Filed 12/7/16

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

JEFFREY R. LOPEZ,

 Defendant and Appellant.

2d Crim. No. B267494

(Super. Ct. No. KA109301)

(Los Angeles County)

Health and Safety Code section 113791 prohibits 

transportation of a controlled substance. A violation of this 

section requires proof that the transportation was for sale.

Here the trial court erred when it instructed the jury 

with an earlier version of section 11379 that did not require proof 

the transportation was for sale. But the error was harmless 

because the jury found that appellant possessed the same 

controlled substance for sale in his car after police stopped him 

for a traffic violation.

 

1 All further undesignated statutory references are to the 

Health and Safety Code, unless otherwise stated.
2

Jeffrey Lopez appeals judgment after conviction by

jury of possession and transportation of a controlled substance. 

(§§ 11378, 11379.) 

The trial court sentenced Lopez to 15 years in state 

prison, including two consecutive three-year terms for two prior 

convictions of section 11379. (§ 11370.2.) Lopez contends the 

trial court erred in failing to instruct the jury that the 

transported controlled substance was for sale; and in imposing 

the enhancements for prior section 11379 convictions, because his 

prior convictions did not require proof of intent to sell. 

(§ 11370.2.) We affirm.

BACKGROUND

A Los Angeles County Sheriff’s deputy stopped Lopez 

after he drove into a gas station without signaling. Lopez had

$817 in his wallet, mostly in $100 denominations. In his car, 

police found a duffel bag. Inside were methamphetamine, a

digital scale, and 25 empty two-inch plastic baggies. In the trunk 

were four baggies of methamphetamine, packaged in one-eighth 

ounce quantities, a common weight for sale on the street. Also in 

the trunk was another scale and an eyeglasses case with magnets 

glued to the bottom, a device commonly used to hide drugs for 

transport. 

Lopez said that the car, duffel bag, and 

methamphetamine belonged to him. He told police, “I sell meth 

because I am living on the street, and I have to make money.” 

DISCUSSION

Instructional Error

Section 11379 provides that any person who 

transports a controlled substance is guilty of a felony. (§ 11379, 

subd. (a).) Prior to 2014, section 11379 did not require proof the 
3

substance being transported was for sale; mere transportation of 

a controlled substance was sufficient. Effective January 2014, 

the Legislature amended section 11379 to provide that, “For 

purposes of this section, ‘transports’ means to transport for sale.” 

(Id., subd. (c).) But the jury instructions failed to include that 

element in the transportation count. This was error. 

The prosecution is required to prove every fact

necessary to establish a defendant’s guilt beyond a reasonable 

doubt. (Sullivan v. Louisiana (1993) 508 U.S. 275, 277-278.) The 

omission of a single element of an offense impermissibly relieves 

the prosecution of this burden, and intrudes on the exclusive 

province of the jury to decide the facts, in violation of the 

defendant’s Sixth Amendment rights. (Id. at p. 277 [court may 

not direct a verdict for the prosecution no matter how 

overwhelming the evidence].) 

The Harmless Error Standard

A jury instruction omitting an essential element from 

the jury’s consideration requires reversal unless the error was 

harmless beyond a reasonable doubt. (People v. Mil (2012) 53 

Cal.4th 400, 410-411, 415 [instruction omitting an element of a 

special circumstances allegation]; People v. Flood (1998) 18 

Cal.4th 470, 502-503 [instruction that the People proved an 

element of the charged offense].) Reversal is required unless the 

prosecution can prove beyond a reasonable doubt that the error 

did not impact the verdict. (Id. at pp. 504-506.) For example, the 

error is harmless if the factual question posed by the omitted

instruction was resolved adversely to the defendant under other

properly given instructions. (Id. at p. 484; People v. Debouver

(2016) 1 Cal.App.5th 972, 982-983.) 
4

The trial court properly instructed the jury on the 

possession for sale count (§ 11378), including the “for sale”

element. The jury concluded that Lopez possessed the 

methamphetamine with intent to sell it. (People v. Ramos (2016) 

244 Cal.App.4th 99, 105 (Ramos) [“for sale” in section 11378 

defined as specific intent to sell or that someone else will sell it].)

