Value of Property Taken/Drug Weight
Category > Value of Property Taken/Drug Weight
The trial court erred by imposing the aggravated white collar crime enhancement because the prosecution did not plead and prove the related felonies.The aggravated while collar crime enhancement under Penal Code section 186.11 requires proof that the defendant committed two or more related felonies involving fraud or embezzlement. The information alleged the two grand thefts (counts one and two) that were the related felonies, but the court imposed the enhancement based on its own finding that one of the grand theft counts was related to the bribery established in count four. Because the prosecution did not plead and prove that grand theft and bribery were related felonies, the trial court erred by imposing the aggravated while collar crime enhancement.id: 24390
The “loss” in section 12022.6 refers to the property loss (which must exceed $200,000) and does not include economic losses such as lost income or profits. Penal Code section 12022.6 provides a two year sentence enhancement where the victim’s loss exceeds $200,000. The “loss” described in the provision refers to the value of the property taken, damaged or destroyed and does not include other types of economic loss suffered by the victim. id: 23150
The losses from the two embezzlement counts did not arise from a common scheme or plan so the evidence did not support the imposition of the section 12022.6, subd.(b) enhancement.Penal Code section 12022.6, subd.(b) provides the losses incurred in the commission or attempted commission of all felonies may be aggregated for purposes of imposing the prison enhancements provided under this statute if the defendant admits, or the trier of fact determines, the losses arose from a “common scheme or plan.” There was insufficient evidence to support the jury’s finding the losses in counts 1 and 2 arose from a “common scheme or plan.” There was a lack of common features between the two counts of grand theft by embezzlement with no general, overreaching plan. The victims were not connected, the crimes were not intertwined, the methods of theft used to commit each crime were dissimilar and the schemes to defraud were distinct and not contingent on each other.id: 22339
Filing a false tax return is not a taking for purposes of the section 12022.6, subd.(a) enhancement.Penal Code section 12022.6, subd.(a)(4) provides a four-year enhancement where a person takes or damages property in excess of $2,500,000. Filing a false income tax return is not a "taking" under section 12022.6, subd.(a) nor is the false filing part of a common scheme or plan for purposes of aggravating losses under subdivision (b).id: 19255
Jury may not aggregate the value of property taken during several felonies to find enhancement true.The value of the property taken in the commission of any one of the 10 felonies for which defendant had been convicted was not in excess of $25,000 as required by Penal Code section 12022.6, and the court erred in allowing the jury to aggregate the value of all of the property taken in the commission of all 10 felonies.id: 13914
Application of weight enhancement to drug dealer charged with conspiracy requires a finding of defendant's substantial involvement.Appellant was convicted of conspiracy to sell or transport a controlled substance and the jury found the weight allegation enhancement under Health and Safety Code section 11370.4, subdivision (a)(1) to be true. However, the enhancement provision was modified in 1990 to require a finding of substantial involvement in order to apply the enhancement to a defendant charged with conspiracy. The failure of the jury instruction (CALJIC 17.22.1) and the verdict forms to require this finding necessitated that the enhancement be stricken.id: 10696
Weight enhancement under section 11370.4 is not applicable when there is only the precursor chemical and no finished methamphetamine.Defendant was convicted of conspiracy to sell methamphetamine and received an enhancement based on a conspiracy to sell more than three pounds of methamphetamine (Health and Safety Code section 11370.4, subd. (b)(1)). Defendant had agreed to sell an undercover officer 30 pounds of ephedrine which could be used to produce twenty pounds of methamphetamine. However, the weight enhancement should not have been applied because there was no methamphetamine involved which exceeded three pounds in weight.id: 10773
Court erred in failing to instruct that defendant must be substantially involved in the conspiracy before the quantity enhancement for conspiracy or possession based on a conspiracy theory can be imposed.The quantity enhancement under Health and Safety Code section 11370.4, subdivision (a) cannot be imposed upon a defendant found guilty of the substantive offense based on a conspiracy theory unless the trier of fact makes a finding the conspirator defendant was substantially involved in the conspiracy. Because the instruction given was legally incorrect the quantity enhancement was reversed.id: 10707
