People v. Lopez

Filed 1/5/17 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B267494
(Super. Ct. No. KA109301)
Plaintiff and Respondent, (Los Angeles County)

v. ORDER MODIFYING
OPINION AND DENYING
JEFFREY R. LOPEZ, REHEARING
[NO CHANGE IN
Defendant and Appellant. JUDGMENT]

THE COURT:
It is ordered that the opinion filed herein on
December 7, 2016, and certified for publication, be modified as
follows:
The paragraph commencing at the bottom of page 12,
with “Whether Lopez’s 2003 convictions” and ending at the top of
page 13 with “years in prison” is modified to read as follows:

Whether Lopez’s 2003 convictions were based on
transporting controlled substances for personal use or
for sales cannot be definitively determined on this
record. In 2003, section 11379 proscribed
“transport[ing], import[ing] into this state, sell[ing],
furnish[ing], administer[ing], or giv[ing] away,”
controlled substances. (§ 11379, subd. (a).) We do
not know which conduct underlies Lopez’s prior
convictions, because he waived trial and admitted
them, subjecting himself to additional punishment
“pursuant to Health and Safety Code section
11370.2[, subdivision] (c).”

There is no change in the judgment.
Appellant’s petition for rehearing is denied.

2
Filed 12/7/16 (unmodifed version)
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B267494
(Super. Ct. No. KA109301)
Plaintiff and Respondent, (Los Angeles County)

v.

JEFFREY R. LOPEZ,

Defendant and Appellant.

Health and Safety Code section 113791 prohibits
transportation of a controlled substance. A violation of this
section requires proof that the transportation was for sale.
Here the trial court erred when it instructed the jury
with an earlier version of section 11379 that did not require proof
the transportation was for sale. But the error was harmless
because the jury found that appellant possessed the same
controlled substance for sale in his car after police stopped him
for a traffic violation.

1
All further undesignated statutory references are to the
Health and Safety Code, unless otherwise stated.
 Jeffrey Lopez appeals judgment after conviction by
jury of possession and transportation of a controlled substance.
(§§ 11378, 11379.)
The trial court sentenced Lopez to 15 years in state
prison, including two consecutive three-year terms for two prior
convictions of section 11379. (§ 11370.2.) Lopez contends the
trial court erred in failing to instruct the jury that the
transported controlled substance was for sale; and in imposing
the enhancements for prior section 11379 convictions, because his
prior convictions did not require proof of intent to sell.
(§ 11370.2.) We affirm.
BACKGROUND
A Los Angeles County Sheriff’s deputy stopped Lopez
after he drove into a gas station without signaling. Lopez had
$817 in his wallet, mostly in $100 denominations. In his car,
police found a duffel bag. Inside were methamphetamine, a
digital scale, and 25 empty two-inch plastic baggies. In the trunk
were four baggies of methamphetamine, packaged in one-eighth
ounce quantities, a common weight for sale on the street. Also in
the trunk was another scale and an eyeglasses case with magnets
glued to the bottom, a device commonly used to hide drugs for
transport.
Lopez said that the car, duffel bag, and
methamphetamine belonged to him. He told police, “I sell meth
because I am living on the street, and I have to make money.”
DISCUSSION
Instructional Error
Section 11379 provides that any person who
transports a controlled substance is guilty of a felony. (§ 11379,
subd. (a).) Prior to 2014, section 11379 did not require proof the

2
substance being transported was for sale; mere transportation of
a controlled substance was sufficient. Effective January 2014,
the Legislature amended section 11379 to provide that, “For
purposes of this section, ‘transports’ means to transport for sale.”
(Id., subd. (c).) But the jury instructions failed to include that
element in the transportation count. This was error.
The prosecution is required to prove every fact
necessary to establish a defendant’s guilt beyond a reasonable
doubt. (Sullivan v. Louisiana (1993) 508 U.S. 275, 277-278.) The
omission of a single element of an offense impermissibly relieves
the prosecution of this burden, and intrudes on the exclusive
province of the jury to decide the facts, in violation of the
defendant’s Sixth Amendment rights. (Id. at p. 277 [court may
not direct a verdict for the prosecution no matter how
overwhelming the evidence].)
The Harmless Error Standard
A jury instruction omitting an essential element from
the jury’s consideration requires reversal unless the error was
harmless beyond a reasonable doubt. (People v. Mil (2012) 53
Cal.4th 400, 410-411, 415 [instruction omitting an element of a
special circumstances allegation]; People v. Flood (1998) 18
Cal.4th 470, 502-503 [instruction that the People proved an
element of the charged offense].) Reversal is required unless the
prosecution can prove beyond a reasonable doubt that the error
did not impact the verdict. (Id. at pp. 504-506.) For example, the
error is harmless if the factual question posed by the omitted
instruction was resolved adversely to the defendant under other
properly given instructions. (Id. at p. 484; People v. Debouver
(2016) 1 Cal.App.5th 972, 982-983.)

