Opinion
ELIA, J. At issue in this appeal is the scope of Health and Safety Code section 11353.6, subdivision (b), which creates a sentence enhancement applicable to certain narcotics offenses committed within 1,000 feet of a school.1 In its instructions to the jury, the trial court altered the language of this provision. Appellant Curtis Ronald Townsend contends that the court’s instruction gave the jury the erroneous impression that section 11353.6(b) is applicable to a person who sells controlled substances outside the school boundary while the school is closed but minors are on the school grounds. The People maintain that the enhancement is triggered whenever minors are present at the school. We agree with the People’s interpretation. Although the trial court improperly changed the language of the statute in defining the enhancement for the jury, no prejudice resulted. We further find no unconstitutional vagueness in the statute. Accordingly, we will affirm the judgment.
Background
Between 5:55 and 6:00 on a Thursday evening in April 1995, appellant sold an undercover officer a piece of crack cocaine for $20. The exchange took place eight to ten feet from the fence that bordered Horace Mann [1394]Elementary School in San Jose. The officer saw several children between 10 and 15 years old playing basketball on the school grounds.
Milly Powell, the principal at Horace Mann at that time, testified that the school was open for classes between 9:05 a.m. and 3:05 p.m. After that a “homework center” was open for the students until 4 p.m. Between 6:30 a.m. and 6 p.m. a private organization operated a day care center for children of parents who lived in the school district. The day care center was considered part of the school and was administered through the school district. After 6 p.m. there were no authorized activities on the school grounds except for adult classes in “English as a Second Language” (ESL). Children were “not supposed to” use the school grounds after 6 p.m., but Ms. Powell was aware that some students nevertheless went there to play basketball.
Appellant and two codefendants were charged with selling and offering to sell cocaine base (§ 11352, subd. (a)) and possession of cocaine base for sale (§ 11351.5). Attached to each count was an allegation that the crime took place within 1,000 feet of Horace Mann Elementary School “during hours that the school was open for classes and school-related programs, and at the time when minors were using the facilities where the offense occurred, within the meaning of section 11353.6 of the Health and Safety Code.” After a jury trial, all three defendants were convicted as charged.
Discussion
1. Jury Instruction
Section 11353.6, the Juvenile Drug Trafficking and Schoolyard Act, creates a sentence enhancement for any adult who is convicted of certain narcotics offenses, including the sale of crack cocaine, “where the violation takes place upon the grounds of, or within 1,000 feet of, a public or private elementary, vocational, junior high, or high school during hours that the school is open for classes or school-related programs, or at any time when minors are using the facility where the offense occurs . . . .” (§ 11353.6(b).)2
In instructing the jury, the trial court substituted “when the offense occurs” for “where the offense occurs” in the last clause of subdivision (b) quoted above. Defense counsel objected, but the prosecution successfully argued that the word “where” was a drafting error.
[1395]Appellant argues that the court’s substitution of “when” for “where” permitted the jury to convict him on a legally impermissible theory: that an off-campus sale of drugs will trigger the application of section 11353.6(b) if minors are using the school facility. According to appellant, when school is closed the enhancement may be imposed only if both the minors and the offender are at the school facility when the offense takes place, and only if the minors are authorized to be on the premises. This interpretation cannot withstand scrutiny.
In construing section 11353.6, our objective is to “ascertain the intent of the Legislature so as to effectuate the purpose of the law.” (People v. Jenkins (1995) 10 Cal.4th 234, 246 [40 Cal.Rptr.2d 903, 893 P.2d 1224]; People v. Broussard (1993) 5 Cal.4th 1067, 1071 [22 Cal.Rptr.2d 278, 856 P.2d 1134].) In approaching this task, a court must begin with the statutory language, giving the words used their plain and commonsense meaning. (People v. Valladoli (1996) 13 Cal.4th 590, 597 [54 Cal.Rptr.2d 695, 918 P.2d 999].) If there is no ambiguity or uncertainty, the Legislature is presumed to have meant what it said, and there is no need to resort to extrinsic indicia of legislative intent, such as legislative history. (People v. Coronado (1995) 12 Cal.4th 145, 151 [48 Cal.Rptr.2d 77, 906 P.2d 1232]; People v. Hendrix (1996) 16 Cal.4th 508, 512 [66 Cal.Rptr.2d 431, 941 P.2d 64].)
