People v. Delgadillo

34 Cal. Rptr. 3d 507, 132 Cal. App. 4th 1570

Opinions

Opinion

McKINSTER, Acting P. J.

Defendant Jorge Delgadillo appeals from the judgment entered following jury convictions for manufacturing methamphetamine (count 1), possessing analogs with the intent to manufacture methamphetamine (count 2), and possessing methamphetamine for sale (count 3). (Health & Saf. Code, §§ 11379.6, subd. (a), 11383, subd. (c)(1), 11378.) The jury further found true the allegation in connection with count 1 that defendant was personally armed with a firearm. (Pen. Code, § 12022, subd. (c).)¹ As to count 3, the jury found true the allegation that defendant possessed over one kilogram of methamphetamine. (Health & Saf. Code, § 11370.4, subd. (b)(1).)

Defendant raises various claims of error in this appeal. In the published portion of this opinion, we address and reject defendant’s challenge to the sufficiency of the evidence in support of the jury’s true finding on the section 12022, subdivision (c) enhancement for being personally armed with a firearm. In the unpublished portion, we address defendant’s remaining claims of error, all of which we conclude are meritless. In a related habeas corpus petition, which we also address in the unpublished part of the opinion, defendant alleges he was denied effective assistance of counsel. We conclude defendant has failed to make the required prima facie showing. Therefore, we will affirm the judgment and deny the petition for writ of habeas corpus.

FACTS

During the morning of June 19, 2001, Detectives Parsons and Duarte of the San Bernardino County Sheriff’s Department conducted surveillance of defendant’s Los Cedros Avenue residence after receiving a tip of drug activity at that location. At 11:20 a.m. the detectives watched as Jorge Arias parked a green Pontiac in front of defendant’s house. Arias then went inside the house, and after about 30 minutes, drove away in defendant’s Chrysler Sebring. The deputies then observed defendant enter the Pontiac, remove a small package, and go back inside his house.

Detective Duarte saw defendant drive away from the house in a truck at around 5:00 p.m. Duarte followed and stopped defendant on the freeway and advised him that he had search warrants for the truck and defendant’s house. In attempting to search the track, Detective Duarte discovered that the cover over the track bed was locked. When he asked defendant for the key, defendant said he did not have one. Despite defendant’s claim, Duarte found the key in the glove box and unlocked the cover. In the track bed, under the cover, the detective found a new 22-liter glass flask and a new heating mantle. Duarte then returned with defendant to his house on Los Cedros.

The search of that house netted two handguns, which were found in the headboard of defendant’s bed, a shotgun found in the bedroom closet, approximately $40,000 in cash, two electronic scales, a small amount of methamphetamine, an Edison bill for the Los Cedros address in Arias’s name, and a collection agency bill in the name of defendant’s wife but with the mailing address of Arias’s house on Pacific Street. The deputies also recovered a security surveillance camera from the master bedroom. The camera had been focused on defendant’s driveway. From the trunk of the Pontiac that Arias had parked in front of defendant’s house, deputies recovered 129 bottles of 1,000-count pseudoephedrine pills.

Meanwhile, Officer Beebee had followed Arias as he drove in defendant’s Sebring from defendant’s house on Los Cedros Avenue to Arias’s house on Pacific Street. In a search of Arias’s house, deputies found, among other things, a press that is used to manufacture methamphetamine, two bottles of pseudoephedrine and four bags of methamphetamine, two of which were found in the freezer and were finished product. The other two were buried in the backyard under a doghouse and contained methamphetamine that was still wet. In the backyard deputies also found a new metal pot and propane burners, equipment commonly used in the manufacture of methamphetamine. Detective Beebee also found a telephone number that led them to Edgar Mercado’s residence on Norman Road.

Deputies arrived at the Norman Road residence at 11:30 p.m. on June 19th. In a search of that location, which Detective Hilfer videotaped, deputies found numerous items including a burner connected to a five-gallon propane pump with a metal basin, three five-gallon buckets, five or six cases of empty pseudoephedrine bottles, 11 empty one-gallon containers of denatured alcohol, plastic tubing, scales, a coffee grinder that contained white residue, and a cutting agent. The deputies also found “lab trash”—old bed sheets that had been used to strain the liquid that contains ephedrine from the binder. According to an expert witness, separating the ephedrine from the binder in pseudoephedrine pills is the first step in the process of manufacturing methamphetamine.

