Legal Information
In the course of investigating another crime, a Lake County deputy sheriff smelled a strong odor related to methamphetamine manufacture emanating from a pickup truck {Slip Opn. Page 3} located in the parking lot next to a motel in Lakeport. Later, the officer smelled the same odor coming from room 10 at the motel, situated directly across the lawn from the truck. The officer knocked on the door of room 10 and demanded entry to do a search but was refused. The officer went around to the back door of room 10 and noticed it was ajar, but when the officer started to push it open, defendant slammed the door shut. Next, the officer heard what sounded like furniture being moved against the door as though the person in the room was barricading himself inside. After several hours of negotiations failed to persuade defendant to surrender, tear gas was used to drive him from the room. Defendant was taken into custody and the room was searched. Keys to the truck were found in the room. From the truck, law enforcement officers seized numerous items that could be used in the manufacture of methamphetamine, including two plastic gas cans, a five-gallon white plastic bucket with a lid on it, and a red zippered bag that held three canning jars. Each contained liquid. By combining the contents of the five-gallon bucket with those of the two gas cans, the total volume amounted to at least four gallons. From room 10, officers seized additional items that could be used in the manufacture of methamphetamine. These items included several pieces of glassware that can function as chemical reaction vessels. In addition, officers seized a garbage bag containing a box of Red Devil lye, also used in the methamphetamine manufacturing process, and empty boxes of pseudoephedrine. Pseudoephedrine can be a source of ephedrine used in the manufacture of methamphetamine. Ephedrine was found in a round bottom flask located in the bathroom of room 10. Gregory Popovich, a clandestine controlled substances laboratory expert employed by the California Department of Justice, testified that he arrived at the scene soon after the arrest of defendant, examined the materials found in the truck and entered and examined room 10. He found evidence of two different methods for manufacturing methamphetamine: the ephedrine reduction method and the phenyl-2-propanone (P-2-P) method. In the ephedrine reduction method, ephedrine is extracted from cold tablets by a {Slip Opn. Page 4} multistep process that includes grinding the tablets into a fine powder to which chemicals are applied. Popovich testified that the ephedrine in the round bottom flask represented an early stage of this process. He explained that in later steps the ephedrine is turned into crystallized methamphetamine, which is then washed with an organic solvent to further purify it. He found no completed methamphetamine in room 10, but did find chemicals consistent with manufacture employing the ephedrine reduction method. Popovich found glassware in room 10 that he associated with the P-2-P method due to residue in the glassware. However, he did not find all of the other materials needed for production under the P-2-P method in room 10 or in the truck. The liquids found in the containers seized from the truck were organic solvents that had earlier been used to produce methamphetamine by means of the P-2-P method. The presence of methamphetamine, together with P-2-P in these liquids, suggested that these solvents were waste material from which methamphetamine had previously been extracted. In the final step of both the P-2-P and ephedrine reduction processes, an organic solvent is used to clean or purify the crystallized methamphetamine. Popovich explained that methamphetamine manufacturers tend to save and reuse such solvents because law enforcement agents look for large sales of them. He further stated that methamphetamine could be extracted from these solvents, but that they probably did not contain a "significant amount of product." Popovich could not say that the solvent taken from the truck had been produced in room 10, but stated that it had the potential to be used to further purify the methamphetamine that was in the course of production in room 10, even though the method being used in room 10 was the ephedrine reduction method. He concluded that the presence of methamphetamine in the solvent would not increase its effectiveness in the purification process. {Slip Opn. Page 5} DISCUSSION I. The Jury Instruction on Volume Enhancement Was Valid Over defendant's objection the court modified the 1996 version of CALJIC No. 17.21, fn. 1 the standard instruction defining the volume enhancement imposed by Health and Safety Code fn. 2 section 11379.8, subdivision (a)(1). The key portion of the court's modified instruction read as follows: "It is alleged under count one in the first special allegation that the substance containing methamphetamine exceeded three gallons of liquid by volume within the meaning of [section] 11379.8, subdivision (a)(1). [] In order for you to find this special allegation to be true, the following elements must be proved: [] One, the person was convicted of manufacturing methamphetamine; two, one of the substances used in, to be used in or produced during the manufacturing process contained methamphetamine; and three, that substance containing methamphetamine exceeded three gallons of liquid by volume." The jury later found this volume enhancement true. This instruction permits a true finding even if the substance containing methamphetamine, the solvent in this case, had not yet been used in the manufacturing process.