People v. Ormiston, No. A094813.

CourtCalifornia Court of Appeals
Writing for the CourtSwager
Citation105 Cal.App.4th 676,129 Cal.Rptr.2d 567
PartiesThe PEOPLE, Plaintiff and Respondent, v. Michael R. ORMISTON, Defendant and Appellant.
Decision Date22 January 2003
Docket NumberNo. A094813.
129 Cal.Rptr.2d 567
105 Cal.App.4th 676
The PEOPLE, Plaintiff and Respondent,
v.
Michael R. ORMISTON, Defendant and Appellant.
No. A094813.
Court of Appeal, First District, Division 1.
January 22, 2003.
Certified for Partial Publication.*
Rehearing Denied Feb. 19, 2003.

[129 Cal.Rptr.2d 571]

[105 Cal.App.4th 679]

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney

[129 Cal.Rptr.2d 572]

General, Ronald A. Bass, Senior Assistant Attorney General, Michele J. Swanson, Deputy Attorney General, for Plaintiff and Respondent.

Robert Wayne Gehring, San Diego, Under appointment by the Court of Appeal, for Defendant and Appellant.

SWAGER, J.


Appellant was convicted following a trial before the court of three counts of manufacturing methamphetamine (Health & Saf.Code, § 11379.6, subd. (a)), three counts of possession of the components to manufacture methamphetamine (Health & Saf.Code, § 11383, subd. (c)(1)), two counts of possession of hydriotic acid to manufacture methamphetamine (Health & Saf. Code, § 11383, subd. (c)(2)), one count of transporting methamphetamine (Health & Saf.Code, § 11379, subd. (a)), one count of possession of marijuana (Health & Saf. Code, § 11357, subd. (b)), and two counts of possession of methamphetamine (Health & Saf.Code, § 11377, subd. (a)). The trial court also found that two enhancements for committing offenses while released on bail or own recognizance (Pen.Code, § 12022.1) were true.1 Appellant was sentenced to a total of ten years and, four months in state prison.

He claims in this appeal that no evidence in support of the conviction for transportation of methamphetamine was presented, a confidential informant should have been disclosed, and the enhancements under section 12022.1 cannot be imposed for commission of offenses while in drug diversion. We find that appellant committed transportation of methamphetamine by means of walking, and the motion for disclosure of the confidential informant was properly denied, but reverse the section 12022.1 enhancements for lack of evidence that appellant was released on bail or his own recognizance.

105 Cal.App.4th 680
STATEMENT OF FACTS AND PROCEDURAL HISTORY

The convictions are based upon a series of incidents that occurred over a period of more than one year, after a felony complaint had been filed in a separate case, People v. Ormiston (Super Ct Contra Costa County No. 03-181285-8) in November of 1997 that charged appellant with possession of methamphetamine, and thereafter, in August 1998, resulted in his placement in a drug diversion program pursuant to section 1000.

Counts 8,9 and 10—October of 1998

Testimony was presented that on the night of October 13, 1998, appellant processed and cooked methamphetamine in a shed on residential property located at 3605 Wren Avenue in Concord, with the assistance of his friend Danny Bennett.2 The next day, the shed, a garbage container, and a cottage on the property were searched by officers of the Concord Police Department. Chemicals, including hydriotic acid, equipment, and other materials associated with the manufacture of methamphetamine, were seized during the search, as was methamphetamine residue. Based upon the evidence seized, expert opinion testimony established that methamphetamine had been manufactured in the shed.

Count 7—November 24,1998

At the Longs Drug Store on Ygnacio Valley Road in Concord on October 21,

129 Cal.Rptr.2d 573

1998, and again on November 24, 1998, appellant purchased large quantities of cold tablets, which contain ephedrine that is extracted to manufacture methamphetamine. An employee at the store called the police to report the purchases, and subsequently selected appellant's photograph from a lineup as the purchaser.

Counts 5 and 6—November 25, 1998

On the morning of November 25, 1998, in response to information that appellant had purchased ephedrine pills, officers of CNET, a multi-agency drug task force, conducted a search of room 328 at the Extended Stay America Hotel at 3220 Buskirk Avenue in Pleasant Hill, where appellant was reportedly staying. The hotel room was unoccupied, but the search uncovered methamphetamine and equipment, chemicals and other materials used to manufacture methamphetamine, along with "indicia" that appellant

105 Cal.App.4th 681

was one of the current occupants of the room. The code for the card key to the room was changed, and the hotel office staff was asked to contact the officers if anyone returned to the room.

