Plaintiff and Respondent,
v.
DAVID J. ARENZ,
Defendant and Appellant.
No. B152076
Superior Court No.
KA051420 (Los
Angeles County)
Appeal from Superior Court of California, County of Los Angeles, Hon.
Robert M. Martinez, Judge Presiding
MARTIN KASSMAN
ATTORNEY AT LAW
State Bar No. 136326
[Contact information, no longer current, appeared here.]
Attorney for Defendant and Appellant DAVID J. ARENZ
TABLE OF AUTHORITIES (omitted from Web version)
I. Introduction
Defendant and appellant David J. Arenz (hereafter Mr. Arenz) appeals from the Superior Court's order sentencing him to 20 years in state prison. (CT(1) 169; RT(2) 1217.) A jury found Mr. Arenz guilty of one count of possession of hydriodic acid with intent to manufacture methamphetamine. (CT 106; see CT 30.) The trial court found true allegations that Mr. Arenz suffered four prior specified drug-related convictions and served two prior prison terms. (RT 1208-1209; see CT 31-32.)
No rational trier of fact could have concluded that the prosecution proved beyond a reasonable doubt that Mr. Arenz ever possessed the contraband found in the rear of the vehicle in which he had been a front-seat passenger. Moreover, even if that were not so, the prosecution failed to adduce any substantial evidence that the contraband found in the vehicle contained hydriodic acid. For both of these reasons, the conviction of Mr. Arenz for possession of hydriodic acid with intent to manufacture methamphetamine contravened the Fourteenth Amendment's guarantee of due process of law. The conviction should be reversed.
II. Statement of Appealability
The judgment appealed from is final.
III. Procedural History
On July 23, 2001, the prosecution filed in Los Angeles County Superior Court an Amended Information which charged Mr. Arenz with one count of possession of hydriodic acid with intent to manufacture methamphetamine (Health & Saf. Code, § 11383, subd. (c)(2)) (Count 1) and one count of manufacturing methamphetamine (Health & Saf. Code, § 11379.6, subd. (a)) (Count 2). The information also alleged that Mr. Arenz had suffered specified drug-related prior convictions on four occasions (Health & Saf. Code, § 11370.2, subd. (b)) and that he had served two prior prison terms (Pen. Code, § 667.5, subd. (b)). (CT 30-32.) Mr. Arenz pled not guilty and denied the special allegations. (RT C3-C4.)
On July 27, 2001, a jury convicted Mr. Arenz on Count 1 and acquitted him on Count 2. (CT 106-107; RT 943-945.) In a court trial on August 1, 2001, the trial court found true the four prior conviction allegations under Health and Safety Code section 11370.2, subdivision (b), and the two prior prison term allegations under Penal Code section 667.5, subdivision (b). (CT 166-167; RT 1208-1209.)
The trial court conducted a sentencing hearing immediately after the trial on the priors. The court sentenced Mr. Arenz to the high term of six years on Count 1, four consecutive three-year terms for the prior drug conviction enhancements, and two consecutive one-year terms for the prior prison term enhancements, for a total of 20 years in state prison. (RT 1217; CT 169.)
Mr. Arenz filed a notice of appeal on the same day. (CT 170.)
IV. Facts
On October 26, 2000, around 8:55 p.m., Pomona police officers on patrol in an unmarked blue Chevrolet noticed a vehicle illegally parked, stopped in the middle of the street, in front of 579 Date Street. (RT 313-314, 335.) Mr. Arenz was exiting the vehicle from the front passenger seat. (RT 313-314, 331.) The car did not belong to him. (RT 323.) The officers -- Albert Cox, who was driving the police car, and his partner, Rick Sprague -- turned on a spotlight and illuminated the double-parked vehicle. (RT 312, 314.) Mr. Arenz walked toward the Date Street address, and the double-parked vehicle began to move slowly away. (RT 314-315.) Officer Cox went to make contact with Mr. Arenz and noticed that he was carrying a backpack and a flashlight. (RT 315.)
