Opinion
E038955
5-23-2007
THE PEOPLE, Plaintiff and Respondent, v. TANYA DENINE BOUCHER et al., Defendants and Appellants.
Laurel Nelson Smith, under appointment by the Court of Appeal, for Defendant and Appellant Tanya Denine Boucher. Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant Todd Kenneth Speers. Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Heather F. Crawford, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Following a joint trial, a jury found defendants and appellants, Tanya Denine Boucher and Todd Kenneth Speers (hereafter referred to collectively as defendants and individually by last name), guilty as charged of manufacturing methamphetamine in violation of Health and Safety Code section 11379.6, subdivision (a) (count 1), and possession of ephedrine, pseudoephedrine, and salts, isomers, salts of isomers of ephedrine and pseudoephedrine, and a combination product thereof, with intent to manufacture methamphetamine and its analogs, in violation of Health and Safety Code section 11383, subdivision (c)(1) (count 2). After denying defendants respective motions for new trial, the trial court sentenced each defendant to serve a total term of five years in state prison.
All further statutory references are to the Health and Safety Code unless indicated otherwise. Moreover, to the extent a particular statute has been amended, we will refer to the version in effect at the time of defendants offenses.
Both defendants challenge the sufficiency of the evidence to support the jurys verdicts on either of the two charges. Defendant Boucher also claims that the trial courts jury instructions on the two crimes were confusing, and that the trial court should have granted her pretrial motion for separate juries. We conclude that the evidence is sufficient to support the jurys verdicts on both counts as to both defendants. We further conclude that defendant Bouchers other claims are meritless. Therefore, we will affirm the judgments as to both defendants.
FACTS
The evidence presented at trial is undisputed. On December 8, 2004, around noon, two Hemet Police Department officers went to a mobilehome park on Florida Avenue and knocked on the door of the 27-foot recreational vehicle (RV) parked in space No. 117. Defendant Boucher opened the door in response to the knock. Defendant Speers was inside the RV, sitting on "the couch." The RV belonged to Mike Spraulding, defendant Bouchers boyfriend. Spraulding and defendant Boucher had lived together in the RV until his arrest and incarceration on November 30, 2004. Defendant Speers, who lived with his mother, had stayed at the RV the two preceding days, arriving most recently around 3:00 a.m. on December 8, when his daughter dropped him off after giving him a ride from the Soboba Indian Casino where both defendants had been on the night of December 7. Defendant Speerss red Ford Explorer was parked at the RV when his daughter dropped him off there.
The parties and witnesses also referred to the vehicle in question as a trailer. According to the evidence the vehicle included a cab and was "driveable," a description of what commonly is referred to as an RV.
Other spellings appear in the reporters transcript, including Spradley and Spralding. Whether the differences are the result of mispronunciation by the witnesses or misspelling by the reporter is unclear. What is apparent is that the witnesses were all referring to the same person.
With defendant Bouchers consent, the two police officers searched the RV. On top of a counter in the bedroom or sleeping area, an officer found a small black case with defendant Speerss name written on it. When opened, the case revealed a digital scale. About an inch from the scale, the officer found a 35 millimeter film canister that contained an off-white, wet substance that the officer initially thought was methamphetamine but which later testing revealed to be pseudoephedrine. The officers found an empty bottle of rubbing alcohol in a small trash can in the kitchen area of the RV.
With his consent, the officers searched defendant Spearss Ford Explorer that was parked next to the RV. Under the hood, taped to the wall of the engine compartment, the officers found a pink plastic bag. The bag, referred to throughout trial as the "Claires bag" because it had the name of the retail store printed on it, contained a small jar of iodine crystals, two bags of red phosphorous one of which appeared to have been "used," and a Ziploc-type baggie that contained three coffee filters that had reddish-brown stains. A chemical smell commonly associated with the manufacture of methamphetamine emitted from the Ziploc bag. Defendant Speers told the officers that a few days earlier, a friend, whom he would not identify, had asked him to dispose of the Claires bag. Defendant Speers could not explain to the officers why he had not disposed of the bag. Outside, buried in the bottom of a trash can located near the RV, a police officer found six empty packages or boxes of Equate cold medication. Each box or package had contained 24 pills.
The police removed other items from the RV and the outside trash can, but later testing revealed the items did not have any drug residue or other substance to suggest they had been used to manufacture methamphetamine. The items included a coffee pot that had staining, a Mountain Dew bottle, and a cat food bag that the officers mistakenly believed was a cat litter bag. Cat litter is used to mask the fumes generated during the cooking phase of manufacturing methamphetamine.
