Opinion
E067743
07-20-2018
THE PEOPLE, Plaintiff and Respondent, v. ALVARO LUIS REYES THOMPSON, Defendant and Appellant.
Kristen Owen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, and Eric A. Swenson, Allison Acosta, and Genevieve Herbert, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. BAF1500869) OPINION APPEAL from the Superior Court of Riverside County. W. Charles Morgan, Judge. (Retired Judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Kristen Owen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, and Eric A. Swenson, Allison Acosta, and Genevieve Herbert, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
A jury convicted defendant and appellant, Alvaro Luis Reyes Thompson, of manufacturing a controlled substance (concentrated cannabis) and misdemeanor child endangerment. (Health & Saf. Code, § 11379.6, subd. (a); Pen. Code, § 273a, subd. (b).) The court sentenced him to a total term of six years, consisting of two years in county jail and four years of mandatory supervision. (Pen. Code, § 1170, subd. (h)(5).) On the misdemeanor child endangerment count, the court ordered him to serve his one-year sentence concurrently with the rest of his sentence.
Defendant contends the court prejudicially erred by permitting the prosecution's expert to opine on his guilt and failing to instruct the jury on the lesser included offense of attempted manufacturing of a controlled substance. He also asserts the court should have stayed his sentence on the child endangerment count under Penal Code section 654. We conclude the prosecution's expert improperly opined on defendant's guilt, but the error was harmless. We reject the other two contentions of error and affirm the judgment.
II. FACTS AND PROCEDURE
The prosecution's main percipient witness was Corporal Gustavo Castaneda of the Riverside County Sheriff's Department. Corporal Castaneda was trained to recognize concentrated cannabis. It is a dark waxy substance that can be amber to dark brown, depending on the potency and chemicals used to make it. "[H]oney oil" is a common street name for it. Butane fuel is used to extract honey oil from marijuana. Butane may also be used for lawful purposes, and one could purchase it at stores like Home Depot or Lowe's.
Defendant and his fiancé lived in a two-bedroom apartment with their two children, ages one and four, and a roommate. Corporal Castaneda went to their apartment to conduct a home visit for a probationer, although he later learned from defendant that the probationer no longer lived there. Defendant's fiancé let Corporal Castaneda into the apartment.
When Corporal Castaneda entered, he immediately noticed a strong smell of urine or ammonia. A litter box filled with cat waste was in the hallway. The family had one adult cat and four or five kittens. Clothes and dirty diapers were strewn on the floor and numerous cockroaches were running around the kitchen. There was a rotten banana peel on the floor in the bathroom, the bathroom sink was clogged, and the refrigerator contained spoiled food. In defendant's bedroom, where the whole family slept, the floor was covered by numerous piles of clothes, a dirty diaper, and other items like toys and a broken laundry basket. The cat and kittens were in one of the piles of clothes.
The corporal found a number of items on a shelf in defendant's bedroom, including: a glass tube filled with marijuana, a small hole at one end of the tube, and a strainer-type material clamped around the other end of the tube; a can of butane without the cap; the cap to the butane container with another piece of strainer material inside it; a baggie containing 36 grams of marijuana; and "attachments for a narcotics-related device." He was not entirely sure what the attachments were, and they could have been part of a vape device for nicotine. The marijuana in the glass tube appeared to be dried up, and it looked like butane had not been introduced into the glass pipe yet. The corporal found another can of butane nearby and another piece of strainer material that appeared to be used. There were remnants of a green and brown substance on it, and it was holding the shape of whatever device it had been clamped onto. He believed the items on the shelf were for manufacturing honey oil.
On the kitchen counter, the corporal found one gram of honey oil in a small container, a scale next to it, tools for manipulating honey oil, a third can of butane, a smoking device, and a part to a smoking device. The tools were pick-like devices, and they had black or brown spots on their tips. Such tools are typically used to separate honey oil. The scale had brown stains on the weighing plate that were very similar to honey oil stains. The smoking-device part had marijuana residue inside it.
Corporal Castaneda interviewed defendant. Defendant said the things on the bedroom shelf were his, and he admitted to using honey oil "a lot." (Defendant's fiancé confirmed the items were his and said she did not use marijuana.) Defendant said that about a year ago, he saw a video on the Internet on how to extract honey oil. He purchased a glass tube and tried the process himself, but it did not work, and he kept the glass tube because he was going to sell it. He had not tried to make honey oil since that attempt approximately a year ago. He explained to the corporal how he attempted the process and appeared to know how a honey oil lab worked.
