*1 S111985. June [No. 2005.] PEOPLE,
THE Plaintiff and Respondent, PEREZ,
GERARDO Defendant and Appellant.
Counsel Ian for Defendant and Garey Appellant.
Michael General, Anderson, Attorney Assistant Robert R. Chief Attorney Bill Lockyer, Beaumont, General, General, Schons, Garrett Attorney W. Assistant Gary Jacobson, and Lise Deputy Steven T. Getting David Delgado-Rucci, General, for Plaintiff and Respondent. Attorneys
Opinion of WERDEGAR, methamphet- A defendantis arrested J. defendant be convicted of to sell. May amine he planned with prospective buyer’s possession not. In the We conclude he may intent to manufacture methamphetamine? alternative, the defendant be convicted directly possessing precursors may Code, (Health & Saf. with the intent to manufacture methamphetamine? therefore (c)(2).)1 former we conclude he not. We Again, may subd. of defendant Gerardo Perez’s section affirm the Court of reversal Appeal’s 11383(c)(2) conviction. Background
Procedural and Factual An undercover officer observed a transaction consistent drug- police related between individuals in Perez’s car and those in a van. The activities car, initiated a traffic of Perez’s an consensual search police stop. During found a bags, officer small two bag containing marijuana plastic shopping one of red and the other containing approximately pounds phosphorus five iodine. Officers also found approximately pounds powdered pair iodide, be stained with later determined to jeans yellow dye, hydrogen $717 acid. Perez had in cash on his component hydriodic person. trial, At a forensic method of scientist testified one medicine, common involves cold methamphetamine combining pseu- turn, acid. In acid can be doephedrine, hydriodic produced *5 red mixing and iodine with water. When asked phosphorus why person would red and iodine “I see possess phosphorus together, expert replied, no other for it than to make acid.” An purpose hydriodic experienced rule, narcotics officer that it than the testified is the rather for each exception, of the used in be ingredients to methamphetamine manufacturing provided a different source. scene,
Perez did not at trial. At the he claimed of the testify ownership hydrogen-iodide-stained a statement to he admitted the jeans. police, chemicals found in the car to him. He told officers that he belonged him $350 “Vicky,” chemicals for from a woman known to purchased $400 to take them to Pasadena to sell for to a man known to intending him had amounts as “Antonio.” He these chemicals in similar purchased and in the manufacture of on one other occasion knew were used they methamphetamine. Safety and Code. Former subsequent All unlabeled references are to the Health 11383, 571, 1, 1995, 4418) (c)(2) (Stats. ch. is hereafter referred to as section subdivision § 2003, 11383(c)(2). amended in but the amendments are not relevant section The section was opinion.
Perez was acid with the charged hydriodic possessing precursors (§ 11383(c)(2).)2 to manufacture methamphetamine. People pro- ceeded under two theories: that Perez was liable as a direct perpetrator he because and intended to manufacture possessed precursors or, alternative, in the and that Perez was liable as an aider methamphetamine abettor he with the intent them to because sell possessed precursors another to be used in clos- During methamphetamine. over Perez’s that and ing argument, prosecution argued, objection, aiding that Perez acid abetting liability only hydriodic required proof possessed with the someone else would use them manu- knowledge facture The trial court defense counsel from prevented of a arguing liability aiding abetting required proof completed offense, or and denied a instruction on this attempt point, proposed special “[tjhere’s no under ruling need for crime statute.” completed Instead, case, in accordance with the the court prosecution’s 3.01, CALJIC Nos. 3.00 standard instructions on gave A 11383(c)(2). convicted Perez of section abetting.3 jury violating The Court of reversed. It held that abetting liability Appeal that a had been committed required proof predicate separate apart abettor, from the actions of the aider and and that in the absence of proof such a crime the trial court erred by instructing
