Return to CALJIC Part 9-12 – Contents
F 12.09.1 n1 Drug Manufacturing: Knowledge As An Element (HS 11379.6).
(See FORECITE F 12.09.1b; see also FORECITE F 12.09.1c.)
F 12.09.1 n2 Drug Manufacturing: Definition Of Manufacture (HS 11379.6).
HS 11379.9 contains no definition of “manufacture.” However, the term was not meant to connote a word of art having a meaning apart from that attributed to it in general usage. (See People v. Combs (85) 165 CA3d 422, 427 [211 CR 617].) The dictionary definition of “manufacture” is “the making of goods and articles by hand, or esp. by machinery.” Websters New World Dict. (2d College Ed.) 1970, p. 864. In a similar context, HS 11674 defines “manufacture” to mean (among other things) “… the production, preparation, compounding, processing, … of an imitation controlled substance.”
F 12.09.1 n3 Drug Manufacturing: Must Be For Sale Or Distribution (HS 11366.5(a) (HS 11379.6).
HS 11366.5(a) imposes criminal liability upon any person who makes available a building, room, space or enclosure for the purpose of unlawfully manufacturing, storing or distributing any controlled substance. This statute requires that the jury be instructed to find that the manufacturing was “for sale or distribution.” (People v. Costa (91) 1 CA4th 1201, 1205-08 [2 CR2d 720]; see also People v. Glenos (92) 7 CA4th 1201, 1208-11 [10 CR2d 363].)
F 12.09.1 n4 Drug Manufacturing: False Statements Insufficient To Support Missing Elements (HS 11379.6).
In People v. Jenkins (79) 91 CA3d 579 [154 CR 309], a possession-with-intent-to-manufacture-controlled substances case, the court held the evidence was insufficient to sustain the convictions. The fingerprint evidence furnished no evidence of possession, actual or constructive, knowledge of intent to manufacture, and the defendant’s falsehoods, even if admissible as indicating a consciousness of guilt, were insufficient to support the missing elements. Even though the falsehoods were admissible as indicating a consciousness of guilt, there were many other plausible reasons why a defendant may utter falsehoods. “Technically, the probative force of the falsehood is diluted by the fact that there is really no showing at all that defendant was even aware of the specific elements of the fairly uncommon offenses with which he was charged.” (Jenkins at 586; see also People v. Blakeslee (69) 2 CA3d 831, 839 [82 CR 839]; U.S. v. Howard (9th Cir. 1971) 445 F2d 821, 823.)
F 12.09.1 n5 Whether Mere Possession Of Manufacturing Equipment and Chemicals Is Sufficient To Prove Drug Manufacturing (HS 11379.6).
In People v. Lancellotti (93) 19 CA4th 809, 813 [23 CR2d 640], the manufacturing of methamphetamine had reached an intermediate state but the chemicals were “boxed” (i.e. not reacting) and stored in a storage locker when they were discovered. The court held this to be sufficient evidence of manufacturing. Moreover, the trial court properly rejected an instruction, which would have required the jury to find the manufacturing is “‘occurring,’ ‘taking place’ and ‘in the course of its progress’ such that methamphetamine would be produced.” (Lancellotti 19 CA4th at 814.)
The instruction given at trial included the statutory language and the requirement that “a person unlawfully manufactured a controlled substance.” The Court of Appeal held this to be a “correct statement of the law.” (Lancellotti 19 CA4th at 814.)
However, under the plain meaning of the word “manufactures,” HS 11379.6 criminalizes “the ongoing and progressive making, assembly or creation”of drugs. (People v. Jackson (90) 218 CA3d 1493, 1503 [267 CR 841].) Given this definition, it is simply absurd to say that the mere possession of equipment and/or chemicals constitutes the “ongoing” process of manufacturing. Indeed, a simple hypothetical proves this point.
Assume that a kitchen contains noodles, cheese, tomato sauce, utensils and a stove. However, the food items are separately packaged and are in the refrigerator or cupboard. On these facts, is lasagna being cooked (i.e., manufactured)? Clearly not. By parity of logic, neither is a drug being manufactured when the actual cooking process has not begun.
