*1 22, 1971.] 14756. In Bank. June No. [Crim. PEOPLE, and Respondent, Plaintiff
THE ROGERS, Defendant Appellant. DAVE OLIVER *3 Counsel Court, Vernon, for Defend- under Supreme
R. appointment Eugene ant and Appellant. General, Granucci and Alfred Robert R.
Thomas C. Lynch, Attorney Dovbish, General, and for Plaintiff Attorneys Respondent. Deputy Opinion
BURKE, J. found Dave Oliver transportation A jury Rogers guilty Code, (Health but him a 11531) charge & on Saf. acquitted § Code, 11530). (Health & He Saf. admitted possession marijuana § and sentence conviction. The prior suspended imposition court burglary him of conviction. He placed judgment probation. appeals was (1) Defendant’s contentions are that since he acquitted principal he not be transportation; could convicted charge, illegal' (2) instruct the the elements failing that court erred jury regarding of the offense of and who transports marijuana one transportation; use rather than for or distribution not guilty for his own sale We have concluded that of marijuana illegal transportation. but of marijuana, is not element of the offense of a necessary transportation trial reversible instruct failing jury court committed error for that to a conviction on its own elements requisite motion regarding offense. We have further concluded that the word under Health “transports” Code section be construed as Safety referring only for the selling distributing to others. drug 8, 1968,
About 2 a.m. on Police Officers Olson and Hoffman February car, Ford, defendant’s two-door traffic violation and for stopped Defendant, in connection investigation with a robbery. age driving car; B., seat; J., Charles was in the front age right Larry age Earl,1 and Eugene were on left sides age right respectively of the rear seat.
At the officers’ car, defendant and J. request out of the Larry got identification. Before produced the latter made “a alighting, furtive move- *4 ment . .. down behind seat.” Both back into boys got subsequently the car.
Charles B. also out the car at got the officers’ and while request was Hoffman to him talking Detective Odiorne arrived. Sergeant Upon made, ascertaining.that search for had been not Odiorne asked weapons the remaining three in the car to out. When Earl started to occupants get Odiorne comply, saw him kick a matchbox with his foot. match- right box fell from to inside car and and Olson pavement, picked up upon its contents concluded that the examining substance was marijuana. An confirmed expert Olson’s conclusion and stated that there was enough to marijuana make to 15 cigarettes.
Odiorne also saw a Olson red which a barbiturate pill, appeared devil,” known “red roll from beneath the car. went to They thereupon the left side of the car and saw defendant On the alighting. pavement beneath the left barbiturates, door found red they forty pills containing five methedrine, plastic and four packages marijuana cigarettes. According Olson, it would have been on the left possible side throw anyone the “merchandise” out.
Defendant and his were arrested for of narcotics. companions A search of their revealed on B. persons ziz-zag Charles papers J. Charles B. were called to
Larry testify by prosecution. Larry testified J. that he smoked a in the car marijuana cigarette on night defendant, Earl, question, that and Charles B. then were present, that the car was at the time. moving charge jointly Rogers solely 1 Earl possession marijuana was tried with on the Defendant, herein, acquitted charge. Rogers. as used refers to his had marijuana that no one smoked B. first testified
Charles made, he had statement but confronted with contrary after presence being cigarette had smoked a he and J. Larry marijuana he then admitted that around,” Earl into before were got while “riding defendant’s they presence de- However, marijuana when he smoked he testified that the car. later car. was not fendant he not did own behalf and testified
Defendant took the stand in his know what marijuana his with that he did not see car anyone marijuana; smelled; it he would like, looked and that had smoked anyone or how it Ford, having owning known was He admitted marijuana. have it a few his arrest. before purchased days before the matchbox of narcotics or seen
Earl denied having defendant that he was showed it to him. He stated picked up an officer did not recall the car and five minutes before -the officers or less stopped he was in the car. while smoking anyone into imports who “Every transports,
Section provides: person State, sells, furnishes, or offers gives away, transport, this administers or furnish, administer, State, sell, this away, into give attempts import this shall be punished into State import transport *5 . .” five to life . . Similar state years imprisonment prison narcotics other than restricted regarding provisions regarding in sections 11501 respectively.2 are contained 11912 drugs dangerous “ as in this division 11012 used [which Section provides: ‘Transport,’ ‘conceal,’ or . . . includes ‘convey,’ 11531 and includes §§ ” ‘carry.’ the offense of is “Knowledge An essential element of transportation and its narcotic character the defendant of both the presence drug Court, 581, 471, Superior 474 (Rideout . .” v. 67 Cal.Rptr. . . [62 197].) knowledge 432 hold that one P.2d The cases having requisite if or exclusive he also has joint be found may guilty illegal division, every in this provides: “Except otherwise.provided 11501 2 Section furnishes, sells, gives State, or transports, imports this administers person who into State, sell, furnish, give administer or away, import to into transport, offers this or than away, any other attempts import transport this State or narcotics or to into . punished” . be except prescription physician of a . shall upon the written specified a manner. , every 8 . . provides: “Except provided as otherwise Article . 11912 Section sells, manufactures, state, compounds, fur- sell, transports, imports into this person who state, nishes, administers, gives this away, import to into transport, or or offers furnish, into manufacture, give import compound, away, attempts or or administer drug transport dangerous prescription except upon the this state or restricted physician punished” specified a . . . be in a shall manner. 134 Court, (Rideout in a v. Superior vehicle.
possession drug moving Burke, supra, 474; 149, People v. 208 162 p. Cal.App.2d Cal.Rptr. [24 Miller, 912]; People 96, v. 506]; People 162 v. 98 P.2d Cal.App.2d [328 Coleman, Holliday, 562, 301]; 120 People 564 P.2d v. Cal.App.2d [261 797, 837].) 100 P.2d 801 Possession Cal.App.2d [224 constructive; either or latter actual is established that defend by showing ant maintained some control control over contraband in right phys Francis, ical (See People 66, of another. v. 71 Cal.2d Cal. possession 71 [75 Showers, 591]; People 450 P.2d v. Rptr. 642-644 939].) [68 Cal.Rptr.
