Supreme Court of California Justia
Docket No. S119975
People v. Athar

Filed 7/14/05

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S119975
v.
Ct.App. 4/1 D037485
SYED ABIEDA ATHAR,
San Diego County
Defendant and Appellant.
Super. Ct. No. SCD145045

A jury found defendant Syed Abeida Athar guilty of conspiracy to engage
in money laundering in violation of the general conspiracy statute, Penal Code
section 182, subdivision (a)(1).1 Defendant was not charged with (or convicted
of) money laundering itself under section 186.10, subdivision (a). The trial court
sentenced him to a two-year term for the base crime of conspiracy, and imposed a
four-year enhancement under section 186.10, subdivision (c)(1)(D).
We granted review to decide whether the trial court may impose an
enhancement under section 186.10, subdivision (c), for money laundering when
the defendant is not convicted of money laundering under section 186.10,
subdivision (a), but is convicted of conspiracy to commit that offense under
section 182. Under section 182, subdivision (a), a conspirator is to receive

1 Unless otherwise stated, all further statutory references are to the Penal Code.
1


punishment “in the same manner and to the same extent as is provided for the
punishment of” the target felony. Applying this provision, we conclude that the
enhancement provisions of section 186.10, subdivision (c), do apply when the
defendant has been convicted of conspiracy to commit money laundering but not
of money laundering itself.
FACTS AND PROCEDURAL HISTORY
We summarize the relevant facts and procedural history as presented by the
Court of Appeal.
Beginning in July 1994, defendant and some friends began to sell
counterfeit Microsoft software. The partners established various fictitious
businesses to conceal the unlawful sales and took the profits for themselves. They
distributed the profits by depositing them into various bank accounts and
transferring them by check, cashier’s check, and cash to other accounts. Between
August 1994 and September 1996, defendant and his partners engaged in nearly
300 transactions, and over $2,500,000 was eventually transferred.
Since June 1996, Microsoft had been receiving complaints about the
counterfeit software and had alerted the San Diego Police Department of the
scheme. Based on the information received, police arrested defendant on
September 6, 1996. The search following arrest turned up 1,100 to 1,300 units of
counterfeit software in defendant’s possession.
An indictment was filed in 1999, charging defendant and his partners with
conspiracy to engage in money laundering and to manufacture a counterfeit mark.
(§§ 182, 350, subd. (d)(3).) The indictment alleged approximately 55 overt acts,
some occurring as early as July 1994. The indictment further alleged that “the
value of the transaction or transactions exceeds two million five hundred thousand
dollars ($2,500,000), in violation of Penal Code section 186.10 (c)(1)(D).” The
indictment did not charge defendant with money laundering under section 186.10,
2
subdivision (a), although several of his partners were so charged. Defendant was
charged, however, with possession for sale of 1,000 or more counterfeit marks in
violation of section 350, subdivision (d)(3).
As relevant here, a jury convicted defendant of conspiracy to commit
money laundering. (§ 182, subd. (a)(1).) The jury also found that the value of the
transactions was in excess of $2,500,000, the statutory minimum required for
imposing a four-year enhancement following a conviction for the substantive
crime of money laundering. (§ 186.10, subd. (c)(1)(D).) The trial court sentenced
defendant to two years for conspiracy and four years for the money laundering
enhancement under section 186.10, subdivision (c)(1)(D). The court then stayed
the entire sentence and imposed five years’ probation conditioned on one year in
the county jail and various fines and restitution.
The Court of Appeal affirmed the judgment. Defendant petitioned for
review raising certain issues but failed to question whether he should have
received the money laundering enhancement because he was not charged or
convicted of money laundering. We granted and transferred the case so the Court
of Appeal could consider that issue.
A majority of the Court of Appeal held that money laundering
enhancements apply to the charge of conspiracy to commit money laundering. We
granted defendant’s petition for review limited to the money laundering
enhancement issue.
DISCUSSION
Section 182, subdivision (a), provides that conspiracy to commit felonies
other than those specifically identified “shall be punishable in the same manner
and to the same extent as is provided for the punishment of that felony.” (§ 182,
subd. (a).) Section 186.10, subdivision (c)(1), provides possible enhancements for
money laundering, stating, among other things, that “Any person who is punished
3
under subdivision (a) by imprisonment in the state prison shall also be subject to
an additional term of imprisonment in the state prison as follows: [¶] . . . [¶] (D) If
the value of the transaction or transactions exceeds two million five hundred
thousand dollars ($2,500,000), the court . . . shall impose an additional term of
imprisonment of four years.” (§ 186.10, subd. (c)(1).) 2

