P. v. Delaney

Filed 6/21/07 P. v. Delaney CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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A jury convicted defendant Lon Delaney of manufacturing methamphetamine, possessing pseudoephedrine with intent to manufacture methamphetamine, and transportation of methamphetamine. The trial court found true the district attorneys allegation that defendant had two prior drug convictions. The court sentenced defendant to the middle term of five years for manufacturing methamphetamine. It stayed the sentence for possession of pseudoephedrine and imposed a concurrent term for transportation of methamphetamine. Finally, it struck one prior drug conviction allegation and imposed a consecutive three-year term for the other, for a total state prison term of eight years.

On appeal, defendant asserts (1) the trial court erred in admitting defendants statement, (2) there is insufficient evidence of methamphetamine manufacturing, (3) the court erred in allowing amendment of the information late in the trial, and (4) the court improperly admitted defendants mugshot. Finding no error, we affirm.

FACTS

Sacramento Police Officer Joshua Kirtlan, working with other officers, pulled over defendant for Vehicle Code violations in the Elverta area during the evening of August 5, 2004. The officers found approximately .3 grams of methamphetamine in defendants pocket. The officers also found two hypodermic needles and checks with a name other than defendants in the vehicle. Defendant identified himself and pointed to his residence, 2495 Rhine Way, across the street from where he had been pulled over.

Defendant identified the southwest bedroom of the residence as his, but he did not have a key in his possession. The officers searched the southwest bedroom. They found paperwork, including bills, with defendants name and the Rhine Way address. They also found .03 grams of methamphetamine in a Ziploc baggie, 10 syringes, a spoon, and additional baggies.

In the garage, the officers noticed a strong chemical odor which they believed was from methamphetamine manufacturing. The officers also saw items associated with methamphetamine manufacturing. A task force responded to the house to remove the items in the garage.

The task force found three boxes of cold medicine containing pseudoephedrine, from which the pseudoephedrine can be extracted as a precursor to methamphetamine. Acetone may be used in that process, a can of which was also found in the garage.

The next step in manufacturing methamphetamine is to combine the pseudoephedrine with hydriodic acid. To create hydriodic acid, the manufacturer can combine iodine with the red phosphorus found in the striker plates of matches. In the garage, the task force found iodine and matches from which the striker plates had been removed. Amber staining, consistent with the use of iodine in methamphetamine manufacturing, was found on various items in the garage.

The task force also found a hot plate, Red Devil lye, muriatic acid, coffee filters, a turkey baster, and plastic tubing in the garage, all associated with manufacturing methamphetamine. Methamphetamine residue, the final product, was found on some of the coffee filters and tubing, as well as the turkey baster. Finally, the task force found a digital scale. In the opinion of the prosecutions expert, the garage was a functioning methamphetamine lab.

Defendant made a statement, which we discuss below, to officers.

Defendants defense was that he did not live at the house and did not have control over the garage or its contents.

DISCUSSION

I

Defendants Statement

Citing Missouri v. Seibert (2004) 542 U.S. 600 [159 L.Ed.2d 643] (Seibert), defendant asserts the officers in this case employed a prohibited question-first interrogation technique designed to circumvent the requirements of Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda). The facts of this case, however, bear no resemblance to the facts of Seibert.

When reviewing a trial courts ruling on whether a defendants statements violated Miranda, we accept the trial courts factual findings if supported by substantial evidence. (People v. Wash (1993) 6 Cal.4th 215, 235.) Although we independently determine whether officers illegally obtained statements, we give great weight to the considered conclusions of a lower court that has previously reviewed the same evidence. (Id. at p. 236.)

After defendants arrest and the officers discovery of the contents of the garage, the officers brought various items out of the garage. Defendant, who was handcuffed, was asked whether a tub of red powder was red phosphorus, a dangerous chemical used in methamphetamine manufacturing. Defendant responded that it was just chalk.^[1] Later, defendant expressed to the officers a desire to work off his case, meaning he would give information concerning other sources of methamphetamine in exchange for leniency. Detective Thomas Little spoke to defendant and explained he could make no promises but that the district attorney required verifiable information. Detective Little drove around the area with defendant for about 10 minutes while defendant pointed out two or three locations. The detective told defendant he would present the information to his superiors.

