P. v. Hickey

Filed 4/20/06 P. v. Hickey CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Timothy M. Casserly, Judge. Affirmed.

I.

INTRODUCTION

A jury found Lisa Marie Hickey guilty of manufacturing methamphetamine (Health & Saf. Code,^[1] § 11379.6, subd. (a)), possessing pseudoephedrine with the intent to manufacture methamphetamine (§ 11383, subd. (c)(1)), and possessing a firearm as a felon (Pen. Code, § 12021, subd. (a)(1)). The trial court sentenced Hickey to a total prison term of 10 years eight months.

On appeal, Hickey claims there is insufficient evidence that she manufactured methamphetamine pursuant to section 11379.6, subdivision (a). Specifically, Hickey argues that section 11379.6, subdivision (a) prohibits the manufacture of a controlled substance, and maintains that "[t]he prosecution evidence showed only that [Hickey] committed an attempt to manufacture methamphetamine." (Italics added.) She contends that the court erred in instructing the jury that section 11379.6, subdivision (a) prohibits participation in the initial and intermediate stages of methamphetamine production. Hickey further claims that the trial court was required to instruct the jury sua sponte regarding the offense of offering to manufacture methamphetamine (§ 11379.6, subd. (c)). Finally, Hickey claims that there is insufficient evidence that she possessed pseudoephedrine with the intent to personally manufacture methamphetamine.

We affirm the judgment.

II.

FACTUAL AND PROCEDURAL BACKGROUND

Special agents of the Drug Enforcement Agency (DEA) executed a search warrant of a storage unit Hickey rented. The agents found equipment commonly used to manufacture methamphetamine, including glassware, coffee grinders, coffee filters, a funnel, a mason jar with rubber tubing, an electric hot plate, two scales, and rubber gloves. The agents later determined that methamphetamine residue was present on much of the equipment. In addition, the coffee grinders contained residue from pseudoephedrine, a chemical precursor to methamphetamine. Agents found a bottle that contained 4.8 grams of pseudoephedrine in a liquid solution, and a container of phosphorous acid─a chemical commonly used in the process of converting pseudoephedrine into methamphetamine. The storage unit also contained a cloth bag that had chemical burns consistent with the presence of red phosphorous, another chemical commonly used in the process of converting pseudoephedrine into methamphetamine.

DEA Agent Andrew Jauch arrested Hickey. After her arrest, Hickey admitted to Agent Jauch that the materials found in the storage unit belonged to her. Hickey told Agent Jauch that she had purchased most of the items from a man named Terry H.. Hickey also told Agent Jauch that she intended to sell or trade the items to a second person named Fred B., who was looking to purchase items to use in the manufacture of methamphetamine. Hickey also admitted to Agent Jauch that she had "washed some dope"^[2] for Fred B.

In March 2005, the People charged Hickey in an amended information with manufacturing methamphetamine (§ 11379.6, subd. (a), count 1), possessing pseudoephedrine with the intent to manufacture methamphetamine (§ 11383, subd. (c)(1), count 2), and possessing a firearm as a felon (Pen. Code, § 12021, subd. (a)(1), count 3).

As to counts 1 and 2, the People alleged that Hickey had previously been convicted of manufacturing methamphetamine (§ 11370.2, subd. (b)). In addition, the People alleged that Hickey had suffered four prior felony convictions (Pen. Code, § 1203, subd. (e)(4)) and two prison prior convictions (Pen. Code, §§ 667.5, subd. (b), 668).

In March 2005, in the first phase of a bifurcated trial, a jury found Hickey guilty of the charged offenses. In the second phase of the trial, Hickey admitted the prior conviction allegations. The trial court sentenced Hickey to a total prison term of 10 years eight months.

III.

DISCUSSION

A. Section 11379.6, subdivision (a) prohibits participation in any stage of the

process of manufacturing methamphetamine

Hickey claims there is insufficient evidence that she manufactured methamphetamine pursuant to section 11379.6, subdivision (a) because that statute does not prohibit the initial or intermediate steps necessary to manufacture methamphetamine. "The interpretation of a statute's meaning is a question of law that is reviewed de novo." (People v. Germany (2005) 133 Cal.App.4th 784, 789.)

