Opinion
E066776
11-30-2017
THE PEOPLE, Plaintiff and Respondent, v. EDWARD LEMARR JEWELL WILLIAMS, Defendant and Appellant.
Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Barry Carlton and Adrianne S. Denault, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. BLF1600038) OPINION APPEAL from the Superior Court of Riverside County. Michael B. Donner, Judge. Affirmed. Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Barry Carlton and Adrianne S. Denault, Deputy Attorneys General, for Plaintiff and Respondent.
Based on evidence that defendant Edward Lemarr Jewell Williams drove from Arizona to California with less than an ounce of marijuana, a jury found him guilty of (among other things) "import[ing]" marijuana, in violation of Health and Safety Code section 11360, subdivision (a) (section 11360(a)).
Defendant contends that "import," as used in section 11360(a), means to bring in across a national border, not merely a state border. As a fallback argument, he contends that it means that the marijuana must have originated outside California — i.e., that taking marijuana from California into Arizona and then back into California again would not constitute "import[ing]" marijuana.
We disagree. Applying standard principles of statutory construction, we conclude that, if you bring marijuana into California, you are "import[ing]" marijuana, no matter where you may be coming from and no matter where the marijuana ultimately may have come from. Accordingly, we will affirm.
I
FACTUAL BACKGROUND
On March 5, 2015, a police officer stopped a car that was going west through Blythe on the I-10 freeway. Defendant was the driver; he had a passenger named Robert Browning.
Defendant was carrying a loaded handgun. There was a second loaded handgun between the driver's seat and the center console. It was stipulated that defendant had a prior felony conviction.
In a backpack in the trunk, there was a ziplock bag containing about 21 grams of marijuana. "[A] large amount of pills" (the nature of which was not further specified at trial) and paperwork in defendant's name were also in the backpack.
Text messages on defendant's phone — e.g., a message from him saying, "I'ma give you 5 grams" — indicated that he was dealing drugs. Text messages on Browning's phone — e.g., a message to him saying, "Hey, bro, can you come through with a gram?" — likewise indicated that he was dealing drugs. One text message that Browning sent on the day same day as the traffic stop said, "We already passed Buckeye City," which is in Arizona.
II
PROCEDURAL BACKGROUND
After a jury trial, defendant was found guilty of possession of a firearm by a person with a felony conviction (Pen. Code, § 29800, subd. (a)(1)) and importation of marijuana (Health & Saf. Code, § 11360, subd. (a)). He was found not guilty of possession of marijuana for sale (Health & Saf. Code, § 11359, subd. (a)), but guilty of simple possession of less than 28.5 grams of marijuana (Health & Saf. Code, § 11357, former subd. (b), Prop. 47, § 12) as a lesser included offense. He admitted one prior prison term enhancement. (Pen. Code, § 667.5, subd. (b).)
Defendant was sentenced to three years in prison, calculated as follows:
Importation of marijuana, which the trial court selected as the principal term: Two years, the low term.
Firearm possession: Two years, the midterm, to be served concurrently.
Simple possession of marijuana: A $10 fine.
Prior prison term enhancement: One year, to be served consecutively.
IV
THE MEANING OF "IMPORT"
Defendant contends that there was insufficient evidence that he imported marijuana. His primary argument is that "import" means "move[] over an international border." His fallback argument is that "import" implies that the marijuana must have originated outside California.
Section 11360 (a) can be violated in multiple alternative ways — i.e., by "transport[ing], import[ing] into this state, sell[ing], furnish[ing], administer[ing], or giv[ing] away, or offer[ing] to transport, import into this state, sell, furnish, administer, or give away, or attempt[ing] to import into this state or transport" marijuana. (See also Health & Saf. Code, § 11018.)
The prosecution, however, chose to proceed exclusively on the theory that defendant imported marijuana. Hence, the jury was instructed that he was charged with "importing into this state or attempt[ing] to import into this state marijuana . . . ." It was further instructed that this crime required proof that, among other things, he "imported [marijuana] into California." The verdict forms required the jury to find him either guilty or not guilty of "import[ing] marijuana."
"'"'As in any case involving statutory interpretation, our fundamental task here is to determine the Legislature's intent so as to effectuate the law's purpose. [Citation.] We begin by examining the statute's words, giving them a plain and commonsense meaning.'"' [Citation.] '[W]e consider the language of the entire scheme and related statutes, harmonizing the terms when possible.' [Citations.]" (People v. Gonzalez (2017) 2 Cal.5th 1138, 1141.)