After stopping Mr. Arenz, Officer Cox asked why he was there. Mr. Arenz replied that he was going to pick up his bike. There were some bikes in front of the residence; Mr. Arenz had not reached the bikes before Cox stopped him. (RT 322-323.) With Mr. Arenz's permission, Officer Cox checked the backpack, which Mr. Arenz claimed was not his but the driver's. (RT 315-316, 323.) The officer found a small bottle of lighter fluid, electrical tape, a bracelet and a pen. (RT 316.) There was no identification in the backpack. (RT 336.)
Meantime, Officer Sprague was making contact with the driver of the vehicle, Daniel Edward Robinson, who had "more or less" pulled to the right and parked, maybe 25 feet from where the police initially observed him. (RT 316, 327, 334-335.) Sprague walked Robinson over to Cox and Mr. Arenz. At Sprague's direction, Cox went to the vehicle. He looked inside and saw on the rear passenger seat a glass jar that appeared to contain iodine tablets, which were dark grey and round. He saw on the floorboard a plastic bag, which he later observed to contain red phosphorous. (RT 317.)
Officer Cox testified that the red powder and grey pellets "are precursors to make hydriodic acid which is a precursor to methamphetamine." Lighter fluid is a cleansing agent that can help break down ephedrine so that it can be better used to manufacture methamphetamine. (RT 318.) Cox formed the opinion that the items he found were precursors for the manufacture of methamphetamine. (RT 319.)(3) As a result, the officers arrested Mr. Arenz and Robinson. (RT 319, 327.)
During the prebooking process, Officer Cox asked Mr. Arenz questions, including what his name was. Mr. Arenz, who was not carrying identification, gave the names David Ray Everson and David Ray Adams before giving the name that Officer Cox believed was his true name, David John Arenz. (RT 319-321.)
Deputy Sheriff Nicholas Acosta, of the Bureau of Narcotics Enforcement Alert Team, testified that on a date characterized by the prosecutor as "I guess on October 26th of [2000]," he was informed that Pomona Police Department officers "had contacted our team and requested that I respond to their lab area, or their lockup I believe it was." (RT 339-341.) When he responded to that area, the officers gave him "two envelopes which contained markings, one that read phosphorous and one that read iodine I believe." Acosta did not open the envelopes. (RT 341-342.) He was told where the items were recovered, but he could not recall this information at trial. (RT 346.)
Regarding the process of manufacturing methamphetamine, Deputy Acosta testified: "Red phosphorous and iodine are what we are finding today in the processing, the initial stage of cooking methamphetamine." (RT 342.) He elaborated:
What we are seeing being done is red phosphorous and iodine are being mixed with pseudoephedrine which produces hydriodic acid. Hydriodic acid can also be used in lieu of red phosphorous iodine. This causes a reaction within this mixture which changes the pseudoephedrine, actually, into methamphetamine.
(RT 343.) He also testified that "lighter fluid or organic solvents" are used to "separate the methamphetamine from one stage to another." (RT 343-344.)
Deputy Acosta expressed the opinion that the items shown him by the Pomona police officers were "used for the purpose of manufacturing methamphetamine in the initial stage." (RT 344.) He stated that he had "not seen red phosphorous iodine used in that combination for any other purpose." (Ibid.) He also testified:
The results when I returned from the chemist showed the red phosphorous had returned with methamphetamine traces or methamphetamine inside of it, which showed me that -- hydriodic acid, which is a result of the red phosphorous and iodine being combined, shows me that a cook had occurred producing methamphetamine.
(Ibid.; see also RT 347 ["I did not form the opinion that the cook had actually occurred until I saw the test results which showed hydriodic acid and methamphetamine trace or methamphetamine in the red phosphorous"].)
Asked whether "the lighter fluid" affected his opinion, Deputy Acosta stated, "It tells me that at one point they were either going to extract the methamphetamine or had already extracted it and had left over." (RT 345.) Acosta acknowledged that the cook could occur without the presence of lighter fluid. (RT 347.)
