Opinion
D053191
7-15-2009
THE PEOPLE, Plaintiff and Respondent, v. AUGUSTINE J. GARCIA, Defendant and Appellant.
Not to be Published in Official Reports
A jury found Augustine J. Garcia guilty of transportation of heroin (Health & Saf. Code, § 11352, subd. (a); count 1), possession of heroin (§11350, subd. (a); count 3), possession of methamphetamine (§ 11377, subd. (a); count 4), and resisting an officer (Pen. Code, § 148, subd. (a)(1); count 5). He was found not guilty of possession of heroin for sale (Health & Saf. Code, § 11351; count 2). In a bifurcated proceeding, the court found true allegations that Garcia had suffered a prior narcotics conviction under section 11370.2, subdivision (a) and five prior prison terms under Penal Code sections 667.5, subdivision (b) and 668. It sentenced Garcia to a nine-year prison term consisting of the middle term of four years for count 1, three years for the prior conviction allegation under section 11370.2, subdivision (a), and two consecutive one-year terms for two prior prison term allegations.
Statutory references are to the Health and Safety Code unless otherwise specified.
On appeal, Garcia contends the enhancement under section 11370.2, subdivision (a) does not apply to his conviction for transportation under section 11352 because, due to his acquittal on the possession for sale count, the jurys verdict implies he transported an amount for personal use only. Garcia asserts section 11370.2, subdivision (a) excludes "possessory offenses"; that it applies only to transportation offenses when the narcotics are possessed for sale. We reject the contention and affirm the judgment.
FACTS
On December 7, 2007, Garcia, a known heroin addict, was taken into police custody after a detective spotted and identified him as a parolee at large with a felony warrant for his arrest. Upon searching Garcia, the detective and officers found a pocket knife, 1.33 grams of methamphetamine, and 6.61 grams of heroin in his pockets. In Garcias car, they found unused plastic bags commonly used to package narcotics for the purpose of selling them.
At trial, the detective testified that the knife, the quantity of heroin, and the plastic bags suggested that Garcia planned to sell the heroin. An employee of a drug and alcohol treatment facility testified that some users purchase larger quantities of heroin to avoid having to purchase drugs more often and because it is cheaper to do so. The jury acquitted Garcia of count 2, possession of heroin for sale (§ 11351).
DISCUSSION
Section 11370.2, subdivision (a) provides that persons convicted of specified controlled substance offenses face sentences lengthened by three years for each prior conviction of certain drug-related offenses. (People v. Reed (2005) 129 Cal.App.4th 1281, 1285 (Reed).) Garcia contends that the statute, "as written, specifically excludes possessory offenses, regardless of the substance possessed," and, as a consequence, the intent of section 11370.2, subdivision (a) is to punish so-called "trafficking" offenses and not "possessory-type" offenses. He maintains the jurys guilty verdict for transportation had to be based on an amount possessed for personal use and not for sale because he was found not guilty of possession of heroin for sale, and thus section 11370.2, subdivision (a) does not apply. The contention is without merit.
Section 11370.2, subdivision (a) provides: "Any person convicted of a violation of, or of a conspiracy to violate, Section 11351, 11351.5, or 11352 shall receive, in addition to any other punishment authorized by law, including Section 667.5 of the Penal Code, a full, separate, and consecutive three-year term for each prior felony conviction of, or for each prior felony conviction of conspiracy to violate, Section 11351, 11351.5, 11352, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380, 11380.5, or 11383, whether or not the prior conviction resulted in a term of imprisonment." (Italics added.)
The interpretation of a statute entails an examination of the words themselves. (See People v. Arias (2008) 45 Cal.4th 169, 177.) "`We must look to the statutes words and give them their usual and ordinary meaning. [Citation.] The statutes plain meaning controls the courts interpretation unless its words are ambiguous. [Citations.] If the words in the statute do not, by themselves, provide a reliable indicator of legislative intent, `[s]tatutory ambiguities often may be resolved by examining the context in which the language appears and adopting the construction which best serves to harmonize the statute internally and with related statutes." (Ibid.) "If the statute is ambiguous, we may consider a variety of extrinsic aids, including legislative history, the statutes purpose, and public policy." (Ibid.) The judiciarys role is to "simply ascertain and declare what is in terms or in substance contained in the statute, not to insert what has been omitted or omit what has been included." (People v. Massicot (2002) 97 Cal.App.4th 920, 925.)
