Opinion
F040156.
10-23-2003
THE PEOPLE, Plaintiff and Respondent, v. RICARDO LEON GARCIA, Defendant and Appellant.
Patricia Ihara, 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, J. Robert Jibson and Carlos A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant, Ricardo Leon Garcia, and his codefendant, Juan Huerta Aguilar, 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, Aguilar 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 sentence for possession of methamphetamine for sale 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 Aguilar. 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 Aguilar 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 that might be inside and to open the windows. In one of the upstairs bedrooms, Elliott found appellant hiding in a closet. The officer also saw a rifle, within appellants reach, in the closet. Appellant had red eyes and was sweating, and Elliott stated he looked like he had been inhaling alcohol fumes. Appellant 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 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, 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-fluorethane, 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 Aguilar, and that he would pay the landlord. Aguilar and his girlfriend, Adriana Gomez, and their two-year-old child occupied the downstairs bedroom. Manuel Ontiveros, Aguilars brother, lived in the north upstairs bedroom with Sarabia and their baby. Jose Ontiveros, Aguilars other brother, occupied the remaining room. Appellant, 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 Aguilar and their child. Aguilar kept a rifle in the room that he sometimes used for hunting. She 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 Aguilar and appellant had told her to leave the house on one occasion because the house was going to smell like alcohol.
Aguilars Defense
Onecimo Calderon, Aguilars coworker, testified that Aguilar 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 the 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. (People v. Duncan, supra, 42 Cal.3d 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 Aguilar and concluded that the alcohol fumes caused a danger of explosion or flash fire. Pinon moved Sarabia and Aguilar 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 which 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 the 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 appellant 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 Aguilar 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 a number of his convictions. We find the evidence amply supported the convictions.
Appellant joined the arguments raised by his codefendant Aguilar in case No. F040131 to the extent they applied to him. Aguilar raised sufficiency of the evidence claims as to his manufacturing and possession of precursor convictions. Although appellant was also convicted for these crimes, we will not reach any issues as to the sufficiency of the evidence for these charges as appellant has failed to demonstrate how the evidence was insufficient as to him.
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 that 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. Possession of methamphetamine for sale
To establish the crime of possession of a controlled substance for sale, 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 and harbored the specific intent to sell it. (People v. Parra (1999) 70 Cal.App.4th 222, 226.) Appellant argues the evidence failed to demonstrate that he had actual or constructive possession of the methamphetamine found in the shed or any knowledge of its presence. We disagree.
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.)
Appellants knowledge of the presence of the methamphetamine and his constructive possession of it could be inferred from his participation in the manufacturing process. Approximately two pounds of methamphetamine were found in an unlocked shed that was attached to the residence by a roof. The drugs were in packaging wrapped with plastic and duct tape and placed inside a potato chip bag, which was hidden inside a stack of tires. Duct tape was found in the attic where ephedrine was being extracted when the police searched the house.
Although appellant did not live at the house, the evidence established that he was a daily visitor, and Trevino testified that when appellant arrived he would go upstairs for a few hours. Gomez testified that both appellant and Aguilar had told her to leave the house because it would smell like alcohol. When the police searched the house on the day in question, they found appellant hiding in the closet of one of the upstairs bedrooms. The evidence established that ephedrine extraction was taking place in the upstairs attic and the jury was entitled to infer that appellant was involved in that process. In addition, the jury could infer that appellant did more than simply extract ephedrine. An organic solvent with by-products from methamphetamine production was also found in the attic, in addition to gasoline containers that are typically used to hold hydrotic acid. Hydrotic acid was found in the south bedroom upstairs. A bottle of sodium thiosulfate that is used to whiten finished methamphetamine was also found in the attic along with a vacuum filter pump that is used to transfer liquid during methamphetamine production.
These facts supported a jury finding that appellant was involved in the manufacture of methamphetamine. Given the presence of these items in the attic, where the ephedrine extraction was clearly taking place, indicates that appellant was involved with the entire manufacturing process. As a participant in the process, the jury could infer that appellant knew where the finished methamphetamine was stored and that he had constructive possession of it. Pinon opined the methamphetamine was possessed for the purpose of sales due to the large quantity and the manner of packaging. Thus, we conclude the evidence was sufficient to support the conviction.
B. Quantity enhancement
At trial, the jury found true an enhancement that appellant engaged in the manufacture of methamphetamine and that the quantity produced was over one pound. This was based on the nearly two pounds of methamphetamine found in the shed. Appellant argues the evidence was insufficient to support the enhancement because no evidence connected appellant to the methamphetamine found in the shed. For the reasons explained above, we conclude the evidence was sufficient to support the jurys finding.
C. Possession of methamphetamine while armed
Appellant argues that there was no evidence to support his conviction for possession of methamphetamine while armed because no evidence established he knew of the presence or had constructive possession of the methamphetamine found at the residence. For the reasons stated above, we reject appellants claim.
To the extent that appellant argues that he was not "armed" when arrested by the police, we find his augment unsupported by the record. Elliott testified that he found appellant hiding in a bedroom closet with a loaded and operable firearm within his reach. "Armed" within the meaning of section 11370.1 means having a firearm "available for immediate offensive or defensive use." The evidence established that appellant was "armed" within the meaning of this section, as the rifle was found a mere two to three feet from him, in plain sight and leaning against a wall.
D. 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 found in the house or had constructive possession of it.
As we have explained above, the evidence established that appellant was involved in the methamphetamine manufacturing at the house. When the police searched the house, they found . 11 grams of methamphetamine in the attic on a mirror with a rolled up $1 bill. Appellant does not challenge that evidence establishing that he participated in the ephedrine extraction taking place in the attic. When the police searched the house, they found appellant hiding in a closet in an upstairs bedroom next to the attic. At the time of the search, the house smelled strongly of alcohol and an ephedrine/alcohol solution was found in one of the microwaves, indicating that the extraction process was taking place when the officers arrived. The methamphetamine was separated into lines atop a broken piece of mirror in the attic. As noted above, the officers found a rolled up $ 1 bill accompanying the methamphetamine. This suggests that the methamphetamine had been prepared for use. Because the methamphetamine was found in the room where it appeared appellant had been working prior to the police search, the jury was entitled to infer that appellant knew of the presence of the methamphetamine and had constructive possession of it.
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, manufacture of methamphetamine, subdivision (a), 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 (1982) 131 Cal.App.3d 129, 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 with Goodalls 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.].)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Cornell, J., and Gomes, J.