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Court of Appeal, Fourth District, Division 3, California.

 The PEOPLE of the State of California, Plaintiff and Respondent, v. Don MATUS, Defendant and Appellant.

No. G005182.

Decided: August 16, 1988

 Joan Isserlis, San Francisco, under appointment by the Court of Appeal, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Michael D. Wellington and Carl H. Horst, Deputy Attys. Gen., for plaintiff and respondent.


Don Matus pleaded guilty to several 1986 drug charges after the trial court indicated it would sentence him to no more than 13 years in prison.   The court then imposed the middle term of three years for possession of cocaine with intent to sell and a ten-year enhancement per Health and Safety Code section 11370.4, subdivision (a)(3), based on the amount of cocaine involved (in excess of 25 pounds).   Facially, the sentence contravened the explicit double-the-base-term rule of the version of Penal Code section 1170.1, subdivision (g) then in effect.   That section has since been amended to exempt quantity enhancements.   The issue we must resolve is whether the double-the-base-term limitation applied before the amendment.   We conclude it did and modify the judgment accordingly.


Enacted by the Legislature as an emergency measure effective October 1, 1985, Health and Safety Code section 11370.4 increased the penalties for  defendants who traffic in large quantities of narcotics.1  Already in existence when this legislation was enacted, however, were the former provisions of Penal Code section 1170.1, subdivision (g) and its double-the-base-term limit on aggregate sentences.   In 1986 that section provided:  “The term of imprisonment shall not exceed twice the number of years imposed by the trial court as the base term pursuant to subdivision (b) of Section 1170 unless the defendant stands convicted of a ‘violent felony’ as defined in subdivision (c) of Section 667.5, or a consecutive sentence is being imposed pursuant to subdivision (c) of this section, or an enhancement is imposed pursuant to Section 12022, 12022.4, 12022.5, 12022.6, 12022.7, or 12022.9, or the defendant stands convicted of felony escape from an institution in which he is lawfully confined.” 2

Read together, Health and Safety Code section 11370.4 and former Penal Code section 1170.1, subdivision (g) are unambiguous;  and the double-the-base-term rule clearly had to apply to the quantity enhancements.   Nevertheless, the Attorney General argues the failure to expressly exempt Health and Safety Code section 11370.4 from the rule was merely a “legislative oversight,” claiming most of the quantity enhancements could not be given effect if it were applicable.   This dubious proposition was essentially adopted by the Court of Appeal in People v. Carvajal (1988) 202 Cal.App.3d 487, 249 Cal.Rptr. 368, where the court held the 25–pound enhancement “could never be imposed ” if the limitation were applicable.  (Id., at p. 501, 249 Cal.Rptr. 368, emphasis in original.)

We find the Attorney General's reasoning to be flawed on several grounds.   First, it does not take into account the three-and five-year enhancements of Health and Safety Code section 11370.4, subdivisions (a)(1) and (a)(2).   The first was fully applicable in all cases, and the second was in those in which a defendant received the upper term or some other applicable enhancement.3  Moreover, all the quantity enhancements could be  imposed in proportion to the base term and used to their fullest extent whenever one of the previously enumerated statutory exceptions to Penal Code section 1170.1, subdivision (g) might be involved, e.g., where the defendant was also convicted of a violent felony.  (See People v. Magill (1986) 41 Cal.3d 777, 781, 224 Cal.Rptr. 702, 715 P.2d 662.)

 In our view, the correct rule for cases predating the 1988 amendment is that the quantity enhancements may legally be imposed, but that portion exceeding the double-the-base-term limitation must be stayed.  (People v. Bell (1984) 159 Cal.App.3d 323, 329, 205 Cal.Rptr. 568;  People v. Benton (1979) 100 Cal.App.3d 92, 101, 161 Cal.Rptr. 12;  Cal.Rules of Court, rule 447.4 )  Carvajal simply failed to consider these authorities.

