People v. Saunders, A121921 (Cal. App. 11/5/2009), A121921
| Decision Date | 05 November 2009 |
| Docket Number | A121921 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. DARRIN C. SAUNDERS, Defendant and Appellant. |
Appeal from the San Mateo County, Super. Ct. No. SC061604.
Not to be Published in Official Reports
Darrin C. Saunders appeals from convictions of manufacturing methamphetamine and misdemeanor child endangerment. He contends the latter conviction must be reversed because there was insufficient evidence he had "care and custody" of the child as required for the offense. Alternatively, he urges the sentence on this count must be stayed under Penal Code section 654. We affirm.
Appellant was charged by an amended information filed on October 10, 2006, with unlawfully manufacturing methamphetamine (Health & Saf. Code, § 11379.6, subd. (a)) (count 1); renting or making available a building or other space for the purpose of unlawfully manufacturing, storing or distributing methamphetamine (Health & Saf. Code, § 11366.5, subd. (a)) (count 2); endangering the health of a child (Pen. Code, § 273a, subd. (a)) (count 3); and misdemeanor using a scanner to intercept police communications (Pen. Code, § 636.5) (count 4). It was alleged that appellant was personally armed with a firearm during the commission of counts 1 and 2 (Pen. Code, § 12022, subd. (c)), and that the offense charged in count 1 occurred in a structure where a child under the age of 16 years was present (Health & Saf. Code, § 11379.7, subd. (a)).
Jury trial began on March 25, 2008. On April 3, the jury found appellant guilty of manufacturing methamphetamine and found true the allegation that a child was present during the offense; it also found appellant guilty of misdemeanor child endangerment, a lesser included offense of the felony charged in count 3. The jury found appellant not guilty of the offenses charged in counts 2 and 4, and found the firearm allegations not true.
On May 8, 2008, the court sentenced appellant to a prison term of five years on count 1, consisting of the lower term of three years plus two years for the enhancement. The court imposed a concurrent sentence of 120 days in county jail on count 3.
Appellant filed a timely notice of appeal on June 24, 2008.
As a result of a probation search at her home on June 21, 2006, Kathleen Wright was arrested on charges of manufacturing methamphetamine, child endangerment, possession of a gun, and maintaining premises used for the production or distribution of controlled substances. Also arrested at the same time were appellant and John Collins, a friend of appellant's who had been storing his belongings in a room adjacent to Wright's garage for a few months and often slept there. Wright testified at appellant's trial after entering an agreement with the district attorney and understood that if she testified truthfully she would be convicted of the last of the charges against her; she believed testifying truthfully would help her in her own criminal case and would give her a better chance of not losing custody of her children. Wright testified that since the arrest, she had changed her lifestyle, stopped using methamphetamine, and stopped associating with the people she used to, including appellant.
At the time of trial, Wright had lived at 926 South Road in Belmont for about eight years. She and appellant lived together as boyfriend and girlfriend from about 2004 until their arrest in 2006, although about three months before their arrest Wright had stopped sleeping in the master bedroom and wanted appellant to move out. Both used methamphetamine and, in June 2006, Wright was on probation for a conviction of possession of methamphetamine. She was aware that appellant was making methamphetamine in her garage and bought pills for him to use, but did not help him with the manufacturing. Other friends of appellant's, including Collins, also bought pills for appellant to use in making methamphetamine. She told appellant she was concerned about the manufacturing process starting a fire and he told her she was "stupid."
A couple of months before the June arrest, Wright began electronic monitoring as part of her probation and told appellant she did not want methamphetamine in the house or him using it; he did not stop, they fought about it, and she was trying to get him to move out. A couple of weeks before the arrest, appellant told Wright that the methamphetamine related items had been removed from the garage and she did not see anything when she checked.
Appellant did not pay rent but did contribute to bills such as food and gas, sometimes picked up the tab for dinners out, and bought things for Wright's son, Jason, and gave Wright methamphetamine. He took Wright and Jason to Hawaii.