Although possession circumstance commonly tending prove it is not an essential element of transportation,3 that offense and one may or other “transport” marijuana even are in drugs the exclusive though they Valerio, (People another. v. 13 912, 921 Cal.App.3d [92 82]; v. People Vasquez, 135 448 P.2d Cal.App.2d [287 385]; Watkins, People 414]; v. see 2 Cal.App.2d Witkin, Solo, 644; Cal. Crimes but see v. supra, Cal. Sanders, 201, 206; People App.3d Cal. Cal.App.2d 259].) For Rptr. were defendant example, shown have aided and abetted his passengers carrying, their conveying concealing drugs pos session, his conduct would have sustained conviction of transportation. Francis, (Cf. People 72.) Therefore, supra, 71 Cal.2d it is that defendant’s apparent did neces- acquittal charge sarily conviction of preclude transportation.4
Nor agree can we with defendant’s further contention that the of fense of illegal intent contra transportation requires specific transport distribution, band for the of sale or rather than use. Neither the word terms “transport,” defining “carry,” “convey,” *6 “conceal,” nor section 11531 read in its that the offense entirety, suggests is limited ato or particular purposes. purpose of, to, possession necessary part 3 In cases where defendant’s is incidental and shown, the transportation charged, subsequent possession prior, and no different or necessarily is possession the offense of is be the of deemed to included offense trans in Solo, portation, charges. (People and defendant convicted of v. not be both 201, 829]; Richardson, People 70, 8 Cal.App.3d v. Cal.Rptr. Cal.App.3d 208 6 [86 Johnson, 607]; People 844, Cal.Rptr. 238].) 78 v. 5 Cal.App.3d Cal.Rptr. [85 847 [85 Solo, People Sanders, supra, 201, People 4 To the Cal.App.3d extent that v. 8 v.
supra, 123, Cal.App.2d suggest necessary 250 that element transportation, offense of those are disapproved. cases 954, We point also out accusatory pleading may that under Penal Code section an charge two or more different offenses connected their or in commission different state- of same acquittal ments offense and that “An one of or more counts not be shall acquittal any (See Witkin, deemed an of other count.” Cal. Criminal Procedure 558-560, cited.) pp. and cases 135 not only be noted that section 11531 transporting It should prohibits or giving administering, but also selling, furnishing, marijuana, importing, the conjunctive— the disjunctive—not are in it away. prohibitions of (or importation) exempts transportation in that section nothing to restrict sought for use. Had marijuana distribution, could sale or situations transportation involving offense 11530.5, enacted in section have so For provided. easily example, possesses marijuana sale except who “Every person provides for added; (Italics law shall as otherwise provided by punished” specified. 11500.5.) see also § 11531 section
Thus, have courts this state consistently applied conveyance sections to situations similar involving knowing vehicle, dis or not the evidence in a whether moving narcotics or drugs Ride (See was intended sale or closed that the contraband for distribution. Court, Superior supra, v. Cal.2d 471 out 67 quantity [small Johnson, car; distribute]; People v. sell found in no indication of intent to Miller, People v. supra, 5 847 Cal.App.3d amphetamine pill]; [one in moving cigarette 162 96 consumed supra, Cal.App.2d [one Coleman, vehicle]; 797, 801 People supra, grams v. 100 Cal.App.2d [31 Watkins, heroin]; People v. 74 supra, bag 96 Cal.App.2d [$12.50 Sanders, 123, 134 People v. supra, see also marijuana]; Cal.App.2d sale]; need not be transported [possession drugs Sedan, People v. 546-547 One 1940 Buick [161 Cal.App.2d 264], ... “Traffic is not made an element in drugs indispensible [of nar used to ‘transport’ forfeiture of automobile section regarding Moreover, Gurrola, cotics].”) People 218 Cal.App.2d it was im claim rejected court Cal.Rptr. specifically it were shown (§ 11501) unless to convict for heroin proper transporting the crimes linked other that the act of to some aspect etc.). (i.e., selling, furnishing, mentioned in that section importing, Cressey, unanimous Recently, opinion 19], we established principle 848-849 (presence Code section 11556 in cases under Health Safety be applied auto used) residence where narcotics are that “in one’s own place narcotic the use of the mobile one may have responsibility prevent over the that one has some control premises illegal purposes *7 in cases (Italics added.) should apply An analogous vehicle.” principle intent, driver or or the 11531. of his under section Regardless purpose the conveyance automobile to prevent owner of an has the responsibility vehicle is while that at least of contraband himself or his passengers, by char- of his knowledge control. Proof under his dominion or 136 vehicle,
acter and presence the with his control over the drug, together is sufficient to establish his without further of an actual guilt pur proof the sale pose transport (See People Cressey, for or distribution. drug 836, McGrew, supra, 847-849; 404, People 1 414 Cal.3d 473, Mosk, J.); Rideout v. (dissenting opn. by Court, Superior supra, 474.) 67
In amended Legislature 1970 of sections penalty provisions 11501, 11531, (Stats, and 11912 16) ch. 9 & but did §§ not change sections, basic substantive of those provisions thereby pre in the sumably construction to those acquiescing given sections (Stafford decisions discussed v. Realty Corp., above. Bond Service 39 Cal. 2d 241]; Cal.Jur.2d, Statutes, cases § cited.)
