Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. BF122041A of Kern County. William D. Palmer, Judge.
Cliff Gardner and Lazuli Whitt for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Tennant Nieto and Christina Hitomi, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
VARTABEDIAN, Acting P. J.
This is an appeal from a conviction on one count of violation of Health and Safety Code section 11379.6, subdivision (a). Defendant and appellant Jeff Ryan Scheidemantel contends that his conduct should not have been prosecuted under section 11379.6, subdivision (a) as a matter of statutory construction and that, in any event, the jury was given erroneous instructions in three different respects. We will affirm the judgment.
All further section references are to this code. Section 11379.6, subdivision (a), states: “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 and by a fine not exceeding fifty thousand dollars ($50,000).”
FACTS AND PROCEDURAL HISTORY
Defendant came to the attention of Bakersfield narcotics agents after he ordered red phosphorus on the Internet from what defendant thought was a British-based chemical supply house. In fact, the Web site was operated by narcotics agents in Phoenix, Arizona. Because red phosphorus is primarily used to manufacture methamphetamine, the Phoenix agents provided defendant’s name and delivery address to agents in Bakersfield. After a package from the purported supply house was delivered to defendant’s home by a postal inspector, narcotics agents served a search warrant and arrested defendant.
Defendant told the agents he intended to use the phosphorus in connection with his job as a chemistry teacher at a local high school. He said he was designing a laboratory experiment in which his students would make “strike anywhere” matches. After the search turned up numerous Internet printouts on the manufacture of methamphetamine, defendant told the agents he had used one of the recipes to extract ephedrine from Sudafed tablets and that the ephedrine was stored in a freezer in his laboratory at the school. He said he extracted the ephedrine as part of his efforts to design an experiment in which his students would use a somewhat similar method to extract acetaminophen from Tylenol capsules. Thereafter, the agents recovered five grams of ephedrine from the school freezer, as well as other equipment and chemicals consistent with the manufacture of methamphetamine.
Defendant was charged in count 1 with violation of section 11379.6, subdivision (a), and in count 2 with violation of section 11383.5, subdivision (b)(1), possession of ephedrine with intent to manufacture methamphetamine. After trial to a jury, defendant was convicted on count 1. The jury was unable to reach a verdict on count 2, which was then dismissed on the motion of the prosecutor. Additional facts concerning the trial will be set forth in the discussion section below.
Defendant’s motion for new trial was denied. Imposition of sentence was suspended and defendant was placed on probation for three years. He was required to serve nine months in county jail as a condition of probation.
Defendant filed a timely notice of appeal.
DISCUSSION
I. General versus special statutes.
Ephedrine is a precursor component of methamphetamine. (People v. McCall (2004) 32 Cal.4th 175, 181, fn. 4.) Defendant admitted he chemically extracted several grams of ephedrine from Sudafed cold tablets. Defendant was charged with one count of manufacturing a controlled substance (§ 11379.6, subd. (a)) and one count of possession of ephedrine with intent to manufacture methamphetamine (§ 11383.5, subd. (b)(1)). Methamphetamine is but one of several dozen substances included in the prohibition of section 11379.6, subdivision (a), while only “ephedrine or pseudoephedrine, or any salts, isomers, or salts of isomers of ephedrine or pseudoephedrine” are included in the prohibition of section 11383.5, subdivision (b)(1). For convenience, we will refer to these code provisions as the “manufacturing section” (§ 11379.6, subd. (a)) and the “possession section” (§ 11383.5, subd. (b)(1).)
Defendant contends the manufacturing section is a statute of general applicability and that the possession section is a “special” statute--that is, one of specific applicability. He invokes the principle that where the Legislature has provided a lesser penalty for a particular form of conduct, the Legislature must intend prosecution under the special statute to be exclusive of prosecution under a broader statute that may more heavily penalize the same conduct. Thus, in In re Williamson (1954) 43 Cal.2d 651, 654, the court held that a statute making it a misdemeanor to conspire to commit the crime of contracting without a license precluded prosecution for the felony of conspiring to commit “any crime.” (See generally 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Introduction to Crimes, §§ 59-61, pp. 103-109.)
