Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Elisabeth Sichel, Judge. Affirmed. Affirmed with directions. Super. Ct. No. RIF143599
Susan S. Baugess, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ P. J.
Defendant and appellant Gregory Adam Dunn appeals his jury conviction for manufacturing methamphetamine. (Health & Saf. Code, § 11379.6, subd. (a).) He contends the trial court erred in denying his motion for judgment of acquittal under Penal Code section 1118.1, as well as his motion for a new trial pursuant to Penal Code section 1181, subdivision (6). Defendant also argues the trial court erred when it stayed enhancements for a prior conviction and a prior prison term. In addition, defendant complains that the court’s minute order of sentencing incorrectly includes a restitution fine of $100 under Penal Code section 1202.4, subdivision (b).
All further statutory references are to the Health and Safety Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
At trial, a narcotics detective testified he and another officer went to a residence about 2:00 p.m. on May 16, 2008, in response to a complaint that methamphetamine was being manufactured inside the home. Before arriving at the residence, the detective did some research and knew defendant lived there and had been arrested in 1999 for methamphetamine manufacturing. The officers approached defendant when they saw him leaving the home and told him they were there to investigate a complaint of methamphetamine manufacturing. Defendant suddenly became “upset and agitated” and attempted to run back inside the home. The officers ran after defendant, and there was a brief struggle until the officers were able to handcuff defendant. Defendant would not consent to a search of the home, so other officers were called to assist in detaining defendant and securing the property while the detective left the scene to obtain a search warrant.
When he returned with a search warrant, the detective presented it to defendant’s mother, who owns the residence. Defendant was also present in the home with police while his bedroom was searched. Police arrested defendant for methamphetamine manufacturing as a result of evidence located inside his bedroom. Items found in defendant’s room included damp red phosphorous inside a plastic baggie, a coffee pot stained with red phosphorous and methamphetamine, and a glass flask stained with hydriodic acid and methamphetamine. At trial, an expert testified the items found in defendant’s bedroom demonstrated defendant was manufacturing methamphetamine on a small scale for personal use.
On September 23, 2008, defendant brought a motion for judgment by acquittal pursuant to Penal Code section 1118.1 based on the evidence presented in the prosecution’s case-in-chief. He argued the items found in his room were not enough to prove he manufactured methamphetamine within the applicable statute of limitations. The court denied the motion.
Defendant testified at trial in his own defense. He told the jury he was not guilty and claimed the incriminating items found in his bedroom were from his involvement in methamphetamine manufacturing prior to his arrest in 1999.
On September 25, 2008, the jury found defendant guilty of manufacturing methamphetamine (Health & Saf. Code, § 11379.6, subd. (a), count 1) and resisting arrest (Pen. Code, § 148, subd. (a)(1), count 2). In a posttrial proceeding, defendant admitted he had a prior conviction for manufacturing methamphetamine from September 29, 1999, and served a prison term for the offense within the meaning of Penal Code section 667.5, subdivision (b).
On October 22, 2008, defendant filed a motion for a new trial. The court denied the motion on November 17, 2008. On November 21, 2008, the court sentenced defendant to the low term of three years on count 1 and a concurrent term of six months on count 2. The court then stayed the terms on all applicable enhancements.
DISCUSSION
I. Defendant’s Penal Code Section 1118.1 Motion for Judgment of Acquittal.
Defendant contends there is insufficient evidence to establish a violation of section 11379.6, subdivision (a), because some of the essential ingredients to manufacture methamphetamine were not found at the scene and the items found in his bedroom were “too preliminary to indicate with any certainty” that manufacturing was about to occur or had occurred within the applicable three-year statute of limitations. To support his contention the prosecution’s case lacked evidence of manufacturing within the statute of limitations, defendant cites the inability of the experts to determine the age of the samples located in his bedroom. In defendant’s view, it would have been just as reasonable for the jury to infer the items found in his bedroom were simply “leftovers” from his involvement in methamphetamine manufacturing prior to his arrest in 1999. We disagree.
