The PEOPLE, Plaintiff and Respondent,
v.
John R. ARIAS, Defendant and Appellant.
No. A112810.
Court of Appeal of California, First District, Division Two.
July 25, 2007.*866 Richard Michael Doctoroff by appointment of the Court of Appeal, First District Appellate Project, San Francisco, for Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Asst. Atty. General, Gerald A. Engler, Sr. Asst. Atty. General, Seth K. Schalit, Supervising Deputy A.G., John H. Deist, Deputy Attorney General, for Respondent.
Certified for Partial Publication.[*]
KLINE, P.J.
Appellant John R. Arias was charged by a three-count indictment of the felony offenses of transportation of a controlled substance, methamphetamine, (Health & Saf.Code, § 11379, subd. (a)[1]count one), possession of that substance for sale (§ 11378count two), and possession of a false compartment (§ 11366.8, subd. (a) count three). After conviction on all of the charges, appellant was sentenced to the midterm of three years on count one, doubled due to a prior felony conviction (Pen. Code, § 667, subd. (e)(1)); four years on count two, which was stayed (Pen.Code, § 654); and four years on count three, concurrent with the six-year sentence imposed for count one. The court also imposed a one-year enhancement for a prior prison term (Pen.Code, § 667.5, subd. (b)), consecutive to the sentence imposed on the principal count. The total sentence was seven years with 160 days credit for actual time served.
Appellant claims prosecutorial misconduct, an erroneous instruction on consciousness of guilt, and the erroneous failure to strike a prior prison term pursuant to Penal Code section 667.5. He also raises several issues relating to section 11366.8, which defines the offense of constructing, possessing or using a false compartment with intent to conceal a controlled substance. With respect to that offense, appellant maintains that the evidence is insufficient to sustain his conviction, the trial court gave an erroneous instruction defining a "false compartment," and the statutory definition of a "false compartment" is unconstitutionally vague. In the alternative to his claims relating to section 11366.8, appellant maintains that Penal Code section 654 precludes imposition of punishment on him for commission of that offense.
We shall reject all of appellant's claims that do not relate to section 11366.8. However, with respect to that offense, we shall sustain appellant's claim of instructional error and related contention that the evidence that he used or possessed a "false compartment" is insufficient to sustain his conviction of violating section 11366.8; those findings make it unnecessary for us to address appellant's other claims relating to section 11366.8.
FACTS
The facts pertinent to the issues presented are as follows: On the evening of May 25, 2005, Martinez Police Officer Nick Voyvodich observed a Lexus without a front license plate and stopped the vehicle for that reason. He asked the driver, appellant, to step out of the car and commenced a search of the vehicle.[2] Officer Voyvodich first examined the fabric-covered area between the front of the sunroof and the metal frame of the carreferred *867 to by the parties as the "headliner"because he had been told by appellant's former girlfriend "there were things inside." Using Velcro strips attached to the fabric, the officer pulled the headliner down, revealing an interior space. Finding nothing there, he turned his attention to the area beneath the driver's seat, which was also empty. However, while looking at the gap between the dashboard and the steering column, Voyvodich saw plastic baggies containing a white crystalline substance. The baggies were stuffed into a space between the steering column and adjacent wiring located behind the part of the dashboard that would be just above a seated driver's left knee. The dashboard panel "snapped out" and Officer Voyvodich was able to remove it and extricate the baggies. He then handcuffed appellant and searched him, finding cash in three bundles containing $300, $320, and $380, respectively, and an additional loose amount of $425.
Voyvodich testified that after he informed appellant of his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 and appellant agreed to speak to him, appellant said the drugs were his; he had them for several weeks and planned to throw them away because "[h]e wanted to clean his life up." When asked if the money found on him was obtained from selling drugs, appellant said it was given to him by his uncle, David Morales, who was also his employer, for work of an unspecified nature he was to do for Morales. Appellant said that though the Lexus was registered to his mother he was the only one who drove it.
