P. v. Aguillar

Filed 11/21/08 P. v. Aguillar CA4/2

Opinion on remand from Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Bernard Schwartz, Judge. Affirmed in part and reversed in part with directions.

Elizabeth A. Missakian, under appointment by the Court of Appeal, for Defendant and Appellant Ignacio A. Aguillar.

Elisa A. Brandes, under appointment by the Court of Appeal, for Defendant and Appellant Fernando Ramirez.

James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant Alejandro H. Torres.

Jerry D. Whatley, under appointment by the Court of Appeal, for Defendant and Appellant Ismael Lujan Garcia.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Bradley Weinreb and Ronald A. Jakob, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

Following the discovery of a cartel-size methamphetamine laboratory in Mead Valley, defendants, Ignacio Aguillar, Alejandro Torres, Fernando Ramirez, and Ismael Garcia, were charged in the same information and tried before the same jury. All four defendants were found guilty of manufacturing methamphetamine in count 1 (Health & Saf. Code,  11379.6, subd. (a))^[1]and of possessing methamphetamine for sale in count 2 (Health & Saf. Code,  11378). Aguillar, Ramirez, and Torres were also found guilty of conspiring to manufacture methamphetamine in count 3. (Pen. Code,  182, subd. (a)(1); Health & Saf. Code,  11379.6, subd. (a).) Garcia was found not guilty of the conspiracy charge in count 3, and all four defendants were acquitted of disposing of hazardous chemicals used in the manufacture of a controlled substance in count 4. (Health & Saf. Code,  11374.5, subd. (a).)

Drug quantity or weight enhancements were found true as to Aguillar, Ramirez, and Torres in counts 1, 2, and 3.^[2] No weight enhancements were found true as to Garcia, but the jury found that Garcia was personally armed with a firearm in count 1. (Pen. Code,  12022, subd. (c).)^[3] In count 2, Garcia admitted a prior conviction for possessing methamphetamine for sale (Health & Saf. Code,  11378), within the meaning of Health and Safety Code section 11370.4, subdivisions (b) and (c).

Aguillar, Torres, and Ramirez were each sentenced to 15 years in prison, consisting of five years on count 1, plus 10 years for the section 11379.8 weight enhancement on count 1.^[4] Garcia was sentenced to 14 years in prison, consisting of the upper term of seven years on count 1, plus four years for the armed enhancement on count 1 and three years for the prior drug conviction.^[5] Defendants appeal.

On February 27, 2007, we issued an opinion in this case and modified that opinion on March 23, 2007. Thereafter, the state Supreme Court granted review, then transferred review to this court with directions to vacate our previous, modified opinion and reconsider it in light of People v. Towne (2008) 44 Cal.4th 63 (Towne). Accordingly, we vacate our modified opinion and issue this revised opinion. The revisions to this opinion appear at pages 21 through 28, and pertain solely to Garcias claim that the trial courts imposition of the upper term on count 1 violated his right to a jury trial. Once again, we remand the matter to the trial court with directions to resentence Garcia. Our revisions to this opinion do not affect our analysis or conclusions regarding Garcias other claims or the claims of any of the other defendants.

SUMMARY OF CONTENTIONS AND CONCLUSIONS

Only Torres joins the other defendants contentions; however, we consider each defendants contentions and arguments to the extent they benefit the other defendants. First, we address two contentions raised by Garcia.

Garcia first requests that this court review the trial courts conduct of an in camera hearing on a sealed search warrant affidavit, and determine whether the hearing was conducted in accordance with the requirements of People v. Hobbs (1994) 7 Cal.4th 948 (Hobbs), and whether the affidavit showed probable cause to issue the warrant. We conclude the hearing was properly conducted in accordance with Hobbs, and the affidavit showed probable cause to issue the warrant.

Garcia next contends that the upper term sentence of seven years on count 1 violated his right to a jury trial. This claim does not affect the other defendants, because none of them received upper term or consecutive sentences. For the reasons set forth below, we remand the matter to the trial court with directions to resentence Garcia.

Aguillar, Ramirez, and Torres claim that their 10-year section 11379.8 weight enhancements on count 3 must be reversed due to prejudicial instructional error. We agree. Regarding the weight enhancements on count 3, the jury was instructed on alternative theories, one legally valid and one legally invalid, and the record affirmatively demonstrates a reasonable probability that the jury based its true findings solely on the invalid theory. We further conclude that double jeopardy principles bar retrial of the enhancements because there is insufficient evidence to support the enhancements based on the only legally valid theory. That is, there is insufficient evidence that Aguillar, Ramirez, or Torres were substantially involved in the direction or supervision of, or in a significant portion of the financing of, the underlying conspiracy. ( 11379.8, subd. (e).)

Aguillar, Ramirez, and Torres further claim the trial court erroneously instructed the jury on the mens rea or knowledge element of the weight enhancements in counts 1, 2, and 3. Because we reverse the weight enhancements in count 3, we consider this claim only in relation to the weight enhancements on counts 1 and 2. We conclude that the jury was properly instructed on the mens reas or knowledge element of the weight enhancements in counts 1 and 2.

Aguillar next contends the trial court erroneously imposed concurrent rather than stayed sentences on the underlying offenses in counts 2 and 3. As we explain, the error here is clerical, not substantive. The trial court clearly intended to stay Aguillars, Ramirezs, and Torress sentences on counts 2 and 3, and their abstracts of judgment properly reflect that their sentences were stayed. There is, however, an error in the trial courts sentencing minute orders. Each order erroneously reflects that Aguillar, Ramirez, and Torres received consecutive sentences on counts 2 and 3. We therefore remand the matter to the trial court with directions to correct this error in its sentencing minute orders. We also remand the matter with directions to correct another clerical error: Aguillars abstract of judgment does not reflect that he received any presentence custody credits, when he in fact received a total of 1,053 days presentence custody credits. Finally, we reject Torress contention that his $10,000 restitution fine was unconstitutionally excessive.

