P. v. Mendez

Filed 1/29/07 P. v. Mendez CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Stephen

D. Cunnison, Judge. Affirmed.

Corinne S. Shulman, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Gil Gonzalez, Supervising Deputy Attorney General, and Lynne G. McGinnis, Deputy Attorney General, for Plaintiff and Respondent.

I. INTRODUCTION

Defendant Salvador Garcia Mendez appeals from his conviction of two counts of sale of tar heroin. He contends the trial court erred in refusing to instruct the jury that a copurchaser of contraband is not an aider and abettor of the seller and refusing to allow defense counsel to argue that theory to the jury. He further contends that the trial court abused its discretion in denying the request to strike one of defendants two strike priors. We find no error, and we affirm.

II. FACTS AND PROCEDURAL BACKGROUND

On April 27, 2005, Riverside County Sheriffs Detective Mario Dorado and Deputy Juan Anguiano, acting undercover, encountered defendant and codefendant Daniel Mares in a liquor store parking lot. Deputy Anguiano asked defendant if defendant could hook [him] up with $20 worth of heroin. Defendant made a phone call and told Deputy Anguiano that his connect, meaning his supplier, would meet them in 25 minutes at the parking lot of a market. Detective Dorado and Deputy Anguiano arrived late, and defendant and Mares told them the supplier had come to the market, had been upset that the buyers were not there, and had left. Deputy Anguiano asked defendant and Mares to call the supplier again. Defendant asked what was in it for him, and Deputy Anguiano agreed to pay $25 for $20 worth of heroin.

Defendant placed a call, and within five minutes, a vehicle drove into the parking lot. Defendant asked Deputy Anguiano for the money, and Deputy Anguiano handed him $25. Defendant went over to the vehicle and returned with a clear plastic bag containing .46 grams of tar heroin.

The April 27 transaction was recorded, and the videotape was played for the jury.

On April 28, Detective Dorado, again working undercover, encountered defendant and Mares in a park, and Detective Dorado asked defendant if he could hook Detective Dorado up. Defendant said yes, and asked how much Detective Dorado wanted. Detective Dorado said the same thing as yesterday, or $25 worth. Mares asked for some issue, meaning a portion of the drug as a fee. Detective Dorado was told to go back to the market parking lot where he met up with defendant and Mares.

Defendant made a telephone call, and a vehicle soon drove into the parking lot. Defendant asked for the money. Detective Dorado gave him $25, and defendant approached the vehicle. When he returned, he gave Detective Dorado a package that contained .75 grams of tar after defendant took some of the substance for himself. Detective Dorado testified that before defendant gave him the drugs, he told Detective Dorado he had put his own money in to buy some of this.

The April 28 transaction was also recorded, and the videotape was played for the jury.

The jury found defendant guilty of two counts of selling tar heroin in violation of Health and Safety Code section 11352, subdivision (a). In bifurcated proceedings, defendant admitted that he had suffered two prior strike convictions within the meaning of Penal Code sections 667, subdivisions (c) and (e), and 11709.12, subdivision (c)(2)(A), and three prior convictions for which he had served prison terms within the meaning of Penal Code section 667.5, subdivision (b). The trial court denied defendants motion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero)to strike one of his strike priors. The trial court sentenced defendant to 25 years to life on count 1, a consecutive term of 25 years to life on count 2, and one year for each of the three prison priors.

III. DISCUSSION

A. Jury Instructions

At trial, defense counsel requested a special instruction that would have informed the jury that a copurchaser is not an aider and abettor of the seller. After hearing argument, the trial court denied the request and refused to allow defendant to argue that theory to the jury. Defendant now contends the trial court erred in refusing the request to so instruct the jury and to allow argument on the copurchaser theory.

[I]t is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jurys understanding of the case. [Citation.] [Citation.] People v. Edwards (1985) 39 Cal.3d 107, 117 (Edwards).) However, a trial court need not instruct on a defense, even one the defendant relies on, unless it is supported by substantial evidence. (People v. Shelmire (2005) 130 Cal.App.4th 1044, 1054-1055.)

Defendant bases his argument primarily on People v. Mayfield (1964) 225 Cal.App.2d 263 (Mayfield), Edwards, supra, 39 Cal.3d 107, and People v. Hinton (2006) 37 Cal.4th 839 (Hinton).^[1] In Mayfield, four defendants pooled their funds to purchase a supply of heroin for their own use. They divided the heroin into four equal parts and ingested it together. One of the victims died from an overdose, and the defendants were convicted of second degree felony murder with the underlying felony the sale of heroin under Health and Safety Code former section 11501, the predecessor to section 11352, subdivision (a). On appeal, the court reversed the convictions, holding that the defendants did not sell narcotics to anyone or to each other. The four men involved made a group purchase of narcotics for their individual use and the purpose of the purchase was carried out. (Mayfield, supra, 225 Cal.App.2d at p. 267.)

Edwards involved a similar fact situation. The defendant, the victim, and two others purchased heroin, divided it equally, and ingested it together. The victim died from an overdose, and the defendant was convicted of second degree felony murder, with the underlying felony a violation of Health and Safety Code section 11352, subdivision (a). The Supreme Court in Edwards held that under Mayfield, supra, 225 Cal.App.2d 263, the jury could have found that the defendant was a copurchaser and had therefore committed only the misdemeanor of aiding and abetting the victim in her own heroin use. The court explained the Mayfield holding: The distinction drawn by the Mayfield court between one who sells or furnishes heroin and one who simply participates in a group purchase seems to us a valid one, at least where the individuals involved are truly equal partners in the purchase and the purchase is made strictly for each individuals personal use. Under such circumstances, it cannot reasonably be said that each individual has supplied heroin to the others. (Edwards, supra, 39 Cal.3d at pp. 113-114.)