abetting. who, “Any person methamphetamine any analogs with intent to manufacture or of its . . . possesses hydriodic any containing hydriodic felony acid acid . . . .” product offenses, (§ 11383(c)(2).) 11383(c)(2) applied possession At the time of the section of red 11383, (f) phosphorus and iodine as well. to amendment in Prior section subdivision equated possession hydriodic acid. “Section therefore, 11383(f), 11383(c)(2) simply expanded the of section scope prohibit possession phosphorus methamphetamine.” (People red and iodine with intent to manufacture v. McCall 32 Cal.4th 82 P.3d The 2003 amendments to the 189 [8 phosphorus statute made the of red and iodine with intent to manufacture (f), methamphetamine expressly illegal under section subdivision rather than section (Stats. 11383(c)(2). ch. respectively provided: These instructions *6 committing principals involved in a crime are referred to as in that “Persons who are regardless guilty. principal, participation equally crime. Each of the extent or manner of is [IQ directly actively constituting include: 1. and commit the act Principals Those who crime, Q] (CALJIC 3.00.) or 2. who aid and abet the commission of the crime.” No. Those Q] (1) knowledge he person “A aids and abets the commission of a crime when or she: With purpose purpose committing of the unlawful of the and With the intent or perpetrator, [f] aids, crime, Q] (3) By encouraging facilitating or or the commission of the and act or advice [] n promotes, encourages instigates or the commission of the crime. A who aids and present abets the need not be at the scene of the crime. Mere commission of [][] presence at the of a crime which not itself assist the commission of the crime does scene does []Q aiding abetting. knowledge being that a crime is committed and not amount to and Mere 3.01.) (CALJIC aiding abetting.” it and No. prevent the failure to does not amount and as abetting liability, clarify aiding
We review to granted scope and abetting Can conviction on an aiding well as the of section 11383. scope not, a crime a second If does section by stand absent theory proof party? of controlled substances with 11383(c)(2) criminalize directly Put differently, that someone else manufacture methamphetamine? with the intent that someone else use of hydriodic criminal, under either an accomplice them to manufacture methamphetamine or direct liability theory?
Discussion
Liability: Aiding
Abetting
I.
Accomplice
We
can be
consider first whether one
guilty
absent
of criminal conduct
some direct
We
proof
by
begin
perpetrator.
governs aiding
of Penal Code section
which
plain language
The statute extends criminal
in a crime
abetting liability.
liability
principals
crime,”
concerned in the commission of a
and all those who
persons
“[a]ll
“aid and abet in its commission.” As this
makes
the commis
language
plain,
sion of
crime is a
for criminal
If
defendant himself
liability.
prerequisite
another,
offense,
If he
commits the
he is
as a direct
assists
guilty
perpetrator.
follows, therefore,
he is
as an aider and abettor. It
that for a defendant
guilty
to be found
under an
someone other than
theory,
crime;
i.e.,
committed
the defendant
be
must
to have
proven
attempted
offense,
absent
of a
on an
and abetting
conviction
proof
predicate
cannot be sustained.
McCoy
We
in detail in
analyzed aiding
abetting liability
There,
1210],
1226
Consistent with these
we have
principles,
explained
“[accom
‘derivative,’
is,
aider and abettor
it
plice liability [including
liability]
results from an act
by
to which the
contributed.”
perpetrator
accomplice
248,
827,
(1996)
v. Prettyman
14 Cal.4th
P.2d
(People
259
926
Cal.Rptr.2d
[58
1013],
added.)
italics
This
with the historical
description squares
doctrine,
understanding
recounted
Hand in United States v.
by Judge
(2d
1938)
Peoni
Cir.
