Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. BA329405 Joseph A. Brandolino, Judge.
Allison H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec, Steven D. Matthews, Shawn McGahey Webb and Susan S. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
BOREN, P.J.
A jury convicted appellant Gabriel Zapata of possession for sale of MDMA/Ecstasy in violation of Health and Safety Code section 11378 (count 1) and found true the allegation that the substance containing MDMA/Ecstasy exceeded 10 kilograms. The jury also convicted appellant of possession for sale of cocaine base (§ 11351.5) (count 2); possession for sale of marijuana (§ 11359) (count 3); possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)) (count 4); possession of an assault weapon (Pen. Code, § 12280, subd. (b)) (count 5); and illegal possession of ammunition (Pen. Code, § 12316, subd. (b)(1)) (count 7).
Appellant is also known as Rivel Zapata.
All further references to statutes are to the Health and Safety Code unless stated otherwise.
The trial court sentenced appellant in count 1 to the midterm of two years and a consecutive term of 10 years for the weight enhancement in that count. The trial court imposed consecutive terms of one year four months in count 2 and eight months in count 5 for a total prison term of 14 years. The trial court imposed concurrent terms of two years in count 3, two years in count 4 (stayed pursuant to Pen. Code, § 654), and two years in count 7.
Appellant appeals on the grounds that: (1) The trial court failed to instruct the jury on the weight enhancement, and the error cannot be considered harmless because there was insufficient evidence to support one element of the enhancement; and (2) appellant is entitled to additional days of custody credit.
FACTS
Prosecution Evidence
On the afternoon of September 23, 2007, Los Angeles police officers conducted a surveillance of an apartment building in Studio City. Officers observed appellant driving a gray Lexus into the building’s gated parking area. He used a key to enter the building with another individual, Samuel Sinclair, and a police officer observed both men inside apartment No. 10. Appellant and Sinclair later drove away in Sinclair’s car and were stopped by police and taken back to the apartment. A search of appellant yielded the keys to apartment No. 10. Police obtained a search warrant for the apartment, the Lexus, and a storage unit in the parking garage.
Police officers found a.22-caliber semiautomatic handgun and a loaded magazine in a hidden compartment in the trunk of the Lexus. An unregistered 7.62-caliber SKS assault rifle was found in the storage unit. In the dining room, Detective Ramon Alvarez found a glass pipe and a small amount of marijuana. In the refrigerator, he found an unregistered nine-millimeter TEC-9 semiautomatic pistol that contained a loaded magazine. A kitchen cabinet contained three or four large plastic bags filled with a green leafy substance the detective believed to be marijuana. There were also empty plastic bags in various sizes.
Detective Alvarez found a duffel bag containing thousands of pills in the master bedroom closet. The pills resembled Ecstasy and had a street value of at least $380,000. On the closet shelf, the detective found a small amount of a substance that appeared to be cocaine. There was a digital scale in the bedroom as well as sheets of paper that appeared to be pay/owe sheets. In a safe, Detective Alvarez found plastic bags filled with the same green leafy substance he found in the kitchen. There were live rounds of ammunition of various calibers found in the master bedroom.
The apartment manager had leased the apartment to Jose Castillo. Appellant had wanted to take over the lease but did not wish to make the required financial disclosures, and the lease stayed in Castillo’s name. A female paid the manager the monthly rent in cash for apartment No. 10. Various documents bearing appellant’s name were found in the master bedroom. Walter Aquino, the maintenance worker for the building, began seeing appellant in the building in June or July 2007 and did not see Castillo after that. Aquino noticed appellant because appellant was home during the day.
David Purdy, a criminalist from the narcotics analysis unit of the Los Angeles Police Department, analyzed the substances found in apartment No. 10. He determined that there were approximately 38, 896 pills found, and they weighed 10.54 kilograms. The pills contained 3, 4-methylenedioxymethamphetamine, or MDMA, which was also known as Ecstasy. The leafy substance consisted of marijuana in the amount of 1, 696.16 grams. The off-white, rock-like substance was cocaine base in the amount of 55.59 grams. Detective Mel Vergara testified as a narcotics expert and was of the opinion that the drugs found in the apartment were possessed for sale.
