Hard

Under Health and Safety Code section 11379.8, a defendant convicted of manufacturing methamphetamine “with respect to” a substance of a certain volume containing methamphetamine earns an enhanced penalty. In this case we consider whether a defendant arrested in the early stages of the manufacturing process is subject to this volume enhancement when he possesses more than three gallons of a solvent containing methamphetamine to be used in the final stage of the process to purify crystallized methamphetamine. Defendant argues that the volume enhancement applies only to a substance produced during the manufacture and does not apply to a substance possessed for later use in the process. We disagree and conclude that the volume enhancement applies to any substance containing methamphetamine which is produced, used, or to be used in the process of manufacturing methamphetamine.

Health & Safety Code section 11379.8, subdivision (d) grants discretion to the sentencing court to strike the volume enhancement. Because the trial court mistakenly believed it lacked such discretion, we remand for resentencing. (People v. Meloney (2003) 30 Cal.4th 1145 [ 135 Cal.Rptr.2d 602 , 70 P.3d…