As a final point, it must be emphasized that the mere possession of precursor chemicals is a crime. (HS 11383.) Thus, a defendant does not escape criminal liability merely because he is not guilty of manufacturing. Moreover, unless the foregoing construction of HS 11379.6 is adopted, HS 11383 will be rendered nugatory. (In re Michael G. (88) 44 C3d 283, 296 [243 CR 224] [“[E]very statute should be construed with reference to the whole system of law of which it is a part so that all may be harmonized and have effect. [Citations.]”.)
F 12.09.1 n6 Intermediate Stages Sufficient For Aiding And Abetting Of Drug Manufacturing.
People v. Heath (98) 66 CA4th 697 [78 CR2d 240] 98 DAR 9715, 98 CDOS 7060 held that aiding and abetting liability may be premised upon assistance which occurs during the intermediate stages of manufacture even though those stages were completed before the assistance was rendered. The court reasoned that manufacturing is an ongoing offense which remains “in progress” once the initial steps have been set in motion even when no active manipulation of the manufacturing apparatus is taking place. In so doing, the court approved the following instruction: “The conduct proscribed by Health & Safety Code section 11379.6 encompasses the initial and intermediate steps carried out to manufacture, produce or process a controlled substance.” (Heath, 66 CA4th at 703.)
F 12.09.1 n7 Drug Manufacture: Legitimate Use Not A Defense.
People v. Stone (99) 75 CA4th 707 [89 CR2d 401] held that the defendant was properly convicted of manufacturing PCP (HS 11379.6(a); PC 1203.07(a)(7)) based on evidence that he manufactured piperidine, a precursor of PCP. The fact that piperidine has legitimate uses was rejected as a defense because legitimate manufacturing of piperidine requires a permit. (But see People v. Coria (99) 21 C4th 868 [89 CR2d 650] [fact that chemical synthesis may be legitimate activity was a factor in requiring knowledge as an element of the crime of drug manufacturing].)
F 12.09.1 n8 Possession Of Chemicals With Intent To Manufacture (HS 11383(f)).
(See People v. McCall (2004) 32 C4th 175 [words “shall be deemed” in HS 113838(f) states the elements of an offense: possession of red phosphorus and iodine with intent to manufacture meth is the legal equivalent of possession of hydrochloric acid with intent to manufacture meth].)
Drug Manufacturing: Assembly Or Creation Process
Must Have Begun
*To be added to CJ 12.09.1 through CJ 12.09.4 instructions defining elements of the offense:
The defendant may not be convicted of manufacturing __________ [insert name of narcotic] unless the process of converting the raw chemicals into the controlled substance had begun. Mere possession of the raw chemicals, without more, is insufficient to convict.
Points and Authorities
While HS 11379.6 specifically prohibits the manufacture of any controlled substance, CALJIC does not provide any specific instructions for this offense. The above instruction is necessary to explain an essential element of the offense to the jury.
HS 11379.6 imposes criminal liability upon a 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 …” Hence, the evil sought to be eradicated by this section is the process of making the drug. Once that process has begun the defendant may be convicted even though a “finished product” was never produced. (See People v. Jackson (90) 218 CA3d 1493, 1500-04 [267 CR 841].) “The on-going and progressive making, assembly or creation of PCP … may, but does not necessarily … include the culmination of the manufacturing process, the finished PCP …” [¶] … [T]he conduct proscribed by H&S 11379.6 encompasses the initial and intermediate steps carried out to manufacture, produce or process PCP. [The section] is violated if the manufacturing, producing or processing of PCP is ‘occurring,’ ‘taking place,’ and in the course of its progress.” (Id. at 1503-04; emphasis added.)
Accordingly, mere possession of the raw materials necessary to manufacture the drug is insufficient to convict even if the defendant fully intended to convert the raw materials into the finished product.
