People v. McCall

• Court: California Court of Appeals
• Writing for the Court: Blease
• Citation: People v. McCall, 128 Cal.Rptr.2d 917, 104 Cal.App.4th 1365 (Cal. App. 2002)
• Decision Date: 31 December 2002
• Docket Number: No. C038946.,C038946.
• Parties: The PEOPLE, Plaintiff and Respondent, v. Lisa Robin McCALL, Defendant and Appellant.

128 Cal.Rptr.2d 917

104 Cal.App.4th 1365

The PEOPLE, Plaintiff and Respondent, v. Lisa Robin McCALL, Defendant and Appellant.

No. C038946.

Court of Appeal, Third District.

December 31, 2002.

Certified for Partial Publication.

Review Granted March 26, 2003.

Rebecca P. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Senior Assistant Attorney General, J. Robert Jibson, Supervising Deputy Attorney General, Judy Kaida, Deputy Attorney General, for Plaintiff and Respondent.

BLEASE, Acting Presiding Judge.

Defendant Lisa Robin McCall was convicted by jury of manufacturing methamphetamine (Health & Saf.Code, § 11379.6, subd. (a))¹, possession of ephedrine with intent to manufacture methamphetamine (§ 11383, subd. (c)(1)), possession of hydriodic acid with intent to manufacture methamphetamine (§ 11383, subds.(c)(2) and (f)), and use and possession of methamphetamine. (§§ 11550 and 11377.)²

She was sentenced to serve a total of six years in prison on concurrent terms as follows: five years on count one, six years on count two, four years on count three, and two years on count four. Execution of the sentence was suspended pursuant to section 3051, upon a finding defendant is in imminent danger of becoming addicted to narcotics. She appeals from the judgment of conviction.

On appeal, McCall challenges the denial of her motion to suppress evidence seized from her residence and raises several instructional and evidentiary errors.

We agree with her claim that count three must be reversed because the jury was instructed with an unconstitutional mandatory presumption which required it to find defendant possessed hydriodic acid if it found she possessed the essential chemicals red phosphorous and iodine.³ We will reverse the conviction on count three and affirm the judgment in all other respects.

FACTUAL BACKGROUND

A. The Prosecution's Case

On the afternoon of January 4, 2001, law enforcement officers from the Trinity County Sheriffs Department went to defendant's cabin at Mills Camp in Peanut to arrest her. Officers contacted James Youngman, co-defendant Barry Youngman's father. He told them that defendant was not home. The officers asked if they could go inside the house and look and he said "sure." Upon entry, the officers detected a strong chemical odor coming from the kitchen. When they went into the kitchen, officers saw a glass pan containing a line of a white powdery substance. A glass pipe used to smoke methamphetamine and a piece of paper containing an unidentified substance was found in a back room. The house is an 800 square foot cabin with two bedrooms, a living room, kitchen and laundry room.

Law enforcement officers obtained a search warrant of defendant's residence and returned to execute it later that same day. When the officers were approximately 30 feet from the residence, they smelled a chemical odor. Inside the house, officers observed male and female adult clothing, various receipts and other documents bearing the names of defendant and Barry Youngman, and one bed. In the kitchen there was a full complement of cooking and eating utensils. It appeared that two people resided in the house.

Officers seized four firearms, a glass methamphetamine smoking pipe containing residue, and a hypodermic syringe, a piece of drinking straw with residue buildup consisting of .03 grams of methamphetamine, and a small brown rock determined to be .02 grams of methamphetamine.⁴ Also seized were numerous empty baggies of varying sizes commonly used to package illegal narcotics, boxes of ephedrine tablets and sinus medication containing pseudoephedrine, containers of solvent, coffee filters stained with a reddish-colored substance, a can containing baggies with a reddish powdered substance, a digital scale, duct tape, a tetracycline prescription bottle containing beads and a lid with a yellow stain, a small electric coffee grinder containing a white powdery residue, rubber tubing, two bottles labeled red devil lye, a small measuring cup, and a piece of paper bearing an address for the Alpha Iodine Company with prices for various amounts. The majority of the seized items were found either in the utility room or the kitchen.

A blue pickup truck was parked outside at defendant's residence. During a search of the truck on January 4th, officers seized from its interior, a rifle, a letter addressed to defendant, and Sudafed tablets containing pseudoephedrine.