Defendants were entitled to the retroactive benefit of the amendment to the enhancement increasing the value of property taken in a robbery to $50,000.Defendants were charged with a first degree robbery that occurred on May 26, 1992. It was further alleged they took property in excess of $25,000 within the meaning of the Penal Code section 12022.6 enhancement. Section 12022.6 was amended effective June 20, 1992, to increase the enhancing property value from $25,000 to $50,000. The amendment was beneficial to defendants, the legislation contains no savings clause and a legislative history indicates no evidence of intent contrary to the presumption of retroactivity. The value of the property taken was $29,500. The amended statute provides no enhancement for such a property value and defendants were entitled to the retroactive benefit of the amendment.id: 13894
Quantity enhancements must be based on the weight of a substance in existence, not on an amount merely offered or negotiated.Under Health and Safety Code section 11370.4 a person convicted of certain drug offenses must receive a sentence enhancement based on the weight of the drug involved. The prosecution argued that where a defendant offers to sell more of a drug than he actually sells, the sentence enhancement should be based on the higher, negotiated amount. However, enhancements under section 11370.4, subdivision (a) must be based on the weight of a substance in existence, not on an amount merely offered or negotiated.id: 13922
Court erred in instructing that the weight enhancement under section 11379.8 could apply to the conspiracy count if defendant was involved in the planning or execution of the underlying offense.Defendant was convicted of conspiring to manufacture methamphetamine and manufacturing methamphetamine. Each conviction was enhanced by a 10 year weight enhancement under Health and Safety Code section 11379.8, although the enhancement on the manufacturing count was stayed. However, the court erroneously instructed the jury (pursuant to CALJIC 17.21) that the enhancement applied to the conspiracy charge if it found the defendant was involved in the execution or planning of the underlying offense. This language is incorrect and the statute requires additional proof that defendant was substantially involved in the supervision of the offense or the financing. There was no such proof here. The court noted that a section 11379.6, subd.(a) enhancement may apply to a conspiracy even absent substantial involvement.id: 16612
Weight enhancement does not apply where two different substances, one containing cocaine and one containing cocaine base exceed one kilogram when aggregated.Evidence did not support the allegation that the cocaine possessed for sale exceeded one kilogram pursuant to Health and Safety Code section 11370.4, subd.(a)(1). The cocaine weighed 988 grams but there was an additional 24 grams of cocaine base. It was improper to aggregate the cocaine and cocaine base for purposes of the weight enhancement.id: 15095
For thefts between $100,000 and $500,000, a defendant may not be punished by consecutive enhancements under sections 186.11, subd.(a)(3) and 12022.6, subd.(a).For thefts of more than $100,000, but less than $500,000, a defendant may be subject to enhancements under both Penal code sections 186.11, subd.(a)(3), and 12022.6, subd.(a). In that
case, the court must impose both terms, but stay execution of the term imposed under section 12022.6, subd.(a).id: 19027
Amendment to section 11370.02 did not apply to defendant whose drug conviction was final on appeal when the provision was enacted.Health and Safety Code section 11370.2 provides an enhanced term for drug offenders with a drug related prior conviction. In 2017, the legislature amended the provision to remove those convicted of transporting drugs. However, the new provision could not be applied retroactively to defendant whose case became final before he moved for resentencing.id: 26086
Evidence supported the excessive amount lost enhancements where defendants received over $780,000 in illegal kickbacks.One defendant worked as a facilities superintendent for the public library. Another was a library employee and a third defendant was the employee’s wife. The defendants were involved in several schemes to receive kickbacks for library maintenance work provided by outside contractors. One scheme resulted in a loss of more than $780,000 to the library - that was the amount the defendants kept. Evidence supported the finding that the losses exceeded the threshold amounts of $50,000 and $150,000, for purposes of the Penal Code section 12022.6, subd.(e) enhancement.id: 24393
