Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Imperial County No. JCF19695., Matias R. Contreras, Judge. (Retired judge of the Imperial S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
NARES, J.
A jury convicted Louis Lopez of (1) transporting a controlled substance (cocaine) for sale to a noncontiguous county (count 1: Health & Saf. Code, § 11352, subd. (b)) (hereafter referred to as section 11352(b)), and (2) conspiracy to transport a controlled substance for sale to a noncontiguous county (count 2: Pen. Code, § 182, subd. (a)(1); § 11352(b)).
All further statutory references are to the Health and Safety Code unless otherwise specified.
As to each count, the jury found true a weight enhancement allegation under section 11370.4, subdivision (a)(4) (hereafter section 11370.4(a)(4)) that the amount of the controlled substance exceeded 20 kilograms. Lopez admitted an allegation in both counts that he had a prior prison term conviction. (Pen. Code, § 667.5, subd. (b)).
The court sentenced Lopez to a total state prison term of 22 years, consisting of the middle term of six years for the count 1 transportation for sale conviction (§ 11352(b)), plus a consecutive 15-year enhancement under section 11370.4(a)(4) based on the weight of the contraband, plus a consecutive one-year prior prison term enhancement. The court stayed imposition of sentence under Penal Code section 654 on both the count 2 conspiracy conviction and the true finding on the count 2 section 11370.4(a)(4) weight enhancement allegation.
Although the court's December 24, 2008 sentencing minutes state that "[t]he Court further notes as to Count 2, execution of sentence is stayed" (italics added), the minutes do not indicate the court ever imposed a sentence for either the count 2 conspiracy conviction or the true finding on the count 2 section 11370.4(a)(4) weight enhancement allegation. The reporter's transcript of the sentencing hearing shows the court stated, "With respect to the count on the conspiracy, I'm going to stay any sentence on that. I will not impose a sentence at this time." (Italics added.) Immediately thereafter, however, the court stated, "I will stay the execution of any sentence." The abstract of judgment shows the court (1) imposed the middle term of six years for the count 1 transportation for sale conviction, the 15-year enhancement for the true finding on the count 1 section 11370.4(a)(4) weight enhancement allegation, and the one-year prior prison term enhancement; and (2) stayed the imposition of sentence for the count 2 conspiracy conviction. The abstract of judgment, however, does not refer to the jury's true finding on the count 2 section 11370.4(a)(4) weight enhancement allegation. The foregoing record shows the court stayed imposition of sentence on both the count 2 conspiracy conviction and the true finding on the count 2 section 11370.4(a)(4) weight enhancement allegation.
Lopez appeals, contending the jury's true finding on the section 11370.4(a)(4) weight enhancement allegation pleaded in the conspiracy count (count 2) of the second amended information (hereafter the information) must be stricken under People v. Garcia (1992) 3 Cal.App.4th 582 (Garcia) because (1) the jury did not make the requisite special finding under section 11370.4(a)(4) that he was "substantially involved in the planning, direction, execution, or financing of the underlying [section 11352(b)] offense"; and (2) the court failed to instruct the jury that it could find true the weight enhancement allegation only if the jury found under section 11370.4(a)(4) that he was substantially involved in the planning, direction, execution, or financing of the underlying offense.
We conclude the court committed constitutional error by failing to instruct the jury it could find true the count 2 weight enhancement allegation only if it found beyond a reasonable doubt under section 11370.4(a)(4) that he was "substantially involved in the planning, direction, execution, or financing of the underlying offense" of transporting a controlled substance for sale to a noncontiguous county in violation of section 11352(b). We also conclude, however, that the court's instructional error was harmless beyond a reasonable doubt within the meaning of Chapman v. California (1967) 386 U.S. 18, 24 (Chapman). Accordingly, we affirm the judgment.
Additional pertinent facts will be discussed, post, in the discussion portion of this opinion.
A. The People's Case
Lopez was identified as a load coordinator for a Sinaloa drug cartel cell operated by Carlos Cuevas, Jr. (Cuevas), who used the Calexico port of entry to transport cocaine from Mexico into the United States. The responsibilities of load coordinators included the recruitment of people to drive vehicles loaded with cocaine across the border to delivery locations in Riverside, San Bernardino, and Los Angeles Counties. Lopez confirmed with Cuevas a delivery of 25 kilograms of cocaine.
