P. v. Hammond

Filed 10/9/07 P. v. Hammond CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Tuolumne County. Eric L. DuTemple, Judge.

Elisa A. Brandes, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and John A. Bachman, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Appellant, Robert Kirk Hammond, was charged in a criminal complaint with conspiracy (Pen. Code,  182, subdivision (a)(1))^[1]to sell a controlled substance (Health & Saf. Code,  11379, subd. (a), count one), and sale of a controlled substance (Health & Saf. Code,  11379, subd. (a), count two). Count one alleged four overt acts in furtherance of the conspiracy. The complaint was deemed an information on April 24, 2006. On June 8, 2006, a jury found Hammond guilty of both counts. Hammond admitted violating his probation from a previous conviction for forgery.

The trial court sentenced Hammond to the midterm of two years on count two, stayed sentence on count one pursuant to section 654, and imposed a consecutive term of eight months for Hammonds earlier forgery conviction. The court imposed a restitution fine and granted Hammond applicable custody credits. On appeal, Hammond contends his conviction for conspiracy must be reversed because there was insufficient evidence he entered into an agreement to sell methamphetamine and the jury instructions reduced the prosecutions burden of proof.

FACTS

Andrew Ford is an investigator with the Tuolumne County Sheriffs Department. In late 2005, a confidential and reliable informant (CRI) began working with the Tuolumne Narcotic Team (TNT). In exchange for consideration in a pending criminal action for possession of contraband, the CRI agreed to assist TNT. In exchange for making five controlled drug buys for TNT, the CRI would plead guilty to drug charges and be placed on probation for three years.

After two weeks, the CRI had completed five buys. The CRI was later caught with 1.8 grams of methamphetamine in his car and continued to make controlled buys to work off those charges. The CRI had more people on [his] list. The CRI had four convictions of methamphetamine related charges and continued to use methamphetamine during his work on the sting operation.

Lieutenant Daniel Bressler, a commander of TNT, described the CRI as extremely reliable, more so than 95 percent of the informants he had worked with. Ford testified that the CRI had participated in 27 controlled buys and did not encounter any problem with the CRIs credibility or reliability with any one of them.

On December 12, 2005, the CRI was to meet Peter Desnoo, the target that day, at a casino. The CRI was instructed to enter the casino, contact Desnoo, make a buy, and meet Ford in a predetermined location. The CRI and his car were searched and he was given $100 to purchase the drugs. Although the CRI entered the casino with a wire, the transmission was not strong and investigators could only hear a portion of the audio.

Inside the casino, the CRI ran into Hammond. The CRI knew Hammond by the name Curt. The CRI initially described his encounter as follows:

He [Curt] said he was trying to get rid of 40 -- or $50 worth because he needed some money to gamble and I was there looking for somebody else and I said, well, okay, fine. So I went out with him and another guy -- actually the other guy had it, Curt didnt have it. And I gave Curt -- we went out to their car, gave Curt money, talked to the guy, guy gave it to Curt, Curt gave it to me and thats how it went.

The CRI went out from the casino to a black Volkswagen Jetta (Jetta) and sat in the back seat. Hammond sat in the front passenger seat. The other person in the car was someone the CRI knew as Mark. The CRI, elaborating on the details of the transaction in the car, explained that he gave Curt the money and Mark made up the bag, or gave Curt the bag and he gave it to me. According to the CRI, Hammond walked up to him in the casino.

Ford, who was 75 yards away, saw the CRI exit the casino with another man, who turned out to be Hammond. They went to a Jetta. The CRI entered the back of the car. Hammond entered the front passenger seat. The car was registered to Mark Clinton of Oakdale.^[2] The CRI told Ford what happened 20 minutes after the transaction. Ford did not hear very much from the wire CRI was wearing.

