People v. Stone

• Decision Date: 06 October 1999
• Docket Number: No. B126155,B126155
• Citation: 89 Cal.Rptr.2d 401,75 Cal.App.4th 707
• Court: California Court of Appeals Court of Appeals
• Parties: 99 Cal. Daily Op. Serv. 8257, 1999 Daily Journal D.A.R. 10,489 The PEOPLE, Plaintiff and Respondent, v. Michael STONE, Defendant and Appellant.

Page 401

89 Cal.Rptr.2d 401

99 Cal. Daily Op. Serv. 8257,

1999 Daily Journal D.A.R. 10,489

The PEOPLE, Plaintiff and Respondent, v. Michael STONE, Defendant and Appellant.

No. B126155.

Court of Appeal, Second District, Division 4, California.

Oct. 6, 1999.

John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and Jennevee H. de Guzman, Deputy Attorney General, for Plaintiff and Respondent.

CHARLES S. VOGEL, P.J.

Michael Stone appeals from the judgment entered following a jury trial that resulted in his conviction of manufacturing phencyclidine ("PCP") (Health & Saf.Code, § 11379.6, subd. (a); count 1) ¹ and a finding that he manufactured PCP, its analogs, and precursors (Pen.Code, § 1203.07, subd. (a)(7)); court findings that he had suffered two prior convictions which qualified as strikes under the "Three Strikes" law (Pen.Code, §§ 667, subds. (b) through (i); 1170.12, subds. (a) through (d)), and his plea of guilty to misdemeanor infliction of corporal injury to a cohabitant (Pen.Code, § 273.5, subd. (a); count 2). He was sentenced prison for the term of 25 years to life on count one. He was also ordered to pay a $5,000 restitution fine, a $5,000 parole revocation fine, and a $50 laboratory analysis fee.

Appellant contends the evidence is insufficient to support his conviction for manufacturing PCP because it merely establishes he was engaged in the manufacture of piperidine, which has legitimate uses in addition to being a precursor to the manufacture of PCP. He further contends his sentence of 25 years to life constitutes cruel or unusual (or both) punishment under the federal and state Constitutions. Alternatively, he contends the trial court abused its discretion by refusing to vacate one of his strikes.

Respondent contends the judgment must be modified and the abstract of judgment corrected to reflect the imposition of a $50 state penalty assessment and a $35 county penalty assessment.

Based on our review of the record and applicable law, we modify the judgment to reflect the imposition of a $50 state penalty assessment and a $35 county penalty assessment, and, as so modified, we affirm the judgment. We direct the superior court to prepare an amended abstract of judgment accordingly.

FACTUAL SUMMARY

Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 On August 16, 1997, around 10:00 p.m., during an argument, appellant struck McMullin. He later placed her in a choke hold. Around 6:00 a.m. the next day, McMullin met with the police and informed the officers that "there was a PCP lab in the garage."

Cal.4th 1199, 1206, 26 Cal.Rptr.2d 23, 864 P.2d 103), the evidence established that in early August 1997, Bianca McMullin entered the garage of 6850 North Gail Avenue in Long Beach where she and appellant resided in response to his request that she check for chemical smells. She became nauseous from the odor of chemicals. Appellant informed McMullin that he was making "one of the chemicals for PCP." Appellant spent two to three hours daily in the garage, and almost daily, he was assisted by several individuals.

McMullin unlocked the front door of the residence, and the officers who accompanied her announced their presence and entered. A male known as "Mooney," who appeared surprised, fled to another room where he was detained. Appellant was located in a bedroom and detained. $3,583 cash bundled in a rubber band and traffic ticket in appellant's name were recovered from a nightstand. Also recovered were three sets of keys, including one which opened the lock of the garage door, chemical cards, a pager, and address books. A scale was found in the den. A book entitled "Secrets of Methamphetamine Manufacture" was on the bed. That book contained a chapter containing instructions on how to set up hydrogenerators. Appellant told McMullin, who observed him reading it, that it showed him how to make hydrogenerators.

An officer who entered the garage was compelled to leave because of the strong odor of chemicals. Chemicals and equipment associated with the manufacture of piperidine were found in the garage.

