activity.” (Stats. 1985, ch. 1398, § 1, p. 4948.)
The double-base-term limitation, on the other hand, first became operative in 1977. (Former Pen. Code, § 1170.1a, as added by Stats. 1976, ch. 1139, § 273, p. 5140; renumbered as Pen. Code, § 1170.1 and amended by Stats. 1977, ch. 165, § 17, p. 649.) In cases involving multiple sentences, this rule limits the maximum term to twice the number of years imposed as the base term under Penal Code section 1170, subdivision (b). Then, as now, the rule admitted specific exceptions. Quantity enhancements pursuant to section 11370.4, however, were not explicitly included among those exceptions until 1988—after defendant had committed the crimes charged. (Stats. 1987, ch. 1423, § 3.7, p. 5274.) (la) Because defendant’s eight-year sentence is more than double his three-year base term, the issue before us is whether section 11370.4 created an implied exception to the double-base-term limit even before the 1988 amendment to former Penal Code section 1170.1(g).
The fundamental purpose of statutory construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of the law. (People v. Craft (1986)
The People concede the literal language of section 11370.4 is unambiguous. As originally enacted, enhancements under this section applied only if three conditions were satisfied: (i) the defendant was convicted of violating Health and Safety Code section 11351 or 11352; (ii) such violation involved “a substance containing heroin or cocaine”; and (iii) the substance must have exceeded three, ten, or twenty-five pounds. If all three conditions were met, the defendant was subject to a three-, five-, or ten-year enhancement. The statute made no reference to the double-base-term limitation. The People argue, however, that unless we imply such an exception, section 11370.4 would be rendered essentially nugatory аs applied to pre-1988 offenses.
In support of this argument, the People draw our attention to People v. Carvajal (1988)
We employed similar reasoning in People v. Jackson (1985)
The Court of Appeal in the present case rejected and distinguished the reasoning of Carvajal and Jackson. It first contested the assertion in Carvajal that 10-year enhancements could never be imposed. The court explained that the quantity enhancement could always be “imposed”; only that portion of the enhancemеnt exceeding the double-base-term would need to be stayed. (See Cal. Rules of Court, rule 447; People v. Benton (1979)
The Court of Appeal found Jackson (supra,
The Court of Appeal’s reasoning is not convincing. The Legislature added section 11370.4 to punish dealers of large amounts of drugs in direct proportion to the quantity of drugs involved. This intent is evidenced by both the express purposе of the section and the graduated sentence enhancements provided therein. In rejecting the reasoning of Carvajal (supra,
Likewise, conditioning section 11370.4 enhancements upon the occurrence of an exception enumerated in former Penal Code section 1170.1(g) would also frustrate the Legislature’s intent. Former Penal Code section 1170.1(g) provided four types of exceptions to the double-base-term rule: (i) the defendant stood convicted of a violent felony (defined in Pen. Code, § 667.5, subd. (c)); (ii) a consecutive sentence was imposed pursuant to Penal Code section 1170.1, subdivision (c) (felonies committed while in prison); (iii) an enhancement was imposed pursuant to Penal Code section 12022, 12022.4, 12022.5, 12022.6, 12022.7, or 12022.9 (commission of felony involving firearm, destruction of proрerty, or infliction of great bodily injury); or (iv) the defendant stood convicted of felony escape from prison. In light of the broadly stated statutory objective of punishing more severely “those persons [dealing] in large quantities of narcotics,” we do not believe the Legislature intended full application of section 11370.4 to depend on the fortuitous availability of some unrelated exception. Any other interpretation would draw a distinction, for instance, between large quantities of drugs possessed by an escaped felon and similar amounts in the hands of a convictеd narcotics dealer. Such a distinction would be at odds with the Legislature’s desire to punish dealers qua dealers.
We agree with the Court of Appeal that our decision in Jackson (supra,
In this respect, the present case differs from other instances in which we have declined to find an implied exception to a penal statute. For example,
Unlike the present case, Siko (supra,
III. The Definition of “Substance”
As previously nоted, defendant was arrested in a vehicle containing slightly over 11 pounds of a white powder, which later proved to be 83 percent cocaine. Defendant asserts the word “substance” as used in section 11370.4 does not refer to a mixture of different compounds but is in effect a shorthand notation for “controlled substance,” which denotes an illicit drug in its pure form. He contends that because he possessed less than
Defendant, however, fаils to examine the word “substance” within its statutory context. Section 11370.4, subdivision (a), requires that a defendant be convicted with respect to “a substance containing . . . cocaine.” The Court of Appeal observed that if it accepted defendant’s interpretation, the words “substance containing” would either be rendered meaningless or produce an absurd result. We agree. Substituting defendant’s definition, the requirement for imposing an enhancement under section 11370.4 would effectively read, “with respect to pure cocaine containing cocaine.”
