PEOPLE v. WALKER

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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. Gerald WALKER, Jr., Defendant and Appellant.

No. F010367.

Decided: April 26, 1989

Alister McAlister, under appointment by the Court of Appeal, Wilton, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Joel Carey and Robert R. Anderson, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

STATEMENT OF THE CASE

Appellant Gerald Walker, Jr., also known as Gerald Hodges, was charged by information with one count (count I) of utilizing a building designed to suppress law enforcement entry in order to possess for the purpose of sale rock cocaine (Health & Saf.Code, § 11366.6),1 and one count (count II) of possession of more than 14.25 grams of rock cocaine (§ 11351.5;  Pen.Code, § 1203.073, subd. (b)(5)).   Count III of the information, which was later dismissed, charged a violation of Penal Code section 148.9, subdivision (a) (providing false identification to a police officer).   Appellant was found guilty of both counts by jury verdict.   He was sentenced to the upper term of five years in state prison on count I and the upper term of five years on count II.   The sentence on count I was stayed pending the completion of the sentence on count II, and permanently thereafter.   A timely appeal was filed.

THE FACTS

On April 29, 1987, the Kern County Sheriff's Department executed a warrant to search for narcotic contraband at 313 Augusta Street, Bakersfield.   The windows and doors of the house were covered with wrought iron bars.   Officers approached the front door, which was open.   The wrought iron gate was closed.   When the officers announced their presence, appellant ran from the living room to the back of the house.   Fearing the destruction of evidence, the officers pried open the gate with a tire iron.   The front door was then shut by another occupant of the house, a minor.   The officers used a battering ram to gain entrance.   Three persons were found inside the house:  appellant, the minor, and appellant's girlfriend.   Appellant was apprehended in the center bedroom.

A search of the house uncovered approximately 140 grams of rock cocaine and other paraphernalia.   A scale, baggies and stray pieces and shavings of cocaine were found on a table in the living room.   Cocaine residue and pieces were found in a kitchen cabinet.   A box containing five large bags of cocaine was found in the center bedroom.   A prescription bottle containing cocaine was found under the mattress located in the same room.

Appellant denied that he lived at the residence.   However, according to a witness who lived at the residence, appellant stayed at the residence off and on.   The same witness also testified that “lots of people” would come to the house, ask for appellant and would stay for only a short time.

Officer Garcia, the investigating officer, testified that based on his experience as a narcotic officer, the condition of the house, its run-down character, unkept yard, location in a low income area, sparse furnishings, and the iron bars on the windows and doors were consistent with “rock houses” and that the house was operating as a “rock house.”   Officer Garcia testified that the amount of cocaine in the house (147 grams) and the presence of paraphernalia indicated that cocaine was sold from the house in large quantities.

Undisputed testimony established that the wrought iron bars were placed on the house by its previous owner for security reasons and that other houses in the area were likewise adorned.   Appellant was not involved in the placement of the bars on the house.

Appellant contends the trial court incorrectly interpreted section 11366.6 and that there was not sufficient evidence to support a conviction under that section.   He also makes the latter contention with respect to his conviction under count II, violation of section 11351.5 and Penal Code section 1203.073, subdivision (b)(5).   Appellant further contends the court erred in allowing certain expert testimony regarding the general character of “rock houses” and in refusing to order the disclosure of the identity of the informant pursuant to Evidence Code section 1042.   Lastly, appellant contends reversal of his conviction is required because of the mention of his race in testimony and in the prosecutor's closing argument.

DISCUSSION

I.THE TRIAL COURT CORRECTLY INTERPRETED SECTION 11366.6

In 1987 section 11366.6 provided as follows:

“Any person who utilizes a building, room, space, or enclosure specifically designed to suppress law enforcement entry in order to sell, manufacture, or possess for sale any amount of cocaine ․ shall be punished by imprisonment in the state prison for three, four, or five years.”

Appellant raises three contentions on appeal relating to the interpretation of section 11366.6:  (1) The court erred in restricting closing argument on the issue of whether a necessary element of the crime charged required the prosecutor to prove that the house was fortified to prevent law enforcement entry and that appellant participated in the fortification;  (2) the trial court erred in refusing to give the requested instruction on “continuity of purpose” to the jury;  and (3) the evidence is insufficient to establish all elements of the statute, specifically that appellant “utilized” the residence with the required “continuity of purpose.”

There are no cases interpreting section 11366.6.

A. The court did not err in refusing to allow argument by defense counsel that appellant could not be found guilty because the house was not designed to suppress law enforcement entry within the meaning of section 11366.6.

 At the end of trial, defense counsel asked the court whether it would allow argument that the house was not specifically designed to suppress law enforcement entry.2  The court informed counsel that it would not allow the argument because under the court's understanding of the statute, “It comes down to a mental state of whether or not he was there, in that particular place in order to possess rock cocaine for sale.”