In all other respects, we affirm the judgments.

FACTS AND PROCEDURAL HISTORY

A. Prosecution Evidence

1. Background

In March 2003, the Riverside County and San Bernardino County Sheriffs Departments were investigating a possible clandestine methamphetamine laboratory on a remote, isolated property in Mead Valley. The five-acre property included a single-story house, a large, two-story barn-like garage, several other outbuildings, and a tree house. At 6:00 a.m. on March 5, and after watching the property for over one day, approximately 13 officers entered the property to conduct a knock and talk with the occupants.

The officers divided into two groups. One group approached the garage, while the other group went to the main residence. Investigator John Howell and Sergeant David Stroh were with the group that approached the garage. They noticed a strong odor, which they recognized as a methamphetamine laboratory, emanating from the garage. The officers knocked on the garage door and announced their presence in English and Spanish. After no one responded, the officers entered the garage. Through a fog of chemicals, the officers found Aguillar and Ramirez asleep inside a white Jeep Cherokee in the middle of the garage. Torres was on a cot in front of the Jeep. Aguillar, Ramirez, and Torres were taken outside.

After donning protective air purification respirators, the officers went back inside the garage. They found a methamphetamine laboratory, consisting of two 22-liter flasks sitting on heating mantles controlled by rheostats. The flasks were about half-full and bubbling. The officers unplugged the heating mantles, left the garage, and secured the scene for the purpose of obtaining a search warrant. Before leaving the property to obtain a search warrant, Investigator Howell told the officers who had gone to the house that there was a major meth lab in the garage.

Meanwhile, several officers approached the main house, knocked on the door, and announced their presence in English and Spanish. When no one responded, the officers entered the house through the unlocked front door. In the bathroom, they found Garcia hiding in the bathtub behind a closed shower curtain, leaning against a back wall and fully clothed. Garcia was handcuffed and taken outside.

After Garcia was taken outside, he told one of the officers he was originally from Compton, and had been living in the house and taking care of the property for about eight months. He said he knew what was going on in the garage, and that there was a rifle in the bedroom. There was Compton gang graffiti inside the house, garage, and elsewhere on the property; however, the officers had no documentation that Garcia was a gang member.

The officers found a large metal cooking pot in the bathtub where Garcia was hiding. The pot was of the type used to extract pseudoephedrine for purposes of manufacturing methamphetamine, was charred on the outside, and had a white residue on the inside. A two-liter soft drink bottle was on the bathroom sink; it contained an alkaline pasty sludge, later identified as part of the biphasic liquid created in manufacturing methamphetamine.

After a search warrant was obtained, Investigator Richard Holder searched the house. The house was messy, which Investigator Holder said was typical of clandestine methamphetamine laboratory sites.

In one bedroom, Investigator Holder found a loaded, sawed-off .22-caliber rifle between two mattresses. The rifle appeared to be in working condition, and the bed appeared to have been recently used. In the same bedrooms closet, Investigator Holder found two pounds of a white powdery substance, which was later identified as containing either ephedrine or pseudoephedrine, substances used in the manufacture of methamphetamine. About four ounces of brown methamphetamine powder was also found in the closet.

A white box containing items of dominion and control and a notebook were also found in the closet. The name Arturo Castaneda, a name Garcia used, was on one of the pieces of paper in the box. Investigator Holder did not find any cell phones, scales, sales ledgers (i.e., pay/owe sheets), or other materials associated with packaging methamphetamine for sale.

2. Investigator Marc Benders Testimony

Investigator Marc Bender had training, experience, and education concerning the manufacture of methamphetamine. He was assigned to the drug enforcement arm of the Riverside County Sheriffs Departments Special Investigations Bureau, which primarily investigated clandestine methamphetamine manufacturing operations.

According to Investigator Bender, the primary method of manufacturing methamphetamine, at least in the southern United States, is the ephedrine red . . . phosphorus method. It involves placing cold pills containing pseudoephedrine into a container, such as a trash can, with a liquid solvent such as methylol or denatured alcohol. This causes the pseudoephedrine to become suspended in the liquid and the heavier, pill-binding materials to sink to the bottom. The solvent is then heated to evaporate the liquid, leaving crystalline pseudoephedrine.

The pseudoephedrine crystals are then converted to methamphetamine by mixing them with iodine crystals, red phosphorus, and water in a reaction vessel, which may be glass or Corning wear, but not metal. Large laboratories commonly use 22-liter round-bottomed glass reaction vessels. The resulting mixture is hydriatic acid, a corrosive chemical containing the methamphetamine, and a reaction mass of red phosphorous which can be reused. Sodium hydroxide or lye is then slowly added to the hydriatic acid. The mixture becomes a biphasic liquid, where the top layer is an organic petroleum distillate into which the methamphetamine travels. Finally, muriatic acid is added to create a hydrogen chloride gas which bubbles and creates a snow of methamphetamine crystals. The remaining mixture is poured through a filter to extract all of the methamphetamine. The methamphetamine is then washed with acetone and allowed to dry.

Investigator Bender was placed in charge of processing and dismantling the laboratory. Inside the garage, Investigator Bender found numerous items associated with the manufacture of methamphetamine.^[6] Additional evidence of methamphetamine production was found in a shed, the tree house, and elsewhere on the property.^[7] In Investigator Benders opinion, all phases of methamphetamine production were performed on the property. Various toxic materials had been emitted into the air, soil, and watershed. The waste and acid-contaminated soil on the property filled 122 hauling trucks, each containing 10 to 12 cubic yards of soil.