The People contend that because the jury’s verdict on the charge 

of possession for sale referred to the same controlled substance 

charged in the transportation count, it must follow that any error 

in omitting the “for sale” element is harmless.

Lopez disputes this contention. He argues instead 

that the Legislature amended section 11379 to require proof that 

the act of transporting the methamphetamine was done in order 

to, and with the existing intent to, accomplish a sale. He cites 

legislative history which he contends demonstrates this, 

including expressed goals of eliminating “redundant convictions” 

for both possession and transportation, and reducing the prison 

population. 

The Legislative History

Lopez relies heavily upon comments reflecting an 

intent to statutorily abrogate the holding in People v. Rogers

(1971) 5 Cal.3d 129 (Rogers). In that case, a driver (Rogers) was 

convicted of transporting drugs possessed by passengers in his 

vehicle, but acquitted of possessing drugs himself. He claimed on 

appeal the prosecution had to prove more than the mere presence 

of drugs in his moving vehicle. Because transportation was listed 

in the criminal statute alongside such acts as furnishing, selling 

or distributing drugs, he argued that proof of an intent to engage 

in trafficking activities was required. (Id. at pp. 134-135.) A 
5

sharply divided court (4-3) ruled otherwise, holding that mere 

transportation was sufficient under the language of the statute.

The Legislature abrogated Rogers in 2013 when it 

amended section 11379 to add subdivision (c). (Stats. 2013, ch. 

504, § 2 (AB 721).) It did so by defining transports as meaning 

“transport for sale.” Lopez contends the amendment was 

intended to limit criminal culpability to those situations in which 

the act of transportation was intended to accomplish an active 

sale, because this narrow interpretation is most consistent with 

the other stated goals of prison population reduction and 

elimination of duplicative convictions. The legislative history, 

however, does not support his contention. Instead, it 

demonstrates that the Legislature acted to distinguish drug 

traffickers from drug users, and to apply harsher consequences to 

traffickers.

Contrary to Lopez’s contentions, the Rogers dissent 

did not argue that the statute required proof of an “active sale” at 

the moment of transportation. Instead, the dissent focused on 

the perceived injustice in elevating a lesser crime (possession) to 

a greater crime with significantly enhanced penalties based 

merely on the fact of movement. The example given was the 

defendant “arrested while standing motionless on the sidewalk 

and his companion arrested moments later while walking along 

the same street.” (Rogers, supra, 5 Cal.3d at p. 146 (conc. & dis. 

opn. of Mosk, J.).)

It was, in fact, this distinction that motivated the 

Legislature to amend section 11379 to add subdivision (c). The 

Author’s Statement includes the following statement: “‘AB 721 

would clarify the Legislature’s intent to only apply felony drug 

transportation charges to individuals involved in drug trafficking 
6

or sales. Currently, an ambiguity in state law allows prosecutors 

to charge users—who are not in any way involved in drug 

trafficking—with TWO crimes for simply being in possession of 

drugs. While current law makes it a felony for any person to 

import, distribute or transport drugs, the term “transportation”

used in Health and Safety Code has been widely interpreted to 

apply to ANY type of movement—even walking down the street—

and ANY amount of drugs, even if the evidence shows the drugs 

are for personal use and there is no evidence that the person is 

involved in drug trafficking. As a result, prosecutors are using 

this wide interpretation to prosecute individuals who are in 

possession of drugs for only personal use, and who are not in any 

way involved in a drug trafficking enterprise.’” (Assem. Com. on 

Public Safety, Analysis of Assem. Bill No. 721 (2013-2014 Reg. 

Sess.) Apr. 16, 2013, p. 2, italics added.)