Detective Robert Pierson of the Riverside County Sheriffs Department qualified as an expert witness and in that capacity testified, in pertinent part, that in his opinion the pseudoephedrine contained in the film canister was possessed with the intent to manufacture methamphetamine. Detective Pierson explained that cold capsules such as Equate contain pseudoephedrine that can be extracted by saturating the tablet with a solvent, such as water or alcohol, to separate the pseudoephedrine from the binder material. The pseudoephedrine can then be used to manufacture methamphetamine, a process that involves several additional "phases," one of which is the "cooking phase" where the pseudoephedrine is combined with water, iodine, and red phosphorous and then heated to create an acidic solution. In Detective Piersons opinion, the pseudoephedrine in the film canister had recently been extracted from cold medication as evidenced by the fact that the material was wet when found by the police officers.
Additional evidence will be recounted below, as pertinent to the issues defendants raise on appeal.
DISCUSSION
Defendants, as noted above, both challenge the sufficiency of the evidence to support the jurys guilty verdicts and we first address those challenges.
1.
SUFFICIENCY OF THE EVIDENCE
"In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence — evidence that is reasonable, credible and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.]" (People v. Kraft (2000) 23 Cal.4th 978, 1053.) It is the exclusive function of the trier of fact to assess the credibility of witnesses and draw reasonable inferences from the evidence. (People v. Lewis (2001) 26 Cal.4th 334, 361; People v. Franz (2001) 88 Cal.App.4th 1426, 1447; People v. Hale (1999) 75 Cal.App.4th 94, 105.)
The jury found both defendants guilty of manufacturing methamphetamine in violation of section 11379.6, subdivision (a), which states, in pertinent part: "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 . . . ." (Stats. 1989, ch. 1024, § 1, p. 3546.) As the trial court instructed the jury, in order to find defendants guilty of this crime, the evidence had to show, first, that "[a] person manufactured, [] either directly or indirectly, by means of chemical extraction, or independently by means of chemical synthesis, a controlled substance, namely methamphetamine," and, next, that the "person knew that the substance to be manufactured had the character of a controlled substance." (See CALJIC No. 12.09.1 (Fall 2006 ed.).) As the trial court also instructed the jury, "The crime of manufacturing a controlled substance, and the term `manufacture as used in this instruction, does not require proof or mean that the process of manufacturing be completed. Rather, the crime is committed when a person knowingly participates in the initial or intermediate steps carried out to process a controlled substance. Thus, it is unlawful for a person to engage in the synthesis, processing, or preparation of a chemical used in the manufacture of a controlled substance, even if the chemical is not itself a controlled substance, provided the person knows that the chemical is to be used in the manufacturing of a controlled substance."
The pertinent evidence in this case consists of the fact that both defendants were present in a 27-foot RV when the police arrived and searched that vehicle. The search netted a gram scale on which defendant Speerss name was written. Next to the scale was a plastic film canister that contained a wet substance later determined to be pseudoephedrine. In a trash can in the kitchen area of the RV the police found an empty bottle of rubbing alcohol, and in a garbage can outside the RV the police found six empty boxes of Equate cold medication.
From the fact that his name is written on the gram scale, the jury could reasonably infer that the scale belonged to defendant Speers. From the fact that the substance in the film canister was still wet, the jury could reasonably infer that it had recently been extracted according to the process described by the expert witness, Detective Pierson. From the fact that the film canister and gram scale were found on top of a counter and within inches of each other, the jury could reasonably infer that both items either belonged to defendant Speers or were under his possession and control. Additional support for that inference comes from the evidence the police found taped to the wall in the engine compartment of defendant Speerss Ford Explorer, namely the red phosphorous, the bottle of iodine, and the stained coffee filters, all of which according to Detective Pierson are used during the cooking phase of the methamphetamine manufacturing process. From the fact that defendant Speers told the police that he had been asked by a friend to dispose of the items found in the engine compartment, the jury could also reasonably infer that defendant Speers had discarded the empty Equate packages the police found in the trash can outside the RV after he had extracted the pseudoephedrine from the cold medication. The jury could reasonably infer that defendant Speers intended to manufacture methamphetamine and that he knew methamphetamine was a controlled substance from the fact that he had in his possession the recently extracted pseudoephedrine and the items recovered from the engine compartment of his vehicle. (See People v. White (1969) 71 Cal.2d 80, 83 ["the mere possession of a narcotic constitutes substantial evidence that the possessor of the narcotic knew of its nature"].)