Chien-Hsing Lee, a senior criminalist with the Los Angeles County Sheriff's Department, testified that his job was to "analyze samples that come into the laboratory suspected of containing controlled substances." (RT 350-351.) On direct examination of Lee by the prosecutor, the following exchange occurred:
Q Now on October 27th of this year [sic](4) did you have a sample that was submitted to you by a Deputy Acosta from the Bureau of Narcotics Enforcement?
A There was a bucket with several items that were submitted.
Q Okay. What were those items?
A There were total of two items. The first item was a plastic bag contained some red powder. And item no. 2 was a 2-ounce glass area that contained what I call a grey pril (phonetic). These are little BB's.
(RT 352.)(5)
The red powder analyzed by Lee appeared to have been used in a cooking stage of methamphetamine manufacturing. (RT 352-353.) It was consistent with red phosphorous, and it contained methamphetamine and residual hydriodic acid. (RT 353.)
Regarding the process of manufacturing methamphetamine, Lee testified:
The typical way we see in the field in Southern California you take some red phosphorous, you take some iodine and take some ephedrine or pseudoephedrine, you combine this in a glass jar or glass device, you add some water, you may or may not add heat to this, and this will manufacture methamphetamine. The red phosphorous and iodine along with the water will generate hydriodic acid.
(RT 354.)
In order to get ephedrine or pseudoephedrine to convert over to methamphetamine, you need a reducing agent. In this case it would be hydriodic acid. If you take iodine and red phosphorous and you add water to that alone that will generate some heat and also generate hydriodic acid.
(RT 354-355.)
Lee testified that lighter fluid could be useful in manufacturing methamphetamine but that he did not identify any lighter fluid in the sample he analyzed. (RT 356.) He testified that just the red powder and the iodine pellets were not enough to manufacture methamphetamine. (RT 357.)
Over defense objection, the trial court allowed the prosecution to admit evidence of prior incidents in which Mr. Arenz was involved with methamphetamine. (RT 1-8.)(6) Officer Mark McCann of the Pomona Police Department testified that on November 20, 1998, he approached Mr. Arenz, who threw on the ground a white object that turned out to be paper folded into a bindle. McCann asked Mr. Arenz what was inside; Mr. Arenz "said something to the effect it's just a little meth." (RT 358-362.)
Sergeant Brian Fitch of the Los Angeles County Sheriff's Department testified that on June 11, 1992, when he was a narcotics detective, he served a search warrant at Apartment 55 at a complex in the City of West Covina. Fitch saw Mr. Arenz just outside Apartment 55 and informed him that he had a search warrant for the apartment and Mr. Arenz. Mr. Arenz "went into basically oh, no, oh, no," saying "I am going to prison for seven years." Inside the apartment, Fitch found several items indicative of methamphetamine manufacturing. When Fitch placed both Mr. Arenz and a young lady who was in the apartment under arrest for manufacturing methamphetamine, Mr. Arenz "told me that it's not hers, it's mine. You know, I am not selling it. I am a drug addict." (RT 369-373.)
Paul Pantini, a police officer with the City of Glendora, testified that on May 22, 1994, he was dispatched to a motel room, where he came "in contact with someone by the name of David Arenz" (prosecutor's words).(7) There were two other people in the room. Pantini and other officers found methamphetamine, illegal narcotics, and items related to manufacturing methamphetamines. They found red phosphorous, iodine crystals, and lighter fluid. Pantini asked someone which bed Mr. Arenz slept in. Based on that answer, he searched the area of one of the beds. He found a portable radio, inside of which were "small plastic baggies containing white powdery substance which I believed to be methamphetamine and a large amount of cash." (RT 613-616.)
Daniel Edward Robinson, who was arrested with Mr. Arenz on October 26, 2000, testified for the defense. (RT 619-620.) The vehicle he was driving that evening didn't belong to Robinson, but he was in possession of it. (RT 620.) The red phosphorous powder and iodine pellets in the vehicle belonged to Robinson. Both were underneath the driver's seat. (RT 620-621.) The backpack and everything in it, including the charcoal lighter fluid, also belonged to Robinson. (RT 621.) Robinson had previously used the items found in the car to manufacture methamphetamine. (RT 622.) Some months before the trial, he had pled guilty to a felony in connection with possession of those items; he was now in custody because of that guilty plea. (RT 622-623.)