A forensic toxicologist testified that the substance found in the three baggies was methamphetamine, and that the baggies weighed 27.72, 23.01, and 3.31 grams respectively. Police Sergeant Gary Peterson, a narcotics expert, testified that appellant possessed the methamphetamine for sale. He explained that a methamphetamine dealer's standard unit of sale is generally one ounce, or 28.5 grams. One of the baggies appellant was found with contained 27.72 grams and the other two baggies together contained 26.32 grams. According to Peterson, drug dealers commonly "chop[ ] off the top" (i.e., take a little for themselves) of the amount they obtain from a supplier. Methamphetamine is commonly sold on the street in "eight balls" (one-eighth of an ounce, or 3.5 grams). Thus Peterson opined that appellant may have received two standard units of methamphetamine from his supplier, taken some for himself, and packaged an "eight-ball" for sale. Peterson believed the money appellant possessed was also indicative of drug dealing. An "eight ball" sells for $110 to $180, so appellant's cash bundles probably indicated three separate sales in quarter-ounce amounts. Finally, Peterson stated that drug dealers often drive cars registered to others, and the fact that appellant did not appear to be under the influence of any drug, and did not possess drug paraphernalia, was also indicative that his possession was for sale.
George Driscoll, an inspector for the district attorney's office, testified that he interviewed appellant's uncle, David Morales, who employed appellant at his dental lab. Morales told Driscoll he loaned appellant $1,500 so he could pay his bills. Driscoll asked whether he knew anything about appellant starting a business and Morales said he had heard appellant wanted to start a gardening business.
Morales, the only witness called by the defense other than appellant, testified that he owned the dental lab that employed appellant and paid him $10 an hour for assisting in the fabrication of denture implants. In May 2005, Morales and appellant *868 discussed the prospect of appellant starting his own dental technician business as an independent contractor, so he could also work for other labs and generate additional income. Morales loaned appellant $1,500 so he could purchase the necessary tools and obtain a license. On cross-examination, Morales contradicted Inspector Driscoll's testimony that he (Morales) had heard appellant might start a gardening business. He said he told Driscoll only that appellant did gardening work to make extra money.
Appellant denied telling Officer Voyvodich that the drugs found in the car were his and had been in the car for a couple of weeks. Appellant said he told Officer Voyvodich that he did not put the drugs where they were found, they were not his, he did not know they were there in the car, and he had no information about them. Appellant said he usually drove a Toyota station wagon, but sometimes used the Lexus, as did his mother, brother, sister and cousins, and during the three months immediately preceding his arrest he had not used the Lexus more than once. He admitted, however, that he had been stopped while driving the Lexus in April 2005, and on two occasions in December 2003, because the car did not have a front license plate. Appellant said that when Voyvodich began accusing him of owning the drugs, he told him that he now lived a respectable life and had "washed my hands completely of all bad stuff," admitting he had been convicted in 1991 of felony grand theft and in 1998 "of a felony involving a crime of moral turpitude."
Appellant testified that he wanted to go into business for himself as a dental technician and his uncle loaned him $1,500 for that purpose. He cashed the check in that amount his uncle had given him, and received fifteen $100 bills from the bank. He later spent $75 of that money. Appellant agreed to his brother's request to exchange some of his $100 bills for $1,100 in smaller denominations, primarily $20 bills. He put the money in his pocket rather than in a bank because he had previously been a victim of identity theft and was unable to open a bank account.
On the day he was arrested, appellant was planning to spend the weekend with his girlfriend in San Francisco. He asked his mother if he could use her Lexus because it was nicer than the station wagon he ordinarily used. He had not driven the Lexus for a month or two and knew it was often used by his mother's relatives. When asked, "[d]id you personally do anything to the inside of the Lexus to change or modify any aspect of the inside of it so that you could put drugs in there," appellant answered, "[n]o, my mother would kill me if I did anything like that." Appellant was familiar with the interior area around the sun roof, but never installed Velcro in that area, and had never used or even known there was a compartment behind the headliner. Appellant stated that he had never pulled a panel off the dashboard and was not even aware this could be done.
