Return to CALJIC Part 14-17 – Contents
F 17.21 n1 HS 11379.8 Enhancements: Ex Post Facto Limitation To Escobar’s Definition Of GBI.
As noted in the 1993 CALJIC comments to these instructions, in People v. Escobar (92) 3 C4th 740, 752 [12 CR2d 586], the California Supreme Court overruled its previous decision in People v. Caudillo (78) 21 C3d 562, 580-83 [146 CR 859], defining “great bodily injury.” The Supreme Court abandoned Caudillo insistence upon proof of injuries “severe or protracted in nature” and held that injuries need not fit into one of the specific categories listed in Caudillo to satisfy the enhancement statute.
In Escobar itself the Supreme Court acknowledged the potential ex post facto problems raised by its expansion of the enhancement, but found that the injuries there were sufficient to constitute “great bodily injury” even under the Caudillo test. (Escobar 3 C4th at 752.) Though the Escobar opinion did not squarely resolve the ex post facto issue, the Supreme Court’s subsequent decision in People v. King (93) 5 C4th 59, 79-81 [19 CR2d 233], appears dispositive of the matter. In King the court recognized that retroactive application of its overruling of Culbreth (In re Culbreth (76) 17 C3d 330, 332-35 [130 CR 719]) would offend the ex post facto clause, since (notwithstanding some appellate decisions questioning its wisdom) Culbreth was clearly the law at the time of King’s crime. That analysis applies equally to Escobar’s overruling of Caudillo: Though the Caudillo opinion was controversial, it was settled California law until the California Supreme Court declared otherwise in Escobar. Accordingly, under the ex post facto analysis of King, great bodily injury enhancements must continue to meet the more restrictive test of Caudillo for any offense committed prior to the date of finality of the Escobar opinion (Nov. 21, 1992).
F 17.21 n2 Quantity Enhancements: Includes Cutting Agent (HS 11370.4).
In People v. Pieters (91) 52 C3d 894, 903 [276 CR 918], the Supreme Court concluded that enhancements under HS 11370.4 are triggered by the weight of a mixture containing the drug plus any cutting agent and not merely by the weight of the pure drug itself. However, the court noted that quantity enhancements should not apply to a situation where the package containing the drug is a “distinct entity.”
Further, because the substance in Pieters contained 83% cocaine, there was no claim that the substance was so diluted that it was incapable of producing a narcotic effect. The Supreme Court declined to decide whether the enhancements under HS 11370.4 would apply when, for example, mere traces of cocaine are found in an otherwise weighty substance.
NOTE: Formerly CJ 17.22.1. Renumbered CJ 17.21 in the 6th Edition (1997).
F 17.21 n3 Quantity Enhancement: Use of Waste Material in Calculating Quantity (HS 11370.4).
There is a split in federal authority over whether the weight of waste products that are the by-product of a drug manufacturing process and contain a detectable amount of controlled substance should be used for quantity enhancement under the sentencing guidelines. These cases are discussed in the dissent of Justice White and Justice Blackmun from the denial of certiorari in Walker v. U.S. (92-5184) and Guerra v. U.S. (92-5188); however, Neal v. U.S. (96) 516 US 284 [133 LEd2d 709; 116 SCt 763] held that for LSD, the weight of both the LSD and the blotter paper containing it may be used. (See also U.S. v. Turner (95) 59 F3d 481, 489 fn 9.) However, the conflict has since been resolved by a statute which provides that the calculation of weight for quantity enhancement purposes “does not include material that must be separated from the controlled substance before the controlled substance can be used.” (Turner, 59 F3d at 490.)
U.S. v. Richards (10th Cir. 1995) 67 F3d 1531, held that waste water from the process of manufacturing methamphetamine is not a “mixture or substance” containing the drug for purposes of quantity sentencing enhancement.
