Opinion
F040131.
10-23-2003
THE PEOPLE, Plaintiff and Respondent, v. JUAN HUERTA AGUILAR, Defendant and Appellant.
Rex Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Mathew K. Chan and Carlos A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant, Juan Huerta Aguilar, and his codefendant, Ricardo Leon Garcia (Garcia), were each convicted by a jury of manufacturing methamphetamine (Health & Saf. Code, § 11379.6, subd. (a)), possession of ephedrine with the intent to manufacture methamphetamine (§ 11383, subd. (c)), possession of methamphetamine for sale (§ 11378), possession of methamphetamine while armed (§ 11370.1, subd. (a)), and possession of methamphetamine (& sect; 1377, subd. (a)). Special allegations alleging that a child under the age of 16 was present in the structure where the crimes occurred (§ 11379.7, subd. (a)), that the substance containing methamphetamine exceeded one pound (§ 11379.8, subd. (a)(1)), and that the defendants were personally armed during the commission of the offenses (Pen. Code, § 12022) were found true by the jury. In addition, appellant was convicted of maintaining a place for the preparation or storage of methamphetamine (& sect; 11366.5, subd. (a)). The trial court sentenced each defendant to a total term of 10 years.
All further statutory references are to the Health and Safety Code unless otherwise indicated.
On appeal, appellant contends the trial court erred in denying his suppression motion, that the evidence was insufficient to support the jurys verdicts, that possession of ephedrine is a lesser included offense of manufacturing methamphetamine, and that his sentences for possession of methamphetamine for sale and maintaining a place for the manufacture or storage of methamphetamine must be stayed pursuant to Penal Code section 654. We find appellants arguments without merit and affirm the judgment.
FACTS
On February 21, 2001, sheriffs detective Gene Pinon proceeded to 5629 Dietz Road to investigate a possible methamphetamine laboratory. He was accompanied by other officers from the narcotics task force. As he passed by the residence, he observed Erica Sarabia standing outside holding a baby in her arms. While driving past the house, Pinon smelled a strong odor of alcohol. He approached the house to speak with its occupants. Sarabia answered the door, followed shortly by appellant. When the door was opened, Pinon noticed that the alcohol fumes were much stronger inside of the house. Knowing that alcohol fumes are highly flammable and fearing an explosion, Pinon moved Sarabia and appellant away from the residence and ordered other officers to secure and ventilate the house.
Detective Timothy Elliott entered the house to look for any persons who might be inside and to open the windows. In one of the upstairs bedrooms, Elliott found Garcia hiding in a closet. The officer also saw a rifle, within Garcias reach, in the closet. Garcia had red eyes and was sweating and Elliott stated he looked like he had been inhaling alcohol fumes. Garcia was removed from the house and the officers continued ventilating the residence. Once the house was ventilated and secured, the officers notified the fire department as well as other agencies responsible for dismantling methamphetamine laboratories.
Special agent Nathan Davalle with the Department of Justice Bureau of Narcotic Enforcement testified regarding methamphetamine laboratories. He explained that methamphetamine manufacturers will not store all of the equipment and chemicals used to make methamphetamine together, using only what is necessary for each step in order to make it more difficult for law enforcement to detect. He explained that when making methamphetamine one must extract ephedrine from pills, which requires solvents, buckets and a heat source. When the extraction process takes place there is a high risk of explosion because it involves flammable liquids and gases. Any sparks or open flames can ignite the gases.
Throughout trial reference was made to both ephedrine and pseudoephedrine. The testimony established that ephedrine and pseudoephedrine are mirror images of each other and both may be used in the manufacture of methamphetamine. For purposes of our discussion, the term ephedrine will encompass both ephedrine and pseudoephedrine.
Davalle responded to the Deitz residence on the day in question to investigate a possible ephedrine extraction laboratory. Prior to entering the residence Davalle donned protective equipment. He explained the house was a two-story structure with a bedroom, kitchen and bathroom downstairs and two bedrooms and an attic-type room upstairs. The attic room was accessible from doors in each of the upstairs bedrooms. He observed that the attic room was not well ventilated.
In order to extract ephedrine to manufacture methamphetamine, one would obtain tablets containing ephedrine, crush them, place them in a bucket with denatured alcohol which adheres to the ephedrine, filter out the remaining sludge and dry the solution leaving pure ephedrine powder. In the attic Davalle found several items used in this process. These items included microwaves, commonly used to speed up the evaporation process, a glass dish with solution and powder in it, a scale commonly used to weigh chemicals, plastic buckets containing solution and powder, wooden spoons and rods with white residue, a pan with white powder, a vacuum filter pump, a blender (commonly used to crush ephedrine pills), 18 empty one-gallon containers of denatured alcohol, bowls containing white powder, a box containing approximately eight pounds of a white powder and a crock pot with a powder residue on the lid. Based upon what was found in the room, Davalle opined the attic was being used to extract ephedrine.
