P. v. Morrow 4/30/03 CA1/3

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: A097514

Case Date: 07/10/2003

Preview:Filed 4/30/03 P. v. Morrow CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE THE PEOPLE, Plaintiff and Respondent, v. JACKIE LYNN MORROW, Defendant and Appellant. Defendant appeals from the judgment following his conviction of manufacturing methamphetamine and possession of hydriodic acid, asserting two claims of instructional error. We remand to correct sentencing errors raised by the People, and otherwise affirm. FACTUAL AND PROCEDURAL BACKGROUND I. Prosecution Case The police searched defendant's home on January 11, 2000, at 10:00 a.m. Although defendant was not present, some of his family members were. Antonio Iribarren arrived during the search and told officers he was living there. Officers searched Iribarren and found methamphetamine, a pocket scale and recipe for making ephedrine. Ephedrine is used to manufacture methamphetamine. Officers discovered items related to the manufacture of methamphetamine scattered throughout defendant's backyard and on the side of the house. The officers found more manufacturing items in a storage shed. Next to the shed was a padlocked structure resembling a chicken coop. As they approached the coop, the officers smelled (Contra Costa County Super. Ct. No. 0106336) A097514

the chemical odor associated with producing methamphetamine. Once the door was opened, the smell was very strong. Officers entered the coop and discovered a drug lab. From the chicken coop and attached shed, officers recovered 58 items related to making methamphetamine. The principal detective involved in the search opined that the laboratory had been in operation for at least four months. In the chicken coop officers recovered a jar with the name "Jack M" on it. Defendant's fingerprints were found on a can of toluol, a solvent used to make methamphetamine, and on two flasks containing chemicals used to produce that drug. II. Defense Case Defendant had previously served a prison term for manufacturing methamphetamine. Upon his release in 1998, he returned to live with his wife and two daughters. Iribarren had moved into the house in defendant's absence. Defendant's wife, daughter Kelly and Iribarren used methampthemine. Defendant used the drug for a period in 1999, but quit. Because defendant and his wife were having marital problems he occasionally stayed with his cousin. On January 2, 2000, defendant moved out of the family home permanently and went to the coop to tell Iribarren that he was moving. The coop had originally been built as a playhouse, and defendant believed Iribarren had been using it to store computers and electronics. Defendant claimed he was last inside in midNovember 1999, helping Iribarren fix a computer. He did not see any drug items at that time. He never saw any laboratory items in the back yard. Iribarren normally kept the coop locked, but on January 2 the door was open. Iribarren was not there. After defendant found the lab, he angrily dumped liquids in a large bucket and threw the rest of the items in a garbage bag, handling the items on which his fingerprints were found. Defendant claimed police found many more items during their search than he had seen on January 2. As defendant was leaving, Iribarren returned. Defendant told him to clean up the coop and get out. Defendant's daughter Kelly testified that defendant went into the shed "once in awhile" in 1999 to help Iribarren with his computers. Kelly saw defendant go into the shed around Christmas, 1999. On January 11, Kelly phoned defendant at work and told

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him the police found a drug lab. Defendant left work and never returned. He stayed in the mountains for awhile, then moved to Texas where he was arrested on a warrant. Defendant's cousin owned a house and rented an in-law unit to Kathy Kilps. Kilps frequently saw defendant at the house in January 2000. Defendant told her he was staying there because he had separated from his wife. Defendant's supervisor testified that defendant was at work on January 11, 2000, from 8:00 a.m. to 12 p.m. III. Procedure Defendant and Iribarren were charged jointly, but tried separately. The jury convicted defendant of manufacturing methamphetamine and possessing hydriodic acid with the intent to manufacture the drug. The jury also found true an enhancement for manufacturing over ten gallons. The court found defendant had served a prison term and had suffered two prior convictions for offenses related to controlled substances. On count one, manufacturing methamphetamine, the court imposed the mid-term of five years and added five years for the quantity enhancement, for a total term of ten years in state prison. On count two, possession of hydriodic acid, the court imposed the mid-term of four years and added three years for defendant's controlled substance prior conviction. The court stayed imposition of sentence on count one and struck the remaining enhancements. DISCUSSION I. The Court Did Not Err in Giving CALJIC No. 4.71 The information alleged that the offenses occurred "[o]n or about January 11, 2000." After defendant's closing argument, the court read CALJIC No. 4.71 at the prosecutor's request.1 Defendant now contends the court erred because he presented an alibi defense. CALJIC No. 4.71 provides: "When, as in this case, it is alleged that the crime charged was committed `on or about' a certain date, if you find that the crime was
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During deliberations the jurors asked the court for "[c]larification on the term `on or about'." The court sent a note to the jurors asking, "What do you want clarified regarding `on or about'." Apparently, the jury did not respond to the court's note.