However, Neal v. U.S. (96) 516 US 284 [133 LEd2d 709; 116 SCt 763] held that for LSD the weight of both the LSD and the blotter paper containing it may be used.
NOTE: Formerly CJ 17.22.1. Renumbered CJ 17.21 in the 6th Edition (1997).
F 17.21 n4 Quantity Enhancement: Weight Must Be Based Upon Presently Existing Drug (HS 11370.4).
HS 11370.4 is only applicable where the presently existing controlled substance exceeds the statutory weight limit. Therefore, the statute is not applicable to larger quantities of precursor chemicals. Nor is it applicable to a plan or conspiracy to produce or traffic in significant quantities. (People v. Lopez (93) 20 CA4th 897, 903 [24 CR2d 649]; see also, Valenzuela v. Superior Court (95) 33 CA4th 1445, 1453 [39 CR2d 781] [enhancement per HS 11370.4 not applicable to offers to sell a large amount of cocaine where there was no evidence the cocaine existed; legislature intended the enhancement to apply to the amount of the drug in existence or the amount of the drug seized]; see also People v. Estrada (95) 39 CA4th 1235, 1239 [46 CR2d 385]; but see People v. Hard (2003) 112 CA4th 272 held that the HS 11379.8 volume enhancement applies to any substance containing methamphetamine which is produced, used, or to be used in the process of manufacturing methamphetamine. Compare FORECITE F 12.09.1 n5 [Whether Mere Possession Of Manufacturing Equipment and Chemicals Is Sufficient To Prove Drug Manufacturing (HS 11379.6)].)
NOTE: Formerly CJ 17.22.1. Renumbered CJ 17.21 in the 6th Edition (1997).
F 17.21 n5 Drug Quantity Enhancement: Individually Packaged Drugs Must Be Separately Tested (HS 11370.4).
When the defendant is arrested for possession of multiple units of individually packaged drugs, random testing of some of the packages is insufficient to establish beyond a reasonable doubt that all the packets contain the same substance. In such a case, any increased criminal liability based upon quantity must be limited only to those packages actually tested. (See State v. Robinson (Minn. (94) 517 NW2d 336, 339.) However, People v. Peneda (95) 32 CA4th 1022 [38 CR2d 312] held that the quantity enhancement may be proven by sampling part of the drugs seized and using a table developed by the DEA to determine if the entire amount contains the requisite weight.
NOTE: Formerly CJ 17.22.1. Renumbered CJ 17.21 in the 6th Edition (1997).
F 17.21 n6 Drug Quantity Enhancement: Actual Possession Not Necessary For Conspiracy To Purchase.
The defendant need not actually possess the prescribed quantity of drugs to be liable for the drug quantity enhancement under HS 11370.4. The enhancement may be imposed if substantial evidence is presented that, under the circumstances, the defendant conspired to possess the requisite quantity. (People v. Howard (95) 33 CA4th 1407, 1415-17 [39 CR2d 766].)
NOTE: Formerly CJ 17.22.1. Renumbered CJ 17.21 in the 6th Edition (1997).
F 17.21 n7 Improper To Refer To The Prosecution as “The People.”
Reference to the prosecution as “The People” may implicate the defendant’s state and federal constitutional rights to due process and fair trial by jury. (See FORECITE F 0.50d.) Any reference to “The People” should be changed to “The Prosecution.”
F 17.21 n8 Quantity Enhancement: Error To Aggregate Weights Of Cocaine And Cocaine Base (HS 11370.4(a)(1)).
See FORECITE F 17.21f.
F 17.21 n9 Quantity Enhancement (HS 11379.8): “Substantial Involvement” Requirement Applies To The Conspiracy Itself, Not The Underlying Offenses.
See People v. Duran (2001) 94 CA4th 923 [114 CR2d 595].