On the other hand, “. . . language that appears unambiguous on its face may be shown to have a latent ambiguity.” (Quarterman v. Kefauver (1997) 55 Cal.App.4th 1366, 1371 [64 Cal.Rptr.2d 741].) In such a case, a court may turn to customary rules of statutory construction, the “ ‘wider historical circumstances,’ ” or legislative history for guidance, keeping in mind the “ ‘consequences that will flow from a particular interpretation.’ ” (People v. Cruz (1996) 13 Cal.4th 764, 782-783 [55 Cal.Rptr.2d 117, 919 P.2d 731].) It is not always preferable to rely on the literal meaning of the words used. “ ‘[I]t is a settled principle of statutory interpretation that language of a statute should not be given a literal meaning if doing so would result in absurd consequences which the Legislature did not intend.’ [Citations.] . . . Thus, ‘[t]he intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act.’ ” (People v. Pieters (1991) 52 Cal.3d 894, 898-899 [276 Cal.Rptr. 918, 802 P.2d 420]; People v. Ledesma (1997) 16 Cal.4th 90, 95 [65 Cal.Rptr.2d 610, 939 P.2d 1310].)
The manifest purpose of section 11353.6 is to prevent drug trafficking with schoolchildren and to protect students from exposure to drug transactions and the hazards they present. (People v. Williams (1992) 10 Cal.App.4th 1389, 1394 [13 Cal.Rptr.2d 379]; People v. Jimenez (1995) 33 [1396]Cal.App.4th 54, 60 [39 Cal.Rptr.2d 12]; People v. Marzet (1997) 57 Cal.App.4th 329, 338 [67 Cal.Rptr.2d 83].) “ ‘Whether or not a child is involved in or otherwise present during any particular sale of narcotics within one thousand feet of a school, subjecting the seller to enhanced penalties reasonably may be expected to deter the seller and other illicit dealers from conducting their operations near school property in the future. ... It is difficult to imagine a more rational way of keeping drug traffickers out of areas where children are more likely to come into contact with them than to subject them to a risk of stiffer penalties for doing business near school property.’ ” (People v. Williams, supra, 10 Cal.App.4th at p. 1395, quoting United States v. Nieves (S.D.N.Y. 1985) 608 F.Supp. 1147, 1149-1150, italics omitted.)
In 1992 the Legislature amended section 11353.6, effective January 1, 1993. The 1992 amendment increased the number of offenses subject to the enhancement and narrowed the circumstances in which it applied. Instead of maintaining a 24-hour all-inclusive protected zone around schools, the Legislature added subdivision (g), which limited the reach of the statute to “any public area or business establishment where minors are legally permitted to conduct business.” (Italics added.) The amendment also specified that the 1,000-foot zone was protected “during hours that the school is open for classes or school-related programs, or at any time when minors are using the facility where the offense occurs.” (Stats. 1992, ch. 989, § 1, p. 4661, italics added.) It is this addition, particularly the portion italicized above, that is at issue in this case.