they
Montoya
The first half of this is correct: of an argument proof attempt direct is sufficient for If a perpetrator aiding abetting liability. purposes direct is thwarted and of an an aider and perpetrator guilty only attempt, (See, still be may abettor attempt. e.g., 402, Lee 31 Cal.4th P3d People v. 623-624 Cal.Rptr.3d [3 176]; v. 18 Cal.4th Mendoza P.2d Parra,
The second half of the is incorrect: argument nothing or in the Court of decision below supra, Cal.App.4th Appeal’s Parra, crime. footnote required page proof completed Court of the notion that a defendant could be convicted of rejected Appeal of cocaine with intent to sell where abetting possession with the intent to transfer it to a second defendant cocaine possessed who would sell it. The Court of reasoned that Appeal could not “the crime of the alleged because liability apply recipient/seller
never and the of aider and abettor attaches when all liability only completed People (See are v. substantive elements of offense satisfied. predicate Montoya[, supra,] 1040-1041.)” an correct entirely 7 Cal.4th This was pp.] [at statement of law: and cannot attach unless the aiding abetting liability substantive met. be elements of offense are This predicate requirement may satisfied of an by argument, nothing but proof attempt, contrary People’s in Parra or in the Court of Nor did here indicated otherwise. Appeal’s opinion Parra Montoya, misread case that examined in the course of burglary when attach. Parra and could what abetting liability was correctly recognized in and implicit Montoya—aiding liability of abetting requires completion an substantive offense. independent
The real issue in this case is not whether of an than proof rather attempted, sufficient, direct completed, but either by perpetrator is whether trial, necessary. At the court to People persuaded give aiding crime or an instructions the absence despite of of either a proof completed attempt. eschewed People instead that any attempt theory, arguing by Antonio, to sell the intending Perez aided and abetted Antonio’s manufacture of Whether the was that Perez intended to aid abet Antonio’s actual manufacture of metham- 11379.6, (§ phetamine (a)) subd. or to aid abet Antonio’s possession hydriodic acid with the intent to manufacture methamphetamine (§ 11383(c)(2)), violated, no evidence established that Antonio ever or at- violate, tempted to either statute. Without of a act criminal Antonio proof contributed, to which Perez could not convict as an Perez prosecution v. People Beeman (See aider and (1984) 547, abettor. 35 Cal.3d 561 [199 People Cooper 1318]; 674 P.2d Cal.Rptr. (1991) v. 53 Cal.3d 811 P.2d Cal.Rptr. [282 the trial erred
Consequently, court in instructing People Guiton v. abetting. 4 Cal.4th 1129 [17 which, 847 P.2d while is error to an instruction give 45] [“It law, correctly stating has no to the principle application facts of the case”]; Singleton Cal.App.3d Cal.Rptr. to instruct on aiding 842] [error absent existence proof direct The court erred perpetrator].) also defense from counsel preventing arguing 3.01, the law of and CALJIC abetting, Nos. 3.00 and an independent or crime. require attempted Under facts completed case, Perez could be convicted as a direct not all. perpetrator
II. Direct Liability: 11383(c)(2) Section Interpretation of argue that section 11383(c)(2) criminalizes anyone manufacture not methamphetamine, just hence, Perez the intent methamphetamine; *9 he hydriodic convicted as a direct because possessed properly perpetrator to else use them manufacture with the intent that someone precursors methamphetamine. has we address Perez’s contention that argument
Preliminarily, Court, (See 29.1(b)(3).) While this been forfeited. Cal. Rules of rule precise review, the we may issue was not of statutory part People’s petition (Cal. Court, in the Rules of rule consider all issues embraced fairly petition. v. Braxton (2004) 34 Cal.4th 29(b)(1); Cal.Rptr.3d [22 994].) aiding abetting liability The whether requires proof P.3d issue another, as we that the elements of the offense were committed predicate does, the issue whether the court’s have determined it includes necessarily in the absence of such error in the on instructing jury on the of section evidence was harmless. was instructed jury requirements the with 11383(c)(2). If that section criminalizes of precursors possession i.e., directly intent that else if it someone manufacture methamphetamine, then the the tried under an abetting theory, criminalizes conduct error in the would be harmless. instructing court’s statute, to with its Section