B. The Defense
Luis Eduardo Alvarez testified he worked as a load coordinator for the Cuevas cell of the cocaine drug cartel and recruited drivers. Although he met Lopez at Cuevas's house in Calexico, he did not know Lopez to be employed by Cuevas.
Lopez testified and admitted he went to prison for transporting a load of marijuana to Riverside for Cuevas in early 2004. He stated that he refused to work again for Cuevas.
DISCUSSION
The issue we must decide is whether the jury's true finding on the section 11370.4(a)(4) weight enhancement allegation pleaded in the conspiracy count (count 2) must be stricken (as Lopez contends) on the grounds that (1) the jury did not make the requisite special finding under section 11370.4(a)(4) that he was "substantially involved in the planning, direction, execution, or financing of the underlying [section 11352(b)] offense"; and (2) the court failed to instruct the jury that it could find true the weight enhancement allegation only if the jury found beyond a reasonable doubt under section 11370.4(a)(4) that he was "substantially involved in the planning, direction, execution, or financing" of that underlying offense.
For reasons we shall explain, we conclude the jury's true finding must be affirmed because, although the court committed federal constitutional instructional error, the error was harmless beyond a reasonable doubt under Chapman, supra, 386 U.S. 18.
A. Applicable Legal Principles
The challenged true finding on the weight enhancement allegation set forth in count 2 of the information was based on section 11370.4(a)(4), which provides: "(a) Any person convicted of a violation of, or of a conspiracy to violate, Section... 11352 with respect to a substance containing... cocaine... shall receive an additional term as follows: [¶]... [¶] (4) Where the substance exceeds 20 kilograms by weight, the person shall receive an additional term of 15 years."
The last paragraph of section 11370.4, subdivision (a) provides: "The conspiracy enhancements provided for in this subdivision shall not be imposed unless the trier of fact finds that the defendant conspirator was substantially involved in the planning, direction, execution, or financing of the underlying offense." (Italics added.)
Application of the section 11370.4(a)(4) weight enhancement to a defendant (like Lopez) convicted of conspiracy to violate section 11352 thus requires a special finding that the defendant conspirator was "substantially involved" in the planning, direction, execution, or financing of the underlying section 11352 offense. (§ 11370.4, subd. (a) ; see also Garcia, supra, 3 Cal.App.4th at p. 585 [section 11370.4 "was modified effective January 1, 1990, to require a special finding of substantial involvement in order to apply the enhancement to a defendant charged with conspiracy"].)
"[A] trial court's failure to instruct the jury on an element of a sentence enhancement provision (other than one based on a prior conviction), is federal constitutional error if the provision 'increases the penalty for [the underlying] crime beyond the prescribed statutory maximum.' " (People v. Sengpadychith (2001) 26 Cal.4th 316, 326 (Sengpadychith).) "Such error is reversible under Chapman, supra, 386 U.S. at page 24, unless it can be shown 'beyond a reasonable doubt' that the error did not contribute to the jury's verdict." (Ibid.) Elaborating on these principles, the California Supreme Court explained in People v. Davis (2005) 36 Cal.4th 510, that, even when jury instructions completely omit an element and thereby deprive the jury of the opportunity to make a finding on that element, a conviction (or true finding on an enhancement allegation) "may be upheld under Chapman where there is no 'record... evidence that could rationally lead to a contrary finding' with respect to that element." (Davis at p. 564, quoting Neder v. United States (1999) 527 U.S. 1, 19.)
B. Analysis
Here, the People do not dispute that, although the court instructed the jury regarding the count 2 section 11370.4(a)(4) weight enhancement allegation with a modified version of CALCRIM No. 3250, the instruction did not inform the jury that in order to apply that weight enhancement to Lopez, it was required to find under section 11370.4, subdivision (a), that the People had met their burden of proving beyond a reasonable doubt that Lopez was substantially involved in the planning, direction, execution, or financing of the underlying offense of transporting cocaine for sale to a noncontiguous county in violation of section 11352(b).