Although a much closer call, we reach the same conclusion with respect to defendant Boucher. The evidence that connects defendant Boucher with the crime of manufacturing methamphetamine is the film canister that contained wet pseudoephedrine found in the bedroom area of the RV, the empty bottle of rubbing alcohol found in the trash can in the kitchen area of the RV, and the six empty boxes of Equate cold medication found in the trash outside. Detective Pierson testified, as previously noted, that pseudoephedrine can be extracted from Equate cold tablets by saturating the tablet with a solvent such as water or alcohol. From the fact that the pseudoephedrine in the film canister was wet, the jury could reasonably infer that it had recently been extracted from cold medication tablets. The six empty packages of Equate cold tablets found in the trash outside the RV support a reasonable inference that the pseudoephedrine was extracted from that medication and that the extraction process had taken place near where the packaging had been discarded. The empty container of rubbing alcohol supports a reasonable inference that the rubbing alcohol had been used to extract pseudoephedrine from the cold medication tablets. The fact that the empty rubbing alcohol container was found in a trash can in the kitchen area of the RV supports a reasonable inference that the extraction process occurred in or near the RV. The fact that defendant Boucher was inside the RV when the noted items were recovered and had been living in the RV for some time before the search occurred supports a reasonable inference that the pseudoephedrine extraction occurred while she was present and either with her participation or her permission. From the fact that she either directly participated in the process of extracting pseudoephedrine from cold medication, or provided the location and thereby aided and abetted defendant Speers in committing that act, the jury could reasonably infer that defendant Boucher knew not only that the film canister contained pseudoephedrine but also that the substance being manufactured was methamphetamine. (See People v. White, supra, 71 Cal.2d at p. 83.) Although the evidence is thin, it nevertheless supports the jurys verdict finding defendant Boucher guilty of manufacturing methamphetamine.
Although a jury presented entirely with circumstantial evidence that supports more than one reasonable inference is directed to draw the inference that is favorable to the defendant, we are not similarly constrained on appeal. (People v. Bean (1988) 46 Cal.3d 919, 932-933 ["Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendants guilt beyond a reasonable doubt. `"If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment." [Citations.] `Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt. [Citation.]"].)
That same evidence also constitutes sufficient evidence to support the jurys verdicts finding defendants guilty on count 2 of possessing pseudoephedrine with intent to manufacture methamphetamine in violation of section 11383, subdivision (c)(1). The jury could reasonably infer from the fact that defendants were in an RV with a film canister of pseudoephedrine that recently had been extracted from cold medication that defendants each actually or constructively possessed that substance and did so with the intent to manufacture methamphetamine. (See People v. Pre (2004) 117 Cal.App.4th 413, 420 [The intent element of a crime "is rarely susceptible of direct proof and usually must be inferred from the facts and circumstances surrounding the offense. [Citations.]"].) From the fact that defendants had extracted pseudoephedrine from cold medication the jury could reasonably infer that they possessed that substance with the intent to manufacture methamphetamine. The circumstantial evidence of defendant Speerss intent includes the evidence recovered from the engine compartment of his Explorer. All of that evidence related to manufacturing methamphetamine. Thus, the inference that he possessed the pseudoephedrine with the intent to manufacture methamphetamine is even stronger than the inference regarding defendant Boucher. In any event, the evidence is sufficient as to both defendants because the jury could infer defendants mental state from the fact that they possessed the recently extracted pseudoephedrine. Accordingly, we must reject defendants respective challenges to the sufficiency of the evidence to support the jurys guilty verdicts.
2.
JURY INSTRUCTIONS
Defendant Boucher purports to challenge the trial courts instructions to the jury, but the exact nature of her complaint is unclear. To the extent we are able to understand the claim, it appears defendant Boucher is of the view that the trial courts instructions on the mental state pertinent to each crime were confusing. We do not share defendant Bouchers view.
The trial court instructed the jury, in pertinent part and as previously noted, that the crime of manufacturing methamphetamine as alleged in count 1 is committed "when a person knowingly participates in the initial or intermediate steps carried out [in] the process of manufacturing a controlled substance. [¶] Thus, it is unlawful for a person to engage in the synthesis, processing, or preparation of a chemical used in the manufacture of a controlled substance, even if the chemical is not itself a controlled substance, provided the person knows that the chemical is to be used in the manufacture of a controlled substance."