The relevant dictionary definition of "import" is "[t]o bring in from elsewhere." (Oxford English Dict. Online (2017) <http://oed.com> def. 2 [as of Sept. 27, 2017] (OED).) This definition has multiple subsidiary definitions, only two of which are relevant here. The first is "[t]o bring in or introduce (a quality, practice, idea, etc.) from another place, source, or context. Also: to bring in or transfer (a material object) from elsewhere." (OED, supra, def. 2.a.) The second is "[t]o bring in or cause to be brought in (a commodity, merchandise, goods, etc.) from another country or territory for use or resale in the domestic market." (OED, supra, def. 2.b.)
Notably, none of these require that importation be from outside of a country. Even the second subsidiary definition — the one closest to defendant's proffered definition — embraces bringing something in "from another country or territory." Bringing something from Arizona to California would qualify.
Moreover, "import" does not stand alone; the statute requires "import[ation] into this state." This suggests that what matters is where the marijuana goes and not where it comes from, whether that be another state or another country.
This is consistent with the overall statutory scheme. As noted, the statute also penalizes transportation of marijuana. Until 2016, "transport" had its usual and ordinary meaning; thus, the statute could be violated by moving marijuana from one point in California to another point in California. (See, e.g., People v. Valerio (1970) 13 Cal.App.3d 912, 917, 921-922.) It would have made no sense to penalize both importation across a federal border and transportation within California, but not importation across a state border.
It is true that the statute was amended, effective January 1, 2016, so as to add Health and Safety Code section 11360, subdivision (c), which now provides: "For purposes of this section, 'transport' means to transport for sale." (Stats. 2015, ch. 77, § 1, pp. 1536-1537.) Hence, importation for personal use still violates the statute; however, transportation within California for personal use does not. Nevertheless, section 11360(a) itself was not amended. As "import" included import across a state border before 2016, it necessarily includes import across a state border even after 2016.
The People state that they have been "unable to find a case that defines 'import' under Health and Safety Code section 11360, subdivision (a). That is likely because the meaning of import' is so plain that no one has ever thought to challenge it."
Not so. More likely it is because, before 2016, most acts constituting importation of marijuana could be prosecuted as transportation of marijuana instead, thus sparing the prosecution the need to prove that the marijuana crossed any border. Now, however, the importation of marijuana for personal use no longer constitutes transportation. In this case, the prosecutor almost certainly chose to proceed on an importation theory because she was concerned that the jury might find that defendant was in possession of the marijuana for personal use (as, in fact, it apparently did).
Defendant relies on United States v. Martinez (9th Cir. 2000) 232 F.3d 728; however, the court in that case explicitly declined to decide the issue presented here.
In Martinez, the defendant had a prior conviction under section 11360(a). The trial court ruled that it constituted a conviction for "import[ing]" a controlled substance for purposes of the Federal Sentencing Guidelines. (Martinez, supra, 232 F.3d at pp. 730-731.)
The appellate court reversed. First, it held that "import," as used in the Federal Sentencing Guidelines, "must necessarily mean importing across an international border. 'Import' means to bring from another place to this place. [Citation.] Common sense dictates that when a federal statute is concerned, 'this place' must be the nation as a whole, not some subdivision thereof." (Martinez, supra, 232 F.3d at p. 732.)
It commented: "We cannot tell from the statute, and have found no cases that discuss, whether the [phrase] 'imports into California,' as used in Section 11360, also connotes carrying the drugs across an international border, as opposed to carrying it across a state border. But even if the latter definition was what the California legislature had in mind — which we doubt — it would not matter, because . . . it is the federal definition that controls." (Martinez, supra, 232 F.3d at p. 733.)
Next, the court held that the defendant's prior conviction was actually for transporting, not importing, marijuana. (Martinez, supra, 232 F.3d at pp. 733-735.) In this context, it stated: "A conviction for importing marijuana into California under the California statute would, we may assume for present purposes, suffice as a conviction for importing a controlled substance under the career criminal guideline." (Id. at p. 734.) "The only doubt in this regard is that conceivably, 'import into California' in the state statute could refer to importation over state as well as federal borders, although we have found no California law so indicating." (Id. at p. 734, fn. 4.) It concluded, however, that the record of the defendant's California conviction conclusively demonstrated that it was for transportation. (Id. at pp. 734-735.)
In sum, then, the court expressed a "doubt" that "import" as used in section 11360(a) included importation over a state border; however, it did not need to decide this question, and so it did not. Significantly, it did note that the dictionary definition of "import" is simply to bring from one place to another. It also held that, when used in a federal statute, "import" must mean import into the country. Thus, if anything, Martinez actually supports our conclusion that, when used in a state statute, "import" means from anywhere outside this state.