The Attorney General also relies on People v. Jackson (1985) 37 Cal.3d 826, 210 Cal.Rptr. 623, where the Supreme Court discussed the double-the-base-term limitation with respect to the five-year enhancement for prior serious felony convictions in Penal Code section 667.   Proposition 8 created these enhancements but did not amend Penal Code section 1170.1, subdivision (g) to exempt them from the double-the-base-term rule.   In the context of burglary, which prescribes base terms of two, four, or six years (Pen.Code, § 461, subd. 1), the court observed that if the rule applied the enhancements could be fully imposed only when the defendant was sentenced to the upper term.   In order to “carry out the intention of the enactment,” the court implied an exception to Penal Code section 1170.1, subdivision (g);  and it described the failure of the initiative to specifically so provide as a “draftsman's oversight.”  (Jackson, supra, 37 Cal.3d at p. 838, 210 Cal.Rptr. 623.)

Jackson, however, did not deal with an act of the Legislature but a broad revision of the criminal justice system via the initiative process.5  Initiatives  are notorious for poor draftsmanship, and Proposition 8 was no better than most.   But with respect to initiative measures, courts commonly do make allowances for drafting oversights in order to effectuate the will of the electorate.   For example, in Brosnahan v. Brown (1982) 32 Cal.3d 236, 257, 186 Cal.Rptr. 30, 651 P.2d 274, the court observed, “it would have been wholly unrealistic to require the proponents of Proposition 8 to anticipate and specify in advance every change in existing statutory provisions which could be expected to result from the adoption of that measure.”

 Legislative enactments are not accorded similar leeway, however:  While draftsman's oversight in legislation by initiative measure may be easily excusable and inferable given the nature of the process, it is illogical to presume such an oversight in regular legislation.   Indeed, well-established rules of statutory construction operate against the oversight analysis in the context of legislative enactments.   To begin with, “ ‘[u]nder the familiar rule of construction, expressio unius est exclusio alterius, where exceptions to a general rule are specified by statute, other exceptions are not to be implied or presumed.’  [Citation.]”  (In re Lance W. (1985) 37 Cal.3d 873, 888, 210 Cal.Rptr. 631, 694 P.2d 744;  see also People v. Chambers (1972) 7 Cal.3d 666, 674–675, 102 Cal.Rptr. 776, 498 P.2d 1024.)   The Supreme Court recently reiterated the principle in these words:  “The People's theory would lead to the remarkable conclusion that the Legislature creates exceptions to a specific code section merely by failing to mention it.   The normal rules of statutory construction, however, dictate a contrary presumption․”  (People v. Siko (1988) 45 Cal.3d 820, 824, 248 Cal.Rptr. 110, 755 P.2d 294.)   Also, the Legislature is presumed to have been aware of former Penal Code section 1170.1, subdivision (g) at the time it enacted Health and Safety Code section 11370.4.  (See In re Misener (1985) 38 Cal.3d 543, 552, 213 Cal.Rptr. 569, 698 P.2d 637;  People v. Cardenas (1982) 31 Cal.3d 897, 913–914, 184 Cal.Rptr. 165, 647 P.2d 569;  People v. Edwards (1981) 117 Cal.App.3d 436, 447–448, 172 Cal.Rptr. 652.)   In short, the judiciary should not create statutory exceptions where the Legislature has not, for whatever reason, done so itself.  (County of Los Angeles v. Frisbie (1942) 19 Cal.2d 634–644, 122 P.2d 526;  People v. White (1954) 122 Cal.App.2d 551, 554, 265 P.2d 115.)

The Attorney General, in effect, urges judicial repeal of former Penal Code section 1170.1, subdivision (g), as it relates to the present enhancement.   Yet our duty is the opposite:  “ ‘The courts are bound, if possible, to maintain the integrity of both statutes if the two may stand  together.’  [Citations.]”  (In re White (1969) 1 Cal.3d 207, 212, 81 Cal.Rptr. 780, 460 P.2d 980.)   We can only achieve that goal by recognizing application of the double-the-base-term limitation to pre–1988 violations subject to Health and Safety Code section 11370.4 enhancements.   In that manner, both statutes are followed, notwithstanding application of the quantity enhancements may be restricted to some extent in many cases.