Appellant denied offering to give the police information about other drug dealers. On redirect, he stated that the idea of cooperating with the police by informing on drug dealers was not initiated by him but by the officers who interrogated him while he was in detention. He did not have any such information and refused their offer to let him "work off his case by becoming an informant. On rebuttal, Officer Voyvodich acknowledged that the idea of appellant "working off his case by informing on others was discussed with appellant. He could not recall whether the subject was brought up by appellant or by any of the police officers present, but appellant did indicate interest in cooperating with the police and Voyvodich referred *869 him to Detective Paul Starzyk. Starzyk testified that Officer Voyvodich asked him to talk to appellant about "working off a case and he did so in Voyvodich's presence. He said he never threatened appellant or any other accused person to persuade him to become an informer because such an informant would be unreliable and dangerous.
DISCUSSION
I.-III.[**]
IV. Health & Safety Code section 11366.8
Under count three of the indictment, appellant was charged with unlawfully possessing, using, and controlling a "false compartment" with the intent to conceal controlled substances therein in violation of section 11366.8, subdivision (a). Section 11366.8 provides in its entirety as follows:
"(a) Every person who possesses, uses, or controls a false compartment with the intent to store, conceal, smuggle, or transport a controlled substance within the false compartment shall be punished by imprisonment in a county jail for a term of imprisonment not to exceed one year or in the state prison.
"(b) Every person who designs, constructs, builds, alters, or fabricates a false compartment for, or installs or attaches a false compartment to, a vehicle with the intent to store, conceal, smuggle, or transport a controlled substance shall be punished by imprisonment in the state prison for 16 months or two or three years.
"(c) The term `vehicle' means any of the following vehicles without regard to whether the vehicles are private or commercial, including, but not limited to, cars, trucks, buses, aircraft, boats, ships, yachts, and vessels.
"(d) The term `false compartment' means any box, container, space, or enclosure that is intended for use or designed for use to conceal, hide, or otherwise prevent discovery of any controlled substance within or attached to a vehicle, including, but not limited to, any of the following:
"(1) False, altered, or modified fuel tanks.
"(2) Original factory equipment of a vehicle that is modified, altered, or changed.
"(3) Compartment, space, or box that is added to, or fabricated, made, or created from, existing compartments, spaces, or boxes within a vehicle."
With respect to the charged violation of subdivision (a) of the statute, the trial court instructed the jury, inter alia, that "[a] false compartment is a space in a vehicle that is neither designed nor intended for storage or transportation of personal items, but is, nevertheless, used to conceal controlled substances even without any modification of the physical configuration of the space." (Italics added.) Appellant claims the instruction, particularly the italicized portion, is legally erroneous and was highly prejudicial. The parties agree this instruction was based on the interpretation of the statutory definition of "false compartment" set forth in People v. Gonzalez (2004) 116 Cal.App.4th 1405, 11 Cal.Rptr.3d 434 (Gonzalez); appellant maintains that interpretation is erroneous and the People disagree. As the meaning of a statute is an issue of law, our review is de novo.