Corporal Castaneda acknowledged that the honey oil extraction process was not actually occurring on the date he searched the apartment, and he could not say when it was last done in the apartment, if at all. But the items he found suggested someone had manufactured honey oil in the apartment in the past. And the bedroom shelf where the corporal found many of the items appeared better maintained than the rest of the apartment.
Investigator Steven Leone of the Riverside County Sheriff's Department was the prosecution's expert witness. He had encountered over 25 honey oil labs in the field and had specialized training in them. He described the most common way to make honey oil. The process starts with the manufacturer packing marijuana in a tube made of glass or polyvinyl chloride (PVC) pipe. One end of the tube has a small hole in it, about the size of the tip of a butane can. The other end of the tube has some type of filter over it, such as a coffee filter or cloth material like a T-shirt. The manufacturer introduces butane into the tube from the hole at one end, which causes a chemical reaction with the marijuana that extracts tetrahydrocannabinol, or THC. The result is a substance with a sap-like consistency made up of THC and butane. The substance comes out of the filter-end of the tube. The manufacturer then has to "off-gas" the butane from the substance. He or she can let the substance sit and the butane will evaporate, or the manufacturer can introduce a heat source to accelerate the process. Extracting the honey oil from the marijuana can take "a couple [of] hours."
Butane is generally odorless and highly flammable. Something as small as static cling can ignite it and cause an explosion. During the honey oil manufacturing process, some of the butane gas can escape to the surrounding area. The gas is heavy and will sink to the floor of a room.
Investigator Leone opined that the items found in defendant's apartment—the glass tube, the filtering material, the butane, and the container of honey oil—were consistent with a honey oil extraction lab. Those items were at "just about" every honey oil lab he had encountered. In addition, the dirty filter indicated the manufacturing process had been at least attempted if not completed. Based on the finished product and the used filters, he opined the extraction process had occurred at some point, but he could not say exactly when. He had never seen a situation where someone had manufactured honey oil at one location and then taken the dirty filters to a new location.
III. DISCUSSION
A. The Court's Admission of the Expert's Improper Opinion Was Harmless Error
Defendant argues the court prejudicially erred when it permitted Investigator Leone to opine on defendant's guilt. The challenged testimony arose when the prosecutor asked the investigator: "[B]ased on everything that you've seen, all the information you have regarding this case, would you say that defendant was knowingly participating in the beginning or intermediate steps of processing a controlled substance?" Defense counsel objected to this question on numerous grounds, including that it called for improper opinion evidence. The court overruled the objection, and the prosecutor repeated the question: "Was the defendant participating in the beginning or intermediate steps to process or make a controlled substance, concentrated cannabis?" After the court overruled another defense objection, the investigator answered: "I would say yes." The People concede that the challenged testimony was improper, and we agree. But the admission of the testimony constituted harmless error.
Health and Safety Code section 11379.6, subdivision (a), prohibits a person from manufacturing, compounding, converting, producing, deriving, processing, or preparing any controlled substance through chemical extraction or chemical synthesis. "[T]he conduct proscribed by [Health and Safety Code] section 11379.6 encompasses the initial and intermediate steps carried out to manufacture, produce or process" controlled substances. (People v. Jackson (1990) 218 Cal.App.3d 1493, 1504; see also People v. Stone (1999) 75 Cal.App.4th 707, 715 ["Each and every stage of the process for manufacturing [a controlled substance]—from inception through completion—is embraced by the proscription against the manufacture of [a controlled substance]."].) The statute does not require the manufacturer to "actually complete the finished product, rather than be merely engaged in its completion . . . ." (People v. Jackson, supra, at p. 1504.) 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.)
In accordance with these principles, the court instructed the jury that the People had to prove defendant prepared a controlled substance (specifically, concentrated cannabis) using chemical extraction or chemical synthesis, but the People did "not need to prove that the defendant completed the process of manufacturing or producing a controlled substance. Rather, the People [had to] prove that the defendant knowingly participated in the beginning or intermediate steps to process or make a controlled substance." (See CALCRIM No. 2330.)