Appellant contends the clause “where the offense occurs” refers to the school facility, and therefore the offense must take place on campus for the enhancement to apply. This construction ignores the preceding language creating the 1,000-foot zone. There is no basis either in the statutory language or in the legislative history for inferring that the Legislature intended to retain the phrase “within 1,000 feet” only during the hours a school is open, and to relinquish that protection when school is closed but students are “using the facility.” Nor is there any indication that the students’ presence on campus must be authorized for the offender’s conduct to warrant increased punishment. To the extent that the amended portion of subdivision (b) creates ambiguity in its scope, appellant’s proposed construction is unreasonable. Consequently, we do not apply the rule invoked by appellant, that ambiguous penal statutes are construed in favor of defendants. That rule is applicable only when “two reasonable interpretations of the same provision stand in relative equipoise, i.e., that resolution of the statute’s ambiguities in a convincing manner is impracticable.” (People v. Jones (1988) 46 Cal.3d 585, 599 [250 Cal.Rptr. 635, 758 P.2d 1165].) Courts will [1397]not favor a defendant’s interpretation if it would lead to results “that are contrary to legislative intent or that fail to prevent the harm that is identified in the statute or that override common sense and create palpable absurdities.” (People v. Davis (1985) 166 Cal.App.3d 760, 766 [212 Cal.Rptr. 673]; People v. Pieters, supra, 52 Cal.3d 894, 899; see also People v. Jimenez (1992) 11 Cal.App.4th 1611, 1626 [15 Cal.Rptr.2d 268] [defendant’s construction must be rejected if unreasonable, absurd or contrary to the legislative intent].)
In our view, the section 11353.6 enhancement applies whenever students are on campus—whether school is open or closed—and the offense takes place either on campus or in a public area within 1,000 feet of the school boundary. The clause “where the offense occurs” contributes little except to clarify that the school in use by minors must be the same one as the school at or near the location of the offense. When the court advised the jury that the enhancement allegation could be found true if “the minors were using the facility when the offense occurred,” it was merely restating the provision for application of the enhancement “at any time when” minors are using the facility. (§ 11353.6(b).) Thus, the court’s substitution of “when” for “where” in the clause “where the offense occurs” was of no significance.
It is evident in the challenged instruction that the court assumed that “the facility” was the school. Neither party contests this assumption, and we agree that the intended referent of “the facility” is the school. We recognize, however, that there are other plausible constructions of this language. For example, a broader interpretation of the term “facility” would extend the protection during nonschool hours beyond the school boundary to the entire 1,000-foot zone. An expanded reading of “facility” to the entire surrounding area, however, becomes awkward when minors are considered to be “using the facility.” Alternatively, it could be argued, as does the dissent, that “facility” refers to any specific point within the 1,000-foot area, so as to subject an offender to the enhancement if both the offender and the minors are at the same public location within that zone. But we believe the interpretation we have adopted to be most consistent with the Legislature’s purpose to accord protection to children in the entire zone during hours the school is open, and to ensure protection of any children using the school facility even when school is closed.
The legislative history surrounding the 1992 amendment is consistent with our interpretation. The Senate Judiciary Committee described the amendment as specifying “that the enhancement may be invoked for violation when the school is open or whenever minors are using the facility.” The Senate Rules Committee described the applicable period as the hours “that [1398]the school is open for classes or school[-]related programs or at any time when minors are using the facilities.” There is no evidence of any 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.
In this respect section 11353.6(b) is identical to section 11353.1, subdivision (a)(2), and section 11380.1, subdivision (a)(2), which also create sentence enhancements for drug offenses near schools.3 These provisions were enacted in 1990, prior to the amendment of section 11353.6. By comparison, section 11353.1, subdivision (a)(1), and section 11380.1, subdivision (a)(1), do not contain the disputed clause, “where the offense occurs.”4 Instead, these latter provisions call for increased punishment when the offense occurs on the grounds of any one of a number of specified facilities, “during hours in which the facility is open for business, classes, or school-related programs, or at any time when minors are using the facility.” (Italics added.) The defining sentence refers first to the hours “the facility” is open and then to the time “when minors are using the facility.” It was unnecessary to use the language “where the offense occurs” to distinguish the facility already identified by implication in the preceding part of the sentence.5
As noted earlier, the Legislature did not need to use this qualifying language in section 11353.6 to distinguish the school from any other facility [1399]because only one type of facility—a school—is the subject of the enhancement. The statute would have been clear enough without the words “where the offense occurs.” Appellant, as well as the dissent, suggests that we cannot presume the Legislature would have added unnecessary language, but must “try to give effect to every phrase and paragraph, leaving no part of the statute useless or deprived of meaning.” (People v. Jackson (1985) 37 Cal.3d 826, 832 [210 Cal.Rptr. 623, 694 P.2d 736]; People v. Bow (1993) 13 Cal.App.4th 1551, 1557 [17 Cal.Rptr.2d 94].) But the avoidance of surplusage, while an important principle of statutory construction, is nonetheless subordinate to the overriding purpose of effectuating legislative intent. “Rules such as those directing courts to avoid interpreting legislative enactments as surplusage are mere guides and will not be used to defeat legislative intent. [Citations.] As we have already stressed, the fundamental goal of statutory interpretation is to ascertain and carry out the intent of the Legislature.” (People v. Cruz, supra, 13 Cal.4th 764, 782.)