The Court of Appeal found a more likely interpretation of “substance containing . . . cocaine” to include “ ‘an identifiable chemical element, compound, or mixture—sometimes restricted to compounds and elements.’” (Quoting Webster’s New Internat. Dict. (3d ed. 1981) p.2279, italics added.) As the Court of Appeal noted, this definition comports with the express legislative objective: “The Legislature enacted . . . section 11370.4 to discourage the transfer of large quantities of cocaine and other controlled substances. No authority suggests ‘ “the severity of these sanctions must be finely tuned to correspond to the amount of pure [narcotic] involved in any given transaction ....’” [Citation.] . . . The focus is on the quantity, not the quality, of the drug seized.”
We conclude that the Court of Appeal correctly interpreted the language of section 11370.4 in holding that enhancements under that section are triggered by the weight of a mixture containing the drug and not merely by the weight of the pure drug itself.
We hold that quantity enhancements under section 11370.4 were impliedly excepted from the double-base-term limit of former Penal Code section 1170.1(g), before the latter section was explicitly amended to so provide. The words “substаnce containing . . . cocaine” in section 11370.4 unambiguously encompasses a mixture, and therefore the quantity enhancements under that section are determined by the weight of a mixture containing an illicit drug, not merely by the weight of the drug itself. The Court of Appeal’s order remanding the case for resentencing is reversed with directions to affirm the judgment.
Panelli, J., Kennard, J., Arabian, J., and Eagleson, J.,
Notes
At all times applicable here the relevant portion of section 11370.4 provided:
“(a) Any person convicted of a violation of Section 11351 or 11352 with respect to a substance containing heroin or cocaine shall rеceive an additional term as follows:
“(1) Where the substance exceeds three pounds by weight, the person shall receive an additional term of three years.
“(2) Where the substance exceeds 10 pounds by weight, the person shall receive an additional term of five years.
“(3) Where the substance exceeds 25 pounds by weight, the person shall receive an additional term of 10 years.”
A 15-year enhancement was added in 1988 for substances exceeding 100 pounds. (Stats. 1987, ch. 1174, § 6.5, p. 4157.)
As applicable here, former Penal Code section 1170.1(g) read: “The term of imprisonment shall not exceed twice the number of years imposed by the trial court as the base term pursuant to subdivision (b) of [Penal Code] Section 1170 unless the defendant stands convicted of a ‘violent felony’ as defined in subdivision (c) of [Penal Code] Section 667.5, or a consecutive sentence is being imposed pursuant to subdivision (c) of this section, or an enhancement is imposed pursuant to [Penal Code] Section 12022, 12022.4, 12022.5, 12022.6, 12022.7, or 12022.9 or the defendant stands convicted of felony escape from an institution in which he is lawfully confined.” Effective January 1, 1988, the statute expressly included section 11370.4 among the excepted enhancements. (Stats. 1987, ch. 1423, § 3.7, p. 5274.)
This same conclusion would also apply to Health and Safety Code section 11351, which provides base terms of two, three, or four years.
Penal Code section 667 was enacted in 1982 as part of Proposition 8 (the so-called “Victims’ Bill of Rights”).
The present case also differs from People v. Prather (1990)
Defendant does not claim the substance in his possession was so diluted that it was incapable of producing a narcotic effect. We therefore need not decide whether the enhancements under section 11370.4 would apply when, for example, mere traces of cocaine are found in an otherwise weighty substance. (See People v. Leal (1966)
We note this interpretation forecloses instances in which a defendant has, for example, hidden a two pound package of cocaine within a twenty-five-pound sack of talcum powder. In such an example the cocaine would not be mixed with the talcum powder, but rather would remain a distinct entity—a substance in and of itself, to be weighed separately from the talcum powder for purposes of the enhancement statute.
Both defendant and the People attempt to support their respective positions by referring us to the legislative history of section 11370.4. Aside from the fact that the various committee reports cited by the parties are inconclusive, we find it unnecessary to venture beyond the express language “substance containing . . . cocaine” in order to interpret section 11370.4.
