I respectfully dissent.
Before 1993, Health and Safety Code section 11353.61 created an absolute “drug-free zone” around schools. The enhancement applied to offenses committed on or within 1,000 feet of a school, even if they occurred “in the bedroom of a private residence at a time when the nearby school was closed for summer vacation.” (People v. Jimenez (1995) 33 Cal.App.4th 54, 58 [39 Cal.Rptr.2d 12].) Then, in 1993, the Legislature amended the statute by expanding the list of applicable offenses, limiting the circumstances in which the enhancement applied, and excluding offenses committed in private areas and businesses where minors are not legally permitted to be.
These changes, as the court in People v. Jimenez, supra, 33 Cal.App.4th 54 later explained, were not made because the Legislature “suddenly became soft on crime or because it lost interest in ‘shielding . . . children from the evils of the drug trade.’ ” (Id. at p. 59.) Rather, the 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.”2 (Ibid., italics added.) The changes recognized that “drug transactions carried out in private or in places where minors are not lawfully present, such as bars, nightclubs and adult bookstores, do not expose minors to drug trafficking to the same degree as transactions carried out in places children are likely to congregate before, during and after school such as streets, sidewalks, and bus stops.” (Ibid., fn. omitted.)
Section 11353.6 now provides, among other things, that when school is closed, the enhancement applies to offenses committed on or off campus “any time when minors are using the facility where the offense occurs.” (§ 11353.6, subd. (b).) My colleagues and I disagree over the meaning of the quoted language.
Drawing inferences from related statutes, my colleagues conclude that “facility” refers only to school grounds. In their view, when school is closed—for example, in the mornings or evenings before and after classes, on weekends and holidays, or during the summer vacation, the statute protects minors in any nearby bus stop, fast-food restaurant, parking lot, or similar public place only if another minor happens to be on campus. If the *1404campus is empty or even completely locked up, then dealers need not fear additional punishment for selling drugs in nearby areas no matter how many children may be present.
I question whether the Legislature intended to make application of the enhancement depend on the coincidental presence of a child on campus, especially when the statute is designed to prevent exposure to drug trafficking when minors are going to and from school or simply congregating in the surrounding area. (See People v. Jimenez, supra, 33 Cal.App.4th at pp. 58, 60; People v. Williams (1992) 10 Cal.App.4th 1389, 1395 [13 Cal.Rptr.2d 379].)
As I explain more fully below, I read “facility” to mean school grounds or public areas within 1,000 feet of a school. Thus, when school is closed, the enhancement applies anytime a minor and dealer are in the same place. I believe this interpretation is more consistent with the legislative focus on preventing exposure and better serves the purpose of the statute.
Turning to section 11353.6,1 note that before the word “facility” is used, the statute lists the places where the underlying offense must occur: “upon the grounds of, or within 1,000 feet of, a public or private elementary, vocational, junior high, or high school.” (§ 11353.6, subd. (b).) In section 11353.6, subdivision (g), the Legislature specifically defines “[w]ithin 1,000 feet of a public or private elementary, vocational, junior high, or high school” to mean “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.”
After specifying that the offense must take place on school grounds or in public areas or businesses within 1,000 feet of school, the statute makes the enhancement applicable only if the offense occurs (1) during school hours or (2) “any time when minors are using the facility where the offense occurs.” (§ 11353.6, subd. (b), italics added.)
When used to denote a place or a thing, “facility” commonly means “something that promotes the ease of any action, operation, transaction, or course of conduct”; “something (as a hospital, machinery, plumbing) that is built, constructed, installed, or established to perform some particular function or to serve or facilitate some particular end.” (See Webster’s New Internat. Dict. (3d ed. 1981) pp. 812-813.) The word “facility” in the statute refers to something, and, given the breadth of the term, I conclude that it refers back to any of the previously specified places: school grounds, public areas, or businesses open to minors. My colleagues concede that this is a *1405“plausible” interpretation of “facility.” And, at oral argument, the Attorney General conceded that “facility” could reasonably refer to more than school grounds.