We commence our analysis by examining Gonzalez. The defendants in that case were brothers jointly tried and convicted *870 of various drug offenses and one of whom, Ruben, was separately convicted of possession of a "false compartment" in violation of section 11366.8. (Gonzalez, supra, 116 Cal.App.4th at p. 1408, 11 Cal.Rptr.3d 434.) The facts material to that offense related to the features of the 1990 Ford Thunderbird Ruben was entering when arrested. Ruben maintained "`the plain language of the statute requires a change to the "equipment" of the Thunderbird, not simply placing something in a pre-existing space.' He argues that without evidence 'the original factory equipment of the [automobile] had been "modified, altered, or changed,"` his conviction of a violation of section 11366.8 cannot stand." (Id at p. 1413, 11 Cal.Rptr.3d 434.) The court rejected this interpretation, finding "nothing in the language of section 11366.8 that requires a modification, fabrication or alteration of the `original factory equipment' of the vehicle, as Ruben asserts. Clearly, a `false compartment' is not a space or area in a vehicle that is intended and normally used as a container or storage area, such as a glove compartment, console or trunk. A `false compartment' is, however, a space in a vehicle that is neither designed nor intended for storage or transportation of personal items, but is nevertheless used to conceal controlled substances, even without and modification of the physical configuration of the space." (Id. at p. 1414, 11 Cal.Rptr.3d 434, italics added.) The court was unimpressed with Ruben's reliance on the fact that the three examples of a "false compartment" listed in subdivision (d) of section 11366.8 all refer to a modification, alteration, or change, such as a "[c]ompartment, space, or box that is added to, or fabricated, made, or created from, existing compartments, spaces, or boxes within a vehicle." (§ 11366.8, subd. (d)(3).) The court relied on the fact that "the statute specifies that a false compartment includes but it is not limited to those enumerated examples," and "[u]se of the language `including, but not limited to' in the statutory definition is a phrase of enlargement rather than limitation." (Gonzalez, at p. 1414, 11 Cal. Rptr.3d 434.) According to the court, "[t]he plain language of the statute does not demand evidence of a physical addition to the vehicle or modification of its structure to prove the element of a false compartment." (Ibid.)
We believe the Gonzalez court misread section 11366.8.
Preliminarily, it deserves noting that the expansive view of the statute adopted in Gonzalez was wholly unnecessary to sustain Ruben's conviction because there was ample evidence that the original factory equipment of the Thunderbird had been "modified, altered, or changed." (§ 11366.8, subd. (d)(2).) As the opinion explains, the prosecution presented expert testimony that the air conditioning vent of the car "had been `modified' to prevent drugs hidden inside it from falling to the front of the engine, and rags, papers or wrappers had been added to both secrete and mask the odor of any controlled substances. A toggle switch to `release an electric compartment' had been placed under the steering column, although it was not found to be connected to anything. According to further expert testimony, the Thunderbird had been equipped as a `load car' to clandestinely transport drugs and money." (Gonzalez, supra, 116 Cal. App.4th at pp. 1414-1415, 11 Cal.Rptr.3d 434.) We believe Gonzalez was correctly decided, but we also conclude the "more expansive definition of the term `false compartment' " (id. at p. 1414, 11 Cal.Rptr.3d 434) the court adopted is unjustified by the text of section 11366.8 and inconsistent with its discernible purpose.
*871 "Pursuant to established principles, our first task in construing a statute is to ascertain the intent of the Legislature so as to effectuate the purpose of the law. In determining such intent, a court must first look to the words of the statute themselves, giving to the language its usual, ordinary import and according significance, if possible, to every word, phrase and sentence in pursuance of the legislative purpose. A construction making some words surplusage is to be avoided. The words of the statute must be construed in context, keeping in mind the statutory purpose, and statutes or statutory sections relating to the same subject must be harmonized, both internally and with each other, to the extent possible. [Citations.]" (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1386-1387, 241 Cal.Rptr. 67, 743 P.2d 1323; People v. Kennedy (2001) 91 Cal.App.4th 288, 293, 110 Cal.Rptr.2d 203.) Where, as here, the statute is penal, the defendant is entitled to the benefit of every reasonable doubt as to the true interpretation of the words or the construction of the statutory language. (In re Tartar (1959) 52 Cal.2d 250, 256-257, 339 P.2d 553; 1 Witkin & Epstein, Cal.Criminal Law (3d ed.2000 & 2007 supp.) Introduction to Crimes, § 24, pp. 51-53, and cases there cited.) Though the rule of strict construction has no application to the Penal Code (Pen.Code, § 4), and an appellate court therefore need not "strain" to interpret a penal statute in a defendant's favor where it can fairly discern a contrary legislative purpose, "true ambiguities" in such a statute must be resolved in a defendant's favor. (People v. Avery (2002) 27 Cal.4th 49, 58, 115 Cal. Rptr.2d 403, 38 P.3d 1.) It is also settled that "if the terms of a statute are by a fair and reasonable interpretation capable of a meaning consistent with the requirements of the Constitution the statute will be given that meaning, rather than another in conflict with the Constitution. [Citation.]" (People v. Perrine (1975) 47 Cal.App.3d 252, 259, 120 Cal.Rptr. 640.)
