P. v. Madrid

Filed 9/7/07 P. v. Madrid CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. William R. Bailey, Judge. (Retired Judge of the Riverside Sup. Ct. assigned by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.) Affirmed in part; reversed in part with directions.

Charlotte E. Costan, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Lynne McGinnis and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted defendant of manufacturing methamphetamine (Health & Saf. Code, 11379.6, subd. (a)), and made 15 true findings that the crime occurred in a structure in which a child under the age of 16 years was present. (Health & Saf. Code, 11379.7, subd. (a).) In bifurcated proceedings, the trial court found true allegations that defendant had suffered three prior convictions for which he had served prison terms (Pen. Code, 667.5, subd. (b)) and one strike prior. (Pen. Code, 667, subds. (c) & (e)(1)) He was sentenced to prison for 38 years and appeals, claiming he should have sustained only one true finding under Health and Safety Code section 11379.7, subdivision (a),^[1]that that section is unconstitutional, that the erroneous admission of evidence at trial requires reversal of his conviction and the true findings and there was insufficient evidence to support his conviction. He also contends that his sentence violates Penal Code section 654 and is cruel and unusual. Because we agree with his former contention, we need not address the latter. We affirm his conviction and the true findings. We stay the terms imposed for 14 of the 15 true findings under section 11379.7, subdivision (a) pursuant to Penal Code section 654. We direct the trial court to amend the minutes of the sentencing hearing and abstract of judgment to reflect this and to impose a new total sentence of 14 years.

Facts

On June 2, 2004, defendant rented a room at a motel in Hemet. The two-story 37 room motel primarily consisted of wood and stucco and was an L-shaped building with one unitary roof covered with either wood shingles or tarred shingles on a wooden roof. The longest part of the L shaped motel was divided from the shortest part at the crux of the L, although a common walkway ran along both portions, upstairs and down. The room defendant occupied was the second to the last on the second floor of the top of the long portion. It shared a ventilation system (a swamp cooler) with the room next to it and two rooms below it. The smoke detector had been removed from the wall of the room.

Although defendant was alone when he rented the room, he rented it for two people. Later, he paid for the next nights stay. Around 7:30 a.m. on June 4, a car, being driven by a woman in the company of the co-defendant, was stopped by police in the motel parking lot. The woman and the co-defendant gave the officer false names and the license plate on the car she was driving did not belong to that vehicle. The key given to defendant for the room he rented was in the car between the co-defendants feet. The co-defendant first said he was staying at the motel, then said that he had stayed there and was just returning the key. He then denied having stayed in the room for which he had the key. The officer used the key to open the door of the room. Inside, defendant was asleep in the bed. Also inside was a methamphetamine lab with products at various stage of manufacture. A certified clandestine lab investigator opined that at least two different cooks were occurring in the room and they would have taken a couple of days and could produce more than a personal use amount. The expert also testified that, in his experience, people not involved in manufacturing are not allowed to be at a lab. There were 15 children under the age of 16 years in the building in which defendants motel room was located.

1. Section 11379.7, subdivision (a) Enhancements

a. Finding of Multiple Enhancements

Defendant was charged with 21 enhancements under section 11379.7, subdivision (a) -- one for each child under the age of 16 who was present in the motel in which the manufacturing occurred. Defendants pretrial section 995 motion, seeking to dismiss all but one such allegation, had been denied by the trial court, which concluded that an allegation for each child who was present was appropriate. On its own motion, the trial court later dismissed one of the allegations pursuant to Penal Code section 1385 because the victim of that allegation was in a part of the motel not connected to that part in which the manufacturing occurred.^[2]The jury returned true findings as to 15 of the remaining allegations.

Defendant here reiterates the arguments he made unsuccessfully below that section 11379.7, subdivision (a) should have been applied only once to his crime and not for each child present. We determine whether he is correct based on a de novo review of the trial courts interpretation of the statute. (City & County of San Francisco v. Ballard (2006) 136 Cal.App.4th 381, 396.) We conclude that he is not.

Section 11379.7 provides, in pertinent part: (a) Except as provided in subdivision (b), any person convicted of [manufacturing methamphetamine] when the commission . . . occurs in a structure where any child under 16 years of age is present, shall, in addition and consecutive to the punishment prescribed for the felony of which he . . . has been convicted, be punished by an additional term of two years . . . . []

(b) Any person convicted of [manufacturing methamphetamine] where the commission of the crime causes any child under 16 years of age to suffer great bodily injury, shall, in addition and consecutive to the punishment prescribed for the felony of which he . . . has been convicted, be punished by an additional term of five years . . . . [Italics added.]

