People v. Herrera

• Decision Date: 22 February 2006
• Docket Number: No. G034848.,G034848.
• Citation: 136 Cal.App.4th 1191,39 Cal.Rptr.3d 578
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Appellant, v. Rogelio Manon HERRERA, Defendant and Respondent.

39 Cal.Rptr.3d 578

136 Cal.App.4th 1191

The PEOPLE, Plaintiff and Appellant, v. Rogelio Manon HERRERA, Defendant and Respondent.

No. G034848.

Court of Appeal, Fourth District, Division 3.

February 22, 2006.

Tony Rackauckas, District Attorney, and Brian N. Gurwitz, Senior Deputy District Attorney, for Plaintiff and Appellant.

Deborah A. Kwast, Public Defender, Thomas Havlena, Chief Deputy Public Defender, Kevin J. Phillips, Assistant Public Defender, and Martin F. Schwarz, Deputy Public Defender, for Defendant and Respondent.

OPINION

IKOLA, J.

At a preliminary hearing, a magistrate found probable cause to hold Rogelio Manon Herrera to answer for conspiracy to manufacture methamphetamine and other crimes. Herrera successfully moved to dismiss the conspiracy count under Penal Code section 995¹ on the basis there was no evidence of conspiracy other than his own extrajudicial statements. The People appeal the order granting the motion to dismiss, arguing primarily that the corpus delicti rule does not apply to preliminary hearings. Herrera asserts this appeal is moot because he pleaded guilty to two necessarily included offenses, and may not be tried on the conspiracy charge even if we were to agree with the People's argument.

The appeal is not moot. Herrera pleaded guilty to charges that are not necessarily included offenses of conspiracy under the so-called elements test, and the accusatory pleading test is not applicable for double jeopardy purposes, or for deciding whether multiple convictions of charged offenses is proper. On the merits, however, the corpus delicti rule continues to apply to preliminary hearings. Applying the corpus delicti rule to the preliminary hearing testimony, we agree with the trial court's analysis, and affirm the order dismissing the conspiracy charge.

FACTS

A complaint charged Herrera with conspiracy (§ 182, subd. (a)(1)), possession of pseudoephedrine with intent to manufacture methamphetamine (Health & Saf. Code, § 11383, subd. (c)(1)), and petty theft with a prior conviction (§§ 484, 666). The People also alleged a prior prison term sentencing enhancement (§ 667.5, subd. (b)).

At Herrera's preliminary hearing, two members of the Orange County Methamphetamine Laboratory Investigative Task Force testified for the People as follows: Pseudoephedrine or ephedrine, found in cold and allergy medications, is a necessary ingredient in producing methamphetamine. Other necessary chemicals include hydriodic acid, usually obtained from a "chemical broker" in a "black market type operation." In July of 2004, at a Target store, Herrera shoplifted pseudoephedrine —he removed blister packs from several boxes of cold and allergy medicine, put the blister packs in his pocket, and discarded the empty boxes on various shelves. Although he purchased other items at the checkstand, he did not buy the cold and allergy tablets. Additional blister packs were found in Herrera's car, bringing the total number of pills to 456, enough to make between three-quarters of an ounce to one ounce of methamphetamine.

After the detective read Herrera his rights under Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, Herrera stated he took the pills to sell them to an individual named Borazo, who had agreed to pay Herrera $200 for one thousand pseudoephedrine pills. Herrera knew the pills were used to produce crystal methamphetamine, which he understood was "some sort of drug." A search of Herrera's residence did not uncover any equipment "that appeared to be used for the purpose of converting pseudoephedrine into methamphetamine."

The magistrate held Herrera to answer as charged in the complaint. The ensuing information mirrored the complaint and charged Herrera in count 1 with conspiracy to commit the crime of manufacturing a controlled substance, in count 2 with possession with intent to manufacture, in count 3 with petty theft with a prior conviction, and with a prior prison term as a sentencing enhancement.

Herrera invoked the corpus delicti rule and moved to dismiss the conspiracy charge (count 1) pursuant to section 995. Herrera argued that conspiracy under section 182, subdivision (a)(1) requires at least two people conspiring to commit a crime, and, absent his own statements about Borazo, there was no evidence of a co-conspirator.²

The People opposed the motion, contending "the circumstantial evidence elicited at the preliminary hearing (aside from [Herrera's] admissions) supports an inference that he conspired with at least one other person to manufacture methamphetamine." Specifically, the People argued: "[T]he conversion process that takes place[] in a clandestine methamphetamine laboratory involves specialized equipment and numerous chemical agents, at least one of which (hydriodic acid) is usually obtained on the black market. But during the search of [Herrera's] residence following his arrest at Target, officers found no indicia that [he] was involved in the methamphetamine manufacturing business. This supports an inference that [Herrera] was a middleman, obtaining the [pseudoephedrine] for one or more other individuals."