Defendant asserts that “the most for the explanation vast compelling 11531[5] between .. . section disparity punishments 11530 and is that section 11531 to those who their applies of marijuana transportation have increased the risk of harm to others in the society,” suggesting a person who or other for his own use has not drugs transports However, increased that risk. was entitled to assume that for potential harm to others is generally when narcotics greater are rather than being transported place, held one loca place merely tion. The Legislature have concluded that the for increased potential traffic in narcotics more severe for justified than penalties transportation sale,5 for mere for without possession regard particular for which the a matter often diffi provided, Moreover, cult or more severe impossible for those prove.7 penalty county jail provides imprisonment for for 5 Section in not than more year, prison years. one or in provides the state from one to ten Section for imprisonment years prison provides in the state to life five and further that a eligible sentence, upon completion parole, violator “shall not or provide for release on any years.” on other until basis he served not less than three Both has sections penalties specified for increased or more prior the event one convictions. illegal provides punishable 6 Section 11530.5 for sale is “by imprisonment prison years the state not two less than nor than 10 more years,” and that eligible upon violator “shall not be completion for release sentence, parole, or on or on other basis until he served less two has than years prison.” provides penalties section also for increased in cases of certain prior convictions. stated, respect business, to heroin it has been “Because the hazards 7 With_ peddler large narcotics usually carry will not amount of heroin his person found, in his car. go When a customer is peddler will the place where he has hidden his supply of narcotics and return with the requested.” amount of heroin (See Reports Special Study Interim (1961), Appendix Commission on Narcotics Senate, 34.) Journal police lawfully vol. If stop en route the him connec heroin, tion with a different legally offense and find the well be impossible it could to prove the peddler’s purpose transporting the heroin. *8 the fre to inhibit have been deemed who transport drugs may appropriate to sources own use and to their access of their restrict personal quency traffic vehicles in to reduce drugs or to deter the use of order of supply, accidents, distribu of sales or as well as to deter occurrences hazards and afforded mobility tions others. The and increased to relative privacy and ac for the use the automobile offers opportunities expanded personal to curtail drugs; penalties may legitimately imposed quisition greater event, In in the absence of any legislative those any opportunities. a intent the we conclude that section 11531 contrary, requires only use, sale, dis whether for marijuana, knowing or tribution otherwise. case, however,
In the instant the trial court failed to ade give instructions quate with to the element of jury knowledge, respect an essential element offense transporting marijuana. Although the that was instructed defendant of both the jury knowledge by presence and its narcotic character is essential to conviction of drug illegal possession of the instructions did not state that such marijuana, knowledge (Rideout is also a transportation.8 to a conviction for prerequisite illegal Court, supra, 474.) Superior v. Cal.2d
The record does show ad not that defendant an instruction requested the that the element was conviction for vising essential jury foregoing However, is that “The rule illegal transportation. general court must instruct the on the of law relevant to general jury principles evidence, so, the issues raised but even do though requested need not instruct its trial. own motion on at the specific points developed (1 In v. Wade . .. Cal.2d [Citations.] Cal.Rptr. [53 116)], 348 P.2d we of law out pointed ‘general principles governing the case’ are ‘those of law con principles commonly closely openly ” Hood, nected with the facts (People of the case v. before court.’ 370].) Cal.Rptr. closely “commonly of knowledge
Here the principle court,” and the court of the case before with the facts connected openly sua knowledge instruction regarding an give was therefore required Ford, 772, 792-793 60 Cal.2d (Cf. People sponte. charging that defendant jury the information the count court read to 8 The marijuana.” court further wilfully unlawfully feloniously transport
“did transports narcotic such “every possesses jury person who instructed narcotic, guilty of a crime.” be used as sufficient to amount illegal but no further specified essential elements Other instructions illegal The word transportation. given defining the offense of were instructions charge acted with jury to find that defendant “wilfully” was insufficient 433].) Gory, knowledge. (See People 458 [170 requisite *9 138
388 P.2d sponte to instruct sua in for required 892] [court prosecution that an essential element robbery steal]; is a v. People intent to specific Bowens, 590, 229 Cal.App.2d 595 Cal.Rptr. required [40 435] [court sponte sua instruct in for that illegal of narcotics prosecution an element is essential of the narcotic knowledge character of the substance People Longino, v. 222 possessed]; 738 Cal.Rptr. Cal.App.2d [35 sponte to instruct sua in a required 367] [court prosecution offering sell that an essential element is a intent sell mari specific juana].) Graham,
People v. 153], which involved the whether the court question instructed adequately stated, the on the elements first jury “The rule robbery, degree general which that in the elements of the a crime it is provides defining enough court to instruct in the of the statute when the fails to language defendant an thereof amplification request will not when the prevail jury [citation] would have difficulty the statute. Under understanding applying circumstances, such a court must additional and clarification give guidance on its own motion. In the instant case it seems clear that the [Citations.]” would have jury difficulty understanding the trans- applying illegal statute without clarification the court portation the element regarding of knowledge.
The that the court did not arguing err People, give failing Burke, instruction, cite clarifying supra, 208 Cal.App.2d states, which “Considered as a whole the told the instructions defendant was the with jury charged of narcotics and that such was So far as the activity unlawful. of the accusation gravamen concerned, case,” was this was law general principle governing court did “The not err in to instruct the what failing the word jury meant since is ‘well understood ‘transportation’ all persons average . . . intelligence.’ (People Bill Cal.App.
645].)” however, must be read quoted language, light made, contention there instruction was . . de- “No . namely, given scribing involved, transporting narcotic either thus removing offense of a vital element (Italics from the consideration.” jury’s offense added.) clear, Although court concerned entirely apparently with solely whether instruction should have been given defining word and not with whether should have “transportation” an instruction been given regarding knowledge.
Moreover, it seems doubtful that persons average quite intelligence would realize that term includes an element of knowl- “transportation” Under the instructions edge. could have as- jurors reasonably given, trans- is guilty who drives a car containing sumed that one *10 and character. it, of its not he knew whether or presence porting a record, it is probable reasonably From our examination of had been reached proper defendant would have more favorable to result Watson, 13; People Const., VI, (Cal. art. § been instructions given. denied seen, 243].) As we have defendant 818, 836 46 Cal.2d smelled, and testified that like, or how it what looked knowing and that had someone with marijuana did in his car anyone he not see was not and there known it was marijuana, would not have it he smoked contrary. evidence to the strong ' reversed.
