P. v. Vasquez

Filed 3/7/07 P. v. Vasquez CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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Among other crimes, a jury found defendant Jesse Joseph Vasquez guilty of conspiracy to transport approximately 49 kilograms of cocaine for sale from one county to another noncontiguous county within the state. The trial court sentenced him to an aggregate term of 26 years and eight months in prison.

On appeal, defendant contends the trial court erred in: (1) denying his motion to suppress the results of a wiretap on his telephone; (2) instructing the jury on the 40 kilograms weight enhancement; and (3) failing to instruct the jury on the lesser included offense of conspiracy to transport cocaine for sale. Finding no error, we will affirm the judgment.

A detailed recitation of the facts is unnecessary to our decision. Suffice it to say, the evidence showed defendant was involved in a drug-trafficking operation that sought to bring large quantities of narcotics from Texas to Sacramento, including approximately 49 kilograms of cocaine that were found in a car in San Antonio in May 2002. With that, we turn to defendants three arguments on appeal.

DISCUSSION

I

Motion To Suppress Wiretap Evidence

In March 2000, Sacramento County Deputy Sheriff Robin Kolb and other law enforcement officers began investigating the sale of methamphetamine, cocaine, and marijuana by an individual named Tony Villaseor. Through numerous related investigations over the course of two years, Deputy Kolb came to believe Villaseor was part of an organized group that distributes methamphetamine and cocaine in the Sacramento area.

On April 2, 2002, Deputy Kolb obtained a court order authorizing a wiretap on Villaseors cellular telephone. Over the following month, the results of that wiretap revealed evidence of defendants significant involvement in Villaseors drug-trafficking organization. Deputy Kolb attested to intercepting in excess of 125 drug pertinent telephone calls between Tony VILLASENOR and his associate Jesse VASQUEZ during that period. Based on these calls and other evidence, Deputy Kolb concluded that defendant appeared to be Villasenors closest associate and responsible for hiring drivers of the suspected load vehicles.

At the end of April 2002, Deputy Kolb submitted an 81-page affidavit in support of an application to extend the wiretap on Villaseors cellular telephone and to authorize a wiretap on defendants cellular telephone. On April 30, 2002, the court granted the application.

Before trial, defendant moved to suppress evidence derived from the wiretap on his phone on grounds the wiretap was not a necessity and that normal and traditional investigation techniques were sufficient and would have been successful. The trial court denied the motion. Defendant challenges that ruling on appeal.

Under both state and federal law, a judge may authorize a wiretap only if normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous. (People v. Zepeda (2001) 87 Cal.App.4th 1183, 1195-1196.) This is known as the necessity requirement. (Ibid.) This requirement is designed to assure that wiretapping is not resorted to in situations where traditional investigative techniques would suffice to expose the crime. (United States v. Kahn (1974) 415 U.S. 143, 153 [39 L.Ed.2d 225, 236], fn. 12.) What is required is a showing that in the particular investigation normal investigative techniques employing a normal amount of resources have failed to make the case within a reasonable period of time. (United States v. Spagnuolo (9th Cir. 1977) 549 F.2d 705, 710.) The trial courts determination that the necessity requirement was met is reviewed for abuse of discretion. (Zepeda, at p. 1204.)

Defendant contends the necessity requirement was not met here because law enforcement officers were only aware of [his] role in the drug-trafficking conspiracy in this case for a very short period of time--less than one month--before the intercept order was sought and obtained. He asserts [s]uch a short period of time was certainly not adequate for the officers to seek in any meaningful way to conduct traditional investigative methods. He also argues the investigation which the officers did conduct during the brief time period . . . was successful in uncovering some information about his involvement in the organization. To the extent the investigation in April 2002 did not succeed in meeting all of the broad investigative goals Deputy Kolb had set for the investigation, defendant contends the government cannot demonstrate necessity by simply claiming a vast investigative purpose.

Defendants argument rests on a faulty premise. Essentially, he asserts that the two years of investigations that were conducted before authorities learned of his involvement with Villaseor in early April 2002 cannot be considered in determining whether a wiretap of his phone was necessary. According to defendant, because the legal issue concerning the propriety of the intercept order as to [him] must be assessed independently of the propriety of an intercept order as to other co-conspirators, including Mr. Villaseor . . . , the extent to which there were limitations on the success of the officers traditional investigative techniques concerning the Villaseor drug organization as a whole does not justify an abrupt abdication of such normal investigative methods as to Mr. Vasquez.

It is true that the necessity requirement must be satisfied with regard to each separate wiretap and [i]t is not enough that the agents believe the telephone subscribers they wish to tap are all part of one conspiracy. (United States v. Abascal (8th Cir. 1977) 564 F.2d 821, 826.) It does not follow, however, that the experience of law enforcement authorities over a substantial period in investigating other participants in a suspected drug-trafficking organization cannot be taken into account in determining whether normal investigative procedures reasonably appear to be unlikely to succeed if tried with respect to a recently discovered member of the organization. Indeed, although [t]he government may not dispense with the statutorily mandated showing of necessity to obtain a wiretap . . . , [an individuals] connection with conspirators who are themselves so wary that a wiretap is necessary in order to investigate their criminal activities may be a factor that weighs in favor of authorizing the tap. (United States v. Brone (9th Cir. 1986) 792 F.2d 1504, 1507.)

Thus, in evaluating the necessity requirement with respect to the application for a wiretap on defendants cellar phone, the court was entitled to consider the entire course of the two-year-long investigation into suspected drug trafficking by Villaseor and his associates. It likewise follows that to show trial court error, defendant must convince us, based on the course of the entire investigation, that the trial court abused its discretion in determining the necessity requirement was met. He has not done so. Accordingly, we conclude the trial court did not err in denying his motion to suppress the results of the wiretap.