[If the] language [of a statute] is clear and unambiguous and serves a rational purpose, there is no need for statutory construction. (People v. Braz (1998) 65 Cal.App.4th 425, 431, quoting People v. Bechler (1998) 61 Cal.App.4th 373, 377.)

However, when the language is susceptible of more than one reasonable interpretation, we look to a variety of extrinsic aids, including the ostensible objects to the achieved, the evils to be remedied, the legislative history, public policy, . . . and the statutory scheme of which the statute is part. (People v. Flores (2003) 30 Cal.4th 1059, 1063.) As used in criminal statutes, the word any has long been construed as ambiguously indicating the singular or the plural. (People v. Kirk (1989) 211 Cal.App.3d 58, 62.)^[3]

The question here is what did the Legislature intend when it provided for an enhancement for any child . . . present where methamphetamine is manufactured. Did it mean to provide for an enhancement for each child present or one enhancement if at least one child is present?

Section 11379.7, subdivision (a) begins, Except as provided in subdivision (b) before providing the enhancement for any child present. As is pertinent here, subdivision (b) provides an enhancement of greater length than in subdivision (a) when the manufacturing causes any child . . . to suffer great bodily injury. Within the same article of the Health and Safety Code where section 11379.7 is found is section 11379.9, which provides for [e]xcept as provided in Section 11379.7, for an enhancement for each death or injury caused by manufacturing. Obviously, section 11379.9 is directed at victims who are not children, because 11379.7 covers children. We cannot imagine the Legislature intending to impose an enhancement for each death or injury of a victim 16 years old or older under section 11379.9, and not intending the same for a child under the provisions of 11379.7, subdivision (b). Since 11379.7, subdivision (b) uses the same any child language that 11379.7, subdivision (a) uses, the Legislature must have intended by using the language any child to mean that an enhancement was available for each child present.

Similarly, Penal Code section 273a, in punishing anyone who causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering . . .  (italics added) means a child.

We also look to Penal Code section 12022.5, subdivision (a), which provides an enhancement for anyone who uses a firearm in the commission of a felony. In People v. King (1993) 5 Cal 4th 59, the question was whether using a firearm on more than one victim called for more than one finding under the subdivision. The California Supreme Court held that it did. It noted that imposing only one enhancement, despite using a firearm on multiple victims, rewards [the defendant] for the scope of his original criminal intent . . . . [] [I]t operates to punish those with a lesser criminal intent more severely than those who harbor more sinister objectives. [] . . . [] [The defendant] used a firearm each time he killed one of his victims. []  . . . [W]e doubt that the Legislature intended for either deterrence or punishment to cease with the first victim. We think it far more likely . . . that the Legislature intended to deter . . . and . . . to punish . . . firearm use against multiple victims more strongly than firearm use against a single victim. (Id. at pp. 74, 77-78.) Two Penal Code section 12022.5, subdivision (a) enhancements have been applied even when the defendant committed one act, i.e., the firing of one bullet which misses its intended victim but hits another. (In re Tameka C. (2000) 22 Cal.4th 190.) Therein, the California Supreme Court noted that the intent of Penal Code section 12022.5, subdivision (a) was to deter [defendants] from creating a potential for death or injury resulting from the very presence of a firearm at the scene of a crime. [Citation.]  . . . It is clear that a person who engages in an urban gun battle is more culpable than one who fires a weapon at an isolated individual. . . .  An increased sentence measured by the risk of harm to multiple victims reflects a rational effort to deter such reprehensible behavior. (Id. at p. 196, italics added.) Similarly, here, application of section 11379.7, subdivision (a) for each child endangered ensures that the defendants culpability is commensurate with the potential harm his actions created.