Once the three men were in a car, Ford heard the CRI say Heres 40. The CRI spent about one minute in the car before walking directly back to Ford.^[3]The baggie the CRI purchased from Hammond and Clinton contained .42 grams of methamphetamine. The CRI had known Hammond for four or five months and had used methamphetamine with him. Hammond previously sold the CRI methamphetamine twice. The CRI knew the other man as Mark and met him about the same time as Hammond. Mark had been to the CRIs home on other occasions. Mark made up the bag of methamphetamine, or handed it, to the CRI after the CRI gave Hammond the money.

In its instructions to the jury, the trial court explained that four overt acts were alleged by the prosecution to have occurred in Tuolumne County: (1) Hammond contacted a CRI; (2) Hammond asked the CRI if he knew anyone who wanted to buy drugs; (3) The CRI and Hammond went to a car where Mark James Clinton was; and (4) Mark James Clinton sold the CRI methamphetamine for $40. The court explained that the jury had to find at least one overt act was committed in California by at least one alleged member of the conspiracy. The jury returned a general verdict on count one, finding Hammond guilty of conspiracy as charged in Count I of the Information. The jury did not make specific findings concerning the overt acts.

EVIDENCE OF CONSPIRACY

Hammond contends there was insufficient evidence that he was engaged in a conspiracy.^[4] Hammond points out that there was no testimony concerning the specific conversation between Hammond, the CRI, and Clinton. Hammond argues there was no information concerning whether Clinton was waiting in the car, or if he was in the car to take a break from being in the casino or waiting to leave. Hammond argues there was no evidence whether Clinton retrieved the bag on his own accord or if he did so at Hammonds request. Hammond describes Clintons role as a mere aider and abettor and asserts there was no evidence of the existence of an agreement.

A conspiracy is an agreement with the specific intent by two or more persons to commit a crime, coupled with an overt act by one of the conspirators in furtherance of the agreement. ( 182, subd. (a)(1), 184; People v. Russo (2001) 25 Cal.4th 1124, 1131 (Russo); People v. Morante (1999) 20 Cal.4th 403, 416.) Evil thoughts alone do not constitute a criminal offense. (Russo, supra, 25 Cal.4th at p. 1131.) Although the jury must agree that an overt act toward the completion of the conspiracy occurred, it need not unanimously agree as to which overt act occurred. (Id. at. pp 1133-1136.) The overt acts need not be criminal acts. (Id. at p. 1135; People v. Robinson (1954) 43 Cal.2d 132, 139.)

Proof of a conspiracy may be shown by circumstantial evidence. The agreement may be inferred from the conduct of the defendants mutually carrying out a common purpose in violation of a penal statute. (People v. Longines (1995) 34 Cal.App.4th 621, 625-626.) Proof of a conspiracy does not require evidence of a formal agreement or one expressed in words. (People v. Jordan (1937) 24 Cal.App.2d 39, 50.) It may be inferred from coordinated group conduct. (People v. Lipinski (1976) 65 Cal.App.3d 566, 575-576.)

In proving a conspiracy . . . it is not necessary to demonstrate that the parties met and actually agreed to undertake the unlawful act or that they had previously arranged a detailed plan. The evidence is sufficient if it supports an inference that the parties positively or tacitly came to a mutual understanding to commit a crime. Therefore, conspiracy may be proved through circumstantial evidence inferred from the conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy. [Citation.] (People v. Prevost (1998) 60 Cal.App.4th 1382, 1399; also see People v. Herrera (2000) 83 Cal.App.4th 46, 64.)

We initially note that the CRI testified, albeit somewhat unclearly, that he followed Hammond with another guy out to their car from the casino. This constitutes evidence that Clinton and Hammond met the CRI in the casino and the CRI followed the two men out to their car. If Clinton was with Hammond inside the casino, he would have heard Hammonds offer to make a drug sale to the CRI and then walked with them to the Jetta. In this interpretation of the facts, Clinton would have heard Hammonds conversation with the CRI and would have walked to the car with full knowledge of their criminal intent.