Defense Evidence
Carley Flynn had dated Juan Gabriel, who lived in apartment No. 10. Flynn became friends with appellant also and knew that he lived 20 minutes away from Gabriel’s apartment. Appellant sometimes stayed at Gabriel’s apartment, and he kept some belongings there. Flynn had never seen appellant with a gun or engaging in narcotics transactions. Flynn had been romantically involved with appellant, and they were very good friends. Flynn believed appellant was “taking the fall for something that’s not his.”
DISCUSSION
I. Weight Enhancement
A. Relevant Authority
Section 11378 provides for imprisonment in the state prison for every person who possesses for sale any controlled substance. The statute refers to other statutes wherein the controlled substances are named. Pertinent to the instant case, section 11378 refers to “any controlled substance which is... specified in subdivision (d) of Section 11054.” Subdivision (d)(6) of section 11054 lists 3, 4-methylenedioxy amphetamine as a controlled substance.
Section 11370.4 provides in pertinent part that: “(b) Any person convicted of a violation of... Section 11378... with respect to a substance containing methamphetamine, amphetamine, phencyclidine (PCP) and its analogs shall receive an additional term as follows: [¶]... [¶] (3) Where the substance exceeds 10 kilograms by weight, ... the person shall receive an additional term of 10 years.”
In criminal cases “‘[a] trial court has a duty to instruct the jury “sua sponte on general principles which are closely and openly connected with the facts before the court.”’” (People v. Gutierrez (2009) 45 Cal.4th 789, 824; see People v. Breverman (1998) 19 Cal.4th 142, 154.) We review de novo a claim that the trial court failed to properly instruct the jury on the applicable principles of law. (People v. Martin (2000) 78 Cal.App.4th 1107, 1111.)
The misdescription or omission of an element of an offense “ordinarily requires reversal of a conviction unless the error was harmless. But, if no rational jury could have found the missing element unproven, the error is harmless beyond a reasonable doubt and the conviction stands. [Citations.]” (People v. Ortiz (2002) 101 Cal.App.4th 410, 416.)
B. Appellant’s Arguments
Appellant argues that his Sixth Amendment federal constitutional jury trial right and his right to due process were violated, since the elements of the section 11370.4, subdivision (b)(3) enhancement were not given to the jury, thus relieving the prosecution of the burden of proving any of the elements of the enhancement. Appellant contends that per se reversal is required but that, even under Chapman harmless error analysis, reversal is required. According to appellant, the jury heard no evidence that the 3, 4-methylenedioxymethamphetamine, or MDMA, actually contained methamphetamine, amphetamine, or an analog thereof—one of the elements of the section 11370.4, subdivision (b) enhancement. Appellant adds that retrial on this issue would constitute a violation of the Double Jeopardy Clause contained in the Fifth Amendment of the federal Constitution.
Appellant suggested that a case-specific modified version of CALCRIM No. 3200 should have been read as follows: “If you find the defendant guilty of the crime charged in count 1, you must then decide whether the People have proved the additional allegation that the crime involved more than a specified amount of the controlled substance. To prove this allegation, the People must prove that: The defendant possessed for sale more than 10 kilograms by weight of a substance containing methamphetamine, amphetamine, phencyclidine (PCP) and its analogs.”
Chapman v. California (1967) 386 U.S. 18, 24 (Chapman) (error is harmless beyond a reasonable doubt).
C. Harmless Error
David Purdy, the criminalist from the narcotics analysis unit, testified that he performed a physical and chemical analysis of the pills found in the duffel bag. His analyzed evidence report, People’s Exhibit No. 30, was introduced into evidence. He tested the pills listed as the first item on the report for MDMA, and he explained that the chemical name for MDMA is 3, 4-methylenedioxymethamphetamine, also known as Ecstasy. Purdy performed color screen tests on 55 different pills, “and from those results were indicating that there was some type of amphetamine-type drug there.” A further test, the results of which were compared to a standard, identified the substance as 3, 4-methylenedioxymethamphetamine, or MDMA. Purdy weighed all the pills and found that the net weight of the approximately 38, 896 pills was 10.54 kilograms.