On the night the two were arrested, Mr. Arenz, with whom Robinson was acquainted, flagged him down for a ride "[d]own the street a couple of blocks" from where they eventually were arrested; it took "[a] few minutes" to drive there. (RT 621-622.) Robinson did not discuss the illegal items with Mr. Arenz. When Mr. Arenz was getting out of the car, he asked if he could borrow Robinson's backpack. Mr. Arenz got out of the car and Robinson "took off, that's when they pulled me over." (RT 623.) At the moment the police turned their spotlight on, Mr. Arenz already was out of the vehicle and walking, and Robinson had started to pull away. (RT 623-624.)
On cross-examination by the prosecutor, Robinson testified that he knew Mr. Arenz was a methamphetamine user, as was Robinson himself. The two had never used methamphetamine together, nor had they ever manufactured methamphetamine together. (RT 625.) Mr. Arenz had never talked with Robinson about manufacturing methamphetamine. (RT 625-626.) Robinson knew who lived at 579 Date Street, the address in front of which he was stopped. He had never known anyone to manufacture methamphetamine at that address, but he knew that people used methamphetamine there. (RT 626.)
Mr. Arenz wrote Robinson a letter while Robinson was in custody. In the letter, Mr. Arenz told Robinson to what he wanted him to testify; told Robinson how much time he thought he would be facing in prison if Robinson did not testify; and told Robinson that he was going to give Robinson money if Robinson came in and testified on his behalf. (RT 627-628.) On redirect examination, Robinson testified that the discussion of money in the letter revolved around a potential lawsuit by Mr. Arenz, who indicated that if he won the lawsuit he would be happy to help Robinson's wife and baby. (RT 628.)
Officer Cox, recalled by the defense, testified that the name "Denny" was on the backpack he found. (RT 630.) The police's reason for stopping the vehicle driven by Robinson was that it was parked illegally. (RT 631.) The police's turning on their spotlight and Mr. Arenz's exiting the vehicle occurred simultaneously. "The spotlights were being turned on as he exited the vehicle." Cox did not remember whether or not the passenger door was open before the spotlight was turned on. (RT 632.)(8)
Mr. Arenz testified in his own defense. (RT 637.) He had known Daniel Edward Robinson for "maybe a year." On October 26, 2000, Mr. Arenz was staying on Randolph Street, on someone's couch. He was walking back to where he had dropped off his bike when he saw Robinson and asked him for a ride. (RT 638.) The place where Mr. Arenz had dropped off his bike, earlier that evening, was the place where he was arrested. He knew people at that address. It was "maybe six blocks," not more than five minutes, from where Robinson picked him up. (RT 639.)
When Mr. Arenz got into the car, he sat in the right front passenger seat. (RT 639-640.) When they arrived at the location where Mr. Arenz had asked Robinson to take him, Mr. Arenz asked if he could borrow a backpack that was in the front seat; he intended to put clothes in it. (RT 640.) Mr. Arenz did not look to see what was in the backpack. (RT 641.) After Mr. Arenz got out of the car with the backpack and walked around the back of the car, approaching the house, the police spotlights went on the car. (RT 640-641.)
Mr. Arenz had been convicted of drug offenses before. He was a methamphetamine user. He had manufactured methamphetamine in the distant past, years ago. (RT 641-642.) When he got into the car driven by Robinson, Mr. Arenz did not have occasion to look on the left rear floorboard or to look in the back seat. He did not know that there was any red phosphorous or red powder in the car; he would recognize that if he saw it. (RT 642.)