After the discussions about the contents of the garage and the information about other sources of methamphetamine, which defendant attempts to characterize as interrogations, Detective Little gave defendant Miranda warnings. Although Detective Little did not ask and defendant did not state whether he was willing to waive his rights and speak to the detective about the crimes for which he was arrested, defendant gave a statement to Detective Little after the detective had given the Miranda warnings. Defendant said the methamphetamine in his bedroom was probably his. Referring to the officers working on the contents of the garage, defendant said the chemical guys did not know what they were talking about and claimed he knew [e]verything about those chemicals in my garage. He offered innocent explanations for the garages contents.

Before trial, defendant moved to exclude his statement made to Detective Little. The trial court held an evidentiary hearing then denied the motion. It concluded that the questions asked of defendant concerning the contents of the garage were solely for public safety purposes. Some of defendants statements concerning the garages contents were made voluntarily, with no questioning. When Detective Little interrogated defendant after giving him the Miranda warnings, the detective did not confront defendant with statements he already made.

In Oregon v. Elstad (1985) 470 U.S. 298 [84 L.Ed.2d 222], a police officer said he believed the defendant, who was under arrest, was involved in the burglary under investigation. In response, the defendant admitted being present when it occurred. Subsequently, defendant was advised of and waived his Miranda rights and confessed to his participation in the burglary. The United States Supreme Court rejected a claim the initial voluntary, but unwarned, statement precluded admission of the defendants subsequent confession. The court reasoned that, absent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion. A subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement. In such circumstances, the finder of fact may reasonably conclude that the suspect made a rational and intelligent choice whether to waive or invoke his rights. (Id. at p. 314.)

In Seibert, however, the interrogating police officer used a police protocol for custodial interrogation that calls for giving no warnings of the rights to silence and counsel until interrogation has produced a confession. (Seibert, supra, 542 U.S. at p. 604.) The police awakened the defendant at 3:00 a.m. and arrested her. The arresting officer followed instructions to refrain from giving Miranda warnings. The defendant was taken to the police station and left alone in the interview room. The interrogating officer then questioned her without Miranda warnings for 30 to 40 minutes, squeezing her arm and insisting that she admit she meant for the victim to die. After she finally admitted she knew he was meant to die, the officer gave her the Miranda warnings, obtained a written waiver, and then asked the same questions again to extract the incriminating admission. (Seibert, supra, at pp. 605-605.) The officer testified that he made a conscious decision to withhold Miranda warnings, thus resorting to an interrogation technique he had been taught: question first, then give the warnings, and then repeat the question until I get the answer that shes already provided once. (Seibert, supra, at pp. 605-606.)

In a plurality opinion, the justices observed: The reason that question-first is catching on is as obvious as its manifest purpose, which is to get a confession the suspect would not make if he understood his rights at the outset; the sensible underlying assumption is that with one confession in hand before the warnings, the interrogator can count on getting its duplicate, with trifling additional trouble. (Seibert, supra, 542 U.S. at p. 613.) They concluded: Thus, when Miranda warnings are inserted in the midst of coordinated and continuing interrogation, they are likely to mislead and depriv[e] a defendant of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them. [Citation.] (Id. at pp. 613-614.)

Here, the trial court concluded the prewarning discussions did not taint defendants postwarning statement. The many differences between Seibert and this case support that conclusion. Defendant was not questioned concerning the circumstances of the current crimes before receiving the Miranda warnings. Detective Little did not confront defendant with statements he had already made. The detective did not have a confession in hand before warning defendant. There were good reasons for the noninterrogation discussions that took place before the warnings, including officer and public safety and defendants desire to give information on other sources of methamphetamine in exchange for leniency. Even if the prewarning discussions could be characterized as interrogations, they did not have the effect of violating defendants right to remain silent.

Defendant attempts to find significance in the fact that Detective Little did not ask defendant to waive his Miranda rights expressly. A valid Miranda waiver may be express or implied. (See People v. Whitson (1998) 17 Cal.4th 229, 247-248; North Carolina v. Butler (1979) 441 U.S. 369, 373 [60 L.Ed.2d 286, 292].) More specifically, a waiver can be implied by a suspects simply answering questions after an acknowledgement that he or she understands those Miranda rights, as was the case here. (See People v. Medina (1995) 11 Cal.4th 694, 751-752.)

