People v. McCall

• Decision Date: 15 January 2004
• Docket Number: No. S113433.,S113433.
• Citation: 8 Cal.Rptr.3d 337,32 Cal.4th 175,82 P.3d 351
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Lisa Robin McCALL, Defendant and Appellant.

8 Cal.Rptr.3d 337

82 P.3d 351

32 Cal.4th 175

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

No. S113433.

Supreme Court of California.

January 15, 2004.

Rebecca P. Jones, under appointment by the Supreme Court, San Diego, for Defendant and Appellant.

Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, J. Robert Jibson, Janet E. Neeley and Judy Kaida, Deputy Attorneys General, for Plaintiff and Respondent.

MORENO, J.

A jury convicted defendant Lisa Robin McCall of possession of hydriodic acid with intent to manufacture methamphetamine in violation of Health and Safety Code¹ section 11383, subdivision (c)(2) (section 11383(c)(2)), even though no hydriodic acid was recovered from her residence. The conviction was based upon (1) evidence that defendant possessed sufficient quantities of red phosphorus and iodine to manufacture hydriodic acid, and (2) the court's instruction, pursuant to former section 11383, subdivision (f) (section 11383(f)); see footnote 17, post), that possession of red phosphorus and iodine, with the intent to manufacture methamphetamine, shall be deemed to be possession of hydriodic acid with the intent to manufacture methamphetamine.

The Court of Appeal reversed the resulting judgment. It stated that the "shall be deemed" language of section 11383(f) allowed the prosecution to obtain a conviction under section 11383(c)(2) simply by proving the basic fact of possession of red phosphorus and iodine. Thus, said the court, section 11383(f) created an improper mandatory presumption because it relieved the prosecution of its burden of proving the ultimate fact of possession of hydriodic acid. We granted the Attorney General's petition for review to determine whether the Court of Appeal correctly characterized section 11383(f). We hold that the language in question creates no presumption at all, but is simply a valid exercise of the Legislature's power to create substantive law and define crimes.

I. PROCEEDINGS BELOW

A. Underlying Facts

During a search of defendant's cabin, sheriff's deputies recovered, among other items, boxes of ephedrine tablets, sinus medication containing pseudoephedrine, red phosphorus, and iodine crystals, as well as the type of equipment used to manufacture methamphetamine. By-products of the ephedrine/hydriodic method of methamphetamine manufacture were found,² but no hydriodic acid was recovered.

Defendant was arrested and charged, in count 3, with possession of hydriodic acid with intent to manufacture methamphetamine, a violation of sections 11383(c)(2) and 11383(f). Section 11383(c)(2) provides, "Any person who, with intent to manufacture methamphetamine ... possesses hydriodic acid ... is guilty of a felony and shall be punished by imprisonment in the state prison for two, four, or six years." Section 11383(f) provided that "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."

B. The Jury Trial

At trial, the People's first expert witness, Kevin Larson, a special agent with the California Department of Justice, Bureau of Narcotics Enforcement, explained that the ephedrine/hydriodic acid method of methamphetamine manufacture was the prevalent method of manufacture in Northern California. In this method, methamphetamine manufacturers extract pseudoephedrine from cold tablets and add hydriodic acid. He added that hydriodic acid is itself a controlled substance that is difficult to purchase so manufacturers typically manufacture their own by heating red phosphorus and iodine in water, which causes the iodine to turn into hydriodic acid. The pseudoephedrine and hydriodic acid are then combined to manufacture methamphetamine.

Barry Miller, a criminalist with the California Department of Justice, added that ephedrine can also be extracted from cold tablets and combined with hydriodic acid to manufacture methamphetamine.³ He testified that ephedrine is the immediate precursor of methamphetamine and that iodine is the immediate precursor of hydriodic acid. He offered the opinion that defendant's cabin contained a laboratory to manufacture methamphetamine using the ephedrine/hydriodic acid method, and that the cabin also contained a sufficient quantity of pseudoephedrine, red phosphorus, and iodine to manufacture methamphetamine.