2 When defendant’s conduct began, the enhancement provision in section 186.10
stated, in pertinent part:
“(a) Any person who conducts or attempts to conduct a transaction or more
than one transaction within a 24-hour period involving a monetary instrument or
instruments of a total value exceeding five thousand dollars ($5,000) through one
or more financial institutions (1) with the intent to promote, manage, establish,
carry on, or facilitate the promotion, management, establishment, or carrying on of
any criminal activity, or (2) knowing that the monetary instrument represents the
proceeds of, or is derived directly or indirectly from the proceeds of, criminal
activity, is guilty of the crime of money laundering. . . . [¶] A violation of this
section shall be punished by imprisonment in the county jail for not more than one
year or in the state prison, by a fine of not more than two hundred fifty thousand
dollars ($250,000) or twice the value of the property transacted, whichever is
greater, or by both that imprisonment and fine. [¶] . . . [¶]

“(c)(1) Any person who is punished under subdivision (a) by imprisonment in
the state prison shall also be subject to an additional term of imprisonment in the
state prison as follows: [¶] . . . [¶]

“(D) If the value of the transaction or transactions exceeds two million five
hundred thousand dollars ($2,500,000), the court, in addition to and consecutive to
the felony punishment otherwise prescribed by this section, shall impose an
additional term of imprisonment of four years.

“(2)(A) An additional term of imprisonment as provided for in this
subdivision shall not be imposed unless the facts of a transaction or transactions,
or attempted transaction or transactions, of a value described in paragraph (1), are
charged in the accusatory pleading, and are either admitted to by the defendant or
are found to be true by the trier of fact.
“(B) An additional term of imprisonment as provided for in this subdivision
may be imposed with respect to an accusatory pleading charging multiple
(Footnote continued on next page.)
4


The Court of Appeal majority upheld defendant’s conspiracy conviction
and application of the money laundering enhancement based on the fact that
conspirators under section 182, subdivision (a), must be punished “in the same
manner and to the same extent” as those convicted of the “target felony,” i.e.,
money laundering.
The Court of Appeal, relying on the plain meaning rule, concluded that
section 186.10, subdivision (c), requires the enhancement because it does not
specifically prohibit it. (See People v. Gardeley (1997) 14 Cal.4th 605, 621
(Gardeley) [when statutory language is clear and unambiguous, and not
susceptible of more than one meaning, courts should not engage in statutory
construction].) The court observed that “[h]ad the Legislature intended to apply
the money laundering enhancements to only those persons convicted of the
substantive offense of money laundering, it would have so provided in subdivision
(c) of section 186.10.” Therefore, the court reasoned, because the Legislature did
not exclude conspiracy actions from the enhancement provisions, the enhancement
here was mandatory.
The People agree, asserting that the requirement of the conspiracy statute
that one convicted of conspiracy must be punished “in the same manner and to the
same extent” as provided for the punishment of the target offense, means that

(Footnote continued from previous page.)

violations of this section, regardless of whether any single violation charged in
that pleading involves a transaction or attempted transaction of a value covered by
paragraph (1), if the violations charged in that pleading arise from a common
scheme or plan and the aggregate value of the alleged transactions or attempted
transactions is of a value covered by paragraph (1).” (Stats. 1994, ch. 1187, § 2,
pp. 7167-7168.)
5