In Investigator Benders opinion, 120 pounds of methamphetamine was being processed in the laboratory or garage on March 5. Approximately 35 to 40 gallons of liquids containing methamphetamine were found throughout the property. In Investigator Benders estimation, 40 gallons of liquid methamphetamine produce 120 pounds of dry methamphetamine, with a wholesale value of $600,000. All of the liquids and solids seized on the property were found to contain methamphetamine in a processing state.

According to Investigator Bender, this was a large-scale, cartel-size laboratory, and one of the largest he had ever encountered. Cartel-size laboratories usually involve several organizational levels. At the top is a financier who typically puts up the money and receives profits from the sales, but does not go near the manufacturing location. At the next level down are persons called tenants, who lease the manufacturing location and obtain the necessary equipment. Beneath the tenant is a site supervisor, who supervises the production site by ensuring that necessary equipment is delivered and installed at the location. Then, there are usually one or two cooks who know the recipe for the manufacturing process. Finally, there are worker bees who stir pills, pour things into pans, turn on and off the burners, and watch the pots.

Investigator Bender estimated it would cost $10,000 to $12,000 to set up a laboratory of the size that was in the garage. Because the amount of methamphetamine being produced was indicative of a seller several tiers up the distribution process, Investigator Bender said he would not have expected to find evidence consistent with street sales of methamphetamine, including pay/owe sheets and pagers. He also said that the seized firearms were possessed for the purpose of defending the laboratory.

Investigator Bender examined the clothing defendants were wearing on the morning of March 5. Aguillars sweatshirt, jeans, and shoes, and Ramirezs sweatpants had yellowish-orange stains, characteristic of an acidic iodine used in the manufacture of methamphetamine. Torress and Garcias clothing contained no such stains.

3. Additional Prosecution Evidence

Sergeant Pete Cacheiro of the Los Angeles County Sheriffs Department testified that, while executing a search warrant of Garcias home in Norwalk in 1996, he found 109 grams of methamphetamine, packaging material, a triple-beam scale, and a cell phone. Based on the quantity of the drug and the other items found, Sergeant Cacheiro opined that Garcia possessed the methamphetamine for purposes of sale.

The parties stipulated to the admission of a Physical Evidence Examination Report, dated April 17, 2003, and prepared by criminalist Gina M. Williams. The report concluded that 11 out of 18 items tested contained methamphetamine at some stage in the manufacturing process and that the total estimated volume of liquids containing methamphetamine exceed[ed] 25 gallons.

B. Defense Evidence

Only Garcia testified in his own defense. Garcia was homeless on March 5, 2003, and had only one set of clothes. In late 2002, he was living on the streets and met a man known to him as Gordo. Gordo and Garcia spoke on about 12 occasions before Gordo offered to let Garcia stay at the Mead Valley residence. Gordo told Garcia to feed the dogs and to stay away from the back, the garage and . . . anywhere else.

When Garcia first arrived at the residence, there was electrical power and some food in the cabinets, but there was no propane for the stove. There was also running water in the bathrooms and kitchen, but no hot water. Gordo returned to the property about one week after Garcia first arrived. He dropped off some dog food and left. After another week passed, Gordo returned again. He was leaving as Garcia was returning to the house, and just said, hi. He did not leave anything on his second visit. After a third week passed, Gordo returned a third time and left a 50-pound bag of dog food. Gordo never returned to the property again. Less than two weeks after Gordos final visit, the power and water were disconnected.

Without utilities, Garcia left the house more often. He made money by repairing bicycles and selling them. He would also ask for handouts at stores. In January or February 2003, he told someone about his situation. This person apparently told Pastor Rubin Bajo about Garcias situation. Pastor Bajo then came to the residence, surprising Garcia with food.

Although Gordo never returned to the house, Garcia continued to stay there. He never ventured into the garage because he was told not to. He also never went into the closet where the drugs were found because he did not keep anything of his in there. He does not know what ephedrine looks like. He used the bucket in the shower to wash himself. He found the plastic bottle in a cabinet under the sink, and removed it because he was going to clean the house. He first saw the rifle on a rack in the bedroom, removed it, and placed it between the mattresses.

On March 4, 2003, the power and water came back on at the house. During the early hours of March 5, before the officers arrived, Garcia heard noises on the property. He did not investigate the noises because he said he did not go outside at night. He had never spoken to Aguillar, Ramirez, or Torres, and had not seen them before he was arrested on March 5. Other than Gordo, Garcia was unaware of anyone driving a vehicle onto the property.

Garcia was in the bathroom when the officers arrived. Garcia called out to the officers after they knocked on the door a second time. Then he heard the door being broken down and the lock parts hit the floor. He hid in the shower because he was scared. The officers had their guns drawn when they pulled the shower curtain back. Garcia stepped out of the shower and told the officers that a rifle was under his mattress.

1. Pastor Rubin Bajos Testimony

Pastor Bajo ran a ministry which distributed food to the poverty stricken. In early 2003, Garcia came by a drug treatment center funded by the church. The ministry provided Garcia with food, candles, water, and other necessities. Pastor Bajo personally delivered food to the Mead Valley residence on two occasions and visited with Garcia there on a third occasion. Each time Pastor Bajo visited, he noticed an ugly smell which he believed to be rotting trash. Pastor Bajo was not aware of any other persons on the property. The prosecution introduced evidence that Pastor Bajo had served several prison sentences for the sale or transportation of controlled substances, and car theft. He also had prior misdemeanors and previously gave false information to the police.