According to our dissenting colleague, the focus of the 1992 amendment was on proximity between the offender and any children who might be in the 1,000-foot zone when school is closed. He cites People v. Jimenez, supra, 33 Cal.App.4th 54, for the rationale that the statute is designed to prevent exposure of minors to drug trafficking when they are going to or from school or simply congregating in the surrounding area. The court in Jimenez, however, did not assume that school is closed when children are walking to and from school, as the dissent apparently does. Instead, the Jimenez court appears to have assumed the opposite, by contrasting the tendency of large numbers of students to congregate off campus “before and after school” with the “substantially” lower risk of exposure when “school is closed or abandoned. The amendment to section 11353.6, subdivision (b) recognizes these facts by focusing the enhancement for off-campus drug offenses on the hours the school is open for classes or school-related programs.” {Id. at p. 59, italics 6
Even if the construction we adopt does not encompass drug offenses committed in proximity to children when the nearby campus is closed and deserted, we nevertheless feel constrained to follow the intent as expressed in the statute, rather than what we think the Legislature should [1400]have intended. “The role of the judiciary is not to rewrite legislation to satisfy the court’s, rather than the Legislature’s, sense of balance and order. . . .” (People v. Carter (1997) 58 Cal.App.4th 128, 134 [67 Cal.Rptr.2d 845].) Thus, to paraphrase Carter, the apparent purpose underlying section 11353.6 may well be served by imposing a sentence enhancement on offenders who engage in drug dealing on a Saturday outside the school grounds when no one is on the playground but children are on the same street as the drug dealer. But “the question before us is not whether such substitution would be a reasonable legislative act but whether this is in fact what the Legislature did.” (58 Cal.App.4th at p. 134.)7
We thus conclude that the trial court’s instruction, if erroneous, did not permit the jury to convict on a legally insufficient theory. Though there is no evidence that the word “where” was a drafting error, as the prosecution contended below, the substitution of “when” in the jury instructions was harmless beyond a reasonable doubt. (See People v. Harris (1994) 9 Cal.4th 407, 424 [37 Cal.Rptr.2d 200, 886 P.2d 1193]; People v. Davison (1995) 32 Cal.App.4th 206, 215 [38 Cal.Rptr.2d 438].)
2. Vagueness
Appellant next contends that if the court correctly defined the enhancement when it replaced “where” with “when,” then the statute must be declared void for vagueness. We cannot agree. First, we believe the Legislature intended to use “where,” not “when,” so we do not uphold the judgment on the ground that a “drafting error” occurred, as argued by the prosecution and accepted by the trial court. Furthermore, to the extent that appellant maintains that the statute is unclear even as written, he has not met the criteria for finding unconstitutional vagueness.
Due process requires fair notice of what conduct is prohibited. A statute must be definite enough to provide a standard of conduct for its citizens and guidance for the police to avoid arbitrary and discriminatory enforcement. (Burg v. Municipal Court (1983) 35 Cal.3d 257, 269 [198 Cal.Rptr. 145, 673 P.2d 732]; People v. Superior Court (Caswell) (1988) 46 Cal.3d 381, 389 [250 Cal.Rptr. 515, 758 P.2d 1046].) “Void for vagueness [1401]simply means that criminal responsibility should not attach where one could not reasonably understand that his contemplated conduct is proscribed.” (United States v. National Dairy Corp. (1963) 372 U.S. 29, 32-33 [83 S.Ct. 594, 598, 9 L.Ed.2d 561].)