In addition to the above items, Davalle also found other items that were used to make methamphetamine once ephedrine had been extracted. In one of the upstairs bedrooms, he found four one-gallon jugs. An amber liquid found inside three of the jugs was later determined to contain hydrotic acid. In the attic Davalle found gasoline containers that are typically used to hold hydrotic acid and a bottle of sodium thiosulfate, which is used to remove iodine from finished methamphetamine. Davalle explained that once ephedrine is extracted from pills, it is mixed with hydrotic acid and red phosphorus and heated to make methamphetamine. No red phosphorus was found at the residence.
Criminalist Mark Kalchick tested samples of the solutions and powders found in the attic. Four of the solutions contained ethanol and ephedrine. One solution contained alcohol and 1,1-dichloro-1-fluoroethane, an organic solvent used to make methamphetamine after the extraction process. The solution also contained by-products from the methamphetamine manufacturing process indicating that it had previously been used to manufacture methamphetamine. The powder found in the bowls and in the eight-pound box contained ephedrine. According to Kalchick, eight pounds of ephedrine would yield approximately six pounds of methamphetamine.
Detective Joseph Campos assisted with the search of the Dietz house. In the attic he found a rolled-up $1 bill and a white powder, later determined to be .11 grams of methamphetamine, separated into lines on a mirror. He also found a roll of duct tape and latex gloves in the attic. In a shed connected to the house by a roof, Campos found nearly two pounds of what was later determined to be methamphetamine, wrapped in plastic and duct tape and concealed inside of a potato chip bag which was hidden in a stack of tires. A further search of the residence revealed a folded $1 bill with .04 grams of methamphetamine in a closet in the bathroom. In the north upstairs bedroom, he found a loaded .22-caliber rifle. A seven-millimeter rifle was found in the south bedroom. A 30-30 rifle was found in the downstairs bedroom. All of the firearms found in the house were tested and found to be operable.
Diana Trevino was an occupant of the Dietz house. She explained that she and the other occupants would pay rent to appellant and that he would pay the landlord. Appellant and his girlfriend, Adriana Gomez, and their two-year-old child occupied the downstairs bedroom. Manuel Ontiveros, appellants brother, lived in the north upstairs bedroom with Sarabia and their baby. Jose Ontiveros, appellants other brother, occupied the remaining room. Garcia, Joses cousin, did not live there; however, he came over daily to watch television, eat and go upstairs for a few hours. Trevino noted that she had smelled a strange odor in the house on about four occasions.
Gomez confirmed that she shared the downstairs bedroom with appellant and their child. Appellant kept a rifle in the room that he sometimes used for hunting. Gomez also stated that she had smelled a strong odor of alcohol come from upstairs on approximately three occasions. When interviewed by the police, she admitted that she suspected drugs were being made in the attic. In addition, she stated she told Pinon that both appellant and Garcia had told her to leave the house on one occasion because the house was going to smell like alcohol.
Appellants Defense
Onecimo Calderon, appellants coworker, testified that appellant was at work from 7:00 a.m. to 3:00 or 3:30 p.m. the day the officers searched the house.
DISCUSSION
I. The trial court properly denied the motion to suppress.
Appellant challenges the existence of an exigent circumstance warranting entry into the residence and contends that the officers actions were inconsistent with a motive to preserve life or property. We conclude the trial courts ruling, finding an exigent circumstance existed, was proper.
Exigent circumstances include an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property. The action must be prompted by the motive of preserving life or property and must reasonably appear to be necessary for that purpose. The exigent circumstance test thus involves a two-step inquiry: (1) factual questions as to what the officer knew or believed and what action he or she did in response and (2) the legal question which is whether that action was reasonable under the circumstances. (People v. Duncan (1986) 42 Cal.3d 91, 97.)
On appeal, a reviewing court must affirm the trial courts determination of the factual questions if they are supported by substantial evidence, but must take responsibility for deciding the legal question according to its independent judgment. Generally, the reasonableness of the officers conduct is dependent upon the existence of facts available to him or to her at the moment of the search or seizure that would warrant a person of reasonable caution to believe that the action taken was appropriate. In determining whether the officer acted reasonably due weight must be given not to an officers unparticularized suspicions or hunches, but to the reasonable inferences that the officer is entitled to draw from the facts in light of that officers experience. (People v. Duncan, supra, 42 Cal.3d at pp. 97-98.)
In the Duncan case, Officer Paulson responded to a radio dispatch that a burglary was in progress at 12:30 p.m. Paulson spoke to the neighbor of the house where the burglary had occurred. The neighbor had just seen two teenagers flee with a television set. Paulson found a back window open. On the ground beneath the window there was a box containing a television set and other items. Believing one or more of the burglars was still inside the residence, Paulson climbed in the open window to search for intruders. Paulson observed a lot of glassware, bags of white powder (one with the words "second cooking" written on it, along with its weight in grams) and containers of ether acetate. Paulson believed he had stumbled on a drug laboratory. (People v. Duncan, supra, 42 Cal.3d at pp. 95-96.)