The wrought iron bars were installed by the previous owner for security purposes.   Appellant contends that absent a showing that he installed the bars, or had the bars installed, there can be no conviction under section 11366.6.

The language of section 11366.6 expressly prohibits the use of a building designed to prevent law enforcement entry for the purpose of sale or manufacture of cocaine or possession with intent to sell cocaine.   General rules of construction require that when a statute is clear, the “plain meaning rule” applies.   The Legislature is presumed to have meant what it said, and the plain meaning of the statute governs.  (Great Lakes Properties, Inc. v. City of El Segundo (1977) 19 Cal.3d 152, 155, 137 Cal.Rptr. 154, 561 P.2d 244.)   However, in this instance, both appellant and respondent agree that the language of the statute is ambiguous.   It is ambiguous because the statute is susceptible of two reasonable constructions.   When there are two reasonable constructions, the statute shall be construed “as favorably to the defendant as its language and the circumstances of its application may reasonably permit;  ․” (Keeler v. Superior Court (1970) 2 Cal.3d 619, 631, 87 Cal.Rptr. 481, 470 P.2d 617.)

The statute can be read to require as an element of the crime the fortification of a building with the specific intent to prevent law enforcement entry.   Indeed, the “plain meaning rule” would appear to support appellant's contention if it were not for the clear legislative intent of section 11366.6.   A second rule of construction is that the policy sought to be implemented by the Legislature should be respected whenever possible.   (People v. Navarro (1972) 7 Cal.3d 248, 273, 102 Cal.Rptr. 137, 497 P.2d 481.)

The legislative history of section 11366.6 tells us that the purpose of the section was to provide law enforcement a tool against the use of fortified buildings for selling narcotics.   The specific targets of the statute are “rock houses,” defined in the committee reports as fortified buildings which hinder law enforcement entry.   Fortification gives dealers time to destroy evidence.  (Sen.Com.Rep. on Assem.Bill No. 1862, Sen.Rules Com. (1983) p. 2;  Assem.Com.Rep. on Assem.Bill No. 1862, Com. on Public Safety (1985) p. 1.)   The clear intent of the statute and basic rules of statutory construction lead to a conclusion that the trial court correctly interpreted section 11366.6 and appropriately restricted closing argument.

Section 11366.6 points to one who “utilizes” property and not one who necessarily has any legal interest in the property.   Both the Senate and Assembly committee reports speak of the “use” of rock houses.   Section 11366.5, subdivision (b) 3 (which was not enacted at the same time as § 11366.6 but addresses the same subject, to wit, “rock houses”) punishes those who have a legal interest in property and allow fortification to prevent law enforcement entry.   Courts are reluctant to interpret a statute so as to render another provision unnecessary.  (Bowland v. Municipal Court (1976) 18 Cal.3d 479, 489, 134 Cal.Rptr. 630, 556 P.2d 1081.)   Because the intent of section 11366.6 clearly includes punishment of those without a legal interest in the property who merely avail themselves of its use, it would make little sense to require that appellant must have been involved in the fortification process.

Moreover, what appellant has asked is that this court introduce into the statute a requirement that an unrelated third party have an unlawful subjective intent before a violation of section 11366.6 can be found.   Appellant argues that the individual responsible for the fortification must have possessed a subjective intent to prevent law enforcement entry, no matter how far removed from appellant.   Yet a reading of sections 11366.5, subdivision (b), and 11366.6 reveals that it is the use of “rock houses” for the sale of controlled substances that the Legislature wished to make a felony.  “It is well established that a specific provision should be construed with reference to the entire statutory scheme of which it is a part, ․” (Bowland v. Municipal Court, supra, 18 Cal.3d at p. 489, 134 Cal.Rptr. 630, 556 P.2d 1081.)   The subjective intent of the one who fortified the building was not at issue in either of these two provisions.   It was the use of a fortified building that created the problem for law enforcement which the Legislature felt compelled to address, not the intent of the fortifier.

Appellant's construction would also eliminate from coverage under the section a class of buildings which pose an identical problem for law enforcement, those innocently fortified.   Surely the intent was not only to punish those who establish their illicit trade in a building where fortifications were made with the specific intent to prevent law enforcement entry, but also those who use buildings which were innocently fortified for other reasons.