The enhancement for losses in excess of $150,000 can be applied to violations of section 115 for recording a false or forged document. Defendant was convicted of recording a false or forged document pursuant to Penal code section 115. Contrary to defendant’s claim, the enhancement described in section 12022.6 for offenses causing loss in excess of $150,000 can be applied to a violation of section 115. id: 23674
Evidence supported the loss enhancement under section 12022.6 where the loss caused by the cloud on the title of the properties exceeded $200,000. Respondent was convicted of recording false documents (quitclaim deeds) and perjury. He argued the evidence did not support the enhancements that the loss exceeded $65,000 and 200,000 under Penal code section 12022.6, subds.(a)(1) and (2). Even though there was no damage the victim suffered a loss of the assessed value of the property because of the cloud on the title and the loss exceeded the statutory amount. For that reason the evidence also supported the white collar crime enhancement under section 186.11, subd.(a)(2), that the losses exceeded $500,000.id: 23289
“Great taking” enhancement encompasses vicarious liability. Defendant was convicted of taking improvements from his foreclosed home in violation of Penal Code section 502.5. The jury also found true a “great taking” enhancement under section 12022.6, subd.(a) as the value of the property exceeded $65,000. Contrary to defendant’s claim, the enhancement applies not only to those who personally take or damage property, but also to aiders and abettors.id: 23591
The victim's legal fees may be included when calculating losses for the enhancement for stolen property in excess of $65,000.Defendant was convicted of grand theft along with an enhancement under Penal Code section 12022.6, where the value of the property taken was more than $65,000. The legal fees incurred by the victim may be included in the calculation of the amount at issue for purposes of the section 12022.6 enhancement. id: 21653
Defendant waived the issue of lack of foundation by failing to object to the criminalist's failure to properly weigh the drugs for purposes of the weight enhancement.Following a sampling technique that did not involve weighing each brick, the criminalist concluded the cocaine weighed more than 40 kilograms. This was sufficient to support the Health and Safety Code section 11370 enhancement. However, the foundation for the expert's testimony was questionable because she did not weigh all of the bricks (which she could easily have done) and admitted the weight she provided was "approximate" and "relatively accurate." Nevertheless, defendant failed to object to the lack of foundation, which could have been cured by having the police go back and weigh the drugs. The issue was therefore waived.id: 18598
Wiring a large sum of money to the coconspirators showed defendant was substantially involved in the conspiracy for purposes of the section 11370.4 weight enhancement.Defendant argued the evidence failed to prove he was "substantially involved in the conspiracy" as required for imposition of the weight enhancement under Health and Safety Code section 11370.4. However, the evidence showed he was substantially, rather than peripherally involved in the drug trafficking venture. He wired a large sum of money to a coconspirator the day before the drugs were found. Moreover, he was present at the apartment with the coconspirators where the drugs and money were stored. The evidence showed his functional and engaged status in the enterprise.id: 17788
"Sentencing entrapment" does not apply in California and there was no "sentencing manipulation" where the police conduct was unexceptional.The defendants were convicted of attempting to transport cocaine. The jury also found true an allegation that the quantity of the cocaine exceeded 80 kilograms. The defense argued the police deliberately manipulated the punishment by using an amount of cocaine that would add 25 years to each sentence. However, when speaking with the undercover officer, defendants were enthusiastic about the large quantity and did not express any preference for a lesser transaction. The court rejected the doctrine of sentencing entrapment and found that since the police conduct was unexceptional, there was no improper sentence manipulation. For that reason, the court also refused to address the claim of outrageous government conduct.id: 17678