Nothing in the legislative history demonstrates an 

intent to distinguish between defendants engaged in trafficking 

activities generally and those engaged in “active sales” at the 

precise moment of transportation. Instead, it evinces an intent to 

distinguish mere users from traffickers. This is evident from the 

author’s comments above, as well as the succinct argument in 

support, which directly addresses Justice Mosk’s dissent in 

Rogers: “AB 721 will correct the unwarranted interpretation that 

punishes an individual much more harshly if he is arrested 

walking down the street in possession of a small amount of illegal 

drugs than an individual who is arrested with the exact same 

quantity of drugs, but who is just sitting on a bench. AB 721 will 

provide that an individual may be punished for ‘transporting’ an 

illegal drug only if he or she is transporting that drug for 

purposes of sale. AB 721 simply corrects the ‘unjust’ and ‘absurd’
7

result foreseen long ago by Justice Mosk, and provides that 

similarly situated individuals should be treated similarly by the 

law.”

2

In summary, Lopez contends that “an interpretation 

[of section 11379] that would permit a finding that [he] possessed 

drugs ‘for sale’ to substitute for a finding that he transported 

drugs with the specific intent of selling them would undo the very 

object of the amendment.” We disagree for the reasons set forth 

above. We also note that in amending the statute, the 

Legislature contemplated that a person might be charged with 

both possession and transportation as long as there is an intent 

to sell. (Conc. in Sen. Amends. to Assem. Bill No. 721 (2013-2014 

Reg. Sess.) Aug. 29, 2013, p. 2 [“This bill makes it expressly clear 

that a person charged with [transportation] must be in possession 

of drugs with the intent to sell”].) 

People v. Ramos

This case is unlike Ramos, supra, 244 Cal.App.4th 

99, in which the defendant was convicted of possession of 

methamphetamine for sale and transportation of heroin, and the 

trial court failed to instruct on the “for sale” element for the 

transportation charge. The Court of Appeal reversed the 

transportation of heroin conviction without relying on the jury’s 

conviction for possession of methamphetamine for sale. Lopez 

argues that the same result should follow here. But in Ramos

the jury found only that the defendant had the intent to sell the 

 

2 This argument was submitted by The California 

Attorneys for Criminal Justice and was included in the analysis 

by the Senate Committee on Public Safety of Assembly Bill No. 

721 (2013-2014 Reg. Sess.) June 10, 2013, page 5. 
8

methamphetamine. It did not consider whether she intended to 

sell the heroin. Here, the jury found that Lopez intended to sell 

the methamphetamine as part of the possession count.

Because the jury found that Lopez possessed the 

same controlled substance at the same time for purposes of sale

under properly given instructions, there is no reversible error.

The Challenge to the Sentence Enhancements

Lopez contends the section 11370.2 enhancement 

cannot be applied to his 2003 convictions because (1) they did not 

require proof to a jury beyond a reasonable doubt that he 

transported a controlled substance “for sale” (Apprendi v. New 

Jersey (2000) 530 U.S. 466, 490 (Apprendi)); (2) the 2014 

amendment is ameliorative so should be applied retroactively to 

his prior convictions (In re Estrada (1965) 63 Cal.2d 740, 745 

(Estrada)); and (3) section 11370.2 should be interpreted to refer 

only to the amended version of section 11379 in order to 

effectuate the Legislature’s intent. (People v. Van Buren (2001) 

93 Cal.App.4th 875, 879 (Van Buren), overruled on other grounds 

in People v. Mosby (2004) 33 Cal.4th 353, 365.) We disagree with 

each of these contentions.

Lopez admitted he suffered the prior convictions. But 

this does not preclude him from raising on appeal the legal 

question whether the 2003 convictions fall within the class of 

convictions for which section 11370.2 authorizes enhanced 

punishment. (People v. Park (2013) 56 Cal.4th 782, 789, fn. 3

(Park).) In Park, defendant’s admission that he suffered a prior 

serious felony conviction pursuant to Penal Code section 667, 

subdivision (a) did not preclude his successful argument on 

appeal that the prior conviction did not fall within the class of 

convictions for which Penal Code section 667, subdivision (a) 
9

authorized enhanced punishment because his prior felony 

conviction was reduced to a misdemeanor before he committed 

the present offense. (Ibid.)