Paulson was dizzy from the fumes and unsure of what to do. He went into the kitchen to radio his supervisor, Sergeant House. House arrived in five minutes and entered through the front door. House smelled a strong chemical odor. He also observed gallons of acetone, beakers, vials and an operating heat lamp. Experienced with narcotics laboratories and fearing an explosion, House ushered Paulson out of the residence.
Officer Gremminger soon arrived and could smell the strong chemical odor of ether from the driveway. Gremminger listened to Paulsons and Houses accounts. Though the occupant of the residence was contacted, he refused to give information concerning the laboratory. Gremminger called the fire department and the federal drug enforcement agency before entering the premises where he discovered methamphetamine. (People v. Duncan, supra, 42 Cal.3d at pp. 96-97.)
The Duncan court found that the odor of ether, alone, did not provide probable cause for a search or exigent circumstances excusing a warrant absent a concentration of the odor strong enough to be noxious or highly explosive. (People v. Duncan, supra, 42 Cal.3d at p. 103.) The Duncan court reasoned, however, that by the time the second officer arrived, the smell of ether emanating from the residence was strong enough to be noticed from the driveway. Paulson and House could not tell if heat was being applied to any apparatus. Gremminger testified that he entered the residence to determine whether the lab was going to blow up, if something was cooking, or if the officers had to evacuate the neighborhood. Based on these facts, the Duncan court found there was substantial evidence to support the trial courts finding that Gremminger believed exigent circumstances existed. (Id . at p. 105.)
The Duncan court further held that Gremmingers belief and response were reasonable under the circumstances. This was so because the "extremely volatile nature of chemicals, including ether, involved in the production of drugs such as PCP and methamphetamine creates a dangerous environment, especially when handled unprofessionally by residential manufacturers of illicit drugs." Gremmingers warrantless entry into the residence was justified by the reasonable belief that dangerous chemicals were being mishandled and there were exigent circumstances requiring action. (People v. Duncan, supra, 42 Cal.3d at p. 105.)
The facts of the present case are similar to Duncan. Here, the officers had received some information from a confidential reliable informant that two persons known to have engaged in the manufacture of methamphetamine had been present at the house. In addition, one of the men was seen carrying boxes into the home. The informant stated that he had smelled an unusual odor emanating from the house in the recent past. Based on this information, the officers proceeded to the residence to conduct a "knock and talk." This is a procedure where officers contact a citizen they suspect of illegal activity and ask for consent to search their home.
As the officers approached the house, both Pinon and Elliott smelled a strong odor of denatured alcohol from more than 30 feet away. The officers decided to make contact with the residents, and Pinon approached and knocked on the front door. When Sarabia answered the door, Pinon smelled an even stronger odor of denatured alcohol within the house. Pinon spoke briefly with Sarabia and appellant and concluded that the alcohol fumes caused a danger of explosion or flash fire. Pinon moved Sarabia and appellant 40 to 50 feet from the residence and told the other officers to enter the house, look for any people remaining in the house who could have been overcome by fumes and ventilate the fumes by opening the windows.
Pinon related his extensive training and experience regarding methamphetamine laboratories. He had previously smelled and was aware of the odor of denatured alcohol. Pinon explained that denatured alcohol is highly flammable and it can be ignited by a spark caused from a radio transmission, plugging a cord into an outlet, a flashlight, discharging a weapon, or from any kind of open flame, such as a water heater. Pinon was aware of methamphetamine laboratories that had exploded, as well explosions that had resulted from the extraction phase of methamphetamine manufacturing.
Based on his training and experience with the chemicals used in clandestine methamphetamine laboratories, Pinon believed he was confronted with an emergency situation that required immediate action. Therefore, he ordered officers to enter the residence to look for anyone who had been overcome by the alcohol fumes and to ventilate the house.
Deputy Elliott was one of the officers who entered the home. He entered without wearing any protective clothing or a respirator despite having such equipment at the scene. Elliott stated he did not have time to put on such equipment due to the urgency of the situation. He noted that Pinon had contacted the residents at 3:50 p.m. and that he entered the house three minutes later. Once inside, Elliott went upstairs and discovered a man hiding in a closet. Upon making this discovery, Elliott called out for another officer to help him detain the man. Elliott did not use his handheld radio because it could have caused an explosion. Elliott noted that the alcohol fumes were even stronger upstairs and that he got a headache from the intensity of the fumes. Once it was determined there were no other people in the house, the officers opened the windows to dissipate the alcohol fumes.
After securing the scene the officers called the fire department. The fire truck arrived approximately one hour after the officers initially arrived on the scene.
As to whether an exigency existed, we agree with the trial court that the circumstances justified a warrantless entry into the house. The trial court here, relying on Duncan, concluded that the odor of alcohol alone was insufficient to constitute an exigent circumstance. However, the odor coupled with Pinons extensive training and experience with methamphetamine laboratories and the information he received from an informant was sufficient to constitute an exigency. Pinon believed that dangerous chemicals were being mishandled in the residence and that an explosion or flash fire was imminent. Based on this information, we conclude the officers were confronted with an emergency situation requiring immediate action.