That afternoon, the CNET officers were advised that appellant had just returned to the hotel and requested a new card key for room 328. As the officers reached the hotel, appellant was observed "walking southbound away from the hotel" in the parking lot. When appellant saw the marked patrol vehicles, he threw his card key for the hotel room "down in the shrubs" immediately before he was detained and arrested. Three baggies of "wet" methamphetamine powder in quantities "generally possessed for more than just personal use," a hypodermic syringe, and a digital scale were found in appellant's jacket pocket. An expert offered the opinion that the wet methamphetamine had been "recently produced" within the past "couple of hours."

Counts 1 Through 4—July 26,1999

Anthony Davi, the manager of El Monte Building Supply and Storage on Clayton Road in Concord testified that after the gates to the facility had been locked on the evening of July 26, 1999, he observed appellant in a vacant, open storage locker in a kneeling position, wearing a small face mask, "brewing" a "few things" with a "little flame." Davi recognized appellant from previous encounters as a friend of Ken Woods, who rented a trailer on the premises. Davi asked appellant, "What are you doing here?" Appellant was "stunned," but replied, "See Ken," before he quickly left. Davi proceeded to Woods's trailer and "banged on the door," but when he received no response he returned to his office and immediately called the police.

When police officers arrived, a "strong chemical odor" was detected emanating from the storage locker. Inside the storage locker were found hot plates with substances that were still "bubbling." Woods was discovered in his trailer under the influence of methamphetamine. A search of the trailer and storage locker resulted in the seizure of more equipment and materials "used in the process of manufacturing meth." A large quantity of methamphetamine—in an amount that indicated possession for sale—was also found in the trailer.

Counts 11 and 12—October 17, 1999

Concord police officers noticed appellant riding a bicycle on Clayton Road on the night of October 17, 1999. After appellant made "eye contact" with the officers, he "started pedaling faster," then discarded items in his

105 Cal.App.4th 682

possession into a "tan bark area" near the sidewalk. The discarded

129 Cal.Rptr.2d 574

items included baggies filled with marijuana and methamphetamine powder.

Count 13—November 18, 1999

When appellant was arrested pursuant a warrant in an apartment on Montclair Drive in Concord on November 18, 1999, a "dime bag with a white powdery substance" that tested positive for methamphetamine was taken from his left front pants pocket.

DISCUSSION

Walking as a Basis for a Conviction of Transportation of Methamphetamine (Count 6).

Appellant complains that he cannot be convicted of the offense of transportation of methamphetamine without use of a vehicle. The conviction of a violation of Health and Safety Code section 11379 (hereafter section 11379) is based upon the discovery of methamphetamine in appellant's possession as he walked across the parking lot of the Extended Stay America Hotel. Appellant asserts that the more severe penalties imposed for transportation of methamphetamine pursuant to section 11379 were not intended by the Legislature to "include walking while in possession."

The uncomplicated issue, which nevertheless appears not to have been previously resolved, is whether walking may be a form of transportation for purposes of section 11379, which provides that "every person who transports . . . any controlled substance . . . shall be punished by imprisonment in the state prison for a period of two, three, or four years." (Italics added.)3 "`Transport,' as used in this statute, has no technical definition," but rather "as used in the statute is `commonly understood and of a plain, nontechnical meaning.' (People v. Eastman (1993) 13 Cal.App.4th 668, 673-677 [16 Cal.Rptr.2d 608].)" (People v. LaCross (2001) 91 Cal. App.4th 182, 185 [109 Cal.Rptr.2d 802].) "Transportation of a controlled substance is established by carrying or conveying a usable quantity of a controlled substance with knowledge of its presence and illegal character." (People v. Meza (1995) 38 Cal. App.4th 1741, 1746 [45 Cal.Rptr.2d 844]; see also People v. Emmal (1998) 68 Cal. App.4th 1313, 1315-1316 [80 Cal.Rptr.2d 907].) "The crux of the crime of transporting is movement of the contraband from one place to another." (People v. Kilborn (1970) 7 Cal.App.3d 998, 1003 [87 Cal.Rptr. 189]; see also People v. LaCross, supra, at p. 185, 109 Cal.Rptr.2d 802; People v. Arndt (1999) 76 Cal.App.4th 387, 398 [90 Cal.Rptr.2d 415].)

