People v. Verduzco

• Court: California Court of Appeals
• Writing for the Court: JOHNSON
• Citation: People v. Verduzco, 210 Cal.App.4th 1406, 149 Cal.Rptr.3d 200 (Cal. App. 2012)
• Decision Date: 08 November 2012
• Docket Number: No. B227825.,B227825.
• Parties: The PEOPLE, Plaintiff and Respondent, v. Ruben VERDUZCO, Defendant and Appellant.

210 Cal.App.4th 1406

149 Cal.Rptr.3d 200

2012 Daily Journal D.A.R. 15,361

The PEOPLE, Plaintiff and Respondent,

v.Ruben VERDUZCO, Defendant and Appellant.

No. B227825.

Court of Appeal, Second District, Division 1, California.

Nov. 8, 2012.

See 2 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Crimes Against Public Peace and Welfare, § 134.

Karli Sager, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Mark S. Kohm and J. Michael Lehmann, Deputy Attorneys General, for Plaintiff and Respondent.

JOHNSON, J.

Defendant Ruben Verduzco was convicted of one count of possession for sale of a controlled substance (methamphetamine) in violation of Health and Safety Code section 11378 (count 4), and one count of possession of an essential chemical sufficient to manufacture hydriodic acid or a reducing agent with intent to manufacture methamphetamine in violation of Health and Safety Code, section 11383.5, subdivision (e) (count 5). ¹ He contends (1) insufficient evidence supports his conviction for possession of an essential chemical “sufficient to manufacture hydriodic acid or a reducing agent with intent to manufacture methamphetamine;” because he only possessed one of the chemicals necessary to make a reducing agent; (2) the court erred in instructing the jury by failing to define the meaning of a “reducing agent”; and (3) the court erred in imposing attorney fees without notice and a hearing pursuant to Penal Code section 987.8. We conclude that the statutory language requires possession of all constituents of a reducing agent, and reverse defendant's conviction on count 5.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

1. The Shoe Store and Search of Defendant's House

Police in Pacoima received information that a shoe store on Foothill Boulevard with a “3 for $20” sign was selling narcotics out of the store. The police put the store under surveillance.

On February 2, 2009, police saw Carlos Garcia ride to the store on a bike. After a short time in the store speaking with several men, Garcia came out of the store and retrieved something from the trunk of a parked Honda Accord, and returned to the shoe store. Shortly after that, Garcia left the store and rode off on his bicycle carrying a large white box.

Police stopped Garcia, and searched his person, a backpack he was carrying, and the box. Garcia's backpack contained red phosphorus; the box contained a glass flask with red phosphorus residue in the bottom.

A police search of the Honda Accord, the men in the shoe store, and the shoe store yielded 21.78 grams of cocaine and 33.61 grams of methamphetamine packaged in small baggies, a scale of the type commonly used for narcotics sales, empty baggies, a pay-and-owe sheet, and currency.

Police approached Garcia's house on Pinney Street, and observed defendant and a woman seated on a bed in the master bedroom. Police knocked on the front door, and defendant, wearing a T-shirt and boxer shorts, answered the door. With defendant's permission, police searched the house and found numerous items used to manufacture methamphetamine:

(1) A plastic bag containing red phosphorus; ²

(2) A flashlight containing white oblong Tylenol pills; ³

(3) A can of acetone;

(4) A piece of crystal-like material that can be used to “cut” methamphetamine;

(5) A plastic bag containing .15 grams of methamphetamine, found inside the pocket of defendant's pants hanging behind the door in defendant's bedroom.

(6) $2,353 in currency, found inside defendant's pants;

(7) 43 clear plastic baggies containing a total of 16.11 grams of methamphetamine found inside the pocket of a shirt hanging behind the door in defendant's bedroom;

(8) A digital scale; and

(9) A clear glass meth pipe found in defendant's bedroom between the wall and a bookcase.

2. The Process of Manufacturing Methamphetamine

Detective Frank Lyga testified that the manufacture of methamphetamine requires five steps. The first four produce the substance; the fifth step converts it to a smokable (crystal) form. Step one involves ephedrine extraction from cold tablets containing pseudoephedrine. Ephedrine is difficult to get, so methamphetamine labs purchase cold medications such as Sudafed. The pseudoephedrine in cold tablets is not water soluble. Denatured alcohol, acetone, and other solvents are used to break down the pseudoephedrine into ephedrine. The pill dissolves in the solvent, and the filler in the pill forms a solid at the bottom of the container. The liquid is strained off and after the solvent evaporates, pseudoephedrine remains.