On cross-examination, the prosecutor elicited admissions from Mr. Arenz that he was convicted in 1991 of manufacturing methamphetamine and possession of hydriodic acid and ephedrine with the intent to manufacture; that he "probably" was convicted in 1993 of manufacturing methamphetamine; that he was convicted in the same court case of possession of methamphetamine for sale; and that in 1994 he was convicted of possession of ephedrine with intent to manufacture methamphetamine and of possession of methamphetamine for sale. (RT 643.) It was fair to say that Mr. Arenz was a methamphetamine addict. He had the knowledge of how to make methamphetamine; he had made it in the past, "back years ago." (RT 644.)
On the day in question, Mr. Arenz asked Robinson to take him to the address on Date Street. Mr. Arenz's purpose in going there was not to use methamphetamine or to make methamphetamine. (RT 644.) Mr. Arenz might have used methamphetamine at the Date Street address once in the past. (RT 644-645.) He had not been involved in manufacturing of methamphetamine at that address. (RT 645.) Mr. Arenz had heard that Robinson also used methamphetamine, but the two had not used it together. (RT 645-646.)
While Robinson was in jail, Mr. Arenz wrote a letter intended for Robinson and sent it to Mr. Arenz's trial counsel, Mr. Borges, asking "if this letter would be okay to send to him if he would do that, if he would bring it to him or send it to him or get to it [sic] him." (RT 646.) The letter contained information to which Mr. Arenz wanted Robinson to testify. Mr. Arenz did not say that if Robinson testified on his behalf, he would be more than willing to give Robinson money to help out with his new child. (RT 647.) Mr. Arenz told Robinson that if "my lawsuit came through and his wife needed help with the baby I would try to help him out if I could." (RT 647-648.) Mr. Arenz explained the letter as follows:
It wasn't exactly what I wanted him to testify. It was more what went on that night to refresh his memory. I asked Mr. Borges the letter [sic] if this would be the okay thing to do, and he obviously thought it was or [sic] as he brought it or somehow got to it [sic] Mr. Robinson.
(RT 648.)
In the letter, Mr. Arenz told Robinson that if he didn't testify, Mr. Arenz thought he might get a long time in prison. That is why he wrote the letter, "because I didn't think I should take the blame for what he did." (Ibid.)
On redirect examination, Mr. Arenz testified that he was trying to get Robinson to take responsibility for what Robinson did. Mr. Arenz had nothing to do with any of the materials in the car, and he had no knowledge that they were in the car. Nor did he know that the lighter fluid was in the backpack. (RT 649.)
I. The Evidence Was Not Sufficient to Allow a Rational Trier of Fact
to Find Mr. Arenz Guilty Beyond a Reasonable Doubt.
The Due Process Clause of the Fourteenth Amendment requires that
a criminal conviction be based on evidence sufficient to "reasonably
support a finding of guilt beyond a reasonable doubt." (Jackson v. Virginia
(1979) 443 U.S. 307, 318 [99 S.Ct. 2781, 61 L.Ed.2d 560].) When a
conviction is challenged on the ground of insufficient evidence, the
appellate court must
review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence -- that is, evidence that is reasonable, credible, and of solid value -- from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.
(People v. Stanley (1995) 10 Cal.4th 764, 792.)
In order to convict Mr. Arenz on Count 1, the prosecution had to
prove (1) that Mr. Arenz "possessed hydriotic [sic] acid or a substance
containing hydriotic [sic] acid" and (2) that Mr. Arenz "had the specific
intent to manufacture methamphetamine." (CT 87 [trial court's instruction
to jury].) This brief is concerned with the first element. In part A below,
Mr. Arenz will demonstrate the lack of evidence that he "possessed" the red
phosphorous powder and iodine pellets found in the car driven by
Robinson. In part B, Mr. Arenz will demonstrate the lack of evidence that
the powder and pellets constituted hydriodic acid or a substance containing
hydriodic acid. Each point independently requires reversal.
A. There Was No Substantial Evidence That Mr. Arenz Ever Was in Possession of the Iodine Pellets and Red Phosphorous Powder Found in the Vehicle Driven by Daniel Robinson.