105 Cal.App.4th 683

The evidence indisputably establishes the movement of methamphetamine by appellant from one place to another. After a methamphetamine processing enterprise was discovered in a hotel room jointly occupied by appellant, later the same day he was detained while "walking southbound away from the hotel" with three baggies of "recently manufactured" methamphetamine powder in his jacket pocket. Appellant's use of foot travel, rather than some other means of conveyance, to take the methamphetamine to whatever destination he intended to reach, does not negate the element of transportation. Section 11379 neither mentions nor excludes from its scope any particular means of transportation. A violation of the statute...

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63 practice notes
  • Edwards v. Ollison, No. CV 06-5084-SJO (PLA).
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • 8 Diciembre 2008
    ...thus enables the courts to devote their limited time and resources to cases requiring full criminal processing. People v. Ormiston, 105 Cal.App.4th 676, 689, 129 Cal.Rptr.2d 567 (Cal.App. 1 Dist. 2003) (citations omitted). Moreover, Section 1000(a) "leaves no room for weighing the effect of......
  • Roy v. Haviland, 2: 10 - cv - 245 - TJB
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • 17 Agosto 2011
    ...to sources of supply." (Id. at pp. 136-137; see also People v. Emmal (1998) 68 Cal.App.4th 1313, 1316.)In People v. Ormiston (2003) 105 Cal.App.4th 676, the Court of Appeal held that the term "transport" in Health and Safety Code section 11379 encompasses moving controlled substances from o......
  • People v. Craine, F074622
    • United States
    • California Court of Appeals
    • 23 Mayo 2019
    ...(Sen. Com. on Public Safety, Analysis of Sen. Bill No. 215 (2017-2018 Reg. Sess.) Jan. 9, 2018, p. 6; see People v. Ormiston (2003) 105 Cal.App.4th 676, 690, 129 Cal.Rptr.2d 567 [describing the legal effect of diversion in drug cases (§ 1000 et seq.) ].) However, when the Legislature uses t......
  • People v. Olguin, B198594 (Cal. App. 3/5/2008), B198594
    • United States
    • California Court of Appeals
    • 5 Marzo 2008
    ...substance are the same as those for possession if the term "transportation" replaces "possession." (People v. Ormiston (2003) 105 Cal.App.4th 676, 682; CALCRIM No. 2300.) Possession is also an element of both theft of access cards or account information (§ 484e) and forgery. (§ 475.) "Const......
  • Request a trial to view additional results
63 cases
  • Edwards v. Ollison, No. CV 06-5084-SJO (PLA).
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • 8 Diciembre 2008
    ...thus enables the courts to devote their limited time and resources to cases requiring full criminal processing. People v. Ormiston, 105 Cal.App.4th 676, 689, 129 Cal.Rptr.2d 567 (Cal.App. 1 Dist. 2003) (citations omitted). Moreover, Section 1000(a) "leaves no room for weighing the effect of......
  • Roy v. Haviland, 2: 10 - cv - 245 - TJB
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • 17 Agosto 2011
    ...to sources of supply." (Id. at pp. 136-137; see also People v. Emmal (1998) 68 Cal.App.4th 1313, 1316.)In People v. Ormiston (2003) 105 Cal.App.4th 676, the Court of Appeal held that the term "transport" in Health and Safety Code section 11379 encompasses moving controlled substances from o......
  • People v. Craine, F074622
    • United States
    • California Court of Appeals
    • 23 Mayo 2019
    ...(Sen. Com. on Public Safety, Analysis of Sen. Bill No. 215 (2017-2018 Reg. Sess.) Jan. 9, 2018, p. 6; see People v. Ormiston (2003) 105 Cal.App.4th 676, 690, 129 Cal.Rptr.2d 567 [describing the legal effect of diversion in drug cases (§ 1000 et seq.) ].) However, when the Legislature uses t......
  • People v. Olguin, B198594 (Cal. App. 3/5/2008), B198594
    • United States
    • California Court of Appeals
    • 5 Marzo 2008
    ...substance are the same as those for possession if the term "transportation" replaces "possession." (People v. Ormiston (2003) 105 Cal.App.4th 676, 682; CALCRIM No. 2300.) Possession is also an element of both theft of access cards or account information (§ 484e) and forgery. (§ 475.) "Const......
  • Request a trial to view additional results

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