On the morning of January 6th, defendant was arrested as she entered the pickup truck in the parking lot of the Burger King in Weaverville. At that time, sheriffs deputies found located on the seat of the truck, a key for room number 6 at the Indian Creek Motel in Douglas City. The deputies went to room number 6 at the Indian Creek Motel. The room was registered to Barry Youngman. Barry was in the room at the time and was immediately arrested. During a search of the motel room, deputies seized a canvas bag containing defendant's California identification card and a small piece of tinfoil containing an off-white powdery substance later identified as .02 grams of methamphetamine.

Subsequent testing of the powdery substances and the liquids seized from defendant's residence revealed the presence of methamphetamine; ephedrine, a precursor to methamphetamine; phenyl-2-propanone (P-2-P), a by-product in the manufacturing of methamphetamine by the ephedrine-hydriodic acid method; red phosphorus containing methamphetamine and other by-products from the manufacture of methamphetamine by the ephedrine-hydriodic acid method; red phosphorus and iodine crystals, mixed with water and red phosphorus.

Defendant's latent fingerprints were found on a can of Naptha solvent, and 11 of Barry Youngman's latent fingerprints were found on various items, including jars, bottles, flasks, a dish containing residue, and a coffee grinder, all used in the manufacture of methamphetamine. Defendant and Barry and James Youngman all tested positive for methamphetamine upon their arrests.

Expert testimony established that pseudoephedrine is the only precursor of the ephedrine-hydriodic acid method of processing methamphetamine. A precursor is a primary chemical that is changed into a finished product. Substances used in the manufacture of methamphetamine by the ephedrine-hydriodic acid method include pseudoephedrine tablets, solvents, bases such as Red Devil lye, red phosphorus, and iodine; equipment used to manufacture methamphetamine by that same method include coffee filters, plastic baggies, coffee grinders, funnels, separators, pans, containers, and jars.

An expert opined there was a laboratory to manufacture methamphetamine by the ephedrine-hydriodic acid method in defendant's residence, and that there was a sufficient quantity of pseudoephedrine, red phosphorus, and iodine present to manufacture methamphetamine.

B. The Defense

Defendant did not testify but called Barry Youngman, who testified he was convicted of manufacturing methamphetamine based upon the same facts presented in the instant case. He lived with defendant from June 2000 to January 2001 and manufactured methamphetamine at her residence in January of 2001. However, he never showed defendant the manufacturing operation, and attempted to "keep it a secret from her" by hiding materials and laboratory equipment "off the premises" in a travel trailer and a van that he kept on her property.

Barry admitted both he and defendant were at her residence on January 3rd and the morning of January 4th, but he claimed he did not manufacture methamphetamine on January 4th until defendant left her residence at approximately 1 p.m. to go to court. When Barry saw law enforcement officers arrive at the residence, he fled, leaving his father at the residence. Barry owned three of the four firearms found in defendant's residence but never showed them to her. He tested positive for methamphetamine on January 6th and gave defendant that drug on that same day. During the time he lived with defendant, he manufactured methamphetamine for the two of them to ingest and defendant knew where he obtained the drug.

DISCUSSION

I^*

II Mandatory Presumption on Count Three⁸

Defendant contends section 11383, subdivision (f) and the corresponding CALJIC instructions "create an impermissible mandatory presumption that possession of iodine and red phosphorus is sufficient to prove possession of hydriodic acid." Respondent contends that subdivision (f) is not an unconstitutional mandatory presumption "because the predicate facts that a defendant possessed essential chemicals (i.e., iodine and red phosphorus) sufficient to manufacture hydriodic acid, with the intent to manufacture methamphetamine, necessarily prove that a defendant possessed hydriodic acid."

Defendant was charged in count three with possessing hydriodic acid with intent to manufacture methamphetamine in violation of section 11383, subdivisions (c)(2) and (f).⁹

Subdivision (f) of section 11383 provides in pertinent part:

"possession of immediate precursors sufficient for the manufacture of ... hydriodic acid ... shall be deemed to be possession of the derivative substance. Additionally, possession of essential chemicals sufficient to manufacture hydriodic acid, with intent to manufacture methamphetamine, shall be deemed to be possession of hydriodic acid."

Pursuant to subdivision (f), the jury was instructed in pertinent part as follows:

"The defendant is charged in count three of having violated section 11383(c)(1) [sic] of the Health and Safety Code, which is a crime.

"Every person who, with the intent to manufacture methamphetamine or any of its analogs, namely hydriodic acid, possesses any salts, isomers, or salts of isomers of ephedrine or pseudoephedrine or possesses at the same time any of the following, a combination product thereof, namely red...