The court gave the following modified version of CALCRIM No. 3250: "If you find the defendant guilty of the crimes charged in Count 1 and/or Count 2, you must then decide whether the People have proved the additional allegation that the amount of the controlled substance exceeded (20) twenty kilograms. You must decide whether the People have proved this allegation for each crime and complete a separate finding for each crime. [¶] To prove this allegation, the People must prove that: [¶] 1. The amount of cocaine transported to the non-contiguous county exceeded (20) twenty kilograms by weight. [¶] The People have the burden of proving each allegation beyond a reasonable doubt. If the People have not met this burden, you must find that the allegation has not been proved." (Italics added.)
We conclude that because substantial involvement in the planning, direction, execution, or financing of the underlying offense is an element of the section 11370.4(a)(4) sentence enhancement alleged in the conspiracy count, the court committed federal constitutional error by failing to instruct the jury on that element. (§ 11370.4, subd. (a); Sengpadychith, supra, 26 Cal.4th at p. 326; Garcia, supra, 3 Cal.App.4th at p. 585.)
We also conclude, however, that the court's instructional error was harmless beyond a reasonable doubt within the meaning of Chapman, supra, 386 U.S. 18. The "substantially involved" element of the count 2 section 11370.4(a)(4) enhancement requires proof of more than mere complicity in the alleged conspiracy; it requires proof that the defendant "played at least an active role in the drug trafficking operation." (People v. Gonzalez (2004) 116 Cal.App.4th 1405, 1417 (Gonzalez), overruled on another ground in People v. Arias (2008) 45 Cal.4th 169, 183, italics added.) However, that element "does not demand proof that the defendant was a primary or dominant figure in the conspiracy." (Gonzalez, supra, at p. 1418.)
Here, overwhelming evidence established beyond a reasonable doubt that Lopez played an active role in the subject drug trafficking operation as a load coordinator for the Cuevas cell of the Sinaloa drug cartel (the cartel). Robert Sawyer, a detective with the El Centro Police Department who was assigned in May 2005 to the Drug Enforcement Administration (DEA) as a task force officer in Imperial County, testified that the task force's investigation, which involved surveillance and telephone call interceptions, resulted in 14 drug seizures between May 17, 2005 and February 10, 2006.
The investigation focused on the cartel, which is also known as the Sinaloa Federation, and is run by Victor Emilio Cazares-Salazar (Cazares), who at the time of trial resided in Sinaloa, Mexico. One cell of the cartel was operated by Cuevas, who was identified from phone records of phones seized in connection with the seizure of cocaine in July 2005. The Cuevas cell used the Calexico port of entry to move cocaine from Mexico into the United States. After entering the United States through the Calexico port of entry, the vehicles transporting the cocaine traveled the majority of the time up Interstate 8 to San Diego, and then north on either Interstate 15 or Interstate 5, depending on their ultimate destinations.
Detective Sawyer also testified that various members of the Cuevas cell worked as "load coordinators, " whose responsibilities included the recruiting and overseeing of the drivers of the vehicles, contacting the recipient of the narcotics to make arrangements for delivery, and reporting back to Cuevas to notify him the narcotics had or had not been delivered.
During the last quarter of 2005, Detective Sawyer's investigation focused on Lopez as a possible suspect based on intercepted calls and surveillance of his association with Cuevas. Detective Sawyer began surveillance of a residence in Heber where he believed Lopez was residing and followed Lopez and Cuevas around as they drove together to various locations in Calexico. Eventually, from intercepted phone calls between Cuevas and Lopez, Detective Sawyer concluded that Lopez was one of Cuevas's load coordinators and that Lopez was responsible for finding a driver for one of Cuevas's vehicles, a green Volkswagen Passat.
Through intercepted calls and surveillance, Detective Sawyer concluded that Lopez recruited April Del Toro (Del Toro) as the Cuevas cell's driver of the green Passat, which was registered in her name. During intercepted conversations, Cuevas said the female driving the Passat worked for Lopez.