Here, section 11370.2 expressly identifies the convictions serving as grounds for an enhancement by enumerating sections of the Health and Safety Code, including section 11352, pertaining to transporting illegal narcotic substances. Garcia admits that section 11352 "covers a wide range of conduct, including sale of narcotics, a trafficking offense, or transportation of any amount, even that possessed solely for personal use." (See People v. Rogers (1971) 5 Cal.3d 129, 134; People v. Emmal (1998) 68 Cal.App.4th 1313, 1317.) Nothing in the statutory language of section 11370.2 reflects a legislative purpose to limit its reference to section 11352 to solely trafficking offenses under that statute. We cannot agree that the exclusion of possession offenses from section 11370.2, subdivision (a) reflects a legislative intent that a transportation conviction must be for a salable amount. Such a conclusion is not sustainable because it contradicts the statutes plain words. As stated, the Legislature identified the statutes by number, and "[h]ad the Legislature intended [to limit the type or nature of the convictions covered by the statute], it would have specified the offenses by description and not by numbered California statutes." (People v. Burgio (1993) 16 Cal.App.4th 769, 779.)
In People v. Burgio, the defendant argued a concurrent three-year enhancement should not be imposed under section 11370.2, subdivision (a) for a prior out-of-state felony conviction of conspiracy to possess and distribute narcotics because conspiracy was not one of the enumerated priors that the court could use to impose an enhancement. (Burgio, supra, 16 Cal.App.4th at p. 777.) The Court of Appeal agreed and held that because the Legislature specified which offenses would result in enhancements by numbered statute, priors not explicitly specified in the statute (such as the foreign felony suffered by the defendant in that case) could not be used to impose enhancements. (Id. at pp. 778-779.) Unlike Burgio, Garcias transportation offense is expressly enumerated in section 11370.2.
It is not "the province of this court to rewrite the statute to imply an intent left unexpressed by the Legislature. . . . The courts may not speculate that the legislature meant something other than what it said. Nor may they rewrite a statute to make it express an intention not expressed therein." (People v. Burgio, supra, 16 Cal.App.4th at p. 778.) Thus, imposition of the enhancement is supported by the plain language of section 11370.2, subdivision (a). Additionally, because the language of the statute is clear and unambiguous, it does not require statutory construction or an inquiry into legislative intent. Nevertheless, we observe that the Legislature would understandably apply the enhancement to transportation offenses of any type given the greater risks to the public posed by such offenses. (People v. Emmal, supra, 68 Cal.App.4th at pp. 1316-1317 ["[T]he offense of transporting [narcotics] has never been found not to occur simply because the amount being transported was small or held for personal use. . . . [¶] The Legislature has determined transportation of controlled substances — no matter what quantity is involved — should be prohibited because it poses greater risks to the public than simple possession does"].)
Appellants reliance on Reed, supra, 129 Cal.App.4th 1281 is unpersuasive. In Reed, the court considered whether an attempted narcotics conviction was grounds for an enhancement. The statute at issue imposed enhancements for certain crimes and conspiracy to commit certain crimes, but did not include attempts to commit certain crimes, which are offenses "separate" and "distinct" from the completed crimes. (Reed, at p. 1283.) The Court of Appeal relied on authorities observing that "[Penal Code s]ection 667.8 . . . does not expressly include attempted commission of its enumerated offenses within its ambit, which we must assume is an intentional choice of the Legislature." (Reed, at p. 1284.) Because the express language of the statute did not include any enhancements for attempted crimes, which are distinct from completed crimes or crimes of conspiracy, Reed held the enhancement imposed pursuant to the appellants prior attempt was inappropriate. Unlike Reed, section 11370.2, subdivision (a) expressly includes section 11352 and its associated offenses, whether they be trafficking or personal use offenses. This case does not present the issue of the court using an unenumerated and distinct crime as grounds for an enhancement. Nor are we persuaded by Garcias reliance on People v. Glasper (2003) 113 Cal.App.4th 1104, which involves Proposition 36, an entirely different statute. Our focus is solely on the language of section 11370.2.
Based on the express language of the statute, we conclude the trial court properly imposed the section 11370.2 enhancement based on Garcias transportation conviction. Given our conclusion, we reject Garcias contention under Apprendi v. New Jersey (2000) 530 U.S. 466. The trial courts finding that Garcia suffered the requisite conviction falls under the recidivism exception to Cunningham v. California (2007) 549 U.S. 270. (Apprendi v. New Jersey, supra, 530 U.S. at p. 490; Almendarez-Torres v. United States (1998) 523 U.S. 224, 243; People v. Wilson (2008) 44 Cal.4th 758, 812; People v. Black (2007) 41 Cal.4th 799, 818; People v. McGee (2006) 38 Cal.4th 682, 700-703.)
DISPOSITION
The judgment is affirmed.
WE CONCUR:
BENKE, Acting P. J.
AARON, J.