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committed, it is not necessary that the proof show that it was committed on that precise date; it is sufficient if the proof shows that the crime was committed on or about that date." The comment to CALJIC No. 4.71 provides in part: "This instruction is improper if the People's evidence fixes the commission of the offense at a particular time to the exclusion of any other time and the defendant has presented evidence of an alibi as to that particular time." (Com. to CALJIC No. 4.71 (6th ed. 1996), p. 225.) The California Supreme Court expressly approved the instruction's cautionary comment in People v. Jones (1973) 9 Cal.3d 546, stating that it "accurately recognizes the rule as developed by the courts." (Jones, supra, at p. 557, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1056-1059.) Defendant relies on Jones, supra, 9 Cal.3d at page 546, in which a police officer testified that he purchased marijuana from the defendant on March 24. Because the defendant presented evidence that he was in Texas on that date, the Supreme Court concluded that it was error to instruct the jury with CALJIC No. 4.71. Defendant also relies on People v. Barney (1983) 143 Cal.App.3d 490, 497, in which the defendant was charged with committing a lewd act upon his granddaughter "on or about February 8." The victim's testimony limited the act to the weekend of February 7 and 8. The defendant presented evidence that relatives were with him on those dates, suggesting a lack of opportunity to commit the offense. The Barney court determined that it was error for the trial court to give CALJIC No. 4.71 because there was "a substantial possibility the jury was misled concerning the necessity to agree defendant molested the child during the weekend of February 7 and 8." (Id. at p. 498.) Defendant argues that, just as in Barney, there was a "substantial possibility" the jury was misled here. He contends the testimony of his alibi witnesses demonstrates that he could not have been manufacturing methamphetamine "on or about" January 11. Defendant points to his supervisor's testimony that defendant was at work during the police search and to other testimony establishing that defendant no longer resided at the house after January 2, 2000. Defendant argues that giving CALJIC No. 4.71 deflected 4

the jury's attention from the crucial time period of "on or about January 11," as provided in the information. As the comment to CALJIC No. 4.71 makes clear, it is the prosecution's evidence, not the date stated in the information, that determines the relevant time period for the jury's consideration. In People v. Jennings (1991) 53 Cal.3d 334, 358-359, the Supreme Court emphasized this distinction, referring to Barney, supra, 143 Cal.App.3d at page 497: "As is clear, the Barney court did not hold that the information must plead the exact date of the offense. Instead, it merely held that when the prosecution's proof establishes the offense occurred on a particular day to the exclusion of other dates, and when the defense is alibi . . . , it is improper to give the jury an instruction using the `on or about' language." (Italics in original.) Unlike Jones, supra, 9 Cal.3d 546 and Barney, supra, 143 Cal.App.3d 490, the evidence here did not establish that the offense occurred on a particular date to the exclusion of all other dates. Thus, it was not error for the court to instruct with CALJIC No. 4.71. While the information charged that the offenses occurred "on or about January 11, 2000," the prosecution's evidence established that the drug laboratory had been operating for at least four months before its discovery. Manufacturing methamphetamine, unlike a drug sale or act of sexual misconduct, is an ongoing process rather than a discrete act occurring on a particular date. (People v. Lancellotti (1993) 19 Cal.App.4th 809, 813.) In finding defendant guilty, the jury obviously rejected defendant's claim that he knew nothing of the methamphetamine laboratory until January 2. The jury reasonably could have found that defendant was involved in the manufacturing of methamphetamine, even if it believed defendant attempted to dismantle the lab on January 2 and thereafter left the premises. Given the nature of the offense and the prosecutor's evidence, an alibi accounting for defendant's whereabouts between January 2 and January 11, even if accepted by the jury, did not preclude his conviction. The giving of CALJIC No. 4.71 was not error.

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II. The Statute and Instruction Do Not Create A Mandatory Presumption Hydriodic acid is a key component in the manufacturing of methamphetamine. Defendant was charged with possessing hydriodic acid with the intent to manufacture methamphetamine in violation of Health and Safety Code2 section 11383, subdivision (c)(2). The statute provides: "Any person who, with intent to manufacture methamphetamine . . . , possesses hydriodic acid . . . is guilty of a felony and shall be punished by imprisonment in the state prison for two, four, or six years." Subdivision (f) provides in pertinent part: "[P]ossession of essential chemicals sufficient to manufacture hydriodic acid, with intent to manufacture methamphetamine, shall be deemed to be possession of hydriodic acid." Incorporating the language of section 11383, subdivision (f), the court instructed the jury as follows: "Every person who possesses hydriodic acid or any product containing hydriodic acid with the intent to manufacture methamphetamine is guilty of a violation of Health and Safety Code section 11383 (c)(2), a crime. [

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