People v. Lancellotti

• Decision Date: 23 September 1993
• Docket Number: No. H010346,H010346
• Citation: 23 Cal.Rptr.2d 640,19 Cal.App.4th 809
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Lawrence LANCELLOTTI, Defendant and Appellant.

Page 640

23 Cal.Rptr.2d 640

19 Cal.App.4th 809

The PEOPLE, Plaintiff and Respondent, v. Lawrence LANCELLOTTI, Defendant and Appellant.

No. H010346.

Court of Appeal, Sixth District, California.

Sept. 23, 1993.

Review Denied Dec. 15, 1993.

Richard E. Hove, Oakland, Philip A. Schnayerson, Hayward, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Sr. Asst. Atty. Gen., Ronald S. Matthias, Supervising Deputy Atty. Gen., Richard Rochman, Deputy Atty. Gen., for plaintiff and respondent.

PREMO, Acting Presiding Justice.

Defendant Lawrence Lancellotti appeals from judgment and sentence of five years in state prison for manufacturing methamphetamine. Authorities were notified when the manager of defendant's rented public storage locker noticed an unusual odor. Appellant contends that manufacturing the drug was physically impossible because a necessary piece of equipment and a necessary chemical were not present in the locker; therefore, the contents of the locker were merely being stored. He also contends that the jury was incorrectly instructed. We disagree and affirm.

FACTS

On May 25, 1990, Donna Lewis, the manager of Budget Mini Storage in Milpitas, rented space E-7 to appellant who moved in items that night. No one entered the locker thereafter until June 12, 1990, when Lewis smelled an unusual odor and tried to telephone appellant. The telephone number was not operational (it later turned out that appellant had also given Lewis false license and social security numbers), so she used bolt cutters to open the locker. She saw what looked like "a toxic spill." There was "a bunch of chemicals all spilled together, and glassware. It looked like someone had dumped a bunch of junk...." After a second fruitless attempt to reach appellant by telegram, she notified the fire department.

Appellant was charged with one count of manufacturing methamphetamine (Health & Saf.Code, § 11379.6, subd. (a)), ¹ and was convicted at a jury trial on August 20, 1992. This appeal ensued.

ISSUES

Appellant contends first that the evidence is insufficient to show that he was manufacturing methamphetamine because the locker did not contain a piece of equipment (a hydrogenator) and a reducing agent (alcohol) which were necessary for the final step of the manufacturing process. He concludes that "he cannot be considered to be 'manufacturing' when he fail[ed] to possess the ingredients necessary to do so."

Second, he claims that the court erred in refusing to instruct the jury that the manufacturing, producing or processing "is occurring, taking place and in the course of its progress such that methamphetamine would be produced."

MANUFACTURING

Appellant asserts that a "boxed, non-functioning laboratory was all that was found" and that possession of the items contained in the locker could not even "constitute an attempt" because he did not possess a reducing agent which would transform the intermediate product to methamphetamine.

We "review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, 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. Johnson (1980) 26 Cal.3d 557, 578, 162 Cal.Rptr. 431, 606 P.2d 738.)

Evidence produced at trial showed that the manufacture of methamphetamine involves a multi-step process which can be accomplished in 24 hours, but which can be interrupted at various stages. When the lab is "bubbling," the chemicals reacting in beakers and tubes produce strong, telltale odors. To escape detection, manufacturers typically move the lab between steps to different locations. Moves typically occur when the lab is "boxed," i.e., when the process is at an intermediate stage when no chemical reaction is occurring.

As respondent informs us, appellant's storage locker "contained virtually all of the equipment needed to produce methamphetamine," including: face respirators and filter cartridges to protect the manufacturer from the harmful fumes emitted during the process; several vacuum pumps, for separating a powder from a liquid at various stages of the process; vacuum pump oil; two light-bulb stands, used in drying the wet solid produced by the vacuum pump; twelve drying trays, for holding the wet solid during the drying process; oscillating fans, for accelerating the drying process and dissipating odors; three heating mantles, for heating the chemicals used in the process; a rheostat, for controlling the temperature of the heating mantle; a triple-neck, round-bottom reaction vessel, which sits on the heating mantle; seven condenser columns, to connect to the triple-neck reaction vessel; tubing, for cooling the system by circulating water; a triple-beam scale, for measuring the ingredients and the final product; a box of beakers and a funnel; heavy-duty plastic containers; and safety gloves. There was also a paper money counter.

The locker also contained two catalysts used in the manufacture of methamphetamine, palladium and thionyl chloride; a solvent, chloroform; and chloropseudoephedrine in a 20-pound bag, in a 5-gallon metal drum, in several drying trays, and in liquid form in two 5-gallon metal drums.

According to respondent, "chloropseudoephedrine is an immediate precursor of methamphetamine. To complete the process, [it] and palladium ... would have to be mixed with alcohol and placed in a hydrogenator, a relatively simple step. Although chloropseudoephedrine itself is not illegal, it cannot be purchased commercially and has no use other than in the production of methamphetamine." A 20-pound bag of chloropseudoephedrine would have produced 10 to 15 pounds of methamphetamine with a value of $15,000 to $20,000 per pound.

Two expert witnesses, a special agent with the Bureau of Narcotic Enforcement and a criminalist, each testified that in her opinion the contents of the storage locker were being used to manufacture methamphetamine. The special agent gave the opinion that the lab was "boxed." The criminalist testified that she could not "say that manufacture of methamphetamine was actually taking place at [that] location on June 12th of 1990...."

Section 11379.6, subdivision (a), provides for the punishment of "every 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...