Appellant’s jury was instructed on the substantive offense of possession for sale of “MDMA (Ecstasy), a controlled substance, in violation of Health and Safety Code Section 11378.” Among the elements the prosecution had to prove was that the controlled substance was, as to count 1, MDMA, or Ecstasy. (CALCRIM No. 2302.) Based on the evidence recounted ante, the jury found appellant guilty of possession for sale of MDMA/Ecstasy as charged. On the same verdict form, the jury further found that the allegation that “the substance containing MDMA/Ecstasy exceeded 10 kilograms” was true.
Setting aside temporarily the issue of a failure to instruct, appellant’s argument defies logic. Appellant makes no claim that the evidence is insufficient to support the verdict in count 1, where the jury found him guilty of possession for sale of “MDMA/Ecstasy” in violation of section 11378, which prohibits possession for sale of a controlled substance. Yet appellant now claims there was insufficient evidence to support the true finding that the weight of the controlled substance possessed by appellant exceeded 10 kilograms. It would be an absurd interpretation of the weight enhancement in section 11370.4 to believe that the Legislature intended the enhancement to refer to a substance different than the one involved in the substantive offense to which the enhancement applied. A statute will be construed in a manner that does not conflict with its clear purpose and that avoids absurd applications. (In re Cregler (1961) 56 Cal.2d 308, 312; People v. Silver (1991) 230 Cal.App.3d 389, 395.)
In any event, we believe that the failure to give a specific instruction on the weight enhancement was harmless error. The fact that the People had to prove that the substance containing MDMA/Ecstasy exceeded 10 kilograms by weight was obvious from the language of the allegation itself, which was tantamount to an instruction on that element. Purdy’s testimony that the weight of all the pills exceeded 10 kilograms was unchallenged.
We also believe that the failure to instruct the jury in the language of section 11370.4 that the People had to prove that the substance weighing more than 10 kilograms contained methamphetamine, amphetamine, phencyclidine (PCP) and its analogs was harmless. Appellant contends there was no evidence that the substance MDMA/Ecstasy, which Purdy explained was 3, 4-methylenedioxymethamphetamine, was a substance included in the section 11370.4 enhancement statute. Appellant asserts that the enhancement applies to a person convicted of violating section 11378 “only if the conviction was ‘with respect to a substance containing methamphetamine, amphetamine, phencyclidine (PCP) and its analogs....’”
Appellant posits that the use of the word “and” instead of “or” is a drafting error. Since neither this court nor appellant believes that the substance at issue must contain all of the mentioned chemicals, we need not decide if there was a drafting error.
Purdy’s testimony that the pills contained “some type of amphetamine-type drug” informed the jury about the content of the pills, and the language was sufficient to indicate that the pills contained amphetamine or an analog thereof. Purdy’s testimony went unchallenged. At the conclusion of Purdy’s direct examination, defense counsel declined to cross-examine him. Given Purdy’s testimony and defense counsel’s decision that the testimony needed no cross-examination, as well as counsel’s sole strategy of denying appellant’s connection to the apartment and thus the contraband, we conclude that appellant effectively conceded the element of the enhancement that he now disputes.
Under section 11401, subdivision (a), a controlled substance analog is treated the same as the controlled substance of which it is an analog. A substance is an analog of a controlled substance if it has either a substantially similar chemical structure or a substantially similar effect on the central nervous system. (§ 11401, subd. (b).)
In his brief opening statement, given at the close of the prosecution’s case, defense counsel stated that he would call a witness who would testify that the person living in apartment No. 10 was not appellant but rather a Juan Gabriel. Gabriel let appellant stay there a short time but, after that, appellant was never there. The witness would say she went to the apartment on the day of the search and she did not see appellant there that day. In closing argument, defense counsel focused on the theory that other persons—not appellant—were responsible for the items in the apartment and for the guns in the storage locker and the car. Counsel argued that the prosecution and the police were determined to manipulate the evidence so that it applied to appellant. Counsel told the jury he would go through each witness’s testimony in turn to show how it revealed poor police work and the refusal of law enforcement to look for those who were actually responsible. Counsel proceeded to discuss each witness’s testimony except for Purdy’s. When making a midtrial motion for mistrial after Aquino called appellant a tenant, defense counsel stated: “I would ask for a mistrial on that basis, since the entire subject of this case is my client’s connection to apartment No. 10.”
