Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWF008015. William R. Bailey, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Tonja R. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P.J.
A jury convicted defendant of manufacturing methamphetamine (Health & Saf. Code, § 11379.6, subd. (a)), and made 15 true findings that the crime occurred in a structure in which a child under the age of 16 was present (Health & Saf.Code, § 11379.7, subd. (a)). In bifurcated proceedings, the trial court found that defendant had suffered two prior convictions for which he served a prison term (Pen. Code, § 667.5, subd. (b)) and a prior drug conviction (Health & Saf. Code, § 11370.2, subd. (b)). Defendant was sentenced to prison for 35 years and appeals, claiming evidence was erroneously admitted, only one true finding under Health and Safety Code section 11379.7, subdivision (a) should have been made and Penal Code section 654 prohibits the imposition of more than one enhancement under Health and Safety Code section 11379.7, subdivision (a). We reject defendant’s first two contentions and agree with the third. Therefore, we affirm his conviction and true findings, while reversing his sentences for 12 of the 13 enhancements imposed under Health and Safety Code section 11379.7, subdivision (a). We stay imposition of sentence as to them pursuant to Penal Code section 654 and direct the trial court to amend the minutes of the sentencing hearing and abstract of judgment to reflect this.
Facts
On June 2, 2004, defendant’s codefendant rented a room at a motel in Hemet. Although the codefendant was alone when he rented the room, he rented it for two people. Later, he paid for the next night’s stay. Around 7:30 a.m. on June 4, a car, being driven by a woman in the company of defendant, was stopped by police in the motel parking lot. The woman and defendant gave the officer false names and the license plate on the car did not belong to that vehicle. The key given to codefendant for the room he rented was between the defendant’s feet as he sat in the car. The defendant first said he was staying at the motel, and then said that he had stayed there and was just returning the key. Then he denied having stayed in the room for which he had the key. The officer used the key to open the door of the room. Inside, the codefendant was asleep in the bed. Also inside was a methamphetamine lab with products at various stage of manufacture. A certified clandestine lab investigator opined that at least two different cooks were occurring in the room and they would have taken a couple of days and could produce more than a personal use amount of methamphetamine. He also testified that, in his experience, people not involved in manufacturing are not allowed to be at a lab. There were 16 children under the age of 16 years in the building in which the room was located.
1RT refers to the Reporter’s Transcript in People v. Madrid (Sept. 7, 2007, E040450) [nonpub. opn] which we take judicial notice of at defendant’s request.
1. Admission of Evidence Code section 1101, subdivision (b) Evidence
Defendant contends the trial court abused its discretion in admitting evidence under Evidence Code section 1101, subdivision (b) of his 1997 possession of methamphetamine for sale. The trial court admitted the testimony of the officer who arrested defendant in connection with the instant crime that also in 1997, he encountered defendant, who had 30 grams of methamphetamine in his pocket, which was much larger than an amount needed for personal use. The parties also stipulated that defendant admitted that on April 2, 1997, he had possessed methamphetamine for sale. At the end of trial, the jury was instructed that the stipulation could not be used to prove that defendant is a person of bad character or has a propensity to commit crimes. However, it could be used to show a motive for the commission of the crime charged, that defendant had knowledge or possessed the means that might have been useful or necessary for the commission of the crime charged or that the crime charged is part of a larger continuing plan or scheme.
Defendant acknowledges that less similarity between the prior crime and the current one is necessary to admit evidence of the former at the trial of the latter to show common plan or scheme than to show identity of the perpetrator. He also acknowledges that even less similarity is necessary to show intent or knowledge. However, defendant asserts that there were insufficient similarities between the two crimes to permit admission of evidence of the earlier one to show a common plan or scheme. As the People assert, defendant’s prior possession for sale showed his plan to make money off methamphetamine, including engaging in its manufacture. Moreover, the evidence remained admissible to show knowledge and motive.
Defendant counters that he offered below to stipulate to the nature of the substance being manufactured and this rendered the trial court’s admission of the evidence an abuse of discretion. However, what defense counsel said on the matter was the following, “Once we [have further argument on the matter] I’ll still offer to stipulate to the—to ask my client to discuss or to consider a stipulation that would avoid the matter coming in in that particular way.” Therefore, defendant did not actually offer to stipulate to knowledge. Additionally, as the trial court observed, the evidence remained admissible on the issue of defendant’s motive, a matter defendant here concedes.
