Opinion Bank # O-150
NOTE: The text of the footnotes appear at the end of the document.
[No. E006635. Fourth Dist., Div. Two. May 4, 1990.]
THE PEOPLE,
Plaintiff and Respondent,
v.
WILLIAM THOMAS ROWE II,
Defendant and Appellant.
_______________________________________/
SUMMARY
A jury convicted defendant of possessing (Health & Saf. Code, § 11377, subd. (a)) and manufacturing (Health & Saf. Code, § 11379.6, subd. (a)) methamphetamine. Defendant had been found in possession of a number of chemicals, including methamphetamine oil, and other equipment and supplies which the prosecution’s criminalist testified could be used to convert the oil to usable methamphetamine solid. (Superior Court of San Bernardino County, No. SCR-45683, John W. Kennedy, Jr., Judge.)
The Court of Appeal reversed as to the manufacturing offense, affirmed the possession offense, and remanded for resentencing. The court held the evil sought to be eradicated by Health & Saf. Code, § 11379.6, subd. (a), is the process of making methamphetamine, and although defendant may have tried, there was no evidence he was anywhere along the continuum of the process, and that it would not fulfill the purpose of the statute to apply it to (defendant’s conduct. As to the possession count, the court held there is no valid requirement that the drug be currently in usable form in order for its possessor to be guilty of violating Health & Saf. Code, § 11377, subd. (a), and there was expert evidence that the oil, when properly processed, would harvest usable methamphetamine. (Opinion by Hollenhorst, Acting P. J., with Dabney and Timlin, JJ., concurring.)
COUNSEL
Jeffrey J. Stuetz, under appointment by the Court of Appeal, for Defendant and Appellant.
John K. Van de Kamp, Attorney General, Richard B. Iglehart, Chief Assistant Attorney General, Harley D. Mayfield, Assistant Attorney General, Janelle B. Davis and Pamela A. Ratner, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, Acting P. J.-A jury convicted William Rowe of possessing (Health & Saf. Code, § 11377, subd. (a)) and manufacturing (Health & Saf. Code, § 11379.6, subd. (a)) methamphetamine. He was sentenced to prison and appeals, claiming a number of errors in connection with each conviction. Because we reverse for insufficiency of the evidence as to the manufacturing count, we need not address Rowe’s remaining contentions as to it. [FOOTNOTE 1] We disagree with Rowe’s claim that insufficient evidence and jury misinstruction fatally infected the possession count. We therefore affirm it and remand the matter for resentencing.
The facts of this case are set forth below as part of our discussion of Rowe’s contentions.
1. The Manufacturing Count (Health & Saf. Code, § 11379.6, subd. (a))
When the officers approached Rowe’s house to serve a search warrant, they smelled an odor which, based on their previous experience, they associated with a methamphetamine lab. Inside Rowe’s bedroom, they found a dictionary of science and a daily planner which contained the following notation: “Hydracic acid, Bumer bottom, pot, Racon II . . . [¶]-Losta Soda Beans, yes, HIY, no gas.” An officer trained and experienced in narcotics testified that this was a shopping list for items used in the “process and manufacturing of methamphetamine.” The daily planner also contained a list of names, dollar amounts and quantities, such as, “quarter, sixteenth, two-and-a-quarter . . . 19 grams, 12 grams, 31 grams, seven-and-a-half grams.” The officer opined this was a pay-and-owe sheet for the sale of drugs. In the same room officers found a number of chemicals, including methamphetamine oil, and other equipment and supplies which the prosecution’s criminalist testified could be used to convert the oil to usable methamphetamine solid. [FOOTNOTE 2]
The officer who arrested Rowe asked him “whether he was cooking methamphetamine. . . .” The officer said Rowe “told me he wasn’t cooking; that he had been trying to cook for the last two or three months.” The officer asked Rowe about the method of “drying the suspected methamphetamine.” Rowe said he “has no other facilities to dry the meth[amphetamine]. That he is organically drying it there on top of the counter.” The officer was asked if Rowe made any statement about the quality of the methamphetamine. He said Rowe told him “it was ‘bad shit.’ Apparently, it was burning his nose.” Rowe told the officer he was supplementing his income by selling speed. When asked if Rowe was selling or cooking speed, the officer testified, “Cooking speed, but you have to sell it to make the money. . . .”
The prosecution’s criminalist was the only non-law-enforcement drug expert to testify at trial. He stated that the items found in Rowe’s bedroom could not be used for the early stages of the production of methamphetamine during which methamphetamine oil, or the drug in its liquid and unusable form, is made. However, as stated above, the chemicals and equipment Rowe had could be used to convert the oil to usable methamphetamine solid. As Rowe himself states in his brief, the criminalist opined that Rowe “was attempting to process methamphetamine from solution to solid. . . .”
The criminalist described the four-step process which must take place in order for the conversion to be successful. He stated that there was no evidence that the first step had occurred here. He also said he performed no tests to determine if the third step had taken place. Although there was methamphetamine in the oil Rowe used at the beginning of his process, the drug appeared nowhere else in any of the items seized, including the end-result residues, which had been drying. When asked, “So the evidence shows that the use of the equipment was toward the negative; that is, in fact, there wasn’t methamphetamine being made, but something else?” the criminalist replied, “Something, yes.” He never analyzed the substances found to discover what it was that Rowe had actually succeeded in making. He theorized that a mistake had been made in the processing, and that was why the end product was not methamphetamine.
