People v. Horowitz, E038744 (Cal. App. 10/9/2007)

• Decision Date: 09 October 2007
• Docket Number: E038744
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. EDWARD HOLLAND HOROWITZ et al., Defendants and Appellants.

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THE PEOPLE, Plaintiff and Respondent, v. EDWARD HOLLAND HOROWITZ et al., Defendants and Appellants.

E038744

Court of Appeals of California, Fourth Appellate District, Division Two

October 9, 2007

NOT TO BE PUBLISHED

Appeal from the Superior Court of Riverside County, No. PEF007720, Judith C. Clark, Judge. Affirmed in part, reversed in part.

Maureen J. Shanahan, under appointment by the Court of Appeal, for Defendant and Appellant Edward Holland Horowitz.

Law Offices of Allen G. Weinberg and Allen G. Weinberg, for Defendant and Appellant Kristina Horowitz.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Steve Oetting, Supervising Deputy Attorney General, and Sabrina Y. Lane-Erwin, Deputy Attorney General, for Plaintiff and Respondent.

OPINION

MILLER, J.

Defendants Edward Horowitz (Edward) and Kristina Horowitz (Kristina)¹ were jointly charged and tried in front of separate juries for several offenses related to running a methamphetamine lab. Each jury convicted its respective defendant of manufacturing methamphetamine (Health & Saf. Code,² § 11379.6, subd. (a); count 1), possessing methamphetamine while armed (§ 11370.1; count 2), child endangerment (Pen. Code, § 273a,³ subd. (a); count 3), possession of methamphetamine (§ 11377, subd. (a); count 4), and disposing of hazardous waste. (§ 11374.5, subd. (a); count 5). Edward was found guilty of being under the influence while immediately possessing a loaded, operable firearm (§ 11550, subd. (e); count 6), and Kristina was convicted of being under the influence of methamphetamine. (§ 11550, subd. (a); count 7.) Each defendant's jury found true the special allegations that substances containing methamphetamine were found to exceed three gallons of liquid by volume and one pound of solid substance by weight (within the meaning of § 11379.8, subdivision (a)(3)), and defendants were personally armed with a firearm. (Pen. Code, § 12022, subd. (c).)

Edward was sentenced to a term of 16 years and 4 months in prison which consisted of the upper term of seven years on count 1, three years for the quantity enhancement, and four years for the firearm enhancement. As to count 2, the trial court imposed a one-year term. For count 3, the trial court imposed one year and four months. On count 4, the trial court stayed a two-year term. It imposed a concurrent three-year term for count 5. Finally, for count 6, it sentenced Edward to two years and then stayed the sentence.

Kristina was sentenced to a total term of imprisonment of 12 years and 4 months in state prison, which consisted of the lower term of three years for count 1, three years for the quantity enhancement, and four years for the firearm enhancement. On count 2, the trial court sentenced her to one year. For count 3, a sentence of one year and four months was imposed. As to count 4, a two-year term was stayed pursuant to Penal Code section 654. With respect to count 5, a three-year term was stayed. Finally, the trial judge imposed a concurrent 90-day term for count 7.

On appeal, defendants raise numerous issues, among them insufficiency of the evidence to support the charges and enhancements, failure to instruct on unanimity and lesser included offenses, prosecutorial misconduct, failure to conduct a proper Marsden⁴ hearing, and sentencing issues. Each defendant joins in the other's arguments to the extent they inure to his or her benefit. We reject all of defendants' contentions, with one exception: we find that simple possession is a lesser included offense of possession of methamphetamine while armed. Therefore, we reverse defendants' convictions for possessing methamphetamine. In all other respects, we affirm the judgment.

BACKGROUND

To provide an overview, evidence was presented at trial establishing that a methamphetamine lab was operating on the property on which Edward, Kristina, and their 15-year-old daughter, R., resided. Investigating officers testified that all the equipment and ingredients necessary to produce methamphetamine were found at that location.

Rather than set out a separate statement of facts and procedural history, we will incorporate the portions of the evidence relevant to our discussion as to each defendant's separate contentions.