Defendant also contends that the trial court abused its discretion in ruling that the probative value of the evidence outweighed its prejudicial impact. We disagree. His assertion that the evidence of the prior was minimally probative of motive in this case is unpersuasive. Moreover, his claim that evidence of defendant’s involvement in the crime was weak is also meritless. At the time the trial court made its ruling, the People had represented, in their trial brief, that the codefendant had told the police that he and defendant had jointly paid for and had been staying in the room for two days. According to the trial brief, there were 1 to 3 cooks in the room, each of which would have taken 6 to 10 hours to complete. This, along with the facts that the key to the room was found in defendant’s possession, that he admitted he was staying at the motel, then claimed he was not, and that he falsely identified himself to the officer strongly tied him to the manufacturing. Defendant’s present suggestion that it was the woman who was with defendant when he was stopped in the car who was the other occupant of the room is belied by the presence of only male clothing in the room.
In his reply brief, defendant asserts that the key he had was “not necessarily . . . the only key . . . to [the] room . . . .” Not only does defendant cite to no portion of the record in support of this assertion, but the motel manager testified that when the codefendant rented the room, he gave him one key and it was his habit to give out only one key, unless a request was made for two.
2. Health and Safety Code Section 11379.7, subdivision (a) Enhancements
a. Finding of Multiple Enhancements
Defendant was charged with 21 enhancements under Health and Safety Code, section 11379.7, subdivision (a)—one for each child under the age of 16 who was present in the motel in which the manufacturing occurred. At the close of evidence, the trial court granted a motion to acquit defendant on 5 of the 21 allegations and it granted its own motion to dismiss another, leaving 15.
As to the allegation that the trial court dismissed on its own motion, it reasoned that the subject of this allegation, who was in the horizontal part of the L-shaped motel, which was not connected to the vertical part of the motel, where the manufacturing was taking place, was either not in within the “zone of danger” of the crime, or was not within the structure where the crime was occurring, and, therefore, the enhancement was inapplicable to her. It was during his motion for acquittal that trial counsel for defendant had asserted that the enhancement was only applicable to children who were in the “zone of danger” which he defined as motel rooms sharing the ventilation system with the room where the manufacturing took place. Counsel also argued unsuccessfully that for the rooms that held more than one child, the evidence supported only one allegation, and not one for each child in the room.
In a pretrial motion to dismiss and at sentencing, defendant unsuccessfully asserted that one enhancement under Health and Safety Code, section 11379.7, subdivision (a) should apply to all the children in the motel, rather than an enhancement for each child. Defendant here contends that the trial court misinterpreted the statute by concluding otherwise.
At defendant’s request, we take judicial notice of our opinion in People v. Madrid. In Madrid we said, “We determine whether [defendant] is correct based on a de novo review of the trial court’s interpretation of the statute. (City & County of San Francisco v. Ballard (2006) 136 Cal.App.4th 381, 396.) We conclude that he is not.
“[Health and Safety Code, s]ection 11379.7 provides, in pertinent part: ‘(a) Except as provided in subdivision (b), any person convicted of [manufacturing methamphetamine] when the commission . . . occurs in a structure where any child under 16 years of age is present, shall, in addition and consecutive to the punishment prescribed for the felony of which he . . . has been convicted, be punished by an additional term of two years . . . . [¶] (b) Any person convicted of [manufacturing methamphetamine] where the commission of the crime causes any child under 16 years of age to suffer great bodily injury, shall, in addition and consecutive to the punishment prescribed for the felony of which he . . . has been convicted, be punished by an additional term of five years . . . .’ [Italics added.]
“‘“[If the] language [of a statute] is clear and unambiguous and serves a rational purpose, there is no need for statutory construction.”’ (People v. Braz (1998) 65 Cal.App.4th 425, 431, quoting People v. Bechler (1998) 61 Cal.App.4th 373, 377.)