DISCUSSION

A. It is Not Reasonably Probable That Garcia or the Other Defendants Could Have Prevailed on a Motion to Quash or Traverse the Sealed Search WarrantAffidavit

Garcia asks this court to review the sealed warrant and affidavit and independently determine (1) whether there was probable cause to issue the warrant, and (2) whether the trial courts in camera hearing comported with the requirements of Hobbs, supra, 7 Cal.4th 948. We conclude the in camera hearing was conducted in accordance with the requirements of Hobbs and the affidavit showed probable cause to issue the warrant.

1. Background

Investigator Howell signed an affidavit and obtained a warrant to search the property for items related to the manufacture of methamphetamine, after the officers discovered the methamphetamine laboratory in the garage. The affidavit was ordered sealed.

The trial court conducted an in camera review of the sealed affidavit, pursuant to a motion by Ramirez to disclose the names of any informants. In the moving papers, counsel stated, Frankly, counsel is not sure whether this is a discovery motion [pursuant to Penal Code section] 1054.1[, subdivision] (e) or an informant disclosure motion [pursuant to Evidence Code sections] 1040 [and] 1041. The other defendants joined the motion without additional argument.

In the motion, counsel noted: It is highly likely that an informant was used in this case and an undisclosed informant plus a sealed warrant does not allow the defense to even begin to challenge (traverse) the search warrant or discover if an informant was used and what information he/she could provide. At the hearing on the motion, counsel told the court he was interested in (1) whether there was an informant, and (2) whether disclosure of the informants identity could lead to the discovery of exonerating evidence that could assist the defense in any way.

Following the in camera hearing, the trial court denied the motion. The in camera hearing was conducted in the presence of the prosecutor and Investigator Howell. Without discussing its inquiry or the contents of the affidavit, and without disclosing whether there was an informant or whether the warrant was based on any information obtained from an informant, the trial court ruled (1) there was good cause for the warrant to remain sealed, (2) there was insufficient evidence to disclose the identity of the informant, if any, and (3) unsealing the warrant or disclosing any informants identity would not lead to the discovery of any exonerating evidence or assist the defense in any way.

2. The HobbsRequirements

In Hobbs, the state Supreme Court held that, under Evidence Code sections 1041 and 1042, all or part of a search warrant affidavit may be sealed to protect the identity of a confidential informant. (Hobbs, supra, 7 Cal.4th at p. 971.) The court also recognized that, where all or part of a search warrant affidavit has been sealed, a defendant cannot reasonably be expected to make an informed challenge to the veracity of the affidavit (by moving to traverse the warrant), or otherwise make an informed determination whether sufficient probable cause existed for the search (in consideration of a motion to quash the warrant) . . . . (Id. at pp. 971-972, citing People v. Luttenberger (1990) 50 Cal.3d 1.)

Thus, the Hobbs court approved of an in camera hearing to review the contents of a sealed search warrant affidavit in order to determine whether there was a reasonable probability that the search warrant affiant made material misrepresentations when obtaining the warrant. If not, the inquiry ends. If so, the prosecution is put to the choice of either consenting to disclosure of the documents as a prelude to a further evidentiary hearing, or to an order granting the defendants motion to traverse the warrant. (People v. Navarro (2006) 138 Cal.App.4th 146, 166, citing Hobbs, supra, 7 Cal.4th at pp. 971-975.)

Before the court determines whether there is a reasonable probability the search warrant affidavit is based on material misrepresentations, the court must first determine whether sufficient grounds exist for maintaining the confidentiality of the informants identity. It should then be determined whether the entirety of the affidavit or any major portion thereof is properly sealed, i.e., whether the extent of the sealing is necessary to avoid revealing the informants identity. (Hobbs, supra, 7 Cal.4th at p. 972.)

If the affidavit is found to have been properly sealed, and the defendant has moved to traverse the warrant, the court should then proceed to determine whether the defendants general allegations of material misrepresentations or omissions are supported by the public and sealed portions of the search warrant affidavit, including any testimony offered at the in camera hearing. Generally, in order to prevail on such a challenge, the defendant must demonstrate that (1) the affidavit included a false statement made knowingly and intentionally, or with reckless disregard for the truth, and (2) the allegedly false statement is necessary to the finding of probable cause. (Hobbs, supra, 7 Cal.4th at p. 974, quoting Franks v. Delaware (1978) 438 U.S. 154, 155-156.) If the trial court determines that the materials and testimony before it do not support defendants charges of material misrepresentation, the court should simply report this conclusion to the defendant and enter an order denying the motion to traverse. (Hobbs, supra, at p. 974.)

Similarly, if the affidavit is found to have been properly sealed and the defendant has moved to quash the search warrant [citation] the court should proceed to determine whether, under the totality of the circumstances presented in the search warrant affidavit . . . there was a fair probability that contraband or evidence of a crime would be found in the place searched pursuant to the warrant. [Citations.] . . . . [] If the court determines . . . that the affidavit and related materials furnished probable cause for issuance of the warrant . . . the court should simply report this conclusion to the defendant and enter an order denying the motion to quash. . . . (Hobbs, supra, 7 Cal.4th at p. 975.) If, however, the court determines there is a reasonable probability the defendant would prevail on his motion to quash the warrant, the prosecution must choose between consenting to the disclosure of the sealed materials as a prelude to a further evidentiary hearing, or consenting to an order granting the defendants motion to quash the warrant. (Ibid.)

3. Analysis

On independent review of the sealed warrant, supporting affidavit, and the trial courts in camera hearing, we conclude (1) there was probable cause to issue the warrant, and (2) the trial courts in camera inquiry was conducted in accordance with Hobbs.