Long Beach Police Detective Gregory Roberts, who was with the drug investigation section, also observed sodium hydroxide, which is commonly used in the final mixing stages to form PCP. He further observed that portion of the manufacturing process known as "hydrogenation of pyridine to form piperidine." Appellant's fingerprints were found on a beaker and a bottle containing ethanol. Two hydrogenerators, which are used to convert pyridine to piperidine, were seized. Ethanol is used to speed up that process. Also found were glassware, beakers, pumps, hoses, and plastic tubing. Roberts opined the street value of the seven recovered gallon jugs of piperidine was approximately $21,000 to $56,000, or from $3,000 to $8,000 a gallon.

Los Angeles Police Officer Juan Villanueva, an expert in the clandestine operation of drug laboratories and production of controlled substances, opined that the chemicals and equipment were used to produce piperidine, a precursor to PCP.

He opined the street value of piperidine was between $5,000 to $7,000 per gallon. He further opined that while it had limited value for industrial use, it was commonly sold for the manufacture of PCP. Piperidine, which had been readily accessible, became more difficult to obtain because of restrictions in 1989. Possession and purchase of piperidine for industrial uses is regulated by the California Department of Justice as a controlled substance. He added that a permit and a 21-day waiting period are prerequisites.

Appellant presented evidence to explain the non-drug-related origins of the $3,583 found on the night stand in the bedroom where he was arrested. He also supplied evidence to show that Mooney, not he, used the garage.

DISCUSSION

1. Purpose of Piperidine to Manufacture PCP

Appellant contends the evidence is insufficient to establish his participation in the manufacture of PCP, because the evidence only proved he operated a laboratory to "In assessing a claim of insufficiency of evidence, the reviewing court's task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence--that is, evidence that is reasonable, credible, and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.... The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.... The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. (People v. Stanley (1995) 10 Cal.4th 764, 792, 42 Cal.Rptr.2d 543, 897 P.2d 481.) Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[,] which must be convinced of the defendant's guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citations.] (Id. at pp. 792-793, 42 Cal.Rptr.2d 543, 897 P.2d 481.)" (People v. Rodriguez (1999) 20 Cal.4th 1, 11, 82 Cal.Rptr.2d 413, 971 P.2d 618, internal quotation marks omitted.)

produce piperidine, a precursor to PCP. We find the evidence ample.

The fallacy of appellant's position arises from his premise that he was not engaged in the manufacture of PCP within the meaning of section 11379.6, ² because (1) that "statute does not refer to precursor chemicals"; and (2) "piperidine, the alleged precursor chemical in this case, has some limited industrial use." The fatal flaw of his premise lies in his restrictive characterization of the chemicals and equipment in the garage laboratory as being connected exclusively with the manufacture of piperidine and his failure to take into account the other evidence presented. When viewed in context, instead of isolation, the fact that appellant was engaged in the manufacture of piperidine is but one link in the chain establishing appellant was engaged in the manufacture of PCP.

PCP is a controlled substance whose possession and sale is illegal. (See, e.g., §§ 11032, 11055, subd. (e)(3), 11377, subd. (a), 11378.5.) "Piperidine is a colorless liquid which has various industrial uses, but is also a 'precursor' for making PCP." (U.S. v. Washington (10th Cir.1988) 858 F.2d 590, 592.)

The United States "Congress criminalized piperidine possession ... because [it is one of the] intermediate steps of the manufacture of PCP." (United States v. Wilson (9th Cir.1986) 781 F.2d 1438, 1439; see 21 U.S.C. §§ 802(34)(J), 841(b)(1)(A)(vi), (b)(1)(B)(vi), 842(a)(11), 846.) In enacting section 11379.6, our state Legislature intended to "criminalize all acts which are part of the manufacturing process [of PCP,]" of which piperidine is an integral part. (People v. Heath (1998) 66 Cal.App.4th 697, 705, 78 Cal.Rptr.2d 240.)

Contrary to appellant's claim, construing section 11379.6 to encompass the manufacture of piperidine for the purpose of The totality of the circumstances in this case reveals appellant did not simply possess piperidine...