Section 11379.6 provides in relevant part:

"(a) 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).

[¶] . . . [¶]

"(c) Except as otherwise provided by law, every person who offers to perform an act which is punishable under subdivision (a) shall be punished by imprisonment in the state prison for three, four, or five years."^[3]

In People v. Lancellotti (1993) 19 Cal.App.4th 809, 813 (Lancellotti), the court held that section 11379.6, subdivision (a) criminalizes participation in the initial and intermediate stages of the methamphetamine manufacturing process. The defendant in Lancellotti stored chemicals used to manufacture methamphetamine at a commercial storage facility. (Lancellotti, supra, 19 Cal.App.4th at p. 812.) The storage unit also contained most of the equipment needed to manufacture methamphetamine. (Ibid.) On appeal from his conviction for manufacturing methamphetamine (§ 11379.6, subd. (a)), the defendant claimed the evidence was insufficient to support his conviction because the storage unit lacked a certain piece of equipment and a reducing agent that were necessary to complete the methamphetamine manufacturing process. (Lancellotti, supra, 19 Cal.App.4th at p. 811.)

The Lancellotti court rejected this argument, stating:

"The evidence in this case clearly establishes that appellant was in the middle of the manufacturing process for methamphetamine, because '. . . the conduct proscribed by section 11379.6 encompasses the initial and intermediate steps carried out to manufacture, produce or process [a controlled substance].' [Citation.]

[¶] . . . [¶]

"The cumulative nature of the evidence in appellant's case, including the contents of the locker which all taken together are only used in the manufacture of methamphetamine, the presence of chloropseudoephedrine, a substance which cannot be purchased and is used only in the manufacture of methamphetamine, and the odor emanating from the locker, provide substantial evidence that the manufacture of methamphetamine, an incremental and not instantaneous process, was in progress." (Lancellotti, supra, 19 Cal.App.4th at p. 813.)

In People v. Coira (1999) 21 Cal.4th 868 (Coira), the Supreme Court cited Lancellotti for the proposition that, "The conduct proscribed by . . . section [11379.6, subd. (a)] encompasses the initial and intermediate steps carried out to process a controlled substance." (Coira, supra, 21 Cal.4th at p. 874.) The Coira court explained, "[T]he statute makes it unlawful to engage in the chemical synthesis of a substance as one part of the process of manufacturing a controlled substance." (Ibid.) Numerous other courts have reached the same conclusion. (See, e.g., People v. Heath (1998) 66 Cal.App.4th 697, 705 [section 11379.6, subdivision (a) "criminalize[s] all acts which are part of the [methamphetamine] manufacturing process"].)

Hickey concedes that there is substantial evidence in the record to support her conviction on count 1 under the interpretation of section 11379.6, subdivision (a) provided in Lancellotti and its progeny.^[4] However, she contends that this court should reject the holdings in these cases because the courts failed to consider section 11379.6, subdivision (a) in context with section 11379.6, subdivision (c), which prohibits

"offer[ing] to perform an act which is punishable under subdivision (a) . . . ." Hickey argues that interpreting section 11379.6, subdivision (a) to encompass the preliminary steps of manufacturing methamphetamine "read[s] subdivision (c) out of the statute," because virtually any act that constitutes offering to manufacture methamphetamine will also constitute manufacturing methamphetamine. In her reply brief, Hickey argues that the "'offers to perform' language is consistent with criminalizing an attempt to commit a violation of subdivision (a)."

We are not aware of any cases that have interpreted section 11379.6, subdivision (c). However, the plain language of section 11379.6, subdivision (c) criminalizes offering to manufacturing methamphetamine, not attempting to manufacture methamphetamine. As used in section 11379.6, subdivision (c), the phrase "offers to perform an act which is punishable under subdivision (a)," criminalizes the act of declaring one's willingness to manufacture a controlled substance. (See Merriam-Webster's Collegiate Dict. (10th ed. 1998) pp. 806-807 [defining offer as "to declare one's readiness or willingness ([offer]ed to help me)"].) Contrary to Hickey's argument, offering to take an initial step in the manufacturing process is not equivalent to actually taking such a step. Further, a person can manufacture a controlled substance without first offering to do so. Therefore, we reject Hickey's contention that interpreting section 11379.6, subdivision (a) to encompass the preliminary steps of the manufacturing process renders section 11379.6, subdivision (c) surplusage.

