Opinion
H040555
09-23-2014
THE PEOPLE, Plaintiff and Appellant, v. LEO GARCIA ET AL., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. C1241645)
I. INTRODUCTION
Defendants Leo Garcia, Gabriel Magdaleno, and Francisco Magdaleno were charged with a number of offenses, including manufacturing a controlled substance (Health & Saf. Code, § 11379.6, subd. (a); count 1), possession for sale of a controlled substance (Health & Saf. Code, § 11378; count 2), and transportation or sale of a controlled substance (Health & Saf. Code, § 11379, subd. (a); count 3 [Garcia only]).
As to counts 1 through 3, the District Attorney alleged a number of enhancements, including an allegation that the offenses were committed within 1,000 feet of a school. (Health & Saf. Code, § 11353.6, subd. (b).) Pursuant to Penal Code section 995, the trial court dismissed the allegations under Health and Safety Code section 11353.6, subdivision (b) as well as some of the other enhancement allegations. As to Health and Safety Code section 11353.6, subdivision (b) allegations, the trial court found that the offenses were not committed in a "public area" as required by Health and Safety Code section 11353.6, subdivision (g).
The District Attorney appeals from the trial court's order granting, in part, defendants' Penal Code section 995 motions. The District Attorney challenges only the court's ruling dismissing the Health and Safety Code section 11353.6, subdivision (b) allegations. (See Pen. Code, § 1238, subd. (a)(8).) We will affirm the trial court's order.
None of the three defendants has filed a respondent's brief.
II. BACKGROUND
A. Factual Background
On the morning of September 25, 2012, officers from several agencies gathered at 1248 McGinness Avenue in San Jose. The property contained a single family dwelling with a backyard that was enclosed by a fence. A detached shed was inside the fenced-in backyard.
An elementary school was located across the street from the residence. School was in session that day.
At about 11:20 a.m., officers detained Garcia at a nearby location. Garcia provided a driver's license that contained a false name. A search of Garcia's vehicle revealed a pound of methamphetamine inside a cooler. Garcia had a key to the shed on his person.
At about 12:00 p.m., officers broke down the door to the residence. Gabriel Magdaleno was inside one of the bedrooms with the door closed. He pushed against the door, precluding the officers from entering. The officers deployed a flash bang and taser in order to subdue him.
Inside another bedroom, officers found items indicating that a child lived at the residence.
Officers entered the detached shed in the backyard. They smelled a strong chemical odor and saw a large amount of a white crystalline substance on the floor. Indicia for Gabriel and Francisco Magdaleno was found inside the shed.
Inside the shed, the officers also found various items associated with methamphetamine manufacture, including an oscillating fan, acetone, Igloo containers, five-gallon buckets, a propane tank, a Coleman stove, packaging material, and lab waste. The Igloo coolers contained methamphetamine undergoing the recrystallization process. Crystal methamphetamine was found in a number of Tupperware containers. The methamphetamine found in the shed weighed a total of 7,144 grams, which is 14.43 pounds.
That evening, Francisco Magdaleno approached the residence. He informed the officers that he rented the house and that the other two defendants both lived there. Francisco Magdaleno had a key to the shed on his person.
B. Charges and Enhancement Allegations
Following a preliminary hearing, all three defendants were charged with manufacturing a controlled substance (Health & Saf. Code, § 11379.6, subd. (a); count 1), possession for sale of a controlled substance (Health & Saf. Code, § 11378; count 2), and child endangerment (Pen. Code, § 273a, subd. (a); count 4). Garcia was charged with transportation of a controlled substance (Health & Saf. Code, § 11379, subd. (a); count 3) and providing a false name to an officer (Pen. Code, § 148.9; count 6). Gabriel Magdaleno was charged with resisting an officer (Pen. Code, § 69; count 5).
As to counts 1 through 3, the District Attorney alleged that the offenses were committed within 1,000 feet of a school. (Health & Saf. Code, § 11353.6, subd. (b).) The District Attorney also alleged weight enhancements as to counts 1 through 3. (Health & Saf. Code, §§ 11379.8, subd. (a)(3), 11370.4, subd. (b).) As to count 1, the District Attorney alleged that the offense occurred in a structure where a child was present and resided. (Health & Saf. Code, §§ 11379.7, subd. (a), 11379.6, subd. (b)).