We note that Duncan does not preclude a trial court from finding that a chemical odor alone creates an emergency where the fumes themselves are so concentrated that they are noxious or are highly flammable. (People v. Duncan, supra, 42 Cal.3d at p. 103.)
Contrary to appellants position otherwise, we find the officers actions were consistent with their belief that the situation constituted an emergency. Appellant faults the officers for failing to call the fire department sooner, for failing to don protective equipment prior to entering the residence, for failing to turn off the power and gas to the house, for failing to move the residents further from the house, and for entering the house with guns drawn and radios on. "The fact [that the] officers could have done something more before entering is not dispositive; their failure to take additional action must be viewed in the totality of the circumstances to determine the ultimate reasonableness of their intrusion." (People v. Ray (1999) 21 Cal.4th 464, 478.)
Viewing the officers actions in their totality we find them reasonable and demonstrative of their concern for an emergency situation. The officers arrived at the house and noticed a strong odor of alcohol. When Pinon contacted the occupants, he noticed the odor was stronger inside of the house. Pinon also had information that men who were visiting the house were engaged in the manufacture of methamphetamine. He also knew the dangers of manufacturing methamphetamine. These facts left the officers believing that a flash fire or explosion was imminent. Therefore, he moved the occupants to a position of relative safety and had officers enter the residence within minutes of determining there was a danger. Once inside, the officers remained there long enough only to look for any people who would be in danger and to ventilate the house. After securing the house, the officers summoned the fire department. These actions demonstrate the officers believed danger was lurking.
Elliott admitted that in retrospect the occupants should have been moved further from the house because they probably would have been injured if there was an explosion. However, the fact that the officers moved the occupants away from the house demonstrates they were acting in accord with a belief that the situation was dangerous.
According to Elliott, the scene was secured at 4:05 p.m. The fire captain testified that they received the call 40 minutes later. Appellant attempts to argue that the delay in calling the fire department demonstrated the officers did not believe an emergency existed. We disagree. Pinon testified that the sheriffs dispatcher was asked to call the fire department after they secured the scene. The dispatcher then made the call to the fire department. There was no testimony on how long it took the dispatcher to make the call, and one could infer that the time delay occurred with the dispatch and not the officers. Thus, we find the 40-minute delay insignificant.
Appellant argues that, in failing to turn off the gas or electricity or wear protective equipment prior to entering the residence, the officers demonstrated they did not believe an emergency existed. We are not persuaded. Elliott testified that the danger required immediate action and he did not have time to put on protective clothing or a respirator. According to Elliott, only three minutes passed between the time they contacted the residents and entered the house. This is consistent with the officers acting under the threat of an emergency situation.
As to the argument that the officers entered the house with radios on and guns drawn, we fail to see how that indicates a motive, other than safety, in entering the house. While testimony established that radio transmissions could cause a spark, we note that the officers did not use the radios once inside the house. When Elliott found Garcia, he shouted out for another officer; he did not use his radio because it could cause an explosion. Furthermore, we do not fault the officers for having their guns at the ready when they entered a dangerous situation. As one court has noted, it "should come as no great surprise that those who would profit by the illicit manufacture and sale of drugs which so often destroy their customers very lives, are not above adopting lethal means to protect their products from seizure and themselves from apprehension." (People v. Osuna (1986) 187 Cal.App.3d 845, 856.) Clearly having a weapon drawn provides security for the officer. Moreover, we note that the officers never discharged their weapons while in the house.
We likewise reject appellants argument that entry into the house was unnecessary to alleviate the danger. The officers testified that they entered the house to look for any people who might have been overcome by fumes and to ventilate the house. Entry was necessary to determine whether anyone else was still inside. Furthermore, it was imminently reasonable for officers to enter to ventilate the house. Appellant argues the officers could have protected the occupants privacy by simply opening or breaking windows from the outside. However, a person engaged in
We find unpersuasive appellants argument that the officers had no reason to believe anyone was present in the house because appellant said no one else was inside. The officers were justifiably skeptical of this information because it appeared the occupants were in the process of manufacturing methamphetamine.
"`post hoc evaluation of police conduct can almost always imagine some alternative means by which the objectives of the police might have been accomplished. But "[t]he fact that the protection of the public might, in the abstract, have been accomplished by `less intrusive means does not, in itself, render the search unreasonable." [ Citations.] The question is not simply whether some other alternative was available but whether the police acted unreasonably in failing to recognize or to pursue it. [ Citation.]" (People v. Osuna, supra, 187 Cal.App.3d at p. 855, fn. 12.)
Exercising our independent legal judgment, we find the deputies acted reasonably under the circumstances.
II. Sufficient evidence supports appellants convictions.
Appellant argues the evidence was insufficient to support each of his convictions. We find the evidence amply supported the convictions.