defendant is deemed punished under section 186.10. As the People observe, by its
terms, section 186.10, subdivision (c), does not require a court to convict
defendant of the target offense, but instead that he be punished under section
186.10, subdivision (a). Relying on People v. Kramer (2002) 29 Cal.4th 720
(Kramer), the People add that section 182’s requirement that a defendant be
punished for, as opposed to convicted of, the felony with the “greater maximum
term” (§ 182, subd. (a)) demonstrates a legislative intent to incorporate
enhancements into any conspiracy conviction.
Justice McDonald’s dissent argued that the mere fact that section 182 refers
to the target crime to determine the punishment for conspiracy does not mean one
is deemed punished for the target crime. “[Defendant] did not commit the crime
of money laundering . . . he committed the crime of conspiracy. Therefore, he was
punished under the conspiracy statute for committing the crime of conspiracy; he
was not punished under the money laundering statute because he did not commit
the crime of money laundering.”
We agree with the Court of Appeal majority and the People. It is true, as
defendant contends, that conspiracy is separate and distinct from the substantive
crime that is its object. But we cannot ignore the fact that the punishment for a
conspiracy to commit the felony of money laundering is the same as that for
money laundering. (§ 182, subd. (a).)
Kramer, supra, 29 Cal.4th 720, supports the People’s contention. In
Kramer, we applied amended section 654 to decide the proper punishment in a
case in which the defendant fired a gun at a moving car containing two occupants,
and was convicted of both discharging a firearm at an occupied vehicle (§ 246),
and assault with a firearm (§ 245, subd. (a)(2)). (Kramer, supra, 29 Cal.4th at p.
722.) Amended section 654 provides that when an act or omission is punishable
in different ways by different provisions of law, it “shall be punished under the
6
provision that provides for the longest potential term of imprisonment . . . .” (§
654, subd. (a).) Kramer observed that the punishment for violating section 246 is
three, five, or seven years, while the punishment for violating section 245,
subdivision (a)(2), is two, three, or four years. (Kramer, supra, 29 Cal.4th at p.
722.)
Viewed in isolation, section 246 provided for the longest potential term of
imprisonment and, under section 654, would be the applicable statute for
sentencing defendant. (Kramer, supra, 29 Cal.4th at p. 722.) However, because
the section 245, subdivision (a)(2), count was eligible for the firearm-use
enhancement of section 12022.5, subdivision (a), while the section 246 count was
not, we held that the assault charge under section 245, subdivision (a)(2), provided
for a longer potential term of imprisonment as long as the firearm-use
enhancement was included as part of the defendant’s punishment. We concluded
that “[t]he statutory language seems clear. Nothing in that language excludes
enhancements.” (Kramer, at p. 723.) We therefore determined that the court must
consider enhancements in determining which penal provision provides for the
longest potential term of imprisonment for the target felony. (Ibid.; § 654, subd.
(a).) As the People observe, Kramer’s conclusion that a “term” is not limited to
the base term applies with equal force to the punishment for the crime of
conspiracy under section 182, subdivision (a).
Defendant relies on People v. Hernandez (2003) 30 Cal.4th 835
(Hernandez), where we considered to what extent a court can attach a special
penal provision to conspiracy rather than to the underlying crime itself. The
substantive question in Hernandez was whether the punishment specified for a
financial-gain special circumstance could be added to the penalty for conspiracy to
commit murder. (Id. at p. 864.) We held that the special circumstance does not
apply to conspiracy to commit murder. (Id. at p. 870.)
7
In Hernandez, the jury convicted the defendant of first degree murder and
conspiracy to commit murder under section 182, subdivision (a). (Hernandez,
supra, 30 Cal.4th at p. 864.) Finding that the defendant committed the crimes in
exchange for heroin and cocaine, the jury applied the financial-gain special
circumstances for a sentence of life imprisonment without possibility of parole for
the crime of conspiracy. At issue were two statutory provisions: (1) section 182,
subdivision (a), which states that when two or more persons conspire to commit
murder, “the punishment shall be that prescribed for murder in the first degree”;
and (2) section 190.2, subdivision (a), which provides that “ ‘[t]he penalty for a
defendant who is found guilty of murder in the first degree is death or
imprisonment in the state prison for life without the possibility of parole if one or
more . . . special circumstances has been found . . . true . . . .’ ” (Hernandez,
supra, 30 Cal.4th at p. 865.)
Hernandez recognized that the question whether the penalty for the special
circumstances in section 190.2 may apply to the crime of conspiracy to commit
murder turned on statutory construction. (Hernandez, supra, 30 Cal.4th at p. 865.)
Applying standard rules of statutory construction, we held that the penalty for the
special circumstances does not apply to conspiracy to commit murder. (Id. at p.
870.) First, nothing in the wording of the statutes governing special circumstances
indicated that the voters who enacted the death penalty law intended for the
special circumstances to apply to conspiracy. (Id. at pp. 865-866.) Scrutinizing
the wording of the initiative, we held that the provisions strongly implied that
special circumstances may be charged as to the crime of murder only. (Id. at p.
866.)
Hernandez next observed that the crime of conspiracy was not mentioned
in either the text of the 1978 death penalty measure, or the official ballot pamphlet
for the election adopting that measure. (Hernandez, supra, 30 Cal.4th at p. 866.)
8
Indeed, it was not clear in 1978 that capital punishment for an unsuccessful
conspiracy to commit murder was permitted under the federal Constitution. (Id. at
p. 867.) We noted that were we to construe section 190.2 to include conspiracy,
that crime would require a substantially more severe punishment than that
imposed for attempted premeditated murder, thus creating an irreconcilable
disparity between the otherwise similar offenses of attempt and conspiracy.
(Hernandez, at pp. 867-868.) After also finding that allowing the death penalty
for crimes not involving murder could raise potential constitutional problems, we
concluded that the 1978 law should not be read to allow capital punishment for the
conspiracy to commit murder. (Id. at pp. 869-870.)
In addition, Hernandez reasoned that the rule of construction that requires
us to resolve statutory ambiguities in favor of the defendant bolstered the
conclusion that the special circumstances enhancement should not apply to the
crime of conspiracy. (Hernandez, supra, 30 Cal.4th at p. 869.) What we term the
rule of lenity compels this result when the statute “is susceptible of two
constructions.” (People v. Overstreet (1986) 42 Cal.3d 891, 896; see also People
v. Lee (2003) 31 Cal.4th 613, 627.) Therefore, Hernandez held that the
enhancement does not apply to the crime of conspiracy. (Hernandez, supra, 30
Cal.4th at p. 870.)
We find initially that the statutory construction principles we addressed in
Hernandez do not help defendant. The purpose of the amendment adding the