DISCUSSION

1., 2.

Footnotes

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3.

SUFFICIENCY OF THE EVIDENCE TO SUPPORT SECTION 12022, SUBDIVISION (C) ENHANCEMENT

Defendant contends there was insufficient evidence to support the section 12022, subdivision (c) enhancement alleging that he was personally armed with a firearm during the commission of the crime of manufacturing methamphetamine because he was not in possession of the guns when he was detained and there was no evidence he was ever armed while at the Norman Road methamphetamine lab. We disagree.

Resolution of this issue is controlled by People v. Bland (1995) 10 Cal.4th 991 [43 Cal.Rptr.2d 77, 898 P.2d 391] (Bland), which holds, in pertinent part, that the crime of drug possession is “a ‘continuing’ offense, one that extends through time. Thus, throughout the entire time the defendant asserts dominion and control over illegal drugs, the defendant is criminally liable for the drug possession. [Citations.] And when, at any time during the commission of the felony drug possession, the defendant can resort to a firearm to further that offense, the defendant satisfies the statutory language of being ‘armed with a firearm in the commission ... of a felony.’ [Citation.]” (Id. at p. 999.)

Bland involved the general enhancement under subdivision (a) of section 12022, which applies when a defendant is armed with a firearm during the commission of a felony, whereas this case involves the subdivision (c) enhancement that applies when the defendant is personally armed with a firearm during the commission of specified drug crimes, including the crime of manufacturing methamphetamine in violation of Health and Safety Code section 11379.6. (See § 12022, subd. (c).) The difference, however, is irrelevant. The issue here as in Bland is what constitutes being armed during the commission of a crime. The term “armed” has been interpreted identically under both subdivision (a) and subdivision (c) of section 12022. According to the Supreme Court “to be ‘armed’ for purposes of section 12022’s additional penalties, the defendant need only have a weapon available for use to further the commission of the underlying felony.” (Bland, supra, 10 Cal.4th at p. 999.)

In this case, application of the section 12022 armed enhancement depends not only on when but also on where the crime occurred, and therefore turns on what constitutes manufacturing methamphetamine. Is the crime limited to the specific event of cooking the drug or does it extend to the entire process by which the drug is manufactured? As Detective Parsons testified at trial, in sophisticated operations, the crime of manufacturing methamphetamine is a process that occurs in phases and extends to more than one location in order to reduce the potential for being detected and to protect the various components from being seized by the police or stolen by others. Consequently, in such an operation the cash is kept at one location, the lab is set up at another, and the finished product is stored at yet a third site. This case illustrates that process. According to the evidence presented at trial, raw material (129 bottles of 1,000-count pseudoephedrine pills) and items of lab equipment were kept in the trunks of vehicles parked in front of defendant’s house. The lab itself was at the Mercado residence. More equipment along with finished product were stored in the freezer and buried in the backyard at Arias’s home. The cash proceeds, along with firearms, were kept at defendant’s home, which brings the methamphetamine manufacturing operation full circle, thereby connecting not only the participants, but also the locations.

Like the crime of drug possession at issue in Bland, we are of the view that the crime of manufacturing methamphetamine is a continuing crime in that it extends through time and is not limited to a discrete event. Methamphetamine manufacturing in this case occurred both over time and at various locations. Because the firearms were in defendant’s bedroom along with a significant sum of money, and in close proximity to cars in which defendant and his colleagues stored lab equipment and raw material, those firearms were available to defendant to use offensively or defensively at any time during the manufacturing process. Thus, the evidence was sufficient to support the jury’s true finding on the section 12022, subdivision (c) armed enhancement.

4.-6.*

DISPOSITION

The judgment is affirmed. The petition for writ of habeas corpus is denied.

Richli, J., concurred.

1

Unless otherwise noted, all statutory references are to the Penal Code.

See footnote, ante, page 1570.

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See footnote, ante, page 1570.