Defendant acknowledges the manufacturing section and the possession section differ facially. To state the obvious, one requires manufacturing and the other merely prohibits possession with intent to manufacture. Defendant contends, however, that under such cases as People v. Jenkins (1980) 28 Cal.3d 494, 502, we must look to the context of the statutes to determine whether, in practice, violation of the specific statute “commonly” results in a violation of the general statute. Defendant reasons as follows: Manufacture of a precursor drug with knowledge it would be used to manufacture the final product violates the manufacturing section. Ephedrine is a precursor drug, and anyone who manufactures such a precursor necessarily would possess it. Therefore, “in all cases of possession of a substance with intent to manufacture methamphetamine the broader crime of manufacturing methamphetamine would necessarily apply.”
Without delving into the nature of the logical fallacy involved in defendant’s reasoning, an example will disprove defendant’s point: If defendant had given his ephedrine to another person who intended to use it to make methamphetamine, the second person would not have violated the manufacturing section, though the person clearly would have violated the possession section.
In any event, the rule concerning general and special statutes is not a rule of logic or even a rule of substantive law. Instead, it is merely an aid to discerning probable legislative intent. The rule does not prohibit prosecution under one or another of the statutes unless it is “evident the Legislature intended to preclude application of the general statute to the targeted conduct” under the special statute. (People v. Sanchez (1994) 27 Cal.App.4th 918, 923.) In the present case, it is clear the Legislature sought separately to prohibit the dangerous activities inherent when a person “manufactures, compounds, converts, produces, derives, processes, or prepares” a substance intended to be used in making methamphetamine (§ 11379.6, subd. (a)), and that it imposed upon this activity a higher penalty than mere passive possession of the same substance after it has been produced. Because the two sections prohibit completely different conduct, the preclusive doctrine invoked by defendant is not applicable in this case.
II. The intent instructions.
Defendant also contends the trial court violated his rights to due process and to a jury trial by “allowing the jury to convict him of manufacturing methamphetamine without a finding of criminal intent.” (Capitalization omitted.) While defendant concedes that the jury was correctly instructed concerning the manufacturing count and that “absent misleading argument by the parties, jurors would have [had] no difficulty in applying” the instruction, defendant contends that the prosecutor’s argument to the jury undermined the instruction and permitted defendant’s conviction on what amounted to a strict liability theory.
A. Additional facts.
The relevant portion of the jury instructions told the jury that the prosecutor, in order to obtain a conviction under the manufacturing count, was required to prove that “defendant knew that the chemical [he manufactured] was going to be used in the manufacture of a controlled substance.” (CALCRIM No. 2330.) For the possession count, the instructions told the jury the prosecutor was required to prove that “[w]hen the defendant possessed [ephedrine], he intended to use it to manufacture methamphetamine.” (CALCRIM No. 2337.)
The prosecutor began his summation to the jury by stating that the underlying facts were largely not in dispute. “The only thing that is in dispute here is what was [defendant’s] intent. Now I have to discuss that, but before I do, I want to discuss some of the instructions that the judge read to you before lunch. One in particular I want to discuss is the instruction about the crime of manufacturing a controlled substance because none of the evidence says that we wound up with methamphetamine. There was no methamphetamine produced. We never got to the end of the manufacture or production. [¶] But I want you to take a close look when you get those instructions … [and] you’ll find out that in order to be guilty of manufacturing methamphetamine, you don’t have to get to all the way to the end process. [Sic.] You just have to be in the beginning or middle portions of it knowing that the end result can be methamphetamine.” (Italics added.) It is the italicized phrase that defendant says misled the jury.
The prosecutor concluded this portion of his argument by stating: “In this case, the extraction of the ephedrine from the Sudafed is the first and one of the most critical processes in the manufacturing of methamphetamine. That’s enough to be guilty if the right mental state is there. [¶] Now the mental state is really what this trial has been all about.” The remainder--and the vast majority--of the prosecutor’s argument involved dissection of defendant’s explanations for his extraction of ephedrine, his attempt to purchase red phosphorus, and his storage of the ephedrine in the laboratory freezer once it had been extracted. The prosecutor concluded his argument by urging that the evidence supported only one conclusion: “That is that [defendant] was in the process of manufacturing methamphetamine and guilty of Count 1 [manufacturing]. And that once he extracted that ephedrine and possessed it with that same intent, guilty of Count 2.”