The is judgment J., Sullivan, J., McComb, J., and concurred. C. Wright, reversal, but dissent MOSK, J. I concurin the judgment conclusion, “trans- of the crime of 137) that be (ante, guilty majority’s Code section Health and Safety as defined in porting” marijuana for whether a marijuana, personal only knowing transportation “requires use, sale, or otherwise.” distribution 11531, the severe there
Under the of section majority’s reading penalties be in could be inflicted on who is found to prescribed every person posses- his use but sion of a small for happens quantity vehicle, foot, motion, When to be in otherwise. the time either or viewed, be, statute as must in the context of Legislature’s the. narcotics and danger- deliberate detailed control illicit plan of the construction placed ous it is not drugs, reasonably susceptible upon that construction violates settled contrary, On the majority. prin- ascribes irrationality injustice ciples statutory interpretation, scheme, of a recent ameliora- counter to both the legislative runs spirit and the trial courts and charged tive enactment practice prosecutors with enforcement of the law.
I in relevant provides Code section 11531 Safety currently Health sells, state, fur into this who “Every part transports, imports person into this nishes, administers, transport, or offers to gives away, import administer, into state, sell, furnish, attempts import or give away, imprisonment shall any marijuana punished this state or transport not be eligible to life and shall five years period state prison other basis or any of sentence or on parole for release completion upon until he has been for a imprisoned of not less than three period years the state prison.”1 has not seen fit to enact an statutory all-embracing
definition of the word as used in section It 11531. is true “transport” matter, that section 11012 on the but it speaks furnishes defini partial “ division, tion used only: narcotics, in this with ‘Transport,’ reference to ” ‘conceal,’ (Italics includes added.) ‘convey,’ ‘carry.’ As ex this court Lines, in People Western Air Inc. plained *11 “The term ‘includes’ is a word of ordinarily enlargement
and not of limitation. The definition of a as statutory [Citation.] thing certain ‘including’ does not things thereon necessarily a place meaning (Accord, limited to the inclusions.” v. Horner 9 Cal.App. 3d 917].) As used in section “includes” is not a term of it limitation: denotes the of certain items “as a listing part class, or of a whole or of a component larger (Web group, aggregate” (3d 1961), ster’s New Internat. 1143), Dict. ed. and is thus used in the “includes, of sense but not commonplace is limited to” the named instances of that larger As a word group. enlargement, the term is thus a drafting definition, device to rather than contract a expand therein by incorporating which would not otherwise be meanings of the layman’s part understanding word defined. That it is used in this sense in section 11012 is easily demonstrated sections of article comparing language companion (“Definitions”) (“Narcotics”) of division 10 chapter the Health Code: where the intends a Safety comprehensive, limiting definition, the word in definiens; is declared to “mean” its question but where, here, the definition is intended to illustrate or enlarge concept, the definiendum is declared to “include” simply certain more or less related ter ms.2 paragraph provides person 1 The second of section 11531 if a pre such has viously felony been once convicted of a narcotics offense certain “restricted offenses, dangerous drugs” years his shall be five to life with a impris term minimum years. paragraph previously onment of five he provides third if has been years two more convicted times of such offenses his term shall be ten life with imprisonment years. a minimum of ten gravity To put of this matter in its proper perspective, noted that punishment a for even first offense under 11531 is section more severe than that Code, 203),
imposed (Pen. Code, mayhem deadly weapon § assault with a (Pen. 245), (Pen. Code, 217), § voluntary § assault with intent to commit murder man- (Pen. slaughter Code, (Pen. §193), Code, 264), (Pen. rape forcible § arson Code, §447); (Pen. Code, equal'to 213) robbery degree armed § and second Code, (Pen. 190), except § murder subject that the robber and are the murderer to an automatic imprisonment possibility years. minimum without parole for three 2 Compare, example, the definition of “owner” of a vehicle in section 11013 (owner person vehicle), “means” with title to or interest with that of (sale “sale” barter, exchange, in section 11008 disparate “includes” such conduct as therefore, construed, us that as used section 11012 tells only Properly things, “con among other means, 10 of the code “transport” division ceal,” bears additional Inasmuch as the word many and “carry.” “convey,” will most connotations, our task to determine which meaning it remains section 11531. For effectuate intent in enacting the Legislature’s faithfully is, it be ad definition contained in section 11012 must such mitted, are synonyms assistance. negligible “Convey” “carry” merely *3 common of the word. understanding and add “transport,”* nothing even the ma And reference to “conceal” is best obscure: statutory “conceals” on his do not contend that one who merely person jority a marijuana for his own small quantity use—e.g., putting that substance facto of “transporting” his cigarette pocket—is guilty ipso 11531.4 under section
II as used in section “transport” of the word definition legislative Lacking *12 the settled light that section in 11531, remitted to an analysis we are construction. of statutory principles deliberately these). are 11000 both terms