Investigator Ford, however, testified that he saw only two men, one of them the CRI, walk out to the Jetta. The prosecution alleged as an overt act that the CRI and Hammond went to a car where Clinton was waiting. Although there was no specific jury finding concerning the truth of this particular overt act, Hammonds interpretation of the evidence is the most likely interpretation of the facts accepted by the jury. We will accept for the purposes of our analysis that the CRI first met Clinton in the Jetta.

Hammond had previously sold drugs to the CRI and used them with him as well. Hammond approached the CRI in the casino and offered to sell the CRI drugs. Hammond walked with the CRI to a car belonging to Clinton. The CRI paid Hammond. Clinton, who had been waiting in the car, either prepared the bag of drugs and handed them over to Hammond or simply handed them over to Hammond. Hammond then gave the bag to the CRI. Clinton was not a passive observer, but an active participant in the transaction; in effect, a packager and/or a sales clerk.

Testimony concerning what was said in the car was not necessary to inferentially show that Hammond and Clinton were engaged in a conspiracy to sell illegal drugs. The two were involved in coordinated group conduct. Although there was no evidence at trial that Clinton said anything during the transaction, he worked in direct cooperation with Hammond during the sale to the CRI. The fact that Clinton was waiting in a car while Hammond solicited the CRI for a sale of illegal drugs before bringing the CRI to the car, is circumstantial evidence of a previous design and agreement between the conspirators to sell drugs in the casino parking lot. Also, Hammond himself had previously sold and used drugs with the CRI, indicating a sophistication and knowledge of illegal drug transactions. There was sufficient, circumstantial evidence adduced at trial that Clinton and Hammond had an agreement between themselves to sell methamphetamine.

JURY INSTRUCTIONS

Hammond challenges the absence of the following optional language from CALCRIM No. 415: Evidence that a person did an act or made a statement that helped accomplish the goal of the conspiracy is not enough, by itself, to prove that the person was a member of the conspiracy. Hammond argues the instructions allowed the jury to infer the requisite agreement from conduct if the jury concluded the members of the conspiracy acted with a common purpose to commit the crime. In the present case, Hammond argues the only evidence the jury had concerning Clinton, aside from events in the car, was that Clinton knew Hammond. According to Hammond, Clinton performed a single act, handing Hammond drugs, to accomplish a goal of the conspiracy and this was the only evidence from which the jury could infer an agreement existed. Hammond asserts that the omitted language, therefore, lowered the prosecutions burden of proof.

The trial court instructed the jury on conspiracy as follows:

The defendant is charged in Count 1 with conspiracy to commit sale of a controlled substance. To prove that the defendant is guilty of this crime, the People must prove that: The defendant intended to agree and did agree with Mark James Clinton to commit sale of a controlled substance; at the time of the agreement, the defendant and the other alleged member of the conspiracy intended that one or more of them would commit the sale of a controlled substance; the defendant or Mark James Clinton or both of them committed at least one of the alleged overt acts to accomplish the sale of a controlled substance; and at least one of these overt acts was committed in California.

The court proceeded to set forth the four overt acts alleged by the prosecution. The court continued its conspiracy instructions as follows:

The People must prove that the members of the alleged conspiracy had an agreement and intent to commit sale of a controlled substance. The People do not have to prove that any members of the alleged conspiracy actually met or came to a detailed or formal agreement to commit that crime. An agreement may be inferred from conduct if you conclude that the members of the alleged conspiracy acted with a common purpose to commit the crime.

An overt act is an act by one or more of the members of the conspiracy that is done to help accomplish the agreed upon crime. The overt act must happen after the defendant has agreed to commit the crime. The overt act must be more than the act of agreeing or planning to commit the crime, but it does not have to be a criminal act itself.

You must all agree that at least one alleged overt act was committed in California by at least one alleged member of the conspiracy, but you do not have to all agree on which specific overt act or acts were committed or who committed the overt act or acts.