Regarding the conduct of the in camera hearing, the court properly determined, as an initial matter, that Investigator Howells affidavit was properly sealedthat is, the court properly determined (1) there were sufficient grounds for maintaining the confidentiality of any informants identity, and (2) the extent of the sealing of the affidavit was necessary to avoid revealing the identity of any confidential informant. (Hobbs, supra, 7 Cal.4th at p. 972.) Any further discussion of these matters would have risked disclosing the identities of any confidential informants.

Additionally, to the extent any information provided by any informants helped furnish probable cause to issue the warrant, the affidavit showed there was a fair probability that contraband or evidence of a crime would be found in the place searched pursuant to the warrant. [Citations.] (Hobbs, supra, 7 Cal.4th at p. 975.) As the law also requires, the affidavit set forth sufficient competent evidence supportive of the magistrates finding of probable cause . . . . (Ibid., citing Illinois v. Gates (1983) 462 U.S. 213, 238.) Nor was there any reason to believe, based on the affidavit, Investigator Howells testimony at the in camera hearing, or any information furnished by any of the defendants, that Investigator Howell or any confidential informants made any material misrepresentations in relation to the finding of probable cause. (Hobbs, supra, at p. 974.)

Lastly, we observe that shortly before trial and over one year after the trial court conducted the Hobbs hearing, Garcia filed a motion to suppress any evidence that was seized before the warrant was issued. ( 1538.5.) The court denied the motion, finding that no evidence was seized until after the warrant was issued. At the hearing on this motion, no information was revealed which would have warranted a further Hobbs inquiry.

B. Garcia Must Be Resentenced

In his opening brief, filed on October 7, 2005, Garcia claimed that the trial courts imposition of the upper term sentence of seven years on count 1 violated his right to a jury trial, because the aggravating factors the court relied on in imposing the sentence were not found true by a jury beyond a reasonable doubt. (Blakely v. Washington (2004) 542 U.S. 296; Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi).)^[8] In imposing the upper term, the trial court relied on three aggravating factors: (1) Garcia had a prior conviction for possessing methamphetamine for sale; (2) he was on probation at the time he committed the offense in count 1; and (3) his prior performance on probation was unsatisfactory. (Former Cal. Rules of Court, rule 4.421(b)(2), (4), & (5).) The court also relied on the fact of Garcias prior conviction in imposing the three-year enhancement on count 1 pursuant to section 11370.2, subdivision (b) [three-year enhancement applies when, for example, defendant is currently convicted of violating section 11379.6 and has a prior conviction for violating section 11378].)

In a nonpublished opinion filed on February 27, 2007, and modified on March 23, 2007, this court remanded the matter to the trial court with directions to resentence Garcia in light of the United States Supreme Courts then-recent decision in Cunningham v. California (2007) 549 U.S. 270 (Cunningham) and the long-standing prohibition against the dual use of factors in sentencing. (Pen. Code,  1170, subd. (b); rule 4.420(c); People v. Bowen (1992) 11 Cal.App.4th 102, 105.) Thereafter, the state Supreme Court granted review of this case. While review was pending, the state Supreme Court issued its decisions in People v. Black (2007) 41 Cal.4th 799 (Black II), People v. Sandoval (2007) 41 Cal.4th 825, and Towne, supra, 44 Cal.4th 63. The state Supreme Court then transferred review to this court with directions to vacate our previous decision and reconsider it in light of Towne.^[9]

In our March 2007 decision, we held that, to the extent the trial court based its selection of the upper term on count 1 on the fact that Garcia was on probation at the time he committed the offense and/or the fact his performance on probation was unsatisfactory, it could not be said that the error, if any, was harmless beyond a reasonable doubt. (Washington v. Recuenco (2006) 548 U.S. 212, 218-219.) We also held that the trial court had engaged in an impermissible dual use of facts in imposing sentence on count 1, because it relied on the fact of Garcias prior conviction in imposing both the upper term on count 1 and the section 11370.2 enhancement on count 1. (Current and former rule 4.420(c).)

In light of Black II and Towne, we now conclude there was no Cunningham or federal constitutional error in the trial courts selection of the upper term on count 1. There was, however, dual use error, and the error was not harmless. We explain.

As discussed in the line of high court decisions beginning with Apprendi, supra, 530 U.S. 466 and culminating in Cunningham, supra, 549 U.S. 270, a trial court may impose an upper term sentence based on an aggravating factor that is established by the jurys verdict, the defendants admissions, or the defendants prior convictions. (Towne, supra, 44 Cal.4th at p. 74.) The prior conviction exception encompasses the fact of a prior conviction (Almendarez-Torres v. U.S. (1998) 523 U.S. 224, 243) and also generally includes findings that are based on the defendants recidivism and the record of the defendants prior conviction (Black II, supra, 41 Cal.4th at p. 819; Towne, supra, 44 Cal.4th at pp. 77-79).

In Black II and Towne, the state Supreme Court expanded the prior conviction or recidivism exception to include trial court findings that: (1) the defendant served a prior prison term; (2) the defendants prior convictions are numerous or of increasing seriousness; and (3) the defendant was on probation or parole when he committed the current offense. (Black II, supra, 41 Cal.4th at pp. 819-820; Towne, supra, 44 Cal.4th at p. 79.) Also, a trial courts finding that a defendants prior performance on probation or parole was unsatisfactory may fall within the recidivism exception, depending upon the evidence by which that circumstance is established in a particular case. (Towne, supra, at p. 82.)