When the sufficiency of the evidence is challenged on appeal, the court reviews the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Welch (1999) 20 Cal.4th 701, 758; People v. Johnson (1980) 26 Cal.3d 557, 578.) We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence, including reasonable inferences based on the evidence and excluding inferences based on speculation or conjecture. (People v. Tran (1996) 47 Cal.App.4th 759, 771-772.) "The substantial evidence rule is generous to the respondent on appeal and permits a trier of fact to draw reasonable inferences from the evidence." (People v. Small (1988) 205 Cal.App.3d 319, 325.) "The same standard applies to the review of circumstantial evidence. (People v. Bean (1988) 46 Cal.3d 919, 932 ....)" (People v. Ceja (1993) 4 Cal.4th 1134, 1138.)
A. Manufacture of methamphetamine
Section 11379.6, subdivision (a), provides for the punishment of every person who "manufactures, compounds, converts, produces, derives, processes, or prepares, either directly or indirectly by chemical extraction or independently by means of chemical synthesis, any controlled substance specified in Section ... 11055 ...." Appellant contends no evidence demonstrated that the attic room was used to manufacture methamphetamine, nor did the evidence establish that appellant participated in the manufacturing process. We find these arguments unavailing.
Appellant relies on expert testimony opining that the attic was used as an ephedrine extraction laboratory to argue the evidence was insufficient to support the manufacturing conviction. This argument fails to take into account the fact that items associated with the manufacture of methamphetamine, which are used after the extraction process, were found in the home. Davalle testified that ephedrine extraction is the first phase of the manufacturing process. Clearly, the evidence established that ephedrine was being extracted in the attic, as all of the components for the process were found in the attic along with approximately eight pounds of extracted ephedrine. In addition, when the officers arrived at the house, it had an overwhelming odor of denatured alcohol and ephedrine/alcohol solution was found in one of the microwaves, suggesting the extraction process was taking place when the officers arrived.
Davalle noted that chemicals used in later stages of methamphetamine production were found in the house. Hydrotic acid, which is used to convert ephedrine into methamphetamine, was found in one of the upstairs bedrooms. In addition, the officers found a bottle of sodium thiosulfate in the attic that is used after methamphetamine is manufactured to whiten the final product. Moreover, Kalchick testified that a liquid containing 1,1-dichloro-1-fluoroethane, an organic solvent used in the manufacturing process, was found in the house. He noted that the liquid contained by-products of methamphetamine manufacturing indicating the liquid had previously been used in the manufacture of methamphetamine. In addition, approximately two pounds of finished methamphetamine were found in the shed.
There was testimony at trial that some components necessary for the manufacture of methamphetamine were not present at the house. However, a defendant is not entitled to acquittal simply because his clandestine laboratory did not contain all the chemical ingredients and materials needed to make a controlled substance and was not bubbling and reacting when law enforcement arrived at the scene. (People v. Heath (1998) 66 Cal.App.4th 697, 703-705; People v. Lancellotti (1993) 19 Cal.App.4th 809, 813-814.) Here, ephedrine, a necessary component to the manufacture of methamphetamine was found at the house along with other chemicals necessary to make methamphetamine. In addition, the officers found nearly two pounds of finished methamphetamine and a solvent with by-products from the manufacturing process indicating that the manufacture of methamphetamine had already taken place. Furthermore, Kalchick testified that it was not uncommon for items to be brought to the manufacturing site only when they are needed. The jury was certainly entitled to infer from these facts that appellant was engaged in manufacturing methamphetamine, rather than merely extracting ephedrine.
As we will explain, the evidence was sufficient to support a finding that appellant possessed the methamphetamine.
Appellant further contends that no evidence was adduced a trial which connected him with the manufacturing process. We disagree. It was undisputed that appellant lived at the house and collected rent from the other occupants. This allowed the jury to infer that appellant was in possession of items in the attic. "The inference of dominion and control is easily made when the contraband is discovered in a place over which the defendant has general dominion and control: his residence ...." (People v. Jenkins (1979) 91 Cal.App.3d 579, 584.) In addition, Trevino testified that she had smelled the alcohol odor in the house on a number of occasions prior to the police raid. Gomez testified that she had told Pinon that two weeks prior to the police raid appellant and Garcia had told her to leave the house because it was going to smell like alcohol. This statement indicates that appellant knew what was taking place at the house and was participating in some manner. Furthermore, appellant was present at the house when the police arrived. When the officers approached the residence, they noticed an odor of denatured alcohol from over 30 feet away. The odor was very strong in front of the house, and even stronger on the inside.
Although she acknowledged that she had made the statement to Pinon, Gomez claimed at trial that neither appellant or Garcia had made such a statement.
Due to the intense odor within the house, the extensive supply of chemicals present and the fact that a large amount of finished methamphetamine was found, the jury could infer that anyone present in the house knew that the manufacture of a controlled substance was taking place. (See People v. Goodall (1982) 131 Cal.App.3d 129, 144 [finding sufficient evidence of possession of PCP for sale from the fact of the defendants presence at the apartment where the drug was being made, the overpowering fumes in the apartment and the extensive chemical supply found there].) "While mere presence at the scene of the crime, standing alone, is not sufficient to sustain a finding of guilt,... the surrounding facts and circumstances may be sufficient to establish the essential facts of knowledge, and physical or constructive possession." (People v. Gentry (1953) 118 Cal.App.2d 501, 503.)