Section 11353.6 does not suffer from unconstitutional vagueness. A statute is not vague if, as here, any reasonable and practical construction can be given to its language. Reasonable certainty is all that is required. (People v. Victor (1965) 62 Cal.2d 280, 300 [42 Cal.Rptr. 199, 398 P.2d 391]; People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1117 [60 Cal.Rptr.2d 277, 929 P.2d 596]; Boyce Motor Lines v. United States (1952) 342 U.S. 337, 340 [72 S.Ct. 329, 330-331, 96 L.Ed. 367].) Even where it contains somewhat imprecise language, secondary sources such as legislative history may clarify statutory terms sufficiently to meet the constitutional requirement of fair notice. (People v. McCaughan (1957) 49 Cal.2d 409, 414 [317 P.2d 974]; People v. Heitzman (1994) 9 Cal.4th 189, 200 [37 Cal.Rptr.2d 236, 886 P.2d 1229]; People v. Mitchell (1994) 30 Cal.App.4th 783, 799 [36 Cal.Rptr.2d 150].) “This analytical framework is consistent with the notion that we ‘require citizens to apprise themselves not only of statutory language, but also of legislative history, subsequent judicial construction, and underlying legislative purposes.’ ” (People v. Heitzman, supra, 9 Cal.4th at p. 200, quoting Walker v. Superior Court (1988) 47 Cal.3d 112, 143 [253 Cal.Rptr. 1, 763 P.2d 852].)
Even if, as we have already discussed, the reference to “the facility where the offense occurs” may be susceptible of more than one reasonable construction, ambiguity alone does not mean a statute is 8 “A statute may contain a serious ambiguity; this will not in itself make the statute vague. New statutes, criminal as well as civil, frequently contain ambiguities. If that alone made them unconstitutionally vague, it would be difficult to enact new statutes. The objection to vague statutes is that they invite arbitrary and discriminatory enforcement by those who administer the statute. A statute that contains one or several ambiguities that can be dispelled at a stroke by interpretation is not open to that objection and therefore is not vague in the constitutional sense.” (Kucharek v. Hanaway (7th Cir. 1990) 902 F.2d 513, 519.)
Our Supreme Court has expressed a similar view: “Many, probably most, statutes are ambiguous in some respects and instances invariably arise under [1402]which the application of statutory language may be unclear. So long as a statute does not threaten to infringe on the exercise of First Amendment or other constitutional rights, however, such ambiguities, even if numerous, do not justify the invalidation of a statute on its face.” (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1201 [246 Cal.Rptr. 629, 753 P.2d 585]; People v. Kelly (1992) 1 Cal.4th 495, 533-534 [3 Cal.Rptr.2d 677, 822 P.2d 385].) We conclude, therefore, that section 11353.6(b) is not impermissibly vague.
3. Sufficiency of the Evidence
Appellant finally contends that even if the instruction did not permit conviction on a legally insufficient theory, it is reasonably probable that the verdict was based on a factually insufficient theory. According to appellant, there was insufficient evidence that at the time of the offense either the school was open for school-related programs or the minors playing basketball were authorized to be there. As we noted earlier, however, the statute does not require that the minors’ presence be authorized. In amending the statute, the Legislature preserved protection for minors whenever they are on campus, even when school is closed. Because an authorized use is not an element of section 11353.6, we reject his argument that the evidence failed to establish that the minors had permission to play basketball at the school facility while it was closed. (Cf. Roberts v. City of Palmdale (1993) 5 Cal.4th 363, 372 [20 Cal.Rptr.2d 330, 853 P.2d 496] [courts should not “add language or imply exceptions to statutes passed by the Legislature”].) Even if there was insufficient evidence that the transaction occurred before day care ended at 6 p.m.,9 there was uncontradicted testimony that minors were playing basketball on the campus.10 Accordingly, whether or not the school was “open for classes or school-related programs,” the alternative criterion of the enhancement—that minors be using the facility—was clearly met.
Disposition
The judgment is affirmed.
Premo, Acting P. J., concurred.
All further statutory references are to the Health and Safety Code. References to section 11353.6(b) are to section 11353.6, subdivision (b).
