People v. Arias

Opinion

Health and Safety Code section 11366.8, subdivision (a),1 prohibits the possession of a “false compartment” “with the intent to . . . conceal ... or transport a controlled substance within the false compartment.” Subdivision (d) defines “false compartment” as “any box, container, space, or enclosure that is intended for use or designed for use to conceal, hide, or otherwise prevent discovery of any controlled substance within or attached to a vehicle, including, but not limited to, any of the following: [][] (1) False, altered, or modified fuel tanks, [f] (2) Original factory equipment of a vehicle that is modified, altered, or changed, [f] (3) Compartment, space, or box that is added to, or fabricated, made, or created from, existing compartments, spaces, or boxes within a vehicle.”

We granted the People’s petition for review in order to determine whether a violation of section 11366.8(d) requires that a defendant add to, or modify, a vehicle’s original factory equipment, as opposed to using an existing premarket enclosure, such as a glove compartment, or hiding controlled substances behind a factory-installed panel in the vehicle. For the reasons discussed below, we interpret section 11366.8 to exclude from its definition *174of “false compartment” a vehicle’s original factory equipment that has not been modified, altered, or changed in any way. We therefore affirm the judgment of the Court of Appeal.

I. FACTUAL AND PROCEDURAL BACKGROUND

On May 25, 2005, Martinez Police Officer Nick Voyvodich stopped a 1996 Lexus because it lacked a front license plate. He searched the car after he had its driver and sole occupant, John R. Arias, exit the vehicle. Voyvodich first examined the “headliner,” a fabric-covered area between the sunroof and the car’s frame. Unfastening Velcro strips attached to the fabric, he pulled down the headliner and looked into its interior. Finding nothing, he next looked at the area under the driver’s seat, which also was empty.

When he looked up, Voyvodich noticed a plastic ball containing a white crystalline substance sticking out of a “gap” between the dashboard and steering column. Voyvodich pulled off the “loose” dashboard panel located “just above [a seated driver’s] left knee” and removed the plastic, which contained three baggies containing a white substance. The space under the steering column and behind the dashboard contained wiring circuitry, and Voyvodich testified that it “didn’t appear to be a storage area” or to have “a hand release or anything like a button on the glove compartment.” He noted that the panel easily “clipped” in and out, apparently to allow access to the wiring for “people working on the car.” Voyvodich testified it “would be hard to pull out” the baggies through the gap, that he would have needed “to manipulate [them] a lot.” When Voyvodich searched defendant, he found cash in three bundles stacked in a “crisscross fashion” that contained $300, $320, and $380, respectively, plus a separate folded bundle of cash in the amount of $425.

The baggies contained methamphetamine; they weighed 27.72, 23.01, and 3.31 grams respectively. A narcotics expert testified that, in his opinion, defendant possessed the drugs for sale. The expert based his opinion on the amount found in each baggie, the cash bundles that suggested separate sales in quarter-ounce amounts, and the fact that defendant did not appear to be under the influence of a drug or in possession of drug paraphernalia.

Defendant’s mother owned the Lexus defendant had been driving. When asked “Did you personally do anything to the inside of the Lexus to change or modify any aspect of ... it so that you could put drugs in there?” defendant testified, “No, my mother would kill me if I did anything like that.”

*175As relevant to the single issue before this court, a jury found defendant guilty of “a violation of [section] 11366.8(a) of the California Health and Safety Code (possessing false compartment) as set forth in count three of the indictment.” The jury also found defendant guilty of transporting methamphetamine (§ 11379, subd. (a)), and possessing methamphetamine for sale (§ 11378). Defendant was sentenced to state prison for seven years, including a four-year concurrent term for possessing a false compartment.

The Court of Appeal reversed defendant’s conviction for possessing a false compartment. It concluded the trial court gave an erroneous instruction defining “false compartment” and that the evidence presented at trial was insufficient to prove that defendant used or possessed a false compartment within the meaning of section 11366.8. We granted the People’s petition for review.