We are not persuaded by recent decisions discovering implied exceptions to the double-the-base-term statute under similar circumstances.   In People v. Eddahbi (1988) 199 Cal.App.3d 1135, 245 Cal.Rptr. 330, the court fashioned such an exception to allow full consecutive sentences for multiple kidnapping convictions pursuant to Penal Code section 1170.1, subdivision (b).6  In so doing, the court undertook an exhaustive review of the legislative history of the 1988 amendment to Penal Code section 1170.1, subdivision (g), which specifically excepted this provision.   Ultimately the court concluded from this exercise that an implied exception already existed before the legislative correction.7

We are more than troubled by this approach.   It is one thing to indulge in the fiction that all citizens are presumed to know the law.   It is quite another to assume every one of them is also aware of the unexpressed intent of the Legislature.   A rather basic theory underpinning our criminal jurisprudence is that an individual contemplating the commission of an offense ought to be able to ascertain the consequences by resort to applicable penal statutes.   There is, at least in principle, no common law of crimes in this state.  (Pen.Code, § 6;  People v. Patterson (1988) 202 Cal.App.3d 165, 169, 247 Cal.Rptr. 885;  People v. Taylor (1980) 112 Cal.App.3d 348, 356, 169 Cal.Rptr. 290.)

In People v. Mason (1988) 200 Cal.App.3d 1502, 1511–1517, 247 Cal.Rptr. 217, the Court of Appeal did not rely solely on Jackson 's legislative oversight/Proposition 8 analysis, but also held enhancements for committing felonies while on bail were excepted from the double-the-base-term rule for yet another reason.8  The court pointed to the language in the enhancement statute itself, which states the additional punishment “shall be served consecutive to any other term imposed by the court.”   It concluded these words could have no meaning if section 1170.1, subdivision (g) limited the scope of the enhancement.

Health and Safety code section 11370.4, subdivision (d) does contain similar language:  The quantity enhancements “shall be in addition to any other punishment provided by law.”   But we believe these provisions, at most, indicate that appropriate additional punishment, within the parameters of the double-the-base-term rule, should be imposed consecutively;  the statute does not specifically require them to be fully imposed.   Thus, we fail to derive any implication from this language concerning the scope of the double-the-base-term rule;  the very purpose of Penal Code section 1170.1, subdivision (g) is to limit the effect of consecutive counts and enhancements.9

Of course, we must determine the purpose of the Legislature in order to properly apply the statutes it chooses to enact.  (People v. Craft (1986) 41 Cal.3d 554, 559, 224 Cal.Rptr. 626, 715 P.2d 585;  People v. Aston (1985) 39 Cal.3d 481, 489, 216 Cal.Rptr. 771, 703 P.2d 111.)   But, particularly with respect to criminal law, this is ordinarily accomplished by referring to the language of a statute itself.   On its face there can be little doubt as to the general goal of section 11370.4:  “It is the intent of the Legislature in enacting Sections 3 and 4 of this act to punish more severely those persons who are in the regular business of trafficking in, or production of, narcotics and those persons who deal in large quantities of narcotics as opposed to individuals who have a less serious, occasional, or relatively minor role in this activity.”  (Stats. 1985, ch. 1398, § 1, pp. 915–916.)

Again, however, nothing in the quoted passage addresses whether the quantity enhancements must always be fully imposed.   Also, limited application of those enhancements is not necessarily inconsistent with the goal of  punishing major traffickers more severely.   A more onerous punishment is imposed in every such case, but the magnitude of the increase depends on other factors.

The Legislature invariably enacts criminal statutes with punishment in mind.   Yet Penal Code section 1170.1, subdivision (g) was not amended to exempt the quantity enhancements until January 1, 1988.   The contention that Penal Code section 1170.1, subdivision (g) should not apply merely because the Legislature increased potential sentences beyond double the base term is nothing more than an argument to limit the application of the section by judicial fiat:  “To imply an exception whenever the limit is in any way exceeded would defeat its purpose and is illogical.”  (People v. Ledesma, supra, 199 Cal.App.3d at p. 1322, 245 Cal.Rptr. 706.)   This we must decline to do.