F 17.21a
Quantity Enhancement: Mixing Agent
Must “Facilitate Distribution” Of The Drug
*Add the following to CJ 17.21 when appropriate:
When the substance contains a non-drug mixing agent as well as the specified drug you may include the weight of the mixing agent in computing the quantities involved provided that the mixing agent was used to facilitate distribution of the specified drug. Unusable waste material should not be used in calculating the quantities involved.
Points and Authorities
For sentencing purposes the federal courts have had occasion to consider issues relating to quantities of drug mixtures. See U.S. v. Robins (9th Cir. 1992) 967 F2d 1387, 1389-90, discussing several such cases. According to Robins a mixing agent should only be computed in the overall weight if it was used to facilitate distribution of the drug. Hence, cornmeal added to cocaine to trick a purchaser should not be added to the weight calculation. (Robins 967 F2d at 1391; see also, United States v. Rolande-Gabriel (11th Cir. 1991) 938 F2d 1231, 1237 [unusable waste material should not be used in calculating sentence because it did not facilitate the use, marketing or access of the drug].)
A sentencing enhancement which increases the range of punishment to which the defendant is exposed is subject to the due process (5th and 14th Amendments) and fair trial by jury (6th and 14th Amendments) provisions of the federal constitution. (See Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348]; Jones v. U.S. (99) 526 US 227 [143 LEd2d 311; 119 SCt 1215]; Blakely v. Washington (2004) 542 US 296 [159 LEd2d 403; 124 SCt 2531]; see also FORECITE PG VII(C)(32).)
NOTE: Formerly CJ 17.22.1. Renumbered in the 6th Edition (1997).
F 17.21b
Quantity Enhancement: Conspiracy —
Finding of “Substantial Involvement” Required
SUBSEQUENT HISTORY: CJ Instruction Modified To Comport With FORECITE. CALJIC’s Sixth Edition adopted FORECITE’s position regarding the requirement of substantial involvement.
*In a conspiracy prosecution add the following to CJ 17.21:
In addition to the quantity of contraband you must also find that the defendant was substantially involved in the planning, direction, execution, or financing of the underlying offense.
Points and Authorities
HS 11370.4 was modified effective January 1, 1990 to require a special finding of substantial involvement in order to apply the quantity enhancement to a defendant convicted of conspiracy. Hence, in a conspiracy conviction in which a quantity enhancement is alleged, the “substantial involvement” element should be added to CJ 17.21. (See People v. Garcia (92) 3 CA4th 582, 585-86 [4 CR2d 539].) Additionally, the verdict forms pertaining to the enhancement should likewise require a finding by the jury of the defendant’s “substantial involvement.” (Ibid.)
A sentencing enhancement which increases the range of punishment to which the defendant is exposed is subject to the due process (5th and 14th Amendments) and fair trial by jury (6th and 14th Amendments) provisions of the federal constitution. (See Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348]; Jones v. U.S. (99) 526 US 227 [143 LEd2d 311; 119 SCt 1215]; Blakely v. Washington (2004) 542 US 296 [159 LEd2d 403; 124 SCt 2531]; see also FORECITE PG VII(C)(32).)
NOTES
Substantial Involvement As To Substantive Drug Offense. In People v. Salcedo (94) 30 CA4th 209, 215 [35 CR2d 539], the court held that the “substantial involvement” requirement of HS 11370.4 does not apply when the defendant is convicted of a substantive possession charge premised upon his or her involvement as a conspirator. A decision to the contrary was depublished. (See People v. Chacon DEPUBLISHED (94) 22 CA4th 1515, 1520 [28 CR2d 177].) A copy of the Chacon opinion is available to FORECITE subscribers. Ask for Opinion Bank #O-181.)
Requirement Of Special Verdict Form. People v. Chevalier (97) 60 CA4th 507, 515-16 [70 CR2d 482] disagreed with People v. Garcia (92) 3 CA4th 582, 586 [4 CR2d 539] and concluded that no special verdict form need be given to the jury to require an express finding of defendant’s substantial involvement in the conspiracy. (But see dissent which contends that Garcia reasonably interpreted the statute and that the legislature has acquiesced in that interpretation].)