The trial court instructed the jury on the definition of "possession" in accordance with CALJIC No. 1.24. (CT 88.) As this Court has recognized in the context of the crime of receiving stolen property, CALJIC No. 1.24 essentially "require[s] the jury to find more than access or proximity, to wit, dominion and control," in order to establish possession. (People v. Gatlin (1989) 209 Cal.App.3d 31, 44-45 [Second District, Division Seven].) A conviction of unlawful possession of drugs likewise requires a finding that the defendant exercised dominion and control over the contraband. (See People v. Redrick (1961) 55 Cal.2d 282, 285 ["to establish unlawful possession of narcotics it must be shown that the accused exercised dominion and control over the drug with knowledge of its presence and narcotic character"; "proof of opportunity of access to a place where narcotics are found, without more, will not support a finding of unlawful possession"]; People v. Showers (1968) 68 Cal.2d 639, 642-643, cited in Com. to CALJIC No. 1.24 (6th ed. 1996) p. 28.)
In the instant case, there was no substantial evidence tending to establish that Mr. Arenz exercised dominion and control over the contraband found in the car driven by Robinson. The prosecution offered nothing more than Mr. Arenz's former presence as a passenger in the vehicle (which he exited without the contraband), the fact that there was some lighter fluid in the backpack he was carrying when the police stopped him, and Mr. Arenz's admission that he was addicted to methamphetamine.
The mere fact that a methamphetamine addict was in a car in which chemicals for manufacturing hydriodic acid were found is not sufficient to prove that he had any dominion or control over them, just as "[t]he mere fact that an addict is in a room from which a narcotic is thrown is not sufficient to prove that he had any dominion or control over it." (People v. Hancock (1957) 156 Cal.App.2d 305, 310; see id. at pp. 306-308, 310-311, 313 [evidence insufficient to convict defendant of possession of narcotics, even though defendant answered door to codefendant's hotel room from which heroin was thrown out of window, defendant's own hotel room contained "an apparatus used by addicts to inject heroin," defendant had "numerous puncture marks on the main vein of his left arm," defendant changed his story to police, and defendant had prior conviction for transporting narcotics], cited in People v. Showers, supra, 68 Cal.2d at p. 643; see also People v. Ingram (1978) 87 Cal.App.3d 832, 837 [defendant's former use of narcotics and presence on premises where narcotics were found would not, without more, support finding of unlawful possession]; People v. Boddie (1969) 274 Cal.App.2d 408, 412 ["that defendant, while under the influence of narcotics, was a passenger in an automobile being driven by a person also under the influence of narcotics, in which car narcotics were found in the glove compartment" was insufficient "to establish that defendant had knowledge of the presence of the narcotics, an essential element to the charge of possession"]; cf. People v. Foster (1953) 115 Cal.App.2d 866, 867-868 [where kit containing heroin was thrown out right front window of car by one of three persons in front seat, defendant was seated closest to window, and defendant denied seeing kit thrown out window, evidence was insufficient to convict defendant of possession: "To infer guilty knowledge in Phillips from the fact, standing alone, that he testified that he did not see the package thrown from the car would be to permit a conviction on the wildest sort of surmise and conjecture"], cited in People v. Showers, supra, 68 Cal.2d at p. 643.)
Nothing about Mr. Arenz's behavior at the scene suggested that he had any connection to the contraband. Mr. Arenz did not, for example, flee at the sight of the police.(9) Nor did he say anything to the police that suggested awareness of the contraband. (See People v. Stanford (1959) 176 Cal.App.2d 388, 389-391 [evidence was insufficient to convict defendant of possession of heroin and cocaine, even though some evidence placed defendant in bathroom where narcotics were found, where no contraband was found on defendant's person, defendant "committed no furtive act and made no incriminating statement," defendant did not live on premises, and no narcotics were found in room where defendant was arrested], cited in People v. Showers, supra, 68 Cal.2d at p. 643.)