Defense counsel did not object to the prosecutor’s brief statement to which defendant objects on appeal. Counsel did, however, summarize the required mental elements in his own argument to the jury: “In one count, it is that he actually intended to make methamphetamine and the other count it’s that he had something that he knew was going to be used to make methamphetamine. And since he’s the only one who is involved in the knowing about it, has to be him that’s going to be using it. So it goes back to that intent again.” The remainder of his argument consisted of showing how the evidence was inconsistent with an intent to make methamphetamine, without any distinction between the intent needed for the two charged crimes. The prosecutor’s rebuttal, likewise, failed to distinguish between the intent needed for the two counts. That rebuttal closed with the following: “He intended to make methamphetamine; that’s the unfortunate truth but the truth is what we ask.”
Midafternoon on its second day of deliberation, the jury sent a note to the court: “Some of us are confused about whether or not we have to prove [sic] intent on both charges.” The court responded with this note to the jury: “You must find specific intent for both counts, please see instruction[s] 251 & 252. If after reviewing these instruction[s] you still have questions please notify me.” After about an hour, the jury sent a note that said: “We are currently deadlocked. We are not sure their [sic] is anywhere we can go from here.” After consulting with the attorneys, the court asked the jury to “at least agree on your areas of disagreement, and then articulate those for us.” After a short time, the jury sent out a note that said: “We are currently in agreement on Count 1. We are deadlocked on Count 2. The area we cannot agree on is the area of specific intent.” The court permitted further argument to the jury on specific intent for count 2, the possession count. After another short break, the jury indicated it was still agreed on count 1 and still deadlocked on count 2, and that they did not “believe we can go any further in swaying our decisions.”
B. Analysis of defendant’s contention.
From the foregoing sequence of events, defendant concludes that the prosecutor “failed to prove Mr. Scheidemantel ‘intend[ed] to use [the ephedrine] to manufacture methamphetamine.’ [¶] But this was the very same element which the state had to prove in connection with count one. In other words, the jury convicted on count one not because the state had proven its case beyond a reasonable doubt, but because -- as the jury’s own questions during deliberation suggest -- the instructions and arguments of counsel ‘confused’ the jury as to whether the state had to prove intent in connection with the count one charge.” (Brackets in original.)
Defendant’s speculation is not supported by the record. First, the prosecutor was not addressing the issue of intent, as the context of his remarks makes clear, when he stated defendant would be guilty if he manufactured a substance (ephedrine) that defendant knew could be used to make methamphetamine. The prosecutor was noting merely that the manufacture of any precursor chemical could violate the statute if, as he said, “the right mental state is there.” In other words, the prosecutor was merely addressing the seeming anomaly that one can be guilty of manufacturing methamphetamine even though that person does not manufacture any methamphetamine.
The issue raised by defendant actually seems to be a complaint about prosecutorial misconduct, not instructional error. If defendant was concerned that the prosecutor’s statement was confusing, he could have objected and requested the jury be admonished. He did not object, thereby waiving the claim of error. (See People v. Pitts (1990) 223 Cal.App.3d 606, 692 [curable misconduct waived by failure to object].) Further, in light of the subsequent arguments and the reinstruction on intent, the prosecutor’s statement was not prejudicial.
In addition, no reasonable jury would have ignored both the original instructions and the trial court’s subsequent express reiteration that both counts required a finding of specific intent. (See People v. Hardy (1992) 2 Cal.4th 86, 151 [appellate court interprets instructions as would a reasonable juror].) The instructions were clear, the prosecutor’s comment did not concern intent, and there is no basis for speculation that the jury ignored the instructions in favor of a misinterpretation of the prosecutor’s comment.
Finally, to the extent the record supports any conclusions about the jury’s mental processes, the conclusion is not the one drawn by defendant. Instead, as concluded by the trial court upon denying defendant’s new trial motion, the sequence of the jury notes simply indicates that the jury reached the obvious conclusion that defendant extracted ephedrine from the Sudafed compound with the intent of making methamphetamine. What apparently caused some jurors concern was that defendant, having (in a manner of speaking) reached the point of no return in the process, may have changed his mind about the project for some reason. Thus, in this view, defendant would have possessed the ephedrine for some period with the intent to manufacture the final product, but then possessed it for a subsequent period with no such intent. Whether this view of the jurors’ conundrum on count 2 is correct or not, however, nothing in the record undermines their determination that defendant was guilty on count 1.