NOTE: Formerly CJ 17.22.1. Renumbered in the 6th Edition (1997).
F 17.21c
Quantity Enhancement: Knowledge Requirement
*Add to CJ 17.21:
In order to find this enhancement true the prosecution must prove beyond a reasonable doubt that the defendant had knowledge of the required [weight] [and] [amount] of the substance.
Points and Authorities
It is well established that knowledge of both the presence and nature of the controlled substance are requisite elements of a drug charge. (See CJ 12.00.) Knowledge of the quantity or weight of the substance should be a requirement of the quantity enhancement under HS 11370.4 for two reasons. First, unless a mens rea element is associated with the weight of the drug, the enhancement would in essence be imposed as a matter of strict liability.
Second, the legislature’s purpose in enacting HS 11370.4 was “‘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 this activity.’ (Stats. 1985,ch. 1398, section 1, p. 4948.)” (People v. Pieters (91) 52 C3d 894, 898 [276 CR2d 918]; see also, People v. Estrada (95) 39 CA4th 1235, 1239 [46 CR2d 385].) It does not further this purpose to impose a quantity enhancement upon a person unless that person had actual knowledge of the quantity involved. Thus, the individual must be aware of the level of possession to justify the corresponding level of punishment. (See People v. Ryan (93) 626 N.E.2d 51 [82 NY2d 497]; People v. Sanchez (95) 652 NE2d 925 [86 NY2d 27] [when quantity is close to the threshold requirement defendant’s knowledge of the weight cannot be presumed but must be proven by factors such as the type of packaging]; but see People v. Meza (95) 38 CA4th 1741 [45 CR2d 844] [the defendant does not need to have knowledge of the quantity of drugs involved in order to be given the 15 year enhancement pursuant to HS 11370.4(a)(4)].)
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
NOTE: Formerly CJ 17.22.1. Renumbered in the 6th Edition (1997).
F 17.21d
Finding For Health & Safety Code Section 11370.4
Sentence Enhancements
*Re: CJ 17.21: *Former CJ 17.22.1 (deleted in the 6th Edition):
It is alleged [in Count ____] that at the time of the commission of the crime of which the defendant is accused, [he] [she] ____ a substance containing ____ which exceeded [three pounds by weight] [or] [nine gallons by liquid volume] [ten pounds by weight] [or] [thirty-three and one-third gallons by liquid volume] [twenty-five pounds by weight] [or] [sixty-two and one-half gallons by liquid volume] [or] [one hundred pounds by weight].
If you find the defendant guilty of the crime charged [in count ____], you must determine whether this allegation is true.
[In computing the quantities involved, plant or vegetable matter seized shall not be included.]
[If you find the defendant guilty of the crime of conspiracy to commit ____ involving a substance containing ____ which exceeds ____, an essential element of this allegation is that the defendant ____ was substantially involved in the planning, direction, execution, or financing of the conspiracy and its objective.]
The People have the burden of proving the truth of this allegation [and each of its elements]. If you have a reasonable doubt that it is true, you must find it to be not true.
You will include a special finding on that question in your verdict, using a form that will be supplied for that purpose.
NOTE: CJ 17.22.1 was deleted by the CALJIC Committee in the 6th Edition (1997).
Original CJ Use Notes
(5th Edition:) Fill in the first blank with “possessed for sale,” “sold,” etc. whichever is alleged in the information and the second blank with the particular substance charged.
(5th Edition Pocket Part:) The fourth paragraph and the bracketed phrase “and each of its elements” is designed for use when the defendant is accused of conspiracy. Delete these matters when there is no such accusation.
Original CJ Comments
(5th Edition:) HS 11370.4.