3
 The trial court properly instructed the jury on the
possession for sale count (§ 11378), including the “for sale”
element. The jury concluded that Lopez possessed the
methamphetamine with intent to sell it. (People v. Ramos (2016)
244 Cal.App.4th 99, 105 (Ramos) [“for sale” in section 11378
defined as specific intent to sell or that someone else will sell it].)
The People contend that because the jury’s verdict on the charge
of possession for sale referred to the same controlled substance
charged in the transportation count, it must follow that any error
in omitting the “for sale” element is harmless.
Lopez disputes this contention. He argues instead
that the Legislature amended section 11379 to require proof that
the act of transporting the methamphetamine was done in order
to, and with the existing intent to, accomplish a sale. He cites
legislative history which he contends demonstrates this,
including expressed goals of eliminating “redundant convictions”
for both possession and transportation, and reducing the prison
population.
The Legislative History
Lopez relies heavily upon comments reflecting an
intent to statutorily abrogate the holding in People v. Rogers
(1971) 5 Cal.3d 129 (Rogers). In that case, a driver (Rogers) was
convicted of transporting drugs possessed by passengers in his
vehicle, but acquitted of possessing drugs himself. He claimed on
appeal the prosecution had to prove more than the mere presence
of drugs in his moving vehicle. Because transportation was listed
in the criminal statute alongside such acts as furnishing, selling
or distributing drugs, he argued that proof of an intent to engage
in trafficking activities was required. (Id. at pp. 134-135.) A

4
sharply divided court (4-3) ruled otherwise, holding that mere
transportation was sufficient under the language of the statute.
The Legislature abrogated Rogers in 2013 when it
amended section 11379 to add subdivision (c). (Stats. 2013, ch.
504, § 2 (AB 721).) It did so by defining transports as meaning
“transport for sale.” Lopez contends the amendment was
intended to limit criminal culpability to those situations in which
the act of transportation was intended to accomplish an active
sale, because this narrow interpretation is most consistent with
the other stated goals of prison population reduction and
elimination of duplicative convictions. The legislative history,
however, does not support his contention. Instead, it
demonstrates that the Legislature acted to distinguish drug
traffickers from drug users, and to apply harsher consequences to
traffickers.
Contrary to Lopez’s contentions, the Rogers dissent
did not argue that the statute required proof of an “active sale” at
the moment of transportation. Instead, the dissent focused on
the perceived injustice in elevating a lesser crime (possession) to
a greater crime with significantly enhanced penalties based
merely on the fact of movement. The example given was the
defendant “arrested while standing motionless on the sidewalk
and his companion arrested moments later while walking along
the same street.” (Rogers, supra, 5 Cal.3d at p. 146 (conc. & dis.
opn. of Mosk, J.).)
It was, in fact, this distinction that motivated the
Legislature to amend section 11379 to add subdivision (c). The
Author’s Statement includes the following statement: “‘AB 721
would clarify the Legislature’s intent to only apply felony drug
transportation charges to individuals involved in drug trafficking

