People v. Townsend

• Decision Date: 10 April 1998
• Docket Number: No. H015880,H015880
• Citation: 62 Cal.App.4th 1390,73 Cal.Rptr.2d 438
• Court: California Court of Appeals Court of Appeals
• Parties: , 124 Ed. Law Rep. 965, 98 Cal. Daily Op. Serv. 2712, 98 Daily Journal D.A.R. 3715 The PEOPLE, Plaintiff and Respondent, v. Curtis Ronald TOWNSEND, Defendant and Appellant.

Page 438

73 Cal.Rptr.2d 438

62 Cal.App.4th 1390, 124 Ed. Law Rep. 965,

98 Cal. Daily Op. Serv. 2712,

98 Daily Journal D.A.R. 3715

The PEOPLE, Plaintiff and Respondent, v. Curtis Ronald TOWNSEND, Defendant and Appellant.

No. H015880.

Court of Appeal, Sixth District, California.

April 10, 1998.

Review Denied July 15, 1998.

Robert Spertus (Under appointment by the Court of Appeal in association with the Sixth District Appellate Program), Berkeley, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Sr. Assistant Attorney General, Ronald S. Matthias and Richard Rochman, Deputy Attorneys General, for Plaintiff and Respondent.

ELIA, Associate Justice.

At issue in this appeal is the scope of Health and Safety Code section 11353.6, subdivision (b), which creates a sentence enhancement applicable to certain narcotics offenses committed within 1000 feet of a school. ¹ In its instructions to the jury, the trial court altered the language of this provision. Appellant Curtis Townsend contends that the court's instruction gave the jury the erroneous impression that section 11353.6(b) is applicable to a person who sells controlled substances outside the school boundary while the school is closed but minors are on the school grounds. The People maintain that the enhancement is triggered whenever minors are present at the school. We agree with the People's interpretation. Although the trial court improperly changed the language of the statute in defining the enhancement for the jury, no prejudice resulted. We further find no unconstitutional vagueness in the statute. Accordingly, we will affirm the judgment.

Background

Between 5:55 and 6:00 on a Thursday evening in April 1995, appellant sold an undercover officer a piece of crack cocaine for $20. The exchange took place eight to ten feet from the fence that bordered Horace Mann Elementary School in San Jose. The officer saw several children between 10 and 15 years old playing basketball on the school grounds.

Milly Powell, the principal at Horace Mann at that time, testified that the school was open for classes between 9:05 a.m. and 3:05 p.m. After that a "homework center" was open for the students until 4 p.m. Between 6:30 a.m. and 6 p.m. a private organization operated a daycare center for children of parents who lived in the school district. The daycare center was considered part of the school and was administered through the school district. After 6 p.m. there were no authorized activities on the school grounds except for adult classes in "English as a Second Language" (ESL). Children were "not supposed to" use the school grounds after 6 p.m., but Ms. Powell was aware that some students nevertheless went there to play basketball.

Appellant and two codefendants were charged with selling and offering to sell cocaine base (§ 11352, subd. (a)) and possession of cocaine base for sale (§ 11351.5). Attached to each count was an allegation that the crime took place within 1000 feet of Horace Mann Elementary School "during hours that the school was open for classes and school-related programs, and at the time when minors were using the facilities where the offense occurred, within the meaning of section 11353.6 of the Health and Safety Code." After a jury trial, all three defendants were convicted as charged.

Discussion

1. Jury Instruction

Section 11353.6, the Juvenile Drug Trafficking and Schoolyard Act, creates a sentence enhancement for any adult who is convicted of certain narcotics offenses, including the sale of crack cocaine, "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 school is open for classes or school-related programs, or at any time when minors are using the facility where the offense occurs...." (§ 11353.6(b).) ²

In instructing the jury, the trial court substituted "when the offense occurs" for "where the offense occurs" in the last clause of subdivision (b) quoted above. Defense counsel objected, but the prosecution successfully argued that the word "where" was a drafting error.

Appellant argues that the court's substitution of "when" for "where" permitted the jury to convict him on a legally impermissible theory: that an off-campus sale of drugs will trigger the application of section 11353.6(b) if minors are using the school facility. According to appellant, when school is closed the enhancement may be imposed only if both the minors and the offender are at the school facility when the offense takes place, and only if the minors are authorized to be on the premises. This interpretation cannot withstand scrutiny.