Section 11370.2

The substance of section 11370.2 has changed little 

since its enactment in 1985. It provides an additional 

consecutive three-year term for “each prior felony conviction of” 

enumerated drug offenses, including “11379.” (§ 11370.2, subd. 

(c), added by Stats. 1985, ch. 1398, § 2.)3 

Section 11379 provides (as it did in 1985) that one 

who “transport[s], import[s] into this state, sell[s], furnish[es], 

administer[s], or give[s] away,” a controlled substance is guilty of 

a felony. (§ 11379, subd. (a), as amended by Stats. 1984,

ch. 1635, § 68.) Before 2014, “transports” included any 

movement, whether or not for sale. (Rogers, supra, 5 Cal.3d at 

pp. 135-136.) In 2014, when the Legislature defined “transports” 

to mean “transport for sale,” there was no corresponding 

amendment to 11370.2. Nor has section 11370.2 been modified 

since. Lopez asks us to rewrite section 11370.2 now, to extend 

 

3 Section 11370.2, subdivision (c) provides in full: “Any 

person convicted of a violation of, or of a conspiracy to violate, 

Section 11378 or 11379 with respect to any substance containing 

a controlled substance specified in paragraph (1) or (2) of 

subdivision (d) of Section 11055 shall receive, in addition to any 

other punishment authorized by law, including Section 667.5 of 

the Penal Code, a full, separate, and consecutive three-year term 

for each prior felony conviction of, or for each prior felony 

conviction of conspiracy to violate, Section 11351, 11351.5, 11352, 

11378, 11378.5, 11379, 11379.5, 11379.6, 11380, 11380.5, or 

11383, whether or not the prior conviction resulted in a term of 

imprisonment.” 
10

the Legislature’s reformative work on the substantive offense (§ 

11379) to the related enhancement (§ 11370.2). That may be a

logical legislative step, but it is beyond our role. 

Neither Apprendi nor Estrada Assist Lopez

Lopez contends that Apprendi compels a reversal 

here because the intent element was not proven to a jury. He 

contends that Estrada provides for retroactive relief which must 

be applied to his 2003 convictions. We disagree. 

Apprendi does not apply to proof of “the fact of a prior 

conviction.” (Apprendi, supra, 530 U.S. at p. 490.) Estrada 

affords Lopez no relief because the judgment on his 2003 

convictions were final before 2014. (Estrada, supra, 63 Cal.2d at 

p. 745.) 

Interpretation of Section 11370.2

The plain language of section 11370.2 applies to 

Lopez’s prior convictions under any version of that statute. The 

language plainly states that sentence enhancements “shall” be 

added “for each prior felony conviction of . . . 11379.” (§ 11370.2, 

subd. (c).) The changes to section 11379 are not retroactive to 

prior convictions of that statute. “‘No part of [the Health and 

Safety Code] is retroactive, unless expressly so declared.’ . . . ‘[I]n 

the absence of an express retroactivity provision, a statute will 

not be applied retroactively unless it is clear from extrinsic 

sources that the Legislature . . . must have intended a retroactive 

application.’ [Citations.]” (People v. Brown (2012) 54 Cal.4th 

314, 319.)

Special rules of statutory interpretation exist to 

incorporate subsequent amendments into a referring statute 

(such as section 11370.2), but they do not assist Lopez. 

Generally, if a statute adopts the provisions of another statute by 
11

“specific” reference, those provisions are incorporated as they 

existed at the time of the reference. (Palermo v. Stockton 

Theatres, Inc. (1948) 32 Cal.2d 53, 58-59 (Palermo).) Conversely, 

if the statute adopts another provision by “‘general’” reference “‘to 

a system or body of laws or to the general law relating to the 

subject in hand,’” then those provisions are incorporated as 

subsequently modified. (Id. at p. 59, citations omitted.) The 

words of section 11370.2 do not specify which version of 11379 it 

incorporates. Either it “specifically” refers to section 11379 

because it expressly designates it as “11379,” or it “generally” 

refers to a list of controlled substances offenses, i.e., “a system or 

body of laws” governing drug offenses. (Ibid.)