“In ruling on a motion for judgment of acquittal pursuant to [Penal Code] section 1118.1, a trial court applies the same standard an appellate court applies in reviewing the sufficiency of the evidence to support a conviction.... [Citations.] ‘Where the [Penal Code] section 1118.1 motion is made at the close of the prosecution’s case-in-chief, the sufficiency of the evidence is tested as it stood at that point.’ [Citation.] [¶]... [¶] We review independently a trial court’s ruling under [Penal Code] section 1118.1 that the evidence is sufficient to support a conviction. [Citations.]” (People v. Cole (2004) 33 Cal.4th 1158, 1212-1213.) “In reviewing a challenge to the sufficiency of the evidence... we review the entire 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—from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. [Citations.]” (Id. at p. 1212.)
Health and Safety Code section 11379.6, subdivision (a), provides for punishment of three, five, or seven years in state prison for “every person who manufactures, compounds, converts, produces, derives, processes, or prepares, either directly or indirectly by chemical extraction or independently by means of chemical synthesis, any controlled substance” including methamphetamine. “[P]rosecution for an offense punishable by imprisonment in the state prison shall be commenced within three years after commission of the offense.” (Pen. Code, § 801.)
The “all-encompassing language” in section 11379.6, subdivision (a), indicates the Legislature “intended to criminalize all acts which are part of the manufacturing process, whether or not those acts directly result in completion of the final product.” (People v. Heath (1998) 66 Cal.App.4th 697, 705.) To be guilty of a violation of section 11379.6, it is not necessary for the defendant to be actively engaged in or even have the equipment essential to complete the final product. (Heath, at p. 703.) In other words, “the conduct proscribed by section 11379.6 encompasses the initial and intermediate steps carried out to manufacture, produce or process” methamphetamine. (People v. Jackson (1990) 218 Cal.App.3d 1493, 1504.)
In People v. Lancellotti (1993) 19 Cal.App.4th 809, for example, the defendant argued there was insufficient evidence to prove he violated section 11379.6, because items found in his storage locker only constituted a “ ‘boxed, non-functioning laboratory’ ” and lacked a reducing agent needed to transform the intermediate product to methamphetamine. (Lancellotti, at p. 811.) The appellate court rejected the defendant’s argument, because the locker “ ‘contained virtually all of the equipment needed to produce methamphetamine,’ ” along with two catalysts used in the manufacturing process, and an immediate precursor of methamphetamine. (Id. at p. 812.) In addition, an expert testified the contents of the locker were being used to manufacture methamphetamine, even though she could not say manufacturing was actually taking place on the day the items were discovered by authorities. (Ibid.) Expert testimony also indicated it was common for manufacturers to move the lab during the multistep manufacturing process in order to avoid detection. (Id. at pp. 811-812.) As a result, there was substantial evidence to support the jury’s guilty verdict. (Id. at p. 813.)
Our review of the record in this case revealed more than enough evidence from which the jury could have reasonably inferred defendant was either in the middle of, or had recently finished, manufacturing a small quantity of methamphetamine for personal use. The responding narcotics detective told the jury defendant had previously been arrested for methamphetamine manufacturing in 1999. An expert later testified he was involved in the 1999 investigation. He was able to describe the evidence collected in that case and said it showed defendant had previously manufactured methamphetamine on a significantly larger scale. This evidence was sufficient to show defendant had the requisite knowledge. In addition, two glass pipes commonly used to smoke methamphetamine, which were found in defendant’s desk, showed defendant was a user and had a motive to manufacture methamphetamine for his own personal use.
An expert testified the items found in defendant’s bedroom revealed the presence of all of the ingredients necessary for the beginning and intermediate steps of processing. He further testified it is unlikely an experienced methamphetamine manufacturer, such as defendant, would keep everything necessary to complete the process in one place; he would be trying to avoid detection and prosecution. According to the expert, methamphetamine can be manufactured on a small scale for personal use with equipment and ingredients obtained over the counter in stores such as Home Depot. Small scale manufacturers typically use “the red phosphorous method,” which involves several different steps and processes. Red phosphorous is used to make the tips of matches, so methamphetamine manufacturers sometimes extract the red phosphorous by cutting off the tops of matches and soaking them in water and filtering the mixture after it separates.