DISCUSSION

A. There Was Substantial Evidence to Support Defendants' Convictions for Child Endangerment.

Edward and Kristina contend there was insufficient evidence of child endangerment to support their convictions. They allege that R. could not have been exposed to toxic chemicals, rusty razor blades or guns because (1) she had not been home for three days, (2) no manufacturing occurred in the trailer, and (3) R. did not have a key to the house where the lab was located. Having grown up on the property, R. was familiar with the physical hazards and would have known how to avoid falling down in the dark, tripping into sewage ditches, or becoming entangled in electrical power lines. She was taught the danger of firearms. Finally, the fact that Kristina was under the influence at the time of the search would not have endangered R. as R. was not present in the trailer.

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 to determine whether it discloses substantial evidence. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) Substantial evidence is defined as "evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Diaz (1992) 3 Cal.4th 495, 534.)

"Violations of section 273a, subdivision (a) can occur in a wide variety of situations. [Citation.] `The number and kind of situations where a child's life or health may be imperiled are infinite. . . . Thus, reasonably construed, the statute condemned the intentional placing of a child, or permitting him or her to be placed, in a situation in which serious physical danger or health hazard to the child is reasonably foreseeable.' [Citation.]" (People v. Hansen (1997) 59 Cal.App.4th 473, 479.) Public policy supports the protection of children against risks they cannot anticipate. The felony child abuse statute `was enacted in order to protect the members of a vulnerable class from abusive situations in which serious injury or death is likely to occur.' [Citation.]" (People v. Toney (1999) 76 Cal.App.4th 618, 622 (Toney).)

"Section 273a, subdivision (a) `is an omnibus statute that proscribes essentially four branches of conduct.' [Citation.] . . . [I]t provides: `Any person who, under circumstances or conditions likely to produce great bodily harm or death, [1] willfully causes or permits any child to suffer, or [2] inflicts thereon unjustifiable physical pain or mental suffering, or [3] having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or [4] willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years.' [Citation.]" (People v. Valdez (2002) 27 Cal.4th 778, 783, fn. omitted (Valdez).)

The term "willfully," as used in section 273a, includes criminally negligent conduct. (Valdez, supra, 27 Cal.4th at pp. 787-788.) "Criminal negligence is `"aggravated, culpable, gross, or reckless . . . conduct . . . [that is] such a departure from what would be the conduct of an ordinarily prudent or careful [person] under the same circumstances as to be incompatible with a proper regard for human life . . . ."' [Citation]. `Under the criminal negligence standard, knowledge of the risk is determined by an objective test: "[I]f a reasonable person in defendant's position would have been aware of the risk involved, then defendant is presumed to have had such an awareness."' [Citations.] Under section 20, criminal negligence `may be sufficient to make an act a criminal offense, without a criminal intent.' [Citation.]" (Id. at p. 783.) "The [California] Legislature apparently sought to avoid requiring a subjective mental state in the statute. [Citation.]" (Id. at p. 790.)

As there was no evidence that R. was injured, the only issue raised is whether Edward and Kristina willfully caused or permitted R. to be placed in a situation where her person or health was endangered, as relevant under the fourth type of criminally negligent conduct.

We find there was ample evidence supporting defendants' convictions for child endangerment.

Riverside County Sheriff's Investigator Bender characterized the defendants' lab as a small scale "Beavis" lab that was a combination scavenging and manufacturing operation. He described the multi-phased manufacturing process Edward utilized to "cook" methamphetamine, and testified regarding the multifarious dangers associated with each stage of the methamphetamine manufacturing process.⁵

The most common danger in manufacturing methamphetamine is the risk of fire. Flammable solvents such as camping fuel or lighter fluid give off vapors. Once a heat source is applied to the solvent, it is the vapors rising off the liquid that are flammable. Exposing these vapors to an open flame from a water heater or a pilot light, or an electrical discharge of a sparking light switch, could cause an explosion and fire.

Phosphene fumes, a by-product of combining red phosphorous and iodine, are a deadly gas. Breathing in phosphene gas causes irreversible damage leading to death.⁶ While it is not the most common danger of manufacturing, it is the greatest risk to a person's health.

Red phosphorus is a flammable solid; once it begins to burn, it is very difficult to extinguish. If red phosphorous is heated in an airless environment, it turns into white phosphorous....