On the one hand or at one extreme, a trial judges finding that the performance on probation or parole was unsatisfactory falls within the recidivism exception, provided the finding is based on indisputable evidence that the defendant reoffended while he was on probation or parole. (Towne, supra, 44 Cal.4th at p. 82.) This type of unsatisfactory performance finding may be based on court records, probation reports, or other evidence concerning the defendants criminal history that clearly establishes the dates the defendant was on probation or parole and the dates he reoffended. (Ibid., citing People v. Yim (2007) 152 Cal.App.4th 366, 370-371 [The mere recitation of [the defendants] dates of conviction and releases on parole [citation] demonstrate[s], as a matter of law, that he committed new offenses while on parole].)

On the other hand or at the other extreme, an unsatisfactory performance finding that is not established by the defendants record of prior convictions or criminal history, and that can only be established by facts other than the defendants prior convictions does not fall within the prior conviction or recidivism exception. (Towne, supra, 44 Cal.4th at p. 82, italics added.) For example, an unsatisfactory performance finding may be based upon a presentence report, prepared by a probation officer or others, that alleges the defendant did not appear for appointments, failed a drug test, or stopped attending counseling sessions as directed, or other evidence of misconduct that was not previously adjudicated in a criminal trial. (Ibid.) Such evidence may be open to dispute; moreover, such findings [do] not necessarily include the procedural safeguards that are associated with prior convictions. (Id. at pp. 82-83.)

As the Towne court observed, Even if the trial courts finding of unsatisfactory performance is based upon a prior revocation of probation or parole, the proceedings that result in such revocation do not entail the same procedural safeguards as a criminal trial, because the right to a jury trial and proof beyond a reasonable doubt do not apply to probation or parole revocation proceedings. (Towne, supra, 44 Cal.4th at p. 83.) In short, in order to fall within the recidivism exception, a trial courts finding that the defendants performance on probation or parole was unsatisfactory must be based on the defendants criminal record or history of prior convictions; it cannot be based on evidence that is open to dispute or procedures that do not carry the same procedural safeguards as a criminal trial. (Ibid.)

As noted, the trial court here selected the upper term in count 1 based on its findings that: (1) Garcia had a prior conviction for possessing methamphetamine for sale; (2) he was on probation at the time he committed count 1; and (3) his performance on probation was unsatisfactory. (Former rule 4.421(b)(2), (4), & (5).) Defendant admitted the prior convictionan April 1996 conviction for manufacturing methamphetamine for sale. As a matter of law, this finding falls within the recidivism exception (Almendarez-Torres v. U.S., supra, 224 U.S. at p. 243) and is sufficient, standing alone, to uphold Garcias upper term sentence on count 1 (Black II, supra, 41 Cal.4th at pp. 812-815).

As the court in Black II explained, a trial courts finding a single circumstance in aggravation that satisfies the Sixth Amendment requirements of Apprendi, supra, 530 U.S. 466 and its progeny, culminating in Cunningham, renders the defendant eligible for the upper term and is sufficient in itself to uphold an aggravated sentence. (Black II, supra, 41 Cal.4th at pp. 812-815; see Pen. Code,  1170, subd. (b).) The Sixth Amendment requirements of Apprendi are satisfied so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendants record of prior convictions. (Black II, supra, at pp. 815-816.)

However, the trial court used Garcias April 1996 conviction for two purposes: to impose the upper term sentence on count 1 and to impose the three-year enhancement on count 1 pursuant to Health and Safety Code section 11370.2, subdivision (b).) As we explained in our March 2007 opinion, this was an impermissible dual use of a single sentencing factor. (Pen. Code,  1170, subd. (b); current and former rule 4.420(c); People v. Bowen, supra, 11 Cal.App.4th at p. 105.) A sentencing court cannot rely on the same factor in imposing both an upper term and a sentencing enhancement; it may impose one or the other, but not both. (Current and former rule 4.420(c).)

Finally, the dual use error is not harmless because the record on this appeal does not support the trial courts second and third aggravating factor findings as matters of fact. Garcias probation report indicates he was placed on three years formal probation following his April 1996 conviction for possessing methamphetamine for sale, and that his probation was revoked in September 1996. But the probation report does not indicate whether Garcia was on probation in March 2003, when the evidence presented to the jury showed he committed his current offense of manufacturing methamphetamine for sale.^[10] (Towne, supra, 44 Cal.4th at pp. 79-81.) Nor does the probation report indicate why Garcias probation was revoked in September 1996; critically, it does not state that Garcias probation was revoked because he committed another criminal offense and was convicted of that offense. (Id. at pp. 82-83.)

Thus, based on the record on this appeal, Garcias prior April 1996 conviction for possessing methamphetamine for sale is the only legally and factually sufficient finding that supports the trial courts imposition of the upper term sentence on count 1. And the same prior conviction was impermissibly used as the basis of imposing the three-year section 11370.2, subdivision (b) enhancement on count 1. For these reasons, the matter must be remanded with directions to resentence Garcia.

On remand, the court must determine whether there are criminal records pertaining to Garcia that support its previous findings that: (1) Garcia was on probation in March 2003 when he committed his current offense of manufacturing methamphetamine; and (2) Garcias prior performance on probation was unsatisfactory because he committed and was convicted of another criminal offense while he was on probation. (Towne, supra, 44 Cal.4th at pp. 79-83.) If the court determines that either of its previous findings are supported by Garcias criminal record, then the courts dual use error is harmless because either finding, standing alone, would be sufficient to render Garcia eligible for the upper term sentence and uphold that sentence (Black II, supra, 41 Cal.4th at pp. 812-815) and Garcias prior conviction would separately support the sentencing enhancement. If, on the other hand, the court determines that Garcias prior conviction is the only aggravating factor available to support the imposition of the upper term, then the court may impose either the upper term or the three-year enhancement, but it cannot impose both.