Here, the damp red substance found in a clear plastic baggie in defendant’s room along with coffee filters was determined to be red phosphorous. The damp red phosphorous in the baggie did not contain any traces of methamphetamine in a stage of processing. Because it was damp and was found with other evidence indicative of methamphetamine manufacturing, the jury could reasonably infer this red phosphorous had recently been extracted by defendant from matches for use in the manufacturing process. Under these circumstances, the red phosphorous in a damp state negates defendant’s contention there was no evidence of manufacturing within the three-year statute of limitations.
Using the red phosphorous method, small scale manufacturers generally combine pseudoephedrine with red phosphorous, iodine crystals, and water and cook it by applying a heat source. For use in this process, small scale manufacturers often obtain pseudoephedrine by extracting it from over-the-counter cold capsules. A coffee pot is one of the means commonly used to apply heat in a small scale methamphetamine manufacturing operation. The cooking process yields methamphetamine suspended in solution, but the solution is not in a useable form, so additional chemical processes are used to transform it.
In this case, the hard red substance found on a small coffee pot in defendant’s room was determined to be red phosphorous, combined with methamphetamine in a stage of processing. Because methamphetamine was present, an expert was able to determine the coffee pot had been used as a vessel to cook a mixture of red phosphorous, iodine crystals, and ephedrine to manufacture methamphetamine.
An amber-colored stain on a glass flask found in defendant’s room was also determined to be consistent with methamphetamine manufacturing. The stain contained hydriodic acid and methamphetamine. Hydriodic acid is produced by a chemical reaction when iodine, red phosphorous, and water are combined. Because methamphetamine was present in the stain, the expert was able to determine that the precursor chemical, pseudoephedrine or ephedrine, was also present at a prior stage of manufacturing. As a result, the expert testified the glass flask found in defendant’s room with the amber stain was used to manufacture methamphetamine. According to the expert, there is no legitimate explanation for defendant to possess this combination of items in his bedroom.
Police also confiscated pH test strips from defendant’s room. These items are significant because the expert testified they are used in one of the final stages of methamphetamine manufacturing. This is because the methamphetamine present after the cooking process is too acidic for consumption and must be mixed with other chemicals to neutralize it. Small scale methamphetamine manufacturers commonly purchase pH test strips at pool supply and other stores, such as Home Depot, to test acidity and to determine when the methamphetamine is neutral enough to be consumed.
When viewed together, the evidence presented by the People in their case-in-chief was sufficient for the jury to reasonably infer defendant was recently engaged in manufacturing methamphetamine in violation of Health and Safety Code section 11379.6. Therefore, the trial court properly denied defendant’s Penal Code section 1118.1 motion for judgment of acquittal.
II. Defendant’s Penal Code Section 1181 Motion for a New Trial.
Defendant further contends the trial court erroneously denied his motion for a new trial. This argument is essentially a rehashing of the same arguments he raised to contend the trial court erroneously denied his prior motion for judgment of acquittal. Defendant argues the damp red phosphorus and the other items found in his room were not enough to prove he manufactured methamphetamine within the statute of limitations. To support his argument, defendant cites the lack of methamphetamine found in the damp red phosphorous to show it had recently been used in the manufacturing process and the inability of the experts to affirmatively establish the age of the stains found in the coffee pot and glass flask.
Penal Code section 1181, subdivision (6), allows a trial court to grant a new trial “[w]hen the verdict or finding is contrary to law or evidence....” “In reviewing a motion for a new trial, the trial court must weigh the evidence independently. [Citation.] It is, however, guided by a presumption in favor of the correctness of the verdict and proceedings supporting it. [Citation.] The trial court ‘should [not] disregard the verdict... but instead... should consider the proper weight to be accorded to the evidence and then decide whether or not, in its opinion, there is sufficient credible evidence to support the verdict.’ [Citation.] [¶] A trial court has broad discretion in ruling on a motion for a new trial, and there is a strong presumption that it properly exercised that discretion. ‘ “The determination of a motion for a new trial rests so completely within the court’s discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.” ’ [Citation.]” (People v. Davis (1995) 10 Cal.4th 463, 523 -524.)
In our view, defendant’s motion for a new trial was properly denied for the same reasons we concluded the denial of his motion for judgment of acquittal was appropriate. We will not repeat those reasons here. In addition, when defendant presented his motion for a new trial, the trial court had the benefit of defendant’s own testimony and the People’s rebuttal thereto.
