Opinion
NOT TO BE PUBLISHED
Superior Court County of San Luis Obispo No. F378267, John Trice, Judge
Larry S. Dushkes, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, Robert M. Snider, Deputy Attorney General, for Plaintiff and Respondent.
YEGAN, Acting P.J.
Selerino Perez appeals from the judgment entered following his conviction by a jury of cultivation of marijuana (Health & Saf. Code, § 11358) and possession of marijuana for sale. (Id., § 11359.) (CT 132-133) He was sentenced to prison for 16 months. Appellant contends that the evidence is insufficient to support his convictions. We affirm.
Facts
In 1992 or 1993 Bud Chase sold a 3,300 acre ranch to Francesco Chiericati, an absentee landlord who lived most of the time in Italy. At Chiericati's request, Chase planted olive trees on approximately 25 to 30 acres of the ranch. Appellant helped Chase plant the trees.
Chase installed an irrigation system for the olive trees. The trees received water from a 10,000-gallon silver holding tank. Three natural springs supplied water to the silver tank.
There was a black polyethylene water tank that Chase had abandoned before selling the ranch to Chiericati. The black tank was in a remote part of the ranch.
In 2001 Chiericati hired appellant to manage the ranch. Appellant was responsible for taking care of the olive orchard and assuring that the fencing was in good condition. He was the only employee at the ranch. He and his family lived in a ranch house on the property.
Chase owned a .22 caliber rifle. He let appellant use the rifle to control rodents on the ranch. Appellant kept the rifle in a tractor.
Greg Beuer is a deputy sheriff. On September 6, 2005, he flew over the ranch in a helicopter and saw a "marijuana grow." He subsequently discovered that there were two marijuana grows: one was in a ravine, and the other was on a hillside. The ravine grow was larger than the hillside grow.
From the helicopter Beuer spotted a person working in the ravine grow. The person, later identified as Misael Avila, was trimming a marijuana plant. When Avila saw the helicopter, he "took off running." Beuer jumped out of the helicopter and arrested Avila.
Beuer found two paths leading into the "marijuana grows." In the larger ravine grow, there were "just over 5,000 plants." Most of the marijuana plants were eight to fourteen feet high. The plants had been planted in the middle of May 2005. The water source for the ravine grow was a creek. Under a tree in the ravine grow, there was a campsite. At the campsite were three sleeping bags, canned foods, a propane stove, and various personal items. Chase's rifle was also found at the campsite.
The marijuana plants in the hillside, smaller grow were probably planted at the end of May 2005. The water source for this grow was the black tank that Chase had abandoned before selling the property. Someone had cut the pipe leading from one of the springs to the silver tank. The water from this spring was diverted to the black tank.
According to Chase, if the pipe from one of the springs to the silver tank had been cut, appellant should have known about it. Appellant's responsibilities as ranch manager included making sure that the three springs were feeding the silver tank. Chase testified: "There's two different spouts where the water comes in from different springs. So if one spring was giving it up, or there was a problem, you could tell right away which spring it was."
The "marijuana grows" consisted of about two acres. They were in an isolated area and were not visible from the ranch house or the olive orchard. But the grows were visible from "many other portions of the ranch." Appellant was in charge not just of the olive orchard, but the entire ranch. If a person were checking fence lines on the ranch, there were places from which the "marijuana grows" would be visible. There were "clearly worn paths" between buildings on the ranch and the grows.
Deputy Kenneth Conway was at the ranch on September 7, 2005, the day after the arrest of Avila. At approximately 5:00 a.m. he stopped a vehicle driven by appellant. Appellant said that he did not work at the ranch and had nothing to do with it.
On September 15, 2005, Deputy Beuer asked appellant why he had told Conway that he did not work at the ranch. Appellant replied that on September 7 he was working for Chase and was on his way to Chase's ranch. But Chase testified that appellant was not working for him.