Though the examples of a "false compartment" given in subdivisions (d)(1), (2) and (3) of section 11366.8 are in our view a significant legislative indication that a "false compartment" refers only to original factory equipment of a vehicle that has been modified, the most important portion of the provision is the primary definition of a "false compartment," which is "any box, container, space, or enclosure that is intended for use or designed for use to conceal, hide, or otherwise prevent discovery of any controlled substance within or attached to a vehicle." (§ 11366.8, subd. (d), italics added.) There is no evidence in this case nor any other reason to think that manufacturers of new vehicles include in their products spaces or enclosures "intended ... or designed" to be used to conceal or transport controlled substances. The space between the cushions of the back seat of a Chevrolet can undoubtedly be used to hide illegal drugs, but it would be absurd to think General Motors had this in mind when it configured the seating. If the "false compartment" to which section 11366.8 refers need not be shown to have been designed and fabricated by the defendant or someone else for the unlawful purpose of concealing a controlled substance, the statute would provide the basis for a separate felony offense in the majority of the many cases in which drugs not in plain view are found in a vehicle.[6]*872 Neither Gonzalez nor People v. Russell (2000) 81 Cal.App.4th 96, 96 Cal.Rptr.2d 568, the only other published opinion that bears upon the meaning of a "false compartment," applies the statute to an unmodified space designed by the original manufacturer of the vehicle,[7] and such application exceeds that contemplated by the standard jury instructions approved by the Judicial Council in 2006 after trial in this case.[8]
The only way to construe the statutory definition of a "false compartment" as including an unmodified standard component of a vehicle is to assume that the intent requirement of that definitioni.e., the requirement that the compartment have been "intended for use or designed for use to conceal, hide or otherwise prevent discovery of any controlled substance" (§ 11366.8, subd. (d))can be satisfied solely by the intent of the person who uses a space or enclosure to conceal a controlled substance if he or she was not also the designer or fabricator of the space or enclosure used. This assumption is problematical.
The proposition that the "expansive definition" of "false compartment" set forth in subdivision (d) of section 13366.8 includes a space "not intended for use as a container or storage area" by the designer or fabricator of the enclosed space is not just unsupported by anything in the text of section 13366.8, but creates ambiguity as to whether a "glove compartment, console or trunk," may be a "false compartment" even if modified or altered for the purpose of concealing a controlled substance, because all of those spaces in a vehicle are "intended for use as a container or storage area." Determining whether a compartment is "false" within the meaning of subdivision (d) of section 13366.8 by looking to the intent of the user of the compartment, and deeming it irrelevant whether the designer or fabricator of the compartment intended it to be used to conceal controlled substances, would render the statute so *873 commonly applicable that, as we have said, the Legislature would in that case almost certainly have made its intention clear; at the very least by adding such an illustration to those provided in subdivision (d) of section 11366.8. Where the use of a compartment is clearly not that contemplated by the designer or fabricator of the compartment, it seems to us far more reasonable to determine whether the compartment is "false" for purposes of section 13366.8 by looking to the intent of the designer or fabricator, not that of the user.
Though we do not believe the statutory definition of a "false compartment" can reasonably be read as including unmodified spaces or enclosures that are standard features of a new vehicle, the text is certainly not as clear as it could be. The residual ambiguity calls for an examination of the legislative history of the statute, to learn whether its purpose may aid in its interpretation. (See 1 Witkin & Epstein, Cal.Criminal Law, supra, Introduction to Crimes, § 29, pp. 58-59, and cases there cited).