Here, when the prosecutor asked Investigator Leone whether defendant was participating in the beginning or intermediate steps to process or make a controlled substance, and the investigator answered "yes," the investigator was essentially opining on defendant's guilt. "A witness may not express an opinion on a defendant's guilt. [Citations.] The reason for this rule is not because guilt is the ultimate issue of fact for the jury, as opinion testimony often goes to the ultimate issue. [Citations.] 'Rather, opinions on guilt or innocence are inadmissible because they are of no assistance to the trier of fact. To put it another way, the trier of fact is as competent as the witness to weigh the evidence and draw a conclusion on the issue of guilt.'" (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 77.) Here, the jurors were as capable as the investigator of looking at the evidence and drawing the conclusion that defendant had participated in the beginning or intermediate steps of making honey oil. Thus, the trial court's admission of this testimony over the defense's objection was an abuse of discretion. (People v. Spence (2012) 212 Cal.App.4th 478, 509 [applying the abuse of discretion standard to the challenged admission of expert testimony].)
The error was harmless, however, because it is not reasonably probable defendant would have achieved a better result, had the court excluded the challenged testimony. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Coffman and Marlow, supra, 34 Cal.4th at p. 76 [noting that the Watson standard of prejudice applies to a court's admission of an improper opinion on the defendant's guilt].) Even setting aside the investigator's opinion that defendant had taken the beginning or intermediate steps of making a controlled substance, the evidence of defendant's guilt was overwhelming. (People v. Riggs (2008) 44 Cal.4th 248, 301 [concluding that the investigating officer's opinions of the defendant's guilt and untruthfulness were harmless, "especially in light of the overwhelming evidence against [the] defendant."].) Corporal Castaneda found all the tools for extracting honey oil in defendant's room—marijuana, a glass tube, filters, and butane. Defendant admitted the tools were his, and his fiancé confirmed this. The tools showed defendant had taken at least the beginning steps to manufacture honey oil, beyond just gathering materials—the glass tube was packed with marijuana and had a filter clamped over one end of the tube, and the cap of the butane container had been taken off so that the tip could fit into the small hole at the tube's end. Still more evidence showed he had completed the process at some point—the presence of a dirty filter with what appeared to be honey oil on it, and the container of honey oil in the kitchen. Investigator Leone, who had seen many honey oil labs in the field and had specialized knowledge of them, opined that the process had been completed, based on these items. What is more, defendant admitted that he tried to make honey oil about a year earlier and explained the manufacturing process to Corporal Castaneda. In light of this strong evidence that defendant had at least begun to manufacture honey oil—if not completed the process—admitting the investigator's opinion on the point was harmless. B. The Court Did Not Err in Failing to Instruct on Attempted Manufacturing
Next, defendant contends the court prejudicially erred in failing to instruct on attempted manufacturing of a controlled substance as a lesser included offense. We reject this contention as well.
Under the elements test, a substantive criminal offense necessarily includes the attempt to commit it, so long as the completed offense is not a general intent crime. (People v. Braslaw (2015) 233 Cal.App.4th 1239, 1248; People v. Meyer (1985) 169 Cal.App.3d 496, 506.) This is because attempt is a specific intent crime and thus requires proof of an additional element that is not included in general intent crimes. (People v. Braslaw, supra, at p. 1248.) The parties do not dispute that attempted manufacturing of a controlled substance is a lesser included offense of manufacturing a controlled substance under the elements test. Given this fact, we assume for the sake of argument that attempted manufacturing is a lesser included offense of the completed offense, and it does not fall within the exception for general intent crimes.
The parties treated the completed offense as a specific intent crime at trial as well. The court instructed the jury that manufacturing a controlled substance was a specific intent crime.
We apply de novo review to determine whether the court should have instructed on a lesser included offense. (People v. Cole (2004) 33 Cal.4th 1158, 1215.) A trial court must instruct sua sponte on any lesser offense supported by substantial evidence. (People v. Breverman (1998) 19 Cal.4th 142, 162.) Substantial evidence is "'"evidence that a reasonable jury could find persuasive,"' [citation], which, if accepted, '"would absolve [the] defendant from guilt of the greater offense" [citation] but not the lesser.'" (People v. Cole, supra, at p. 1218.) In the context of attempts, this means that where there is substantial evidence "that would absolve the defendant from guilt of the charged offense but would support a finding of guilt of attempt to commit the charged offense, an instruction on attempt is mandatory." (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1454.) Still, the court need not instruct on theories unsupported by the evidence or only weakly supported by the evidence (People v. Reeves (2001) 91 Cal.App.4th 14, 51), nor need it instruct on a lesser included offense "'where the evidence establishes if the defendant was guilty at all, he was guilty of the higher offense.'" (People v. Peregrina-Larios (1994) 22 Cal.App.4th 1522, 1524.)
