P. v. Archie

Filed 4/25/06 P. v. Archie CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Butte)

Defendant, Troy Archie, was convicted of manufacturing methamphetamine (Health & Saf. Code, § 11379.6, subd. (a)), unlawful possession of ammunition (Pen. Code, § 12316, subd. (b)(1), and being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a).)

The jury found true an allegation that defendant manufactured methamphetamine in a structure with a child under the age of 16 years old present in the structure. (Health & Saf. Code, § 11379.7, subd. (a).) The court found true allegations that defendant had served a prior prison term and suffered a prior conviction of a serious or violent felony. (Pen. Code, §§ 667.5, subd. (b), 667, subds. (b)-(i).) The trial court sentenced defendant to a total term of 14 years and four months in prison.

On appeal defendant claims the trial court should have granted his motion to suppress evidence recovered in an unlawful search, the trial court erred in refusing to hold a Marsden^[1] hearing, Health and Safety Code section 11379.7 is unconstitutionally vague, and there was insufficient evidence that he possessed ammunition. We find no merit to defendant's arguments, and shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Early on the morning of August 3, 2004, Oroville police were dispatched to the Urban Manor apartment building for a possible rape in progress. When the officers arrived, several of the residents of the apartment complex directed them to apartment 6A.

Officer John Ryan entered the apartment first. A man and woman, identified as defendant and Sandra Henderson, were in the apartment. Henderson left the apartment, and the officers did a protective sweep of the apartment. As they did so, they observed a hazy white smoke in the air that gave off a chemical smell and burned the lungs, hypodermic needles and white powdery substances on plates, two shotgun shells lying on a counter and a third on a desk, a toilet in the middle of the living room floor, and clutter generally strewn about the apartment.

Officer Chris Nicodemus looked inside a red sports bag, where he discovered Red Devil lye and a container with other liquids in it. The bag emitted a strong chemical odor, causing Officer Nicodemus to suspect a methamphetamine lab. Officer Nicodemus called the narcotics task force and requested they take over the investigation.

Officers with the narcotics task force discovered an HCL generator, used to manufacture methamphetamine, as well as numerous other items used in the manufacture of methamphetamine. Defendant's fingerprints were on some of these items. Both the precursors and the byproducts from the manufacture of methamphetamine were found in the apartment.

Defendant's hands, fingers, and eyes were moving uncontrollably, and his pupils were extremely dilated, all signs of being under the influence of a stimulant. A blood sample taken from defendant revealed his blood contained 1.45 milligrams per liter of methamphetamine. The therapeutic level is .01 to .05 milligrams per liter.

Patty Steele lived in apartment 14 on August 3, 2004, with her son and daughter, ages eight and 10. Theresa Bushyhead lived in apartment three with her 14 month-old son. Bushyhead estimated about 10 children under the age of 16 lived in the building.

DISCUSSION

I

Suppression Motion

Defendant argues the trial court erred in failing to grant his suppression motion. He claims the initial warrantless entry was per se unreasonable and the subsequent search warrant must be quashed because the affidavit supporting it relied primarily on evidence obtained during the initial warrantless entry. We shall conclude the initial entry was justified by exigent circumstances; therefore the evidence recovered pursuant to the search warrant was not tainted.

The parties did not present testimony at the hearing on defendant's motion to suppress. The trial court considered the following facts, which are taken from the prosecution's written opposition to the suppression motion. Defense counsel agreed to the accuracy of the facts.

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