People v. Emmal

• Decision Date: 30 December 1998
• Docket Number: No. G021290,G021290
• Court: California Court of Appeals Court of Appeals
• Parties: , 99 Cal. Daily Op. Serv. 51 The PEOPLE, Plaintiff and Respondent, v. Ronald Jay EMMAL, Defendant and Appellant.

Page 907

80 Cal.Rptr.2d 907

68 Cal.App.4th 1313, 99 Cal. Daily Op. Serv. 51

The PEOPLE, Plaintiff and Respondent, v. Ronald Jay EMMAL, Defendant and Appellant.

No. G021290.

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

Dec. 30, 1998.

Review Denied March 24, 1999.

Certified for Partial Publication. ^*

[68 Cal.App.4th 1314] Jerry D. Whatley, Santa Barbara, under appointment by the Court of Appeal, for Defendant and Appellant.

[68 Cal.App.4th 1315] Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and Esteban Hernandez, Deputy Attorney General, for Plaintiff and Respondent.

OPINION

BEDSWORTH, J.

A jury convicted Ronald Jay Emmal of transporting methamphetamine but found him not guilty of possessing it for sale. The trial court then found two "strike" allegations and four one-year prior allegations to be true. Emmal claims (1) the evidence was insufficient to support his conviction; (2) the trial court provided the jury a defective definition of "transportation"; (3) the court improperly augmented his 25-years-to-life sentence with three one-year sentence enhancements; and (4) his sentence constitutes cruel and unusual punishment. We find no merit in any of these contentions and affirm the judgment.

* * *

Investigators Shawn Condon and Michael Helmick of the Anaheim Police Department saw Emmal parked in the parking lot of the Mediterranean Motel and thought the passenger in his car resembled a bombing suspect they were looking for. They drove slowly past the parked car and looked closely at Emmal and his passenger. Convinced neither was their man, they pulled into another parking space so they could turn around and depart, only--to their amazement--to have Emmal drive up behind them and block their exit.

The upshot of the ensuing events, not germane to this appeal, was that Emmal's passenger confronted the officers while Emmal started to leave, drove about 20 feet through the parking lot, then got out and walked back to the officers. In a search not contested here, police found a baggie containing 991 milligrams of methamphetamine, a very active pager (according to Condon, it went off "continually"), and $400 cash in Emmal's pocket.

I

Emmal insists the evidence undergirding his conviction is insufficient as a matter of law because he only drove his car about 20 feet, and such "minimal movement" is not nearly enough to constitute "transportation" within the meaning of Health and Safety Code section 11379. We cannot agree.

Section 11379 merely requires a person "transport [ ]" methamphetamine. It makes no attempt to quantify the distance that must be traversed. As we have observed before, "Transportation of a controlled substance is established by [simply] carrying or conveying a usable quantity of a controlled substance with knowledge of its presence and illegal character. [Citations.]" (People v. Meza (1995) 38 Cal.App.4th 1741, 1746, 45 Cal.Rptr.2d 844.) Neither this nor any other court has ever required that the length of travel exceed "minimal movement."

Emmal concedes the cases interpreting the statute set no threshold for the distance that must be driven, but he urges us to set one, analogizing his case to People v. Daniels (1969) 71 Cal.2d 1119, 80 Cal.Rptr. 897, 459 P.2d 225. There, our Supreme Court held that incidental movement of a robbery victim did not transmogrify the robbery into a kidnapping. Hence, the court explained, the greater penalties applicable to kidnapping could not properly be applied. Emmal suggests that the reasoning of Daniels should be engrafted here because "the Legislature could not have intended to inflict the heavy punishment of the trafficking statute for an act of moving a small amount of methamphetamine which is merely an incident to the crime of possessing that contraband...." But the crime for which Emmal was convicted is not a mere incident to the crime of possessing methamphetamine.

In comparing the crimes of robbery and kidnapping, the Daniels court observed, " 'It is difficult to conceive of a situation in which the victim of a robbery does not make some movement under the duress occasioned by force or fear.' [Citation.]" (People v. Daniels, supra, 71 Cal.2d at p. 1134, 80 Cal.Rptr. 897, 459 P.2d 225.) Yet, the court reasoned, the Legislature could not have intended that every robbery be a kidnapping simply because movement is involved. The court therefore held that kidnapping requires some movement in addition to that associated with the robbery--a movement that "substantially increase[s] the risk of harm over and above that necessarily present in the crime of robbery itself. [Citation.]" (Id. at p. 1139, 80 Cal.Rptr. 897, 459 P.2d 225.)

Here, the Daniels reasoning just doesn't play. It is not difficult to conceive of a situation in which a person who possesses a controlled substance is merely in possession and not also committing the crime of transportation. Nor is asportation an element of possession in the first place. And while Emmal emphasizes that the quantity of methamphetamine he possessed was minuscule, the offense of transporting that substance has never been found not to occur simply because the amount being transported was small or held for personal use. In fact, the California Supreme Court has held just the opposite. (People v. Rogers (1971) 5 Cal.3d 129, 134, 137, 95 Cal.Rptr. 601, 486 P.2d 129.)

The Legislature has determined transportation of controlled substances--no matter what quantity is involved--should be prohibited because it poses greater risks to the public than simple possession does. As our Supreme Court has observed, the increased penalty provided for transportation is intended to discourage sales and purchases; to reduce the incidents of traffic accidents caused by those who might use and be impaired by a controlled substance during its transportation; and to inhibit the use of controlled substances in general by making it difficult to distribute and obtain them. (People v. Rogers, supra, 5 Cal.3d at pp. 136-137, 95 Cal.Rptr. 601, 486 P.2d 129.) The proscription and the penalty that goes with it do not require an actual sale, an impaired driver, or even use of the drug before they come into play. It is enough that those evils, along with their attendant risks, have been reasonably associated with the prohibited deed. (Ibid.)

Like the appellant in People v. Eastman (1993) 13 Cal.App.4th 668, 676-677, 16 Cal.Rptr.2d 608, Emmal "is unable to point to anything ... since Rogers that would undercut the policy basis of the decision--that the transportation of contraband, even if possessed only for personal use, is properly punished more severely than simple possession because the act of transportation substantially increases the risks to the public. [Citation.] ... We accept the continued vitality of [that] holding ... and the fact that the jury found appellant not guilty of possessing methamphetamine for sale is not relevant." We perceive no authority, or reason, to alter that analysis here.

Nor are we troubled by the fact Emmal drove his car a minimal distance. On that point, we find the Attorney General's analogy to driving under the influence cases helpful. Because of the risk that intoxicated drivers pose to the public, the Legislature has chosen to make it illegal "to drive a vehicle" while under the influence of alcohol or drugs. (Veh.Code, §§ 23152, subd. (a), 23153, subd. (a).) Like the statute prohibiting the "transportation" of controlled substances, however, the statutes criminalizing "drivi...