‘However, when the language is susceptible of more than one reasonable interpretation, we look to a variety of extrinsic aids, including the ostensible objects to the achieved, the evils to be remedied, the legislative history, public policy, . . . and the statutory scheme of which the statute is part.’ (People v. Flores (2003) 30 Cal.4th 1059, 1063.) ‘As used in criminal statutes, the word “any” has long been construed as ambiguously indicating the singular or the plural.’ (People v. Kirk (1989) 211 Cal.App.3d 58, 62.)
Kirk agreed with a body of federal and state decisional law holding that when a statute prohibits the possession of “any” of the enumerated weapons, it may be used once for possession of more than one such weapon on a given occasion. As Kirk pointed out, similarly, possession of more than one item of stolen property, more than one item whose serial number has been obliterated and more than one packet of a controlled substance results in one, not several convictions. (People v. Kirk, supra, 211 Cal.App.3d at p. 62.) However, enhancements for large quantities of such contraband are common. (See, e.g., Health & Saf. Code, §§ 11356.5, 11379.8, subd. (a)(1).)
“The question here is what did the Legislature intend when it provided for an enhancement for ‘any child . . . present’ where methamphetamine is manufactured. Did it mean to provide for an enhancement for each child present or one enhancement if at least one child is present?
“[Health and Safety Code, s]ection 11379.7, subdivision (a) begins, ‘Except as provided in subdivision (b)’ before providing the enhancement for any child present. As is pertinent here, subdivision (b) provides an enhancement of greater length than in subdivision (a) when the manufacturing causes ‘any child . . . to suffer great bodily injury.’ Within the same article of the Health and Safety Code where section 11379.7 is found is section 11379.9, which provides ‘[e]xcept as provided in Section 11379.7,’ for an enhancement ‘for each death or injury’ caused by manufacturing. Obviously, [Health and Safety Code,] section 11379.9 is directed at victims who are not children, because [Health and Safety Code, section] 11379.7 covers children. We cannot imagine the Legislature intending to impose an enhancement for each death or injury of a victim 16 years old or older under [Health and Safety Code, section] 11379.9, and not intending the same for a child under the provisions of [Health and Safety Code, section] 11379.7, subdivision (b). Since [Health and Safety Code, section] 11379.7, subdivision (b) uses the same ‘any child’ language that [Health and Safety Code, section] 11379.7, subdivision (a) uses, the Legislature must have intended by using the language ‘any child’ to mean that an enhancement was available for each child present.
“Similarly, Penal Code section 273a, in punishing anyone who ‘causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering . . . ’ (italics added) means ‘a’ child.
“We also look to Penal Code section 12022.5, subdivision (a), which provides an enhancement for anyone who uses a firearm in the commission of a felony. In People v. King (1993) 5 Cal.4th 59, the question was whether using a firearm on more than one victim called for more than one finding under the subdivision. The California Supreme Court held that it did. It noted that imposing only one enhancement, despite using a firearm on multiple victims, ‘rewards [the defendant] for the scope of his original criminal intent . . . . [¶] [I]t operates to punish those with a lesser criminal intent more severely than those who harbor more sinister objectives. [¶] . . . [¶] [The defendant] used a firearm each time he killed one of his victims. [¶] . . . [W]e doubt that the Legislature intended for either deterrence or punishment to cease with the first victim. We think it far more likely . . . that the Legislature intended to deter . . . and . . . to punish . . . firearm use against multiple victims more strongly than firearm use against a single victim.’ (Id. at pp. 74, 77-78.) Two Penal Code section 12022.5, subdivision (a) enhancements have been applied even when the defendant committed one act, i.e., the firing of one bullet which misses its intended victim but hits another. (In re Tameka C. (2000) 22 Cal.4th 190.) Therein, the California Supreme Court noted that the intent of Penal Code section 12022.5, subdivision (a) was to ‘“‘deter [defendants] from creating a potential for death or injury resulting from the very presence of a firearm at the scene of a crime.’”’ [Citation.] . . . It is clear that a person who engages in an urban gun battle is more culpable than one who fires a weapon at an isolated individual. . . . An increased sentence measured by the risk of harm to multiple victims reflects a rational effort to deter such reprehensible behavior.’ (Id. at p. 196, italics added.) Similarly, here, application of [Health and Safety Code,] section 11379.7, subdivision (a) for each child endangered ensures that the defendant’s culpability is commensurate with the potential harm his actions created.” (People v. Madrid, (Sept. 7, 2007, E040450), [nonpub. opn., pp 4-8].)