Because the interaction between defendant and the officers was neither calculated to trick defendant into giving a statement nor had the actual effect of overcoming defendants ability to waive his Miranda rights voluntarily, the trial court did not err in denying the motion to suppress.

II

Sufficiency of Manufacturing Evidence

Defendant contends his convictions for manufacturing methamphetamine and possession of pseudoephedrine are undermined by the fact that (1) [defendants] fingerprints were not located on any of the incriminating items, (2) the portability of the suspected items, (3) the lack of evidence that [defendant] physically possessed any of the items, (4) the lack of evidence of the timing of any methamphetamine manufacture and (5) the lack of evidence that [defendant] was at the garage during any manufacture. To the contrary, defendant fails to establish the evidence was insufficient to support his convictions.

In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence -- evidence that is reasonable, credible and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Kraft (2000) 23 Cal.4th 978, 1053.)

Defendant mainly relies on People v. Jenkins (1979) 91 Cal.App.3d 579 (Jenkins). In Jenkins, the police discovered a drug laboratory at the residence of the defendants brother. The defendants fingerprints were found on three items: a bottle, a flask, and a vial. (Id. at pp. 581-582.) The defendant was convicted of one count of manufacturing PCP and one count of possession of prohibited chemicals with the intent to manufacture PCP. (Id. at p. 581.) The convictions were reversed on appeal because the evidence was insufficient. (Id. at p. 587.) The appellate court noted: (1) there was no evidence of the age of the fingerprints which were lifted
from the containers in the garage; (2) there was no direct evidence where those containers were when defendant touched them; (3) there was no direct evidence of what was in the containers when defendant touched them; (4) there was no evidence, direct or indirect, that the contents of the containers touched by defendant were used in the manufacture of PCP. (Id. at p. 583.)

The Jenkins court stated: The elements of the offense of possession of restricted drugs are physical or constructive possession with knowledge of the presence and narcotic character of the drug. [Citation.] (Id. at p. 583.) The court noted that there was no evidence of actual physical possession of the drugs. (Ibid.) It also said that there was a limit to the mileage that [could] be obtained from the fingerprint evidence. The only fact directly inferable from the presence of the fingerprints [was] that sometime, somewhere defendant [had] touched the containers. (Id. at p. 584.) The court also said that more than mere presence must be shown in order to prove constructive possession: the People must also show that defendant had dominion and control over the contraband. [Citations.] (Ibid.) In addition, the court stated that when the contraband is located at premises other than those of the defendant, dominion and control may not be inferred solely from the fact of defendants presence . . . ." (Ibid.)

The evidence presented in this case is considerably stronger than the evidence presented against the defendant in Jenkins. The evidence, including defendants own admission, strongly supports a conclusion that defendant resided at 2495 Rhine Way. He also admitted he was aware of what was in the garage and he was familiar with the chemicals associated with methamphetamine manufacturing. Expert opinion established that the garage contained a working methamphetamine lab. Even though defendant was not actively engaged in the process of manufacturing when he was arrested, the evidence from the garage showed that manufacturing had taken place. Defendants occupation of the premises which contained a methamphetamine lab, his familiarity with the contents of the garage, and his possession of methamphetamine support the reasonable inference that defendant had been involved in the manufacturing process.

Defendants observations that there was some evidence consistent with his claim of innocence, such as lack of fingerprints and the portability of the items found in the garage, are unavailing. They do not detract from the substantiality of the evidence discussed. Furthermore, defendants claim on appeal that there was no direct evidence concerning the timing of the methamphetamine manufacturing or of his presence during the manufacturing fails to overcome the reasonable inferences supported by defendants occupation of the residence, knowledge of the garages contents, and possession of finished product.

Responding to arguments similar to those defendant advances here, the Supreme Court stated: In Jenkins, defendants denials and evasions regarding the physical evidence provided the only evidence of his knowledge and intent with respect to the charged offenses. (People v. Garrison (1989) 47 Cal.3d 746, 781, italics in original.) As in the Supreme Court case, the evidence here was much more probative than mere denials and evasions. Defendants contention that the evidence was insufficient to convict him of manufacturing methamphetamine is without merit.

