P. v. Vasquez

Filed 10/24/07 P. v. Vasquez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Gregg L. Prickett, Judge. Affirmed.

Daniel G. Koryn, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Angela M. Borzachillo and Maxine Cutler, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

Defendant Alma Prado Vasquez was convicted of conspiracy to possess cocaine for sale, sale or transportation of cocaine, and possession for sale of cocaine (counts 1, 2 and 3, respectively). The jury found true weight enhancements for each count, including, on count 1, that the weight of the cocaine exceeded 80 kilograms (Health & Saf. Code,  11370.4, subd. (a)(6); all further statutory references are to this code). On count 1, defendant was sentenced to a middle term of three years plus 25 years for the weight enhancement.

Defendant attacks her 25-year sentence under the enhancement, claiming there was insufficient evidence to satisfy the finding she was substantially involved in the conspiracy, thereby violating due process, and the jury did not make a specific finding of her substantial involvement. We disagree and affirm.

FACTS

On May 7 several members of the Anaheim police department began surveilling a residence at 615 S. Dorchester Street. That morning investigator Joel Willis observed brothers Alfonso Martinez-Santos and Gabriel Martinez-Santos (Martinez-Santos brothers) drive to the residence using counter surveillance measures. Two days later the task force followed the Martinez-Santos brothers, who were in a tan Lexus (Lexus 1), to the Brea Mall. There they met two or three men, one of whom got into Lexus 1 and drove away, returning after about half an hour. The Martinez-Santos brothers then drove Lexus 1 to a storage facility, entered, and left about 30 minutes later.

Willis testified that when drugs are delivered, those transporting them often meet another car in a parking lot, swap cars to take the drugs to a stash pad or safe house, where drugs are held in transit before delivery to the buyer, and then return and switch their cars back.

The police then went into the storage unit using a so-called sneak and peek search warrant (a warrant that allows police to enter and search without seizing any contraband found) and found a different tan Lexus (Lexus 2), which was registered to defendant.

One day later the task force entered the Dorchester residence and garage pursuant to the same warrant. They found about three kilograms of cocaine inside a hidden compartment in a Volkswagen Jetta and also materials commonly used to package narcotics.

The next morning the Martinez-Santos brothers left the Dorchester residence driving Lexus 1 and made a quick trip to the storage facility. When they returned to the residence they pulled Lexus 1 into the garage, closed the door, and then left in an Acura.

The following day, after removing a car, one of the Martinez-Santos brothers cleaned the Dorchester garage; he then stood in it as if waiting for someone to arrive. After about 30 minutes defendant drove a white Explorer into the garage. A coconspirator closed the door and padlocked it. About 45 minutes later, defendant came out of the front door and drove away in Lexus 1.

Two days later one of the Martinez-Santos brothers drove to a residence on Skywood Drive, picked up defendant, and returned to the Dorchester house, employing counter surveillance measures. Subsequently defendant left driving the Explorer she had previously left at the Dorchester house.

Officers believed that, based on the activity to date, specifically, the arrival of the Explorer driven by defendant, the garage door being shut and padlocked after the Explorer pulled in, defendant leaving in another car, and the Explorer remaining at Dorchester for two days, drugs had been delivered.

Later that same day officers executed another warrant at the Dorchester residence. The Jetta was in the garage and the hidden compartment, large enough to hold between 30 to 50 kilograms of cocaine, was full.

After two more days a search warrant of the Dorchester residence was executed. The Jetta contained bags and boxes containing a total of 35 kilograms of cocaine. Another 3 kilograms and bundles of currency totaling almost $214,000 were found in the cars hidden compartment. Packaging materials and latex gloves were found in the house and the garage.

Officers also executed a search warrant for the Skywood residence. Willis testified it was sparsely furnished, consistent with a stash pad. In the garage they found a Honda and Lexus 1. Also found were numerous documents relating to a total of five cars in defendants name, including a registration, DMV documents, parking citations, and a bill for tires. An invoice signed by Gabriel Martinez-Santos for a sixth car, a receipt for repairs for a car in the name of Martin Cruz, and five different license plates were also seized.

Also in the Skywood house were a utility bill in defendants name for the Dorchester residence and utility bills for other houses in different names. Packaging material was found as were a note containing the name Gabriel Martinez-Santos and a piece of paper with the name Martin Cruz. The storage facility was rented in the name of Martin Cruz and Martin Cruz owned the Jetta. Additionally, other items, including a cell phone, several cell phone bills, and a receipt for a cell phone and charger, were seized.