Defendant contends that the legislative history of Health and Safety Code, section 11379.7 suggests that it should apply only once to however many children are in the structure. He points out that the first draft of the bill provided “when the commission . . . of the crime occurs in a structure where any child under 16 years of age is present, [the defendant] shall be punished by an additional term of two, four, or six years . . . .” (Assem. Bill No. 3392 (1995-1996 Reg. Sess.) § 1.) Subdivision (b) of that draft provided, “where the commission . . . of the crime causes any child under 16 . . . to suffer great bodily injury, [the defendant] shall be punished by an additional term of 4, 6, or 10 years . . . . Subdivision (c) provided, “where the commission . . . of the crime causes the death of any child under 16 . . . , [the defendant] shall be punished by an additional term of 15 years to life . . . .” Subdivision (d) stated, “A full, separate, and consecutive term shall be imposed for each child injured or killed pursuant to subdivision (b) or (c).”
Subdivision (d) of the bill was amended in the Assembly to provide, “A full, separate, and consecutive term shall be imposed for each child present, injured or killed pursuant to subdivision (b) or (c).” (Assem. Amend. to Assem. Bill No. 3392 (1995-1996 Reg. Sess.) Feb. 23, 1996.) This provision was deleted from the final version of the bill. Defendant claims this deletion evinces the legislature’s intent to have the enhancement applied only once, despite the multiplicity of victims. However, this provision made no sense, in terms of children who did not suffer death or great bodily injury, because subdivisions (b) or (c) provided only for those who did. In other words, there was no provision in subdivsions (b) or (c) for children who were merely present, and did not suffer great bodily injury or death. Additionally, the “full, separate and consecutive” provision of former subdivision (d) was incorporated into subdivisions (a) and (b) (the provision for death was deleted, i.e., “shall, in addition and consecutive to the punishment prescribed for the felony”) in the subsequent versions of the bill. (Sen. Amends. to Assem. Bill No. 3392 (1995-1996 Reg. Sess.) May 13, June 18, July 2, and August 28, 1996.) Reason dictates it was more because of the nonsensical provision of former subdivision (d), as described above, and the incorporation of the sensical part of it into subdivisions (a) and (b) that it was deleted, rather than, as defendant suggests, any desire on the part of the legislature to imply that the enhancement should be applicable only once when there are multiple victims.
Defendant comes up with a different analysis, asserting that the subdivision makes sense if it is interpreted to mean that it applies when an uninjured child is present along with child who has suffered great bodily injury or death. However, this interpretation is far-fetched and gives the Legislature undeserved credit for being incapable of doing something illogical.
Defendant contends that interpreting the subdivision to allow an enhancement for each child would produce absurd results. As an example, he points out that if a methamphetamine lab was operated in a building where 100 children lived, even without the lab operator’s knowledge that they were there, the latter would be sentenced to 200 years. However, Health and Safety Code, section 11379.7 was enacted because of the danger posed by methamphetamine labs to the young people who have no choice but to be near them. (Assem. Bill No. 3392, (1995-1996 Sess.) Sen. Comm. on Crim. Proc. Bill Anlysis, p. 2.) Just as the Legislature has chosen to punish child molesters who commit multiple acts against a single victim or single acts against multiple victims with sentences that can range in the hundreds of years, so, too, it may punish methamphetamine lab operators who endanger the lives of children who happen to be nearby with lengthy sentences.
Available at http://www.leginfo.ca./gov/pub/95-96/bill/asm/ab_3351-3400/ab_3392_cfa_960618_123738_sen_com.html>, as of October 24, 2008.
Defendant finds further support for his interpretation of Health and Safety Code, section 11379.7 in the following provision of Health and Safety Code, section 11379.6 subdivision (b), “Except when an enhancement pursuant to [s]ection 11379.7 is pled and proved, the fact that a person under 16 years . . . resided in a structure in which a violation of this section . . . occurred shall be considered a factor in aggravation by the sentencing court.” Defendant claims that Health and Safety Code, section 11379.6, subdivision (b)’s reference to “an enhancement pursuant to [s]ection 11379.7” suggests there should only be one, regardless of the number of child victims. We decline to ascribe such significance to this language.
