People v. Atlas

• Decision Date: 03 June 1998
• Docket Number: No. B113059,B113059
• Citation: 75 Cal.Rptr.2d 307,64 Cal.App.4th 523
• Court: California Court of Appeals Court of Appeals
• Parties: , 98 Cal. Daily Op. Serv. 4262, 98 Daily Journal D.A.R. 5854 The PEOPLE, Plaintiff and Respondent, v. Donnell ATLAS, Defendant and Appellant.

Page 307

75 Cal.Rptr.2d 307

64 Cal.App.4th 523, 98 Cal. Daily Op. Serv. 4262,

98 Daily Journal D.A.R. 5854

The PEOPLE, Plaintiff and Respondent, v. Donnell ATLAS, Defendant and Appellant.

No. B113059.

Court of Appeal, Second District, Division 2, California.

June 3, 1998.

Review Denied Sept. 16, 1998.

[64 Cal.App.4th 524] Patricia G. Bell, under appointment by the Court of Appeal, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Kenneth C. Byrne, Supervising Deputy Attorney General, and Corey J. Robins, Deputy Attorney General, for Plaintiff and Respondent.

NOTT, Associate Justice.

Donnell Atlas appeals from the judgment entered upon his conviction by jury of possessing cocaine base for sale, with the finding that the offense was committed within 1,000 feet of a school. (Health & Saf.Code, §§ 11351.5, 11353.6, subd. (b).) The court found that he had sustained two prior serious felony convictions within the meaning of the Three Strikes law (Pen.Code, §§ 1170.12, subds. (a)--(d), 667, subds. (b)--(i)) and a prior conviction within the meaning of Health and Safety Code section 11370.2, subdivision (a). ¹ Appellant contends that the trial court committed reversible error by failing to instruct the jury that the intent to sell narcotics had to occur within 1,000 feet of a school in order for section 11353.6 to apply. We reject this claim, and hold that section 11353.6 does not require proof of such intent.

FACTS AND PROCEDURAL BACKGROUND

The evidence established that at approximately 8:40 a.m. on May 7, 1996, two Los Angeles sheriff's deputies driving eastbound on Manchester Boulevard stopped their marked patrol vehicle at a traffic light at Vermont Avenue and saw appellant standing in a nearby north/south alley. Along the alley, within 1,000 feet of where appellant stood, was a school. The school was open for classes at the time. The school was situated at the rear of a church facing Manchester Boulevard, and one of the deputies acknowledged that nothing in the alley indicated a school was nearby, although there was a sign facing Manchester Boulevard.

Appellant looked in the deputies' direction, appeared startled, and ran from the alley across the street in front of the deputies' vehicle. As he ran, he pulled several plastic baggies from his pocket and threw them towards a storm drain. One of the deputies recovered six ziplock baggies which contained cocaine base. The other deputy ordered appellant to stop and placed him under arrest. In the opinion of a deputy sheriff who was an expert regarding the sale of narcotics, appellant possessed the baggies of cocaine for the purpose of sale. Appellant was over 18 years of age.

Appellant presented no evidence.

At sentencing, the trial court ordered the prior serious felony convictions stricken and sentenced appellant to thirteen years in prison, comprised of five years for possession, a five-year term for the section 11353.6, subdivision (b), enhancement, and a three-year term for the section 11370.2, subdivision (a), enhancement.

DISCUSSION

Section 11353.6, subdivision (b), provides as follows: "Any person 18 years of age or over who is convicted of a violation of Section 11351.5 ..., where the violation takes place upon the grounds of, or within 1,000 feet of, a public or private elementary, vocational, junior high, or high school during hours that the Appellant requested that the trial court instruct the jury that section 11353.6, subdivision (b) requires knowledge that a school is within 1,000 feet and further requires the intent to sell drugs or possess drugs for sale near the school. Following a lengthy discussion, the trial court determined that it would instruct the jury in the language of the statute. Over objection by the prosecutor, the court permitted defense counsel to argue that if appellant was merely walking down the alley and did not intend to possess the drugs for sale within a 1,000 feet of a school, the enhancement should be found not true.

                school is open for classes or school-related programs, or at any time when minors are using the facility where the offense occurs, shall receive an additional punishment of 3, 4, or 5 years at the court's discretion."   Subdivision (g) of that section provides:  " 'Within 1,000 feet of a public or private elementary, vocational, junior high, or high school' means any public area or business establishment where minors are legally permitted to conduct business which is located within 1,000 feet of any public or private elementary, vocational, junior high, or high school."
                