In all likelihood, the defense chose not to contest that MDMA or Ecstasy is a controlled substance analog because it could not do so. Therefore, the failure to instruct on this element was harmless beyond a reasonable doubt under the Chapman standard. “We believe that where an omitted element is supported by uncontroverted evidence, this approach reaches an appropriate balance between ‘society’s interest in punishing the guilty [and] the method by which decisions of guilt are to be made.’ [Citation.] The harmless-error doctrine, we have said, ‘recognizes the principle that the central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence, ... and promotes public respect for the criminal process by focusing on the underlying fairness of the trial.’ [Citation.] At the same time, we have recognized that trial by jury in serious criminal cases ‘was designed “to guard against a spirit of oppression and tyranny on the part of rulers, ” and “was from very early times insisted on by our ancestors in the parent country, as the great bulwark of their civil and political liberties.”’ [Citation.] In a case such as this one, where a defendant did not, and apparently could not, bring forth facts contesting the omitted element, answering the question whether the jury verdict would have been the same absent the error does not fundamentally undermine the purposes of the jury trial guarantee.” (Neder v. United States (1999) 527 U.S. 1, 18-19 (Neder).) Although Neder refers to “element” in the singular, in a case such as the instant one, where one of the two elements omitted is a concrete fact contained in the verdict form, we believe the Neder principles apply and do not equate to an “‘in for a penny, in for a pound’ approach.” (Id. at p. 17, fn. 2.)
MDMA is scheduled as a controlled substance analog under federal law. (U.S. v. Raymer (10th Cir. 1991) 941 F.2d 1031, 1045-1046; U.S. v. Desurra (5th Cir. 1989) 865 F.2d 651, 652; U.S. v. Carlson (11th Cir. 1996) 87 F.3d 440, 445.) Division Six of this district concluded that MDMA is a controlled substance analog under the California analog statute, section 11401. (People v. Silver, supra, 230 Cal.App.3d at pp. 394-396.)
The converse of the instructional error in the instant case occurred in People v. Flood (1998) 18 Cal.4th 470 (Flood), but its principles are applicable here. In Flood, the trial court removed an element of an offense from the jury’s consideration not by failing to instruct on it, but by telling the jury that it was a given and not a fact for the jury to determine. (Id. at pp. 475, 477.) Although the Flood court concluded that this instruction by the trial court violated the defendant’s due process rights to have the jury determine each element of the offense, it also concluded that the error was harmless under both the Watson and Chapman standards. (Flood, at pp. 482, 490, 507.) “Like involuntary confessions, instructional errors that have the effect of removing an element of a crime from the jury’s consideration encompass a broad spectrum of circumstances and may be assessed in the context of the evidence presented and other circumstances of the trial to determine whether the error was prejudicial.” (Id. at p. 489.) The court noted that “[o]ne situation in which instructional error removing an element of the crime from the jury’s consideration has been deemed harmless is where the defendant concedes or admits that element.” (Id. at p. 504.) Although the defendant in Flood did not affirmatively admit the element, circumstances indicated that he effectively conceded it. These included the failure to request mention of the element in the jury instruction, to refer to this element during trial, to argue to the jury that the prosecution had failed to prove the element beyond a reasonable doubt, to present evidence on the issue, and to dispute the prosecution’s evidence on the issue. (Id. at p. 505.) “[I]ndeed, he did not ask that the issue even be considered by the jury.” (Ibid.) Appellant failed in all of these aspects as well. The Flood court acknowledged that a defendant’s tactical decision not to “‘contest’” an essential element of an offense did not forgo the requirement that the jury consider whether the prosecution had proved every element of the crime (or, as in this case, the enhancement). However, the defendant’s actions in Flood were tantamount to a concession on the disputed element. (Id. at p. 505.)
People v. Watson (1956) 46 Cal.2d 818, 836-837 (for purposes of California law, error is harmless if there is no reasonable probability a result more favorable to defendant would have occurred absent the error).
It is asserted that the trial proceeded on the assumption that MDMA was a substance that justified imposition of the weight enhancement and that assumptions are not evidence. There was evidence, however, indicating that the MDMA proved to be an amphetamine-type substance when tested. The fact that this evidence was uncontroverted renders it a concession, not an assumption. While it is not our task to fill in the evidentiary gaps left in the People’s case, we believe appellant performed this task by effectively conceding that the substance he was found to possess for sale in count 1 properly entailed an allegation within the meaning of section 11370.4, subdivision (b)(3) that it exceeded 10 kilograms by weight.