When defendant testified in his own defense, he essentially attempted to show he was not guilty, because the incriminating items found in his closet were from his involvement in methamphetamine manufacturing prior to his arrest in 1999. He said some of his belongings were moved to sheds at his mother’s home while he was incarcerated in connection with his prior conviction for methamphetamine manufacturing in 1999. He moved in with his mother after he was discharged from parole on New Year’s Eve in 2005, so he had been living at his mother’s home for almost two and one-half years when he was arrested in this case on May 16, 2008. He claimed he went to the sheds sometime in April 2008 while he was rebuilding some steps to get a tool and found a box with a bunch of old things that could be used to manufacture methamphetamine, including the small coffee pot stained with red phosphorous and the two glass flasks. He claimed the red phosphorous had been dried in the coffee pot for nine years. He poured some water into the pot and swirled it around in an attempt to remove the stain. Some of the stain came off into the water, so he poured the liquid into coffee filters, squeezed out the excess water, put the filters into a plastic baggie, and put the baggie into his desk drawer. He then had to leave the house, so he put the other items in his closet so they would not break. Police came to his house about a week later, searched his room, and arrested him.
In rebuttal, the expert testified it was not possible for the damp red phosphorous in the plastic baggie to have come from the stain on the coffee pot as defendant claimed; the stain on the coffee pot had methamphetamine in it, and the red phosphorous in the baggie did not. He also said the dampness and the bright color of the red phosphorous indicated it had recently been extracted from matches for use in making methamphetamine. In addition, the expert testified it is common for repeat offenders such as defendant to claim evidence implicating them in a new case was simply something the police missed during the investigation in the prior case. Thus, the expert effectively discredited all of defendant’s testimony and, in the process, bolstered the prosecution’s case-in-chief.
In denying defendant’s motion for a new trial, the trial court also cited testimony indicating defendant “fled from the police.” As noted above, the officers testified that defendant became “upset and agitated” when they told him they were there to investigate a complaint of methamphetamine manufacturing. Defendant then attempted to run back into the house but was stopped and arrested by police after a brief struggle. While it is not in itself sufficient to establish guilt, a jury may consider a person’s attempt to flee when the circumstances suggest the movement was motivated by a consciousness of guilt. (See, e.g., People v. Avila (2009) 46 Cal.4th 680, 710.) Because the circumstances suggested defendant may have attempted to flee from the officers because he wanted to destroy evidence inside the home, defendant’s flight was one more piece of evidence from which a jury could infer guilt beyond a reasonable doubt.
In sum, the verdict in this case is based on solid, credible evidence from which a jury could easily and reasonably find defendant guilty beyond a reasonable doubt of recently manufacturing methamphetamine in violation of section 11379.6. We therefore cannot conclude the trial court abused its discretion in denying defendant’s motion for a new trial.
III. Stay of Enhancements.
Health and Safety Code section 11370.2, subdivision (b), provides for a consecutive, three-year enhancement if the defendant has a prior conviction for methamphetamine manufacturing under Health and Safety Code section 11379.6. Although defendant’s prior conviction falls within the meaning of Health and Safety Code section 11370.2, subdivision (b), the trial court imposed but stayed this enhancement. Citing Penal Code section 654, the court also imposed but stayed the one-year prior prison term enhancement provided in Penal Code section 667.5. Defendant contends these enhancements should have been stricken rather than stayed. As a result, he asks us to strike these enhancements and have his abstract of judgment amended. He believes a remand for resentencing is unnecessary because the record indicates the trial court’s intent was to impose a minimal prison term, and the prosecutor did not object to the court’s sentencing choices.
The People agree that the trial court did not have authority to stay the enhancements and should have either imposed or stricken them. However, the People request a remand because the trial court mistakenly cited Penal Code section 654 to justify the stay of the prior prison term enhancement.
As the parties agree, sentencing enhancements must either be stricken or imposed. (People v. Haykel (2002) 96 Cal.App.4th 146, 151.) A trial court is required to provide a statement of reasons for using its discretion to strike a mandatory enhancement. (Pen. Code, § 1385, subd. (a); People v. Cattaneo (1990) 217 Cal.App.3d 1577, 1589.)