II. DISCUSSION

Section 11366.8 provides as follows: “(a) Every person who possesses, uses, or controls a false compartment with the intent to store, conceal, smuggle, or transport a controlled substance within the false compartment shall be punished by imprisonment in a county jail for a term of imprisonment not to exceed one year or in the state prison, [f] (b) Every person who designs, constructs, builds, alters, or fabricates a false compartment for, or installs or attaches a false compartment to, a vehicle with the intent to store, conceal, smuggle, or transport a controlled substance shall be punished by imprisonment in the state prison for 16 months or two or three years. [][] (c) The term ‘vehicle’ means any of the following vehicles without regard to whether the vehicles are private or commercial, including, but not limited to, cars, trucks, buses, aircraft, boats, ships, yachts, and vessels, [f] (d) The term ‘false compartment’ means any box, container, space, or enclosure that is intended for use or designed for use to conceal, hide, or otherwise prevent discovery of any controlled substance within or attached to a vehicle, including, but not limited to, any of the following: [f] (1) False, altered, or modified fuel tanks, [f] (2) Original factory equipment of a vehicle that is modified, altered, or changed, [f] (3) Compartment, space, or box that is added to, or fabricated, made, or created from, existing compartments, spaces, or boxes within a vehicle.”

With respect to this section, the trial court instructed the jury that “[e]very person who possesses, uses, or controls a false compartment with the intent to store, conceal, smuggle or transport a controlled substance within the false compartment is guilty of a violation of Health and Safety Section 11366.8(a). *176In order to prove this crime, each of the following elements must be proved: One, a person possessed, used, or controlled a false compartment; two, that person had the specific intent to conceal, smuggle or transport a controlled substance within the false compartment; a false compartment is a space in a vehicle that is neither designed nor intended for storage or transportation of personal items, but is, nevertheless, used to conceal controlled substances even without any modification of the physical configuration of the space.” (Italics added.)

The portion of the trial court’s instruction italicized above was based on the interpretation of the statutory definition of false compartment set forth in People v. Gonzalez (2004) 116 Cal.App.4th 1405 [11 Cal.Rptr.3d 434] (Gonzalez), a case in which brothers were jointly tried and convicted of several drug offenses. One brother, who was separately convicted of possession of a false compartment, contended the plain language of section 11366.8 required a change to the “ ‘equipment’ ” of the 1990 Ford Thunderbird he was entering when arrested, “ ‘not simply placing something in a pre-existing space.’ He argue[d] that without evidence ‘the original factory equipment of the [automobile] had been “modified, altered, or changed,” ’ his conviction of a violation of section 11366.8 cannot stand.” (Gonzalez, supra, 116 Cal.App.4th at p. 1413.) His argument rested on the fact that the examples of “false compartment” listed in subdivision (d) all refer to a modification, alteration, or change of a vehicle’s original factory equipment. The Gonzalez court, however, found “nothing in the language of section 11366.8 that requires a modification, fabrication or alteration of the ‘original factory equipment’ of the vehicle,” and concluded that a “false compartment” is “a space in a vehicle that is neither designed nor intended for storage or transportation of personal items, but is nevertheless used to conceal controlled substances, even without any modification of the physical configuration of the space.” (Id. at p. 1414.) In reaching this conclusion, the court relied on the fact that “the statute specifies that a false compartment includes but is not limited to [the] enumerated examples,” and on the general rule of statutory construction that “[u]se of the language ‘including, but not limited to’ in the statutory definition is a phrase of enlargement rather than limitation.” (Ibid.)

In the present case, the Court of Appeal concluded that “[t]he history of section 11366.8 makes clear that the definition of ‘false compartment’ adopted in Gonzales, supra, 116 Cal.App.4th 1405, 1414, and the basis of the jury instruction challenged in this case, is incompatible with the purpose of the statute.” For the reasons stated below, we agree with the Court of Appeal that “the Gonzalez court misread section 11366.8.”