gift, any In section do or a mere offer to statute. same used in their different senses the convey is, from one “to transfer or dictionary “transport” 3 The first definition (Webster’s (Italics added.) New carry, . . ." person place to move. another: 2430.) 1961), (3d Internat. Dict. ed. hand, strongly suggests Legis that the to “conceal” the other the reference 4 On the to former apply primarily section 11012 to lature intended the definition of (Health transport narcotics. statutory vehicles used to mechanism for forfeiture of 1967, 280, 1.) Code, the by § Thus section seq., repealed & ch. 11610 et Stats. § Saf. “vehicle,” a that imme immediately 11012 is definition of while preceding section vehicle,” following to and all three diately it “owner . . with reference defines . 60, §§11011-11013). (Stats. 1939, simultaneously The statute ch. were enacted transport any forfeited to “A vehicle used to narcotic shall be provided further the that 1939, 11610.) enlargement (Stats. 60, statutory In the § ch. that context State.” meaning “concealing” the contra layman’s “transport” to include the act of (§ 11012) concealed presumption that one narcotics created an indirect band in a vehicle did so with the ultimate transported who them, already or had transporting intention of moving it In where was seized. the place them the vehicle to the ground Legislature into a following year presumption specific transformed that the forfeiture, any amending “used of to section 11610 declare such forfeiture vehicle narcotic, unlawfully kept, unlawfully any any which narcotic is transport or in Sess., 9, 33). 1940,-First It convinc (Stats. § cannot Ex. ch. deposited or concealed” repealed the ingly argued by failing repeal 11012 at the time it be that section statute, that the Legislature impliedly manifested an intent vehicle forfeiture “transport” vigor any using provision other the word apply section continue in in division 10 of the code: Legislature repeal preceding also failed used in this following defining owner “as companion vehicle and vehicle sections division (§§ 11013), yet whatever in provision 11011 and there no division” remains 10 which still uses either of those words. 142 with, begin
To it is true that the words of section 11531— operative i.e., sells, state, furnishes, administers, into this “transports, imports gives in the away”—are disjunctive rather than But this conjunctive. prohibited means only commission one of acts is sufficient to support a conviction of (People Thompson the statute violating (1896) 242, 748]; 111 Cal. P. In re (1963) 247 Becerra 218 Cal. [43 910]; 746 App.2d Cal.Rptr. People (1958) v. Williams 164 [32 Cal.App. 251], 2d cited); 862 P.2d Supp. cases it does not mean that [331 each of the terms is vacuum, to be viewed in a as if stood alone in the it text. On is settled that the intent contrary, must Legislature be from the statute taken gathered (1968) as whole (Mercer Perez 68 Cal.2d 112 315]; v. Western Cal.Rptr. [65 Lines, Air (1954) 621, 638), Inc. 42 supra, that all parts the statute must if be construed together and harmonized so as possible (Ingram to effectuate that intent (1968) v. Justice Court 69 Cal.2d Cal.Rptr. 410, 839 650]; 447 Poppy P.2d Burks v. Construction Co. [73 (1962) 57 Cal.2d 313]; P.2d In re Band- mann cited). and cases To end, achievé this noscitur doctrine of a sociis declares that meaning of a word be ascertained reference of other terms meaning which has statute, associated with it in the and that its C.J.S., or restricted scope may enlarged (82 to accord with those terms. Statutes, 331; Statutes, Am.Jur., 247; Statutes, Cal.Jur.2d, § § §§118,148.) bar, these rules to the case
Applying common apparent *13 thread runs words of through operative section 11531: as distinguished from state of passive being of each of these possession marijuana, words an act which that implies by be possession may transferred Thus, one cannot, another. person one violence without to the doing “sell,” English language, “furnish” or “give or away” marijuana anything else to the named acts for their that there require accomplishment oneself: transferee, be both a transferor and a and that or of ownership possession the substance from one to the other.5 Under foregoing pass principles 5 In the of context section 11531 the same is true “import” of the words Although it physically possible drug “administer.” oneself, for one to “administer" a accurately “using” such an act is drug, more characterized as and the Legislature separately prohibited has it section punished 11721. In section preceded by “gives “administer” is by the word away,” “furnish” and followed dictionary should therefore be meaning “give deemed to have its dispense moreover, meaning, another.” This is the immediately same it has in the following companion punishes section “Every which person act of the age years sells, of 21 furnishes, administers, gives or over who . any . . .. . [or] ato minor. . . .” Finally, although it possible meaning, is likewise for the term to bear a broader construction the word as used in section 11531 statutory “transport” must, token, same its “active” mari- given meaning moving for the juana transferring thereof from purpose ownership one to another. person
That be further refined an of the purpose larger analysis legis Here, lative of which too, section 11531 is an we plan are integral part.
bound to harmonize the several elements of the in order to effectuate plan intent, intent. That legislative is to combat the menace illicit manifestly, narcotics and to our But the dangerous drugs war on society. proceeds several fronts: the better to has divided the conquer, Legislature enemy elements, into more each manageable representing distinguishable phase of the drug there is a finite number of problem. Analytically, harmful things it, one can do with illicit substance: one can make one can it, oneself, one can possess use or one can sell it or In the give away.