Volume enhancement for manufacturing methamphetamine applies to a substance possessed for the later stages of the manufacturing process.Under Health and Safety Code section 11379.8, a defendant convicted of manufacturing methamphetamine "with respect to" a substance of a certain volume containing methamphetamine earns an enhanced penalty. Defendant argued the volume enhancement applied only to a substance produced during the manufacture and does not apply to a substance possessed for later use in the process. However, a defendant arrested in the early stages of the manufacturing process is subject to the volume enhancement when he possesses more than three gallons of solvent containing methamphetamine to be used in the final process to purify crystallized methamphetamine.id: 17579
Finding on the weight enhancement was proper where the verdict form did not expressly include the substantial involvement in the underlying offense element of the allegation.Defendant argued the jury was required to make a special finding that he was "substantially involved" in the planning, direction, execution, or financing of the underlying offenses, and the failure to include "substantial involvement" language on the verdict form required reversal of the Health and Safety Code section 11370.4 weight enhancement. However, having been instructed on all elements of the weight enhancement, it can be presumed the jury made findings as instructed when it found the enhancement to be true. Apprendi v. New Jersey (2000) 53 U.S. 466, required nothing more.id: 17388
Weight enhancement applies to possession of a solvent that will be used later in the process of manufacturing methamphetamine.Defendant, who was arrested in the early stages of the process of manufacturing methamphetamine, argued he was not subject to the weight enhancement for possessing more than three gallons of a solvent used in the final stage of the process to purify the methamphetamine. He claimed the weight enhancement under Health and Safety Code section 11379.8 only applies to a substance produced during the manufacture and does not apply to a substance possessed for later use in the process. However, the enhancement applies to any substance containing methamphetamine which is produced, used, or to be used in the process of manufacturing methamphetamine.id: 17355
Verdict for a drug conspiracy weight allegation under section 11370.4 need not expressly include the substantial involvement in the underlying offense element of the allegation.Defendant was charged with a weight enhancement as to both the conspiracy count and the possession for sale count pursuant to Health and Safety Code section 11370.4, subdivision (a)(6). He argued the jury was required to make a special finding that he was substantially involved in the planning, direction, execution or financing of the underlying offenses. However, the verdict for a drug conspiracy weight allegation pursuant to Health and Safety Code section 11370.4, subdivision (a)(6) need not expressly include the substantial involvement in the underlying offense element of the allegation.id: 15305
Retroactive application of enhancement for taking property worth $50,000 rather than $25,000 would not have helped defendant who took property valued in excess of $65,000.In 1989 defendant pled guilty to eight residential burglaries. The value of the stolen property was in excess of $65,000. Defendant received a one-year sentence enhancement pursuant to Penal Code section 12022.6 for taking property worth more than $25,000. Section 12022.6 was recently amended to make the sentence applicable to $50,000, rather than $25,000 in losses. Defendant argued for retroactive application of the statutory change which he claimed would eliminate application of the enhancement to him because the People charged a taking in excess of $25,000. However, had the current law been in effect the People would have charged a taking in excess of $50,000 and the result would be the same in light of the fact that defendant took property worth more than $65,000.id: 13923
Ten year enhancement was proper where defendant possessed 25 gallons of a substance that contained methamphetamine.Appellant argued that inasmuch as he possessed less than 25 gallons of pure methamphetamine, the trial court erred in imposing the ten year enhancement pursuant to Health and Safety Code section 11379.8. He argued that to impose the enhancement the court must have found that the controlled substance (pure methamphetamine) exceeds 25 gallons of liquid by volume or ten pounds of solid substance by weight. However, the word substance as used in its statutory context does not mean a pure controlled substance (such as methamphetamine), but a substance containing a controlled substance.id: 13926