Under the specific circumstances of this case, we find the trial court’s error in failing to instruct the jury on the elements of the weight enhancement was harmless. As in Flood and Neder, the elements omitted were in effect conceded by appellant. It is clear beyond a reasonable doubt that the error did not contribute to the verdict obtained. (Yates v. Evatt (1991) 500 U.S. 391, 403.)
II. Credits Issue
A. Appellant’s Argument
Appellant argues that under the version of Penal Code section 4019 that became effective on January 25, 2010, he was entitled to conduct credits equal to the number of actual days of presentence custody he served.
B. Relevant Authority
Under Penal Code section 2900.5, a criminal defendant sentenced to state prison is entitled to credit against the term of imprisonment for all days spent in custody before sentencing. (Pen. Code, § 2900.5, subd. (a).) In addition, Penal Code section 4019 provides that a criminal defendant may earn additional presentence credit for good behavior and work performance. (Pen. Code, § 4019, subds. (b), (c).) The credits authorized by Penal Code section 4019 are collectively known as conduct credit. (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.)
Under the version of Penal Code section 4019 that was in effect in July 2009 when appellant was sentenced, a criminal defendant sentenced to state prison was deemed to have served six days for every four days of actual presentence custody. (Former Pen. Code, § 4019, subd. (f); Stats. 1982, ch. 1234, § 7, pp. 4553-4554.) Under the version of Penal Code section 4019 that became effective on January 25, 2010, a criminal defendant sentenced to state prison was deemed to have served four days for every two days of presentence custody, as long as he was eligible. (Former Pen. Code, § 4019, subd. (f); Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50, pp. 5270-5271.) The exceptions that result in ineligibility are not at issue in appellant’s case. Penal Code section 4019 was amended again effective September 28, 2010, but this latest version applies only to crimes committed on or after the effective date. (Pen. Code, § 4019, subd. (g.) We address appellant’s argument under the version of Penal Code section 4019 that took effect on January 25, 2010 (interim version).
C. Additional Presentence Conduct Credits Must Be Granted
Because the interim version of the statute was not yet in effect at the time of defendant’s sentencing, defendant cannot receive the increased credits this version provided unless it is interpreted to apply retroactively. As a general rule, a new or amended statute is presumed to operate prospectively rather than retroactively in the absence of a clear and compelling indication that the Legislature intended otherwise or an express declaration of retroactivity. (People v. Alford (2007) 42 Cal.4th 749, 753 (Alford); Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1208–1209.) This principle is codified in Penal Code section 3, which provides that “[n]o part of [the Penal Code] is retroactive, unless expressly so declared.” (Pen. Code, § 3.) Respondent argues that it is not clear from the statute’s amendatory language or the surrounding circumstances that the Legislature intended the interim version of Penal Code section 4019 to apply retroactively and the presumption has therefore not been rebutted.
The general rule that “when there is nothing to indicate a contrary intent in a statute it will be presumed that the Legislature intended the statute to operate prospectively... is not a straitjacket. Where the Legislature has not set forth in so many words what it intended, the rule of construction should not be followed blindly in complete disregard of factors that may give a clue to the legislative intent. It is to be applied only after, considering all pertinent factors, it is determined that it is impossible to ascertain the legislative intent.” (In re Estrada (1965) 63 Cal.2d 740, 746 (Estrada); see also Alford, supra, 42 Cal.4th at p. 753.) Estrada is binding authority and requires an examination of “all pertinent factors” in order to determine the legislative intent with respect to the interim version of Penal Code section 4019. (Alford, at p. 753.)
In Estrada, the defendant was committed to a rehabilitation center after a narcotics violation, and he later escaped. He was convicted of escape without force or violence in violation of Penal Code section 4530. (Estrada, supra, 63 Cal.2d at pp. 742–743.) At the time Estrada committed the offense, Penal Code section 3044 provided that a person who was convicted of violating Penal Code section 4530 could not be granted parole until such time as he had served at least two calendar years from and after the date of his return to prison following the conviction. (Estrada, at p. 743.) After Estrada committed the offense, but before he was convicted and sentenced, Penal Code sections 3044 and 4530 were amended, and it was conceded that a defendant convicted of escape without force or violence could be eligible for parole in less than two years. (Estrada, at pp. 743–744.) The court held that the amended versions of Penal Code sections 3044 and 4530 applied to Estrada. (Estrada, at pp. 744-745, 748, 751.) The court reasoned that “‘[a] legislative mitigation of the penalty for a particular crime represents a legislative judgment that the lesser penalty or the different treatment is sufficient to meet the legitimate ends of the criminal law.’” (Id. at p. 745.)