enhancements to section 186.10 was to stop “the deluge of drug proceeds being
laundered through California based financial institutions” and “further deter
money laundering [and] more effectively punish launderers.” (Sen. Com. on
Judiciary, Analysis of Assem. Bill No. 3205 (1993-1994 Reg. Sess.) June 2, 1994,
pp. 2-3.) Because the money laundering process typically involves more than one
person, and often large criminal networks, it is reasonable for us to find that the
9
enhancements under section 186.10, subdivision (c), were intended to control
large-scale laundering and the conspiracies that necessarily underlie the criminal
operation. In Hernandez we found just the opposite, that there was nothing to
indicate that the voters who enacted the 1978 death penalty law intended for the
special circumstances to apply to conspiracy. (Hernandez, supra, 30 Cal.4th at pp.
865-866.)
The rule of lenity also does not assist defendant. Under that principle,
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,” we construe the provision most favorably to the defendant.
(People v. Jones (1988) 46 Cal.3d 585, 599.) Defendant urges us to apply this
rule because, he argues, section 182, subdivision (a), is susceptible of two equally
convincing interpretations: (1) the enhancement provisions apply to an individual
who “conducts or attempts to conduct” (§ 186.10, subd. (a)) money laundering
and not to those who engage in the crime of conspiracy only; or (2) because
section 182, subdivision (a), states that the conspiracy is “punishable in the same
manner and to the same extent as is provided for the punishment of that felony,”
the enhanced punishment of section 186.10, subdivision (c)(1)(D), is part of the
punishment for the felony of conspiracy to engage in money laundering.
As the People observe, however, our holding in Hernandez was informed
only partially by the rule of lenity. Unlike Hernandez, here the application of the
section 186.10, subdivision (c), enhancements does not involve imposition of the
death penalty without a murder, or any penalty that would raise serious
constitutional concerns. In addition, if we apply the enhancements to defendant’s
conspiracy conviction, there will be no disparity between the punishment for
attempt to launder money and for conspiracy. An attempt, like a conspiracy, is
also punished under section 186.10, subdivision (c).
10
Defendant next contends that the legislative mandate of section 182,
subdivision (a), that conspiracy to commit a felony is punishable “in the same
manner and to the same extent as is provided for the punishment of that felony
(italics added), refers to the felony of money laundering without any
enhancements, i.e., to the base term. We are not convinced. The statute
specifically refers to the “punishment of that felony” (§ 182, subd. (a)) and thus
includes all punishment for money laundering, including enhancements,
depending on how much money was laundered, and whether the amount laundered
was pled and proven. (§ 186.10, subd. (c).)
Defendant also relies on Health and Safety Code section 11370.4,
subdivision (a). There, the Legislature specifically provided for enhancements
where a “person [has been] convicted of a violation of, or of a conspiracy to
violate,” certain other drug trafficking offenses. (Health & Saf. Code, § 11370.4,
subd. (a).) Defendant reasons that had the Legislature intended for the
enhancement provisions to apply to conspiracy to engage in money laundering, it
would have so indicated. According to defendant, nothing in the legislative
history of section 186.10 demonstrates the Legislature intended to apply the
enhancements to a conspiracy charged under section 182, subdivision (a). He
contends that if we construe the punishment provision of the conspiracy statute
under section 182, subdivision (a), as including the enhancement provisions of
section 186.10, subdivision (c), we would render superfluous the Legislature’s
express reference to conspiracy in the drug trafficking enhancement statute. (See
Health & Saf. Code, § 11370.4, subd. (a).)
The Court of Appeal and the People, however, rely on statutory plain
language to distinguish Health and Safety Code section 11370.4 from Penal Code
section 186.10, subdivision (c), because the former statute refers to someone
“convicted” of a drug offense, while section 186.10, subdivision (c), applies to
11
anyone who is “punished under” section 186.10, subdivision (a). Prior to 1989,
Health and Safety Code section 11370.4 enhancements applied to persons
“convicted” of the specified drug trafficking offenses only, and did not include
persons convicted of conspiracy to violate those sections who were punished
under those sections. (Stats. 1985, ch. 1398, § 3, pp. 4948-4949; see People v.
Duran (2001) 94 Cal.App.4th 923, 939-940.) The Legislature then amended the
statute in 1989 specifically to include conspiracies to violate the relevant drug
trafficking offenses. (See Stats. 1989, ch. 1326, § 2.5, pp. 5327-5328.) Therefore,
because the initial statutory language may have created some doubt as to its
applicability, the Legislature could have believed it was necessary to amend the
statute in order to apply the statutory enhancements to conspirators because those
enhancements had been limited specifically to persons convicted of the target
offense. The general plain meaning expressed in section 182, subdivision (a), that
a conspirator will be punished in the same manner and to the same extent as one
convicted of the underlying felony, does not require additional legislative clarity.
(See Gardeley, supra, 14 Cal.4th at p. 621 [clear statutory language does not
require construction].)
The People also rely on the reasoning in People v. Villela (1994) 25
Cal.App.4th 54. Villela extended the registration requirement for narcotics
offenders under Health and Safety Code section 11590 to those convicted of
conspiracy to commit a drug offense. (Villela, at pp. 59-60.) The defendant
maintained that the registration requirement should not apply to a conspiracy
conviction under Penal Code section 182 because the Health and Safety Code did
not list a section 182 conspiracy as an included offense. (Villela, at p. 57.) Villela
reasoned that the registration requirement, though not an enhancement, was a
punishment and concluded that the Legislature intended to subject conspirators to
the same punishment as that imposed for perpetrators of the underlying felony.
12
(Id. at pp. 60-61; § 182, subd. (a).) Villela held, therefore, that it would be
appropriate to punish the defendant to the same extent as one convicted of the
target felony, which included registration as a narcotics offender. (Id. at pp. 60-
61.)
Defendant contends that Villela erred in concluding that the additional
registration requirement was equal to a punishment. (See People v. Castellanos
(1999) 21 Cal.4th 785 [sex offender registration is not punishment for ex post
facto purposes].) As the People observe, however, even if we assume the court
incorrectly called the additional registration requirement a punishment, the court
was correct in reasoning that section 182 requires sentencing to the same extent as
the underlying target offense, and that the sentencing is not limited to the base
term of that offense.
CONCLUSION
Applying the principles discussed above, we conclude that the
enhancements set forth in section 186.10, subdivision (c), apply to a conviction of
conspiracy to commit money laundering under section 182, subdivision (a). We
therefore affirm the Court of Appeal judgment.
CHIN, J.
WE CONCUR:

GEORGE, C.J.
BAXTER, J.
WERDEGAR, J.
13





DISSENTING OPINION BY KENNARD, J.
Penal Code section 186.10, subdivision (c)(1)(D), requires that in
sentencing a defendant convicted of money laundering, a trial court must impose
an additional four-year prison term if the value of the unlawful transactions
exceeded $2.5 million. Although the defendant here was not convicted of money
laundering, the majority concludes that the trial court properly imposed an
additional four-year term to be served consecutive to defendant’s two-year prison
sentence for the crime of conspiracy. I disagree. Analysis of the wording of the
statutory provisions at issue, comparison of that wording with analogous
sentencing laws, and review of the legislative history of the money laundering
statute leave me highly doubtful that the Legislature intended for the additional
prison term for high-value money laundering transactions to attach to a sentence
for the crime of conspiracy. Under the rule of lenity, doubts of this magnitude and
nature must be resolved in defendant’s favor.
Subdivision (a) of Penal Code section 186.10 defines the crime of money
laundering and states that it “shall be punished by imprisonment in a county jail
for not more than one year or in the state prison . . . .” When a crime is made
punishable by imprisonment in state prison, and the term is not otherwise
specified, the state prison term may be 16 months (the lower term), two years (the
middle term), or three years (the upper term). (Pen. Code, § 18.) Thus, the
punishments that a trial court may impose for the crime of money laundering,
1



without more, are imprisonment in a county jail for one year or imprisonment in
the state prison for a term of 16 months, two years, or three years. If the trial court
imposes a state prison sentence, rather than a county jail sentence, the crime is a
felony. (Pen. Code, § 17, subd. (a).)
The money laundering statute, Penal Code section 186.10, further states, in
subdivision (c)(1), that when a person is “punished under subdivision (a) [of the
same section] by imprisonment in the state prison,” that person “shall also be
subject to an additional term of imprisonment,” if the value of the money
laundering transaction or transactions exceeds certain monetary amounts. If the
value of the transaction or transactions exceeds $2.5 million, the additional term of
imprisonment is four years. (Pen. Code, § 186.10, subd. (c)(1)(D).) Under
California’s determinate sentencing laws, additional terms of this sort are known
as enhancements. (Cal. Rules of Court, rule 4.405(c); People v. Briceno (2004) 34
Cal.4th 451, 460, fn. 7.)
Having reviewed the relevant punishment provisions for the crime of
money laundering, including the sentence enhancements for high-value
transactions, I now turn to the punishment provisions for the crime of conspiracy.
Under subdivision (a) of Penal Code section 182, when “two or more
persons conspire” to commit a felony, they “shall be punishable in the same
manner and to the same extent as is provided for the punishment of that felony.”
Under this provision, therefore, a person convicted of conspiracy to engage in
felony money laundering is to be punished “in the same manner and to the same
extent as is provided for the punishment of” felony money laundering. This
necessarily includes the alternative prison terms of 16 months, two years, or three
years prescribed by subdivision (a) of Penal Code section 186.10. But does it also
include the high-value-transaction enhancements under subdivision (c) of that
section? That is the issue here.
2