The entirety of the facts leads to the conclusion that, at the very least, appellant aided and abetted in the manufacture of methamphetamine. One is guilty of aiding and abetting the manufacture of methamphetamine where he (1) has knowledge of the purpose of the perpetrator to manufacture methamphetamine, (2) has the specific intent to facilitate the manufacture of the drug, and (3) aids, promotes, encourages, or instigates the manufacture of the drug. (People v. Sanchez (1994) 27 Cal.App.4th 918, 923; People v. Glenos (1992) 7 Cal.App.4th 1201, 1208.) His knowledge that the drug was being manufactured at the house and his intent to facilitate the manufacture were established through the evidence demonstrating that the items used in the process as well as the finished methamphetamine were found at his residence, and his statement to Gomez that she should leave because the house was going to smell like alcohol. The fact that others were also residing at the house does not weaken this inference. The bulk of the items used in the manufacture process were found in the attic, presumably a common area accessible to all residents. The finished methamphetamine was found in the shed, also accessible to all residents. In addition, testimony established that appellant was in charge of collecting rent from the other occupants to pay the owner, indicating that appellant was in charge of the residence. Furthermore, the jury could infer that appellant aided, promoted or encouraged the manufacture by allowing the process to take place at the house. Thus, we conclude the evidence was sufficient to support the manufacturing conviction.
We are aware that to enter the attic one had to travel through either of the two upstairs bedrooms. However, this does not suggest that appellant had no right to access the attic. It was clear from the testimony that the attic was used as a laboratory, and nothing indicates that it was not accessible to all.
B. Possession of ephedrine with the intent to manufacture methamphetamine
Health and Safety Code section 11383, subdivision (c)(1), provides in pertinent part:
"Any person who, with intent to manufacture methamphetamine or any of its analogs specified in subdivision (d) of Section 11055, possesses ephedrine or pseudoephedrine ... or who possesses a substance containing ephedrine or pseudoephedrine ... is guilty of a felony ...."
The elements of the offense are (1) physical or constructive possession of the restricted drugs, (2) with knowledge of the presence and narcotic character of the drugs, and (3) possession of the drugs with the intent to manufacture methamphetamine. (People v. Jenkins, supra, 91 Cal.App.3d at p. 583; CALJIC No. 12.09.4)
For many of the reasons noted above, we conclude the evidence was sufficient to support appellants conviction on this count. The ephedrine was discovered in the attic of appellants residence, and the evidence allowed the jury to infer that appellant was present during the extraction process. Given the strong odor of alcohol in the house at the time the police arrived, appellant can hardly contend that he did not know what was taking place in the room. Furthermore, appellant told Gomez to leave the house on one occasion because the house was going to smell like alcohol, further demonstrating appellant knew of and was involved in the extraction process. As to appellants intent to manufacture methamphetamine, as we have previously stated, two pounds of finished methamphetamine were discovered in the shed and chemicals associated with the manufacturing process were present in the house. As the jury could conclude appellant had constructive possession of these items, it was likewise entitled to infer that appellant possessed the intent to manufacture methamphetamine.
C. Possession of methamphetamine
To establish the crime of possession of a controlled substance, the prosecution must demonstrate the defendant had actual or constructive possession of a useable quantity of a controlled substance with knowledge of its presence and nature. (People v. Morales (2001) 25 Cal.4th 34, 41.) Appellant contends no evidence demonstrates he knew of the presence of the methamphetamine.
Possession may be demonstrated through actual physical possession or by constructive possession. (People v. Showers (1968) 68 Cal.2d 639, 644.)
"Actual or constructive possession is the right to exercise dominion and control over the contraband or the right to exercise dominion and control over the place where it is found. [Citation.] Exclusive possession is not necessary. A defendant does not avoid conviction if his right to exercise dominion and control over the place where the contraband was located is shared with others. [Citations.]" (People v. Rushing (1989) 209 Cal.App.3d 618, 622.)
Here, approximately two pounds of methamphetamine were found in an unlocked shed which was attached to the residence by a roof. The drugs were in packaging wrapped with duct tape and placed inside a potato chip bag, which in turn was hidden inside a stack of tires. According to Campos, the shed contained household garbage. Because the methamphetamine was found in a common area, the jury was entitled to infer that appellant had constructive possession of it. Likewise, the jury could infer that appellant had constructive possession of the methamphetamine found in the attic on the mirror and the methamphetamine found in the bathroom. These were areas accessible to appellant and the jury could infer he possessed the items found there.