The term “within 1,000 feet of’ is defined in section 11353.6 subdivision (g) as “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.” Any references to “off-campus” in this opinion pertain to this protected zone.
Section 11353.1, subdivision (a)(2), enhances the sentence imposed for a violation of section 11353 if “the offense involved heroin, cocaine, cocaine base, or any analog of these substances and occurred upon, or within 1,000 feet of, the grounds of any public or private elementary, vocational, junior high, or high school, during hours that the school is open for classes or school-related programs, or at any time when minors are using the facility where the offense occurs . . . .” (Italics added.) Section 11380.1, subdivision (a)(2), provides for a similar enhancement if “the offense involved phencyclidine (PCP), methamphetamine, lysergic acid diethylamide (LSD), or any analog of these substances and occurred upon, or within 1,000 feet of, the grounds of any public or private elementary, vocational, junior high school, or high school, during hours that the school is open for classes or school-related programs, or at any time when minors are using the facility where the offense occurs . . . .” (Italics added.)
Subdivision (a)(1) of section 11353.1 provides: “If the [section 11353] offense involved heroin, cocaine, cocaine base, or any analog of these substances and occurred upon the grounds of, or within, a church or synagogue, a playground, a public or private youth center, a child day care facility, or a public swimming pool, during hours in which the facility is open for business, classes, or school-related programs, or at any time when minors are using the facility. . . .” (Italics added.) Section 11380.1, subdivision (a)(1), provides for enhancement if “the offense involved phencyclidine (PCP), methamphetamine, lysergic acid diethylamide (LSD), or any analog of these substances and occurred upon the grounds of, or within, a church or synagogue, a playground, a public or private youth center, a child day care facility, or a public swimming pool, during hours in which the facility is open for business, classes, or school-related programs, or at any time when minors are using the facility . . . .” (Italics added.)
Section 11353.5, which prohibits certain drug activities at a number of specified facilities, does include the language “at any time when minors are using the facility where the offense occurs.” In that statute, however, the clause is preceded by an express reference to “those [1399]facilities.” The qualifying language “where the offense occurs” is necessary to identify which of “those facilities” must be in use by minors at the time of the offense.
Students walking to and from classes are not necessarily outside the protection of section 11353.6(b) under our interpretation of the word “facility.” Horace Mann Elementary School, for example, is open for day care from 6:30 a.m. until 6 p.m. Consequently, children walking either to school before the bell rings or home after being dismissed will generally be covered by the language protecting them “during hours that the school is open for classes or school-related programs.”
Indeed, the alternative construction by the dissent only invites further interpretive difficulties. It does not explain how far away children must be on a sidewalk to constitute “using the facility [i.e., the sidewalk] where the offense occurs.” If children are standing at a bus stop—a “facility” under the dissent’s view of the statute—is the offender then exempt from the enhancement if he conducts his drug deal on the sidewalk a few feet away? If a street comer is a facility, does the offender escape the enhancement if children are watching the transaction from a different comer at the same intersection? If the legislative goal was to deter drug crimes in proximity to minors, the language of this statute does not promote that goal.
“A statute is vague if its meaning is imprecise or indefinite: Its meaning does not control the decision of the person applying it. A statute is ambiguous, on the other hand, if it can have two or more meanings.” (Slawson, Legislative History and the Need to Bring Statutory Interpretation Under the Rule of Law (1992) 44 Stan.L.Rev. 383, 421.)
Officer Raymond testified at trial that he approached appellant to make a purchase about 5:52 or 5:53 p.m. The transaction occurred “right around between 5:55 and six o’clock.” Officer Hall, who had been observing appellant’s activity, believed the initial contact between appellant and Officer Raymond was about 5:58 p.m., but he was not relying on his independent knowledge of that fact.
The People also point to the school principal’s testimony that ESL classes were held at the school facility on Thursday nights. We decline to base our conclusion on this fact, however, because it was not established that the facility was open for this purpose at the time of the offense, nor that these adult ESL classes were “school-related” within the meaning of section 11353.6(b).