The 40 kilogram quantity enhancement was proper where 67 kilograms were involved despite the fact that 29 kilograms were later transported and therefore used in a separate quantity enhancement.Defendant argued the trial court improperly allowed the same cocaine to be used both for a quantity enhancement as to the transportation of cocaine count and a separate quantity enhancement as to the possession for sale count. 67 kilograms were involved in the enterprise. The 40 kilogram enhancement under Health and Safety Code section 11370.4 (20 years) was therefore proper. This was true even though 29 grams were later transported. The focus is on the total amount and not the component parts.id: 13928
The trial court did not err in "engrafting" the use and weight enhancement terms into the 25 year minimum three strikes term.Defendant was sentenced under Penal Code section 667, subdivision (e)(2)(A)(ii), to an indeterminate term of 25-years to life to be served consecutive to determinate terms of 3 years for a weight enhancement under Health and Safety Code section 11370.4, subdivision (a), and 4 years for a Penal Code section 12022, subdivision (c) enhancement. He argued the three strikes law expressly required him to serve a minimum term of 25 years, so that his sentence to a minimum term of 32 years was erroneous. However, defendant failed to distinguish between the minimum number of years he must serve under his indeterminate life sentence before being eligible for parole, and the length of his total aggregate sentence.id: 13931
Weight enhancement requires finding of substantial involvement in the underlying offense only where the defendant is convicted of conspiracy and the weight enhancement is attached to the conspiracy conviction.Defendants were convicted of possession for sale of cocaine with a weight enhancement under Health and Safety Code section 11370.4, subdivision (a)(1), and sale or transportation of cocaine with a weight enhancement under section 11370.4, subdivision (a)(2). They were also convicted of conspiracy to sell or transport cocaine but no weight enhancement was attached to that charge. Defendants argued the instruction on the weight enhancements (CALJIC 17.22.1) was erroneous because in order to impose weight enhancements under section 11370.4 the jury was required to find not merely that defendants were substantially involved in the conspiracy and its objective but also that they were substantially involved in the underlying offense charged in each count. However, section 11370.4 requires a finding of substantial involvement in the underlying offense only where the defendant is convicted of conspiracy and the weight enhancement is appended to the conspiracy conviction.id: 13938
Drug quantity enhancement is imposed according to the total weight of any compound or mixture containing the listed drug.The words substance containing . . . cocaine in Health and Safety Code section 1370.4 unambiguously encompasses a mixture. Therefore, the quantity enhancements under that section are determined by the weight of the mixture containing an illicit drug, not merely by the weight of the pure drug itself.id: 13896
Drug quantity enhancements were impliedly excepted from the double-the-base term limitation.The drug quantity enhancements pursuant to Health and Safety Code section 11370.4, created an implied exception to the double-the-base term limit of former Penal Code section 1170.1(g), before the latter section was amended to so provide.id: 13897
Enhancement regarding sale of more than 10 pounds of cocaine does not require specific intent.Appellant was charged with selling cocaine and it was alleged that the cocaine involved exceeded 10 pounds (within the meaning Health and Safety Code 11370.4). The trial court had no <i>sua sponte</i> duty to instruct that before the jury could find the enhancement true, it must find that defendant had actual knowledge of the quantity or the intent to possess that specific quantity. The enhancement does not require specific intent.id: 13902
Gang enhancement was improper where the only testimony of gang activity was nonspecific hearsay regarding a shooting.Following a finding of conspiracy, the court found the evidence supported the street gang enhancement under Penal Code section 186.22. However, imposition of the enhancement was erroneous. The only testimony presented to prove the pattern of criminal gang activity was the nonspecific hearsay of a shooting of one gang member by another. The witness, a police officer, had no personal knowledge of the incident.id: 13909
Liquid form of methamphetamine can be converted to solid which may be added to the weight of the existing solid substance for enhancement purposes.Because the jury found the defendant manufactured a substance containing methamphetamine which exceeded one pound of solid substance by weight the court added three years to the term pursuant to Health and Safety Code section 11379.8. The solid substance seized weighed only 426 grams <197> twenty eight grams short of the required 454 (one pound). In order to make its finding the jury presumably added the 264 grams of methamphetamine which the criminalist obtained from the liquid solution discovered in the garage. There was no error in permitting evidence of the criminalist's conversion of liquid to solid weight or the jury's addition of the two measures for purposes of the enhancement.id: 13916