C. The Weight Enhancements Imposed on Aguillar, Ramirez, and Torres in Count 3 (the Conspiracy Charge) Must Be Reversed Due to Prejudicial Instructional Error

Aguillar, Ramirez, and Torres contend their 10-year weight enhancements in count 3, for conspiracy to manufacture methamphetamine ( 11379.6, 11379.8, subd. (a)(3)) must be reversed due to prejudicial instructional error. Citing People v. Duran (2001) 94 Cal.App.4th 923, 937 through 941 (Duran), defendants argue that CALJIC No. 17.21 erroneously instructed the jury it could find the enhancements true if it found defendants were substantially involved in the planning or execution of the underlying offense of conspiracy to manufacture methamphetamine. Defendants further contend that the instructional error was prejudicial. We agree on both counts.

1. Background

Where a defendant has been convicted of manufacturing methamphetamine, and the quantity of methamphetamine exceeds 25 gallons of liquid by volume or 10 pounds, a 10-year weight enhancement may be imposed under section 11379.8, subdivision (a)(3). Where, in contrast, a defendant has been convicted of conspiracy to manufacture methamphetamine, the 10-year enhancement applies only if the trier of fact finds that the defendant conspirator was substantially involved in the direction or supervision of, or in a significant portion of the financing of, the underlying offense of conspiracy to manufacture methamphetamine. ( 11379.8, subd. (e).)

Sections 11370.2 and 11370.4 provide for similar weight enhancements on drug-related conspiracy convictions, other than conspiracy to manufacture methamphetamine. Under these statutes, the weight/conspiracy enhancements provisions apply only if the trier of fact finds that the defendant conspirator was substantially involved in the planning, direction, execution, or financing of the underlying offense of conspiracy. ( 11370.2, subd. (e), 11370.4, subds. (a) & (b).)^[11]

Plainly, the language of section 11379.8 and sections 11370.2 and 11370.4 differs in relation to the level-of-involvement element of the enhancements. On its face, the section 11379.8 enhancement does not apply if the defendant was substantially involved in the planning or execution of a conspiracy to manufacture methamphetamine. It applies only if the defendant was substantially involved in the direction or supervision of, or in a significant portion of the financing of the conspiracy.

Here, the trial court gave a modified version of CALJIC No. 17.21 on the section 11379.8 weight enhancement allegations. It provided, in pertinent part: If you find the defendant guilty of the crime of conspiracy to commit manufacturing methamphetamine involving a substance containing methamphetamine which exceeds 10 pounds of solid substances and 25 gallons of liquid by volume[,] an essential element of this allegation is that the defendant was substantially involved in the planning, direction, execution, or financing of the conspiracy and its objective, or in the direction or supervision of, or in a significant portion of the financing of, the underlying crime. (Italics added.)

Thus, the given version of CAJIC No. 17.21 combined the language of section 11379.8 with the language of sections 11370.2 and 11370.4. The instruction also allowed the jury to find the enhancements true if it found defendants were substantially involved in the planning or execution of the conspiracy to manufacture methamphetamine, terms not included in section 11379.8, subdivision (e).^[12]

2. The Duran Decision

The court in Duran reversed a section 11379.8 enhancement based on a similar error in CALJIC No. 17.21. There, as here, the instruction allowed the enhancement to be found true based on evidence of the defendants substantial involvement in the planning or execution of the conspiracy to manufacture methamphetamine. (Duran, supra, 94 Cal.App.4th at p. 937.) The court rejected the Attorney Generals argument that the given instruction, though it did not track the language of section 11379.8, corrected a legislative error in drafting section 11379.8. After reviewing the legislative history of sections 11370.2, 11370.4, and 11379.8, the court presumed a different legislative intent, not an oversight, from the fact that words used in sections 11370.2 and 11370.4 are missing from section 11379.8. (Duran, supra, at pp. 939-941.)

The Duran court next concluded that [e]vidence of planning or execution alone is not enough for the section 11379.8 enhancement to apply. (Duran, supra, 94 Cal.App.4th at p. 941.) Thus, the court recognized that substantial involvement in the planning or execution of a conspiracy to manufacture methamphetamine constitutesa lower level of involvement or participation in the conspiracy than substantial involvement in the direction or supervision of the conspiracy, or in a significant portion of the financing of the conspiracy. (Id. at pp. 941-942.)

3. Argument and Analysis

The Attorney General submits that Duran was wrongly decided. Alternatively, he argues that any instructional error was harmless. We consider these arguments in that order.

(a) Duran

The Attorney General argues that an instruction is not faulty merely because it fails to track the language of the statute upon which it is based. The proper test, he argues, when reviewing the language of an instruction for error, is to determine whether there was a reasonable likelihood the jury misunderstood the instruction as claimed by the defendant. (See People v. Cain (1995) 10 Cal.4th 1, 36.) And here, he argues, the instructions deviation from the precise language of . . . section 11379.8 . . . was not reasonably likely to have resulted in the jury misapplying the statute. He also notes that the Duran court failed to discuss the materiality of the additional words in CALJIC No. 17.21, summarily concluding the instruction was erroneous simply because it did not mirror the statute.

More specifically, the Attorney General argues that the words planning and execution were essentially synonyms of the words direction or supervision as used in the statute. Like direction and supervision, planning and execution connote a leadership role in the enterprise. To plan or execute a particular plan, a person would necessarily be involved in direction or supervision. Planners and executives are no different from directors and supervisors. These are commonly understood terms with no technical meaning peculiar to the law, and as a result no further definition is required. (Italics added.)