When resolving an issue of statutory construction, a court’s goal is to
ascertain and effectuate the intent of the enacting legislative body, and the first
step is to examine the statutory text, which is generally the most reliable indicator
of legislative intent, giving the words their usual and ordinary meaning. (People
v. Hernandez (2003) 30 Cal.4th 835, 865.) If the statutory language is
unambiguous, in the sense that it is not reasonably susceptible of more than one
meaning on the question at issue, a court generally adopts that construction
without further inquiry or analysis. (People v. Gardeley (1996) 14 Cal.4th 605,
621.) If the language is ambiguous, a court may consult extrinsic sources and use
a variety of interpretive techniques and construction rules to resolve the
ambiguity. (People v. Jefferson (1999) 21 Cal.4th 86, 94.)
On the question at issue here, Penal Code section 182 would be
unambiguous if it expressly stated, for example, that conspiracy to commit a
felony is punishable “in the same manner and to the same extent” as the target
felony is punishable, “including any enhancement.” Language like that appears in
the Three Strikes law, which provides that the minimum term for an indeterminate
life term imposed on a third strike defendant is the greatest of three alternatives,
one of which is “[t]he term . . . for the underlying conviction, including any
enhancement . . . .” (Pen. Code, § 667, subd. (e)(2)(A)(iii), italics added.) The
absence of similar wording in Penal Code section 182, although not conclusive, is
sufficient to raise a doubt about the underlying legislative intent.
The provision of Penal Code section 182 making conspiracy to commit a
felony punishable “in the same manner and to the same extent as is provided for
the punishment of that felony” is reasonably susceptible of more than one
meaning. It could mean either that conspiracy to commit a felony is punishable in
the same manner and to the same extent as the target felony alone, excluding
punishments that a trial court may impose only when the trier of fact has made
3

additional findings beyond the essential elements of the target felony itself, or it
could mean that conspiracy to commit a felony is punishable by the full range of
punishments available for the target felony, including punishments that may be
imposed only after additional findings are made. Neither of these constructions,
however, is entirely and unfailingly correct.
Conspiracy to commit a felony is not always punishable by the full range of
punishments available for the target felony, including punishments that may be
imposed only after additional findings are made. For example, the full range of
punishments for murder includes death and imprisonment for life without
possibility of parole (Pen. Code, § 190, subd. (a)), yet neither of those
punishments may be imposed for a conspiracy to commit murder. (People v.
Hernandez, supra, 30 Cal.4th at pp. 865-870.) But neither is it correct to say that
the punishments that may be imposed for conspiracy to commit a felony are
limited to those that could be imposed for the target felony alone and may never
include punishments that could be imposed only upon the making of additional
findings. For example, Health and Safety Code section 11370.4 establishes
enhancements for certain felonies involving illegal drugs, based on the weight of
the illegal drug involved in the crime, and it expressly makes these enhancements
applicable to anyone “convicted of a violation of, or of a conspiracy to violate
any of the listed drug offenses. (Health & Saf. Code, § 11370.4, subds. (a), (b),
italics added.)
What conclusions may one draw about the proper interpretation of Penal
Code section 182’s provision making conspiracy to commit a felony punishable
“in the same manner and to the same extent as is provided for the punishment of
that felony”? The conclusions one must draw are, first, that the punishments a
court may impose for conspiracy to commit a felony sometimes but not always
include punishments, such as enhancements, that require findings beyond the
4