Furthermore, if the Legislature intended for “facility” to mean only one of the specified places—school grounds—it seems more likely it would have said “school grounds” instead of “facility.” However, because it used this different, broader word, I infer a legislative intent to encompass more than just school grounds. (Cf. Zavala v. Board of Trustees (1993) 16 Cal.App.4th 1755, 1762 [20 Cal.Rptr.2d 768] [use of different words in adjoining, contemporaneous subdivisions creates compelling inference the Legislature intended different meaning].)
This brings us to the phrase “where the offense occurs,” which modifies “facility.” Given my interpretation of “facility,” the statute reads, in effect, any time when minors are using the school grounds, the public area, or the business where the offense occurs. The plain meaning of this language is clear: For the enhancement to apply, a minor must be in or at the same place the dealer commits the offense, whether it be the school ground or a nearby public area or business.
The plain meaning of the language reflects and promotes the Legislature’s intent to prevent exposure to drug trafficking because it focuses on proximity between dealers and school children when school is closed. The Legislature could reasonably conclude that punishing such proximity is, in theory, an effective way to prevent exposure to drug trafficking after school. Moreover, in theory, it protects minors whenever they are in the same place where the drug trafficking is occurring. Thus, in my view, punishing proximity is a far more effective way to prevent exposure to off-campus drug trafficking than making the enhancement applicable only when a minor happens to be somewhere on campus.3
Furthermore, my interpretation of the language in question assumes the Legislature intended “where the offense occurs” to serve some meaningful purpose. My colleagues say it is little more than surplusage. However, in construing statutes, we generally try to give effect to all phrases and avoid interpretations that render the Legislature’s words meaningless. (See People v. Bryant (1992) 10 Cal.App.4th 1584, 1600 [13 Cal.Rptr.2d 601]; City of San Jose v. Superior Court (1993) 5 Cal.4th 47, 55 [19 Cal.Rptr.2d 73, 850 *1406P.2d 621]; Estate of MacDonald (1990) 51 Cal.3d 262, 270 [272 Cal.Rptr. 153, 794 P.2d 911].)
My colleagues quote excerpts from two Senate committee reports, whose authors appear to have equated the words “facility” or “facilities” with school grounds. My colleagues can then find no legislative effort “to define the word ‘facility’ to mean anything other than the facility identified in the preceding part of the sentence—that is, the school.” (Maj. opn., ante, at p. 1398.) As I point out above, however, the preceding part of the statutory sentence identifies more than one facility: school grounds, public areas, and businesses open to minors.
My colleagues also cite a number of related enhancement statutes. However, I find the statutes more supportive of my interpretation of section 11353.6.
Section 11353.1, subdivision (a)(1), and section 11380.1, subdivision (a)(1), identify numerous places where the offense must occur for the enhancement to apply: churches, synagogues, playgrounds, public and private youth centers, child day-care centers, and public swimming pools. But unlike section 11353.6, the statutes do not include public areas and businesses within 1,000 feet of these places. The statutes then make the enhancements applicable to offenses that occur “during hours in which the facility is open” or “any time when minors are using the facility . . . .” (Italics added.) The phrase “where the offense occurs” does not modify “facility.”
In these statutes, the word “facility” is not ambiguous. It can only refer back to one of the places listed. In this respect, they support my view that “facility” in section 11353.6 refers back to any one of specified places: school grounds or public places or businesses within 1,000 feet. These statutes further support my interpretation because they too focus on proximity and apply only if the dealer and minor are at the same church, playground, youth center, etc. Finally, these statutes do not need the modifying phrase “where the offense occurs” because there is no possible ambiguity concerning which facility the minors must be using when the offense occurs. One cannot reasonably read the statutes to apply to a drug sale in a synagogue when a minor is using a swimming pool someplace else.