Turning begin language. the we analysis who, intent to metham with 11383(c)(2) “Any provides: person manufacture . . acid or any phetamine of its . any analogs possesses hydriodic product added.) The (Italics . . . acid is .” felony containing criminalize that possession subdivision is one of a series of provisions controlled substances. with the intent to manufacture specified defines (See (a)-(h).) with two elements: subds. The statute § chemicals, (See CALJIC (1) (2) criminal intent. specified conceded, Here, While 12.09.4.) first is the second disputed. No. element that manufacture anyone that intent argue methamphetamine suffice, must intend should Perez defendant argues participate We with Perez. manufacturing agree in personally First, language statute’s plain most sensible interpretation methamphet that it intent to requires participate have “intent manufacture amine. The statute person requires be manufactured.” not the “intent methamphetamine methamphetamine,” active, that the subject of an not construction passive, implies use sentence, defendant, in the must intend to manufactur himself participate taken actions has chosen criminalize Legislature when ing. Notably, substance, it has a controlled intent that else manufacture someone . . . (a) “[a]ny subdivision punishes used different Section language. sells, transfers, of the substances any . or otherwise furnishes . . [who] or the intent that (a) knowledge of Section 11100 listed in subdivision will the substance to controlled recipient unlawfully use substance . . . added; (2) (Italics 841(c)(1), cf. 21 U.S.C. [separately manufacture,” of listed chemicals “with punishing ... that the listed chemical will be used to manufacture” possession “knowing substance].) a controlled
Second, we Wilcox v. find the overall context significant. Birtwhistle Cal.4th P.2d B, case where A who manufactures supplies there are in four A methamphetamine, essence sequential steps: possesses *10 manufacture; (2) with the intent to or transfer them for A precursors, sell B, sells or transfers them to with the or that B knowledge intent will manufacture; manufacture; (3) (4) B them with the intent B possesses manufactures. Legislature has enacted a that series statutes separately 1, address these in the chain. Section makes steps manufacturing 11378 step sale, months, for possession felony 16 two or three punishable by years, Code, 2, years. (See Pen. Section 11104 makes transfer § sale or step manufacture, or knowledge intent will recipient felony months, by misdemeanor, 16 two punishable or three or a years, years, 3, the nature of the depending Section 11383 precursors.4 makes step manufacture, two, four, with the possession intent to or felony punishable by (§ 4, six years. 11383(c)(2).) Section 11379.6 makes manufacturing, step three, five, 11379.6, (§ felony punishable (a).) or seven years. subd. These statutes generally reflect a legislative each successive judgment that moves to the step closer actual manufacture of is a methamphetamine more serious crime meriting increased to three for punishment—up years step 2, 3, 1 or step years six for to seven for up step 4. up years step Indeed, the sale of methamphetamine its manufacture were originally v. Coria 868, equally (People punished Cal.4th 21 878-879 650, P.2d 970]), but in Cal.Rptr.2d Legislature 1985 the section passed “ in 11379.6 order ‘increase for those who penalties illegally ” (Coria, 879, controlled omitted.) substances.’ italics sale Notably, the statute that covers possession methamphetamine 11378, section precursors, covers only certain and does not extend precursors to the hydriodic acid Perez cure possessed.5 would 11104, 11100, (a), (a)(33), (36) (sale See sections subdivision subdivision or transfer of hydriodic 11104, (b), or red phosphorus punishable felony) as and sections subdivision 11107.1, (a) (sale misdemeanor). subdivision iodine as punishable transfer of punishes possession Section methamphetamine for sale of the listed in 11055, (f), only section but phenylacetone, subdivision that subdivision covers not red iodine, (§ 11055, (f)(1)(A); v. Pierson phosphorus, or even acid. subd. 983, Cal.App.4th 991 [103 1, even only step possession omission if Perez were by arguing sell, to convict and him under punish with the intent to this would be enough 3, 11383(c)(2), also with the which penalizes step section the intent to But would render manufacture. this interpretation sell, conduct, the sale itself included a more serious than (step lesser 11383(c)(2).) This is an anomalous 2). (a) subd. with § (Compare § result inconsistent with the overall structure.
Third, section 11383 sheds legislative to the extent the history underlying down actual shutting it indicates that statute aimed any light, laboratories, Section 11383 not the manufacturers’ manufacturing suppliers. Uniform Controlled Substances was enacted as of the 1972 California part 1407, 3, 3024), (Stats. legislative history Act ch. original § intended scope. Legislature offers no into the section’s insight by adding chemicals covered significantly expanded range precursor (Stats. Documents (c) ch. subdivision the section. written, that, section 11383 amendment explained support it did not cover new chemical raids on laboratories because drug impaired manufacturing methamphet- had devised for combinations criminal chemists amine; thus, could be made. unless had no arrests begun, *11 on Bill Enrolled Bill Assem. Rep. Youth and Adult Correctional Agency, Sess.) for Governor (1987-1988 Deukmejian (Sept. No. 2501 Reg. prepared 1, 3; 1987) Van to Assemblywoman General John de letter Kamp, p. Attorney 23, 1987.) 2501], The Attorney of Assem. Bill No. Apr. Killea Lucy [author once to again the amendment to allow law enforcement General sponsored labs begins. Illegal before the illegal manufacturing process “shut down labs together. are reacting are more once the chemical dangerous ingredients to helps prevent are manufactured Shutting drugs down labs before to the drugs the flow of dangerous law enforcement and interrupts to injuries on No. 2501 Safety, on Assem. Bill (Assem. Rep. street.” Com. Pub. 1-2; accord, 20, 1987, Sen. (1987-1988 Sess.) as amended Reg. Apr. pp. Sess.) (1987-1988 as Bill 2501 Reg. Com. on on Assem. No. Judiciary, Rep. 19, 1987, focused 3.) of the need for bill amended Discussion May p. the need to shut down the methamphetamine on exclusively operators laboratories. (c)(2), 1995, 11383 add subdivision amended section to Legislature