"An attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission." (Pen. Code, § 21a.) "'Although mere preparation such as planning or mere intention to commit a crime is insufficient to constitute an attempt, acts which indicate a certain, unambiguous intent to commit that specific crime, and, in themselves, are an immediate step in the present execution of the criminal design will be sufficient.'" (People v. Jones (1999) 75 Cal.App.4th 616, 627.) As discussed above, the completed offense (Health & Saf. Code, § 11379.6, subd. (a)) encompasses "[e]ach and every stage of the process" for manufacturing a controlled substance, "from inception through completion." (People v. Stone, supra, 75 Cal.App.4th at p. 715.)
In the case at hand, all the evidence establishes that if defendant was guilty at all, he was guilty of manufacturing honey oil, not merely attempted manufacturing. Investigator Leone explained the manufacturing process—the manufacturer packs marijuana in a glass tube with a filter over one end, introduces butane through a hole in the other end, and the chemical reaction causes a sap-like substance to come out of the filter end. The manufacturer then causes the butane to evaporate from the sap-like substance, and the result is honey oil. Defendant told the corporal he had researched and tried the process in the past year; he possessed all the materials to make honey oil and said they belonged to him; he demonstrated his knowledge of the process to the corporal; he had a glass tube and can of butane prepared to introduce butane to the marijuana; he had a dirty filter indicating he had extracted the honey oil; and he had the end product in his home. All of this evidence showed defendant had manufactured honey oil, not that he had attempted to manufacture it.
Defendant contends his statement to the corporal that he had tried and failed to make honey oil constituted substantial evidence of only attempted manufacturing. This is incorrect, even if the jury credited his statement that the process had failed. His statements that he had obtained a glass tube and tried the process himself showed, at the very least, that he had engaged in the beginning or intermediate steps of making honey oil. Moreover, the presence of the prepared glass tube packed with marijuana showed he was continuing to engage in the steps for making honey oil. Completion of the process was not required.
Either way, the evidence showed he had engaged in the beginning or intermediate steps, or had completed the manufacturing process. In both cases, this constituted manufacturing and not attempted manufacturing. "The court is not required to instruct on an included offense if there is no evidence that the crime committed was less than that charged." (People v. Aguilar (1989) 214 Cal.App.3d 1434, 1436.)
Defendant also relies heavily on People v. Luna (2009) 170 Cal.App.4th 535 to show that there was substantial evidence of only attempted manufacturing, but that case is procedurally and factually inapposite. A jury convicted Luna of attempting to manufacture a controlled substance, and he contended on appeal that there was insufficient evidence of even an attempt. (Id. at pp. 537-538.) The appellate court agreed and reversed his conviction. (Id. at pp. 543-544.) It found no evidence that went beyond preparation, and merely preparing or planning for the crime did not constitute an attempt. (Ibid.) An officer had stopped Luna with most of the equipment necessary to manufacture "hashish," another street name for concentrated cannabis. (Id. at p. 538.) The only thing missing from the manufacturing process was marijuana. (Ibid.) Luna testified that he was homeless and having trouble finding a job, and he had purchased the equipment from other homeless persons intending to make hashish—"a poor decision," as he acknowledged. (Id. at pp. 538-539.) But he said he did not try to purchase the necessary marijuana after getting the other equipment. (Id. at p. 539.) The Luna court concluded this evidence was insufficient because it showed only that Luna was "still engaged in preparatory acts" and there was "a complete inability to take even initial steps toward producing the finished product." (Id. at p. 543.)
Luna only highlights the strength of the evidence here. Unlike Luna, defendant had all the necessary equipment, including the marijuana, and he admitted to actually starting the process. And most importantly, there was the evidence—not present in Luna—that defendant had completed the process. Defendant seizes on the Luna expert's testimony that "'grocery bags full of marijuana'" were necessary for the manufacturing process and argues his 36 grams of marijuana were not, therefore, sufficient. (People v. Luna, supra, 170 Cal.App.4th at p. 538.) The statement of facts in Luna is not evidence in this case. The expert here said nothing of the kind. The glass tube defendant had was small, and he clearly did not need grocery bags full of marijuana to pack it. The exhibits showed defendant had enough marijuana to pack the tube several times over. The Luna expert based his testimony on the evidence in that case, which plainly showed Luna had intended a much larger scale operation to earn income as a solution to his homelessness. Rather than a small glass tube, Luna's operation consisted of PVC pipes, PVC glue, couplings, fittings, 299 bottles of butane, and other items along those lines. (Ibid.) Luna does not change our conclusion that there was no substantial evidence of attempted manufacturing, as opposed to manufacturing. The court was not required to instruct sua sponte on attempt. C. The Court Was Not Required to Stay the Child Endangerment Sentence Under Penal Code Section 654
Lastly, under Penal Code section 654, defendant asserts the court should have stayed his one-year sentence for child endangerment, rather than running it concurrently. We disagree.