Section 11353.1, subdivision (a)(2), and section 11380.1, subdivision (a)(2), are different from their respective subdivision (a)(1)’s discussed *1407above and essentially identical to section 11353.6: They all apply to transactions on school grounds or public places within 1,000 feet,4 and they all contain the phrase “where the offense occurs” to modify “facility.” Moreover, their use of “facility” is subject to the same ambiguity my colleagues and I recognize in section 11353.6. In all three statutes, the phrase “any time when minors are using the facility” could refer either to when minors are using either the school or to when they are using nearby public areas or businesses. The modifying phrase “where the offense occurs” resolves this ambiguity by saying the minor and dealer must be in the same place. Doing so maintains the legislative focus on proximity between dealers and schoolchildren.5
Given my analysis, I disagree with my colleagues’ conclusion that the trial court’s substitution of “when the offense occurs” for the statutory language “where the offense occurs” was harmless error. The error permitted the jury to find the enhancement allegation true under a factual theory that is legally untenable: commission of a drug sale on a facility that schoolchildren were not using at the time. Since we cannot tell the factual basis upon which the jury relied, the enhancement cannot stand. (See People v. Guiton (1993) 4 Cal.4th 1116, 1128-1129 [17 Cal.Rptr.2d 365, 847 P.2d 45].)
This is also true because if we assume that both of our interpretations are reasonable, defendant is entitled to benefit from the rule that we ordinarily resolve doubts and ambiguities concerning the meaning of a penal statute in favor of the defendant. (People v. Simon (1995) 9 Cal.4th 493, 517 [37 Cal.Rptr.2d 278, 886 P.2d 1271].) Moreover, my colleagues and I arrive at different interpretations, which, when applied to the facts of this case, lead to opposite conclusions concerning the applicability of the enhancement to defendant. Under these circumstances, I consider the statute too vague to have provided defendant with constitutionally adequate notice concerning the consequences of selling drugs near the school when it was closed. For this reason, I doubt my colleagues may properly apply their interpretation to defendant without violating his due process rights. (See People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1115 [60 Cal.Rptr.2d 277, 929 P.2d 596].)
In sum, my interpretation of the statute and that of my colleagues reflect two ways of protecting children from exposure to drug traffickers. I must *1408acknowledge that neither provides protection in all situations when school is closed. My colleagues’ interpretation fails to protect children who are in the public areas near school when there is no other child on campus. My interpretation fails to protect the children, who, as in this case, are in a school yard close to a dealer on a nearby sidewalk. These limitations, however, arise from the statutory language we have construed. In my view, “any time when minors are using the facility where the offense occurs” cannot reasonably be interpreted in a way that provides comprehensive protection. For this reason, I urge the Legislature to revisit section 11353.6 (and related statutes) and amend the statute so that it eliminates the deficiencies discussed above.
Appellant’s petition for review by the Supreme Court was denied July 15, 1998.
Further statutory references are to the Health and Safety Code.
As I read the statutory changes, the Legislature maintained the “drug-free zone” approach when school is open, for the enhancement applies to offenses committed in the defined areas regardless of whether any school children are around. However, the Legislature did change the approach when schools are closed, focusing on exposure.
It may also make it simpler to apply the enhancement. For example, when an offense occurs in a mini-market near a school, it would be easy to show that there was a minor in the store at the time, whereas more difficult to show there was a minor using the campus at that moment.
The statutory definition of “within 1,000 feet etc.” is the same in all three statutes. (§§ 11353.1, subd. (e)(5), 11353.6, subd. (g), 11380.1, subd. (e).)
Section 11353.5 is a hybrid, in that it does not apply to offenses that occur within 1,000 feet of specified places but does apply “any time when minors are using the facility where the offense occurs.” (Italics added.) In this statute, “where the offense occurs” does simply clarify the obvious: that the facility in use by the minor must be the one at which the offense occurs. However, even this statute supports my view that the dealer and minor must be in the same place when the offense occurs and thus is consistent with my view that the Legislature intended to protect school children by preventing proximity to drug dealers.