case of marijuana, Legislature has enacted a series of statutes separately (Health Code, each of these acts a crime. declaring & Saf. 11530.1 § § [cultivation], [use], [possession], or gift].)6 [sale
Each of different, the statutes thus deals awith specific aspect overall cannot we there is problem, presume redundancy overlapping their In among section 11531 is provisions. its face particular, designed sale, to control the other gift, or transfer of from one person words, to another—in other trafficking to control in this contraband. It assumed, cannot be in the light plan, foregoing
intended the statute to also trafficking matter of apply of marijuana, fully 11530, 11530.5). dealt with elsewhere (e.g., § § Rather, to effectuate this scheme each term in section 11531 is to be given that meaning which will focus its on the prohibition problem marijuana It follows that as trafficking. used in section means to “transport” move marijuana for the its sale or distribution to facilitating others; it was not intended to movement which encompass is merely ***67 incident to possession that contraband for use.* *14 marijuana the “importing" act commonly of “into this state” is understood to involve shipper, consignee, an out-of-state a local the of quantity transfer a commercial contraband. Research has disclosed reported California decision construing it otherwise. parallel 6 A prohibits series of respect statutes similar conduct with to narcotics (§§ marijuana 11500-11501) dangerous (§§ other drugs than and restricted 11910- 11912). controls, By way of additional further made it has a crime (§ 11555), to possess knowingly narcotics paraphernalia place to be a where being (§ 11556), are selling using narcotics used and to a place maintain (§ 11557). (The statutory Appendix narcotics is plan set forth in the to this opinion.) may by comparing 7 The distinction illustrated the facts at case bar with those of a recent decision in properly which defendant was convicted of trans- 144
III consider statute the courts may that in a construing is also settled It particular (Estate a will flow from interpretation.” “consequences (1968) 626]; Bright v. 498, Bush Ryan (1943) 21 Cal.2d 513 [133 (1961) 123]; Jaynes v. Stockton 788, Cal.Rptr. 264 792 [71 Cal.App.2d (1919) Court 49]; Superior v. 47, Singh 193 56 Cal.Rptr. [14 Cal.App.2d absurdity are 64, 985].) P. If those 44 68 consequences Cal.App. [185 Cregler (1961) re 56 (In be rejected. must injustice, interpretation 305]; Darling 289, People 363 P.2d Cal.2d 312 Cal.Rptr. [14 Kuhn 219]; People v. 615, 620 (1964) 230 Cal.Rptr. [41 Cal.App.2d nec 253].) if is And (1963) 216 698 Cal.Rptr. Cal.App.2d [31 in order of the statute of the words the literal disregard to essary meaning not hesitate the courts must avoid such absurd or unjust consequences, to Cal.Rptr. 673-674 Cal.2d (Bruce Gregory (1967) to do so. 841, 845-846 193]; Cal.2d (1966) v. Brown 423 P.2d Silver end, the this cited.) To achieve cases 409 P.2d Cal.Rptr. (1961) v. Oliver (People law” into the courts either “read exceptions 593]) or “restricted give Cal.Rptr. 766 [12 Cregler (1961) (In re in the statute words used meaning” general to 308, 312). supra, bar an
In the case at scheme is once in- analysis again statutory structive, time from but this standpoint penalties prescribes. an elaborate punishments The reveals pattern carefully graded inquiry First, in two within each of the three severity major respects. major (i.e., of offenses narcotics other than groups marijuana; marijuana; as restricted increase in one dangerous penalties drugs) severity passes (1) (2) (3) (4) for sale to trafficking possession a an to a each individual offense sale adult minor. Secondly, number similar penalties according progression prescribed 1, ante.) (See, fn. narcotics convictions of the offender. felony prior e.g., In v. Solo 8 Cal. porting in violation of section 11531. 829], Volkswagen appearance a sedan distinctive had App.3d 201 [86 border; following began it on an police at car observed the Mexican when been action; afternoon, Volkswagen highway took evasive later that interstate while it was right large speed, opened and a traveling high rate its door was kilograms—almost pounds laundry sack was thrown The sack contained out. defendant, Volkswagen, found to marijuana. occupant of the have —of convicted inter question, and was had control over the contraband dominion and 11531. That conviction was affirmed. transporting under section alia of contrast, stopped of a car at bar was the driver defendant in the case sharp In seat, Earl, rear Eugene passenger in the narcotics. reasons unrelated doing, out of the car a matchbox alight. kicked police In so he was asked containing *15 charge acquitted marijuana. on a and Earl were a few ounces of Defendant “transporting” of marijuana, nevertheless convicted but defendant was possession single drug 11531. violation of section matchbox in its of these From first is relevant here. progressions particularly we elaborate terms must infer that the differences among penalties as prescribed reflects the considered to judgment correspond- Legislature’s differences of the social of the conduct ing degree gravity prohibited.
For deemed that in an illegal must have example, Legislature trafficking narcotic creates a it society to than the act of greater danger possessing for use—a conclusion in accord with personal eminently experience . common sense. issue, now to the statute in
Turning we note that it prescribes again five punishment8 to life and further directs imprisonment years that one so shall not be or on imprisoned eligible for release parole other basis until he has at served least three of his term. years Reading sections, the statute with its we find the more is companion punishment severe than that for the offenses of for the prescribed heroin possession (§ sale 11500.5: five to fifteen term two and purpose years, minimum one-half years) possession for the of sale marijuana (§ 11530.5: two to ten minimum term two and is years, years), equal to the penalty imposed (§ 11501) for actual sale of heroin or marijuana 11531). (§ To construe section 11531 to of a to the movement apply small amount of incident use to for would marijuana possession personal to therefore be ascribe to the a belief that such conduct creates Legislature a social danger (1) which is more than the of commercial grave possession of heroin quantities with the intent specific trafficking such drugs as serious as the act of heroin or very selling to others. Such a conclusion would be to the just discussed directly contrary scheme, common sense in the meaning would result statutory kind of absurdity which the courts are to avoid in construction required of legislative acts.9
Not would the only anomalous, construction be it would also be unjust. mean, It would example, of two men in of identical possession this succeeding 8 In and the examples, punishment reference is to for first offenders. point 9 The analytically. same can be made It is clear from the terms the nar deter, Legislature
cotics that the through punishment, statutes intends possession trafficking illegal drugs. or use of or equally Legislature It is clear has no interest the fact “transportation” of their as such: whether contraband is rest, it present danger motion or can society no knowingly unless and until it is used, possessed, Certainly punished distributed. can as incident use, latter, possession, to such trafficking; it and when is incident appropriate punish severely trafficking as is punished. But to construe section punish transportation 11531 to severely incident use more simple greater than risk would treating result in an incident the conduct as a presume than the conduct We itself. cannot intended this irra consequence. tional *16 use, arrested one who was for their
small amounts of house) in could be only he at rest his sitting punished when was (e.g., to be in mo- at the time while the other who simple possession, happened of how innocent street)—regardless pur- tion (e.g., driving along prescribed suffer the vastly greater that motion—could penalties pose Indeed, section 11531 is in no way section 11531. for “transportation” by automobile, distinction limited to the hypothesized motionless a man while standing could well arise between arrested equally while walking arrested moments later sidewalk and on the his companion with- in the facts is totally a chance difference same street. Such along be no difference obviously There would out criminological significance. men, the Legis- cannot attribute to two and we between the culpability latter more se- injustice punishing an intent to commit the lature than the former. verely this of our decision in teaching
We should heed at point We Daniels which any statutes under construction of the kidnaping there rejected victim, or for what how brief movement of a no matter robbery forcible into the offense facto to transform the robbery was deemed purpose, ipso held, rather, We with its far heavier aggravated kidnaping penalties. case which did not intend that that the Legislature consequence the commission” of underlying was incidental to the movement “merely harm” to the victim. increase the risk of and did not “substantially crime movement, the literal terms 1139.) within (Id. although at Such p. (id. statute, circumstance” remained a nonsignificant “criminologically (Tent. Code, 212.1 to § from Model Penal Comments at quoting p. 11, 1960) 14). Draft No. at p. and to and injustice, in Daniels to avoid overreaching
Our purpose 1127) in sense” California into the “current of common bring {id. of rea- statutes. By parity the construction and of kidnaping application us the can- sense tells context common soning, in present statute of the trafficking inflict the heavy not have intended to punishment which is merely of marijuana an act a small amount of moving does not substan- that contraband incident to the crime possessing i.e., facili- harm, intentionally of social the attendant risk increase tially others. its sale or distribution to tating
IV simple convicted of Prior person court, the discretion 11530 could be violation of section punished, *17 147 either a by misdemeanor sentence in sentence county jail felony (Stats. 1959, 1112, in state 7.) ch. In 1961 the abol- prison. Legislature § 1961, 274, ished (Stats. the alternative of a misdemeanor sentence. ch.