As the People contend, a prior drug-related conviction resulting in a prison term can serve as the basis for an enhancement under section Health and Safety Code section 11370.2 and an enhancement under Penal Code section 667.5, subdivision (b). (People v. Gokey (1998) 62 Cal.App.4th 932, 937.) In addition, Penal Code section 654 does not preclude multiple use of prior convictions to impose status enhancements, such as those at issue here. (People v. Coronado (1995) 12 Cal.4th 145, 158-159.)
Based on the foregoing, we agree with the parties that the enhancements should have either been imposed or stricken and not stayed. We agree with defendant that the record indicates the trial court did not wish to impose any additional time for the enhancements. However, it is unclear what the trial court would have done had it realized it could not stay the enhancements pursuant to Penal Code section 654. Therefore, for clarity of the record and in an abundance of caution, we will remand the matter for resentencing on the enhancements.
IV. Fines.
Defendant claims there is a clerical error in the court’s minutes as to the amount of restitution imposed. The transcript of defendant’s sentencing hearing shows the court imposed a “[r]estitution fine of $200,” but the court’s minutes show two separate restitution fines pursuant to Penal Code section 1202.4, subdivision (b)—the first one is for $200.00, and the second one is for $100.00. The People agree that the reference to the $100 restitution fine in the court’s minutes is a clerical error. We agree with the parties that this is an error which should be corrected.
Penal Code section 1202.4, subdivision (b), provides for a restitution fine “[i]n every case where a person is convicted of a crime. [¶] (1) The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense, but shall not be less than two hundred dollars ($200)....” The court’s oral pronouncement of sentence prevails over the minutes and the abstract of judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) Clerical errors can and should be corrected at any time. (Id. at pp. 185, 186-187.) Since the case will be remanded for resentencing on the enhancements, we will direct the trial court to correct its minutes by striking the $100 restitution fine.
The People also argue that the trial court made two additional errors with respect to fines. First, the People cite another discrepancy between the court’s oral record and the minutes. The transcript of the sentencing hearing and the abstract of judgment show the court imposed a parole revocation fine of $200 under Penal Code section 1202.45. This amount is not shown on the court’s minutes. Since this is also a clerical error, we will direct the trial court to correct its minutes on remand.
Second, the People argue the trial court erred by failing to impose a mandatory fine for defendant’s methamphetamine manufacturing offense. In this regard, section 11379.6, subdivision (a), provides that methamphetamine manufacturers “shall be punished by imprisonment in the state prison... and by a finenot exceeding fifty thousand dollars ($50,000).” [Italics added.] Citing People v. Talibdeen (2002) 27 Cal.4th 1151, 1153-1154 (Talibdeen), the People contend this issue can be raised for the first time on appeal because the failure to impose a mandatory fine renders the sentence unauthorized. Citing People v. Tillman (2000) 22 Cal.4th 300, defendant argues the People waived this argument by not raising it at the time of sentencing in the trial court. We agree with defendant that the issue was waived.
All “claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices” are not reviewable if raised for the first time on appeal. (People v. Scott (1994) 9 Cal.4th 331, 353.) A narrow exception applies to pure questions of law or “ ‘obvious legal errors at sentencing that are correctable without referring to factual findings in the record or remanding for further findings.’ [Citation.]” (Talibdeen, supra, 27 Cal.4th at p. 1153.)
The word “shall” in section 11379.6 indicates the fine is a required component of the punishment for the offense. On the other hand, the required fine is one that may not exceed $50,000. As a result, the sentencing court has broad discretion to determine the appropriate amount of the fine up to $50,000. Therefore, the claimed error involves a discretionary sentencing choice that is not reviewable for the first time on appeal. At defendant’s sentencing hearing, the prosecutor acquiesced in and did not object to the sentence imposed. The issue is therefore waived.
DISPOSITION
The matter is remanded to the superior court for resentencing on the enhancements. The superior court is directed to correct its minute order to strike the $100 restitution fine and to show the imposition of a parole revocation fine in the sum of $200 under Penal Code section 1202.45. In all other respects, the judgment is affirmed.
We concur: GAUT J., KING J.