Opinion
Certified for Partial Publication.
Pursuant to Rule 978 of the California Rules of Court this opinion is certified for partial publication. The portions of this opinion that were deleted from publication are identified as those portions between double brackets, e.g., [[/]].
Review Granted March 29, 1990.
Previously published at 217 Cal.App.3d 867
Handy Horiye, San Diego, under appointment by the Court of Appeal, for defendant and appellant.
John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Harley D. Mayfield, Senior Asst. Atty. Gen., Robert M. Foster and Carl H. Horst, Deputy Attys. Gen., for plaintiff and respondent.
OPINION
CROSBY, Acting Presiding Justice.
A jury convicted Errol Pieters of various narcotics offenses. He was sentenced to a three-year lower term for transporting cocaine, and a consecutive five-year quantity enhancement was imposed per Health and Safety Code section 11370.4, subdivision (a)(2). Because the substance he possessed was not pure cocaine, Pieters complains the evidence was insufficient to support the quantity enhancement. [[-]]
I
The facts of the offense are not particularly pertinent to the issues on appeal. Suffice it to say, Pieters was involved in arranging a sale of cocaine to an undercover police officer. He was arrested in a vehicle containing 11.01 pounds of a white powder that laboratory analysis later confirmed was 83 percent cocaine. This amounts to less than ten pounds of pure cocaine. Pieters first challenges the imposition of the Health and Safety Code section 11370.4 ten-pound quantity enhancement, claiming the term "substance" applies only to the weight of the unadulterated narcotic involved, not the diluted or "cut" form. Courts have rejected the "quantity/quality" distinction in other contexts (See People v. Madden (1979) 98 Cal.App.3d 249, 256, 159 Cal.Rptr. 381; People v. Solorzano (1978) 84 Cal.App.3d 413, 416-417, 148 Cal.Rptr. 696), and we must do the same in this case.
Health and Safety Code section 11370.4, subdivision (a)(2) provides in part, "Any person convicted of a violation of section 11351, 11351.5, or 11352 with respect to a substance containing ... cocaine ... shall receive an additional term as follows:
Pieters refers us to a chemistry text which provides this definition of the word "substance": "A substance is a homogeneous specifies [species?] of matter with definite chemical composition." (Pauling, College Chemistry (1954) p. 13.) From this he argues that a mixture of cocaine and a cutting agent cannot meet the definition of substance in the science of chemistry. Maybe so, but though the Legislature is presumed to know certain things, we are unaware of a case suggesting scientific terms are among them. One definition of "substance" in the dictionary, a reference work more likely to have been consulted by the Legislature, is "an identifiable chemical element, compound, or mixture--sometimes restricted to compounds and elements." (Webster's Third New Internat. Dict. (1981) p. 2279, emphasis added.) Thus, we find nothing compelling in the lexicography to assist our task.
The same is true of Pieters' attempt to persuade us that the word, as used in other parts of the Health and Safety Code, requires a finding that substance is a synonym for an unadulterated drug. Section 11007 defines a controlled substance as "unless otherwise specified, ... a drug, substance, or immediate precursor which is listed in any schedule in Section 11054, 11055, 11056, 11057, or 11058." If substance has the same meaning as drug in this statute, one of the words is superfluous. The more logical view is that "substance" means a drug mixed with something else.
Pieters is on firmer ground when he points out subdivisions (d) and (e) of section 11055, referring to "any material, compound, mixture, or preparation which contains any quantity of the following substances...." This phrase is consistent with the defense theory, but it is not necessarily inconsistent with the definition of "substance" as an adulterated drug. The phrase would then include mixtures of cut heroin and cut cocaine, for example.
We find no compelling evidence to support either side based on a review of the We are most persuaded by the language of section 11370.4, subdivision (a) itself: "a substance containing heroin, cocaine base ..., or cocaine...." The words "a substance containing" would be rendered entirely useless under Pieters' interpretation. Familiar canons of statutory construction require us to give effect to every word in a statute insofar as possible and suggest an interpretation that "substance" and "cocaine," for example, are not interchangeable and that "substance" means cut narcotics or mixtures of narcotics. This is consistent with the legislative history included in both parties' briefs and the likely intent of the Legislature in light of its obvious goal in enacting the statutory package containing the quantity enhancements.
Both sides have referred us to the legislative history of Assembly Bill No. 2320. The Attorney General cites a Senate Committee on the Judiciary Report stating the purpose of the bill "is to make dealing drugs in California a more costly and risky venture." This report does suggest a "person would be subject to an enhancement even when the amount of drug involved was actually very small. For example, 3 pounds of talcum powder cut with 1 ounce of cocaine would subject the defendant to a 3 year enhancement." The same document also queries: "SHOULD NOT THE REQUIREMENT BE ESTABLISHED FOR A CERTAIN AMOUNT OF DRUG ITSELF WITHOUT CONSIDERING THE WEIGHT OF THE SUBSTANCE USED TO CUT THE DRUG?" Apparently, the Legislature thought not.
Our conclusion is also in line with the realities of the narcotics underworld and what little case law has developed in the general area. Drug dealers near the consumer end of the chain typically dilute controlled substances: "[A]s a practical matter everyday sales [ ] do not involve the pure substance but a diluted mixture, often 'cut' to the point of being barely usable as a narcotic." (People v. Solorzano, supra, 84 Cal.App.3d at p. 416, 148 Cal.Rptr. 696.) The Legislature enacted Health and Safety Code section 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....' The Legislature has seen fit to define the cutoff point in terms of the type of substance containing [the narcotic] which usually passes from pusher to addict in the ordinary course of events." (People v. Madden, supra, 98 Cal.App.3d at p. 256, 159 Cal.Rptr. 381.) The focus is on the quantity, not the quality, of the drug seized. A mixture containing cocaine is, after all, a drug. Drugs may be compounds, to be sure, but they may also be mixtures. Most alcoholic beverages, if not all, for example, are mixtures. We conclude the statute means exactly what appears on its face; i.e., that a "substance containing ... cocaine" is something different from pure cocaine. Accordingly, we must reject Pieter's argument that sufficient ambiguity exists to entitle him to the benefit of the doubt concerning its interpretation.
II [[-]]
The conviction and finding on the enhancement are affirmed. [[-]]
WALLIN and SONENSHINE, JJ., concur.
"...
"(2) Where the substance exceeds 10 pounds by weight, the person shall receive an additional term of five years."
Pieters relies on an analysis prepared by the Senate Rules Committee. That report states the bill "Provides a 3, 5, or 10-year enhancement ... for conviction of certain offenses involving cocaine, heroin, or PCP. The specific enhancement would depend on the quantity of the drug involved in the offense." (Emphasis added.) The same report also notes, however, that the bill would bar "the granting of probation, as specified, for offenses involving the possession for sale or sale of specified amounts of cocaine...." Cocaine possessed for sale can be cut to a barely useable quantity, and the offender can be punished for possession for sale notwithstanding the small amount of actual narcotics involved. The author of this report appears to have simply employed cocaine as it is used in ordinary speech, i.e., to include impure cocaine.