Jason, 14 years old and in eighth grade at the time of trial, testified that appellant lived with him and his mother for about two years. Appellant sometimes played baseball with Jason and his mother, bought groceries, and did things like take Jason to the store to buy a new shirt. Appellant usually took Jason to school in the morning; Jason generally took the bus home, but appellant picked him up sometimes. Jason's mother generally took care of him when he was sick, but appellant would give him medicine or bring him a drink.
Jason kept sports items, such as baseball gloves and soccer balls, in a chest in the garage. Appellant put a lock on the door from the house to the garage and while he lived at the house, the lock was sometimes locked, sometimes not. During the time appellant lived at the house, Jason sometimes found things in the garage including "medicine stuff" like empty Tylenol boxes and a jug containing a small amount of liquid. Sometimes when he was going to sleep Jason would notice a smell "like if you kept on smelling it it would give you a headache," a battery acid or gasoline type smell. Before appellant moved in, Jason and his mother used the garage as a place to hang out, but this stopped when appellant lived with them. Appellant spent most of his time in the garage, sometimes all night. Jason would see him working on projects like fixing up and painting the house, and sometimes helped him. Appellant and his friends, who frequently were in the garage with him, warned Jason not to touch things in the garage. They were usually in the garage very late at night and Jason would ask his mother to tell them to quiet down so he could sleep.
Marilyn Corr, a good friend of Wright's, testified under a grant of immunity. At the time of trial, Corr was in jail, having violated her probation by using methamphetamine. Corr had known appellant and Collins for many years, used methamphetamine with and bought it from both of them. She obtained methamphetamine from Wright's house on several occasions, from an area in the garage where it was being made. She had not seen appellant actively making methamphetamine, but had seen chemicals in the garage and on one occasion got her methamphetamine from a coffee filter, which she knew was the last step in its production. On this occasion, Corr waited about 15 minutes for the methamphetamine to be ready.
On the evening of June 21, 2006, officers from the California Bureau of Narcotics Enforcement and the Belmont Police Department executed a probation search at Wright's house. Wright was on the porch. Officers encountered James Obertini in the garage, located below the residence levels of the house, and Collins, known as Duke, coming out of a side room attached to the garage. During the course of the search, appellant came to the house and was asked to leave.
In the garage, located below the residence levels of the house, officers found various items consistent with all the stages of manufacturing methamphetamine, including glassware, funnels, filters, cans of chemicals commonly used in the process of manufacturing methamphetamine, ephedrine in the form of still boxed allergy medicine, a bottle of iodine and two bottles of hydrogen peroxide. They also found three small water bottles containing ephedrine soaking in solvent, and approximately one gram of methamphetamine in a form that could be ingested by a user, found in some of the tubing and glassware in the garage.1 Martin described one method by which methamphetamine is manufactured from ephedrine (cold medicine), red phosphorous (commonly extracted from the strike pad on matchbooks or emergency flares) and hydriatic acid (made from iodine and hydrogen peroxide). The procedure involves using liquids, solvents and filters to separate the desired substances, then combining the ingredients, creating from these flammable and acidic substances a volatile mixture which poses the danger of fire and release of caustic chemicals into the air. Martin opined that the premises contained all the ingredients and equipment necessary to manufacture methamphetamine, in this case an amount between a few grams and half an ounce. There also was an active police scanner in the garage. Officers found three pieces of paperwork in appellant's name on a work bench in the garage, a receipt, a check and a paper from a county agency; there were other papers on the workbench that the officers did not seize. The officers did not find any methamphetamine related items in the storage area off the garage containing Collins's belongings, and a locked tool box in the garage, which Collins said was his, contained only tools such as wrenches and sockets.
Martin testified that the majority of the items in the garage associated with methamphetamine manufacture were found in cabinetry on the south wall and on a workbench, with a small amount in a locker by the garage door. None of these items was locked up; all were accessible to anyone who came into the garage from the stairway that connected it to the residence. It appeared that the cabinetry above the bench in the southwest corner of the garage had at one...
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