However, in a footnote in Edwards, the court cautioned that it expected few cases involving a copurchase by truly equal partners. (Edwards, supra, 39 Cal.3d at p. 114, fn. 5.) The court stated, Where one of the copurchasers takes a more active role in instigating, financing, arranging or carrying-out the drug transaction, the partnership is not an equal one and the more active partner may be guilty of furnishing to the less active one. Furthermore, one who acts as a go-between or agent of either the buyer or seller clearly may be found guilty of furnishing as an aider and abettor to the seller. [Citations.] (Ibid.) In Edwards, the court cited with approval People v. Richards (1961) 198 Cal.App.2d 465, 469-471 [in four transactions, the defendants, in response to an officers inquiry about purchasing narcotics, took the officer to another location, took his money, left, and returned with narcotics and gave them to the officer], and People v. Hutcherson (1961) 197 Cal.App.2d 771, 779-780 [the defendant directed the purchaser to the home of the supplier, told him how to park so as not to arouse suspicion, went with the buyer to the suppliers house, told the supplier the buyer wished to purchase marijuana, and was present when the sale was made] as examples of cases in which persons who acted as agents between the purchaser and seller of drugs were properly found liable as aiders and abettors. (Edwards, supra, 39 Cal.3d at p. 114, fn 5.)

Although Detective Dorado testified that defendant said defendant had put his own money in to buy some of the drugs on April 28, that evidence was insufficient to show defendant was an equal partner in the transaction within the meaning of Mayfield, supra, 225 Cal.App.2d 263,and Edwards, supra, 39 Cal.3d 107. Defendant was the one who knew and contacted the connect and who took a more active role in arranging and carrying out the drug transaction. For his services, he received a commission in the form of cash on April 27 and a portion of the drugs obtained on April 28. The trial court did not err in refusing the requested instruction.

B. Denial of Request to Strike a Strike Prior

Defendant filed a written request that the trial court strike one of his two strike priors and repeated the request at sentencing. The trial court denied the request. Defendant now contends the trial court abused its discretion in refusing his request to strike one of his strike priors.

In Romero, the Supreme Court held that under Penal Code section 1385, subdivision (a), a trial court may exercise judicial discretion to strike a prior felony conviction in cases brought under the Three Strikes Law. (Romero, supra, 13 Cal.4th at pp. 529-532.) Any exercise of sentencing discretion must be an intensely fact-bound inquiry taking all relevant factors, including the defendants criminal past and public safety, into due consideration; and the record must so reflect. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 981-982.)

In People v. Ortega (2000) 84 Cal.App.4th 659, the court further explained, [T]he trial court considers many things in determining whether to exercise its discretion pursuant to section 1385, subdivision (a) and in furtherance of justice to dismiss an allegation or vacate a finding that a prior serious or violent felony conviction qualifies as a strike under the Three Strikes laws: The abuse of discretion standard is deferential. . . . But it is not empty. [Citation.] The touchstone for that standard . . . is whether in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the schemes spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies. [Citations.] (Id. at p. 668.)

Defendants lengthy criminal record, which includes four prior felony convictions and 16 prior misdemeanor convictions, demonstrates that he has continued to commit serious crimes, and his frequent periods of confinement have failed to deter his criminal behavior or his drug abuse.

Defendant was sentenced to five years in state prison for a January 1994 robbery and was released on parole. However, in January and October 1997, May and November 1998, September 1999, and July 2000, he was returned to custody after violating parole. In January 2001, four months after his discharge from parole, he was arrested for a misdemeanor narcotics offense and was given 18 months of drug diversion. He failed to comply with the diversion program, and criminal proceedings were reinstituted. He failed to appear in court, and a bench warrant issued for his arrest.

In August 2002, defendant was convicted of felony possession of a controlled substance for sale. He was given 36 months of formal probation and was directed to complete a substance abuse program. He violated probation and absconded after he was ordered to appear in court. He returned to court in August 2003 on 13 separate misdemeanor offenses, and he was sentenced to 16 months in state prison for his possession of a controlled substance for sale charge, to run concurrently with the sentence for a grand theft offense conviction.

Defendant was released on parole in December 2003, but he violated parole in January 2005, and was returned to state prison. Shortly after his release, he committed the current offenses.

This record shows that defendant is an exemplar of the revolving door career criminal to whom the Three Strikes law is addressed. [Citation.] (People v. Carmony (2004) 33 Cal.4th 367, 379.) The trial court manifestly did not abuse its discretion in failing to strike one of his strike priors.

IV. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

Acting P. J.

We concur:

MCKINSTER

J.

RICHLI

J.

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^[1]The issue in Hinton was whether the trial court erred in failing to give accomplice instructions as to the testimony of two witnesses in a murder trial on the theory that the witnesses had been liable to prosecution for the sale of a nonnarcotic in lieu of a narcotic under Health and Safety Code section 11355. The court held that the trial court did not err with respect to witness Santiago, who was a runner for the purchaser and who had merely delivered money for the purchaser of drugs. However, the court assumed it was error to fail to give accomplice instructions with respect to witness Cunningham who did introduce [the purchaser] to [the suppliers] and was to receive a commission for his role in locating the drug suppliers. (Hinton, supra, 37 Cal.4th at pp. 848-849, 880.) Here, defendants role was more like that of witness Cunningham, and thus Hinton does not aid defendants argument.