Appellants knowledge of the presence of the methamphetamine could be inferred from his participation in the manufacturing process. As we have already noted, appellant lived at the residence, had previously told Gomez to leave because the house would smell like alcohol and was present when the house smelled strongly of alcohol. From this information the jury could infer that appellant took place in the manufacturing process and knew of the presence of the finished product at the house. The fact that appellant participated in the manufacture and that methamphetamine was found hidden in the shed provided evidence that he knew of the narcotic nature of the substance. (See People v. Rushing (1989) 209 Cal.App.3d 618, 622, fn. 2 [holding that the jury could reasonably infer that the defendant knew of the controlled nature of cocaine because the cocaine was hidden in a can with a false bottom, and that conviction for possession of cocaine was therefore supported].) Thus, we conclude the evidence was sufficient to support the methamphetamine possession convictions.
Appellant apparently argues all of his possession convictions were unsupported because no evidence demonstrates he knew of the presence of any of the methamphetamine. He does not dispute the evidence demonstrating that the methamphetamine was possessed for the purpose of sales or that he was armed with a firearm while in possession of the drug. Therefore, we will not address those elements of his crimes.
D. Permitting a building for manufacture or storage of methamphetamine
Section 11366.5, subdivision (a), provides:
"Any person who has under his or her management or control any building, room, space, or enclosure, either as an owner, lessee, agent, employee, or mortgagee, who knowingly rents, leases, or makes available for use, with or without compensation, the building, room, space, or enclosure for the purpose of unlawfully manufacturing, storing, or distributing any controlled substance for sale or distribution shall be punished by imprisonment in the county jail for not more than one year, or in the state prison."
A defendant violates section 11366.5, subdivision (a), by knowingly permitting a controlled substance to be manufactured or stored in a building under his or her control for the purpose of sale or distribution to others. (People v. Glenos, supra, 7 Cal.App.4th at p. 1211.) Appellant argues no evidence was adduced at trial demonstrating that he knew that methamphetamine was being manufactured at his residence or that the methamphetamine was for the purpose of sale or distribution.
We have already recounted the evidence establishing that appellant knew methamphetamine was being manufactured at his residence and we need not do so again here. Regarding appellants knowledge that the methamphetamine was for the purpose of sales, we point to the large amount of methamphetamine found in the shed. "Intent to sell can be established circumstantially by the quantity of the drugs in defendants possession." (People v. Austin (1994) 23 Cal.App.4th 1596, 1614, disapproved of on other grounds by People v. Palmer (2001) 24 Cal.4th 856.) Nearly two pounds of methamphetamine were found in the shed and, based on this amount, Pinon opined the drugs were for sale.
The facts of the present case are unlike the facts of Glenos. There, the evidence established that two men rented property from the defendant and manufactured six pounds of methamphetamine there. The men left money and a "`chunk" of methamphetamine for the defendant, who was not present during the manufacturing process. The defendant was convicted of violating section 11366.5. (People v. Glenos, supra, 7 Cal.App.4th at p. 1205.) This court explained that although there was sufficient evidence to support a finding that manufacturers intended to sell or distribute the drug, there was no evidence that the defendant knew the drugs were intended for sale or distribution. Consequently, we reversed the defendants conviction.
Apparently the defendant arrived, dropped off a backhoe and left the property.
Here, unlike Glenos, the methamphetamine was found at appellants residence. As we have already stated, the evidence was sufficient to support the inference that appellant knew that the methamphetamine was hidden in the shed and, based on the amount, the jury could likewise infer that he knew they were for sale. Therefore, the conviction was supported by the evidence.
III. Possession of precursors is not a lesser necessarily included offense of manufacture of methamphetamine.
Appellant argues that his conviction of possession of ephedrine must be reversed because it is a lesser necessarily included offense of manufacture of methamphetamine.
An offense is included in another if reference to its elements reveals it is necessarily committed when the greater offense is committed. (People v. Pearson (1986) 42 Cal.3d 351, 355.) Section 11383, subdivision (c)(1), possession of ephedrine, provides in pertinent part: "Any person who, with intent to manufacture methamphetamine ... possesses ephedrine or pseudoephedrine ... is guilty of a felony." Section 11379.6, subdivision (a), manufacture of methamphetamine, provides:
"Except as otherwise provided by law, every person who manufactures, compounds, converts, produces, derives, processes, or prepares, either directly or indirectly by chemical extraction or independently by means of chemical synthesis, any controlled substance specified in Section 11054, 11055, 11056, 11057, or 11058 shall be punished by imprisonment in the state prison for three, five, or seven years ...."
As is apparent from a reading of these code provisions, one could commit the crime of manufacturing without also committing the crime of possession of ephedrine. To the extent that one would argue that ephedrine is a necessary ingredient to the manufacture of methamphetamine, we note that one could "aid and abet the manufacture without having actual or constructive possession of the necessary ingredients." (People v. Goodall, supra, 131 Cal.App.3d at p. 147.) Appellant argues that this court should not follow Goodall because its statement is dicta and its reasoning is flawed. We disagree.
Despite appellants assertion otherwise, we note that the statement in Goodall is not dicta because the defendants in that case argued that their convictions for possession of a precursor were barred because they were also convicted of manufacturing. (Id. at pp. 146-147.) Secondly, we agree withGoodalls analysis that one could aid and abet in the manufacture of methamphetamine without having either actual or constructive possession of the ephedrine used in the manufacture. Therefore, we reject appellants claim.
