Opinion
I. INTRODUCTION
Aрpellant Manuel Christopher Luna was convicted by jury of attempting to manufacture a controlled substance (Health & Saf. Code, § 11379.6, subd. (a); Pen. Code, § 664). Appellant claims his conviction must be *538 reversed because “there is no evidence whatsoever that appellant ever advanced beyond mere planning or preparаtion.” We agree with appellant that there was insufficient evidence to support his conviction. Consequently, we reverse.
II. FACTS AND PROCEDURAL HISTORY
Around midnight on March 6, 2005, Mendocino County Deputy Sheriff Jason Lucas stopped appellant, who was driving a pickup truck with a camper shell, for a traffic violation. When appellant stepped out of his рickup truck, he appeared to be under the influence of alcohol, although he passed a field sobriety test.
During a consensual search of the pickup truck, Lucas found equipment used to manufacture hashish. These items included PVC (polyvinyl chloride) pipe, PVC glue, couplings, fittings, adapters, Teflon tape, Pyrex bowls, a butane burner, rubbing аlcohol, activated carbon filters, and a metal spigot with an open/close valve. Lucas also found 299 bottles of butane, and a sales receipt indicating that the pipe fittings and a metal nozzle had just been purchased several hours earlier. Appellant was found to be in possession of a small quantity of marijuana and $1,200 in сash. When Lucas asked appellant if he had a hashish lab, appellant “half-heartedly” indicated that he did not.
California Department of Justice Senior Criminalist Matthew Kirsten, who qualified as an expert in manufacturing hashish, testified about all of the items that were found in appellant’s truck and how they contribute to the manufacturing of concеntrated cannabis, or as laypeople call it, hashish. He testified that in order to manufacture hashish using the “butane extraction method,” PVC pipes are connected with fittings at one end to accommodate a butane canister, and at the other end to attach a spigot. All parts of the marijuana plant are placеd inside the pipe and are held in place by a screen or mesh. The butane is then injected into the pipe, dissolving the marijuana plant resin that contains tetrahydrocannabinol (THC) and allowing it to be collected in its concentrated form. Kirsten believed that the equipment in appellant’s possession had previously been utilized in thе manufacture of hashish as evidenced by hash oil residue and part of a marijuana leaf found on some of the seized equipment. With respect to whether everything necessary to manufacture hashish was present in appellant’s truck, he testified that “all one needed would be . . . the marijuana to continue that process.” Kirsten testified that in order for appellant to actually begin manufacturing hashish, appellant would have had to obtain “grocery bags full of marijuana.”
Appellant testified at trial. He testified that he was homeless and having trouble getting a job when he purchased the equipment to make hashish from *539 homeless persons in Golden Gate Park in San Francisco. The sellers explained the process of making hashish to appellant. Appellant acknowledged that he bought the equipment with the intention of making hashish. “I bought this stuff because it was presented to me for a low price and at the time I made a poor decision and I considered making hash.” Appellant claimed, however, that he did not try to purchase marijuana after acquiring the remainder of the necessary equipment.
On September 27, 2007, a jury found appellant not guilty of manufacturing a controlled substance, but guilty of the lesser included offense of attempting to manufacture a controlled substance (Health & Saf. Code, § 11379.6, subd. (a); Pen. Code, § 664). On November 9, 2007, the court suspended imposition of sentence and placed appellant on probation. This appeal followed.
m. DISCUSSION
In this case, the sole issue is whether the evidence is sufficient to sustain appellant’s conviction for attempting to manufacture a controlled substance. (Health & Saf. Code, § 11379.6, subd. (a); Pen. Code, § 664.) In determining the sufficiency of the evidence to support a conviction, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
(People v. Huggins
(2006)
Health and Safety Code section 11379.6, subdivision (a) punishes “every person who manufactures, compоunds, converts, produces, derives, processes, or prepares, either directly or indirectly by chemical extraction or independently by means of chemical synthesis, any controlled substance . . . .” The elements of a criminal attempt are “[(1)] a specific intent to commit the crime, and [(2)] a direct but ineffectual act done toward its commission.” (Pen. Code, § 21a; see
People v. Toledo
(2001)
First, on the issue of intent, appellant himself testified that at the time he purchased the equipment, it was his intention to manufacture hashish by using “the butane extraction process.” Appellant’s counsel conceded at oral argument that appellant’s intent to manufacture hashish was established by
*540
his own testimony. In this case, the key dispute is the second component of an attempt crime. That is, whether appellant’s actions had progressed to the point where they could be considered “a direct but ineffectual act done towards [the crime’s] commission, i.e., an overt ineffectual act which is beyond mere preparаtion yet short of actual commission of the crime. [Citations.]”
(People
v.