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
This issue was addressed in a depublished opinion. (People v. Rowe DEPUBLISHED (90) 219 CA3d 1589 [269 CR 64].) In Rowe, the defendant was in possession of the chemicals necessary to make methamphetamine but had not begun the process of converting the chemicals to the finished product. The Rowe court held that the evidence was insufficient to support a conviction for manufacturing under HS 11379.6. [A copy of the Rowe opinion is available to FORECITE subscribers. Ask for Opinion Bank # O-150.]
Presumably, if the jury found the possession to constitute an overt act toward the accomplishment of the manufacture of the drug the defendant could be convicted of attempted manufacturing. (See FORECITE LIO II re: Attempts.)
Drug Manufacturing/Possession With Intent To Manufacture:
Knowledge As An Element
(HS 11379.6; HS 11383)
*Add to CJ 12.09.1:
4. That person knew that ____(controlled substance)____ is a controlled substance.
5. That person knew ____(controlled substance)____ was being manufactured.
Points and Authorities
In People v. Telfer (91) 233 CA3d 1194, 1204 [284 CR 913], the court held that knowledge of the narcotic nature of the substance is not an element of the crime of manufacturing under HS 11379.6. However, in People v. Coria (99) 21 C4th 868 [89 CR2d 650] the Supreme Court disapproved Telfer, and held that “it would be anomalous to permit [the defendant] to be convicted of manufacturing methamphetamine if he did not know methamphetamine was being manufactured, when, absent knowledge of the character of the substance, he could not be convicted of possessing the contraband resulting from the manufacturing process.” (Coria, 21 C4th at 874; see also People v. Pierson (2001) 86 CA4th 983 [103 CR2d 817] [prosecution must prove defendant knew methamphetamine was being manufactured and failure to instruct on that element was error].) Accordingly, CJ 12.09.1, .2, .3 and .4, should be modified to include a requirement that the defendant knew that a specific controlled substance is being manufactured.
Moreover, the United States Supreme Court has emphasized that felony offenses which bear harsh punishment are not the type of “public welfare” offenses for which courts will readily dispense with the mens rea requirement when construing a statute. (Staples v. U.S. (94) 511 US 600 [128 LEd2d 608, 623-624; 114 SCt 1793]; People v. Simon (95) 9 C4th 493, 520 [37 CR2d 278].) Telfer comes from a pre-Simon generation of Supreme Court opinions in which courts often decided for themselves that a statute was “public welfare” and therefore had no mens rea. Another such case was the one Simon overruled, People v. Johnson (89) 213 CA3d 1369 [262 CR 366]. Hence, in the absence of express legislative language to the contrary, for crimes which impose severe punishment, “the usual presumption [regarding legislative intent] that a defendant must know the facts that make his conduct illegal should apply.” (Staples v. U.S., supra, 128 LEd2d at 624; United States v. United States Gypsum Co. (78) 438 US 422, 442 fn 18 [57 LEd2d 854; 98 SCt 2864]; People v. Casey (95) 41 CA4th Supp. 1, 6-7 [49 CR2d 372]; see also FORECITE F 1.20a, F 3.30a, F 12.40a and CHK IV(L).)
Manufacturing Of Controlled Substance: Requirement Of Knowledge
*Add to CJ 12.09.1:
In this case, defendant is charged with manufacturing a controlled substance. Methamphetamine is a controlled substance. Ephedrine and pseudoephedrine are not controlled substances.
In order to be guilty of the crime of manufacturing a controlled substance, it is not necessary that the process of manufacturing be completed. Rather, the crime is committed when a person knowingly participates in the initial or intermediate steps carried 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 manufacture of a controlled substance.
Points and Authorities
An instruction on manufacturing is erroneous if it allows the jury to convict the defendant based solely on extraction of a precursor to methamphetamine. To convict of manufacturing a controlled substance based on such extraction, the prosecution must prove the defendant knew methamphetamine was being manufactured. (People v. Pierson (2001) 86 CA4th 983 [103 CR2d 817].)