Penal Code section 654 prohibits multiple punishments when the same criminal act violates different provisions of the law. (People v. Jones (2012) 54 Cal.4th 350, 358.) It provides: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (Pen. Code, § 654, subd. (a).) "Whether a defendant may be subjected to multiple punishment under [Penal Code] section 654 requires a two-step inquiry, because the statutory reference to an 'act or omission' may include not only a discrete physical act but also a course of conduct encompassing several acts pursued with a single objective. [Citations.] We first consider if the different crimes were completed by a 'single physical act.' [Citation.] If so, the defendant may not be punished more than once for that act. Only if we conclude that the case involves more than a single act—i.e., a course of conduct—do we then consider whether that course of conduct reflects a single '"intent and objective"' or multiple intents and objectives." (People v. Corpening (2016) 2 Cal.5th 307, 311.)
If the defendant's course of conduct reflects a single objective, the court may punish the defendant under only one provision of the law. (People v. Harrison (1989) 48 Cal.3d 321, 335.) "If, on the other hand, [the] defendant harbored 'multiple criminal objectives,' which were independent of and not merely incidental to each other, he [or she] may be punished for each statutory violation committed in pursuit of each objective, 'even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.'" (Ibid.) "The question whether the defendant entertained multiple criminal objectives is one of fact for the trial court" (People v. Liu (1996) 46 Cal.App.4th 1119, 1135-1136), and we will uphold its express or implied finding on this question if there is any substantial evidence to support it (People v. Osband (1996) 13 Cal.4th 622, 730-731).
Defendant here does not contend that he committed the manufacturing and child endangerment offenses by virtue of "a 'single physical act,'" such that he may be punished only once for that act. (People v. Corpening, supra, 2 Cal.5th at p. 311.) Rather, he skips to the second step of the inquiry and argues his course of conduct was indivisible. We would agree that the two offenses did not involve a single physical act. As relevant here, the misdemeanor child endangerment provision punishes "[a]ny person who, under circumstances or conditions other than those likely to produce great bodily harm or death, . . . willfully causes or permits that child to be placed in a situation where his or her person or health may be endangered . . . ." (Pen. Code, § 273a, subd. (b).) While the manufacturing of honey oil contributed to the dangerous situation in defendant's apartment, the evidence showed it was only one of many circumstances contributing to that dangerous situation. The premises were dangerous for multiple reasons unrelated to the manufacture of honey oil. Those reasons include, but are not limited to, the unsanitary conditions—the litter box filled with cat waste, the spoiled food in the fridge and on the bathroom floor, multiple cockroaches, and the clutter and filth on the floor. The totality of the circumstances evidencing child endangerment may certainly include unsanitary conditions. (People v. Odom (1991) 226 Cal.App.3d 1028, 1033.) The circumstances also included leaving the finished product out on the counter exposed to the children, which is unquestionably dangerous and certainly divisible from the manufacturing process itself. We can ascertain no reason to expose the children to this additional danger once the manufacturing process is complete.
The question for us, then, is whether substantial evidence supported the court's implied finding that defendant's course of conduct reflected more than a single objective. We conclude that it did. The evidence disclosed that defendant's objective in manufacturing honey oil was to make some for his personal use. We have already discussed the extensive evidence that he was manufacturing honey oil. He admitted to using it "a lot," and the container of amber honey oil was next to drug paraphernalia that had an amber residue inside it. But keeping the home in its unsanitary state cannot be said to reflect this same objective of making honey oil for his personal use. The unsanitary conditions were evidence of neglect that were not incident to making the controlled substance. Defendant's conduct was, therefore, divisible and could give rise to multiple punishments. The court could punish him "for each statutory violation committed in pursuit of each objective, 'even though the violations shared [some] common acts . . . .'" (People v. Harrison, supra, 48 Cal.3d at p. 335.) Moreover, the additional punishment herein based on numerous additional acts is consistent with "the purpose of [Penal Code] section 654 . . . to ensure that a defendant's punishment will be commensurate with his culpability." (People v. Correa (2012) 54 Cal.4th 331, 341.) The court was not required to stay the execution of the child endangerment sentence and properly imposed the sentence concurrently.
IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: RAMIREZ
P. J. MILLER
J.