In 571, ch. (Stats. acid its covering hydriodic precursors. in section to close loophole The amendment was passed p. laboratory illegal operators had allowed methamphetamine 11383 that acid from hydriodic manufacture iodine and iodine crystals purchase (1995-1996 No. 419 on Sen. Bill (Assem. Safety, Rep. Com. on Pub. them. McCall, 28, 1995, 2-3; 32 supra, v. Sess.) People as amended Mar. pp. Reg. contrast, were understood 190-191.) In suppliers Cal.4th at pp. (Assem. Com. on 11383. section not section as under being regulated (1995-1996 Sess.) Pub. on Sen. Bill No. 419 as amended Safety, Rep. Reg. 28, 1995, Thus, Mar. section 11383 was understood as applying those who were themselves laboratories and who operating methamphetamine intended to in not to the labora- participate methamphetamine, tories’ suppliers. that other similar statutes have People argue been construed
criminalize carry intent someone else out a further act. For prohibited section 11351 criminalizes example, “possession] v. People Consuegra sale” of controlled substances. specified v. 288], footnote Cal.App.4th Parra, supra, 226-227, at Cal.App.4th pages Courts of Appeal as to those interpreted language extending who controlled possess with the substances intent that someone else sell them.
Here, acts, context, the covered grammar are different. quite Parra rested in conclusion that is “no part meaningful there distinction in culpability between defendant who sub actually sells the controlled stance defendant who it with the transports intent specific it, someone else will sell both share to sell.” they specific Parra, v. (People supra, 227; accord, Cal.App.4th Consuegra, supra, fn. 4 no Cal.App.4th meaningful see [“We distinction in culpability between individual who sell drugs holds and the one who holds them sell”].) for others to same cannot be said of the who intends to sell person chemicals to a manufac precursor turer and the who person intends manufacture the final illegal substance. The statutory context discussed above that a legislative reflects judgment who intends to more than a sells person who culpable chemicals; the manufacturer *12 the a necessary it follows that who person intends to is also more than a to who intends culpable sell, sold, but has not the yet chemicals.6 section 11351 necessary Finally, sale,” criminalizes not “possession] with intent to sell.” This “possession construction, the 11383(c)(2), unlike construction used in passive section Parra and does not the must also be the seller. imply possessor Accordingly, Consuegra, which concerned for sale and not possession possession manufacture, intent to are distinguishable. absent of to
Consequently, proof personally participate manufacturing, Perez could not be convicted aas direct violator of section 11383(c)(2). them, way, Put another whether one transfers controlled substances to a seller or sells the contrast,
vice the same—that of In the supplier distribution. and the manufacturer are of distinct and legislative vices—distribution creation—that be structure indicates should differently. treated combined 11383(c)(2), this argue interpretation section liability requires predicate determination that aiding abetting law will enforcement hamper offense committed direct by perpetrator, officers to wait until trafficking by constraining efforts shut down drug to host criminalize involvement been delivered. Not so. A of statutes drugs have ante, stages drug manufacturing at various process. addition, law covers 1229-1230.) of attempt conspiracy pp. sale, transfer, or manufactur- inchoate crimes and allows intervention before has been ing completed. event, exist, not with if do the answer lies with the Legislature,
In any gaps or common law doctrine distortion of either a centuries-old judicial laboratories. Logically, statute aimed at methamphetamine plain language to them to a with intent sell methamphetamine under section manufacturer should be punishable methamphetamine methods to appears but the evolution of methamphetamine amended has Legislature have While response. outpaced of the methamphet- sale regulate sections 11107.1 issue, or the it has not section 11378 yet updated amine here cross-references, (f), to their regulate it section subdivision section these for sale. If the wishes amend provisions Legislature address it do so. this gap, may Analysis