Hammond argues the prosecution showed no more than intent to aid and abet the sale of methamphetamine. We disagree. We concur with the Peoples assertion that these instructions required the jury to find that Hammond and Clinton did more than a single act to further the conspiracy. The jury had to find Hammond and Clinton intended to sell drugs and that they formed an agreement to sell drugs. As noted above, the fact that Clinton was waiting in a car while Hammond solicited the CRI for a sale of illegal drugs before bringing the CRI to the car is circumstantial evidence of a previous design and agreement between the conspirators to sell drugs in the casino parking lot. This was also one of the alleged overt acts to the conspiracy.

Therefore, the optional language in CALCRIM No. 415 adds little to other, correctly given instructions, in which the jury necessarily found an agreement to commit a crime, intent to sell drugs, and at least one overt act by one of the conspirators. Hammonds conduct was not limited to a single act. Hammond approached the CRI, offered to sell drugs at a particular price, showed the CRI to the car, accepted the CRIs money, and handed the drugs to the CRI after receiving them from Clinton.

Furthermore, the trial court instructed the jury with CALCRIM No. 103, the instruction explaining that the burden of proof rests with the prosecution and the jury must be convinced of the defendants guilt beyond a reasonable doubt. CALCRIM No. 103 is a more specific, detailed instruction concerning the prosecutions burden of proof than the last sentence of CALCRIM No. 415. Jurors are presumed able to understand and correlate instructions and are further presumed to have followed the courts instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 852.)

Finally, a bench note to CALCRIM No. 415 states that the bracketed and missing instruction should be given on request, citing People v. Toledo-Corro (1959) 174 Cal.App.2d 812, 820 (Toledo-Corro). (CALCRIM No. 415 (Jan. 2006 ed.), p. 143.) Hammond never requested the bracketed instruction.^[5] At the page referenced in the bench note, the Toledo-Corro case discusses the legal rule that mere association does not make a conspiracy, especially where the association with conspirators does not involve criminal intent. (Ibid.)

The bracketed material Hammond thinks should have been read to the jury focuses on acts that do not have a criminal intent. The evidence adduced at trial showed that Hammond was not innocently associating with Clinton. There was no evidence supporting use of the bracketed language to support a theory that Hammond was merely engaged in innocent acts unassociated with the conspiracy, or that he was innocently associating with Clinton. Everything Hammond did from his initial approach to the CRI, to the consummation of the sale of methamphetamine inside the Jetta, was in active furtherance of a criminal conspiracy. Hammonds defense centered on the credibility of the CRI, not the innocence of his own actions. A trial court must give a clarifying instruction only if it is supported by substantial evidence. (People v. Marshall (1997) 15 Cal.4th 1, 39-40.) Here, there was no substantial evidence that Hammond and Clinton acted with innocent intent.

The language Hammond argues was missing from the trial courts conspiracy instructions to the jury was not requested by Hammond and, given the bench notes and the Toledo-Corro case, was inappropriate under the facts of this case. We find no error in the trial courts failure to instruct the jury with the optional, bracketed language in the last sentence of CALCRIM No. 415.

DISPOSITION

The judgment is affirmed.

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^*Before Harris, Acting P.J., Levy, J., and Cornell, J.

^[1] All other statutory references are to the Penal Code.

^[2] The CRI told Ford that Mark associated with Hammond.

^[3] Ford obtained information about the car Hammond was in from the Department of Motor Vehicles and learned it was registered to someone in Oakdale. Ford contacted the Oakdale Police Department and determined that Hammond was a known associate of the registered owner of the car.

^[4] In assessing a claim of insufficiency of evidence, the reviewing courts task is to review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence -- evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. It is the jury, not the appellate court, which must be convinced of the defendants guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. (People v. Rodriguez (1999) 20 Cal.4th 1, 11 (Rodriguez); also see People v. Johnson (1980) 26 Cal.3d 557, 578; Jackson v. Virginia (1979) 443 U.S. 307, 317-320.)

^[5] The bench notes state that the last two bracketed sentences of CALCRIM No. 415 can be given on request. The first bracketed sentence states that one who merely accompanies or associates with members of a conspiracy but who does not intend to commit the crime is not a member of the conspiracy. Hammond did not request this portion of CALCRIM No. 415.