II

Weight Enhancement Instruction

Defendant was charged with (among other things) conspiracy to transport cocaine for sale from one county to another noncontiguous county within the state.^[1] As an enhancement, the indictment alleged the amount of cocaine involved was approximately 49 kilograms. Under subdivision (a)(5) of Health and Safety Code section 11370.4, any person convicted of a conspiracy to transport a substance containing cocaine shall receive an additional term of 20 years [w]here the substance exceeds 40 kilograms by weight.

On the weight enhancement, the trial court instructed the jury that [i]n order for the weight allegation to be found true, there is no requirement that the prosecution prove that a defendant knew that the weight of the cocaine actually being transported exceeded forty kilograms.

Defendant contends the trial court erred in giving this instruction. According to defendant, under basic principles of conspiracy law, when the prosecution seeks a drug quantity enhancement as to a defendant who has engaged in a drug-trafficking conspiracy, the prosecution must prove that the defendant was part of a conspiratorial agreement to engage in trafficking with respect to a particular quantity of drugs, viz., that the defendant had knowledge of the quantity necessary to support the enhancement sought by the prosecution.

Defendant is mistaken. It is true that, [t]o sustain a conviction for conspiracy to commit a particular offense, the prosecution must show not only that the conspirators intended to agree but also that they intended to commit the elements of that offense. (People v. Swain (1996) 12 Cal.4th 593, 600, italics omitted.) Based on this principle alone, it would make sense that where the prosecution charged a conspiracy defendant with a weight enhancement in a drug transportation case, the prosecution would have to prove the defendant intended to transport an amount of the drug sufficient to trigger the weight enhancement.

There is another principle of conspiracy law, however, that compels a different conclusion. Under that principle, each conspirator is responsible for anything done by other members that follows in the execution of the common design as one of its probable and natural consequences. (People v. Morante (1999) 20 Cal.4th 403, 417.) Certainly it is a natural and probable consequence of a conspiracy to transport a large quantity of cocaine that the amount ultimately obtained for transport will exceed 40 kilograms. Thus, a conspirator in a case like this can be held liable for a weight enhancement even if he did not intend to transport a particular quantity of the drug in question or otherwise know of the particular quantity involved.

Here, the jury was properly instructed that [e]ach member of a criminal conspiracy is liable for each act . . . of every other member of that conspiracy, made during the time that the person was a member, if that act . . . is in furtherance of the object of the conspiracy. This instruction provided a proper basis for applying the weight enhancement to defendant even if he did not know the quantity of cocaine involved exceeded 40 kilograms. Thus, he has failed to show any error in the instructions on the weight enhancement.^[2]

III

Lesser Included Offense Instruction

Defendant contends the trial court erred in failing to instruct the jury on conspiracy to transport cocaine for sale as a lesser included offense of conspiracy to transport cocaine for sale from one county to another noncontiguous county within the state. We disagree.

In a conspiracy case, the trial court has a sua sponte duty to instruct the jury on a lesser included target offense if there is substantial evidence from which the jury could find a conspiracy to commit the offense. (People v. Cook (2001) 91 Cal.App.4th 910, 918.) Here, it is undisputed the conspiracy involved driving cocaine from Texas to Sacramento. It is possible the cocaine could have been transported to Sacramento County without entering or crossing a noncontiguous county within the state if the driver used U.S. Highway 50, which from the Nevada border crosses only El Dorado County before entering Sacramento County. But defendant was entitled to an instruction on the lesser included offense of conspiracy to transport cocaine for sale only if there was substantial evidence from which the jury could find a conspiracy to commit that lesser offense rather than the greater offense of conspiracy to transport cocaine for sale from one county to another noncontiguous county within the state. Defendant points to no such evidence. Instead, he contends there was no evidence that [he] had any knowledge of or participation in the planning of the route to be taken in transporting the drugs in question.

The evidence showed that in January 2002, defendant instructed another individual to drive a car back from San Antonio to Sacramento using Interstate 10, which enters California in Riverside County. On another trip the following month in which defendant was involved, that same individual was instructed to drive from McAllen, Texas, to Sacramento on a route that brought her into the state on Interstate 40, which enters California in San Bernardino County. While it is true there was no evidence of the specific route to be taken in May 2002 by the individuals who were found with the 49 kilograms of cocaine, the evidence regarding the previous incidents supported a rational inference that the members of the conspiracy planned to use a route like those used before, which required crossing more than one California county before reaching Sacramento. More importantly, there was no evidence suggesting the members of the conspiracy planned to use a route, like U.S. Highway 50, that would have crossed only one California county before reaching Sacramento, rather than using one of the other routes that required crossing more counties. Thus, there was no substantial evidence from which the jury could find a conspiracy to commit the lesser included offense rather than the greater offense. Under these circumstances, defendant has failed to show any instructional error.

DISPOSITION

The judgment is affirmed.

ROBIE , J.

We concur:

BLEASE , Acting P.J.

BUTZ , J.

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^[1] The indictment specifically alleged the cocaine was to be transported between Sacramento County and Kern, San Bernardino, and Riverside Counties.

^[2] To the extent defendant relies on cases from the United States Court of Appeals for the Seventh Circuit suggesting a defendant must have agreed to become part of a conspiracy to distribute a given quantity of drugs to be liable for a weight enhancement (see U.S. v. Edwards (7th Cir. 1991) 945 F.2d 1387, 1396; U.S. v. Plescia (7th Cir. 1995) 48 F.3d 1452, 1461), we are not bound by those cases and we do not find them persuasive on the law of conspiracy in California.