*177We reach this conclusion by construing section 11366.8 under established principles. “Under settled canons of statutory construction, in construing a statute we ascertain the Legislature’s intent in order to effectuate the law’s purpose. (Dyna-Med., Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1386-1387 [241 Cal.Rptr. 67, 743 P.2d 1323].) We must look to the statute’s words and give them their usual and ordinary meaning. (DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 601 [7 Cal.Rptr.2d 238, 828 P.2d 140].) The statute’s plain meaning controls the court’s interpretation unless its words are ambiguous.” (Green v. State of California (2007) 42 Cal.4th 254, 260 [64 Cal.Rptr.3d 390, 165 P.3d 118]; see also Gattuso v. Harte-Hanks Shoppers, Inc. (2007) 42 Cal.4th 554, 567 [67 Cal.Rptr.3d 468, 169 P.3d 889].) If the words in the statute do not, by themselves, provide a reliable indicator of legislative intent, “[statutory ambiguities often may be resolved by examining the context in which the language appears and adopting the construction which best serves to harmonize the statute internally and with related statutes. (Woods v. Young (1991) 53 Cal.3d 315, 323 [279 Cal.Rptr. 613, 807 P.2d 455].)” (Hsu v. Abbara (1995) 9 Cal.4th 863, 871 [39 Cal.Rptr.2d 824, 891 P.2d 804].) “ ‘Literal construction should not prevail if it is contrary to the legislative intent apparent in the statute . . . ; and if a statute is amenable to two alternative interpretations, the one that leads to the more reasonable result will be followed [citation].’ [Citations.]” (People v. Shabazz (2006) 38 Cal.4th 55, 67-68 [40 Cal.Rptr.3d 750, 130 P.3d 519].) If the statute is ambiguous, we may consider a variety of extrinsic aids, including legislative history, the statute’s purpose, and public policy. (Coalition of Concerned Communities, Inc. v. City of Los Angeles (2004) 34 Cal.4th 733, 737 [21 Cal.Rptr.3d 676, 101 P.3d 563].) If a statute defining a crime or punishment is susceptible of two reasonable interpretations, we ordinarily adopt the interpretation that is more favorable to the defendant. (People v. Avery (2002) 27 Cal.4th 49, 57 [115 Cal.Rptr.2d 403, 38 P.3d 1].)

With these principles in mind, we turn to the statutory definition of “false compartment,” which is “any box, container, space, or enclosure that is intended for use or designed for use to conceal, hide, or otherwise prevent discovery of any controlled substance within or attached to a vehicle, including, but not limited to, any of the following: [|] (1) False, altered, or modified fuel tanks, [f] (2) Original factory equipment of a vehicle that is modified, altered, or changed. [][] (3) Compartment, space, or box that is added to, or fabricated, made, or created from, existing compartments, spaces, or boxes within a vehicle.” (§ 11366.8(d), italics added.)

We agree with the Court of Appeal that it would be unreasonable to interpret the phrase “intended for use or designed for use to conceal, hide, or otherwise prevent discovery of any controlled substance within or attached to a vehicle” in the above definition of false compartment to mean “intended [by *178the vehicle’s manufacturer] for use or designed [by the vehicle’s manufacturer] for use to conceal, hide, or otherwise prevent discovery of any controlled substance within or attached to a vehicle.” As the Court of Appeal aptly noted, there is no “reason to think that manufacturers of new vehicles include in their products spaces or enclosures ‘intended ... or designed’ to be used to conceal or transport controlled substances.” We are equally convinced that the word “intended” in the definition of false compartment does not refer to the specific intent of the defendant that is required for a conviction under either subdivision (a) or (b) of section 11366.8 because that would render the phrase “with the intent to store, conceal, smuggle, or transport a controlled substance” in both subdivisions meaningless or redundant.