essential elements of the target felony itself, and, second, that whether a court may
impose an enhanced or increased punishment of this sort requires construction and
analysis of the punishment provisions relating to the target felony. Accordingly, I
turn my attention to the punishment provisions for the crime of money laundering.
On the question at issue here, Penal Code section 186.10, subdivision (c),
would be unambiguous if it expressly stated, for example, that the transaction-
value enhancements applied not only to the crime of money laundering, but also to
the crime of conspiracy to engage in money laundering. As I mentioned earlier,
language like that appears in the statutory provisions that establish weight
enhancements for certain illegal drug crimes and make those enhancements
expressly applicable to anyone “convicted of a . . . conspiracy to violate” any of
the listed drug offenses. (Health & Saf. Code, § 11370.4, subds. (a), (b).) The
absence of similar wording in Penal Code section 186.10, subdivision (c),
although not conclusive, is sufficient to raise a doubt that the Legislature intended
that the money laundering high-value enhancements could be applied to a
conviction for conspiracy. This doubt derives from the rule of statutory
construction that when the Legislature uses a critical word or phrase in one statute,
the omission of that word or phrase in another statute dealing with the same
general subject generally shows a different legislative intent. (In re Jennings
(2004) 34 Cal.4th 254, 273; In re Young (2004) 32 Cal.4th 900, 907.)
Like the majority, I have reviewed the legislative history of Penal Code
section 186.10 relating to the high-value-transaction enhancements for money
laundering. But I find nothing in the available documents showing that the
Legislature considered whether those enhancements should apply to conspiracy
convictions or that it formed or expressed any intent on that question.
The majority relies in part on People v. Kramer (2002) 29 Cal.4th 720, in
which this court construed the language of Penal Code section 654 stating that
5

“[a]n act or omission that is punishable in different ways by different provisions of
law shall be punished under the provision that provides for the longest potential
term of imprisonment . . . .” (Italics added.) Relying on the statute’s purpose and
legislative history, as well as its wording, this court concluded that the italicized
words included enhancements. (People v. Kramer, supra, at pp. 723-724.) But
very similar language in another provision of the Penal Code has received a very
different construction. For a defendant with one prior conviction that qualifies as
a “strike,” the Three Strikes law provides that “the determinate term . . . shall be
twice the term otherwise provided as punishment for the current felony.” (Pen.
Code, § 667, subd. (e)(1).) The italicized language in this provision has been
construed as not including enhancements. (People v. Hardy (1999) 73
Cal.App.4th 1429, 1433; People v. Dominguez (1995) 38 Cal.App.4th 410, 424.)
Thus, consideration of similar language in other sentencing laws provides no
conclusive or satisfactory resolution of the ambiguity at issue here.
The majority also relies in part on the wording of subdivision (c) of Penal
Code section 186.10, the money-laundering statute, which states that the high-
value-transaction enhancements apply to anyone “who is punished under
subdivision (a) by imprisonment in the state prison.” (Italics added.) The
majority adopts as its own the People’s argument that a person who is convicted of
conspiracy to engage in money laundering, and who is sentenced to state prison
for that crime, has necessarily been punished “under” subdivision (a) of Penal
Code section 186.10. Well, yes and no. Because the conspiracy statute requires
that persons convicted of that crime be punished “in the same manner and to the
same extent” as persons convicted of the target crime, one could say, with equal
accuracy, that a defendant who has received a state prison sentence for money
laundering has been punished “under” the money-laundering statute or “under” the
conspiracy statute. The language is reasonably susceptible of either meaning.
6

In this situation, I would apply the rule of lenity, a rule of construction for
laws relating to crimes and punishments. That rule states that when “two
reasonable interpretations of the same provision stand in relative equipoise, i.e.,
. . . resolution of the statute’s ambiguities in a convincing manner is
impracticable,” a court adopts the interpretation that is more favorable to the
defendant. (People v. Jones (1988) 46 Cal.3d 585, 599; accord, People v.
Hernandez, supra, 30 Cal.4th at p. 869.) Because the statutory provisions at issue
here are ambiguous, and this ambiguity cannot otherwise be convincingly
resolved, I would construe them as not allowing a court to impose a high-value-
transaction enhancement when the defendant has not been convicted of money
laundering, but instead of conspiracy to engage in money laundering.
For this reason, I would reverse the Court of Appeal’s judgment.
KENNARD,
J.
I CONCUR:
MORENO, J.
7

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Athar
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 112 Cal.App.4th 73
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S119975
Date Filed: July 14, 2005
__________________________________________________________________________________

Court:

Superior
County: San Diego
Judge: William D. Mudd

__________________________________________________________________________________

Attorneys for Appellant:

Beatrice C. Tillman, under appointment by the Supreme Court, and Chris Truax, under appointment by the
Court of Appeal, for Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary R. Schons,
Assistant Attorney General, Robert M. Foster, Jeffrey J. Koch and Steven T. Oetting, Deputy Attorneys
General, for Plaintiff and Respondent.