Willis testified that narcotics traffickers use as many cars as possible to avoid detection, often exchanging vehicles with others, and registering them under fictitious names. They rent facilities used in connection with drug dealing under a variety of names. Use of multiple cell phones is also common.

One of the Martinez-Santos brothers had the key to the storage facility, and the key to Lexus 2 parked in the storage facility was found in the Dorchester residence. A total of 62 kilograms of cocaine was found in the storage unit, including some found in bags and boxes in the Lexus 2.

Willis testified that when cocaine from Mexico reaches the United States, it is taken to a safe house rented in a fictitious name before being distributed to buyers. The car carrying the drugs drives into the garage and after the door is closed remains there for 20 to 45 minutes, depending on the time it takes to open a false compartment and remove the cocaine. The car is then driven away, sometimes to another safe house, often using counter surveillance techniques to avoid detection. These include making U-turns, stopping in the middle of the street or pulling over to the curb, driving in heavy traffic, and taking roundabout routes. Drivers often trade cars, meeting in parking lots before and after the drugs are delivered, so the person who receives the narcotics is not the same as the one who delivers them. Several cars, none of which are registered in the traffickers names, are used in the process.

DISCUSSION

1. Sufficient Evidence of the Weight Allegation

a. Introduction

When a person is convicted of conspiracy to possess cocaine for sale and it exceeds 80 kilograms, an additional 25 years must be added to the sentence if the trier of fact finds that the defendant conspirator was substantially involved in the planning, direction, execution, or financing of the underlying offense. ( 11370.4, subd. (a).) Defendant does not dispute that the cocaine recovered met the weight requirement under that section; she merely contends there was insufficient evidence to show she was substantially involved in the underlying crime. Quoting without citation from People v. Gonzalez (2004) 116 Cal.App.4th 1405, 1417, she concedes the jury could have inferred she participated, but claims her conduct was only tangential[], and thus the enhancement cannot stand. We disagree.

In reviewing a sufficiency of the evidence claim, we do not determine the facts ourselves. Rather, we examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidenceevidence that is reasonable, credible and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] (People v. Guerra (2006) 37 Cal.4th 1067, 1129.) Unless it is clearly shown that on no hypothesis whatever is there sufficient substantial evidence to support the verdict the conviction will not be reversed. [Citation.] (People v. Quintero (2006) 135 Cal.App.4th 1152, 1162.) We apply the same standard to convictions based largely on circumstantial evidence. (People v. Meza (1995) 38 Cal.App.4th 1741, 1745.)

A conviction of conspiracy requires proof that the defendant and another person had the specific intent to agree or conspire to commit an offense, as well as the specific intent to commit the elements of that offense, together with proof of the commission of an overt act by one or more of the parties to such agreement in furtherance of the conspiracy. [Citations.] (People v. Jurado (2006) 38 Cal.4th 72, 120.) Each [conspirator] is responsible for everything done by his confederates, which follows incidentally in the execution of the common design as one of its probable and natural consequences . . . . [Citations.] Thus, [i]t is not necessary that a party to a conspiracy shall be present and personally participate with [her] co-conspirators in all or in any of the overt acts. [Citation.] (People v. Morante (1999) 20 Cal.4th 403, 417.)

b. Sufficient Evidence of Defendants Substantial Involvement

The record shows defendant was substantially involved in the conspiracy to possess cocaine for sale. Large amounts of cocaine were found in the Dorchester residence and the storage facility, at which the Martinez-Santos brothers resided or had been seen entering and exiting. The Martinez-Santos brothers engaged in conduct consistent with drug trafficking as testified to by the officers. They met at a mall and temporarily swapped cars, indicating drugs were transferred and delivered elsewhere. They employed counter surveillance techniques while driving to and from the storage facility and Dorchester, using different cars.

Defendant was involved in this conduct. She drove to the Dorchester house, straight into the garage, which was immediately padlocked. After 45 minutes, she came out the front door and left in a different car. A couple of days later, a coconspirator picked her up at Skywood and drove her to Dorchester, employing counter surveillance measures, where she retrieved her car.