Proof of two instances of the same offense is sufficient for the gang activity enhancement.Following a finding of conspiracy to commit assault, the court found the evidence supported an enhancement allegation under Penal Code section 186.22, enacted to deal with street gang activity. Appellant argued the statute must be read as requiring proof of two different predicate offenses rather than two instances of the same offense. However, two instances of the same offense will satisfy the statute.id: 13919
Quantity enhancement was properly applied even though conspirators never gained actual possession of the controlled substance.Defendants argued the evidence did not support the quantity enhancements imposed by the trial court pursuant to Health and Safety Code section 11370.4, subdivision (a)(2) because the officers had no cocaine at the place of the proposed sale and had only one kilogram nearby. However, in a reverse sting operation officers need not actually transfer possession of the controlled substance to the buyers in order to impose the enhancement. Defendants arrived at the scene with $168,000 in cash based on their agreement to purchase seven kilograms of cocaine. On these facts the conspiracy to purchase cocaine for the purpose of sale was committed with respect to a substance containing cocaine exceeding 10 pounds in weight. The enhancement was properly applied.id: 13921
Court exceeded its authority in striking the over-25 pound 10 year enhancement without finding mitigating circumstances.Health and Safety Code section 11370.4 provides for a 10 year enhancement where the narcotics sold exceeds 25 pounds by weight. The statute required the trial court to impose an additional term of ten years or if it determined there were circumstances in mitigation, to strike the additional punishment. The court did neither. Instead the trial court stated since the codes empower the court to strike the entire allegation, the court certainly has the power to strike portions of it. The court then struck the over-25 pound 10 year enhancement and imposed an over-10 pound 5 year enhancement pursuant to section 11370.4, subd. (a)(2). The court exceeded its authority in doing so.id: 13887
Court was not required to instruct defendants convicted of possessing and transporting cocaine need have known the quantity exceeded 20 kilograms for purposes of the weight enhancement.Defendants were convicted of possessing and transporting cocaine for sale. The jury also found true an allegation the cocaine weighed over 20 kilograms. They argued the trial court was obligated to instruct the jury that it could not find the enhancement true unless they knew the quantity of cocaine exceeded 20 kilograms. However, defendants who knowingly possess controlled substances are strictly liable for any weight enhancement regardless of their knowledge of the quantity.id: 13889
Double jeopardy does not bar retrial on the quantity enhancement where defendant is convicted of possession for sale but the jury is unable to reach a verdict on the enhancement.Defendant was found guilty of possession of a controlled substance for sale but the jury was unable to reach a decision on the weight enhancement. He argued it was a violation of the double jeopardy clause to subject him to retrial on the weight enhancement. However, neither double jeopardy nor Penal Code section 1157 bar retrial of a large quantity enhancement where defendant is found guilty of possession for sale but the jury cannot reach a verdict on the enhancement.id: 11998
Evidence showed the county's loss following the welfare fraud exceeded $25,000 for purposes of the one-year enhancement where defendant produced no evidence to show that he was legitimately entitled to part of the claim.When defendant committed the welfare fraud, Penal Code section 12022.6, subdivision (a), called for a one-year sentence increase if the loss to the victim exceeded $25,000. The government's loss for purposes of the enhancement is the amount actually paid less the amount the defendant would have been eligible to receive absent the fraud. The defendant, however, bears the burden of proving that he or she would have been entitled to welfare benefits if the application for aid had been truthful instead of fraudulent. Here, defendant failed to demonstrate such entitlement. Consequently, substantial evidence supported the jury's verdict finding the one-year enhancement allegation to be true.id: 10397
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245