§7.) however, In the dissatisfaction with the following years, statutory punishment of until a committee legislative marijuana grew recommended the of (22 reenactment the misdemeanor alternative. As- 13, (1967-1968) Interim. Com. No. Criminal sembly Procedure Report 9.) At its 1968 session the amended section 11530 Legislature accordingly the trial permit court to sentence in the case of first county jail impose 1968, 1465, (Stats. 1.) offenders. ch. This court has twice recognized § (1970) of the 3 People West Cal.3d purpose amendment: it footnote we noted was “Because of widespread criticism adopted public of the undue harshness” of statute, and in v. Francis prior (1969) 76 we observed [75 that “the Legislature has determined that the former penalty provisions have been too severe in some cases. . . .”
The foregoing legislative history evidences a deliberate change policy in favor of less towards severity those who for their own marijuana possess ' use; the demonstrates, course, remainder of the scheme statutory a more punitive towards those who policy traffic in the It is the drug. duty courts not to blur the line of demarcation which the has thus drawn. clearly Yet that would be the effect of that the precise holding act of a small moving amount of as an incident to its use could be under the statute. For the trafficking punished above, reasons an explained such act is the criminological equivalent treat simple possession; to it nevertheless as if it were an attenuated form of actual would to violate the if trafficking the letter of the spirit not recent Legislature’s change policy.
Such a would also run counter holding experience practi- tioners in this field. contemporaneous construction a statute by effect, those whose is to duty it into carry with together acquiescence by matter, those interest is entitled having and al- great weight, conclusive, though will not be overturned unless erroneous. clearly (Richfield Oil Corp. (1952) 39 Cal.2d P.2d Crawford construction]; Hoyt v. Board Civil Service Commrs. 600] [administrative construction].) A [judicial 804] large number of arrests for doubtless take possession marijuana place, case, automobile; as in this in or about an and in others it is a rea many sonable inference that the defendant did not the contraband at the acquire arrest, exact and hence must have there from some point brought where else. If the authorities and the trial courts were of prosecuting view that such were under persons guilty of “transportation” or the regardless of the amount of involved
section contraband movement, of their this belief reflected one would see expect cases, the conviction In in the rates. But the true. contrary reported *18 sale vast are for acts of of convictions of section 11531 majority violating of kind.10 of rather than furnishing marijuana, “transportation” a recent of study The reason for such is figures by strongly suggested the in Los after both practice Angeles prosecutors County: interviewing no authors concluded: mini- “Although trial on this the judges topic, statute, in whether amount is the a factor required by major mum deciding If a large file is the involved. transportation charges quantity to quantity found the will the defendant with sale charge transportation. is deputy a If a will not file usually complaint small is involved the quantity deputy are not because most sympathetic charging transportation judges er are penalties 11531 and They believe that section its charge. in- stiff are apply only distributing tended to to individuals who for added; Empirical Study An (Italics omitted.) (Marijuana sale.” Laws: fn. County Angeles (1968) 15 and Administration in Los Enforcement from 1551.) depart U.C.L.A. L.Rev. We should not lightly called who are judges construction thus section 11531 upon by placed work, a basis. day-to-day on make the statute upon rationally fairly, least, is construction of the statute At the we cannot that their very say Under erroneous.” rule “clearly foregoing statutory interpretation, therefore correct. presumptively
V forward put none of the various arguments Finally, judgment my will withstand its of section reading the majority support opinion reference, them in the I discuss For convenience of shall critical analysis. order are stated in the majority they opinion. (ante, intended 135) that had first
The. suggest p. majority for the to movement of marijuana offense of to restrict the transportation done so could have easily expedient trafficking purpqse sale,” defined to the crime by analogy the crime “transportation calling latter definition does for sale.” But the section 11530.5 as “possession it broadens the contrary, crime not “restrict” the possession; simple in commercial quantities in fact traffickers who are it to reach persons simple possession high of acts proportion 10 Similarly, expect would see one many. But the incidental movement punished because of the “transportation” 7,141 mari example, convictions of there were statistics are otherwise: “sale,” i.e., of all courts, only but 639 of juana superior California in the relatively convictions. including few section 11531 violations of 122.) Cal., Delinquency in Cal. (State & Crime catch, but unable to whom the have not or are police caught, in the act of While the cannot liability sale. of criminal making scope construction, it can should be contracted expanded by judicial courts, seen, have as we when to a give larger effect necessary legis- lative or to avoid a literal read- plan irrationality injustice flowing of the statute. ing next cite of cases which are majority said to sec group “apply”
tion 11531 “whether or not evidence disclosed that the contraband was intended cases, for sale or distribution.” In all one but how these ever, Rather, the issue now before us was neither raised nor decided. *19 were concerned with
opinions such unrelated matters as the defendant’s and knowledge narcotic character of in the car presence v. Superior Court (1967) (Rideout 581, Cal.2d 67 471 Cal.Rptr. [62 197]), with the Leal rule compliance for liability excluding pos v. session a de minimis (People (1970) Johnson quantity drug 238]), 5 844 and whether conviction for both Cal.App.3d Cal.Rptr. [85 and constitutes transportation double by punishment proscribed v. Penal Code (People section 654 (1967) Sanders 250 123 Cal.App.2d v. Gurrola. 259]).11 The Cal.Rptr. cited case only People [58 is point (1963) 349, 218 368], 352 but its is Cal.App.2d Cal.Rptr. [32 analysis wholly superficial: notes that the statute opinion merely involved (there, 11501) “in is and and disjunctive § conjunctive,” cites' several of the irrelevant decisions now relied on by majority.