After examining the context in which the definition of false compartment appears and adopting the construction that best harmonizes the statute internally (Hsu v. Abbara, supra, 9 Cal.4th at p. 871), we conclude that, although awkwardly phrased, the language in subdivision (d) of section 11366.8, italicized above, is simply an alternative reference back to subdivisions (a) and (b) of the statute. For example, subdivision (d) explains that, when a defendant is charged with possessing, using, or controlling a false compartment under subdivision (a), a false compartment is “any box, container, space, or enclosure that is intended for use ... to conceal, hide, or otherwise prevent discovery of any controlled substance within or attached to a vehicle, including, but not limited to, any of the following: ['ll] (1) False, altered, or modified fuel tanks. [][] (2) Original factory equipment of a vehicle that is modified, altered, or changed. [][] (3) Compartment, space, or box that is added to, or fabricated, made, or created from, existing compartments, spaces, or boxes within a vehicle.” (§ 11366.8(d), italics added.) Alternatively, when a defendant is charged with designing, constructing, or installing a false compartment under subdivision (b), the statutory definition of false compartment would be prefaced by the phrase “designed for use” instead of the phrase “intended for use.” Having adopted the construction of the language in subdivision (d) of section 11366.8, italicized above, that best serves to harmonize the statute internally, we discuss below the remainder of the subdivision.

Initially, we find it significant that, in the phrase “false compartment,” the word “false” describes the compartment, not the individuals who use it. In that context, the word “false” has been defined by one authority as “[intentionally deceptive,” with two examples provided: “a suitcase with a false bottom; false promises.” (American Heritage Dict. (4th ed. 2000) p. 638; see also 5 Oxford English Dict. (2d ed. 1989) p. 698, col. 2 [the word “false,” when describing “appearances” or “things,” means “deceptive”].) While a separate zipped compartment at the bottom of a suitcase *179could be used to hide illegal drags as well as to store shoes, no reasonable person would conclude that suitcase manufacturers intended that such a separate space be used to prevent the discovery of controlled substances. The manufactured shoe compartment at the bottom of a suitcase would not fit the definition of “false bottom,” i.e., a bottom intentionally constructed to deceive observers by concealing the “true” bottom of the suitcase. On the other hand, a suitcase with a false bottom that was intentionally designed to be deceptive constitutes a “false compartment” whether or not anything is concealed within it when it is discovered. The critical issue is whether the compartment itself was constructed in a manner to intentionally deceive an untrained observer by concealing its existence.

We agree with the Court of Appeal that “[i]f the ‘false compartment’ to which section 11366.8 refers need not be shown to have been designed [or] fabricated [or installed] by the defendant or someone else for the unlawful purpose of concealing a controlled substance [and any other additional purpose, such as, for example, concealing drag proceeds or an illegal weapon], the statute would provide the basis for a separate felony offense in the majority of the many cases in which drags not in plain view are found in a vehicle.” We agree with defendant that such a construction “essentially reads the ‘false’ out of ‘false compartment,’ ” and that, “while the statute is focused on the ‘false compartment,’ respondent’s construction would reduce the entire offense to the act of concealment. It is clear that this is not what the Legislature intended.” As the Court of Appeal noted, while “the three examples of the statute’s application provided in subdivision (d) of section 11366.8 cannot limit its meaning, because the phrase ‘including, but not limited to’ in that provision is a phrase of enlargement^] a definition of ‘false compartment’ that required no modification of original factory equipment would be so consequential that [it] is difficult to think the Legislature would not have provided such an example if that was indeed its intention.” In fact, we are convinced that, if the Legislature had intended to be included within its definition of “false compartment” original factory equipment of a vehicle that was not modified, altered, or changed, it would not have included those three qualifying modifiers to “original factory equipment” in its second example of a false compartment.

We rely on the following rales of statutory construction in reaching our conclusion that, had the Legislature intended for original factory equipment of a vehicle to be included within the term “false compartment” whether or not the equipment had been modified, altered, or changed, it would not have included, as a second example of a false compartment, “Original factory equipment of a vehicle that is modified, altered, or changed.” (§ 11366.8(d)(2), italics added (second example).)