5
or sales. Currently, an ambiguity in state law allows prosecutors
to charge users—who are not in any way involved in drug
trafficking—with TWO crimes for simply being in possession of
drugs. While current law makes it a felony for any person to
import, distribute or transport drugs, the term “transportation”
used in Health and Safety Code has been widely interpreted to
apply to ANY type of movement—even walking down the street—
and ANY amount of drugs, even if the evidence shows the drugs
are for personal use and there is no evidence that the person is
involved in drug trafficking. As a result, prosecutors are using
this wide interpretation to prosecute individuals who are in
possession of drugs for only personal use, and who are not in any
way involved in a drug trafficking enterprise.’” (Assem. Com. on
Public Safety, Analysis of Assem. Bill No. 721 (2013-2014 Reg.
Sess.) Apr. 16, 2013, p. 2, italics added.)
Nothing in the legislative history demonstrates an
intent to distinguish between defendants engaged in trafficking
activities generally and those engaged in “active sales” at the
precise moment of transportation. Instead, it evinces an intent to
distinguish mere users from traffickers. This is evident from the
author’s comments above, as well as the succinct argument in
support, which directly addresses Justice Mosk’s dissent in
Rogers: “AB 721 will correct the unwarranted interpretation that
punishes an individual much more harshly if he is arrested
walking down the street in possession of a small amount of illegal
drugs than an individual who is arrested with the exact same
quantity of drugs, but who is just sitting on a bench. AB 721 will
provide that an individual may be punished for ‘transporting’ an
illegal drug only if he or she is transporting that drug for
purposes of sale. AB 721 simply corrects the ‘unjust’ and ‘absurd’

6
result foreseen long ago by Justice Mosk, and provides that
similarly situated individuals should be treated similarly by the
law.”2
In summary, Lopez contends that “an interpretation
[of section 11379] that would permit a finding that [he] possessed
drugs ‘for sale’ to substitute for a finding that he transported
drugs with the specific intent of selling them would undo the very
object of the amendment.” We disagree for the reasons set forth
above. We also note that in amending the statute, the
Legislature contemplated that a person might be charged with
both possession and transportation as long as there is an intent
to sell. (Conc. in Sen. Amends. to Assem. Bill No. 721 (2013-2014
Reg. Sess.) Aug. 29, 2013, p. 2 [“This bill makes it expressly clear
that a person charged with [transportation] must be in possession
of drugs with the intent to sell”].)
People v. Ramos
This case is unlike Ramos, supra, 244 Cal.App.4th
99, in which the defendant was convicted of possession of
methamphetamine for sale and transportation of heroin, and the
trial court failed to instruct on the “for sale” element for the
transportation charge. The Court of Appeal reversed the
transportation of heroin conviction without relying on the jury’s
conviction for possession of methamphetamine for sale. Lopez
argues that the same result should follow here. But in Ramos
the jury found only that the defendant had the intent to sell the

2 This
argument was submitted by The California
Attorneys for Criminal Justice and was included in the analysis
by the Senate Committee on Public Safety of Assembly Bill No.
721 (2013-2014 Reg. Sess.) June 10, 2013, page 5.

7
methamphetamine. It did not consider whether she intended to
sell the heroin. Here, the jury found that Lopez intended to sell
the methamphetamine as part of the possession count.
Because the jury found that Lopez possessed the
same controlled substance at the same time for purposes of sale
under properly given instructions, there is no reversible error.
The Challenge to the Sentence Enhancements
Lopez contends the section 11370.2 enhancement
cannot be applied to his 2003 convictions because (1) they did not
require proof to a jury beyond a reasonable doubt that he
transported a controlled substance “for sale” (Apprendi v. New
Jersey (2000) 530 U.S. 466, 490 (Apprendi)); (2) the 2014
amendment is ameliorative so should be applied retroactively to
his prior convictions (In re Estrada (1965) 63 Cal.2d 740, 745
(Estrada)); and (3) section 11370.2 should be interpreted to refer
only to the amended version of section 11379 in order to
effectuate the Legislature’s intent. (People v. Van Buren (2001)
93 Cal.App.4th 875, 879 (Van Buren), overruled on other grounds
in People v. Mosby (2004) 33 Cal.4th 353, 365.) We disagree with
each of these contentions.
Lopez admitted he suffered the prior convictions. But
this does not preclude him from raising on appeal the legal
question whether the 2003 convictions fall within the class of
convictions for which section 11370.2 authorizes enhanced
punishment. (People v. Park (2013) 56 Cal.4th 782, 789, fn. 3
(Park).) In Park, defendant’s admission that he suffered a prior
serious felony conviction pursuant to Penal Code section 667,
subdivision (a) did not preclude his successful argument on
appeal that the prior conviction did not fall within the class of
convictions for which Penal Code section 667, subdivision (a)

