P. v. Shivar

Filed 3/30/06 P. v. Shivar 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

APPEAL from a judgment of the Superior Court of Stanislaus County. Aldo Girolami and Linda A. McFadden, Judges.

Peggy A. Headley, 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 and Stephanie A. Mitchell, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Defendant Curtis Lynn Shivar (defendant) appeals from the judgment entered following a jury trial that resulted in his conviction for manufacturing methamphetamine, unlawfully possessing pseudoephedrine and hydriodic acid with intent to manufacture methamphetamine, possessing methamphetamine, and unlawfully possessing a billy club.

On appeal, defendant contends that (1) the court erred in denying his motion to disclose the identity of a confidential informant; (2) there was insufficient evidence to support his conviction for possession of hydriodic acid; (3) he was improperly convicted of both possessing pseudoephedrine and hydriodic acid with intent to manufacture methamphetamine; (4) he was improperly convicted of two counts of possessing methamphetamine; (5) his counsel was ineffective due to questions posed during direct examination and comments made during closing argument; and (6) the court made errors during sentencing.

PROCEDURAL HISTORY

On April 24, 2003, the Stanislaus County District Attorney's Office filed an information against defendant alleging the following six criminal counts: count one, manufacturing methamphetamine (Health & Saf. Code, § 11379.6, subd. (a)); count two, possessing pseudoephedrine with intent to manufacture methamphetamine (Health & Saf. Code, § 11383, subd. (c)(1)); count three, possessing hydriodic acid with intent to manufacture methamphetamine (Health & Saf. Code, § 11383, subd. (c)(2)); count four, possession of methamphetamine for sale (Health & Saf. Code, § 11378); count five, possession of methamphetamine (Health & Saf. Code, § 11377); and count six, possession of a billy club (Penal Code, § 12020, subd. (a)). Counts one through four also alleged that defendant had a prior conviction for the sale or transportation of a controlled substance in violation of Health and Safety Code section 11370.2.

A jury found defendant guilty of counts one through three, five, and six as charged and, on count four, guilty of the lesser-included offense of possession of methamphetamine (Health & Saf. Code, § 11377).

The court sentenced defendant to a total term of eight years, calculated as follows: on count one, the midterm of five years plus three additional years for his prior conviction; on count two, the midterm of four years plus an additional three years for his prior conviction; on count three, the midterm of four years plus an additional three years for his prior conviction; on count four, the midterm of two years; on count five, the midterm of two years, which was stayed pursuant to Penal Code section 654; on count six, the midterm of two years. The court ordered the sentences for counts two, three, four, and six to run concurrently with the term imposed for count one.

On June 28, 2004, defendant filed a notice of appeal. Before briefing was completed, defendant's appellate counsel filed a motion to augment the record, seeking to attach copies of the search warrant and the return on the search warrant to the transcript, which was granted.

FACTUAL HISTORY

Prosecution's case

The search

On March 12, 2003, officers from the Modesto Police Department executed a search warrant on a residence located at 2921 Rimrock Court in Modesto, which was later determined to be owned by defendant. The residence contained four bedrooms, one of which was a master bedroom that police believed belonged to defendant. The other three bedrooms are believed to have belonged to Deeana Renfroe, James Brower, Cindy Hyde, David Machado, Danielle Harbin, and Shane Swearingen, who died the night before the search in a car accident following a police chase.

During the search, the police found evidence that residents of the home were manufacturing methamphetamine. In the northwest bedroom believed to belong to Harbin and Swearingen,^[1] the police discovered items used to manufacture methamphetamine such as matches, scales, coffee filters, bottles and cookware, Coleman-type propane fuel with a burner attachment, and various types of chemicals, including Clorox, Red Devil lye, red phosphorus, and hydriodic acid. Many of the objects discovered in the northwest bedroom were tested by a laboratory, which found the presence of methamphetamine.

In the master bedroom,^[2] police found empty boxes of pseudoephedrine pills, matches, used coffee filters, cookware, black electrical tape, scales, and baggies commonly used to package narcotics. In the closets, the police discovered scales, hypodermic needles and homemade billy clubs, as well as a shirt with a baggie of several hundred pseudoephedrine tablets in the right breast pocket. Police also located methamphetamine in a plastic battery case and marijuana in an eyeglass case. In addition, they discovered a clear bag containing red phosphorus and a green case which had an iodine smell. There was also a photograph of a woman holding a glass pipe and torch, which are commonly used to smoke methamphetamine.

In the bedroom belonging to Brower and Renfroe, police found a marijuana pipe, a stack of sandwich bags, and a spoon with methamphetamine residue. In the utility room located near the master bedroom, police discovered an empty baggie containing red phosphorus residue, a partially filled bottle of Clorox, a half-filled bottle of acetone, a soda bottle containing a plastic bag with a gray, flaky substance (which contained iodine), and a flask with hosing and tape attached to the lid that had red phosphorus residue. In the attic located above the utility room, police found a two-burner hot plate, a bag containing a scale, an empty bottle of Red Devil lye, stained coffee filters, and a water bottle cut in half.

In the kitchen, police discovered a shot glass in the freezer containing a brown residue, which was later discovered to contain acetone, methamphetamine, ephedrine or pseudoephedrine, chlorpheniramine, and triprolidine.

In the front yard, officers located a trash can which contained a plastic bottle with tubing attached with black electrical tape, as well as an empty cardboard container that held used coffee filters. In the backyard, officers found a barbeque that contained an empty bottle of Red Devil lye, a red funnel with attached tubing, and a soda bottle with tubing attached with black electrical tape. Officers also located an empty one-gallon Coleman fuel can.

Inside the garage, the police located a partially full container of paint thinner, empty containers of denatured alcohol, lacquer thinner, WD-40, an empty Coleman fuel can, and three partially full Coleman fuel cans.

Defendant's arrest

Two males and two females were located at the residence during the execution of the search. Defendant, however, was not present when the search warrant was executed. Police located defendant at his place of work and arrested him. During his arrest, officers conducted a search of defendant and did not find any methamphetamine. However, in defendant's wallet, officers discovered a receipt from Walgreens dated March 11, 2003, for two boxes of 24-count Sudafed cold tablets. They also discovered two additional receipts in defendant's car: one from SaveMart Supermarket dated February 26, 2003, for distilled water and various grocery items, and one from Walgreens dated February 16, 2003, for two boxes of pseudoephedrine.

Expert testimony

Dale Lingerfelt, an investigator with the Modesto Police Department, testified that, in his opinion, based on the items seized during the search, a methamphetamine lab was being operated at defendant's home. According to Lingerfelt, the items seized reflected various stages of the methamphetamine process being completed at the residence. Lingerfelt described the process by which methamphetamine is made and explained the significance of the items found in the residence to the making of methamphetamine. In his opinion, the .31 grams of methamphetamine that was recovered from the lab was produced for sale. Lingerfelt also testified that the pseudoephedrine and hydriodic acid found in the residence were possessed for the purpose of making methamphetamine. He explained that hydriodic acid is not a chemical that is added during the process of making methamphetamine, but rather is a chemical that is created by the chemical process itself.

Testimony offered by defendant's neighbor

Alexander Barba, a police officer, has been defendant's neighbor for approximately seven or eight years. Barba testified that prior to the day of the search--March 12, 2003--he had seen defendant coming and going from his residence â€