There is currently a split of authority on the issue of whether the interim version of Penal Code section 4019 represented a “‘legislative mitigation of the penalty’” for certain crimes, and thus whether it fell within the rule of retroactive application set out in Estrada. (Estrada, supra, 63 Cal.2d at p. 745.) We believe the better reasoned decisions are those holding that the interim version of Penal Code section 4019 operated retroactively, since it constituted an amendatory statute mitigating punishment under Estrada. It clearly operated to reduce the sentences of eligible prisoners by increasing the rate at which a prisoner accrued time to offset his or her sentence. The fact that this mitigation of punishment was achieved by a less direct method than the statutory amendments discussed in Estrada is a distinction without a difference in our view. (See People v. Hunter (1977) 68 Cal.App.3d 389, 392–393 [applying Estrada to amendment allowing award of certain custody credits]; People v. Doganiere (1978) 86 Cal.App.3d 237, 240 [applying Estrada to amendment involving conduct credits].) The Legislature clearly deemed the sentences served after reduction of the conduct credits to be “‘sufficient to meet the legitimate ends of the criminal law’” for qualified prisoners. It follows that the interim version of the statute is to be applied retroactively. (Estrada, supra, 63 Cal.2d. at p. 745.)
We therefore conclude that appellant is entitled to conduct credits in accordance with the interim version of Penal Code section 4019. After appellant was sentenced, the trial court responded to a request by appellant to correct his credits award. On January 8, 2010, the trial court granted two additional days of actual custody credit for a total of 667 actual days. At that time, the trial court granted appellant 332 conduct credit days for a total of 999 days. Under the interim version, appellant is deemed to have served four days for every two days in local custody. The number of actual days (667) is divided by two and the remainder is discarded, which leads to 333. The result is then multiplied by two to arrive at the number of conduct credits, which is 666. (See In re Marquez (2003) 30 Cal.4th 14, 25–26 [demonstrating the proper calculation based on the formula for six days being deemed served for every four actually served].) Since the trial court awarded appellant only 332 days of conduct credit, appellant is entitled to an additional 334 days for a total of 1, 333 days of presentence credit.
In light of our conclusion, we need not address appellant’s argument that retroactive application of the interim version of Penal Code section 4019 is compelled by the Equal Protection Clause of the California Constitution.
DISPOSITION
The judgment is modified to award additional presentence credit, as discussed in this opinion. The judgment is affirmed as modified. The trial court is directed to prepare an amended abstract of judgment reflecting an additional 334 days of conduct credit for a total presentence credit of 1, 333 days and to forward a copy of the amended abstract to the Department of Corrections and Rehabilitation.
I concur: DOI TODD, J.
ASHMANN-GERST, J.—Concurring in part and Dissenting in part
I concur to part II of the majority opinion, but respectfully dissent to part I. Finding that appellant possessed more than 10 kilograms of MDMA/Ecstasy is insufficient to trigger application of the weight enhancement contained in Health and Safety Code section 11370.4 for there was no evidence that MDMA/Ecstasy contained methamphetamine, amphetamine, phencyclidine (PCP) and its analogs, as required for application of that enhancement.
All further references are to the Health and Safety Code unless otherwise indicated.
Appellant was convicted of violating section 11378 which criminalizes possession for sale of a controlled substance that is “specified in subdivision (d) of Section 11054....” (§ 11378.) Section 11054, subdivision (d)(6) lists “3, 4-methylenedioxy amphetamine.” The weight enhancement in section 11370.4, subdivision (b) provides that “[a]ny person convicted of a violation of, or of conspiracy to violate, Section 11378... with respect to a substance containing methamphetamine, amphetamine, phencyclidine (PCP) and its analogs shall receive an additional term as follows: [¶]... [¶] (3) Where the substance exceeds 10 kilograms by weight, or 200 liters by liquid volume, the person shall receive an additional term of 10 years.” Section 11370.4, subdivision (b) makes clear that there are two elements to the weight enhancement; (1) the nature of the substance, and (2) its weight.