The evidence against Mr. Arenz in this case was even weaker than that against the defendant in People v. Johnson (1984) 158 Cal.App.3d 850 [Second District, Division Seven]. In that case, this Court reversed a conviction by jury trial of possession of phencyclidine (PCP) for sale, on the ground that there was "no substantial evidence of defendant's possession of the contraband." (Id. at p. 852.) The evidence in Johnson was that police had searched a house in which six or seven people were "milling around" in the main room and the defendant and a woman were standing in a kitchen. Police found a bottle containing PCP in the bathroom. While searching the kitchen, police noticed a hole in an overhang in the ceiling. In the hole, the police found two more bottles containing PCP. (Ibid.) "A latent print lifted from the glass bottle containing 30 milliliters of PCP matched defendant's left thumb." (Id. at p. 853.) The police claimed that they could not determine who owned the property, but they had seen the defendant in the front yard of the house three days before the search. (Ibid.)
This Court began its analysis by noting that, in order to establish possession, "it must be shown that the accused exercised dominion and control over the contraband." (Id. at p. 853.)
Here, there was no evidence defendant physically possessed the substance in question. Nor was there solid credible evidence of his constructive possession. Constructive possession "occurs when the accused maintains control or a right to control the contraband; possession may be imputed when the contraband is found in a place which is immediately and exclusively accessible to the accused and subject to his dominion and control, or to the joint dominion and control of the accused and another." [Citation.]
Defendant's presence in the kitchen was not enough to show his constructive possession of the PCP in the bottles found in the hole in the ceiling. "[More] than mere presence must be shown in order to prove constructive possession . . . ." [Citation.]
(Id. at p. 854.)
The Court went on to quote language written by Justice Kaus in an earlier case:
"The inference of dominion and control is easily made when the contraband is discovered in a place over which the defendant has general dominion and control: his residence [citation], his automobile [citation], or his personal effects [citation]. However, when the contraband is located at premises other than those of the defendant, dominion and control may not be inferred solely from the fact of defendant's presence, even where the evidence shows knowledge of the presence of the drug and of its narcotic character."
(Ibid., quoting People v. Jenkins (1979) 91 Cal.App.3d 579, 584, italics added.)
The evidence in Johnson that police had seen the defendant in the house's front yard three days earlier did not, in this Court's view, "raise an inference defendant owned or lived at the premises. He could just as easily have been a guest." (People v. Johnson, supra, 158 Cal.App.3d at p. 855.) Even the fact that the defendant's thumbprint was on one of the bottles containing PCP could not support a finding beyond a reasonable doubt that he possessed PCP, because the bottle "could have been empty or filled with a legitimate substance at the time defendant's print was placed on it." (Ibid.) This Court quoted an earlier court's observation that "'an incriminating circumstance from which guilt may be inferred must not rest on conjecture. And by the same rule it is not permissible to pile conjecture upon conjecture.'" (Id. at p. 856, quoting People v. Flores (1943) 58 Cal.App.2d 764, 769-770.)
The prosecution's theory in the instant case that Mr. Arenz possessed the red phosphorous powder and iodine pellets, and that he intended to manufacture methamphetamine with them, is an instance of conjecture piled upon conjecture. The prosecution relied heavily on the fact that Mr. Arenz had been a passenger in the car driven by Robinson, where the contraband was found. In other words, dominion and control were inferred from Mr. Arenz's former presence in the car. Not only was there "no evidence defendant physically possessed the substance in question" (Johnson, supra, 158 Cal.App.3d at p. 854), but there was no physical evidence connecting Mr. Arenz with the containers of the contraband (unlike in Johnson, where the defendant's thumbprint was found on a bottle containing PCP). Nor was there any evidence that Mr. Arenz had been in the vehicle on any previous occasion (unlike in Johnson, where the defendant had been seen at the house three days earlier). Thus, this Court's conclusion in Johnson that there was insufficient evidence of the defendant's exercising dominion and control over the contraband applies with even greater force in the instant case.