*180First, in reviewing the text of a statute, we must follow the fundamental rule of statutory construction that requires every part of a statute be presumed to have some effect and not be treated as meaningless unless absolutely necessary. “Significance should be given, if possible, to every word of an act. [Citation.] Conversely, a construction that renders a word surplusage should be avoided. [Citations.]” (Delaney v. Superior Court (1990) 50 Cal.3d 785, 798-799 [268 Cal.Rptr. 753, 789 P.2d 934]; see also Dyna-Med, Inc. v. Fair Employment & Housing Com., supra, 43 Cal.3d at pp. 1386-1387.) Had the Legislature intended any and all original factory equipment in a vehicle to constitute a false compartment under section 11366.8 whenever a person hid a controlled substance inside or behind that equipment, its second example, “Original factory equipment of a vehicle that is modified, altered, or changed” (§ 11366.8(d)(2)), would have no effect and would be rendered meaningless. In order for the Legislature’s second example of a false compartment to have some effect, we must interpret section 11366.8 as excluding from its definition of a false compartment the vehicle’s original factory equipment that has not been modified, altered, or changed.

A second principle of statutory construction explains that, when a particular class of things modifies general words, those general words are construed as applying only to things of the same nature or class as those enumerated. (Scally v. Pacific Gas & Electric Co. (1972) 23 Cal.App.3d 806, 819 [100 Cal.Rptr. 501].) This canon of statutory construction, which in the law is known as ejusdem generis, “ ‘applies whether specific words follow general words in a statute or vice versa. In either event, the general term or category is “restricted to those things that are similar to those which are enumerated specifically.” ’ [Citation.]” (International Federation of Professional & Technical Engineers, Local 21, AFL-CIO v. Superior Court (2007) 42 Cal.4th 319, 342 [64 Cal.Rptr.3d 693, 165 P.3d 488].) Here, although the definition of false compartment is not limited to the three examples provided in section 11366.8(d), the meaning of the general words “[ojriginal factory equipment of a vehicle” within the second example has been restricted by the Legislature to refer to factory equipment that is “modified, altered, or changed.” Ejusdem generis, which literally means “ ‘ “of the same kind” ’ ” (Major v. Silna (2005) 134 Cal.App.4th 1485, 1494 [36 Cal.Rptr.3d 875]), does not allow us to ignore the restrictions the Legislature set or to broaden the meaning of false compartment with regard to original factory equipment beyond the restrictions set forth in the Legislature’s second example. The rule is “based on the obvious reason that if the Legislature had intended the general words to be used in their unrestricted sense, it would not have mentioned the particular things or classes of things which would in that event become mere surplusage.” (Scatty, supra, at p. 819; see also Kraus v. Trinity Management Services, Inc. (2000) 23 Cal.4th 116, 141 [96 Cal.Rptr.2d 485, 999 P.2d 718].)

*181“In construing criminal statutes the ejusdem generis rule of construction is applied with stringency. [Citations.]” (People v. Thomas (1945) 25 Cal.2d 880, 899 [156 P.2d 7].) For example, in Thomas, this court applied the rule to section 189 of the Penal Code, which, at that time, “define[d] the degrees of murder as follows: ‘All murder which is perpetrated by means of poison, or lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, [or] which is committed in the perpetration or attempt to perpetrate arson, rape, robbery, burglary, or mayhem, is murder of the first degree; and all other kinds of murders are of the second degree.’ ” (25 Cal.2d at p. 899.) After observing that the rule “is applied with stringency” in construing criminal statutes, we explained that “the more general words ‘or any other kind of willful, deliberate, and premeditated killing,’ following the specifically enumerated instances of killing which are expressly declared to constitute murder of the first degree, must be construed in the light of such specifically listed types and be held to include only killings of the same general kind or character as those specifically mentioned. By conjoining the words ‘willful, deliberate, and premeditated’ in its definition and limitation of the character of killings falling within murder of the first degree the Legislature apparently emphasized its intention to require as an element of such crime substantially more reflection than may be involved in the mere formation of a specific intent to kill.” (Id. at pp. 899-900.) Here, similarly, we conclude the Legislature expressed its intention to define a false compartment as requiring something other than original factory-installed equipment by conjoining the words “modified, altered, or changed” in its limitation of the character of original factory equipment in subdivision (d)(2) of section 11366.8. While the proviso “including, but not limited to” “connotes an illustrative listing, one purposefully capable of enlargement” (In re Forfeiture of $5,264 (1989) 432 Mich. 242 [439 N.W.2d 246, 252]), that proviso here applies to the general overall list of examples of “false compartment” in section 11366.8, but it cannot apply within the second example (subd. (d)(2)) to enlarge the category to include original factory equipment because the proviso would render nugatory the qualifiers that the Legislature purposefully included in that example.