Consequently, even assuming we knew the Legislature intended the quantity enhancements to operate without restriction—as it quite possibly did—our decision would be the same.   In Finn v. Superior Court (1984) 156 Cal.App.3d 268, 202 Cal.Rptr. 732, we determined an individual who fraudulently sold or purchased a mobilehome could only be prosecuted for a misdemeanor under Health and Safety Code section 18060.5 and not for a felony under the general grand theft statutes (Pen.Code, §§ 484–487).   There, we applied the settled rule of statutory construction precluding prosecution under a general statute when a more specific one describes the conduct involved.   (People v. Gilbert (1969) 1 Cal.3d 475, 82 Cal.Rptr. 724, 462 P.2d 580;  People v. Swann (1963) 213 Cal.App.2d 447, 28 Cal.Rptr. 830.)

In commenting on the result in Finn, which allowed the defendant to avoid felony prosecution despite the theft of thousands of dollars in property, we observed:  “As in Swann, we must follow the applicable rule of statutory construction.   Until such time as the Legislature corrects what reason and common sense suggest is probably not a product of legislative intent but of legislative inattention, fraud in the sale of a mobilehome may only be prosecuted as a misdemeanor․  If that is not the wish of the Legislature, it will presumably react accordingly.  [It did.   See Health & Saf.Code, § 18021.6.]  In the meantime, it is more important for our system of justice to observe well-founded and established rules[ ] than to create false exceptions in order to apply an apparently more appropriate penalty to a particular miscreant.” 10  (Finn v. Superior Court, supra, 156 Cal.App.3d at  p. 272, 202 Cal.Rptr. 732;  see also People v. White, supra, 122 Cal.App.2d at p. 554, 265 P.2d 115.)   We continue to adhere to these principles.   The Legislature has already responded to what may have been an oversight on its part by amending Penal Code section 1170.1, subdivision (g).   We should not rewrite the Penal Code to retroactively apply the amendment before its effective date of January 1, 1988.

In declining to strike the enhancement, the trial court stated it could find no significant factors in mitigation or aggravation.   Our review of the record supports that conclusion.   Accordingly, there is no reason to remand for resentencing.

The conviction is affirmed, but the abstract of judgment is ordered modified to reflect a total sentence of six years imprisonment with applicable credits.  (Pen.Code, § 1260.)


1.   Section 11370.4, subdivision (a) provides that persons convicted of violating Health and Safety Code sections 11351, 11351.5, or 11352 with respect to substances containing heroin, cocaine, or a cocaine base shall be imprisoned for additional terms according to the quantity of the drug involved.   For example, more than three pounds of the specified controlled substance mandates a three-year enhancement (subd. (a)(1));  ten pounds translates to five years (subd. (a)(2));  25 pounds means ten years (subd. (a)(3));  and 100 pounds results in an additional 15 years (subd. (a)(4)).

2.   Penal Code section 1170.1, subdivision (g) was amended effective January 1, 1988, to exempt Health and Safety Code section 11370.4 from the double-the-base-term limit.  (Stats. 1987, ch. 1423, § 3.7;  Gov.Code, § 9605.)   The ex post facto clauses of the United States and California Constitutions preclude application of the amendment to offenses committed before its effective date.  (People v. Smith (1983) 34 Cal.3d 251, 259–262, 193 Cal.Rptr. 692, 667 P.2d 149.)

3.   The 15–year enhancement under subdivision (a)(4) was not added to Health and Safety Code section 11370.4 until late 1987, virtually coinciding with the amendment to the double-the-base-term statute excepting section 11370.4.  (Stats.1987, ch. 1174, § 6.5, eff. Sept. 26, 1987, operative Jan. 1, 1988.)   The legislative oversight argument would have considerable more force if subdivision (a)(4) had been included in the original quantity enhancements.