Beuer testified: "I told [appellant] I didn't think that he was involved in the planting and growing of the marijuana, but I felt that he knew about it, was allowing it, and he was getting money from the marijuana." Appellant "didn't respond at all, he looked straight down."
Beuer removed approximately 3,100 marijuana plants from the hillside grow. Thus, the total number of marijuana plants in both grows was about 8,200. Beuer, an expert on marijuana, opined that it would have taken three people to adequately attend to both grows. He estimated that the wholesale value of the marijuana harvested from the plants would be approximately $15 million.
Beuer testified that persons in the business of growing marijuana normally bribe "whoever is in charge of the property to look the other way for a portion of the proceeds." Everybody gets paid after the marijuana is sold. No one is paid up front. The person in charge of the property usually gets five to ten per cent of the sale proceeds.
Appellant's wife was called as a witness on his behalf. She testified that, in July 2005, she and appellant rented a room in Shandon. Up until that time, they had lived in the ranch house. While living in Shandon, appellant worked eight hours a day on the ranch. He did not work on weekends. According to wife, appellant was responsible for maintaining only the fences around the ranch house, not the entire property.
Standard of Review
"We ' "review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence - that is, evidence which is reasonable, credible, and of solid value - such 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.] This standard applies whether direct or circumstantial evidence is involved.' [Citation.]" (People v. Prince (2007) 40 Cal.4th 1179, 1251.)
Discussion
The prosecution's case was based on an aiding and abetting theory. "[A] person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime." (People v. Beeman (1984) 35 Cal.3d 547, 561.)
Appellant acknowledges that "there was evidence that [he] knew . . . that others were growing marijuana on the Chiericati Ranch." But appellant correctly notes that such knowledge, by itself, was insufficient to establish criminal liability as an aider and abettor. Appellant argues that he could not be convicted on an aiding and abetting theory because there was no substantial evidence that he took "any affirmative action to encourage or facilitate the commission of a crime."
We disagree. The jury could have found beyond a reasonable doubt that appellant had intended to facilitate the cultivation of marijuana on the Chiericati ranch, and that he had facilitated it. The jury could have reasonably inferred that, in return for a share of the proceeds from the sale of the marijuana, appellant had permitted the "marijuana grows." Appellant would have known that one of the springs had been diverted from the silver tank to the black tank used to water the hillside grow, but he took no action to rectify the situation. Appellant was responsible for assuring that all three springs were feeding the silver tank so that the olive orchard would have an ample supply of water.
It is reasonable to infer that appellant gave Chase's rifle to the persons who were attending to the grows so that they would be able to protect the grows from rodents and trespassers. The rifle was found at the campsite in the ravine grow.
Moreover, when appellant was stopped at the Chiericati ranch by Deputy Cameron on September 7, 2005, he lied by saying that he did not work there and had nothing to do with the ranch. He later lied again to Deputy Beuer when he said that on September 7 he was working for Chase, not Chiericoti. Appellant's lies show consciousness of guilt. "The inference of consciousness of guilt from willful falsehood or fabrication or suppression of evidence is one supported by common sense, which many jurors are likely to indulge even without an instruction." (People v. Holloway (2004) 33 Cal.4th 96, 142.)
In addition, appellant made an adoptive admission when he remained silent in the face of Deputy Beuer's accusation that he knew about the marijuana grows and was getting paid for allowing them. (Evid. Code, § 1221.) (3RT 729) "When a defendant remains silent after a statement alleging the defendant's participation in a crime, under circumstances that fairly afford the defendant an opportunity to hear, understand, and reply, the statement is admissible as an adoptive admission, unless the circumstances support an inference that the defendant was relying on the right of silence guaranteed by the Fifth Amendment to the United States Constitution. [Citations.]" (People v. Jurado (2006) 38 Cal.4th 72, 116.) No evidence was presented that appellant was relying on his Fifth Amendment right to remain silent.
Disposition
The judgment is affirmed.
We concur: COFFEE, J. PERREN, J.