Opinion
NOT TO BE PUBLISHED
Lake County Super. Ct. No. CR901531
Margulies, J.
Defendant was convicted of manufacture of methamphetamine and related offenses. Police located defendant inside a closed shed outside his residence and ordered him out. Before leaving the shed, defendant dumped a container of hot liquid onto the floor. When a sheriff’s deputy entered the shed, he detected a strong, noxious odor and was forced to defer an investigative search of the shed until the odor dissipated. On the basis of this evidence, defendant was also convicted of delaying an officer in the course of his duties. Defendant contends the evidence supporting this conviction was insufficient. We affirm.
I. BACKGROUND
Defendant was charged in an information filed September 9, 2005, with manufacture of methamphetamine (Health & Saf. Code, § 11379.6, subd. (a)), possession of ephedrine with intent to manufacture methamphetamine (Health & Saf. Code, § 11383, subd. (c)(1)), being under the influence of methamphetamine (Health & Saf. Code, § 11550, subd. (a)), resisting, obstructing, and delaying a particular officer in the performance of his duties (Pen. Code, § 148, subd. (a)(1)), and possession of paraphernalia for smoking a controlled substance (Health & Saf. Code, § 11364). As an enhancement, it was alleged defendant was armed with a firearm in the commission of the counts charging manufacture of methamphetamine and possession of ephedrine. (Pen. Code, § 12022, subd. (c).)
Sheriff’s Deputy Andrew Davidson testified he and other officers went to defendant’s residence to conduct a probation search with regard to another person living there. As Davidson approached a shed adjoining the house, he heard noises inside, knocked and identified himself, and ordered the occupant outside. Immediately sounds of scrambling came from inside, toward the rear of the shed. Then there was a loud crashing noise, and within seconds defendant walked out the front door.
In the following background discussion, we recount only the evidence that is relevant to the issue raised by defendant on appeal.
As defendant was being handcuffed by another deputy, Davidson looked into the shed and smelled a strong odor. He recognized it as the odor of a chemical used in methamphetamine manufacture. The odor caused Davidson, who was not wearing any protective clothing or device, to become “pretty scared” because of the volatility and “acidic” nature of the chemical. Davidson entered the shed for about 15 seconds to check for other persons or an immediate safety threat, turned off a hot electrical burner on a stove inside, and left, unable to continue the search because of the chemical odor. As he left, Davidson opened the door wide to ventilate the shed. He was reluctant to remain in the shed “until we kind of let it air out for awhile.”
Twenty minutes later, Davidson re-entered the shed with another deputy to complete the search. They found a warm Pyrex dish under a cupboard and a puddle of liquid on the floor, next to the burner. The deputies concluded the liquid had been dumped on the floor from the dish. One of the officers used a “tubette” to suction a sample of the liquid from the floor. They also found a plastic measuring cup filled with another liquid, which they emptied into an evidence container. When interviewed, defendant explained he was watching the chemicals in the shed for a third person. When the police arrived, he became frightened, dumped a liquid that was being heated in a Pyrex dish onto the floor, and hid the dish. Davidson testified that defendant’s dumping the liquid onto the floor “delay[ed] [his] recovery of those items, that liquid item and ma[d]e it more difficult.”
On the basis of this and other evidence, defendant was convicted of all five counts, but the jury found the enhancement allegation not proven. He was placed on five years’ probation and ordered to serve a 270-day jail term.
II. DISCUSSION
Defendant contends that his conviction under Penal Code section 148, subdivision (a)(1) was not supported by sufficient evidence. Although the information charged defendant with “resist[ing], delay[ing], and obstruct[ing]” an officer, defendant contends that through its argument and requested jury instructions the prosecution narrowed the charge to defendant’s delay of Davidson in his investigation by dumping the liquid onto the floor. The Attorney General concedes this election. We therefore determine whether there was sufficient evidence for the jury to conclude that defendant delayed Davidson’s investigation by dumping the hot liquid.
In his opening brief, defendant argued in the alternative that, if no election was made, his conviction should be reversed for failure to give a unanimity instruction. Defendant has withdrawn this argument in his reply brief as a result of the Attorney General’s concession.
“ ‘When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.] We determine ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Citation.] In so doing, a reviewing court ‘presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ [Citation.] ‘This standard applies whether direct or circumstantial evidence is involved.’ ” (People v. Avila (2009) 46 Cal.4th 680, 701.)
The evidence demonstrated that defendant dumped a Pyrex dish containing a hot, volatile liquid onto the floor just prior to leaving the shed. When Davidson began to enter the shed, he recognized a strong, noxious odor. As a result of the presence of this odor, which frightened Davidson because of the nature of the chemical, he was initially unwilling to enter the shed for more than a few seconds. His investigative search was stalled until the air of the shed could be cleared. This testimony provides reasonable, credible, and solid evidence from which a reasonable trier of fact could find defendant guilty beyond a reasonable doubt of delaying Davidson in his work.
Defendant’s primary arguments are based on the misapprehension that the claimed basis for the delay was the difficulty in collecting the liquid caused by defendant’s throwing it on the floor, which forced the deputies to suction the liquid rather than sample it directly from the Pyrex dish. Thus, defendant argues first that the jury could not have found beyond a reasonable doubt that Davidson personally was delayed because he was unsure whether he or a second deputy suctioned up the liquid. As discussed above, however, Davidson’s testimony demonstrates that it was not just sampling the liquid that was delayed by defendant’s dumping the chemical. Rather, as a result of the odor created, all investigative activities in the shed were delayed by the spill. Because Davidson participated in the investigative search of the shed, his activities were delayed, even if he did not personally suction the liquid from the floor.
Similarly, defendant argues that having to suction the liquid from the floor, rather than sampling it from the stove, did not result in any actual delay. Again, the argument misses the point. The delay was caused not by the need to suction the liquid from the floor but by the need to let the odor dissipate. For that reason, the case relied on by defendant, People v. Quiroga (1993) 16 Cal.App.4th 961, 964–965, does not preclude a finding of sufficient evidence.
In his reply brief, defendant argues that the “dangerous fumes... would have been present regardless if appellant had poured the liquid out or left it on the burner” and Davidson stayed out of the shed as a result of standard safety precautions, rather than as a result of the spill. While defendant is correct there is no direct evidence that dumping the liquid caused the intense odor, it is common knowledge that dumping a hot liquid onto a surface causes a quick, abundant volatilization of the liquid. Anyone who has drained pasta by pouring the cooking water into the sink is familiar with this phenomenon, which results in an immediate and powerful upwelling of steam. Further, the intensity of the odor described by Davidson was such that it was unlikely defendant would have been able to stay in the shed with the door closed—the situation the police found when they arrived—if the odor had been present prior to the deputies’ arrival. While some odor likely would have been present regardless of the dumping, the combination of these two factors permitted the jury to infer beyond a reasonable doubt that defendant’s dumping the liquid caused the odor to have an intensity sufficient to delay the investigation.
Although Davidson testified he was taking safety precautions, this does not preclude defendant’s conviction. The safety measures were necessitated by the presence of the strong odor. There is nothing in the record to suggest he would have done the same in the absence of an odor of that strength. Further, the length of the delay was proportional to the intensity of the odor. To the extent defendant’s dumping increased the intensity of the odor, he lengthened any delay that resulted from the deputies’ safety measures.
III. DISPOSITION
The judgment of the trial court is affirmed.
We concur: Marchiano, P.J., Graham, J.
Retired judge of the Marin County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.