III. The instruction to view pretrial “statements” with caution.
Defendant contends instruction of the jury with former CALCRIM No. 358 undermined his constitutional right to present a defense to the charges against him. We disagree.
All further references to CALCRIM No. 358 are to the June 2007 revision in effect at the time of trial. The instruction has since been revised.
The jury was instructed in accordance with CALCRIM No. 358 that, with respect to “evidence that the defendant made oral statements before the trial,” the jury must “decide whether or not the defendant made any of these statements, in whole or in part. If you decide that the defendant made such statements, consider the statements, along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give to such statements.” The court concluded this instruction as follows: “You must consider with caution evidence of a defendant’s oral statement unless it was written or otherwise recorded.”
Defendant contends he testified at trial in accord with his pretrial statements and that his willingness to give the statements to the police indicated both his own innocence and the truth of the statements. In order to make this argument seem plausible, however, defendant is forced to redact the actual instruction in a manner that gives it a different meaning. Thus, his opening brief renders the cautionary sentence from CALCRIM No. 358 as follows: “the court instructed the jury it ‘must consider … defendant’s [pre-trial] oral statement[s] … with caution.’” (All brackets and ellipses are as set forth in the brief.)
It is apparent this version of the instruction might be improper in a case in which the defendant relies on the truth of his or her pretrial statements as part of a defense. This was not, however, the version of the instruction given to the jury in this case. The cautionary portion of the pattern instruction--i.e., the instruction given here--is are addressed to “evidence of a defendant’s oral statement,” not to the truth of the statement. In other words, the purpose of the cautionary instruction is to assist the jury in determining whether the pretrial statements were made, not whether any such statements were true. (See People v. Livaditis (1992) 2 Cal.4th 759, 784.) To the extent defendant did not dispute he had made the statements and testified in court to the same effect as his pretrial statements, the instruction was at worst superfluous and nonprejudicial. (Ibid.; see also People v. Mungia (2008) 44 Cal.4th 1101, 1135.)
Defendant contends the instruction in this case had an impermissible effect similar to the cautionary instruction given in Cool v. United States (1972) 409 U.S. 100, 103-104. In that case, the trial court instructed the jury that accomplice testimony exculpating the defendant was “open to suspicion” and should only be treated like other evidence if it was proven beyond a reasonable doubt. (Id. at p. 102.) The Supreme Court held that this instruction effectively told the jury to disregard the accomplice testimony unless it was considered true beyond a reasonable doubt. As such, the instruction interfered with the defendant’s right to defend with evidence that merely raised a reasonable doubt and, in doing so, lowered the prosecution’s burden of proof. (Id. at p. 104.)
In the present case, those considerations are not present. The instruction did not address the substance--that is, the truthfulness--of the pretrial statements at all, nor did it impose any barriers to the jury’s consideration of those statements. The defense was not undermined by the use of CALCRIM No. 358.
IV. The failure to instruct on “attempted manufacture.”
Finally, defendant contends the trial court was required sua sponte to instruct on attempted manufacture of methamphetamine as a lesser included offense of the manufacturing count. He says that the line between manufacture and attempted manufacture is unclear and he was entitled to have the jury decide between the two. We disagree.
Defendant’s argument fails to take into account the fact that ephedrine is an immediate precursor of methamphetamine. (People v. McCall, supra, 32 Cal.4th at p. 181, fn. 4.) Therefore, by virtue of section 11007, extraction of ephedrine is the manufacture of a controlled substance under section 11055. While other steps, including the assembly of a suitable laboratory or the preparation of nonprecursor chemicals (McCall, at pp. 180-181) with the required intent might constitute attempted manufacture, that is not the case with preparation of an immediate precursor. Thus, in this case, where it was agreed that defendant extracted ephedrine, there was no view of the evidence pursuant to which defendant committed an attempt but not the completed crime (see People v. Breverman (1998) 19 Cal.4th 142, 162): if he extracted ephedrine without the requisite mental state, he was not guilty of a crime; if he had the required mental state, he was necessarily guilty of the completed crime of violation of section 11379.6, subdivision (a). Accordingly, the court had no duty to instruct on attempted manufacture of methamphetamine as a lesser included offense. (Breverman, at p. 162.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: GOMES, J. Poochigian, J.