For his part, Rowe denied intending to or attempting to make methamphetamine. Instead, he said he was attempting to make some protein that would act for methamphetamine addicts like methadone does for heroin addicts. Although he admitted being told by the person who gave the oil to him that it could be converted to methamphetamine, he insisted that he did not know it contained the drug and he was using it merely to produce the protein.
In argument to the jury, the prosecutor stated that he had proven that Rowe “was involved in converting methamphetamine in its liquid stage to methamphetamine in its solid stage.” The defense disputed this, contending that no methamphetamine had resulted. During deliberations, the jury asked two cogent questions, namely: “Is the attempt to manufacture a controlled substance the same crime as actually manufacturing a substance?” and “Does [‘]processed[‘] or [‘]converted[‘] a controlled substance mean one has to end up with methamphetamine in a useable [sic] form?” The court responded, “You have to wrestle with the Code Section. We all realize . . . that this is a brand new, 1985 law, and it normally takes about two or three or four years for cases to start getting appealed so that you get a body of appellate law dealing with some of these issues. And in this particular Code Section, none of us can find any Appellate Court case that has addressed any of this language. If we had some existing case, I would be happy to tell you what they say, but we don’t have them. [¶] About the best I can say is to use words in a way to make sense out of the legislation.”
While we agree with the People that had this been a case where the end product had been destroyed, Rowe could have been convicted merely on the remaining circumstantial evidence. However, in this case, the undisputed scientific evidence introduced by the prosecution itself contradicted the circumstantial evidence of guilt.
The recent PCP manufacturing case of People v. Jackson (1990) 218 Cal.App.3d 1493 [267 Cal.Rptr. 8411 is distinguishable. In Jackson, the defendant had obtained from a source, and placed in his lab, PCC, the “immediate precursor to PCP.” (Id., at p. 1500.) Four steps were necessary to convert the PCC to PCP. Evidence at the scene showed all of the first and most of the second of the four steps had already been accomplished. But for police interference, PCP would have been produced within 10 hours. An officer opined the setup was “a fully operational PCP lab which was in the process of manufacturing PCP. . . . (Id., at p. 1501.) The Jackson court concluded: “[T]he making of PCP” was in full swing and would have inevitably resulted in the finished PCP product if the police had not interceded.” (Id., at p. 1504.)
The Jackson court rejected defendant’s argument that the lack of a finished product rendered him, at best, guilty of only attempted manufacturing, noting: “The ongoing 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 section 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 pp. 1503-1504; italics added.)
Here, in contrast, there was no testimony that any of the four steps had been accomplished; in fact, the expert said there was no evidence that even the first had. Thus, the “making, assembly or creation” of the drug was not “occurring”-the “initial and intermediate steps” had not been accomplished.
The evil sought to be eradicated by Health and Safety Code section II 379.6, subdivision (a), is the process of making methamphetamine. Although he may have tried, there was no evidence Rowe was anywhere along the continuum of this process. It would not fulfill the purpose of the statute to apply it to the facts here.
2. The Possession Count (Health & Saf Code, § 11377, subd (a))
Rowe contends there was insufficient evidence that he possessed a usable quantity of methamphetamine and the trial court erred by failing to direct the jury to consider whether the drug was in a usable form. We disagree.
The jury was correctly instructed: “The prosecutor must prove that the quantity [of the methamphetamine] is useable [sic] for sale or consumption.” The jury necessarily found the methamphetamine oil in Rowe’s possession comprised a usable quantity. The evidence showed a half-gallon jar was three-quarters full of oil. Although the prosecution’s criminalist had tested the oil for the presence of methamphetamine and obtained a positive reading, he did not know the strength of the drug in the solution, other than it was greater than 1 percent. He also testified that the quantity seized, if properly processed, could be converted to usable solid methamphetamine but he was unable to say how much. Although we disagree with the People’s contention that the criminalist’s testimony established that Rowe possessed a usable quantity of methamphetamine, we believe other circumstantial evidence (People v. Catnp (1980) 104 Cal.App.3d 244, 247-248 [163 Cal.Rptr. 5101) and reasonable inferences drawn therefrom (Russell v. Superior Court (1970) 12 Cal.App.3d 1114, 1117 [91 Cal.Rptr. 2551) support the jury’s finding. There was evidence Rowe himself used methamphetamine and he was engaged in selling it to others in order to supplement his income. Construing the evidence in the light most favorable to the People, Rowe was attempting to manufacture the drug for personal consumption or sale, albeit unsuccessfully, when apprehended. From this the jury could reasonably derive the inference that the oil Rowe possessed, which he had not yet attempted to process into usable methamphetamine, would have produced a sufficient quantity of the drug for him to use or sell. Otherwise, why would he be attempting to process it?
