He argues that the failure to include "substantial involvement" language on the verdict form constitutes reversible error as to the weight allegation on the conspiracy conviction. In support of this contention, he cites People v. Garcia (1992) 3 Cal.App.4th 582 [ 4 Cal.Rptr.2d 539]. We do not find this contention to be persuasive.
The foregoing record shows the court stayed imposition of sentence on both the count 2 conspiracy conviction and the true finding on the count 2 section 11370.4(a)(4) weight enhancement allegation. Lopez appeals, contending the jury's true finding on the section 11370.4(a)(4) weight enhancement allegation pleaded in the conspiracy count (count 2) of the second amended information (hereafter the information) must be stricken under People v. Garcia (1992) 3 Cal.App.4th 582 (Garcia) because (1) the jury did not make the requisite special finding under section 11370.4(a)(4) that he was "substantially involved in the planning, direction, execution, or financing of the underlying [section 11352(b)] offense"; and (2) the court failed to instruct the jury that it could find true the weight enhancement allegation only if the jury found under section 11370.4(a)(4) that he was substantially involved in the planning, direction, execution, or financing of the underlying offense. We conclude the court committed constitutional error by failing to instruct the jury it could find true the count 2 weight enhancement allegation only if it found beyond a reasonable doubt under section 11370.4(a)(4) that he was "substantially involved in the planning, direction, execution, or financing of the underlying offense" of transporting a controlled substance for sale to a
III. Relying on People v. Garcia (1992) 3 Cal.App.4th 582 (Garcia), Troncoso contends the section 11370.4 subdivision (a)(4) weight enhancements pleaded in counts 4 and 5 and the section 11370.4 subdivision (a)(5) weight enhancements pleaded in counts 10 and 11 should all be stricken because the jury did not find that he was substantially involved in the planning, direction, execution, or financing of the underlying offenses. We agree the court committed federal constitutional instructional error.
Accordingly, the evidence overwhelmingly indicates Howard played a substantial role in the execution of the conspiracy. Moreover, any failure to make an express finding of substantial involvement in the conspiracy (see People v. Garcia (1992) 3 Cal.App.4th 582, 584-586 [ 4 Cal.Rptr.2d 539]) was harmless beyond a reasonable doubt in light of the fact the trial court also convicted Howard of unlawful possession of moneys in excess of $100,000. The factual finding of substantial involvement assertedly omitted here, necessarily was resolved adversely to Howard in the context of the unlawful possession of moneys charge.
A construction which requires presently existing methamphetamine, amphetamine or PCP before the enhancement may be applied does not render the conspiracy language mere surplusage since a defendant may be convicted of conspiracy in situations where there is a measurable amount of the controlled substance. (See, e.g., People v. Garcia (1992) 3 Cal.App.4th 582 [ 4 Cal.Rptr.2d 539].) We conclude the Health and Safety Code section 11370.4, former subdivision (b)(1) weight enhancement should not have been applied here because there was no methamphetamine involved which exceeded three pounds in weight.
In accordance with this principle, it certainly is preferable that the elements of a special circumstance allegation be completely stated in the special verdict submitted to the jury, although there is a split of authority on whether the omission of an enhancement element from the verdict form is error. (Compare People v. Chevalier (1997) 60 Cal.App.4th 507, 513-516; People v. Garcia (1992) 3 Cal.App.4th 582, 586.)Even if we assume, however, that it was error for the court to give the jury a correct but incomplete special verdict form, any such error was harmless.
Here the jury was properly instructed that the prosecution had to prove defendant was substantially involved beyond a reasonable doubt and that the jury had to make such a determination. Defendant points to contrary authority, People v. Garcia (1992) 3 Cal.App.4th 582, where the court struck a weight enhancement because the verdict form did not contain a specific finding of substantial involvement and because there was no instruction that the jury had to find that element. (Id. at pp. 584-586.)
In accordance with this principle, it certainly is preferable that the elements of a special circumstance allegation be completely stated in the special verdict submitted to the jury, although there is a split of authority on whether the omission of an enhancement element from the verdict form is error. (Compare People v. Chevalier (1997) 60 Cal.App.4th 507, 513-516; People v. Garcia (1992) 3 Cal.App.4th 582, 586.) Even if we assume, however, that it was error for the court to give the jury a correct but incomplete special verdict form, any such error was harmless.
In view of this conclusion, we do not reach defendant's argument that the verdict form for count 1 was deficient in that it did not require an express finding of substantial involvement. (Compare People v. Chevalier (1997) 60 Cal.App.4th 507, 514, with People v. Garcia (1992) 3 Cal.App.4th 582, 586.) As stated above, the substantial involvement requirement does not apply to a conviction of the underlying offense, whether or not based on a conspiracy theory.