Retired Associate Justice of the Supreme Court sitting undеr assignment by the Chairperson of the Judicial Council.
Concurrence Opinion
I concur in the majority opinion with regard to the definition of “substance” in determining quantity enhancements under Health and Safety Code section 11370.4
The People concede, and the majority do not dispute, that the statute is unambiguous; section 11370.4 as originally enacted was subject to the double-base-term limitation. I find this concession troubling in light of the principle we have enunciated repeatedly: “ ‘ “[wjhen statutory language is thus clear and unambiguous there is no need for construction, and courts should not indulge in it.” ’ ” (People v. Weidert (1985)
Even assuming some ambiguity, a number of rules of construction, as well as a commitment to refrain from judicial legislation, should lead us to a different result. Former Penal Codе section 1170.1, subdivision (g), expressly states the exceptions to the general rule that all criminal sentences are subject to the double-base-term limitation. Prior to its amendment in 1988,
“ ‘[Ajmbiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.’ ” (United States v. Bass (1971)
The majority note but do not adequately apply a third rule of construction: we read every statute with reference to the entire scheme of law of which it is part so that the whole may be harmonized and retain effectiveness. (Maj. opn., ante, at p. 899, citing Clean Air Constituency v. California State Air Resources Bd. (1977)
Finally, the mere fact that this exception to the double-base-term limitation did not exist in statute when this case arose suggests that we should use
Instead of following these rules of statutory construction, the majority justify their holding on the principle that we will not give statutory language a literal meaning where “ ‘absurd consequences’ ” will attach. (Maj. opn., ante, at p. 898.) The majority then cite a case on a state Treasurer’s confirmation (Lungren v. Deukmejian (1988)
I do not consider a literal interpretation of the statute an “absurd consequence.” Section 11370.4 does not necessarily conflict with former Penal Code section 1170.1, subdivision (g), at all: in any particular case, the existence of another applicable exception to the double-base-term limitation would permit section 11370.4 enhanсements to be applied in full. Even if one dismisses this possibility as unreasonably dependent upon a “fortuity,” as the majority do, the law as the Court of Appeal applied it (i.e., limiting the enhancement to the base term—three years in this case) does not yield an “absurd consequence” as that term has been used in prior case law. It is distinguishable from Younger v. Superior Court (1978)
To justify their position, the majority argue that we have implicitly approved the correction of drafters’ oversights in People v. Jackson (1985)
Our holding in Jackson, supra,
We cannot tell with certainty whether the Legislature’s 1988 amendment to the double-base-term limitation to include possession of cocaine and heroin represented an affirmation of the intent of the Legislature that enacted section 11370.4 or, instead, a revision to the law reflecting heightened concerns over drugs and drug-related crimes. It is plausible that the Legislature, in 1985, intended the maximum drug-quantity enhancement to be applied only in the circumstances where another exemption from former Penal Code section 1170.1, subdivision (g), applied. More likely, that Legislature never weighed its intent in enacting section 11370.4 against the intent expressed by the Legislature that enacted the double-base-term limitation.
I am not convinced that this statute is susceptible to statutory construction. Further, assuming that ambiguity in the statutes exist, several basic rules of construction exist in support of the determination of the Court of Appeal; the conclusion the majority draw necessarily rejects these basic rules of construction. Finally, I believe that even if we were certain of the Legislature’s intent in enacting section 11370.4, extending Jackson’s analysis to encompass legislative “oversights” is an ill-advised and unnecessary precedent, especially in light of the Legislature’s amendment to the double-base-term limitation in 1988.
Mosk, J., concurred.
All further statutory referenсes are to the Health and Safety Code unless otherwise indicated.
Former Penal Code section 1170.1, subdivision (g), was initially adopted as Penal Code section 1170.1a, subdivision (f).
It is obvious, however, that the Legislature is free to create new substantive crimes and sentencing guidelines in accordance with the severity of those crimes. The majority appear convinced that the Legislature that enacted section 11370.4 essentially intended to create a new substantive offense, wholesale or bulk distribution of a controlled mixture; if this was their intent, however, it is not apparent why the еnacting Legislature did not simply amend the double-base-term limitation or create such a new substantive offense at the time.
The cases upon which Younger relies to establish “absurd consequences” are only distantly related to the facts of this case but serve to illustrate what outcomes we have found “absurd” in the past: People v. Barksdale (1972)