We also reject Hickey's contention that People v. Perez (2005) 35 Cal.4th 1219 (Perez) supports her argument. The Perez court neither discussed section 11379.6, subdivision (c), nor suggested that the courts in Lancellotti and its progeny were mistaken in concluding that section 11379.6, subdivision (a) criminalized participation in any stage of the methamphetamine manufacturing process.

We conclude that section 11379.6, subdivision (a) criminalizes participation in any stage of the methamphetamine manufacturing process, and that there is substantial evidence to support the jury's finding that Hickey manufactured methamphetamine pursuant to that section.

B. The trial court properly instructed the jury regarding the offense of

manufacturing methamphetamine

Hickey claims the trial court erred in instructing the jury regarding the offense of manufacturing methamphetamine (§ 11379.6, subd. (a)).

The trial court instructed the jury pursuant to CALJIC No. 12.09.1, the standard CALJIC jury instruction pertaining to the offense of manufacturing a controlled substance, in relevant part, as follows:

"The crime of manufacturing a controlled substance, and the term 'manufacture' as used in this instruction, does not require proof or mean that the process of manufacturing be completed. Rather, the crime is committed when a person knowingly participates in the initial or intermediate steps to carry out to process a controlled substance. Thus, it is unlawful for a person to engage in the synthesis, processing, or preparation of a chemical used in the manufacture of a controlled substance, even if the chemical is not itself a controlled substance, provided the person knows that the chemical is to be used in the manufacturing of a controlled substance."^[5]

Incorporating the arguments from her brief that we rejected in part III.A., ante, Hickey claims this instruction was "overly broad" because it defined the crime of manufacturing methamphetamine to include the preliminary steps necessary to accomplish this task. For the same reasons we concluded in part III.A., ante, that the crime of manufacturing methamphetamine includes any stage of the manufacturing process, we conclude that the trial court properly instructed the jury regarding the offense of manufacturing methamphetamine.

C. The trial court was not required to instruct the jury sua sponte regarding

the offense of offering to manufacture methamphetamine

Hickey claims the trial court was required to instruct the jury sua sponte regarding the offense of offering to manufacture methamphetamine (§ 11379.6, subd. (c)). Hickey argues that offering to manufacture methamphetamine (§ 11379.6, subd. (c)), is a lesser included offense of the charged offense, manufacturing methamphetamine (§ 11379.6, subd. (a)).

"We apply the independent or de novo standard of review to the failure by the trial court to instruct on an assertedly lesser included offense. [Citation.] A trial court must instruct the jury sua sponte on a lesser included offense only if there is substantial evidence, ' "that is, evidence that a reasonable jury could find persuasive" ' [citation], which, if accepted, ' "would absolve [the] defendant from guilt of the greater offense" [citation] but not the lesser.' [Citation]." (People v. Cole (2004) 33 Cal.4th 1158,1218.)

"Under California law, a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser." (People v. Birks (1998) 19 Cal.4th 108, 117.)

Hickey has cited no authority to support her assertion that offering to manufacture methamphetamine is a lesser included offense of manufacturing methamphetamine, and we are aware of no such authority. As we stated in part III.A, ante, a person can manufacture a substance without first offering to do so. Therefore, the offense of manufacturing methamphetamine may be completed without committing the offense of offering to manufacture methamphetamine.

We conclude that offering to manufacture methamphetamine is not a lesser included offense of manufacturing methamphetamine, and thus, that the trial court did not err in failing to instruct the jury sua sponte on the offense of offering to manufacture methamphetamine.

D. There is substantial evidence that Hickey possessed pseudoephedrine with the

intent to personally manufacture methamphetamine

Hickey claims there is insufficient evidence that she possessed pseudoephedrine with the intent to personally manufacture methamphetamine.

In determining the sufficiency of the evidence to support a conviction, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 319.) "[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence─that is, evidence which 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. Johnson (1980) 26 Cal.3d 557, 578.)

