P. v. Keneally CA1/1

Filed 5/21/13 P. v. Keneally CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, A134886 v. SCOTT BANKS KENEALLY, (Sonoma County Super. Ct. No. SCR-585133) Defendant and Appellant.

MEMORANDUM OPINION1 Defendant Scott Banks Keneally and two others were charged in an information, filed November 9, 2011, with manufacturing “hash oil” (Health & Saf. Code,2 § 11379.6, subd. (a)), cultivating or processing marijuana (§ 11358), possessing marijuana for sale (§ 11359), and transporting marijuana (§ 11360, subd. (a)). Prior to a joint trial of defendant and Ryan Schultz, one of the codefendants, the trial court dismissed all but the manufacturing charge on motion of the prosecution. The remaining charge was submitted for bench trial on the basis of police reports and a declaration from an expert witness retained by the defense. The sole issue at trial was the applicability to the defendants‟ conduct of section 11379.6, which prohibits the processing of controlled

1 We resolve this case by a memorandum opinion pursuant to California Standards of Judicial Administration, section 8.1(3) (a “memorandum or other abbreviated form of opinion” is appropriate when an appeal “rais[es] factual issues that are determined by the substantial evidence rule”). 2 All statutory references are to the Health and Safety Code.

substances by “chemical extraction” or “chemical synthesis.” The court found the statute applicable and accordingly found both defendants guilty on the manufacturing charge. Defendant raises two issues on appeal. First, he contends the evidence was insufficient to support his conviction. Second, he joins in the argument made in the trial court and raised by Schultz in the appeal of his conviction that section 11379.6 is inapplicable to their conduct. In a decision issued May 20, 2013, we found section 11379.6 applicable on the basis of the record in defendant and Schultz‟s joint trial and affirmed Schultz‟s conviction. (People v. Schultz (May 20, 2013, A134582) [nonpub. opn.].) The issue is identical here. As explained in more detail in the Schultz decision, we reject the argument that People v. Bergen (2008) 166 Cal.App.4th 161 was decided incorrectly. On the facts here, Bergen is controlling and requires the affirmance of defendant‟s conviction under section 11379.6. We turn to defendant‟s sufficiency of the evidence argument.3 The factual circumstances underlying this claim are known to the parties and are summarized in the appellant‟s opening brief and the respondent‟s brief. “In reviewing a criminal conviction challenged as lacking evidentiary support, „ “the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” ‟ ” (People v. Streeter (2012) 54 Cal.4th 205, 241.) To commit a violation of section 11379.6, a defendant need not actually manufacture one of the prohibited substances. “The express terms of Health and Safety Code section 11379.6 subject to liability not only one who „manufactures‟ a controlled