8
authorized enhanced punishment because his prior felony
conviction was reduced to a misdemeanor before he committed
the present offense. (Ibid.)
Section 11370.2
The substance of section 11370.2 has changed little
since its enactment in 1985. It provides an additional
consecutive three-year term for “each prior felony conviction of”
enumerated drug offenses, including “11379.” (§ 11370.2, subd.
(c), added by Stats. 1985, ch. 1398, § 2.)3
Section 11379 provides (as it did in 1985) that one
who “transport[s], import[s] into this state, sell[s], furnish[es],
administer[s], or give[s] away,” a controlled substance is guilty of
a felony. (§ 11379, subd. (a), as amended by Stats. 1984,
ch. 1635, § 68.) Before 2014, “transports” included any
movement, whether or not for sale. (Rogers, supra, 5 Cal.3d at
pp. 135-136.) In 2014, when the Legislature defined “transports”
to mean “transport for sale,” there was no corresponding
amendment to 11370.2. Nor has section 11370.2 been modified
since. Lopez asks us to rewrite section 11370.2 now, to extend

3 Section 11370.2, subdivision (c) provides in full: “Any
person convicted of a violation of, or of a conspiracy to violate,
Section 11378 or 11379 with respect to any substance containing
a controlled substance specified in paragraph (1) or (2) of
subdivision (d) of Section 11055 shall receive, in addition to any
other punishment authorized by law, including Section 667.5 of
the Penal Code, a full, separate, and consecutive three-year term
for each prior felony conviction of, or for each prior felony
conviction of conspiracy to violate, Section 11351, 11351.5, 11352,
11378, 11378.5, 11379, 11379.5, 11379.6, 11380, 11380.5, or
11383, whether or not the prior conviction resulted in a term of
imprisonment.”

9
the Legislature’s reformative work on the substantive offense (§
11379) to the related enhancement (§ 11370.2). That may be a
logical legislative step, but it is beyond our role.
Neither Apprendi nor Estrada Assist Lopez
Lopez contends that Apprendi compels a reversal
here because the intent element was not proven to a jury. He
contends that Estrada provides for retroactive relief which must
be applied to his 2003 convictions. We disagree.
Apprendi does not apply to proof of “the fact of a prior
conviction.” (Apprendi, supra, 530 U.S. at p. 490.) Estrada
affords Lopez no relief because the judgment on his 2003
convictions were final before 2014. (Estrada, supra, 63 Cal.2d at
p. 745.)
Interpretation of Section 11370.2
The plain language of section 11370.2 applies to
Lopez’s prior convictions under any version of that statute. The
language plainly states that sentence enhancements “shall” be
added “for each prior felony conviction of . . . 11379.” (§ 11370.2,
subd. (c).) The changes to section 11379 are not retroactive to
prior convictions of that statute. “‘No part of [the Health and
Safety Code] is retroactive, unless expressly so declared.’ . . . ‘[I]n
the absence of an express retroactivity provision, a statute will
not be applied retroactively unless it is clear from extrinsic
sources that the Legislature . . . must have intended a retroactive
application.’ [Citations.]” (People v. Brown (2012) 54 Cal.4th
314, 319.)
Special rules of statutory interpretation exist to
incorporate subsequent amendments into a referring statute
(such as section 11370.2), but they do not assist Lopez.
Generally, if a statute adopts the provisions of another statute by