With respect to count 2, the trial court instructed the jury in pertinent part, and also as previously noted, that in order to find defendants guilty of possessing pseudoephedrine with intent to manufacture methamphetamine, the evidence had to show first that defendants possessed pseudoephedrine and next that defendants "had the specific intent to manufacture methamphetamine. The word knowingly means with knowledge of the existence of the facts in question. Knowledge of the unlawfulness of any act or omission is not required. A requirement of [ ] knowledge does not mean that the act must be done with any specific intent."
Defendant Boucher contends the instructions are confusing because first the trial court told the jury that specific intent was required and then the trial court told them that acts done "knowingly" do not require specific intent. "Adding to the confusion," the trial court also told the jury that in order to find defendants guilty all jurors must agree on the same act or omission the defendant committed. According to defendant Boucher, "In combination, the jury could reasonably believe [defendant Boucher] was guilty based on `omission — her failure to interrupt Speers[s] illicit actions." We disagree.
Jury instructions must be viewed as a whole and not in isolation in order to determine whether there is a reasonable likelihood the jury understood the instructions in a manner that violated the defendants rights. (See People v. Davison (1995) 32 Cal.App.4th 206, 212, citing People v. Warren (1988) 45 Cal.3d 471, 487; and People v. McPeters (1992) 2 Cal.4th 1148, 1191.) Viewed as a whole, the trial courts instructions in this case were correct statements of the pertinent law and were not confusing. The trial court defined the term "knowledge" for the jury, as it was required to do because knowledge was an element of the crime charged in count 1. The trial court also instructed the jury that a person "aids and abets the commission or attempted commission of a crime when he or she, one, would [sic] with knowledge of the unlawful purpose of the perpetrator, and two, with the intent or purpose of the [sic] committing or encouraging or facilitating the commission of the crime, and three, by act or advice aids, promotes, encourages or instigates the commission of a crime." The trial court clearly instructed that mere presence at the scene of a crime and "[m]ere knowledge that a crime is being committed and the failure to prevent it doesnt amount to aiding and abetting."
The jury instructions, when viewed as a whole, clearly advise the jury that a persons failure to prevent a crime is not enough to establish liability as an aider and abettor. Likewise, the trial court correctly instructed the jury according to CALJIC No. 1.21 on the definition of the term "knowingly," a term that is pertinent both to liability based on aiding and abetting, and to the crime of manufacturing methamphetamine as alleged in count 1. Defendant Bouchers assertion that the trial courts instructions are confusing apparently stems from the fact that the definition of the term "knowingly" is not set out in a separate paragraph in the reporters transcript. The placement of the definition is an apparent oversight by the court reporter. The court reporters failure to set the definition out in a separate paragraph does not affect the accuracy of the jury instruction. When viewed as a whole, the instructions are correct and unambiguous, defendant Bouchers contrary claim notwithstanding.
3.
MOTION FOR SEPARATE JURIES
Defendant Boucher contends that the trial court erred in denying her pretrial motion to impanel separate juries for each defendant. Defendants made joint oral motions for separate juries before two different judges, both of whom denied the motions. Defendant Boucher challenges the ruling of the second judge.
In support of her motion, defendant Boucher argued that separate juries were necessary because defendant Speerss statement to the police regarding the items found in the engine compartment of his Explorer tended to implicate defendant Boucher. In particular defendant Boucher argued that the jury might conclude that she was the "friend" defendant Speers was referring to when he told the police that several days earlier a "friend" (whom he refused to identify) had given him the items found in the engine compartment of the Explorer and had asked defendant Speers to get rid of them. The possibility that the jury might think that she was the friend was even greater, defendant Boucher argued, because the items in the engine compartment were contained in a pink bag from "Claires, a girly store where you would buy hair pieces and jewelry, stuff like that." Defendant Boucher also appears to complain that the trial courts denial of the motion for separate juries prevented her from presenting evidence that would have connected defendant Speers with the drug manufacturing evidence and as such was pertinent to her defense. That evidence included defendant Speerss purported history of drug use, the fact that the police were at the RV because they had received a tip that "Todd" was selling methamphetamine from that location, and defendant Bouchers statement to one of the investigating police officers that defendant Speers must have brought the gram scale and film canister into the RV because neither of those items belonged to her. The trial court denied the motion for separate juries after finding there was insufficient "contextual linkage" in defendant Speerss statement to implicate defendant Boucher. We agree with the trial courts ruling.