No in the hearing case was this sought in court. quote
The then majority Cressey language People our decision in (1970) 836, 849 19], 471 Cal.Rptr. [87 effect that section 11556 in a where narcotics (knowingly being are “place” used) being may constitutionally to a in his own resi- applied person automobile, dence on the theory that he has “some control” over therefore “place” have the responsibility its use preventing for narcotics illegal The Cressey reference to purposes. “automobile” in dictum, is as the case with dealt a defendant arrested for use of marijuana in an but even if apartment; (see it were not People (1969) v. Christensen 2 cited), 548 Cal.App.3d cases Cal.Rptr. [83 analogy majority (People 11 The cite (1945) also a decision v. One 1940 8 Buick Sedan 70 Cal.App.2d 264]) 542 construing now-repealed providing [161 P.2d statute for the (Ante, forfeiture of vehicles transport 4.) used opinions narcotics. fn. Later statute, however, “It used, stress that is the for which a car is not the it, use mere which unlawfully.” (People determines whether was used One Coupe (1967) 816]; Cal.App.2d 1959 Porsche 252 see also 1049 (1963) v. One 1949 Cal.App.2d Chevrolet Sedan Cal. 79].) Rptr. earlier, limited because, way 11531 is no out section
fails as pointed to one automobile. The section equally applicable foot, it is contraband street on who concealed transports along “control” of such defendant’s obviously meaningless having to speak over whatever those circumstances. any “place” next claim in the failure significance Legislature’s majority 11531, in of the above-discussed the substance of section light amend cases, (Stats. ch. at the of certain technical in 1970. time changes shown, deliberate 9.) As I cases no virtually have those provided § event, 11531; court section and in this “construction” of judicial of legislative of such an inference reiterated not the weaknesses long ago supra, (People v. Daniels based on mere inaction. approval 4.) and fn. between justify disparity simple Seeking penalties use, the majority incident to possession “transportation” potential then assert the “was entitled assume” that from place harm to others is when narcotics are greater transported being true, defini- But this is surely rather than in one location. kept to place *20 tion, is to transfer when the of that only purpose others, i.e., contraband to to in its distribution. of the engage use contra- the of one who transports next state that
The majority purpose can usu- to But that band “often difficult or purpose impossible prove.” evidence and reasonable be established circumstantial by persuasive ally therefrom, does in cases drawn as the prosecution routinely inferences 11530.5).12 (§ of” “for the sale marijuana charging possession purpose which the be an instance in prosecution There of course occasional may true a narcotic peddler’s pur- fails satisfaction jury to to the prove the certain injustice would be far that small risk outweighed yet pose; to be shown also could not to narcotics users who improperly penalized they that for the reason simple intend distribution of the contraband—but the the majority’s suggestion, that intent. to are guilty Contrary who that every could not constitutionally presume person Legislature distribution, more does for the any so purpose transports who possesses than it could every person constitutionally presume be In either case there would so for the of sale. does purpose a support to valid inference 12 Among held the various circumstances narcotic, equipment found purpose quantity of was sale are “the expert found, opinion it, packaging, and the manner of place with (1968) (People 268 Cal. being v. De La Torre sale.” narcotic was held for that the cited.) App.2d 704], conduct of the The words or and cases Cal.Rptr. 126 [73 (1969) 126-127; People v. Ford (Id. also pp. see may be relevant. defendant also 823].) Cal.Rptr. Cal.App.2d 729 [76 no rational connection between the fact and the fact proved presumed, so that (People would violate due law. presumption process Stevenson cited.) cases further that the majority have deemed Legislature speculate severer for those who order penalties narcotics in
appropriate transport to “inhibit of their own frequency use.” But this ascribes re- legislative dundancy as other statutes are plan, specifically designed (see to control 11721). use” 11530 and “personal §§ Similarly, sug- that the gestion wished to “restrict their access sources a control on an intent supply”—essentially marijuana possession—implies an incident of that crime more than the itself. The punish crime harshly then to “deter the use of majority legislative propose drugs vehicles in order reduce traffic hazards accidents.” But aside from made that section 11531 is not limited to point previously transporta- “vehicles,” tion by this also ascribes proposal legislative inas- redundancy much as Vehicle Code section 23105 the act driv- specifically punishes vehicle ing upon who is addicted to or under highway by any person the influence of narcotic drug. Finally, majority driven to conclusion “in the purport their ’ 137).
absence of {ante, intent to the I any legislative As have contrary” to demonstrate this sought to discover throughout evidence opinion, ample of such intent one has read the word only “transport” light - words of other section 11531 and the terms of the statutes in companion this deliberate manifestly legislative plan.
Peters, J., J., Tobriner, concurred.
APPENDIX