In construing section 11353.6, our objective is to "ascertain the intent of the Legislature so as to effectuate the purpose of the law." (People v. Jenkins (1995) 10 Cal.4th 234, 246, 40 Cal.Rptr.2d 903, 893 P.2d 1224; People v. Broussard (1993) 5 Cal.4th 1067, 1071, 22 Cal.Rptr.2d 278, 856 P.2d 1134.) In approaching this task, a court must begin with the statutory language, giving the words used their plain and commonsense meaning. (People v. Valladoli (1996) 13 Cal.4th 590, 597, 54 Cal.Rptr.2d 695, 918 P.2d 999.) If there is no ambiguity or uncertainty, the Legislature is presumed to have meant what it said, and there is no need to resort to extrinsic indicia of legislative intent, such as legislative history. (People v. Coronado (1995) 12 Cal.4th 145, 151, 48 Cal.Rptr.2d 77, 906 P.2d 1232; People v. Hendrix (1997) 16 Cal.4th 508, 512, 66 Cal.Rptr.2d 431, 941 P.2d 64.)

On the other hand, "language that appears unambiguous on its face may be shown to have a latent ambiguity." (Quarterman v. Kefauver (1997) 55 Cal.App.4th 1366, 1371, 64 Cal.Rptr.2d 741.) In such a case, a court may turn to customary rules of statutory construction, the " 'wider historical circumstances,' " or legislative history for guidance, keeping in mind the " 'consequences that will flow from a particular interpretation.' " (People v. Cruz (1996) 13 Cal.4th 764, 782-783, 55 Cal.Rptr.2d 117, 919 P.2d 731.) It is not always preferable to rely on the literal meaning of the words used. " '[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.' [Citations.] ... 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.' " (People v. Pieters (1991) 52 Cal.3d 894, 898-899, 276 Cal.Rptr. 918, 802 P.2d 420; People v. Ledesma (1997) 16 Cal.4th 90, 95, 65 Cal.Rptr.2d 610, 939 P.2d 1310.)

The manifest purpose of section 11353.6 is to prevent drug trafficking with schoolchildren and to protect students from exposure to drug transactions and the hazards they present. (People v. Williams (1992) 10 Cal.App.4th 1389, 1394, 13 Cal.Rptr.2d 379; People v. Jimenez (1995) 33 Cal.App.4th 54, 60, 39 Cal.Rptr.2d 12; People v. Marzet (1997) 57 Cal.App.4th 329, 338, 67 Cal.Rptr.2d 83.) " 'Whether or not a child is involved in or otherwise present during any particular sale of narcotics within one thousand feet of a school, subjecting the seller to enhanced penalties reasonably may be expected to deter the seller and other illicit dealers from conducting their operations near school property in the future.... It is difficult to imagine a more rational way of keeping drug traffickers out of areas where children are more likely to come into contact with them than to subject them to a risk of stiffer penalties for doing business near school property.' " (People v. Williams, supra, 10 Cal.App.4th at p. 1395, 13 Cal.Rptr.2d 379, quoting United States v. Nieves (S.D.N.Y.1985) 608 F.Supp. 1147, 1149-1150; emphasis omitted.)

In 1992 the Legislature amended section 11353.6, effective January 1, 1993. The 1992 amendment increased the number of offenses subject to the enhancement and narrowed the circumstances in which it applied. Instead of maintaining a 24-hour all-inclusive protected zone around schools, the Legislature added subdivision (g), which limited the reach of the statute to "any public area or business establishment where minors are legally permitted to conduct business." The amendment also specified that the 1000-foot zone was protected "during hours that the school is open for classes or school-related programs, or at any time when minors are using the facility where the offense occurs." (Stats.1992, ch. 989, § 1, p. 4661, emphasis added.) It is this addition, particularly the portion italicized above, that is at issue in this case.

Appellant contends the clause "where the offense occurs" refers to the school facility, and therefore the offense must take place on campus for the enhancement to apply. This construction ignores the preceding language creating the 1000-foot zone. There is no basis either in the statutory language or in the legislative history for inferring that the Legislature intended to retain the phrase "within 1000 feet" only during the hours a school is open, and to relinquish that protection when school is closed but students are "using the facility." Nor is there any indication that the students' presence on campus must be authorized for the offender's conduct to warrant increased punishment. To the extent that the amended portion of subdivision (b) creates ambiguity in its scope, appellant's proposed construction is unreasonable. Consequently, we do not apply the rule invoked by appellant, that ambiguous penal statutes are construed in favor of defendants. That rule is applicable only when "two reasonable interpretations of the same provision stand in relative equipoise, i.e., that resolution of the statute's ambiguities in a convincing manner is impracticable." (People v. Jones (1988) 46 Cal.3d 585, 599, 250 Cal.Rptr. 635, 758 P.2d...