We agree with the Attorney General in one respect: the terms planning, execution direction, and supervision are commonly understood by those familiar with the English language and, as such, require no definitional or clarifying instructions. (People v. Estrada (1995) 11 Cal.4th 568, 574-575.) We disagree, however, that planning and execution are essentially synonymous with direction and supervision, as the latter terms are used in section 11379.8 and as these terms may apply to the underlying offense of conspiracy to manufacture methamphetamine. Contrary to the Attorney Generals argument, one who is substantially involved in the planning or execution of a conspiracy to manufacture methamphetamine is not necessarily involved in the direction or supervision of the conspiracy. The facts of the present case illustrate this point.

A conspiracy is an agreement between two or more persons that they will commit an unlawful object (or achieve a lawful object by unlawful means), and in furtherance of the agreement, have committed one overt act toward the achievement of their objective. [Citations.] (People v. Salcedo, supra, 30 Cal.App.4th at p. 215.) The evidence here showed that Aguillar, Ramirez, and Torres agreed to commit an unlawful objectivethe manufacture of methamphetamineand that each of them committed at least one overt act in furtherance of that agreement. They were each found asleep in the barn-like garage on the Mead Valley property, while two 22-liter flasks of methamphetamine were in the hours-long process of cooking on two lit burners.

Additionally, Investigator Bender testified that large-scale or cartel-size methamphetamine laboratories typically involve several organizational levels. At the bottom level are worker bees, persons who stir pills, pour things into pans, turn on and off the burners, and watch the pots. Based on their presence in the garage at the time and under the circumstances shown, the jury could have reasonably inferred that Aguillar, Ramirez, and Torres were worker bees, or persons substantially involved in executing or carrying out the conspiracy to manufacture methamphetamine.

But the evidence also showed that these defendants were not necessarily involved in directing or supervising the conspiracy. Based on Investigator Benders further testimony, the jury could have reasonably inferredand it is reasonably likely they did inferthat the direction and supervision functions were reserved to persons higher up in the organizational structure. According to Investigator Bender, more senior persons in the organization typically include a tenant, who leases the manufacturing location and obtains the necessary equipment, and a site supervisor, who oversees the production site by ensuring the necessary equipment is delivered and installed.

Thus, contrary to the Attorney Generals argument, a person who is substantially involved in the planning or execution of a conspiracy to manufacture methamphetamine is not necessarily involved in the direction or supervision of the conspiracy. It is also reasonably likely that, here, the jury understood the terms supervision and direction as referring to the roles of the more senior players in the organizational structure of the methamphetamine manufacturing operation, and understood the term execution as referring to the roles of lower level worker bees.

(b) Prejudice

Where, as here, the jury has been instructed on alternative grounds, one legally valid and the other legally invalid, reversal is required if the entire record affirmatively demonstrates a reasonable probability that the jury found the defendant guilty (or the enhancement true) based solely on the invalid theory. (People v. Guiton (1993) 4 Cal.4th 1116, 1130.) And here, the record affirmatively demonstrates a reasonable probability that the jury found the count 3 weight enhancements true based solely on the invalid ground that Aguillar, Ramirez, and Torres were substantially involved in the planning or execution of the conspiracy to manufacture methamphetamine. Indeed, it is reasonably probable that the jurors understood the term execution as referring to the roles of lower level worker bees, and the evidence showed that Aguillar, Ramirez, and Torres acted only as worker bees in the conspiracy to manufacture methamphetamine.

D. Double Jeopardy Principles Bar Retrial of the Count 3 Weight Enhancements

We next consider whether there is substantial evidence to support the valid theory of the count 3 weight enhancementsthat is, whether there was sufficient evidence that Aguillar, Ramirez, and Torres were substantially involved in the direction or supervision of the underlying conspiracy. ( 11379.8, subd. (e).) We conclude there is not. Accordingly, double jeopardy principles bar retrial of the count 3 weight enhancements. (See People v. Seel (2004) 34 Cal.4th 535, 541-550.)

In determining whether sufficient evidence supports an enhancement, we review the entire record in the light most favorable to the judgment to determine whether it discloses substantial evidence, that is, reasonable, credible, and solid evidence, from which a rational trier of fact could find the enhancement true beyond a reasonable doubt. (People v. Ortiz (1997) 57 Cal.App.4th 480, 484.) The same standard of review applies when the prosecution relies mainly on circumstantial evidence. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)

As discussed, where, as here, a section 11379.8 weight enhancement is based on a conviction for conspiracy to manufacture methamphetamine, the trier of fact must find the defendant conspirator was substantially involved in the direction or supervision of, or in a significant portion of the financing of, the underlying [conspiracy] offense. ( 11379.8, subd. (e); CALJIC No. 17.21.) As further discussed, it is reasonably probable the jury found the weight enhancements true based solely on the invalid theory that defendants were substantially involved in the planning or execution of the conspiracy. ( 11370.2, subd. (e), 11370.4, subds. (a) & (b).) Moreover, the evidence was insufficient as a matter of law to support the weight enhancements on the legally valid theory of substantial involvement in the direction or supervision of the conspiracy. ( 11379.8, subd. (e).)

The evidence showed Aguillar, Ramirez, and Torres were asleep inside the garage when the officers entered it at 6:00 a.m. on March 5. At that time, two 22-liter containers of methamphetamine-related chemicals were cooking on lit burners in one area of the garage. Aguillars and Ramirezs clothing had stains consistent with chemicals used in manufacturing methamphetamine. Torress clothing did not have stains; however, there were paper towels on Torress makeshift cot. No one had entered or exited the property since officers began watching it the previous evening.

Ramirez argues this evidence sheds no light upon the degree to which,