The same principle of statutory construction applies to the restrictions involved in all three examples of a false compartment the Legislature has provided. Each example of a “false compartment” set forth in section 11366.8(d) involves using or constructing something more than the existing compartments or original factory equipment in a vehicle—either using “false” equipment in addition to original factory equipment (e.g., a false fuel tank)2 *182or making some change to the existing original factory equipment or existing compartments in the vehicle (e.g., a modified fuel tank). Together, these specific examples restrict the meaning of a false compartment to boxes, containers, spaces, or enclosures that are not simply factory-created compartments or original factory equipment.

As noted above, the Gonzalez court relied on the fact that “the statute specifies that a false compartment includes but is not limited to [the] enumerated examples,” and on the general rule of statutory construction that “[u]se of the language ‘including, but not limited to’ in the statutory definition is a phrase of enlargement rather than limitation,” to conclude that a false compartment could include a space used to conceal controlled substances in a vehicle even “without any modification of the physical configuration of the space.” (Gonzalez, supra, 116 Cal.App.4th at p. 1414.) Although the Gonzalez court correctly reasoned that the examples set forth in subdivision (d)’s definition of false compartment are not an exclusive list of all possible false compartments under section 11366.8, it failed to apply other applicable canons of statutory construction to the examples the Legislature did provide. Having analyzed the statute’s words in those three examples of a false compartment under established canons of statutory construction, we are convinced that the Legislature intended to exclude original unaltered, unmodified, and unchanged factory equipment of a vehicle from its definition of “false compartment” in section 11366.8. To the extent People v. Gonzalez, supra, 116 Cal.App.4th 1405, holds to the contrary, we disapprove it.

Alternatively, were we to conclude that inclusion of the qualifiers in the second example, in conjunction with the general “including but not limited to” language, created an ambiguity regarding whether original factory equipment was excluded from the definition of false compartment in section 11366.8, we would reach the same result. Here, where the statute defining a crime is susceptible of two reasonable interpretations, we would adopt the interpretation that is more favorable to the defendant. (People v. Avery, supra, 27 Cal.4th at p. 57.) When a statute is ambiguous, we may consider its legislative history and the statute’s purpose. (Coalition of Concerned Communities, Inc. v. City of Los Angeles, supra, 34 Cal.4th at p. 737.) The Senate Judiciary Committee’s analysis of Assembly Bill No. 1760 (1993-1994 Reg. Sess.) observed that according to the law enforcement agency sponsors of the measure, during the first three months of 1993, “approximately 100 vehicles were interdicted at the California-Mexico border utilizing a variety of fabricated or altered storage compartments or parts in *183vehicles. The sponsors contend that the proliferation of false compartments in the drug trade is due to an increase in the number of specialized auto shops which manufacture and install such compartments. . . . Persons who manufacture or use secret compartments can only be prosecuted for an underlying drag offense and not for the use of the compartment itself.” (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 1760 (1993-1994 Reg. Sess.) as introduced Mar. 4, 1993, p. 2, italics added.) The Senate Judiciary Committee’s analysis included the bill sponsors’ assertion that “under current law, an auto shop which builds and installs false compartments for the transportation of controlled substances may openly admit their purpose to law enforcement officers and feel secure in the fact that they have violated no law and can not be prosecuted unless they actually possess an illegal controlled substance” and the sponsors contend that the bill “would provide a necessary tool for law enforcement efforts to combat increasing use of false compartments in the drag trade.” (Ibid., italics added.) This legislative history reveals the legislative intent to punish the individual who manufactures false compartments or who uses false compartments that are fabricated by someone other than the manufacturer of the original vehicle equipment.