At the outset of the section 995 hearing, the court tentatively opined the corpus delicti rule applies only to trial convictions, not to probable cause determinations. But because the People acknowledged current law bound the court to accept the rule's applicability to a preliminary hearing, the court granted Herrera's section 995 motion and dismissed count 1, finding no inference from the record "to support . . . conspiracy absent [Herrera's] statements." The court further found that had the corpus delicti rule not been applied, "there [was] ample and sufficient evidence to deny [Herrera's] motion."

The People filed a notice of appeal from the court's order granting Herrera's section 995 motion and moved for a stay of trial on count 2 (possession with intent to manufacture) pending the appeal (Code Civ. Proc., § 916, subd. (a)). The court ruled it did not have "jurisdiction to stay the proceedings on count 2" and therefore denied the People's motion.

Herrera subsequently pleaded guilty to counts 2 and 3 and was sentenced to the low term of two years in state prison for possession of pseudoephedrine with intent to manufacture methamphetamine, and to a concurrent middle term of two years in state prison for petty theft with a prior. The prison prior enhancement was stricken for purposes of sentencing.

DISCUSSION

The Appeal Is Not Moot

Herrera argues this appeal is moot because he pleaded guilty to count 2 (possession of pseudoephedrine with intent to manufacture methamphetamine) and count 3 (petty theft with a prior conviction)— crimes he contends are lesser included offenses of count 1 (conspiracy). He contends a trial on the conspiracy charge is barred by section 1023, which "implements the protections of the state constitutional prohibition against double jeopardy, and, more specifically, the doctrine of included offenses." (People v. Fields (1996) 13 Cal.4th 289, 305-306, 52 Cal.Rptr.2d 282, 914 P.2d 832 (Fields). "Underlying this principle—that a conviction of a lesser included offense is a bar to a subsequent prosecution for the greater offense—is the notion that, once a conviction on the lesser offense has been obtained, `"to [later] convict of the greater would be to convict twice of the lesser."'" (Id. at p. 306, 52 Cal.Rptr.2d 282, 914 P.2d 832.)

The People argue the appeal is not moot because, in opposition to their motion to stay trial pending appeal, Herrera argued that a trial on counts 2 and 3 would "in no way impact[] the appeal itself. . . ." The People assert defendant's assurances, given to the trial court, that proceeding to trial on counts 2 and 3 would not moot the appeal, authorizes this court to decide the court's order dismissing count 1. We disagree with that rationale. Herrera's "assurances" to the trial court do not compel us to decide a moot appeal. "A court may decide a moot case under recognized exceptional situations, but the court acts as a matter of judicial discretion, and not through any compulsion or direction of the parties." (Cramer v. Gillermina R. (1981) 125 Cal.App.3d 380, 385, fn. 4, 178 Cal. Rptr. 69.) Accordingly, we examine whether Herrera's guilty plea to counts 2 and 3 renders moot the People's appeal from the dismissal of count 1.

"An action that involves only abstract or academic questions of law cannot be maintained. [Citation.] And an action that originally was based on a justiciable controversy cannot be maintained on appeal if all the questions have become moot by subsequent acts or events. A reversal in such a case would be without practical effect, and the appeal will therefore be dismissed." (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 642, p. 669.) Herrera asserts reversing the order dismissing count 1 would be without practical effect because under section 1023 his convictions on the lesser included offenses alleged in counts 2 and 3 bar a subsequent prosecution on count 1. (See Fields, supra, 13 Cal.4th 289, 306, 52 Cal.Rptr.2d 282, 914 P.2d 832.) Herrera's argument is premised, of course, on counts 2 and 3 being lesser included offenses of count 1, a question to which we now turn.

"To determine whether a lesser offense is necessarily included in the charged offense, one of two tests (called the `elements' test and the `accusatory pleading' test) must be met. The elements test is satisfied when `"all the legal ingredients of the corpus delicti of the lesser offense [are] included in the elements of the greater offense."'" (People v. Lopez (1998) 19 Cal.4th 282, 288, 79 Cal.Rptr.2d 195, 965 P.2d 713.) "Under the accusatory pleading test, a lesser offense is included within the greater charged offense `"if the charging allegations of the accusatory pleading include language describing the offense in such a way that if committed as specified the lesser offense is necessarily...