The court instructed the jury that "Every person who, with the intent to manufacture methamphetamine or ... hydriodic acid, ... possesses at the same time ... red phosphorus and iodine, is guilty of a violation of Health and Safety Code section 11383(c)(1) [sic: (c)(2)], a crime. [¶] In order to prove this crime, each of the following elements must be proved: [¶] A person possessed at the same time ... red phosphorous and iodine; and [¶] That person had the specific intent to manufacture methamphetamine.... [¶] And further, for the purpose of this section, possession of immediate precursors ... sufficient for the manufacture of hydriodic acid with the intent to manufacture methamphetamine, shall be deemed to be in possession of hydriodic acid." The verdict form reflects that defendant was thereafter convicted of a violation of "Section 11383(c)(2)/11383(f)."

C. The Court of Appeal Opinion

The Court of Appeal stated that the court's instructions effectively told the jury that "it must find defendant possessed hydriodic acid if it found she possessed the precursors of hydriodic acid, namely, red phosphorus and iodine." The Court of Appeal held that the "shall be deemed" language of section 11383(f) created the type of mandatory presumption found unconstitutional in Ulster County Court v. Allen (1979) 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (Ulster County) because the jury was not free to reject the inference of the ultimate fact of possession of hydriodic acid once it found the basic fact of possession of red phosphorus and iodine.

While the Court of Appeal acknowledged that a mandatory presumption may be constitutional if proof of the basic fact or facts supports the inference of guilt beyond a reasonable doubt, it held that such proof was lacking here: "while there is a rational basis to conclude that red phosphorus and iodine are the essential chemicals of hydriodic acid, there is no basis to conclude that those two essential chemicals constitute hydriodic acid [because hydriodic acid] is a different substance which does not come into existence until it is synthesized from its essential components under a process of heat."⁴ We disagree.

II. DISCUSSION

A. Presumptions

1. Mandatory and Permissible Rebuttable Presumptions

"[P]resumptions are a staple of our adversary system of factfinding. It is often necessary for the trier of fact to determine the existence of an element of the crime — that is, an `ultimate' or `elemental' fact — from the existence of one or more `evidentiary' or `basic' facts." (Ulster County, supra, 442 U.S. at p. 156, 99 S.Ct. 2213.)

The term "presumption" is defined in section 600, subdivision (a) of the Evidence Code: "A presumption is an assumption of [an ultimate or elemental] fact that the law requires to be made from [an evidentiary or basic] fact or group of [such] facts found or otherwise established in the action. A presumption is not evidence." Put differently, presumptions "are conclusions that the law requires to be drawn (in the absence of a sufficient contrary showing) when some other fact is proved or otherwise established in the action." (Assem. Com. on Judiciary, com. on Assem. Bill 333 (1965 Reg. Sess.) [enacting Evid.Code] reprinted at 29B pt. 2, West's Ann. Evid.Code (1995 ed.) foll. § 600, p. 3.)

This statutory definition of a "presumption" is incomplete, however, because the law also recognizes the permissive presumption, "which allows — but does not require — the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one and which places no burden of any kind on the defendant." (Ulster County, supra, 442 U.S. at p. 157,99 S.Ct. 2213, italics added.) Thus, Evidence Code section 600, subdivision (a) defines a mandatory presumption, which "tells the trier that he or they must find the elemental fact upon proof of the basic fact, at least unless the defendant has come forward with some evidence to rebut the presumed connection between the two facts." (Ulster County, at p. 157, 99 S.Ct. 2213.)

Evidence Code section 600, subdivision (b) defines the term "inference" and provides: "An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the action." Like a presumption, "an inference is not itself evidence; it is the result of reasoning from evidence." (Assem. Com. on Judiciary, com. on Assem. Bill 333 (1965 Reg. Sess.) [enacting Evid.Code] reprinted at 29B pt. 2, West's Ann. Evid.Code, supra, foll. § 600, p. 4.) There is no substantive difference between the "inference" defined in Evidence Code section 600, subdivision (b) and the "permissive presumption" defined by the high court in Ulster County.⁵

In addition, the mandatory and permissive presumptions contemplated by Evidence Code section 600 are rebuttable. As provided in Evidence Code section 601, "A presumption is either conclusive or rebuttable. Every [mandatory or permissible] rebuttable presumption is either (a) a presumption affecting the burden of producing evidence or (b) a presumption affecting the burden of proof."⁶

In other words, whether the fact finder may find the elemental fact upon proof of the basic fact (a permissive presumption) or must find the elemental...