Lexus 2, in the storage facility in which the police discovered over 60 kilograms of cocaine, was registered to defendant. Some of the cocaine was in the car. Lexus 1, driven by the Martinez-Santos brothers and involved in a swap at the mall, was found in the Skywood garage. Documents for five cars in her name and five different license plates were also found there. This is consistent with testimony that drug traffickers use multiple cars in an attempt to avoid detection. Also found at Skywood were a utility bill for Dorchester, various cell phone bills, and a piece of paper with Martin Cruzs name. The storage facility was leased in Cruzs name and the Jetta, containing 35 kilograms of cocaine and over $200,000 in bundled currency, was registered to him.

We are not persuaded by defendants argument that the evidence found at her residence was of no import because it was not connected with her movement[s] during the period of surveillance. The evidence cannot be limited to defendants movements but must be considered in its totality. Nor is it significant that defendant was never seen at the storage facility or driving the Jetta. [I]f the circumstances reasonably justify the jurys findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] We do not reweigh evidence . . . .  [Citation.] (People v. Guerra, supra, 37 Cal.4th at p. 1129.) Further, the substantial involvement element does not demand proof that the defendant was a primary or dominant figure in the conspiracy. (People v. Gonzalez, supra, 116 Cal.App.4th at p. 1418.) There was sufficient evidence to sustain the enhancement.

2. Specific Finding of Defendants Substantial Involvement

Alternatively, defendant maintains the true finding of the weight enhancement must be overturned because the jury never made a specific finding of her substantial involvement in the underlying offense. We disagree.

The court instructed the jury that, if it found defendant guilty of the crime of possession of cocaine for sale, it then had to decide whether the prosecution had proven the allegation that the cocaine exceeded a specified amount. Specifically it had to prove that defendant conspired to possess for sale cocaine weighing more than 80 kilograms by weight and defendant was substantially involved in the planning, direction, execution, or financing of the possession for sale of cocaine. It further instructed that the prosecution had to prove this beyond a reasonable doubt. (CALCRIM No. 3200.)

The special verdict form signed by the jury stated that the jury found true that the amount of cocaine exceeded 80 kilograms. Defendant contends this form was insufficient because it does not contain a specific finding of her substantial involvement.

As she acknowledges, however, this argument was rejected in People v. Chevalier (1997) 60 Cal.App.4th 507. There the court held that a weight enhancement finding in connection with a conspiracy count was not required to include the element of substantial involvement. Where the jury is fully instructed as to each element of a sentence enhancement, it is not necessary that the verdict enumerate each of those elements. (Id. at p. 514.) Here the jury was properly instructed that the prosecution had to prove defendant was substantially involved beyond a reasonable doubt and that the jury had to make such a determination.

Defendant points to contrary authority, People v. Garcia (1992) 3 Cal.App.4th 582, where the court struck a weight enhancement because the verdict form did not contain a specific finding of substantial involvement and because there was no instruction that the jury had to find that element. (Id. at pp. 584-586.) But that case did not consider whether a weight enhancement had to be stricken where the correct jury instruction was given. In People v. Lobato (2003) 109 Cal.App.4th 762, the same court that decided Garcia held that, where the jury is properly instructed on the enhancement elements, the verdict form did not require a specific finding of substantial involvement. (Id. at p. 766.)

Defendant also contends Chevalier is not controlling after Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435]. But People v. Lobato, supra, 109 Cal.App.4th 762 rejected this argument. It explained that, while Apprendi requires a jury to find every element of a sentence enhancement, error occurs only if the court fails to instruct the jury as to each such element. (Id. at pp. 766-767.) It stated, Here, the jury was fully instructed on the elements of the weight enhancement. As explained in People v. Chevalier, it was unnecessary for the verdict to enumerate each of those elements. [Citation.] The decision in Apprendi does not change this conclusion, as it does not purport to require any written findings which expressly detail every element of an enhancement. It requires only that the jury find, beyond a reasonable doubt, every element of a sentence enhancement. [Citation.] (Id. at p. 767.) The jury having been instructed as to the weight enhancement elements, we can presume [it] made the findings as instructed when it found the conspiracy weight enhancement true. [Citation.] Apprendi does not require anything more. (Ibid.)

In our case, the jury was properly instructed as to the elements of the weight enhancement. This sufficed to support the jurys true finding of the enhancement under the circumstances of this case.

DISPOSITION

The judgment is affirmed.

RYLAARSDAM, ACTING P. J.

WE CONCUR:

BEDSWORTH, J.

FYBEL, J.

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