People v. Verduzco
210 Cal. App. 4th 1406
| Cal. Ct. App. | 2012Background
- Defendant Ruben Verduzco was convicted of one count of possession for sale of methamphetamine (Health & Safety Code §11378, count 4) and one count of possession of essential chemicals with intent to manufacture methamphetamine (Health & Safety Code §11383.5, subd. (e), count 5).
- The People argued Verduzco possessed essential chemicals sufficient to manufacture hydriodic acid or a reducing agent, with intent to manufacture methamphetamine; defense argued he did not possess all necessary constituents.
- Police found red phosphorus and acetone, plus other meth manufacture-related items and cash, in and around defendant’s home.
- Expert testimony suggested red phosphorus underscored meth manufacture, but some essential ingredients (iodine, hydrogen chloride gas, precursors) were not found at the home.
- The trial court gave CALCRIM No. 2338; the court later ordered attorney fees under Penal Code §987.8 without a noticed hearing, and the matter was appealed.
- Conviction on count 5 reversed; count 4 affirmed; case remanded to determine defendant’s ability to pay attorney fees under §987.8.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is possession of all essential constituents required to violate §11383.5(e)? | People: possession of any essential chemicals sufficient for a reducing agent. | Verduzco: statute requires both red phosphorus and iodine. | Statute requires possession of all constituents; count 5 reversed. |
| Should the term “reducing agent” have been defined for the jury? | People: definition unnecessary; term is standard chemistry. | Defendant: term has technical meaning needing definition. | Not necessary; no prejudicial error; definition would not have changed result. |
| Was the attorney fee order valid without a noticed ability-to-pay hearing? | N/A (defendant challenges lack of notice/hearing). | The fee order lacked notice/hearing and evidence of ability to pay. | Remanded to determine ability to pay under Penal Code §987.8. |
Key Cases Cited
- McCall v. Superior Court, 32 Cal.4th 175 (Cal. 2004) (held that former §11383(f) expanded scope to prohibit possession of red phosphorus and iodine with intent to manufacture methamphetamine)
- People v. Watson, 46 Cal.2d 818 (Cal. 1956) (establishes standard for prejudice in trial error (Harmless error))
- People v. Viray, 134 Cal.App.4th 1186 (Cal. App. 2005) (requires notice/hearing for ability-to-pay defense costs)
- Lopez v. People, 129 Cal.App.4th 1508 (Cal. App. 2005) (discusses ability to pay and related presumptions)
- People v. Amor, 12 Cal.3d 20 (Cal. 1974) (discusses ability-to-pay considerations in fee orders)
- Thompson Pacific Construction, Inc. v. City of Sunnyvale, 155 Cal.App.4th 525 (Cal. App. 2007) (addressed statutory interpretation and instructional burdens)