The second matter, whether the jury was entitled to instructions requiring that the methamphetamine be in a usable form, appears somewhat to be a matter of first impression. The prosecution’s criminalist testified, and the People concede in their brief on appeal, that the methamphetamine oil was not, in its then-present state, in usable form. After careful consideration of the arguments and cases cited by both parties, we are inclined to agree with the People that there is no valid requirement that the drug be currently in usable form in order for its possessor to be guilty of violating Health and Safety Code section 11377, subdivision (a).
Rowe principally relies on People v. Leal (1966) 64 Cal.2d 504 [50 Cal.Rptr. 777, 413 P.2d 665], in contending otherwise. In Leal, the defendant was convicted of possessing heroin based on the residue found on his cooking spoon which weighed one-half grain and “contain[ed] heroin.” The Leal court disapproved a line of cases holding that possession of even minute traces of drugs was punishable, noting that in such cases the defendant may be unaware of the presence of the drug, thus defeating one of the essential elements of the crime of possession. (Id., at p. 508; People v. Carmical (1968) 258 Cal.App.2d 103, 107 [65 Cal.Rptr. 504].) The court observed that cases following the opposing line of thought “have evinced a fundamental doubt that the statute, properly construed, applies to the possession of narcotics so limited in quantity or so altered in form as to be useless for narcotic purposes.” (Id, at 1). 506.)
Significantly, the Leal court went on to say: “‘. . . [T]he Legislature has established . . . guidelines in distinguishing the crimes of possession of narcotics paraphernalia . . . and of being under the influence of narcotics . . . , both misdemeanors, from the more serious crime of possessing the narcotic itself. – – , a felony . . . . ‘ [¶] . . . [W]e cannot overlook the fact that the possession of minute traces of narcotics residue poses, if anything, less danger of future harm and is less probative of intent to use narcotics in the future, than the possession of narcotics implements, . . . a misdemeanor. [¶] ‘The most compelling explanation for the vast disparity between the punishments . . . is that [the section prohibiting possession] applies to those who by their possession of narcotic substances have created a potentiality for future use or sale. [¶] . . . [I]n penalizing a person who possesses a narcotic the Legislature proscribed possession of a substance that has a narcotic potential; it condemned the commodity that could be used as such.” (People v. Leal, supra, 64 Cal.2d at pp. 510, 511-512; italics original and added.)
Rowe leaps upon the language in Leal that one should not be punished for possessing narcotics “so limited in quantity or so altered in form as to be useless for narcotic purposes,” to argue that aside from the quantity requirement, there is also an obligation on the part of the state to prove that the narcotic was in a usable form when possessed. However, a number of decisions since Leal have declared that its holding applies only to cases where the possession in question was only of minute traces or residue. (People v. Karmelich (1979) 92 Cal.App.3d 452 [154 Cal.Rptr. 8421; People v. Simmons (1971) 19 Cal.App.3d 960, 965 [97 Cal.Rptr. 283]; People v. Case (1969) 270 Cal.App.2d 712, 714 [76 Cal.Rptr. 111]; People v. Blackshear (1968) 261 Cal.App.2d 65, 67 [67 Cal.Rptr. 662].) Only one published decision has attempted to apply it strictly to a question of the form of the drug and not quantity.
In People v. Vargas (1973) 36 Cal.App.3d 499 [111 Cal.Rptr. 7451, the Fifth District overturned a marijuana possession conviction where the defendant kept leaves of the plant in a solution of alcohol, which rendered it poisonous and devoid of narcotic worth. The court noted: “. . . [T]he Legislature could not have intended to punish the possession of a substance normally used as a narcotic but possessed in a form which is unusable as a narcotic, at least in the absence of proof that the form in which it is possessed can be converted to a usable narcotic form. (Id. at p. 506; italics added.) Here, in contrast, there was expert evidence that the oil, when properly processed, would harvest usable methamphetamine.
The People cogently urge that we not ignore the language in Leal about narcotic potential. Certainly, other courts have not. (See, e.g., Russell v. Superior Court, supra, 12 Cal.App.3d at p. 1117 [Division One of this court].) There can be no dispute that the oil had narcotic potential, which, according to Leal, is the evil sought to be eradicated by laws punishing possession. Even the language of People v. Johnson (1970) 5 Cal.App.3d 844 [85 Cal.Rptr. 238], cited by Rowe, that “conviction may not be predicated upon possession of a narcotic so limited in quantity or so altered in form as to be useless for narcotic purposes” (id., at p. 848) does not defeat the People’s position, as the drug here was not ultimately useless, but needed only to be processed. We do not find in Leal or Johnson the authority for requiring that the narcotic possessed have an immediate use. A jury instruction on the matter therefore would not have been appropriate.
DISPOSITION
Count 1, possession of methamphetamine, is affirmed. Count 2, manufacturing methamphetamine, is reversed. The matter is remanded, and the trial court is directed to resentence Rowe on count 1.
Dabney, J., and Timlin, J., concurred.
OPINION FOOTNOTES:
Certainly, there is merit to Rowe’s contention that the jury should have been instructed on anticipated manufacturing.
The officer testified that at the time he saw them, the items were not set up for conversion of methamphetamine.