10
“specific” reference, those provisions are incorporated as they
existed at the time of the reference. (Palermo v. Stockton
Theatres, Inc. (1948) 32 Cal.2d 53, 58-59 (Palermo).) Conversely,
if the statute adopts another provision by “‘general’” reference “‘to
a system or body of laws or to the general law relating to the
subject in hand,’” then those provisions are incorporated as
subsequently modified. (Id. at p. 59, citations omitted.) The
words of section 11370.2 do not specify which version of 11379 it
incorporates. Either it “specifically” refers to section 11379
because it expressly designates it as “11379,” or it “generally”
refers to a list of controlled substances offenses, i.e., “a system or
body of laws” governing drug offenses. (Ibid.)
Where, as here, the words of the referring statutes do
not make clear whether it contemplates a “time-specific
incorporation,” the determining factor is legislative intent. (In re
Jovan B. (1993) 6 Cal.4th 801, 816.) We do not apply Palermo “in
a vacuum.” (People v. Pecci (1999) 72 Cal.App.4th 1500, 1505.)
No modern decision applies the Palermo rule without regard to
other indicia of legislative intent. (Van Buren, supra, 93
Cal.App.4th at p. 879.)
For example, in Van Buren, we interpreted Penal
Code section 2933.1’s limit on custody credits for those presently
convicted for “a felony offense listed in [Penal Code] section
667.5,” to incorporate subsequent amendments to Penal Code
section 667.5. Although Penal Code section 2933.1 specifically
designated “667.5,” legislative history demonstrated intent to
incorporate the evolving body of law on violent offenses. To
effectuate that intent, we read Penal Code section 2933.1 to refer
to a general body of law of which section 667.5 was a component,
and to “incorporate[] the contemporaneous version of [Penal

11
Code] section 667.5, subdivision (c), along with subsequent
amendments.” (Van Buren, supra, 93 Cal.App.4th at pp. 878-
879.)
The purpose of section 11370.2 is to increase
narcotics penalties to make California less attractive to “major
drug dealers.” (Assem. Com. on Public Safety, Rep. on Assem.
Bill No. 2320, (1985-1986 Reg. Sess.) Apr. 29, 1985, p. 3 [proposed
amendment].)4 It was enacted “to punish more severely those
persons who are in the regular business of trafficking in, or
production of, narcotics and those persons who deal in large
quantities of narcotics, as opposed to individuals who have a less
serious, occasional, or relatively minor role in the activity.”
(Stats. 1985, ch. 1398, § 1.)
Whether Lopez’s 2003 convictions were based on
transporting controlled substances for personal use or for sales
cannot be definitively determined on this record. In 2003, section
11379 proscribed “transport[ing], import[ing] into this state,
sell[ing], furnish[ing], administer[ing], or giv[ing] away,”
controlled substances. (§ 11379, subd. (a).) We do not know
which conduct underlies Lopez’s prior convictions, because he
waived trial and admitted them, subjecting himself to additional
punishment “pursuant to Health and Safety Code section
11370.2[, subdivision] (c).” But his attorney acknowledged “he

4 “This bill, labeled by the author as ‘The Dealer Statute’ is
designed to ‘combat the increasing problems of drug dealing in
California.’ It is modeled, in part, after federal law with the
intention that major drug dealers will no longer have incentive to
traffic in California where sentences are significantly lighter than
those meted out in federal court.” (Assem. Com. on Public Safety,
Rep. on Assem. Bill No. 2320, (1985-1986 Reg. Sess) Apr. 29,
1985, p. 3 [proposed amendment].)

12
has some drug sales priors,” in an oral motion to strike them.
And the court admonished Lopez for being “out there selling
narcotics again,” after serving 10 years in prison.
In any event, while we are unable to determine
whether the prior convictions would result in enhanced sentences
under the current versions of sections 11379 and 11370.2, we
cannot conclude that the Legislature intended to modify section
11370.2 when it amended section 11379. The legislative history
does not support this contention. We therefore reject Lopez’s
claim that the sentencing enhancements were not properly
applied.
DISPOSITION
The judgment is affirmed.
CERTIFIED FOR PUBLICATION.

TANGEMAN, J.
We concur:

GILBERT, P. J.

PERREN, J.

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 Juan C. Dominguez, Judge

Superior Court County of Los Angeles

______________________________

Mary Jo Strnad, under appointment by the Court of
Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A.
Engler, Chief Assistant Attorney General, Lance E. Winters,
Senior Assistant Attorney General, Paul M. Roadarmel, Jr. and
Steven D. Matthews, Supervising Deputy Attorneys General, and
David E. Madeo and Robert M. Snider, Deputy Attorneys
General, for Plaintiff and Respondent.