Specifically, the court noted that the defendants argued "possession of piperidine and cyclohexanone with intent to manufacture PCP, is a lesser included offense of ... manufacture of PCP, and that therefore the lesser offense should be dismissed." (People v. Goodall , supra, 131 Cal.App.3d at pp. 146-147.)
IV. Appellant was properly sentenced.
Appellant claims that his sentences for possession of methamphetamine for sale and allowing a place for the manufacture of methamphetamine must be stayed. We disagree.
Penal Code section 654, subdivision (a), provides:
"An 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, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other."
By its terms, Penal Code section 654 applies where a person suffers from multiple punishments for a single criminal act or omission. (People v. Beamon (1973) 8 Cal.3d 625, 637-638.) This provision also applies "when there is a course of conduct which violates more than one statute but constitutes an indivisible transaction." (People v. Saffle (1992) 4 Cal.App.4th 434, 438.) "Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." (Neal v. State of California (1960) 55 Cal.2d 11, 19; People v. Latimer (1993) 5 Cal.4th 1203, 1208.)
Whether there was more than one intent or objective is a question of fact for the trial court and will be upheld if there is substantial evidence to support it. Where, as here, the trial court does not make an express finding, an implied finding that the crimes were divisible inures in the judgment and must be upheld if supported by the evidence. (People v. Nelson (1989) 211 Cal.App.3d 634, 638.)
Appellant asserts that his crimes of manufacturing methamphetamine and possession of methamphetamine for sale were committed pursuant to one intent and objective, namely, to manufacture methamphetamine. Goodall, supra, rejected a similar argument. There, the defendants were convicted of possessing certain chemicals with intent to manufacture PCP, possession of PCP for sale, and manufacturing PCP. The appellate court found that Penal Code section 654 did not bar punishment for each of the crimes, reasoning:
"[T]he trial court could reasonably conclude that appellants intended (1) to manufacture PCP; (2) to sell the PCP they had manufactured, if they could find a buyer; and (3) to manufacture more PCP with the ingredients not used up in step (1).... The two counts involving manufacturing PCP and possession piperidine and cyclohexanone may also be separately punished by analogy to the drug seller cases, in circumstances where the court could reasonably conclude that the remaining inventory of chemicals is possessed with intent to manufacture more PCP. Whether [ the defendants] maintained multiple criminal objectives is determined under all the circumstances and is primarily a question of fact for the trial court, whose finding will be upheld on appeal if there is any substantial evidence to support it. [Citations.] Had the trial court found that the manufacturing and possession counts were part of an indivisible course of conduct with a single objective, that determination could likewise be upheld. But we cannot say there is no substantial evidence to support the trial courts contrary finding here...." (People v. Goodall , supra, 131 Cal.App.3d at pp. 147-148, italics added.)
Goodall is indistinguishable from the case at bar. In both cases the evidence supported a finding that the defendant manufactured a drug and retained additional precursors with the intent of manufacturing more of the drug at a later time. Thus, the court could find appellant intended to manufacture methamphetamine, sell what he had made, and then manufacture more with the remaining ingredients. Thus, the trial court was justified in determining that appellant harbored separate intents and objectives in committing his crimes. (People v. Goodall, supra, 131 Cal.App.3d 147-148; see, e.g., People v. Beamon (1973) 8 Cal.3d 625, 639, fn. 11 ["It seems clear that a course of conduct divisible in time, although directed to one objective, may give rise to multiple violations and punishment"]; People v. Massie (1967) 66 Cal.2d 899, 908 [a defendant may not bootstrap himself into Pen. Code, § 654 by claiming a series of robberies constituted a single course of conduct with one intent and objective].)
Likewise, the evidence supported the trial courts implicit finding that appellant harbored separate intents in manufacturing methamphetamine and providing a place for the manufacture of methamphetamine. As we have stated above, the evidence supported a finding that appellant aided and abetted in manufacturing methamphetamine by allowing the process to take place at his home. In addition to allowing the methamphetamine to be manufactured there, appellant also allowed finished methamphetamine to be stored at the residence. Nearly two pounds of finished methamphetamine were found in the shed attached to the house. Thus, the trial court could find that appellant had the intent to allow the manufacture of methamphetamine at the residence as well as an additional intent to allow the finished product to be stored on the premises. Thus, appellants sentences were proper.
The abstract of judgment reflects that the sentences on count 3 (possession of methamphetamine for sale) and count 6 (permitting a place for the manufacture of methamphetamine) were stayed. However, at the sentencing hearing the trial court clearly imposed concurrent terms on these counts. We will order the abstract amended to reflect the sentences as imposed by the court at the hearing.
DISPOSITION
The judgment is affirmed. The trial court is ordered to amend the abstract of judgment to reflect concurrent terms on count 3 (possession of methamphetamine for sale) and count 6 (permitting a place for the manufacture of methamphetamine).
WE CONCUR: Cornell, J., and Gomes, J.