(5th Edition Pocket Part:) The word substance, as used in the enhancement statute (HS 11379.8(a)(3)) does not mean a pure controlled substance. It means a substance containing a controlled substance. (People v. Burgio (93) 16 CA4th 769, 774 [20 CR2d 397].) (The language of HS 11379.8(a)(3) is substantially the same as utilized in HS 11370.4.)
F 17.21e
Quantity Enhancement: Definition Of Mixture
*Add to CJ 17.21 when appropriate:
A “mixture” is defined to include a portion of matter consisting of two or more components that do not bear a fixed proportion to one another and that however thoroughly commingled are regarded as retaining a separate existence. A “mixture” may also consist of two substances blended together so that the particles of one are defused among the particles of the other.
Points and Authorities
Chapman v. U.S. (91) 500 US 453, 462 [114 LEd2d 524; 111 SCt 1919], suggested the above definition of mixture for purposes of drug quantity sentencing under federal law.
F 17.21f
Quantity Enhancement:
No Aggregation Of Different Controlled Substances
(HS 11370.4(a)(1))
*Add to CJ 17.21:
For purposes of deciding the quantity enhancement you must find beyond a reasonable doubt that the amount of ______________ (name of alleged controlled substance) weighed ____________ grams or more. You may not consider the weight of the ______________ (name of non-alleged controlled substance) in making this determination.
Points and Authorities
The Legislature has specified that its purpose in enacting Health and Safety Code section 11370.4 was “`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 this activity.’ (Stats. 1985, ch. 1398, § 1, p. 4948.)” (People v. Pieters (91) 52 C3d 894, 898 [276 CR 918].)
The quantity enhancement applies where the defendant has been convicted of “a violation of, or of conspiracy to violate, Section 11351, 11351.5, or 11352 with respect to a substance containing heroin, cocaine base as specified in paragraph (1) of subdivision (f) of Section 11054, or cocaine as specified in paragraph (6) of subdivision (b) of Section 11055 . . . .” (HS 11370.4(a)). The statute thus lists the qualifying violations and the qualifying substances in the disjunctive. The violation must involve “a substance containing heroin, cocaine base . . ., or cocaine . . . .”
Read literally, the quantity enhancement applies to “a violation” of the specified statutes with respect to “a substance” containing heroin, cocaine base, or cocaine, which weighs over one kilogram. “The term ‘substance’ refers to one of these enumerated drugs . . . .” (People v. Lopez (93) 20 CA4th 897, 902 [24 CR2d 649], emphasis added.) Under a common-sense interpretation of this language, the quantity enhancement applies where one of the qualifying substances weighs over a kilogram. Nothing in the statutory language indicates that multiple substances charged as different violations may be aggregated.
F 17.21g
Quantity Enhancement (HS 11379.8(e)):
Deletion Of Words “Planning” And “Execution”
*Modify CJ 17.21, paragraph 4, to provide as follows deleted language is between << >>:
[If you find the defendant guilty of the crime of conspiracy to commit ________ involving a substance containing _________ which exceeds ________, an essential element of this allegation is that the defendant ________ was substantially involved in the <<planning,>> direction, <<execution,>> or financing of the conspiracy and its objective.]
Points and Authorities
CJ 17.21 does not track the wording of HS 11379.8(e). The CALJIC instruction allows for imposition of the quantity enhancement if the defendant was involved in the “planning” or “execution” of the conspiracy. These words do not appear in the statute which refers only to “the direction or supervision of, or in a significant portion of the financing of” the underlying offense. Even though the words “planning” and “execution” appear in different statutes (see, e.g., HS 11370.2(e); HS 11370.4(a)), it was improper for the CALJIC instruction to attempt to correct a perceived legislative error by adding the terms to CJ 17.21. (People v. Duran (2001) 94 CA4th 923 [114 CR2d 595].) If the legislature intended to include the words “planning” and “execution” in HS 11379.8, it is up to the legislature and not CALJIC to correct this drafting error. (Id. at 941.)