Step two converts the pseudoephedrine into methamphetamine by knocking off an oxygen molecule to create D-methamphetamine. This step requires an acid solution of 57 percent or higher; the preferred acid is hydriodic acid, which is heavily regulated and controlled. As a result, meth labs mix red phosphorus with iodine to produce an acid solution of 57 percent or greater. This solution requires heating and simmering for 12 to 72 hours.

The third step separates the waste product from the liquid solution and reduces the acid level. Soyhydroxide, ice, and caustic soda is used. The ice is necessary because this step generates its own heat. An organic solvent (Freon, acetone, or denatured alcohol) is used to extract the methamphetamine molecules, which are suspended in the solvent.

In step four, the methamphetamine is “salted out,” converted from a liquid to a solid. This uses hydrogen chloride gas; such gas can be manufactured from battery acid, sulphuric acid, and rock salt. The gas is infused in the solvent mixture and the methamphetamine forms a solid. This solid is dried off.

The last step converts the methamphetamine to a crystal form by dissolving it in a solvent, such as acetone, and heating it until the solvent evaporates.

3. Expert Testimony Concerning the Items Found in Defendant's Home

In Detective Lyga's opinion, the red phosphorus, which was found in defendant's kitchen, was possessed for the purpose of manufacturing methamphetamine. However, not all of the other ingredients necessary for manufacturing methamphetamine were found at defendant's house. Police did not find iodine, a cooking vessel, or hydrogen chloride gas. Nonetheless, Detective Lyra believed the red phosphorus defendant possessed was for the purpose of manufacturing methamphetamine because except for manufacturing or a chemistry laboratory, the only use for red phosphorus is the making of methamphetamine.⁴ Further, it is common for the components of methamphetamine to be kept at different locations to evade law enforcement and competitors.

Detective Lyra believed that defendant was the organizer and financer of the operation based on defendant's use of the master bedroom and possession of the currency, and defendant delegated other duties to Garcia.

4. Defense Case

Defendant denied possessing the ingredients of methamphetamine or being involved in its manufacture or sale, and denied he knew how to manufacture methamphetamine.

Defendant did not know about the red phosphorus or acetone found in the house, and denied he owned any of the narcotics found. He claimed that he and Garcia took turns using the larger bedroom. The currency officers found was money that he received for the sale of a lathe and a tow truck.

5. Rebuttal

While police waited for defendant to answer the front door, they heard the sound of glass striking something. Defendant answered the door in his underwear, and the only clothing found in the house were the shirt and pants in the master bedroom.

DISCUSSION

I. Sufficiency Of Evidence Of Possession Of A Reducing Agent

Defendant contends that because he did not possess iodine, an essential component (when combined with red phosphorus) of the 57 percent acid solution necessary to constitute a reducing agent within the meaning of section 11383.5, subdivision (e), his conviction that count must be reversed. Respondent argues that the legislative history establishes that the Legislature was concerned with closing the “loophole” that existed in prior law that permitted meth labs to use ingredients other than hydriodic acid to make methamphetamine: if we adopt an interpretation that requires both constituents, we will thwart that purpose.

Section 11383.5, subdivision (e) provides in relevant part that “[a]ny person who possesses essential chemicals sufficient to manufacture hydriodic acid or a reducing agent, with the intent to manufacture methamphetamine, is guilty of a felony....” (Italics added.) Defendant argues the use of the word “sufficient” in the phrase “essential chemicals sufficient to manufacture hydriodic acid or a reducing agent” means that to violate the statute, he needed to have both iodine and red phosphorus, the “essential” chemicals “sufficient” to manufacture a reducing agent for the purpose of manufacturing methamphetamine. The People contend that “sufficient” in the statute does not require that defendant possess both chemicals, but that he possess any chemical used in the manufacture of a reducing agent for the purposes of producing methamphetamine in a quantity sufficient for such manufacture.

A. Principles of Statutory Interpretation

The interpretation of a statute is a question of law. ( Reno v. Baird (1998) 18 Cal.4th 640, 660, 76 Cal.Rptr.2d 499, 957 P.2d 1333.) Our overriding goal is to effectuate the intent of the Legislature. ( Coalition of Concerned Communities, Inc. v. City of Los Angeles (2004) 34 Cal.4th 733, 737, 21 Cal.Rptr.3d 676, 101 P.3d 563.) Thus, the first step in statutory construction is to examine the statutory language and give it a plain and common sense meaning. We do not examine the language in isolation, but consider it in the context of the statutory framework as a whole in order to determine the purpose of the statute and harmonize various parts of the enactment...