Ross
(1988)
Appellant argues that his actions were not extensive enough to be considered an attempt because, when he was arrested, the manufacturing activity “had not advanced beyond planning or preparation.” He emphasizes that he had not taken steps to begin the manufacturing process. In making this argument, appellant focuses on the absence of evidence that he “ever obtained or arranged to obtain THE essential ingredient necessary for manufacturing hashish, the starting material, marijuana . . . .” (Original capitalization.)
In considering appellant’s argument, we first note that in a case such as this one “[w]here the intent to commit the crime is clearly shown, an act done toward the commission of the crime may be sufficient for an attempt even though that same act would be insufficient if the intent is not as clearly shown. [Citation.]”
(People v. Bonner
(2000)
As our Supreme Court recently emphasized, “Whether acts done in contemplation of the commission of a crime are merely preparatory or whether they are instead sufficiently close to the consummation of the crime is a question of degree and depends upon the facts and circumstances of a рarticular case.”
(Decker, supra,
In evaluating appellant’s conduct, respondent argues that appellant took direct, but ineffectual steps toward the commission of the crime — beyond the mere noncriminal planning or preparation stages — and that those steps constitute “ ‘slight acts done in furtherancе’ ” of his intent to commit the crime.
(Memro, supra,
As we have indicated, the critical issue is whether, at the time of his arrest, appellant had proceeded far enough down the path toward manufacturing hashish that a reasonable jury could find that he committed the crime of attempted manufacture. In analyzing the evidence supporting appellant’s attempt conviction, we have not discovered any published California case addressing what constitutes “a direct but ineffectual act” toward manufacturing. (Pen. Code, § 21a.) However, there are numerous cases discussing the evidence necessary to support a conviction under Health and Safety Code section 11379.6, subdivision (a), which subjects to liability not only one who “manufactures” a controlled substance, but also one who “compounds, converts, produces, derives, processes, or prepares” such a substance.
*542
Respondent points out that the conduct proscribed by Health and Safety Code section 11379.6, subdivision (a), the crime which appellant purportedly attempted, has been found 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)
The case which is at the centerpiece of respondent’s argument is
People v. Lancellotti
(1993)
On appeal from his conviction for manufacturing methamphetamine (Health & Saf. Code, § 11379.6, subd. (a)), the
Lancellotti
court rejected defendant’s argument thаt the evidence was insufficient to support his conviction because the storage unit lacked a certain piece of equipment and a reducing agent that were necessary to complete the methamphetamine manufacturing process.
(People v. Lancellotti, supra,
Relying on the
Lancellotti
decision, respondent asserts that “appellant took unequivocal intermediate steps towards making hashish with the avowed purpose of doing so” and therefore, “[substantial evidence supports [his] conviction.” However, respondеnt misses the key point made in the
Lancellotti
decision. The
Lancellotti
court did not find that the defendant was guilty of the crime of manufacturing methamphetamine because he possessed certain pieces of equipment associated with the drug’s manufacture. Rather, the defendant’s conviction was upheld because there was evidence he had engaged in an intermediate step in the methamphetamine manufacturing
*543
process. This point was emphasized by our Supreme Court in
People
v.
Coria
(1999)
Numerous cases illustrate the point that Health and Safety Codе section 11379.6, subdivision (a) is aimed at ongoing manufacturing operations. Thus, while the manufacturing process need not be complete, it must at least be
started.
(See, e.g.,
People v. Jackson
(1990)
In reviewing the record in this case, we find no act — not even a slight act — on the part of appellant that goes beyond preparation and can be regarded as an “unequivocal overt act which can be said to be a commencement of the commission of the intended crime. [Citation.]”
(People v. Adami
(1973)
We acknowledge that the line between preparation and an attempt is often indistinct. However, we conclude that this line has not been crossed where the prosecution’s evidence shows thаt a defendant is still engaged in preparatory acts and that there is a complete inability to take even initial steps toward producing the finished product. After all, “ ‘planning the offense’ ” and “ ‘devising, obtaining or arranging the means for its commission’ ” are merely aspects of preparation.
(Dillon, supra,
IV. DISPOSITION
The judgment is reversed.
Sepulveda, J., and Rivera, J., concurred.
Notes
In discussing the quantum of conduct considered sufficient to establish a criminal attemрt, the Model Penal Code, sets out the example of “possessing] materials to be employed in the commission of the crime . . . .” (Model Pen. Code, § 5.01, subd. (2)(e).) This type of evidence is sufficient if it is “strongly corroborative of the actor’s criminal purpose.” (Model Pen. Code, § 501, subd. (2).) There is no doubt that this approach has influenced the law of attеmpt in other jurisdictions; and if we followed it here, appellant’s arguments would have no legal merit. (See, e.g.,
U.S. v. Rahman
(2d Cir. 1999)