We turn, then to defendant's subsidiary contention that there must be evidence that the marijuana originated outside California — i.e., in this case, the prosecution had to affirmatively disprove the possibility that defendant took the marijuana from California to Arizona and then back again.
We go back to the dictionary definition of "import." It merely means to bring something in from elsewhere; it includes no connotation that that thing was never here before. Notably, "[r]eimport" means "[t]o bring back, import again . . . ." (OED.) But when one reimports, one necessarily also imports.
Defendant's proposed origination test would place an insupportable evidentiary burden on prosecutors. The prosecution would have to prove — as an element of the crime — that the defendant obtained the marijuana outside California, or perhaps that the marijuana was grown outside California. However, this information will rarely, if ever, be available.
The exact contours of defendant's proposed "origination" test are not entirely clear. Does it turn on where the marijuana was grown? Or on where the particular defendant came into possession of it? In other words, in defendant's view, would buying marijuana in Arizona that had been grown in California and then driving it into California constitute "import[ing]" marijuana? We cannot tell. This very indeterminacy is a sign that defendant's proposed test does not arise organically out of the statutory language. --------
Defendant's argument in support of his origination test is based on Proposition 64. After the amendments that we mentioned above, which became effective on January 1, 2016, the statute was amended again by Proposition 64, effective November 9, 2016. In general, Proposition 64 decriminalized the possession of small quantities of marijuana for personal use by adults, while imposing taxes on the cultivation and sale of marijuana. (Voter Information Guide, Gen. Elec. (Nov. 8, 2016) official title and summary of Prop. 64, p. 90.) Defendant argues that defining "import" as requiring that the marijuana originate out of state "would comport with the purposes of" Proposition 64; by contrast, these purposes "would not be served by allowing users to circumvent [Proposition 64's] procedures and taxation by procuring out-of-state produced marijuana and importing that for personal recreational use." However, "import[ing]" marijuana has been criminalized, in the very same sentence as selling or transporting marijuana, ever since 1959. (Health & Saf. Code, former § 11531, Stats. 1959, ch. 1112, § 8, p. 3195.) Proposition 64 did not change the meaning of this term.
Finally, defendant raises the following hypothetical: "[A]ssume that a marijuana user brought along his or her California[-]grown marijuana during a scenic drive around Lake Tahoe; a tour that started and ended in California. A leisurely loop around the large lake, which spans the border between California and Nevada, would necessarily result in the marijuana being taken out of state and then brought back into California. . . . [I]s the re-entry into California the crime of importing marijuana into this state envisioned by [Health and Safety Code] section 11360?" However, we see nothing irrational about a law which requires that, once you take your marijuana outside California, you must leave it outside California.
We therefore conclude that the "import" element of the crime of importing marijuana is satisfied by proof that the perpetrator caused marijuana to enter California. Accordingly, there was sufficient evidence that defendant imported marijuana.
V
DISPOSITION
In 2015, when defendant committed his crimes, importation of marijuana was a felony. (Health & Saf. Code, former § 11360, subd. (a), Stats. 2011, ch. 15, § 162, p. 322.) In August 2016, when he was sentenced, it was still a felony. (Health & Saf. Code, former § 11360, subd. (a), Stats. 2015, ch. 77, § 1, pp. 1536-1537.)
As mentioned, on November 9, 2016, Proposition 64 went into effect. Under Proposition 64, importation of less than 28.5 grams of marijuana is now a misdemeanor. (Health & Saf. Code, § 11360, subd. (a), Prop. 64, § 8.4.) Ordinarily, such a statutory amendment ameliorating the punishment for a crime applies to all defendants whose judgments are not yet final; however, this rule does not apply when the amendment includes a saving clause or some similar indication of a contrary legislative intent. (People v. Floyd (2003) 31 Cal.4th 179, 184.) Proposition 64 allows a defendant convicted before it went into effect who would otherwise have been guilty of a lesser offense under its terms to petition for a reduction of the conviction and, if still in custody, for resentencing. (Health & Saf. Code, § 11361.8, Prop. 64, § 8.) This demonstrates that Proposition 64 was not intended to reduce automatically a conviction that is on appeal. (People v. Rascon (2017) 10 Cal.App.5th 388, 393-395; see also People v. Conley (2016) 63 Cal.4th 646, 657-661 [Proposition 36].)
Accordingly, the judgment is affirmed, without prejudice to defendant's right to petition for a reduction of the conviction under Health and Safety Code section 11361.8.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: MILLER
J. SLOUGH
J.