People v. Duran

• Decision Date: 21 December 2001
• Docket Number: No. H021112.,H021112.
• Citation: 114 Cal.Rptr.2d 595,94 Cal.App.4th 923
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Noe Carrillo DURAN, Defendant and Appellant.

114 Cal.Rptr.2d 595

94 Cal.App.4th 923

The PEOPLE, Plaintiff and Respondent, v. Noe Carrillo DURAN, Defendant and Appellant.

No. H021112.

Court of Appeal, Sixth District.

December 21, 2001.

As Modified on Denial of Rehearing January 14, 2002.

Review Denied March 13, 2002.

John L. Staley, Poway, Under Appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Eric D. Share and Catherine McBrien, Deputy Attorneys General, Attorneys for Respondent.

BAMATTRE-MANOUKIAN, J.

After trial a jury convicted defendant Noe Carrillo Duran of conspiring to manufacture (count 1; Pen.Code, § 182) and manufacturing methamphetamine (count 2; Health & Saf.Code, § 11379.6)¹ in a quantity exceeding 25 gallons (§ 11379.8, subd. (a)(3)), possessing substances with the intent to manufacture methamphetamine (count 3; § 11383, subd. (c)(1)), possessing laboratory glassware for manufacturing purposes (count 6; § 11104.5), disposing of hazardous waste (count 4; § 11374.5, subd. (a)), and giving false information to a police officer (count 7; Pen.Code, § 148.9, subd. (a)). Count 5 was alleged against other codefendants, not Duran.

The trial court sentenced defendant to 15 years in prison, consisting of the midterm of five years on count 1, enhanced by 10 consecutive years due to the quantity of drugs. The court imposed a five-year concurrent midterm on count 2, with a 10 year quantity enhancement stayed, and a four-year concurrent midterm on count 4, with six-month concurrent sentences on the remaining misdemeanor counts. The court also imposed restitution fines, including $1,000 to the state Clandestine Drug Lab Clean-up Account (§ 11379.6), $750 for the local county clean up (§ 11374.5), and $11,214.99 to reimburse the property owner for cleaning up (Pen.Code, § 1202.4, subd. (f)).

On appeal defendant challenges the sufficiency of the evidence. He also asserts error in the instructions and the verdict forms pertaining to the weight enhancements. He also asserts the trial court erred in admitting statements by his codefendant Juan Garcia. For the reasons stated below, we will reverse the judgment, finding no evidence to support the 10 year drug quantity enhancement that was imposed on count 1 pursuant to section 11379.8.

Trial evidence

It was undisputed at trial that, on March 3, 1999, a narcotics task force discovered a methamphetamine laboratory in a detached garage on ranch property at 270 Highway 183 in Monterey County between Salinas and Castroville. Evidence of almost every step of methamphetamine manufacture was found on both sides of a partition in the garage: 132 empty bottles of pseudophedrine; blenders and a spice grinder for grinding the pseudophedrine pills into powder; empty cans of denatured alcohol for soaking the powder to separate the pseudophedrine from its binders; metal pots and a propane tank for cooking off the alcohol; large heating flasks and mantles for cooking together the powder with red phosphorous and iodine; coveralls stained with a characteristic red and orange; hoses and a fan to ventilate the poisonous fumes resulting from the cooking; used and unused latex gloves; a bucket of sodium hydroxide for changing the cooked product from an acid to a base; a can of freon, a solvent to which methamphetamine attaches; and a cylinder of hydrochloride gas for crystallizing the liquid. The result of this entire chemical process is a paste, which is put onto cut bed sheets and run through a mop bucket to squeeze out more liquid. Mop buckets and used and unused sheets were in the garage. Five gallon plastic buckets contained a number of solutions, some containing ephedrine. Over 25 gallons of solution in different buckets contained methamphetamine. There was no finished methamphetamine.

The task force discovered that hazardous waste byproducts of methamphetamine manufacture had been disposed of in the backyard of the property.

Living in the residence on the property at the time were Marco and Elva Carranza and their infant child. In the Carranzas' bedroom were keys to padlocks for the rear and front of the garage. One hundred thirty-one grams of ephedrine were found in a baggie inside a sock in a shoe-box in a spare bedroom of the residence. Also in that bedroom were men's clothing and a mattress on the floor. In a bucket under the kitchen sink was some methamphetamine solution.