The intent of the statute here in question is to address the need of law enforcement to gain immediate access to execute search warrants where suspected unlawful activity is occurring.   While the statute was not intended to punish for the mere possession or sale of drugs in a building fortified for security reasons, the evidence in this case established that the fortifications were used to hinder law enforcement entry.   This is the exact activity which the Legislature wished to punish.   To rule that the conviction cannot stand because appellant merely took advantage of preexisting innocent fortifications would be to frustrate the intent of section 11366.6.   Statutes should be construed “according to the fair import of their terms, with a view to effect its objects and to promote justice.”  (Bowland v. Municipal Court, supra, 18 Cal.3d at p. 487, 134 Cal.Rptr. 630, 556 P.2d 1081.)   We reject appellant's contentions regarding his conviction on count I.

B. The court did not err in refusing to give the requested instruction to the jury on continuity of purpose.

Appellant contends that an essential element of section 11366.6 is that there be a “continuity of purpose” of the unlawful activity.   Appellant argues that the jury should have been instructed that the prosecutor must show multiple violations in order to sustain her burden of proof.   Appellant proposed the following instruction for the jury, which the court refused:

“You are instructed that in respect to the first count you may not find the defendant guilty if the prosecution's evidence only shows a single or isolated violation.”

 If continuity of purpose is an element of section 11366.6, then it was error to refuse to instruct on this element.   A trial court is required to instruct sua sponte on all elements of the charge.  (People v. Sears (1970) 2 Cal.3d 180, 190, 84 Cal.Rptr. 711, 465 P.2d 847;  People v. Haney (1977) 75 Cal.App.3d 308, 312, 142 Cal.Rptr. 186.)   The error, however, is not reversible per se.  (Rose v. Clark (1986) 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460.)

 The United States Supreme Court has held that instructional error, even when in regard to the elements of an offense, is to be treated under the “harmless error” rule of Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.  (Pope v. Illinois (1987) 481 U.S. 497, 107 S.Ct. 1918, 95 L.Ed.2d 439;  see also People v. Odle (1988) 45 Cal.3d 386, 414, 247 Cal.Rptr. 137, 754 P.2d 184, cert. den. 488 U.S. 917, 109 S.Ct. 275, 102 L.Ed.2d 263.)   Therefore, where a reviewing court can find that the record developed at trial establishes guilt beyond a reasonable doubt, the interest in fairness has been met and the conviction should be affirmed.  (Rose v. Clark, supra, 478 U.S. at p. 579, 106 S.Ct. at p. 3106.)

 Here the jury was not precluded from considering the elements of the crime charged.   They were properly instructed as to the language of the statute and of the use of circumstantial evidence.   Any error in instruction of the jury, which we do not find, would thus be harmless under the Chapman standard.

The same result is required under the California standard in People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.   It is not reasonably probable that a result more favorable to appellant would have been reached in absence of the alleged error.

Appellant relies on two cases interpreting a separate provision of the Health and Safety Code, former section 11557 (now § 11366),4 to support his contention that a single violation will not support a conviction under section 11366.6.  (People v. Horn (1960) 187 Cal.App.2d 68, 72–74, 9 Cal.Rptr. 578;  People v. Holland (1958) 158 Cal.App.2d 583, 588, 322 P.2d 983.)

In Holland, the court reversed a conviction under section 11557 on the ground that a single sale at a barbecue stand did not establish the “continuity of purpose” intended by the Legislature.   The court found the word chosen by the Legislature, “maintain,” implied a “continuity of purpose.”  (Ibid.)

People v. Horn, supra, 187 Cal.App.2d 68, 9 Cal.Rptr. 578 reached the same conclusion concerning the intent of the Legislature.   In Horn, the defendant was arrested in a home where a large quantity of narcotics, packaging items and other paraphernalia were found.   However, in both Holland and Horn the court quoted with approval from People v. Mehra (1925) 73 Cal.App. 162, 238 P. 802, which involved the analogous situation of a conviction for maintaining a common nuisance under the federal Volstead Act, wherein it was stated, “ ‘[T]here must be shown to establish the fact of maintaining a common nuisance, a series of sales or a single sale, accompanied by such attendant circumstances as reasonably raise the inference of the purpose for which the possession of the intoxicating liquor is had, ․’ ” (People v. Holland, supra, 158 Cal.App.2d at p. 588, 322 P.2d 983, citing People v. Mehra, supra, 73 Cal.App. at pp. 170–171, 238 P. 802.)   The court then pointed out examples of circumstances, such as a large quantity of liquor, various kinds of liquor, the containers in which the liquor is kept, the character of the place, the manner in which it is fitted up and evidence of people visiting the place in unusual numbers or at unusual times.   If it were necessary to show continuity of purpose under section 11366.6, the circumstances of the instant case reasonably raise the inference of continuity as contemplated by Horn–Holland.