C. Penal Code section 995 Motions
Each defendant filed a motion to set aside the information. (See Pen. Code, § 995, subd. (a)(2).)
Francisco Magdaleno argued there was insufficient evidence to support the three substantive charges against him (counts 1, 2, and 4) and insufficient evidence to support any of the enhancement allegations. As to the Health and Safety Code section 11353.6, subdivision (b) enhancement, he argued that the offenses were not committed in a "public area" as required by Health and Safety Code section 11353.6, subdivision (g).
Gabriel Magdaleno argued there was insufficient evidence to support three of the four substantive charges against him (counts 1, 2, and 4) and insufficient evidence to support the allegation that count 1 occurred in a structure where a child was present.
Garcia joined in the motions filed by the other two defendants.
The District Attorney filed opposition to defendants' Penal Code section 995 motions. As to the Health and Safety Code section 11353.6, subdivision (b) allegations, the District Attorney argued that although the shed itself might not have been a "public area" as required by Health and Safety Code section 11353.6, subdivision (g), the manufacture of methamphetamine required materials—including dangerous chemicals, equipment, lab waste, and finished product—to "be moved in and out of the lab," over the driveway and sidewalk.
At a hearing on defendants' Penal Code section 995 motions, the trial court declined to dismiss any of the substantive narcotics charges (counts 1 through 3) or the weight enhancement allegations. However, the trial court granted the Penal Code section 995 motions as to the child endangerment charge (count 4), the allegations that counts 1 through 3 were committed within 1,000 feet of a school (Health & Saf. Code, § 11353.6, subd. (b)), and the allegations that count 1 occurred in a structure where a child was present (Health & Saf. Code, § 11379.7, subd. (a)).
The trial court explained why it was dismissing the Health and Safety Code section 11353.6, subdivision (b) enhancements: "It just didn't occur in a public place. It appears that the evidence was that this was done in a private, enclosed laboratory and that therefore the requirement of it occurring in public within the - the distance of the elementary school simply was not met."
III. DISCUSSION
Health and Safety Code section 11353.6 was enacted as the Juvenile Drug Trafficking and Schoolyard Act of 1988. (Health & Saf. Code, § 11353.6, subd. (a).) Subdivision (b) of that section provides that any person who is convicted of a specified offense "or of a conspiracy to commit one of those offenses, where the violation takes place upon the grounds of, or within 1,000 feet of, a public or private elementary, vocational, junior high, or high school during hours that the school is open for classes or school-related programs, or at any time when minors are using the facility where the offense occurs, shall receive an additional punishment of three, four, or five years at the court's discretion."
Subdivision (g) of Health and Safety Code section 11353.6 provides: " 'Within 1,000 feet of a public or private elementary, vocational, junior high, or high school' means any public area or business establishment where minors are legally permitted to conduct business which is located within 1,000 feet of any public or private elementary, vocational, junior high, or high school." (Italics added.)
Subdivision (g) was added to Health and Safety Code section 11353.6 effective January 1, 1993. (Stats. 1992, ch. 989, § 1.) Previously, the enhancement applied even if the offense was committed inside a private residence. (See People v. Jimenez (1995) 33 Cal.App.4th 54, 58 (Jimenez); People v. Todd (1994) 30 Cal.App.4th 1724, 1729.)
In Jimenez, the court construed the term "public area" as it is used in Health and Safety Code section 11353.6, subdivision (g). The term is not "synonymous with 'public property.' " (Jimenez, supra, 33 Cal.App.4th at p. 59.) Rather, it includes "publicly owned locations such as streets, sidewalks and bus stops as well as those portions of private property which are readily accessible to the public. [Citation.]" (Id. at p. 60.) The term includes private driveways, which "are areas students may pass by or through on their way to and from school, are generally exposed to public view and are generally accessible to persons making deliveries, service calls, and solicitations and engaging in various errands." (Ibid., fn. omitted.) Thus, the enhancement applied in Jimenez, where a sale of cocaine took place in a private driveway, which had "no gate, guard dog or other impediment to public access." (Id. at p. 62.)