The same evidence supports defendants conviction for possession of pseudoephedrine with intent to manufacture methamphetamine. Defendant possessed the pseudoephedrine in a methamphetamine lab. His intent to use the pseudoephedrine to manufacture methamphetamine can be reasonably inferred from these circumstances.

III

Amendment of the Information

The information charged defendant with possession of ephedrine with intent to manufacture methamphetamine. On the last day of trial, before closing arguments, the trial court allowed the prosecution to amend the information to conform to proof by replacing the word ephedrine with pseudoephedrine. Defendant moved for acquittal on the charge, claiming his defense had been based on showing he did not possess ephedrine. The trial court denied the motion because there was no surprise or prejudice. On appeal, defendant contends his due process rights were violated because the amendment forced him to defend against the amended charge after the close of evidence. We disagree.

The trial court may permit amendment of the information at any time during the proceedings provided the amendment is supported by evidence at the preliminary hearing and does not prejudice the defendants substantial rights. (Pen. Code, 1009;People v. Birks (1998) 19 Cal.4th 108, 129.) The amendment may be made as late as the close of trial if no prejudice is shown (People v. Witt (1975) 53 Cal.App.3d 154, 165) and the courts ruling on the request will not be reversed absent an abuse of discretion (People v. Bolden (1996) 44 Cal.App.4th 707, 716).

Here, the evidence of pseudoephedrine possession was presented at the preliminary hearing. Concerning prejudice, defendant asserts only that he based his defense on the absence of ephedrine instead of pseudoephedrine. This is the claim the trial court considered and rejected, as do we.

Former Health and Safety Code section 11383, subdivision (c)(1), effective both at the time of the offense and at trial, proscribed the possession of ephedrine or pseudoephedrine with intent to manufacture methamphetamine. (Stats. 2003, ch. 619,  1.) Although the information listed ephedrine, the proposed jury instruction submitted early in the proceedings listed both ephedrine and pseudoephedrine. Evidence of pseudoephedrine in the garage was presented at the preliminary hearing, as noted above, and during trial. Therefore, the amendment could not have surprised defendant.

Also, defendant did not ask for a continuance, most likely because his defense was that he did not possess the items in the garage at all and he did not intend to manufacture methamphetamine. Accordingly, we agree that defendant was not prejudiced by the amendment.

IV

Admission of Mugshot

After Officer Kirtlan identified defendant as the driver of the vehicle he pulled over, defendant challenged Officer Kirtlans ability to identify defendant as the driver. The prosecution responded by introducing defendants mugshot, taken when he was arrested, and asking Officer Kirtlan how defendants appearance had changed since his arrest. The prosecutor asked Officer Kirtlan if the mugshot reflected how defendant looked at the time of arrest. Defendants objection to the introduction of the mugshot was overruled.

On appeal, defendant contends admission of the mugshot was an abuse of discretion because it had no probative value and it was prejudicial to him because it made him look like a criminal. In support, defendant offers no case in which a mugshot was deemed too prejudicial for admission. Instead, he merely argues the mugshot should have been excluded under Evidence Code section 352.

Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.] [Citation.] A trial courts discretionary ruling under Evidence Code section 352 will not be disturbed on appeal absent an abuse of discretion. [Citation.] (People v. Lewis (2001) 26 Cal.4th 334, 374.)

The prejudice from admission of the mugshot did not clearly outweigh the probative value of the evidence. Defendant makes no effort to explain what it is about the mugshot that made him look like a criminal. Even if the probative value was slight, showing the jury the mugshot, which reflected how defendant looked when he was arrested, was not unduly prejudicial. Therefore, we conclude the vague assertion that the mugshot made defendant look like a criminal is without merit.

DISPOSITION

The judgment is affirmed.

NICHOLSON , J.

We concur:

DAVIS, Acting P.J.

ROBIE , J.

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^[1] Defendant claimed in his testimony at the evidentiary hearing that he was stripped and made to sit outside on a stool in his underwear for about two hours and that officers asked him about each item they removed from the garage. This testimony was contradicted by testimony from the officers that they had defendant remove his clothing in case it was contaminated and immediately gave him replacement clothing to wear. Since we view the facts in the light most favorable to the courts ruling, we disregard defendants contradicted testimony.