In People v. Fletcher (1996) 13 Cal.4th 451 (Fletcher), our state Supreme Court reconsidered the rule it created in People v. Aranda (1965) 63 Cal.2d 518, which held that in a joint trial of two defendants, the admission into evidence of a confession by one defendant that is "powerfully incriminating" as to the second nonconfessing defendant may violate the second defendants Sixth Amendment right to confront and cross-examine witnesses when the confessing defendant does not testify at trial. The court in Fletcher determined, "To the extent that our decision in People v. Aranda, supra, . . . constitutes a rule governing the admissibility of evidence, and to the extent this rule of evidence requires the exclusion of relevant evidence that need not be excluded under federal constitutional law, it was abrogated in 1982 by the `truth-in-evidence provision of Proposition 8 . . . ." (Fletcher, supra, 13 Cal.4th at p. 465.) Accordingly, the admissibility of such a statement is governed by federal law as articulated by the United States Supreme Court.
The Fletcher court analyzed various United States Supreme court decisions, including Richardson v. Marsh (1987) 481 U.S. 200, and concluded that whether a redacted confession "which retains references to a coparticipant in the crime but removes references to the coparticipants name" is sufficient to protect "a nondeclarant defendants constitutional right of confrontation may not be resolved by a `bright line rule . . . . Rather, the efficacy of this form of editing must be determined on a case-by-case basis in light of the other evidence that has been or is likely to be presented at the trial. The editing will be deemed insufficient to avoid a confrontation violation if, despite the editing, reasonable jurors could not avoid drawing the inference that the defendant was the coparticipant designated in the confession by symbol or neutral pronoun." (Fletcher, supra, 13 Cal.4th at p. 456.) Under the contextual linkage analysis adopted by the court in Fletcher, "redaction that replaces the nondeclarants name with a pronoun or similar neutral and nonidentifying term will adequately safeguard the nondeclarants confrontation rights unless the average juror, viewing the confession in light of the other evidence introduced at trial, could not avoid drawing the inference that the nondeclarant is the person so designated in the confession and the confession is `powerfully incriminating on the issue of the nondeclarants guilt." (Fletcher, supra, 13 Cal.4th at p. 467.)
Assuming defendant Speerss statement is an admission, in that it implicates him in criminal activity when considered with other evidence presented at trial, defendant Speers did not mention defendant Boucher in that statement. Therefore, the statement does not incriminate defendant Boucher. Defendant Speerss statement is potentially incriminating only because the jury might speculate that the "friend" was defendant Boucher. In short, defendant Speerss statement is not "powerfully incriminating" as to defendant Boucher. Moreover, the trial court instructed the jurors that they could only consider defendant Speerss statement regarding the Claires bag in determining his guilt. We must presume the jury followed the trial courts instruction. (People v. Osband (1996) 13 Cal.4th 622, 714.)
The trial court instructed the jury, "Evidence has been received of a statement made by defendant Todd Speers after his arrest concerning the Claire[s] bag. [¶] Do not consider the evidence of this statement against the other defendan[t], Tanya Boucher."
Defendant Bouchers claim that the trial courts ruling prevented her from presenting evidence pertinent to her defense is meritless, first, because she did not raise that issue in the trial court, and, next, because the evidence was inadmissible in any event. Defendant Bouchers statement to the police that the gram scale and film canister were not hers and that defendant Speers must have brought them into the RV is hearsay that does not come within any exception to the rule making hearsay inadmissible. Moreover, defendant Speerss name was written on the gram scale, a fact that made his ownership of that item obvious to the jury.
Defendant Boucher objected to the introduction of any evidence that indicated the police officers were at the RV in a "law enforcement capacity," and she did not cite that evidence as a basis for her motion for separate juries. Similarly, defendant Boucher did not argue that separate juries were necessary because she intended to present evidence to show that defendant Speers had "a history of involvement in methamphetamine and other drugs." Ignoring the issue of whether such evidence would have been admissible (see Evid. Code, § 1101, subd. (a)), because she did not raise the issue in the trial court, defendant Boucher may not complain on appeal that she was denied the opportunity to present that evidence in her defense at trial.
Accordingly, for each of the reasons discussed, we must reject defendant Bouchers final claim of error.
DISPOSITION
The judgments are affirmed as to both defendants.
We concur:
Richli, J.
King, J.