Cuevas testified on behalf of the prosecution. He stated that he operated the Cuevas cell in the cartel run by Cazares. Cazares shipped cocaine by bus from Sinaloa, Mexico, to Mexicali, where his cells shipped it all over the United States. Cuevas's cell was responsible for shipping the cocaine from Mexicali to Los Angeles; other people were responsible for shipping it to Atlanta, Chicago, and New York. Between 2003 and his arrest in 2007, Cuevas transported about two or three tons of cocaine from Mexicali to Southern California at a price of $500 per kilogram (2.2 pounds).
Cuevas testified that five or six recruiters worked for the Cuevas cell. Lopez was one of his recruiters, and Lopez's job was to recruit drivers to take cars loaded with cocaine across the border from Mexicali to delivery locations in Southern California. Cuevas indicated that Lopez recruited Del Toro as one of the drivers. Cuevas told Lopez he needed a driver, and Lopez was responsible, as the recruiter, for bringing her driver's license to Cuevas's home, which he did in late 2005 or early 2006.
Cuevas also testified that he paid Lopez $5,200 to act as both the recruiter and a "lookout" or guide for a shipment of 25 kilograms of cocaine to Fontana on February 10, 2006, and Lopez would pay Del Toro, who was the driver. Cuevas stated that Lopez later confirmed with him by phone the delivery of the cocaine.
The foregoing evidence amply establishes beyond a reasonable doubt that Lopez played an active role in the drug-trafficking operation that is the subject of this case, and thus the court's instructional error was harmless beyond a reasonable doubt under the Chapman harmless error standard. In light of the active role Lopez played in this matter, his argument that he was just a "lower level participant" is unavailing. (See Gonzalez, supra, 116 Cal.App.4th at p. 1417.)
Lopez's reliance on Garcia, supra, 3 Cal.App.4th 582, for the proposition that the jury's true finding must be stricken is unavailing. In that case, a jury convicted the defendant of (1) conspiracy to sell or transport a controlled substance (Pen. Code, § 182), and (2) possession of a controlled substance for purpose of sale (§ 11351). (Garcia at p. 583.) The jury also found true a weight enhancement allegation in each of those counts that the controlled substance weighed more than three pounds, in violation of section 11370.4, subdivision (a)(1) (hereafter section 11370.4(a)(1)). (Garcia at p. 583.) The trial court in Garcia had instructed the jury with a modified version of CALJIC No. 17.22.1, which (like the modified version of CALCRIM No. 3250 given in the instant case) did not inform the jury it was required to determine whether the defendant was substantially involved in the planning, direction, execution, or financing of the underlying offense. (Garcia at pp. 585-586.) The trial court sentenced the defendant to the midterm of four years on the conspiracy count, plus a three-year consecutive enhancement based on the weight of the contraband under section 11370.4(a)(1). (Garcia at p. 584.) On appeal the defendant challenged the weight enhancement, contending that both the jury instructions and the verdict form were insufficient with regard to the specific findings required by the enhancement section. (Garcia at p. 584.)
The Court of Appeal in Garcia struck the weight enhancement, concluding that both the jury instructions and the verdict form pertaining to the section 11370.4(a)(1) weight enhancement allegation in the conspiracy count failed to reflect the provision of that section requiring a special finding of substantial involvement in the underlying offense to apply the enhancement to a defendant charged with conspiracy to commit that underlying offense. (Garcia, supra, 3 Cal.App.4th at pp. 585-586.) The Garcia court then affirmed the judgment as modified. (Id. at p. 586.) By striking the weight enhancement, the Garcia court in effect struck the true finding on the weight enhancement allegation upon which the enhancement was based.
By relying on Garcia, which did not address the issue of harmless error in the published portion of the opinion, Lopez appears to be claiming that harmless error analysis does not apply. His reliance on Garcia is unavailing because that decision predated Sengpadychith, supra, 26 Cal.4th 316, in which the California Supreme Court held that harmless error analysis does apply.
DISPOSITION
The judgment is affirmed.
WE CONCUR: HUFFMAN, Acting P. J., O'ROURKE, J.