Counsel who argued in Supreme Court (not intended for publication with opinion):

Beatrice C. Tillman
Appellate Defenders, Inc.
555 West Beech Street, Suite 300
San Diego, CA 92101
(619) 696-0282

Steven T. Oetting
Deputy Attorney General
110 West “A” Street, Suite 1100
San Diego, CA 92101
(619) 645-2206


Opinion Information
Date:Docket Number:
Thu, 07/14/2005S119975

Parties
1Athar, Syed Abieda (Defendant and Appellant)
Represented by Appellate Defenders, Inc.
555 West Beech Street, Suite 300
555 West Beech Street, Suite 300
San Diego, CA

2Athar, Syed Abieda (Defendant and Appellant)
Represented by Beatrice C. Tillman
Appellate Defenders Inc
555 W Beech Street, Suite 300
San Diego, CA

3Athar, Syed Abieda (Defendant and Appellant)
Represented by Chris Truax
Attorney at Law
P O Box 2127
La Mesa, CA

4The People (Plaintiff and Respondent)
Represented by Steven T. Oetting
Office of the Attorney General
P O Box 85266
San Diego, CA


Disposition
Jul 14 2005Opinion: Affirmed

Dockets
Oct 27 2003Petition for review filed
  By counsel for appellant {Syed Abieda Athar}.
Oct 27 2003Record requested
 
Nov 17 20032nd record request
 
Nov 18 2003Received Court of Appeal record
  two doghouses
Nov 19 20032nd record request
  for Vol. 3 of 3
Nov 20 2003Received Court of Appeal record
  Additional Record: D037485 -- Vol. 3 (only)
Dec 10 2003Petition for Review Granted (criminal case)
  Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Brown, and Moreno, JJ.
Jan 8 2004Counsel appointment order filed
  Upon request of appellant for appointment of counsel, Appellate Defenders, Inc., is hereby appointed to represent appellant on his appeal now pending in this court. Appellant's brief on the merits shall be served and filed on or before thirty (30) days from the date of this order.
Jan 14 2004Issues ordered limited
  In the matter of The People v. Syed Abieda Athar (S119975), review granted on December 10, 2003, the parties shall limit their briefing to the following issue: Can an enhancement be imposed under Penal Code section 186.10, subdivision (c), for "money laundering" a sum exceeding a specified dollar amount, where the defendant was not convicted of money laundering under section 186.10, subdivision (a), but instead was convicted only of conspiracy to commit money laundering? (See Cal. Rules of Court, rule 29(a)(1).)
Jan 29 2004Request for extension of time filed
  By appellant asking for a 50-day extension to and including March 9, 2004 to file appellant's Opening Brief on the Merits.
Feb 3 2004Extension of time granted
  To March 9, 2004 to file appellant's opening brief on the merits.
Mar 4 2004Request for extension of time filed
  In San Diego by counsel for appellant, asking for a 31-day extension to and including April 9, 2004 to file appellant's Opening Brief on the Merits.
Mar 11 2004Extension of time granted
  To April 9, 2004 to file appellant's Opening Brief on the Merits. No further extensions are contemplated.
Mar 22 2004Opening brief on the merits filed
  In San Diego by counsel for appellant {Syed Abieda Athar}.
Mar 22 2004Request for judicial notice filed (granted case)
  By counsel for appellant {Syed Abieda Athar}.
Apr 2 2004Received:
  Letter from counsel for Respondent {The People} to inform the court that respondent does not object to appellant's motion for judicial notice filed March 22, 2004.
Apr 21 2004Answer brief on the merits filed
  In San Diego by counsel for Respondent {The People}.
Apr 21 2004Request for judicial notice filed (granted case)
  By Respondent {The People}.
May 7 2004Reply brief filed (case fully briefed)
  In San Diego by appellant {Sybed Abieda Athar}.
May 7 2004Filed:
  Appellant's Addendum to Reques for Judicial Notice.
May 19 2004Received:
  Letter from respondent {The People} to inform the court that respondent does not object to appellant's addendum to Request for Judicial Notice, however, respondent reserves the right to challenge the relevancy of the document.
Sep 10 2004Received:
  Letter counsel for Respondent {The People} to notify the court that counsel will be unavailable for oral argument during the week of November 8, 2004.
Apr 1 2005Case ordered on calendar
  5/3/05 @1:30pm, S.F.
Apr 19 2005Supplemental brief filed
  in San Diego by counsel for respondent.
May 3 2005Cause argued and submitted
 
Jul 14 2005Opinion filed: Judgment affirmed in full
  Opinion by Chin, J. -----joined by George, C.J., Baxter & Werdegar, JJ. Dissenting opinion by Kennard, J. -----joined by Moreno, J.
Aug 17 2005Remittitur issued (criminal case)
 
Aug 29 2005Received:
  receipt for remittitur from CA 4/1.
Oct 19 2005Compensation awarded counsel
  Atty Tillman - Appellate Defenders, inc

Briefs
Mar 22 2004Opening brief on the merits filed
 
Apr 21 2004Answer brief on the merits filed
 
May 7 2004Reply brief filed (case fully briefed)
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website