The drug 3, 4 methylenedioxy amphetamine is listed in the statute. However, the information alleges, and Purdy testified, that the seized substance was 3, 4 methylenedioxymethamphetamine. No explanation for this inconsistency or what, if any, significance it may have, is provided in the evidence.
Whether the use of the conjunctive “and” before “its analogs” in section 11370.4, subdivision (b) should be read to be the disjunctive “or” (see People v. Skinner (1985) 39 Cal.3d 765, 775–777) is not germane to the issue on appeal.
The trial court failed to instruct the jury on the elements of the weight enhancement. While the jury nonetheless expressly found in the verdict form that the weight of the MDMA/Ecstasy confiscated from appellant exceeded 10 kilograms, it was not instructed, did not determine, and there was no evidence as to whether or not MDMA/Ecstasy was a substance that invoked the weight enhancement; that is, a substance that contained “methamphetamine, amphetamine, phencyclidine (PCP) and its analogs.” (§ 11370.4, subd. (b).)
The entire trial proceeded on the factual assumption that MDMA/Ecstasy was a substance that justified imposition of the weight enhancement. The trial court began the trial by describing the charges to the jury, as follows: “Count 1 charges that on or about September 23rd, 2007[, ]... in the County of Los Angeles––the defendant committed the crime of possession for sale of a controlled substance, a felony, in violation of Health and Safety Code section 11378[, ] basically alleging that the defendant did unlawfully possess for purpose of sale a controlled substance, to wit, Ecstasy[, ] and a further allegation that the amount of the Ecstasy exceeded 10 kilograms.” This description of the charge did not indicate that the jury had to make the determination whether MDMA/Ecstasy was “a substance containing methamphetamine, amphetamine, phencyclidine (PCP) and its analogs....” (§ 11370.4, subd. (b).)
In his summation, after the prosecutor reviewed the facts supporting each of the elements of the underlying crime, he said to the jury: “Going back to the drugs, Ecstasy, we saw the chart. He knew it, possessed it, he had control over it. It was an amount sufficient for sale. There was also an allegation that [appellant] possessed an amount over 10 kilograms. That’s a finding that the 12 of you will have to make if you find him guilty of possession for sale. [¶] As [criminalist, David] Purdy [(Purdy)] told us, this is a usable amount. The weight of the pills alone is 1, 540 grams, and he... worked it out where it’s just the pills. It’s not the box. It’s not the plastic bag, just the pills. [¶] So if the 12 of you find [appellant] guilty of possession for sale then Mr. Purdy –– and there wasn’t even a cross-examination. So that’s unchallenged. 10-and-A-half kilos of Ecstasy was in this apartment and the weight against [appellant] would be found true.” This argument also failed to inform the jury that it was required to determine whether MDMA/Ecstasy is the type of substance that qualifies for the 10-year weight enhancement and that it could not simply take that fact as a given.
Even the jury verdict form includes the same unsupported assumption, stating: “We further find the allegation that the substance containing MDMA/Ecstasy exceeded 10 kilograms to be: True.” But the jury’s finding that there was more than 10 kilograms of MDMA/Ecstasy contains the same implicit assumption that MDMA/Ecstasy is one of the drugs to which the weight enhancement in section 11370.4 applies.
Assumptions are not evidence. While there was evidence that MDMA/Ecstasy was confiscated from appellant, there was no evidence that it was “a substance containing methamphetamine, amphetamine, phencyclidine (PCP) and its analogs....” (§ 11370.4, subd. (b).) Purdy did testify that his initial color screen tests of the pills indicated that there was “some type of amphetamine-type drug there.” The majority concludes that this statement “was sufficient to indicate that the pills contained amphetamine or an analog thereof.” (Maj. Opn., p. 7.) I disagree. What did Purdy mean in calling MDMA/Ecstasy an “amphetamine type drug?” Is it a drug that contains amphetamine, a drug that has a similar chemical makeup or a drug that simply shares some other characteristic with amphetamine which does not bring it within the weight enhancement? What is an analog? No explanation was given. Furthermore, Purdy’s statement was made after only an initial test, not a final determination. There was no evidence as to the significance of a mere preliminary initial color screen test result. Do some nonamphetamine type drugs yield the same initial test result? What is the likelihood that an initial color screen test result will be confirmed, or not, by final testing?