The Health and Safety Code section 11353.6 enhancement also applied in People v. Marzet (1997) 57 Cal.App.4th 329 (Marzet), where the defendant was convicted of conspiracy to possess heroin for sale and to sell heroin. (Id. at p. 334.) Although the heroin was possessed inside a private residence and would have been sold inside the private residence, some of the overt acts taken in furtherance of the conspiracy occurred outside the residence and thus in a "public area" within the meaning of Health and Safety Code section 11353.6, subdivision (g). An undercover federal agent who had arranged to purchase heroin was directed to a residential address, which was near a school where children had just been let out of class. (Marzet, supra, at p. 334.) The agent met with one coconspirator on the street corner, was directed to two other men standing near a van parked outside the house, and was told that the heroin was inside the house. (Ibid.) These "final negotiations" were the basis for the Marzet court's holding that the Health and Safety Code section 11353.6 enhancement applied. (Id. at pp. 337, 339.) The court summarized its holding as follows: "[W]hen the underlying offense is a conspiracy to commit a narcotics offense, the enhancement may be applied when overt acts taken in furtherance of the conspiracy occur in a public area. This is so even though the narcotics are being held inside a private residence and the actual narcotics sale or transaction is to occur within the private residence." (Id. at p. 332.)
In contrast, the Health and Safety Code section 11353.6 enhancement did not apply in People v. Davis (2006) 141 Cal.App.4th 519 (Davis), where the defendant was convicted of possession of cocaine base for sale and the narcotics were found inside a garage attached to a private residence. The residence was located across the street from a school that was in session, and when agents arrived to execute a search warrant, the defendant and three other men were congregated in the front yard. (Id. at p. 521.) The defendant had a large sum of cash on his person. (Id. at p. 522.) The Davis court accepted the People's concession that "no evidence was presented at trial from which the jury could have inferred that Davis possessed or sold the cocaine anywhere outside of the garage," and it ordered the enhancement stricken. (Id. at p. 523.)
The District Attorney acknowledges that the trial court's decision in this case was consistent with Davis insofar as the trial court ruled that the shed was not a "public area" as required by Health and Safety Code section 11353.6, subdivision (g). Nevertheless, the District Attorney asserts that the Davis case is distinguishable. The District Attorney contends that here, there was evidence of an uncharged conspiracy, and that therefore the reasoning of Marzet applies. The District Attorney asserts that the acetone and chemicals used to manufacture methamphetamine had to have been "trafficked into the lab over the sidewalk and driveway[] in front of" the residence. Likewise, the District Attorney asserts that the lab waste and the crystallized methamphetamine found in Garcia's vehicle were also trafficked over the driveway and sidewalk. According to the District Attorney, the evidence thereby established that school children were exposed to the manufacturing process when they walked to and from school.
The District Attorney's argument is not persuasive on the particular facts of this case. Even assuming there is evidence of an uncharged conspiracy, during which the materials used to manufacture methamphetamine and the finished product were carried over the driveway, there was no evidence presented at the preliminary hearing as to when those actions occurred. The statute requires the violation takes place "during hours that the school is open for classes or school-related programs, or at any time when minors are using the facility where the offense occurs." (Health & Saf. Code, § 11353.6, subd. (b).) The items used and produced during the offense could have been carried over the driveway at night or at other times when the school was not open and when no minors were using the facility. (Cf. Marzet, supra, 57 Cal.App.4th at p. 337.)
In sum, the evidence presented at the preliminary hearing provided no "reasonable or probable cause" (Pen. Code, § 995, subd. (a)(2)) to believe defendants committed any of the charged narcotics offenses in a "public area" (Health & Saf. Code, § 11353.6, subd. (g)) that was within 1,000 feet of a school "during hours that the school is open for classes or school-related programs, or at any time when minors [were] using the facility where the offense occur[ed]" (id., subd. (b)). The trial court therefore did not err by granting defendants' Penal Code section 995 motions as to the Health and Safety Code section 11353.6 enhancement allegations.
IV. DISPOSITION
The trial court's December 19, 2013 order setting aside the Health and Safety Code section 11353.6, subdivision (b) enhancement allegations as to counts 1, 2, and 3 is affirmed.
/s/_________
BAMATTRE-MANOUKIAN, J.
WE CONCUR: /s/_________
ELIA, ACTING P.J.
/s/_________
MIHARA, J.