Defendants reliance on Wilkoff v. Superior Court (1985) 38 Cal.3d 345 is misplaced. There, the defendant was charged, inter alia, with a count of drunk driving for each person she killed or injured in an auto accident she caused. The California Supreme Court noted that a charge of multiple counts of violating a statute is appropriate only where the actus reus prohibited by the statute -- the gravamen of the offense -- has been committed more than once. The act prohibited by the [drunk driving statute] is the act of driving a vehicle while intoxicated, and, when so driving, violating any law relating to the driving of a vehicle. . . .  []  . . .  [] . . . not the act of injuring persons. (Id. at pp. 349-350, italics added.) [T]his act was committed only once, since there was only one driving incident. [T]he number of times the act is committed determines the number of times the statute is violated[.] (Id. at p. 349.) Here, defendant was not charged with 15 acts of manufacturing methamphetamine, one for each child in the motel. Rather, he was charged with one act of manufacturing, which victimized 15 children. Of relevance to the issue here, however, Wilkoff goes on to state, Defendants are not chargeable with a greater number of offenses simply because the injuries proximately caused by their single offense are greater. Rather, the Legislature may provide for increased punishment for an offense that has more serious consequences by, for instance, . . . adding enhancements . . . . (Id. at p. 352, italics original.) This is precisely what we believe the Legislature intended to do by enacting section 11379.7, subdivision (a).

b. Constitutionality of Section 11379.7, subdivision (a)

Defendant claims that section 11379.7, subdivision (a) is so vague that it fails to give notice of what conduct is prohibited because it has no intent requirement. All the authorities he cites in support of his argument address crimes, all of which require at least general intent or criminal negligence. However, section 11379.7, subdivision (a) is an enhancement provision that applies only when the requisite intent for the crime to which it is attached has been established beyond a reasonable doubt. Defendant cites no authority holding or any persuasive argument that section 11379.7, subdivision (a) must require that a person be aware of the presence of a child under 16 where methamphetamine is being manufactured or intend to manufacture methamphetamine in the presence of such a child in order to pass constitutional muster. Rather, the authority is to the contrary. (See People v. Meza (1995) 38 Cal.App.4th 1741, 1748.)

Defendant also contends that section 11379.7, subdivision (a) is unconstitutional as applied to him because it does not include within its list of structures a hotel or motel, therefore, he did not have notice that the enhancement would apply to him. Subdivision (c) defines structure as, any house, apartment building, shop, warehouse, barn, building, vessel, railroad car, cargo container, motor vehicle, house car, trailer, trailer coach, camper, mine, floating home, or other enclosed structure capable of holding a child and manufacturing equipment. (Italics added.) The motel here was clearly any building or any enclosed structure capable of holding a child and manufacturing equipment.^[4]

2. Admission of Evidence

Before trial began, defendant moved to prohibit as irrelevant and prejudicial testimony as to the dangers posed to the children in the motel from the methamphetamine production occurring in defendants room. The trial court noted that such evidence routinely comes in during manufacturing case and it would be admitted if relevant. The court said it was inclined to admit it, but would give the matter further thought.

The clandestine lab investigator testified, over defense relevancy and Evidence Code section 352 objections,^[5]that the greatest dangers of the production of methamphetamine were fires and/or explosion, which usually occur during the extraction phase, and, less common but more serious, the inhalation of gas during the reaction phase, which attacks the bodys central nervous system and causes other harm. He also testified, again, over objections that the evidence was irrelevant and prejudicial, as to how a fire might spread in the motel, starting from defendants room during the production of methamphetamine. Defendant here claims that this evidence was irrelevant and prejudicial and its admission requires reversal of his conviction and the true findings.

The trial court was incorrect in its view that the disputed evidence was relevant to either defendants guilt of the charged offense or the truth of the enhancement allegations. Not surprisingly, the prosecutor did not even mention the evidence in his arguments to the jury. It should not have been admitted. However, the evidence of defendants guilt was overwhelming, the disputed evidence took up little time in this otherwise unnecessarily lengthy trial, and the prosecutor failed to utilize it to argue that it

demonstrated defendants guilt or the truth of the enhancement allegations. Therefore, we cannot agree with defendant that it so prejudiced him as to require reversal of his conviction and the true finding which we affirm.^[6] (See Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct.2d 705].)

3. Insufficient Evidence

Defendant claims there was insufficient evidence to support his conviction. He asserts there was no evidence he even aided and abetted the manufacture. However, he rented the room and was in it when the police entered, a matter the prosecutors expert opined would be highly unlikely were he not involved in the manufacturing. As we have already stated, there was overwhelming evidence of defendants guilt.

4. Sentence

a. Penal Code section 654

The parties disagree over whether Penal Code section 654 applies to enhancements. The California Supreme Courts recent opinion in People v. Palacios (2007) 41 Cal.4th 720, unfortunately, does not answer this question in the context of enhancements other than those provided for in Penal Code section 12022.53.^[7] That leaves us with our holding in People v. Moringlane (1982) 127 Cal.App.3d 811, 817 [disapproved on other grounds in People v. Jones (1991) 53 Cal.3d 1115, 1144-45] that it does. The People concede that if Penal Code section 654 applies, the trial court erred in imposing more than one enhancement under section 11379.6. Indeed, the People are correct.^[8] Therefore, 14 of the 15 terms must be stayed pursuant to Penal Code section 654.