The history of section 11366.8 makes clear that the definition of "false compartment" adopted in Gonzalez, supra, 116 Cal.App.4th 1405, 1414, 11 Cal.Rptr.3d 434, and the basis of the jury instruction challenged in this case, is incompatible with the purpose of the statute.
The Senate Judiciary Committee's analysis of the assembly bill that enacted section 11366.8which is among the materials we may consider to discern the legislative purpose (see, e.g., People v. Mills (1978) 81 Cal.App.3d 171, 176, 146 Cal.Rptr. 411 [report of Assembly Judiciary Committee])commences by noting that, according to the law enforcement agency sponsors of the measure, during the first three months of 1993 "approximately 100 vehicles were interdicted at the California-Mexico border utilizing a variety of fabricated or altered storage compartments or parts in vehicles. The sponsors contend that the proliferation of false compartments in the drug trade is due to an increase in the number of specialized auto shops which manufacture and install such compartments." (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 1760 (Cannella) (1993-1994 Reg. Sess.) as introduced June 29, 1993, p. 2; identical language is included in Sen. Rules Com., Off. of Sen. Floor Analyses, Rep. on Assem. Bill No. 1760 (1993-1994 Reg. Sess.) July 8, 1993, p. 2.) The bill's sponsors asserted that "under current law, an auto shop which builds and installs false compartments for the transportation of controlled substances may openly admit their purpose to law enforcement officers and feel secure in the fact that they have violated no law and can not be prosecuted unless they actually possess an illegal controlled substance." (Ibid.) The history of the bill also indicates "that persons who use secret compartments are major drug dealers and smugglers," as opposed to "casual drug users," and that the impact of the measure would therefore be "minimal" (Assem. Com. On Public Safety, Analysis of Assem. Bill No. 1760 (1993-1994 Reg. Sess.) Apr. 27, 1993, p. 2; see also Analysis of Assem. Bill No. 1760 by Youth & Adult Correctional Agency, Apr. 6, 1993, at pp. 1, 2 [indicating the bill is "directed toward persons higher on the distribution chain" and "addresses a rather specialized activity"]). This prediction would not be tenable if the measure genuinely embodied the expansive definition of a "false compartment" adopted in Gonzalez. Nothing in the history of the measure that enacted the statute indicates that the Legislature was concerned about the use of spaces or enclosures installed in new vehicles at the factory as standard equipment and never modified, *874 altered, or changed, or that the Legislature ever contemplated that the statute could be applied to such standard spaces or enclosures.
Based on the text of subdivision (d) of section 11366.8 and the purpose of the provision discernible from its legislative history, we conclude that the instruction that a space or enclosure in a vehicle can constitute a "false compartment" within the meaning of subdivision (a) of section 11366.8 "even without any modification of the physical configuration of the space" misinformed the jury and constituted error. The remaining question is whether the error was prejudicial.
The place in the Lexus in which the drugs were found was described by Officer Voyvodich. As earlier noted, after searching beneath the driver's seat he saw three baggies containing a white crystalline substance stuffed between the steering column and adjacent wiring behind the lower left part of the dashboard. Voyvodich was able to remove the dashboard paneling that obscured the baggies because it clipped in and out to facilitate access to electrical circuitry located in this part of the vehicle if it needed to be repaired or replaced. The district attorney never asked Officer Voyvodich whether he made any effort to determine whether this space, or any other part of the 1996 Lexus appellant was driving, was standard in that model Lexus or had been modified or altered in any way. Voyvodich addressed this issue only on cross-examination, when defense counsel asked him whether he had ever spoken with any Lexus dealer or Lexus mechanic to ascertain whether the area of the "headliner" in appellant's vehicle was standard in that model Lexus. Voyvodich answered "no," and agreed with counsel's statement that "you personally don't know whether that was a standard feature of this particular model, do you?" Nothing in his testimony suggests Voyvodich made any such inquiry with respect to the different place in the vehicle where the drugs were found. Officer Voyvodich's testimony constitutes the only evidence in the record before us that touches upon whether appellant's vehicle was in all respects a standard 1996 Lexus or had been modified in any way. The record is therefore bereft of any evidence contradicting appellant's vigorous denial that he made any change or modification of the Lexus. Though during her arguments to the jury the prosecutor repeatedly referred to the place where the drugs were found as the "hidden," "secret," or "false compartment," she too never suggested that any space or enclosure in the vehicle had been modified or altered in any way.