Defendant's connection to the methamphetamine laboratory follows. The police surveilled the residence on March 2, 1999, the day before the laboratory was discovered, based on information revealed during an ongoing DEA (Drug Enforcement Agency) wiretap of a cellular telephone with a Los Angeles number. When the police began surveillance at 7:00 p.m., a Dodge Ram pickup truck borrowed by co-defendant Juan Garcia was parked at the residence along with a Honda car. The Honda car left the premises at 7:05 p.m. and returned around 10:20 p.m. A female took a small child out of the back seat.

A blue Chevy van arrived at 8:30 p.m. Two men inside either loaded or unloaded something from the garage area and left about five minutes later.

Around 9:30 p.m., one of the surveillance officers, Monterey County Sheriffs narcotics investigator Douglas Dahmen, mistakenly drove a camper truck down the driveway of the ranch property before leaving through a field. A wiretapped phone call at 9:28 p.m. asked someone to cheek out a camper truck parked near the ranch. The person said they would not be at the ranch until 10 p.m. Dahmen was warned and moved his truck.

Around 9:30 p.m., two men got into the Dodge pickup and drove off the ranch. The pickup lights only went on when the truck reached the highway. The truck returned around 9:45 p.m. and two men went into the residence.

Dahmen had the blue Chevy van stopped in Salinas by other officers around 10:00 p.m. The van was searched with a drug sniffing dog. The two male occupants were field interviewed and released within about 45 minutes. An intercepted telephone call from an occupant of the van warned the occupants of the house to leave immediately.

Around 11:00 p.m. three males left the ranch in the Dodge pickup. At 11:09 p.m. Monterey County Deputy Sheriff Larry Robinson stopped the pickup truck just outside Salinas. Jose Vasquez was driving. Defendant Noe Duran and codefendant Juan Garcia were also in the truck. Defendant identified himself as Felipe Sibrian.² Garcia identified himself to the police as Raul Delgadillo.

Monterey County Deputy Sheriff Ruben Garcia told the truck's occupants in Spanish that they were investigating the theft of chemicals. He made up this story because the methamphetamine investigation was continuing.

The occupants of the truck all agreed to accompany Garcia to the sheriffs department. In an interview at the sheriffs department, defendant continued to identify himself as Sibrian. He said he lived in San Jose but could not provide the address. He went to the ranch to drink beer. He had not been there before. No one came or left while he was there. He had met Delgadillo two weeks earlier.

In an interview at the sheriffs department, Garcia continued to identify himself as Delgadillo. He said he lived in Salinas. He was from Mexico. He had borrowed the truck from someone who lived in Watsonville. He visited the ranch around 7:00 p.m. to drink beer and visit his cousin Javier Rodriguez. No one came or left while he was there. First he said he had not been to the ranch before, then he said he had been there a couple of months before. Defendant said he had known Vasquez and Sibrian for about 15 years.

When Garcia left the room after his police interview, Monterey County Deputy Sheriff Terry Kaiser found a wadded-up Big K receipt on the table. The receipt was for coveralls, pants, sheets, and pillowcases. It was dated March 2, 1999. Hanging on a hook in the ranch garage was a Big K bag containing new jeans and an unopened package of pillow cases.

Defendant's fingerprints were found on an empty can of denatured alcohol in a bag with other empty cans inside the garage. Defendant's fingerprints were also found on a battery in one of the three flashlights located in the garage.

At 12:09 p.m on March 3, 1999, "Eddie" called the wiretapped telephone number from jail. He said during the call that he went by the name "Juan Garcia."

Garcia did not testify at trial. Defendant testified as follows. He knew Garcia from Mexico, but they got better acquainted in California when defendant moved to Los Angeles before moving to San Jose. Defendant was in Salinas on March 2, 1999, at Garcia's invitation. They went to a rodeo to ride horses. A horseman invited them to the ranch, where they drank beer and had a barbecue. Defendant barbecued the meat in front of the house. He used a can of denatured alcohol provided by Carranza to start the coals. The fire flared up and almost burned defendant. Because it was dark, he asked Carranza for a flashlight. Carranza gave him a flashlight and batteries. Defendant left the alcohol can and the flashlight outside the garage. Defendant never went inside the house, instead urinating in the field.

When the police stopped them that night, defendant gave the name of Felipe Sibrian because he knew there was a Los Angeles warrant out for him for drunk driving. Defendant called Garcia Delgadillo because Garcia said there was also a warrant out for him.

1. Sufficiency of the evidence

On appeal defendant contends that the evidence at trial was insufficient to support his convictions. In argument to the jury at trial defendant acknowledged, "we all know that there was a meth lab in operation," but he contended that there was no evidence connecting him to the lab.

"In assessing a claim of insufficiency of evidence, the reviewing court's task is to review the whole record in the light most favorable to the judgment...