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The People v. Ruben Verduzco

November 8, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
RUBEN VERDUZCO, DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of Los Angeles County, Michael J. O'Gara, Judge. (Los Angeles County Super. Ct. No. PA064114)

The opinion of the court was delivered by: Johnson, J.

CERTIFIED FOR PUBLICATION

Affirmed in part and reversed in part with directions.

Defendant Ruben Verduzco was convicted of one count of possession for sale of a controlled substance (methamphetamine) in violation of Health and Safety Code section 11378 (count 4), and one count of possession of an essential chemical sufficient to manufacture hydriodic acid or a reducing agent with intent to manufacture methamphetamine in violation of Health and Safety Code, section 11383.5, subdivision (e) (count 5).*fn1 He contends (1) insufficient evidence supports his conviction for possession of an essential chemical "sufficient to manufacture hydriodic acid or a reducing agent with intent to manufacture methamphetamine;" because he only possessed one of the chemicals necessary to make a reducing agent; (2) the court erred in instructing the jury by failing to define the meaning of a "reducing agent"; and (3) the court erred in imposing attorney fees without notice and a hearing pursuant to Penal Code section 987.8. We conclude that the statutory language requires possession of all constituents of a reducing agent, and reverse defendant's conviction on count 5.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

1. The Shoe Store and Search of Defendant's House

Police in Pacoima received information that a shoe store on Foothill Boulevard with a "3 for $20" sign was selling narcotics out of the store. The police put the store under surveillance.

On February 2, 2009, police saw Carlos Garcia ride to the store on a bike. After a short time in the store speaking with several men, Garcia came out of the store and retrieved something from the trunk of a parked Honda Accord, and returned to the shoe store. Shortly after that, Garcia left the store and rode off on his bicycle carrying a large white box.

Police stopped Garcia, and searched his person, a backpack he was carrying, and the box. Garcia's backpack contained red phosphorus; the box contained a glass flask with red phosphorus residue in the bottom.

A police search of the Honda Accord, the men in the shoe store, and the shoe store yielded 21.78 grams of cocaine and 33.61 grams of methamphetamine packaged in small baggies, a scale of the type commonly used for narcotics sales, empty baggies, a pay-and-owe sheet, and currency.

Police approached Garcia's house on Pinney Street, and observed defendant and a woman seated on a bed in the master bedroom. Police knocked on the front door, and defendant, wearing a T-shirt and boxer shorts, answered the door. With defendant's permission, police searched the house and found numerous items used to manufacture methamphetamine:

(1) A plastic bag containing red phosphorus;*fn2

(2) A flashlight containing white oblong Tylenol pills;*fn3

(3) A can of acetone;

(4) A piece of crystal-like material that can be used to "cut" methamphetamine;

(5) A plastic bag containing .15 grams of methamphetamine, found inside the pocket of defendant's pants hanging behind the door in defendant's bedroom.

(6) $2,353 in currency, found inside defendant's pants;

(7) 43 clear plastic baggies containing a total of 16.11 grams of methamphetamine found inside the pocket of a shirt hanging behind the door in defendant's bedroom;

(8) A digital scale; and

(9) A clear glass meth pipe found in defendant's bedroom between the wall and a bookcase.

2. The Process of Manufacturing Methamphetamine

Detective Frank Lyga testified that the manufacture of methamphetamine requires five steps. The first four produce the substance; the fifth step converts it to a smokable (crystal) form. Step one involves ephedrine extraction from cold tablets containing pseudoephedrine. Ephedrine is difficult to get, so methamphetamine labs purchase cold medications such as Sudafed. The pseudoephedrine in cold tablets is not water soluble. Denatured alcohol, acetone, and other solvents are used to break down the pseudoephedrine into ephedrine. The pill dissolves in the solvent, and the filler in the pill forms a solid at the bottom of the container. The liquid is strained off and after the solvent evaporates, pseudoephedrine remains.

Step two converts the pseudoephedrine into methamphetamine by knocking off an oxygen molecule to create D-methamphetamine. This step requires an acid solution of 57 percent or higher; the preferred acid is hydriodic acid, which is heavily regulated and controlled. As a result, meth labs mix red phosphorus with iodine to produce an acid solution of 57 percent or greater. This solution requires heating and simmering for 12 to 72 hours.

The third step separates the waste product from the liquid solution and reduces the acid level. Soyhydroxide, ice, and caustic soda is used. The ice is necessary because this step generates its own heat. An organic solvent (Freon, acetone, or denatured alcohol) is used to ...


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