Where, as here, the words of the referring statutes do 

not make clear whether it contemplates a “time-specific 

incorporation,” the determining factor is legislative intent. (In re 

Jovan B. (1993) 6 Cal.4th 801, 816.) We do not apply Palermo “in 

a vacuum.” (People v. Pecci (1999) 72 Cal.App.4th 1500, 1505.) 

No modern decision applies the Palermo rule without regard to 

other indicia of legislative intent. (Van Buren, supra, 93 

Cal.App.4th at p. 879.)

For example, in Van Buren, we interpreted Penal 

Code section 2933.1’s limit on custody credits for those presently 

convicted for “a felony offense listed in [Penal Code] section 

667.5,” to incorporate subsequent amendments to Penal Code 

section 667.5. Although Penal Code section 2933.1 specifically 

designated “667.5,” legislative history demonstrated intent to 

incorporate the evolving body of law on violent offenses. To 

effectuate that intent, we read Penal Code section 2933.1 to refer 

to a general body of law of which section 667.5 was a component, 

and to “incorporate[] the contemporaneous version of [Penal 
12

Code] section 667.5, subdivision (c), along with subsequent 

amendments.” (Van Buren, supra, 93 Cal.App.4th at pp. 878-

879.)

The purpose of section 11370.2 is to increase 

narcotics penalties to make California less attractive to “major 

drug dealers.” (Assem. Com. on Public Safety, Rep. on Assem. 

Bill No. 2320, (1985-1986 Reg. Sess.) Apr. 29, 1985, p. 3 [proposed 

amendment].)4 It was enacted “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 the activity.” 

(Stats. 1985, ch. 1398, § 1.)

Whether Lopez’s 2003 convictions were based on 

transporting controlled substances for personal use or for sales

cannot be definitively determined on this record. In 2003, section 

11379 proscribed “transport[ing], import[ing] into this state, 

sell[ing], furnish[ing], administer[ing], or giv[ing] away,” 

controlled substances. (§ 11379, subd. (a).) We do not know 

which conduct underlies Lopez’s prior convictions, because he

waived trial and admitted them, subjecting himself to additional 

punishment “pursuant to Health and Safety Code section 

11370.2[, subdivision] (c).” But his attorney acknowledged “he 

 

4 “This bill, labeled by the author as ‘The Dealer Statute’ is 

designed to ‘combat the increasing problems of drug dealing in 

California.’ It is modeled, in part, after federal law with the 

intention that major drug dealers will no longer have incentive to 

traffic in California where sentences are significantly lighter than 

those meted out in federal court.” (Assem. Com. on Public Safety, 

Rep. on Assem. Bill No. 2320, (1985-1986 Reg. Sess) Apr. 29, 

1985, p. 3 [proposed amendment].)
13

has some drug sales priors,” in an oral motion to strike them. 

And the court admonished Lopez for being “out there selling 

narcotics again,” after serving 10 years in prison. 

In any event, while we are unable to determine 

whether the prior convictions would result in enhanced sentences 

under the current versions of sections 11379 and 11370.2, we 

cannot conclude that the Legislature intended to modify section 

11370.2 when it amended section 11379. The legislative history 

does not support this contention. We therefore reject Lopez’s 

claim that the sentencing enhancements were not properly 

applied. 

DISPOSITION

The judgment is affirmed.

CERTIFIED FOR PUBLICATION.

TANGEMAN, J.

We concur:

GILBERT, P. J.

PERREN, J.
Juan C. Dominguez, Judge

Superior Court County of Los Angeles

______________________________

Mary Jo Strnad, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. 

Engler, Chief Assistant Attorney General, Lance E. Winters, 

Senior Assistant Attorney General, Paul M. Roadarmel, Jr. and 

Steven D. Matthews, Supervising Deputy Attorneys General, and 

David E. Madeo and Robert M. Snider, Deputy Attorneys

General, for Plaintiff and Respondent.