Purdy also testified that his final testing revealed the presence of MDMA/Ecstasy, the chemical compound 3-4 methylenedioxymethamphetamine. While it is seductive to infer from the fact that this chemical contains the word “methamphetamine” in its name that it contains the chemical methamphetamine or its analog, its name does not by itself indicate its chemical nature. The Attorney General points to section 11401, subdivisions (a) and (b) which defines a “controlled substance analog” as either “(1) A substance the chemical structure of which is substantially similar to the chemical structure of a controlled substance classified in Section 11054 or 11055. [¶] (2) A substance which has, is represented as having, or is intended to have a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to, or greater than, the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance classified in Section 11054 or 11055.” The statute is not evidence, and Purdy did not testify to what an analog is and whether MDMA/Ecstasy has a similar chemical structure or effect on the nervous system as amphetamine or methamphetamine. Expert testimony was required to provide evidence that would allow the jury to make these determinations, but the jury was not even instructed that it had to do so. There was no evidence from which it could find that MDMA/Ecstasy was a substance subject to the weight enhancement. I believe that expert testimony was required to reach this conclusion and was not presented. It is not our task to fill in the evidentiary gaps left in the People’s case. Consequently, the failure to instruct on the elements of the weight enhancement could not be harmless.
Appellant did not concede that MDMA/Ecstasy was a substance to which the weight enhancement applies because he failed to cross-examine Purdy and ask him about the evidence that appellant now claims is missing and necessary to invoke the enhancement. It is the prosecution’s burden to prove beyond a reasonable doubt every element of a sentence enhancement. (People v. Miles (2008) 43 Cal.4th 1074, 1082.) A criminal defendant has no obligation to cross-examine a witness, call witnesses or do anything in his or her defense. The defendant’s failure to cross-examine Purdy, does not, and cannot, amount to a concession to an element that the People are obligated by the Constitution to prove.
Neder v. United States (1999) 527 U.S. 1, 18–19 and People v. Flood (1998) 18 Cal.4th 470 do not support a contrary conclusion. In both cases, the omitted element was “uncontested and supported by overwhelming evidence” (Neder v. United States, supra, at p. 17; see People v.Flood, supra, at p. 475 [jury told that element of offense was a given]), and the failure to instruct on that element was therefore harmless error. It is not harmless error here, where evidence of the omitted element is not only not uncontroverted, it is nonexistent.
I do not believe, as does the majority, that appellant is precluded from challenging the sufficiency of the “evidence to support the true finding that the weight of the controlled substance possessed by appellant exceeded 10 kilograms” because he does not challenge the sufficiency of the evidence to support his conviction of possession of a controlled substance under section 11378. (Maj. Opn., p. 6.) Relying upon what it claims is statutory interpretation, the majority asserts that “[i]t would be an absurd interpretation of the weight enhancement in section 11370.4 to believe that the Legislature intended the enhancement to refer to a substance different than the one involved in the substantive offense to which the enhancement applied.” (Maj. Opn., p. 6.)
This conclusion is refuted by the express language of section 11370.4, which demonstrates that the Legislature intended that the weight enhancement apply to substances made criminal by section 11378, but not to all such substances. The enhancement applies only to those substances that violate section 11378 and that contain “methamphetamine, amphetamine, phencyclidine (PCP) and its analogs.” (§ 11370.4, subd. (b), italics added.) The majority’s interpretation of sections 11378 and 11379.5 would render the above italicized language in section 11370.4 meaningless, ignoring the fundamental canon of statutory construction which precludes construing a statute in a fashion as to render part of the statute “‘meaningless or inoperative.’” (Hassan v. Mercy American River Hospital (2003) 31 Cal.4th 709, 716.)
In summary, I would conclude that because the failure to instruct the jury on the section 11370.4 weight enhancement prejudiced appellant due to the lack of evidence to support it, the prohibition against double jeopardy precludes retrial on remand. (People v. Guillen (1994) 25 Cal.App.4th 756, 761; People v. Bonner (1979) 97 Cal.App.3d 573, 575.) I would remand for resentencing.