I concur in the judgment and in parts II through VI of the majority opinion.
I concur in the result reached in part I, dealing with the corpus delicti rule, but I respectfully disagree with the majority’s analysis. The majority reason that the corpus delicti rule requires independent evidence to establish every element of an offense, but transportation between noncontiguous counties is not an element of the offense.
My argument is the reverse: I think transportation between noncontiguous counties is an element of the offense defined by Health and Safety Code section 11379, subdivisions (a) and (b),1 but I do not think current California law requires independent proof of every element of a crime to satisfy the corpus delicti rule. Rather, I think it is sufficient for independent evidence to show that some crime was committed. In this case, I do not have to decide whether proof of a misdemeanor would suffice, because here the evidence showed commission of the crime of felony transportation of a controlled substance.
The first question is whether transportation between noncontiguous counties is an element of the offense of which defendant was convicted.
The majority argue that section 11379, subdivision (b), is merely a penalty provision, like an enhancement, to which the corpus delicti rule does not apply. In my view, and with respect, this is a wholly artificial distinction. Surely subdivision (b) of section 11379 contemplates that the prosecution must prove transportation between noncontiguous counties and that the jury must find this fact true. In this case, the jury was so instructed as follows:
“The defendant is charged in Count 3 with Transportation of Methamphetamine, a Controlled Substance, Between Noncontiguous Counties for Purposes of Sale.
“To prove that the defendant is guilty of this crime, the People must prove that:
“1. The defendant transported a controlled substance;
“2. The defendant knew of its presence;
*110“3. The defendant knew of the substance’s nature or character as a controlled substance;
“4. When the defendant transported the controlled substance, he intended to sell it;
“5. The defendant transported the controlled substance between noncontiguous counties;
“6. The controlled substance was Methamphetamine;
“AND
“7. The controlled substance was in a usable amount.” (Italics added.)
What sense does it make to say that “[t]he defendant knew of its presence” is an element of the offense but “[t]he defendant transported the controlled substance between noncontiguous counties” is not an element?
The prosecution must prove both.
The jury must find both.
So what sense does it make to say transportation between noncontiguous counties is not an element of the offense? In my view, none.
I would adopt the definition of “element of an offense” set out in section 1.13, subdivision (9), of the Model Penal Code as follows:
“(9) ‘element of an offense’ means (i) such conduct or (ii) such attendant circumstances or (iii) such a result of conduct as
“(a) is included in the description of the forbidden conduct in the definition of the offense; or
“(b) establishes the required kind of culpability, or
“(c) negatives an excuse or justification for such conduct; or
“(d) negatives a defense under the statute of limitations; or
*111“(e) establishes jurisdiction or venue.” (10A pt. 1, West’s U. Laws Ann. (2001) Model Pen. Code, § 1.13, subd. 9, p. 91, italics added.)
Proving that a controlled substance was transported between noncontiguous counties “establishes the required kind of culpability” (an increased sentence) and is therefore an element of the offense.
The majority say that the corpus delicti rule “requires proof of every element of the ‘body of the crime.’ ” I respectfully disagree.
Thus, most recently, our Supreme Court said in People v. Alvarez (2002) 27 Cal.4th 1161 [119 Cal.Rptr.2d 903, 46 P.3d 372], “The independent proof [required] may be circumstantial and need not be beyond a reasonable doubt, but is sufficient if it permits an inference of criminal conduct, even if a noncriminal explanation is also plausible. [Citations.] There is no requirement of independent evidence ‘of every physical act constituting an element of an offense,’ so long as there is some slight or prima facie showing of injury, loss, or harm by a criminal agency. [Citation.] In every case, once the necessary quantum of independent evidence is present, the defendant’s extrajudicial statements may then be considered for their full value to strengthen the case on all issues. [Citations.]” (Alvarez, supra, 27 Cal.4th at p. 1171, italics added.)
An examination of People v. Jones (1998) 17 Cal.4th 279 [70 Cal.Rptr.2d 793, 949 P.2d 890], relied on in Alvarez, makes clear that the People need not adduce evidence of every element of an offense in order to satisfy the corpus delicti rule. There, as pertinent, defendant contended the trial court had erred in denying his motion, brought pursuant to Penal Code section 995, to dismiss a charge of oral copulation, on the ground the corpus delicti of the crime had not been proved. (17 Cal.4th at p. 299.)
Our Supreme Court concluded the corpus delicti rule had been satisfied, reasoning as follows:
“As the facts are undisputed, in this case we are faced only with the legal question of whether there was sufficient evidence to establish the corpus delicti of oral copulation. Section 288a, subdivision (a), defines this crime as ‘the act of copulating the mouth of one person with the sexual organ or anus of another person.’