III. Harmless Error 11383(c)(2) concluding us from Our of section prevents interpretation law were involving the basis of that statute that the errors light whether were otherwise harmless in they harmless. We consider to the jury. evidence and theories remaining presented First, noted, trial infected of related errors. by pair As when no of an aiding and abetting proof trial court instructions on gave element, a second had completed party, essential an attempted Second, from court defense counsel been introduced. trial prevented in fact required was fatal—that aiding that this omission arguing the defense’s objection an crime— overruled proof independent law errors are state that omitted element. These argument prosecution 818, 836 v. Watson (1956) 46 Cal.2d under analysis subject *13 Watson, is if it is reasonably P.2d reversal required “Under 243]. [299 had the more favorable to the defendant the result would have been probable Guiton, 4 Cal.4th at 1130.) v. (People supra, p. error not occurred.” The nature of this harmless error on whether a analysis jury depends has been a theory. invalid or a invalid When presented legally factually one of the a a theories to is such as presented jury legally theory inadequate, “ ” which ‘fails come within the definition of crime’ the Guiton, (People v. v. supra, United States Cal.4th at quoting Griffin 466]), 502 U.S. L.Ed.2d S.Ct. the cannot jury [116 be to divine reasonably legal its render a expected inadequacy. jury may that, verdict on the basis of the invalid without a legally theory realizing law, matter of its factual are insufficient the findings charged constitute circumstances, crime. In such reversal is unless “it generally required is to determine from other possible portions verdict the jury (Guiton, found the defendant a necessarily at proper theory.” contrast, when one of the theories jury presented factually that, correct, such as a inadequate, theory while has no legally application Guiton, case, the facts of the a different apply we standard. supra, instance, 1129-1130.) Cal.4th In that the we must assess entire pp. record, instructions, counsel, the facts and the “including arguments the deliberations, communications any from jury and the entire during (Id. verdict.” We will affirm “unless review the entire record demonstrates a affirmatively reasonable that the in fact found probability jury (Ibid.) the defendant on the guilty solely unsupported theory.” The errors here be characterized as may involving either presentation a legally inadequate or We factually need not decide inadequate theory. test, which characterization is correct because under either harmless error error was prejudicial. argued to prosecution jury legally inadequate theory,
theory that of hydriodic acid precursors, plus someone else use them criminal to manufacture methamphetamine, under either an aiding and or as direct violation theory of section 11383(c)(2). The trial court counsel from out the prevented defense pointing legal this in the record inadequacy theory. Nothing establishes that jury necessarily and instead rejected theory convicted on the that Perez theory intended prosecu “[W]hen theories, tion its case to the presents on alternate some of which are incorrect, correct and others legally and the legally court cannot reviewing determine from record on which general verdict of ensuing (People rested, v. Green guilt conviction cannot stand.” 27 Cal.3d 609 P.2d Cal.Rptr. *14 treat error the if we on the instructions and the We reach same result focus 3.01, No. which a was instructed with CALJIC factual one. jury the conviction aiding abetting proof recited that an and requires correctly the “aid[ed], commis instigate[d] defendant has encourage[d] promote[d], correct but the crime.” The of such giving legally inapposite sion of theory. amounts to the a factually inadequate instruction presentation Guiton, 4 Cal.4th at supra, v. the 1129-1130.) Our review of pp. the found reasonable jury record demonstrates a affirmatively probability solely theory. defendant on this unsupported
If, an the ignore we need rulings, prove in trial court’s light crime, stronger and was than aiding the evidence of independent by Perez to any supporting manufacturing Perez tying
The sole evidence to personal methamphetamine he knew the chemicals he iodine and red was that possessed phosphorus, had a to make pair could be combined methamphetamine, possessed same evidence equally supported This hydrogen-iodide-stained jeans. theory additionally but theory, prosecution’s that he intended sell Perez’s admissions to by police supported in his amount of cash found large third party he intended A well Perez’s assertion that might doubt jury possession. weigh it have to $50 Ana to for a but would drive from Santa Pasadena profit, any of evidence that Perez such doubt the absence any against possessed chemicals or instruments remaining required complete numerous Pierson, supra, (see manufacturing Cal.App.4th process theory 986-987), that undermined personal omissions pp. and abetting theory. but not the aiding record, both argued this though prosecution
Consistent with state its more time arguing it led with during closing spent theories argument, an extended Defense counsel likewise abetting theory. spent him the trial court’s rulings precluded this but rebutting theory, again, period flaw. from out its fatal pointing verdict, no clue as to which which offered returned general jury 11383(c)(2) conviction. on in section reaching it have relied
theory might there is reasonable we are persuaded the evidence and argument, Given Perez based on solely unsupported convicted probability instructing the errors and abetting theory. Consequently, out its flaws were prejudicial. defense from pointing counsel barring
1235
Disposition reasons, For the we affirm the of the Court of foregoing judgment Appeal and for remand further consistent with this proceedings opinion. J., Kennard, J., Baxter, J., J., Chin, C.