"To permit the verdicts to stand in this case would be equivalent to
approving jury verdicts based on speculation and suspicion. Such, of
course, is not the law." (People v. Stanford, supra, 176 Cal.App.2d 388,
392.) "Evidence which merely raises a strong suspicion of the defendant's
guilt is not sufficient to support a conviction." (People v. Redmond (1969)
71 Cal.2d 745, 755, cited in People v. Marshall (1997) 15 Cal.4th 1, 35.)
In light of the lack of evidence that Mr. Arenz "possessed" the contraband,
even viewing the evidence in the light most favorable to the prosecution, no
"rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt." (Jackson v. Virginia, supra, 443 U.S. at p.
319; People v. Johnson (1980) 26 Cal.3d 557, 576.) The requirements of
due process were not satisfied. Accordingly, the judgment should be
reversed.
B. There Was No Substantial Evidence That the Items Found in the Vehicle Driven by Daniel Robinson Contained Hydriodic Acid.
Assuming arguendo that the evidence was sufficient to support a finding that Mr. Arenz "possessed" the red phosphorous powder and iodine pellets found in the vehicle driven by Daniel Robinson, the prosecution offered no proof that the phosphorous and iodine (with or without the lighter fluid) constituted hydriodic acid or a substance containing hydriodic acid.(10) Deputy Acosta testified that laboratory results "showed hydriodic acid and methamphetamine trace or methamphetamine in the red phosphorous" he submitted for testing (RT 347), and criminalist Chien-Hsing Lee confirmed that he found residual hydriodic acid in the powder he analyzed (RT 353); however, no one testified that this was the same red phosphorous powder found in the vehicle driven by Robinson.
Because the evidence could not "reasonably support a finding of guilt beyond a reasonable doubt," the conviction violated Mr. Arenz's Fourteenth Amendment right to due process of law. (Jackson v. Virginia, supra, 443 U.S. at p. 318.) The judgment should be reversed.
For the foregoing reasons, this Court should reverse the judgment of conviction.
Dated: May 23, 2002.
MARTIN KASSMAN
ATTORNEY AT LAW
[signature]
Attorney for Defendant and Appellant DAVID J. ARENZ
1. "CT" refers to the Clerk's Transcript.
2. "RT" refers to the Reporter's Transcript on Appeal.
3. Officer Cox testified both that the red phosphorous and iodine found in the car were sufficient by themselves to manufacture methamphetamine, without anything else (RT 328), and that the process of manufacturing methamphetamines could be begun, but not completed, with the items found in the car (RT 337).
4. Lee's testimony occurred on July 25, 2001. (CT 49-50.)
5. Lee gave no other testimony as to whence came the items.
6. The trial court instructed the jury that this evidence could not be considered to prove that Mr. Arenz was a person of bad character or had a disposition to commit crimes, but could be considered to prove intent, motive, "knowledge of the nature of the things found in his possession," and "to establish that the defendant had the knowledge or possessed the means that might have been useful or necessary for the commission of the crimes charged." (RT 358-359.)
7. Officer Pantini was not asked whether Mr. Arenz, the defendant in the instant case, was the same person he encountered on May 22, 1994.
8. Earlier in the trial, Cox testified that Mr. Arenz was exiting the car when the police put the spotlight on. (RT 331.)
9. The trial court properly refused the prosecution's request for a jury instruction on flight after commission of a crime. (CT 105.)
10. The prosecution elected not to proceed on an alternative theory that Mr. Arenz possessed precursors sufficient for the manufacture of hydriodic acid or possessed essential chemicals sufficient to manufacture hydriodic acid. (Health & Saf. Code, § 11383, subd. (f).) The prosecution requested, and the trial court gave, a jury instruction stating that, in order to be guilty of the section 11383 violation, Mr. Arenz must have "possessed hydriotic [sic] acid or a substance containing hydriotic [sic] acid," with the intent to manufacture methamphetamine. (CT 87; RT 666.) No instruction regarding possession of precursors or essential chemicals was requested or given. The information likewise alleged that Mr. Arenz possessed hydriodic acid or a product containing it, not that he possessed precursors or chemicals sufficient to manufacture it. (CT 30.)