Defendant also asserts that had the prosecutor not alleged enhancements under Health and Safety Code, section 11379.7, subdivision (b) for each child in the motel, he would have received, at worse, the upper term, for manufacturing under Health and Safety Code, section 11379.6, rather than the 30 years he got. However, there are differences in the two provisions. First, Health and Safety Code, section 11379.6 applies only to a child who resides in the structure where the manufacturing is occurring. Health and Safety Code, section 11379.7 applies to any child who is present in such structure. Secondly, we are not fazed by the fact that a sentence may potentially be dramatically longer when the prosecutor brings enhancement allegations than when he or she does not. Such is the nature of enhancements (and, hence, the term). Finally, since there can be only one aggravating factor based on the fact that a child or children lived in a place where methamphetamine was manufactured, we are not impressed that Health and Safety Code, section 11379.6 is couched in terms of “a person under 16[.]”
The trial court imposed 2-year sentences on 13 of the 15 Health and Safety Code section 11379.7, subdivision (a) enhancements. Defendant contends that the sentencing court violated Penal Code section 654 in imposing all but one such enhancment. We agree. At defendant’s request, we once again take judicial notice of our disposition of this issue in the codefendant’s case, thusly, “The parties disagree over whether Penal Code section 654 applies to enhancements. The California Supreme Court’s recent opinion in People v. Palacios (2007) 41 Cal.4th 720, unfortunately, does not answer this question in the context of enhancements other than those provided for in Penal Code section 12022.53. That leaves us with our holding in People v. Moringlane (1982) 127 Cal.App.3d 811, 817 [disapproved on other grounds in People v. Jones (1991) 53 Cal.3d 1115, 1144-1145] that it does. . . . [We conclude that] Penal Code section 654 applies [and] the trial court erred in imposing more than one enhancement under section 11379.6.” (People v. Madrid, (Sept. 7, 2007, E040450) [nonpub. opn., pp. 12-13], fn. omitted.)
Although an argument can be made that this fits within the multiple victim exception to Penal Code section 654, “‘[w]hether a crime constitutes an act of violence that qualifies for the multiple victim exception to section 654 depends upon whether the crime . . . is defined to proscribe an act of violence against the person.’” (People v. Solis (2001) 90 Cal.App.4th 1002, 1023, quoting People v. Hall (2000) 83 Cal.App.4th 1084, 1092-1093.) “The test is whether, in fact, a particular type of crime is a crime of violence against a person.” (People v. Martin (2005) 133 Cal.App.4th 776, 782, italics omitted.) Crimes, although dangerous, are not necessarily crimes of violence. (People v. Garcia (2003) 107 Cal.App.4th 1159, 1162-1164.) Thus, exhibiting a firearm in the presence of police officers, evading the police, indecent exposure and burglary, the latter, without a gun use allegation attached, do not constitute such crimes. (Id.; People v. Davey (2005) 133 Cal.App.4th 384, 392; People v. Hall, supra, at pp. 1088-1090; People v. Centers (1999) 73 Cal.App.4th 84, 99, [opinion of this court].) On the other hand, burglary with a great bodily injury enhancement is a crime of violence for the purpose of the multiple victim’s exception to Penal Code section 654. (People v. Miller (1977) 18 Cal.3d. 873, 886.) Manufacture of methamphetamine is not a crime that fits within the multiple victim exception to Penal Code section 654.
Therefore, 12 of the 13 terms must be stayed pursuant to Penal Code section 654.
Disposition
Defendant’s convictions and true findings are affirmed. The two-year terms imposed for 12 of his 15 Health and Safety Code section 11379.7, subdivision (a) enhancements are stayed pursuant to Penal Code section 654, leaving one 2-year term under Health and Safety Code section 11379.7, subdivision (a). The trial court is directed to amend the minutes of the sentencing hearing and the abstract of judgment to reflect this, as well as defendant’s new total sentence of 11 years.
We concur: RICHLI, J., MILLER, J.