George, and concurred. BROWN, J., and Concurring.—I agree with I II of the parts majority and HI to the extent it the opinion, part concludes that jury presented awith legally inadequate theory.
Here, as set forth the the majority on two opinion, People proceeded theories regarding the acid charge hydriodic with the possessing precursors Code, intent to (Health & Saf. former methamphetamine. 11383, 1, (c)(2), 4418; ante, subd. Stats. ch. § p. maj. opn., 1224.) They defendant was argued “liable as a direct because peipetrator he the possessed intended to precursors manufacture metham- ante, alternative, phetamine.” (Maj. opn., In the argued defendant was “liable an aider and abettor he because possessed the intent to sell them to another to be used in (Ibid.) methamphetamine.” “During closing argument, over prosecution argued, objection, [defendant’s] liability only that required proof possessed [defendant] with the knowledge that someone would else use them to manu- facture The trial court defense counsel from prevented for arguing liability of a required proof completed offense, attempt denied instruction on this special proposed point, ruling no need crime under the statute.’ completed ‘[t]here’s Instead, case, in accordance of the theory court prosecution’s 3.01, gave CALJIC Nos. 3.00 standard instructions on defendant, (Ibid,) here, abetting.” convicted violating as relevant Health and Safety (c)(2). Code former section subdivision (Maj. opn., ante, at v. United States L.Ed.2d U.S. S.Ct. [116 Griffin
466], law, high court “drew distinction between mistake about reversal, which is mistake subject to rule and a generally requiring evidence, concerning or the factual weight which does not import reversal when another valid require basis for conviction exists.” (People P.2d Guiton (1993) 4 45] Cal.4th stated, are not generally (Guiton).) court “Jurors equipped As high is to them conviction submitted determine whether particular law—whether, action in question *16 for the protected contrary example, Constitution, barred, to come the time or fails within the is When, therefore, of left the option have been definition of the crime. jurors to think that their there is no reason theory, a legally relying upon inadequate Quite the save them from that error. will expertise own intelligence true, however, left the of relying is when have been they option opposite are well to analyze theory, since factually jurors equipped upon inadequate rule, Guiton, 59.) the at this court adopted (Griffin, the evidence.” Griffin ground whenever valid for that “reversal is not required which provides remains, the verdict an indication in the record that affirmative verdict absent factually state law for rest inadequate ground,” did on actually v. Green theories, (1980) 27 Cal.3d and retained the rule of inadequate 468], reversal “absent P.2d which generally requires Cal.Rptr. [164 based on valid verdict was actually in the record to find basis 1125, 1128-1129.) (Guiton, at theories. pp. ground,” legally inadequate Here, find defendant violation jury was permitted (c)(2) an subdivision Health and Code former section Safety completed in absence any proof abetting theory or intent to manufacture methamphetamine either with the and the “People a second party, actual manufacture of methamphetamine ante, at theory.” (Maj. opn., eschewed any attempt exist under these cannot abetting liability to know that ill-equipped circumstances, factually, inadequate. not legally, hence this theory defendant’s to personally be some evidence of
While there may theory and factual legal which was a manufacture methamphetamine, proper that “the case, means theory of the legally inadequate in this presence record to find absent a basis Green rule reversal applies, requiring (Guiton, supra, 4 Cal.4th based on a valid actually ground.” the verdict was can be no direct concludes that there The majority properly (c)(2) subdivision Code former section Health and Safety violation of someone else use the intent if one possesses hydriodic not and that the record does them in manufacturing methamphetamine, possessed on the defendant relied jury actually demonstrate the intent to (Maj. ante, Hence, opn., 1227-1234.) pp. the error is under either the prejudicial Chapman Watson standard of review. (Chapman California 386 U.S. L.Ed.2d 824]; 87 S.Ct. v. Watson [17 Cal.2d P.2d
Moreno, J., concurred.