Disposition

Defendants convictions and true findings are affirmed. The terms imposed for 14 of his 15 Health and Safety Code section 11379.6, subdivision (a) enhancements are stayed pursuant to Penal Code section 654, and the trial court is directed to amend the

minutes of the sentencing hearing and the abstract of judgment to reflect this, as well as defendants new sentence of 14 years.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P.J.

We concur:

McKINSTER

J.

RICHLI

J.

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Analysis and review provided by Poway Property line Lawyers.

^[1] All further statutory references will be to the Health and Safety Code unless otherwise indicated.

^[2] The trial court concluded the motel consisted of two separate buildings.

^[3]Kirk agreed with a body of federal and state decisional law holding that when a statute prohibits the possession of any of the enumerated weapons, it may be used once for possession of more than one such weapon on a given occasion. As Kirk pointed out, similarly, possession of more than one item of stolen property, more than one item whose serial number has been obliterated and more than one packet of a controlled substance results in one, not several convictions. (People v. Kirk, supra, 211 Cal.App.3d at p. 62.) However, enhancements for large quantities of such contraband are common. (See, e.g., Health & Saf. Code, 11356.5, 11379.8, subd. (a)(1).)

^[4] Additionally, there is no support for defendants contention that the mere presence of the children in the motel, without proof of danger to them, was insufficient. (Of course, defendants argument, see post, that evidence of the danger was irrelevant and, therefore, should not have been admitted, conflicts with this contention.)

^[5] The trial court ruled that the evidence was relevant to the manufacturing charge and the enhancements.

^[6] Defendant also asserts that the trial court used this evidence in part to deny defendants motion to dismiss his strike, as an aggravating factor to impose the mid-term rather than the lower term for the manufacturing conviction and to impose a separate consecutive term for each of the 15 children. In denying defendants motion to dismiss his strike, the trial court called the offense inherently dangerous and pointed to the possibilities of fire or explosion. The court again cited the danger of fire or explosion in determining that the middle term was appropriate. However, the court had noted when admission of the evidence was discussed before trial, that the disputed evidence is routinely admitted at such trials, indicating that the trial court had heard before of the dangers of fire and explosion posed by a methamphetamine lab. Everyone reading newspapers or watching television news in the last 20 years is keenly aware of these hazards. The trial court did not have to rely on the disputed evidence to determine that the defendants crime was inherently dangerous and posed a risk to anyone near the manufacturing site. Because we strike 14 of the 15 true findings under section 11379.7, subdivision (a), we need not address whether the trial court impermissibly relied on this factor in imposing consecutive sentences for each of the enhancements. However, as to the propriety of imposing the one remaining enhancement consecutively, we note that section 11379.7, subdivision (a) requires a consecutive term be imposed.

^[7] Similarly, the anticipated decision in People v. Manila (S144885, review granted September 20, 2006) will not be of assistance to the parties because it involves a personally armed true finding attached to a drug possession conviction and a conviction for being an ex-felon in possession of a firearm.

^[8] Although an argument can be made that this fits within the multiple victim exception to Penal Code section 654, [w]hether a crime constitutes an act of violence that qualifies for the multiple victim exception to section 654 depends upon whether the crime . . . is defined to proscribe an act of violence against the person. (People v. Solis (2001) 90 Cal.App.4th 1002, 1023, quoting People v. Hall (2000) 83 Cal.App.4th 1084, 1092-1093,) The test is whether, in fact, a particular type of crime is a crime of violence against a person. (People v. Martin (2005) 133 Cal.App.4th 776, 782, italics omitted.) Crimes, although dangerous, are not necessarily crimes of violence. (People v. Garcia (2003) 107 Cal.App.4th 1159, 1162-1164.) Thus, exhibiting a firearm in the presence of police officers, evading the police, indecent exposure and burglary, the latter, without a gun use allegation attached, do not constitute such crimes. (Id.; People v. Davey (2005) 133 Cal.App.4th 384, 392; People v. Hall, supra, at pp. 1088-1090; People v. Centers (1999) 73 Cal.App.4th 84, 99, [opinion of this court].) Manufacture of methamphetamine is not a crime that fits within the multiple victim exception to Penal Code section 654.