Appellant contends that the trial court erred in refusing to instruct the jury that he was required to have the intent to sell drugs near the school in order for the enhancement to be found true. ²

Section 11353.6 was enacted in 1988 as an attempt to create "a drug-free zone around schools." (People v. Jimenez (1995) 33 Cal.App.4th 54, 58, 39 Cal.Rptr.2d 12.) The statute was amended in 1992, effective January 1, 1993, to expand the list of underlying offenses subject to the enhancement but to limit application of the enhancement to public areas or business establishments where minors may legally conduct business within 1,000 feet of a school and to the hours that schools are open for class or school-related programs or when minors are using the facility. ³ "The 1993 amendments ... represent a change in focus away from attempting to create a 'drug-free zone' around schools, focusing instead on preventing the sale of drugs to students on their way to and from school and, equally important, protecting them from exposure to drug dealers and drug buyers so they will not be influenced to emulate the conduct of either." (33 Cal.App. 4th at p. 59, 39 Cal.Rptr.2d 12.)

No California case addresses the issue before us, whether an intent requirement should be read into section 11353.6, subdivision (b). In construing section 11353.6, our objective is "to ascertain and carry out the intent of the Legislature." (People v. Cruz (1996) 13 Cal.4th 764, 782, 55 Cal.Rptr.2d 117, 919 P.2d 731.) Section 11353.6, subdivision (b) does not on its face have a mens rea requirement and, specifically, includes no language indicating that the People are required to prove that a defendant intended to commit the crime within the proscribed area. We decline to add such a requirement absent an indication that the Legislature so intended. "It is not our function ... to add language or imply exceptions to statutes passed by the Legislature." (Roberts v. City of Palmdale (1993) 5 Cal.4th 363, 372, 20 Cal.Rptr.2d 330, 853 P.2d 496.)

Decisions of other jurisdictions construing similar statutes have concluded that no intent requirement should be applied. The Assembly Bill Analysis of Assembly Bill No. 3451, which was enacted as section 11353.6, indicates that "[a]ccording to the sponsor, the Los Angeles County District Attorney's Office, this bill seeks to enhance penalties for the specified violations by providing penalties similar to those already existing in federal United States v. Falu (2d Cir.1985) 776 F.2d 46 was the first case to interpret 21 United States Code section 845a. Falu held that the purpose of the statute--to deter drug distribution in and around schools--was clear from the legislative history, and to impose a requirement that the defendant have knowledge that his activity was within the prohibited area "would undercut this unambiguous legislative design." (776 F.2d at p. 50.) Falu further held that the underlying statute which was incorporated into the enhancement provision, provided the mens rea requirement, and that, therefore, a strict liability interpretation of the enhancement statute did not criminalize activity which would otherwise be innocent and, hence, did not violate due process.

                law."   The federal schoolyard statute, 21 United States Code section 845a, was enacted in 1984 to provide additional penalties for "[a]ny person who violates section 841(a)(1) of this title by distributing a controlled substance in or on, or within one thousand feet of, the real property comprising a public or private elementary or secondary school...." 4
                

Falu was followed in the Ninth Circuit by United States v. Pitts (9th Cir.1990) 908 F.2d 458, where the defendant was convicted of possession of cocaine with intent to distribute within 1,000 feet of a school. Pitts expressly adopted the reasoning of Falu. Several other federal courts have come to the same conclusion. For example, in United States v. McDonald (D.C.Cir.1993) 991 F.2d 866, 301 App.D.C. 157, where the defendant was convicted of possession of cocaine with intent to distribute under 21 United States Code section 860, the court held that the schoolyard enhancement was properly applied without regard to proof of whether he intended to distribute within the prohibited zone. (Id. at pp. 868-871.) The court observed that the purpose of the enhancement statute is "to give students increased protection from the violence often accompanying serious drug offenses, and from the threat of having their lives corrupted through proximity to drug traffickers and their wares." (Id. at p. 869.) The court pointed out that "[this] is why possessing drugs with an intention to distribute them anywhere is treated as doubly abhorrent when the possessor is in the vicinity of a school. With intended distribution, as with actual distribution and manufacturing, comes large quantities of drugs, and thus danger." (Ibid.)

State courts interpreting similar statutes have likewise refused to find an intent requirement. In Williford v. State (Ind.App. 3 Dist.1991) 571 N.E.2d 310, an Indiana court held that a statute similar to section 11353.6, subdivision (b), did not require the People to prove that the defendant was knowingly or intentionally within the proscribed area at the time he committed...