Section 11383, subdivision (c)(1) provides in relevant part:

"Any person who, with intent to manufacture methamphetamine or any of its analogs . . . possesses ephedrine or pseudoephedrine . . . is guilty of a felony . . . ."

In Perez, supra, 35 Cal.4th at page 1228, the California Supreme Court concluded that a defendant may not be convicted of violating section 11383, subdivision (c)(2),^[6] possessing hydriodic acid with the intent to manufacture methamphetamine, without proof that the defendant personally intended to manufacture methamphetamine. We assume for purposes of this decision that section 11383, subdivision (c)(1)─possessing

pseudoephedrine with the intent to manufacture methamphetamine─also requires proof that the defendant intended to personally manufacture methamphetamine.

In this case, there was substantial evidence that Hickey possessed pseudoephedrine with the intent to personally manufacture methamphetamine. Equipment and chemicals─including pseudoephedrine─that appeared to be have been used in the manufacture of methamphetamine, were found in a storage unit Hickey rented. Agent Jauch testified that Hickey admitted that she knowingly possessed the items found in the unit. Agent Jauch also testified that Hickey admitted that she had "washed dope" for Fred B. In addition, she possessed glass flasks, a hot plate, scales, and a Pyrex dish, all of which contained methamphetamine residue.

Hickey acknowledges that the "jury arguably could have found that [she] possessed the pseudoephedrine with the intent to manufacture based on [her] possession of the drug making equipment found in the locker." However, she claims that because the People purportedly argued that she intended to transfer the equipment and pseudoephedrine to Fred B., rather than personally manufacture methamphetamine, the jury could not have found that she personally intended to participate in the manufacturing process, as is required under Perez.

During closing argument, the prosecutor repeatedly argued that Hickey personally participated in the manufacturing of methamphetamine. The prosecutor asserted that Hickey "admitted participating in the manufacture of methamphetamine." During another portion of his closing argument, the prosecutor stated that Fred B. "allow[ed] [Hickey] to participate in the manufacturing process." The prosecutor further stated, "Because by saying that she washed some of Fred [B.'s] dope, what she's really telling you is she knows these people, she participates in that activity and by looking at the items found in her storage unit, she's an active participant." At yet another point in the closing argument, the prosecutor argued, "Pseudoephedrine is not a controlled substance, but when you grind it up in a pill grinder, when you've got coffee filters, when you've got flasks and phosphoric acid and all of the other apparatus that were found there, it proves beyond a reasonable doubt that she was engaged in the manufacture of methamphetamine." The prosecutor did not argue that Hickey could be found guilty of possessing pseudoephedrine with the intent to manufacture methamphetamine, without intending to personally participate in the manufacturing process.

We conclude there was substantial evidence that Hickey possessed pseudoephedrine with the intent to personally manufacture methamphetamine.

IV.

DISPOSITION

The judgment is affirmed.

AARON, J.

WE CONCUR:

HALLER, Acting P. J.

McINTYRE, J.

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^[1] Unless otherwise specified, all subsequent statutory references are to the Health and Safety Code.

^[2] Agent Jauch defined the phrase, "washing dope," as follows: "At a point in manufacturing methamphetamine, near the end . . . it sometimes has a dirty appearance, and manufacturers like to wash it with a solvent like acetone in order to give it a shinier, clearer, cleaner appearance."

^[3] Methamphetamine is one of the controlled substances identified in section 11055. (§ 11055, subd. (d)(2).)

^[4] In view of Hickey's concession, we need not describe the substantial evidence that supports the jury's finding that she was guilty of manufacturing methamphetamine.

^[5] We note the People properly concede that the court erred in stating, in another portion of its instructions to the jury, that a person may be found guilty of manufacturing methamphetamine if the person "offers to manufacture" methamphetamine. However, Hickey has raised no claim regarding this error.

^[6] Section 11383, subdivision (c)(2) provides in relevant part, "Any person who, with intent to manufacture methamphetamine or any of its analogs . . . possesses hydriodic acid or a reducing agent or any product containing hydriodic acid or a reducing agent is guilty of a felony . . . ."