Given the prosecution's failure to make any showing or even claim that the space in which the drugs were found had been modified, the instruction telling the jury that such a space need not have been modified in order to constitute a "false compartment" was highly prejudicial. Moreover, entirely apart from the instructional error, appellant's conviction for using a "false compartment" cannot stand for the independent reason that the evidence is manifestly insufficient to sustain it.
DISPOSITION
The judgment is reversed insofar as it convicts appellant for violation of section 11366.8, subdivision (a). In all other respects, the judgment is affirmed. The four-year concurrent term imposed for violation of section 11366.8, subdivision (a), is stricken and the matter remanded to the trial court for preparation of an amended abstract of judgment.
LAMBDEN and RICHMAN, JJ., concur.
NOTES
[*] Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts I, II and III of the Discussion.
[1] All statutory references are to the Health and Safety Code unless otherwise indicated.
[2] The propriety of the stop and the search are not challenged.
[**] See footnote *, ante.
[6] We do not disagree with the view of the Gonzalez court that the three examples of the statute's application provided in subdivision (d) of section 11366.8 cannot limit its meaning, because the phrase "including, but not limited to" in that provision is a phrase of enlargement. (Gonzalez, supra, 116 Cal. App.4th at p. 1414, 11 Cal.Rptr.3d 434.) Nevertheless, a definition of "false compartment" that required no modification of original factory equipment would be so consequential that is difficult to think the Legislature would not have provided such an example if that was indeed its intention.
[7] People v. Russell, supra, 81 Cal.App.4th 96, 96 Cal.Rptr.2d 568 applied the statute to "a locked non-factory-manufactured compartment between the rear seat and trunk wall." (Id. at p. 101, 96 Cal.Rptr.2d 568.) The only other published opinion we know of that relates to section 11366.8 is People v. Duarte (2007) 147 Cal.App.4th 1231, 1234, 55 Cal. Rptr.3d 239, in which the defendant was driving a Chrysler Concorde containing a "hidden compartment" whose provenance was not at issue and is not further described.
[8] CALCRIM No. 2441 instructs the jury that "A false compartment is any box, container, space, or enclosure intended or designed to (conceal[,]/hide[,][or] [otherwise] prevent discovery of) any controlled substance within or attached to a vehicle. A false compartment may be ((a/an) (false/modified/altered fuel tank[,]/original factory equipment) of a vehicle that is (modified/altered/changed)[,]/[or] a compartment, space, or box that is added to, or made or created from, existing compartments, spaces, or boxes within a vehicle)."
The unduly equivocal statement that a false compartment "may be" a modification of original factory equipment apparently reflects the fact that, as acknowledged in the use notes to the instruction, People v. Gonzalez, supra, 116 Cal.App.4th 1405, 1414, 11 Cal. Rptr.3d 434, states that a false compartment does not require modification. It is notable that CALCRIM No. 2441 does not state that proposition; nor does it state or suggest that, as Gonzalez declares, "a `false compartment' is not a space or area in a vehicle that is intended and normally used as a container or storage area, such as a glove compartment, console or trunk." (Gonzalez, at p. 1414, 11 Cal.Rptr.3d 434.) The standard jury instructions previously in use in California, CALJIC, provided no instruction defining the meaning of a "false compartment" as the term is employed in section 11366.8.