Perez

*1223 Opinion

A defendant is arrested in possession of methamphetamine precursors he planned to sell. May the defendant be convicted of aiding and abetting the prospective buyer’s possession of precursors with the intent to manufacture methamphetamine? We conclude he may not. In the alternative, may the defendant be convicted directly of possessing precursors with the intent to manufacture methamphetamine? (Health & Saf. Code, former § 11383, subd. (c)(2).) 1 Again, we conclude he may not. We therefore affirm the Court of Appeal’s reversal of defendant Gerardo Perez’s section 11383(c)(2) conviction.

Procedural and Factual Background

An undercover police officer observed a transaction consistent with drug-related activities between individuals in Perez’s car and those in a van. The police initiated a traffic stop. During a consensual search of Perez’s car, an officer found a small bag containing marijuana and two plastic shopping bags, one containing approximately 10 pounds of red phosphorus and the other approximately five pounds of powdered iodine. Officers also found a pair of jeans stained with a yellow dye, later determined to be hydrogen iodide, a component of hydriodic…

Concurring.—I agree with parts I and II of the majority opinion, and part HI to the extent it concludes that the jury was presented with a legally inadequate theory.

Here, as set forth in the majority opinion, the People proceeded on two theories regarding the charge of possessing hydriodic acid precursors with the intent to manufacture methamphetamine. (Health & Saf. Code, former § 11383, subd. (c)(2), Stats. 1995, ch. 571, § 1, p. 4418; maj. opn., ante, at p. 1224.) They argued defendant was “liable as a direct peipetrator because he possessed the precursors and personally intended to manufacture methamphetamine.” (Maj. opn., ante, at p. 1224.) In the alternative, the People argued defendant was “liable as an aider and abettor because he possessed the precursors with the intent to sell them to another person to be used in manufacturing methamphetamine.” (Ibid.) “During closing argument, the prosecution argued, over [defendant’s] objection, that aiding and abetting liability required proof only that [defendant] possessed the hydriodic acid precursors with the knowledge that someone else would use them to manufacture methamphetamine. The trial court prevented defense counsel from…

A defendant is arrested in possession of methamphetamine precursors he planned to sell. May the defendant be convicted of aiding and abetting the prospective buyer's possession of precursors with the intent to manufacture methamphetamine? We conclude he may not. In the alternative, may the defendant be convicted directly of possessing precursors with the intent to manufacture methamphetamine? (Health & Saf.Code, former § 11383, subd. (c)(2).) [1] Again, we conclude he may not. We therefore affirm the Court of Appeal's reversal of defendant Gerardo Perez's section 11383(c)(2) conviction.

An undercover police officer observed a transaction consistent with drug-related activities between individuals in Perez's car and those in a van. The police initiated a traffic stop. During a consensual search of Perez's car, an officer found a small bag containing marijuana and two plastic shopping bags, one containing approximately 10 pounds of red phosphorus and the other approximately five pounds of powdered iodine. Officers also found a pair of jeans stained with a yellow dye, later determined to be hydrogen iodide, a component of hydriodic acid. Perez had $717 in cash on his…