“Keeping in mind the low threshold of proof required to satisfy the corpus delicti rule, we conclude that the magistrate erred in finding this low *112threshold was not met by the evidence presented at the preliminary examination. The state of the victim’s clothing (no underwear or shoes) and the forensic evidence (semen in the victim’s vagina and on her external genitalia and anus) indicates multiple sexual acts occurred. That the victim was forcibly abducted, beaten, shot in the head, and left by the side of the road for dead gives rise to an inference that the sexual activity that occurred was against the victim’s will. This circumstantial evidence of multiple forcible sexual acts sufficiently establishes the requisite prima facie showing of both (i) an injury, loss or harm, and (ii) the involvement of a criminal agency.
“Defendant, however, contends that the prosecution failed to establish the corpus delicti of oral copulation because no semen was found in the victim’s mouth. In other words, he argues that the lack of evidence of the specific loss or harm to this victim is fatal to the establishment of the corpus delicti. The law’s requirements, however, are not so strict. Two previous cases involving application of the rule to a charged sexual assault are illustrative. In People v. Jennings [(1991)] 53 Cal.3d 334 [279 Cal.Rptr. 780, 807 P.2d 1009], the body of the victim, a known prostitute, was found in an irrigation canal in a rural area. She was unclothed, and although forensic examination detected she had suffered a broken jaw, the advanced decomposition of her body made determining whether she had been sexually assaulted impossible. More specifically, there was no independent evidence that the defendant ever sexually penetrated the victim. (See § 263 [‘Any sexual penetration, however, slight, is sufficient to complete the crime [of rape].’].)
“Despite the absence of any independent evidence of sexual penetration, we found that the trial court properly admitted evidence of the defendant’s extrajudicial statement that he had raped the victim before killing her. Although we characterized the independent evidence of rape as ‘ “thin” ’ (People v. Jennings, supra, 53 Cal.3d at p. 369), we nevertheless concluded that the unclothed condition of the victim’s body, its location when found and the evidence of a broken jaw, considered together, were sufficient to establish the corpus delicti of rape.
“People v. Robbins [(1988)] 45 Cal.3d 867 [248 Cal.Rptr. 172, 755 P.2d 355], is in accord. The evidence in Robbins showed that the victim, a six-year-old boy, was last seen riding on a motorcycle with an unknown blond man. The boy’s skeletal remains were found three months later. The victim’s neck had been broken and his body was found unclothed. The defendant had been diagnosed as a pedophile. Although the decomposed remains of the victim could not establish whether he had been sexually assaulted before his death, the defendant made an extrajudicial admission that *113he abducted the victim and sexually assaulted him before strangling him. We found the trial court properly admitted this confession over a corpus delicti objection. (Id. at pp. 885-886.) ‘In view of the nature of the offense and the circumstances of the case (i.e., the body was not discovered for some time, hence it was impossible to verify the sexual conduct by scientific evidence, and there were apparently no eyewitnesses to the crime) we do not believe the corpus delicti rule can be interpreted to call for more; the law does not require impossible showings.’ (Id. at p. 886.)
“People v. Jennings, supra, 53 Cal.3d 334, and People v. Robbins, supra, 45 Cal.3d 867, require a similar result in the instant case. In all three cases, the victim’s body was found unclothed (or partially clothed) in a location and condition suggesting the involvement of a criminal agency. In all three cases, independent evidence of a certain element of a sexual crime was lacking: penetration necessary for rape in Jennings, a touching of a child with lewd intent in Robbins, oral-genital or oral-anal contact in this case. As Jennings and Robbins demonstrate, we have never interpreted the corpus delicti rule so strictly that independent evidence of every physical act constituting an element of an offense is necessary. Instead, there need only be independent evidence establishing a slight or prima facie showing of some injury, loss or harm, and that a criminal agency was involved.” (People v. Jones, supra, 17 Cal.4th at pp. 302-303, italics added.)
Here, even though transportation from one county to a noncontiguous county was an element of the offense, the People did not have to prove it by independent evidence, just as they did not have to prove single elements in the cases collected in People v. Jones, supra, 17 Cal.4th at pages 302-303. Rather, the People’s burden was to make “some slight or prima facie showing of injury, loss, or harm by a criminal agency.” (Alvarez, supra, 27 Cal.4th at p. 1171.) The People made this showing by adducing evidence, apart from any statements of defendant, that a quantity of methamphetamine, sufficient for sale, was found near defendant’s car, several feet from where he had been seen walking, shortly after he was stopped. This prima facie showing of defendant’s felony violation of section 11379, subdivision (a) (transportation of a controlled substance), was sufficient to satisfy the corpus delicti rule with respect to a violation of section 11379, subdivision (b). Defendant’s contention to the contrary is not meritorious.
*114In the circumstances of this case, the trial court did not err in instructing as it did on the corpus delicti rule.
Appellant’s petition for review by the Supreme Court was denied June 25, 2008, S163388. George, C. J., and Corrigan, J., did not participate therein. Kennard, J., was of the opinion that the petition should be granted.
References to section 11379 are to this statute.