PEOPLE v. CHAPMAN

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

The PEOPLE, Plaintiff and Respondent, v. Lamar CHAPMAN, Defendant and Appellant.

Crim. No. B070828.

Decided: May 26, 1994

Marcia C. Levine, Truckee, under appointment by the Court of Appeal, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Asst. Atty. Gen., Robert Carl Schneider and Robert Renner, Deputy Attys. Gen., for plaintiff and respondent.

Defendant and appellant, Lamar Chapman, appeals the judgment entered following his conviction by jury of possession for sale of phencyclidine (PCP) or any analog or precursor thereof.  (Health & Saf.Code, § 11378.5); 1  transportation of PCP or a precursor thereof (§ 11379.5, subd. (a));  and driving recklessly to evade arrest (Veh.Code, § 2800.2).   The Health and Safety Code violations each contained enhancing allegations that the quantity of substance involved exceeded 25 pounds by weight (§ 11370.4, subd. (b)) which were found to be true by the jury.   The appellant also admitted to having previously been convicted of four prior felonies within the meaning of Penal Code section 667.5, subdivision (b) and three prior felonies within the meaning of section 11370.2.

The trial court denied probation and sentenced appellant to the high term of five years on the charge of possession for sale of PCP (§ 11378.5) plus ten years for the quantity enhancement (§ 11370.4, subd. (b)), with a consecutive sentence of eight months on the charge of evading an officer (Veh.Code, § 2800.2), together with thirteen years for the prior convictions, for a total of twenty-eight years, eight months in state prison.   The sentence on the charge of transportation of PCP (§ 11379.5, subd. (a)) was stayed pursuant to Penal Code section 654.

Defendant appeals from that part of the judgment imposing the ten-year quantity enhancement contending that the provisions of section 11370.4, subdivision (b), do not apply to a precursor of PCP.

Appellant also contends in a supplemental brief that the instruction to the jury defining reasonable doubt as embodied in CALJIC No. 2.90 deprived him of due process and a fair trial because it is misleading and lightened the prosecution's burden of proof.

Because we have concluded that the trial court properly interpreted section 11370.4, subdivision (b), and that the claimed instructional error is without merit, the judgment is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

There is no dispute as to the facts of this case.

Just before midnight on January 15, 1991, Deputy John Mundell of the Los Angeles County Sheriff's Department spotted a white car and a blue van exiting the northbound I–5 freeway and parking side by side at a McDonald's restaurant.   The white car had no license plates and was stopped by Deputy Mundell after it left the parking lot.   Since he knew that narcotics were often transported in tandem, with the extra vehicle serving as a decoy, he had already called for a back-up unit.

Deputy Gregory Laval and his partner arrived in response to the call and undertook to follow the van when it left the parking lot.   After the van went through a stop sign, they pulled it over.   As Deputy Laval was approaching the van on foot, it quickly took off, entering the I–5 freeway heading south.   After a pursuit of nearly 50 miles at speeds of up to 115 miles an hour, the van struck a concrete guardrail and flipped end-over-end into the brush.   Appellant and his companion were arrested while attempting to escape on foot.

The van contained all the material necessary for the manufacture of a significant amount of PCP.   This included nine gallon-sized bags of piperidineocyclohexanone carbonitrite (PCC), with a total weight of approximately 130 to 135 pounds, three-fourths of a gallon of hydrochloric acid, a half pound of iodine, five bags of magnesium, four five-gallon cans of petroleum ether, eight five-gallon cans of ethyl ether, five gallons of bromobenzene, four one-gallon jugs of water, and a can of Red Devil lye, as well as seven unused 32 gallon plastic trash cans, gloves, a glass pyrex dish, and a baster with a yellow bulb on the end.

PCC is the immediate chemical precursor in the manufacture of PCP.   A quantity of 135 pounds of PCC will yield approximately 170 pounds of PCP.

DISCUSSION

1. Enhancement of Sentence Pursuant to Section 11370.4, Subdivision (b)

 The issue to be decided is whether the quantity enhancement provisions of section 11370.4, subdivision (b), are applicable to appellant who was convicted in separate counts of possession for sale and transportation of PCC which is an immediate precursor to PCP.

Section 11370.4, subdivision (b), at the time of appellant's conviction, provided, in pertinent part:  “(b) Any person convicted of a violation of, or of a conspiracy to violate, Section 11378, 11378.5, 11379, or 11379.5 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 25 pounds by weight, or 621/212 gallons by liquid volume, the person shall receive an additional term of 10 years.” 2

PCC, the substance for which appellant was convicted, is neither PCP nor its analog.   We therefore must examine the statutory scheme to determine the Legislature's intent.

Our Supreme Court has previously examined section 11370.4 in People v. Pieters (1991) 52 Cal.3d 894, 276 Cal.Rptr. 918, 802 P.2d 420, to determine if the Legislature's failure to expressly exempt the section from the double-base-term limitation of Penal Code section 1170.1, subdivision (g), constituted a “draftsman's oversight.”   In addressing this issue, the court set forth certain principles of statutory construction as follows:

“The fundamental purpose of statutory construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of the law.  (People v. Craft (1986) 41 Cal.3d 554, 559 [224 Cal.Rptr. 626, 715 P.2d 585];  Palos Verdes Faculty Assn. v. Palos Verdes Peninsula Unified Sch. Dist. (1978) 21 Cal.3d 650, 658 [147 Cal.Rptr. 359, 580 P.2d 1155].)   In order to determine this intent, we begin by examining the language of the statute.  (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735 [248 Cal.Rptr. 115, 755 P.2d 299];  Palos Verdes Faculty Assn., supra [21 Cal.3d], at p. 658 [147 Cal.Rptr. 359, 580 P.2d 1155].)   But ‘[i]t is a settled principle of statutory interpretation that language of a statute should not be given a literal meaning if doing so would result in absurd consequences which the Legislature did not intend.’   (Younger v. Superior Court (1978) 21 Cal.3d 102, 113 [145 Cal.Rptr. 674, 577 P.2d 1014], citations omitted, internal quotation marks omitted;  see also People v. Davis (1985) 166 Cal.App.3d 760, 766 [212 Cal.Rptr. 673] [although reasonable doubts as to ambiguous criminal statute should normally be resolved in favor of defendant, rule does not apply where result is absurd or contrary to legislative intent].)   Thus, ‘[t]he intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act.’   (Lungren v. Deukmejian, supra [45 Cal.3d] at p. 735 [248 Cal.Rptr. 115, 755 P.2d 299].)   Finally, we do not construe statutes in isolation, but rather read every statute ‘with reference to the entire scheme of law of which it is part so that the whole may be harmonized and retain effectiveness.’  (Clean Air Constituency v. California State Air Resources Bd. (1974) 11 Cal.3d 801, 814 [114 Cal.Rptr. 577, 523 P.2d 617].)”  (People v. Pieters, supra, 52 Cal.3d at pp. 898–899, 276 Cal.Rptr. 918, 802 P.2d 420.)

Applying these principles to the instant case it is noted that sections 11378, 11378.5, 11379 and 11379.5 to which section 11370.4, subdivision (b) applies include both analogs and precursors of methamphetamine, amphetamine and PCP.   As noted in People v. Pieters, supra, 52 Cal.3d at page 901, 276 Cal.Rptr. 918, 802 P.2d 420:  “The Legislature added section 11370.4 to punish dealers of large amounts of drugs in direct proportion to the quantity of drugs involved.   This intent is evidenced by both the express purpose of the section and the graduated sentence enhancements provided therein.”

Section 11370.4, subdivision (b), was adopted at the same legislative session at which section 11379.8 3 was enacted incorporating the same statutory weight enhancement scheme provided for in section 11370.4 but with the inclusion of precursors of PCP utilized in the direct or indirect manufacture of that controlled substance or its analogs (see, § 11379.6).4

We take note that section 11370.4 is part of the California Uniform Controlled Substances Act, a complex legislative scheme to control and regulate the manufacture, sale, possession, transportation and use of “controlled substances,” a term which is defined in section 11007 as follows:  “ ‘Controlled substance,’ unless otherwise specified, means a drug, substance, or immediate precursor which is listed in any schedule in Section ․ 11055 [.]”  (Emphasis added.)

Finally, we agree with the trial court, that it would be an “absurd consequence not intended by the Legislature” to find that the enhancements in section 11370.4, subdivision (b), did not apply because by happenstance law enforcement authorities interrupt the process of manufacturing PCP before it begins rather than at its conclusion.   By definition, at the end of the process there would no longer be an “immediate precursor.”   This inconsistency “strongly suggests confusion and errors in drafting[.]”  (See People v. Alexander (1986) 178 Cal.App.3d 1250, 1261, 224 Cal.Rptr. 290.)

For all of these reasons we conclude the trial court properly imposed the ten-year enhancement to the term to be served by appellant for his conviction of section 11378.5.5

2. Jury Instruction CALJIC No. 2.90

 In a supplemental brief, appellant claims that the trial court committed prejudicial error when it allowed the jury to convict based on a degree of proof less than that required by due process.   This contention is based on the instruction on the required burden of proof given by the court to the jury pursuant to CALJIC No. 2.90.6

The United States Supreme Court recently rejected this claim.  (Victor v. Nebraska (1994) 511 U.S. 1 [114 S.Ct. 1239, 127 L.Ed.2d 583] (94 Daily Journal D.A.R. 3687, 3691–3693).)   Accordingly, it also fails here.

DISPOSITION

The judgment is affirmed.

FOOTNOTES

FOOTNOTE.  

1.   All subsequent unspecified references are to the Health and Safety Code unless otherwise specified.

2.   Section 11370.4 has been amended since appellant's conviction to express quantities by metric measurement.

3.   Section 11379.8 provides in relevant part:“Any person convicted of a violation of subdivision (a) of Section 11379.6 ․ with respect to any substance containing a controlled substance which is specified in ․ paragraph (2) of subdivision (f) of Section 11055 shall receive an additional term․”The reference to section 11055, subdivision (f) subjects the “immediate precursors of phencyclidine,” including PCC to the same quantity enhancements set forth in section 11370.4, subdivision (b).

4.   Section 11379.6, subdivision (a), states in relevant part:  “[E]very person who manufacturers, compounds, converts, produces, derives, processes, or prepares, either directly or indirectly by chemical extraction or independently by means of chemical synthesis, any controlled substance specified in Section 11054, 11055, ․ shall be punished ․ in the state prison for three, five, or seven years and by a fine not exceeding fifty thousand dollars ($50,000).”

5.   In reaching this conclusion we are aware of People v. Lopez (1993) 20 Cal.App.4th 897, 24 Cal.Rptr.2d 649, a case in which we believe this issue was wrongly decided.

6.   That instruction provides:  “A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty.   This presumption places upon the People the burden of proving him guilty beyond a reasonable doubt.  [¶] Reasonable doubt is defined as follows:  It is not a mere possible doubt;  because everything relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt.   It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charges.”

PARKIN **, Associate Justice. FN** Judge of the Los Angeles Superior Court sitting under assignment by the Chairperson of the Judicial Council.

CROSKEY, Acting, P.J., and KITCHING, J., concur.