P. v. Munoz

Filed 8/22/06 P. v. Munoz CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Tulare County. Paul A. Vortmann, Judge.

Carlo Andreani, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, John G. McLean and R. Todd Marshall, Deputy Attorneys General, for Plaintiff and Respondent.

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Hector Munoz was convicted of conspiracy to manufacture methamphetamine (Pen. Code, § 182, subd. (a)(1); Health & Saf. Code, § 11379.6),^[1] manufacturing methamphetamine (§ 11379.6, subd. (a)), permitting methamphetamine to be manufactured on property he controlled (§ 11366.5, subd. (a)), and child endangerment (Pen. Code, § 273a, subd. (a)). The jury also found true quantity enhancements pursuant to section 11379.8, subdivision (a)(3) on the conspiracy and manufacturing counts. The trial court designated the conspiracy count as the base term, stayed the sentence on the manufacturing count pursuant to Penal Code section 654, and sentenced Munoz to a total term of 16 years 4 months.

In the first appeal we reversed the true finding on the quantity enhancement on the conspiracy count because of instructional error, but affirmed the judgment in all other respects. We specifically stated in our nonpublished opinion (Dec. 2, 2004, F043611) that the quantity enhancement on the manufacturing count remained enforceable.

After remand, the district attorney decided not to retry the quantity enhancement on the conspiracy count and proceed directly to resentencing. The trial court designated the manufacturing count with the enforceable quantity enhancement as the base term and stayed the sentence on the conspiracy count pursuant to Penal Code section 654. The resulting sentence was identical to the original sentence.

Munoz argues his sentence must be reversed because his appointed attorney had a conflict of interest, he was denied the services of an interpreter at an early stage of the proceedings, and he received ineffective assistance of counsel. We find no merit to these arguments and affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

The first amended information charged Munoz with four crimes, all related to the operation of a methamphetamine manufacturing operation on property on which Munoz lived.^[2] In count 1, Munoz was charged with conspiracy to manufacture methamphetamine, in violation of Penal Code section 182, subdivision (a)(1), and Health and Safety Code section 11379.6. Count 1 also included a quantity enhancement alleging the amount of substance containing methamphetamine exceeded 25 gallons of liquid by volume or 10 pounds of solid substance within the meaning of section 11379.8, subdivision (a)(3). A true finding on this allegation would increase Munoz's sentence by 10 years.

Count 2 charged Munoz with manufacturing methamphetamine, in violation of section 11379.6, subdivision (a). It also alleged the same 10-year quantity enhancement as count 1.^[3] Count 3 charged Munoz with maintaining a place for the preparation or storage of a controlled substance, in violation of section 11366.5, subdivision (a). Count 4 charged Munoz with child abuse, in violation of Penal Code section 273a, subdivision (a). The jury returned a guilty verdict on all counts and found all enhancements true.

At sentencing, the trial court designated count 1 as the base term and sentenced Munoz to the midterm of five years, plus 10 years for the section 11379.8, subdivision (a)(3) enhancement. The sentence on count 2 was stayed pursuant to Penal Code section 654. The sentence on count 3 was imposed concurrently. A consecutive term of 16 months was imposed on count 4, for a total term of 16 years 4 months.

In the first appeal, we rejected Munoz's challenge to his conviction on the grounds of substantial evidence and on one of his instructional error claims. We found, however, that the trial court prejudicially erred in instructing the jury on the section 11379.8, subdivision (a)(3) quantity enhancement on the conspiracy count and reversed the true finding on this enhancement.

We specifically stated in our original opinion that the same enhancement found true in count 2 remained enforceable. The reason for this apparent anomaly is found in the provisions of section 11379.8. Subdivision (a) of this section provides that convictions for both conspiracy to manufacture methamphetamine and manufacturing methamphetamine are subject to quantity enhancements. Subdivision (e) of this section, however, provides that the quantity enhancement may be imposed on a conspiracy conviction only if the trier of fact finds the defendant â€