Appellant contends that the Horn–Holland analysis should be followed when interpreting section 11366.6 because, given the long recognition of the rule under section 11366, the Legislature would have expressed an intent to eliminate the “continuity of purpose” requirement when enacting section 11366.6.   It did not.   On the other hand, respondent argues persuasively that the Horn–Holland analysis is correct as to section 11366 but is inapplicable to section 11366.6 because the Legislature did not use the same language.   According to respondent, the word “utilizes” does not carry the same meaning as the word “maintain”:  it does not imply continuing activity.

The legislative history of section 11366.6 (enacted as Assem.Bill No. 1862 (1984–1985 Reg.Sess.), Stats.1985, ch. 1533, § 2) is of little guidance on this issue other than to establish that the two sections were not enacted at the same time.   Absent any further showing by appellant, it cannot be presumed the same analysis would apply under both sections.

The statutory purpose of the two sections is quite distinct.   Section 11366 is an older statute which addresses the maintaining or opening of a place from which narcotics are trafficked, distributed or used.  Section 11366.6, on the other hand, was enacted as an attempt to control the proliferation of fortified houses used for trafficking narcotics, namely cocaine, in order to frustrate law enforcement efforts.

 As respondent correctly notes, the common definition of the word “utilize” is “to make use of.”   Even the less common definition “get profit or benefit from,” does not imply continuous activity.  (Webster's New World Dict. (2d college ed. 1980) p. 1565.)   There is nothing in the word's commonly understood meaning that suggests or requires continuing activity.   Certainly it is possible “to make use of” something on a single occasion.   Under the rules of construction discussed above, we must follow the “plain meaning rule,” especially when, as in this case, the words chosen by the Legislature are consistent with the expressed intent of the statute.  (Great Lakes Properties, Inc. v. City of El Segundo, supra, 19 Cal.3d 152, 155, 137 Cal.Rptr. 154, 561 P.2d 244.)   We hold continuity of purpose or activity is not required under section 11366.6.

Moreover, the instruction proposed by appellant contained an incorrect statement of the law and therefore it was not error to refuse it.   Under the Horn–Holland analysis, there is no requirement that there be a finding of multiple violations.   One violation and corroborating circumstances may be sufficient.  (People v. Horn, supra, 187 Cal.App.2d 68, 73, 9 Cal.Rptr. 578.)

C. There is sufficient evidence to support a finding of continuity of purpose even if it were found to be an element of section 11366.6.

 As indicated above, even if this court were to hold that the Horn–Holland analysis applies to section 11366.6, making “continuity of purpose” an element of the crime, the conviction should still be upheld.

There is sufficient evidence to support a finding that appellant's activities in the residence were of a continuing nature.   The jury, in convicting appellant of count II, rejected appellant's claim that he had only been at the residence for the one night with his girlfriend.   The jury also found that appellant had actual or constructive possession of the narcotics in the house and that he possessed an intent to sell the cocaine.   A reviewing court must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.  (People v. Johnson (1980) 26 Cal.3d 557, 576, 162 Cal.Rptr. 431, 606 P.2d 738.)   The expert testimony that the house was indeed a “rock house,” the quantity of drugs and packaging materials present, and appellant's ongoing relationship with the residence are sufficient evidence to support a finding that appellant possessed the “continuity of purpose” required under the Horn–Holland analysis.

II–V ***

The judgment is affirmed as to both counts I and II.

FOOTNOTES

FOOTNOTE.  

1.   Further statutory references are to the Health and Safety Code unless otherwise indicated.

2.   “MR. SPRAGUE:  ․ I mentioned to the court that I was desirous of argument that the house was not specifically designed to suppress law enforcement entry.  [¶] Is the court's posture, at this time, that an objection would be sustained by the prosecution if I so argued?“THE COURT:  If you were to argue that they could not find the defendant guilty in Count 1, because the evidence is that [the previous owner] was the one who designed the wrought iron, and had it placed on there and, therefore, he could not be guilty, I'm sure there would be an objection.   [¶] And yes, I would sustain it.”

3.   Section 11366.5, subdivision (b), provides:  “Any person who has under his or her management or control any building, room, space, or enclosure, either as an owner, lessee, agent, employee, or mortgagee, who knowingly allows the building, room, space, or enclosure to be fortified to suppress law enforcement entry in order to further the sale of any amount of cocaine, ․ and who obtains excessive profits from the use of the building, room, space, or enclosure shall be punished by imprisonment in the state prison for two, three, or four years.”

4.   Section 11366 provides in pertinent part:  “Every person who opens or maintains any place for the purpose of unlawfully selling, giving away, or using any controlled substance ․ shall be punished by imprisonment in the county jail for a period of not more than one year or the state prison.”

FOOTNOTE.   See footnote *, ante.

PETTITT, Associate Justice.** FN** Retired judge of the superior court, sitting under assignment by the Chairperson of the Judicial Council.

BEST, Acting P.J., and BAXTER, J., concur.

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