P. v. Case

Filed 6/13/06 P. v. Case CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Tuolumne County. Eleanor Provost, Judge.

Ross Thomas, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Julie A. Hokans, Carlos A. Martinez and John A. Bachman, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

On February 18, 2005, appellant, Mike L. Case, was found guilty by a jury of manufacture of methamphetamine (Health & Saf. Code, § 11379.6, subd. (a), count one), possession with intent to manufacture methamphetamine or its analogs (Health & Saf. Code, § 11383, subd. (c)(1), count two), possession of methamphetamine for sale (Health & Saf. Code, § 11378, count three), possession of methamphetamine while armed with a firearm (Health & Saf. Code, § 11370.1, subd. (a), count four), and receiving stolen property (Pen. Code, § 496, subd. (a), count five).^[1] The jury found true an allegation that Case committed counts one, two, and three while personally armed with a firearm (Pen. Code, § 12022).

The trial court sentenced Case to prison for the midterm of five years on count one plus four years for the firearm enhancement. The court sentenced Case to prison for consecutive terms of one year four months on count two, eight months on count three, one year on count four, and eight months on count five. Case's total prison term is 12 years 8 months. The court imposed a restitution fine and granted applicable custody credits.

On appeal, Case contends he was substantially prejudiced when the trial court granted the prosecutor's motion to amend the information to conform to proof at trial.

FACTS

After watching appellant operating a stolen backhoe on August 9, 2004, Tuolumne County Sheriff's Deputies arrested him. While searching appellant, a deputy found a medicine bottle containing 7.3 grams of methamphetamine on him. A deputy went to retrieve insulin from appellant's truck at his request. The deputy found the insulin as well as a loaded rifle inside the truck.

Deputies suspected appellant possessed drugs for sale due to the large quantity they found on him. They obtained a search warrant for appellant's home. While executing the warrant, deputies found 70 grams of methamphetamine inside the house and nearby sheds. The methamphetamine was in one-once bags. Investigators used keys obtained from Case to open the safety deposit boxes, which contained methamphetamine with a drug cutting agent.

Deputies also found numerous pay-owe sheets, a triple-beam scale, guns, smoking pipes, bags for packaging drugs near the scale, and chemicals commonly used in the manufacture of methamphetamine. Some of these chemicals were found in the living room. The chemicals included gallon containers of Coleman fuel, acetone, and denatured alcohol. All three substances are used in the manufacture of methamphetamine. In a shed near the house, deputies found additional evidence of drug manufacturing, including chemicals and equipment, funnels, coffee filters, paper plates, and bottles labeled â€