4.   Rule 447 provides:  “No allegation or finding of a fact giving rise to an enhancement shall be stricken or dismissed because imposition of the additional term therefor is prohibited by section 1170.1(a) or 1170.1(d), or because the aggregate for enhancements would exceed the limit established by section 1170.1(a), or because the overall aggregate term of imprisonment would exceed the limit established by section 1170.1[g].  The sentencing judge shall impose sentence for the aggregate term of imprisonment computed without reference to those prohibitions and limitations, and shall thereupon stay execution of so much of the term as is prohibited or exceeds the applicable limit.   The stay shall become permanent upon the defendant's service of the portion of the sentence not stayed.”

5.   Since Jackson it has become fashionable for appellate courts to accommodate other draftsman's oversights in Proposition 8.   Thus, enhancements pursuant to Penal Code section 667.5, subdivision (b) were judicially exempted from double-the-base-term limitation.  (People v. Hall (1985) 168 Cal.App.3d 624, 629, 214 Cal.Rptr. 289;  People v. Poole (1985) 168 Cal.App.3d 516, 524, 214 Cal.Rptr. 502.)   Both of these opinions rested on Jackson and further noted Proposition 8 provided enhancement of sentences for prior felony convictions without limitation.  Health and Safety Code section 11370.4, however, is not based on Proposition 8 or the use of prior convictions.

6.   Penal Code section 1170.1, subdivision (b) provides in part:  “When a consecutive term of imprisonment is imposed under Sections 669 and 1170 for two or more convictions for kidnapping, as defined in Section 207, involving both separate victims and separate occasions, ․ the subordinate term for each subsequent kidnapping conviction shall consist of the middle term for each kidnapping conviction for which a consecutive term of imprisonment is imposed․”

7.   Both parties have referred to the legislative history of the same amendment in support of their respective arguments as to whether the double-the-base-term limit was intended to apply to section 11370.4 before 1988.   Matus notes the Legislative Counsel's Digest refers to the limitation as “existing law” at the time of the amendment.   The Attorney General has countered with the Senate Bill Report.   It speaks of the amendment as an attempt to “clarify” the intent of the Legislature.We are not convinced either document is conclusive as to what an earlier Legislature intended in an entirely separate enactment, however.   Nor do we believe a review of legislative history is ordinarily appropriate where the statutory wording is, as in this case, clear and unambiguous.  (See In re Lance W., supra, 37 Cal.3d at p. 886, 210 Cal.Rptr. 631, 694 P.2d 744;  cf. People v. Knowles (1950) 35 Cal.2d 175, 183, 217 P.2d 1.)

8.   This enhancement is contained in Penal Code section 12022.1.   It provides in part, “Any person arrested for a secondary offense which was alleged to have been committed while that person was released from custody on a primary offense shall be subject to a penalty enhancement of an additional two years in state prison which shall be served consecutive to any other term imposed by the court.”

9.   People v. Mason, supra, 200 Cal.App.3d 1502, 247 Cal.Rptr. 217 is questionable on other grounds as well;  for the Legislature has yet to specifically exempt Penal Code section 12022.1 from the double-the-base-term statute, as it has in the case of the narcotics quantity enhancements.   Given the recent amendment to Penal Code section 1170.1, subdivision (g), we find it difficult to conclude the omission was other than deliberate.

10.   Ironically, the Attorney General argues section 11370.4 is a special statute which controls the more general law embodied in Penal Code section 1170.1, subdivision (g).   A prerequisite to application of this rule, however, is that the statutes must cover the same subject matter.  (E.g., People v. Gilbert, supra, 1 Cal.3d at p. 479, 82 Cal.Rptr. 724, 462 P.2d 580.)   We do not believe the two statutes here qualify.  Penal Code section 1170.1, subdivision (g) no more covers the same subject matter as Health and Safety Code section 11370.4, subdivision (a)(3) than Penal Code section 654 covers the same subject matter as any other penal statute.   The Swann–Gilbert rule is designed for laws proscribing identical conduct.  (E.g., People v. Ruster (1976) 16 Cal.3d 690, 694, 129 Cal.Rptr. 153, 548 P.2d 353.)

CROSBY, Associate Justice.

SCOVILLE, P.J., and WALLIN, J., concur.

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