Based on our statutory construction analysis of section 11366.8(d), we conclude that the trial court’s instruction that a space or enclosure in a vehicle can constitute a “false compartment” within the meaning of subdivision (a) of section 11366.8, “even without any modification of the physical configuration of the space,” misinformed the jury and constituted error. Again, to the extent People v. Gonzalez, supra, 116 Cal.App.4th 1405, holds to the contrary, we disapprove it. The Attorney General’s argument that such an interpretation eliminates the “scienter” requirement for crimes proscribed in the section ignores the fact that a defendant cannot be found guilty of possession, use, or control of a false compartment unless the prosecution can establish that he or she possessed, used, or controlled the false compartment with the specific intent to “store, conceal, smuggle, or transport a controlled substance.” (§ 11366.8(a).) The remaining question is whether the error was prejudicial in this case.

At trial, Officer Voyvodich testified he first saw the plastic ball containing the baggies of methamphetamine because it was sticking out of a “gap” between the dashboard and steering column of the 1996 Lexus defendant was driving. Voyvodich said the drags were stuffed between the steering column and adjacent wiring behind part of the dashboard and that he easily removed that “loose” dashboard panel because it clipped in and out to facilitate access to the electrical circuitry in that area. The prosecutor never asked the officer whether he tried to determine whether this space, or any other part of the Lexus, was standard in that model or whether it had been modified, altered, or changed in any way in order to prevent the discovery of controlled substances. Voyvodich addressed the issue only when asked on *184cross-examination whether he had spoken with a Lexus dealer or mechanic to ascertain whether the “headliner” he examined was standard in that model. Voyvodich answered “no”; he also conceded that he did not personally know whether the headliner “was a standard feature of this particular model.” Nothing in his testimony suggests that Voyvodich made any such inquiry with respect to the space in which the drugs were found. Apart from defendant’s uncontradicted testimony that he did not make any change to, or modification of, his mother’s Lexus, the officer’s testimony constitutes the only evidence that touched on whether the original factory equipment in the Lexus had been modified, altered, or changed.

The prosecutor told the jury in her opening statement that she was confident it would find defendant guilty of transporting methamphetamine “in a secret compartment inside the car. A compartment that is not used primarily for storing items, such as the glove compartment.” In her closing argument, the prosecutor told the jury the place where the drugs were found was a “hidden compartment,” although anyone would “be able to see that methamphetamine” in the “big gap” as they were “getting into that driver’s seat.” She argued the space in which the drugs were found is not a place “where you are going to put your wallet. It’s not where you are going to put your registration. This is solely for the purpose of harboring these drugs . . . .” Significantly, the prosecutor never suggested to the jury that any of the original factory equipment of the Lexus had been modified, changed, or altered in order to create a space that was intended to prevent the discovery of controlled substances.

Here, where no evidence was presented suggesting there had been an aftermarket modification of, or alteration to, the original factory equipment of the vehicle in which illegal drugs were found, we conclude the trial court’s instruction that a false compartment is a space in a vehicle used to conceal controlled substances “even without any modification of the physical configuration of the space” was prejudicial. In addition, we agree with the Court of Appeal that, “entirely apart from the instructional error, [defendant’s] conviction for using a ‘false compartment’ cannot stand for the independent reason that the evidence was insufficient to sustain it.”

III. DISPOSITION

The judgment of the Court of Appeal is affirmed.

George, C. L, Kennard, L, Werdegar, L, Moreno, L, and Corrigan, L, concurred.