Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Imperial County No. JCF19492, Joseph W. Zimmerman, Judge.
O'ROURKE, J.
A jury found April Del Toro guilty of possession, use or control of a false compartment with intent to store, conceal, smuggle or transport a controlled substance within the false compartment (false compartment activity) (Health & Saf. Code, § 11366.8, subd. (a), count 4) and conspiracy to commit a crime relating to false compartment activity (Pen. Code, §182, subd. (a)(1), count 8.) The jury found true that Del Toro committed one or more overt acts related to the conspiracy.
She was acquitted of charges of transport, sale or offer to sell a controlled substance (Health & Saf. Code, § 11352, subd. (a), counts 1 & 2); transport for sale of a controlled substance to a non-contiguous county (Health & Saf. Code, § 11352, subd. (b), count 3); conspiracy to possess a controlled substance for sale (Pen. Code, § 182, subd. (a)(1); Health & Saf. Code, § 11351, count 5); conspiracy to transport, sell or offer to sell a controlled substance (Pen. Code, § 182, subd. (a)(1); Health & Saf. Code, § 11352, subd. (b), count 6) and conspiracy to transport for sale a controlled substance to a non-contiguous county (Pen. Code, § 182, subd. (a)(1); Health & Saf. Code, § 11352, subd. (b), count 7.)
The court denied probation and sentenced her to the middle term of two years in state prison on count 4, and imposed but stayed the sentence on count 8. (Pen. Code, § 654.)
On appeal, Del Toro contends: (1) the admission of an accomplice's testimony denied her due process of law; (2) at the conclusion of the People's case-in-chief, insufficient evidence supported the finding that she knew her car had false compartments and, alternatively, her trial counsel provided ineffective assistance in failing to join the codefendant's motion to dismiss the count 4 charge under Penal Code section 1118.1; (3) the trial court erroneously instructed regarding false compartment; and (4) the trial court abused its discretion by sentencing her to state prison rather than probation. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
People's Case-in-Chief: The Law Enforcement Investigation
Detective Robert Sawyer of the El Centro Police Department was assigned to help the United States Drug Enforcement Agency (DEA) with narcotics investigations. He testified that in May 2005, he investigated Carlos Cuevas's drug trafficking organization or cell, which transported cocaine from Mexico to California. Between May 2005 and February 2006, the investigators seized at least 10 shipments of cocaine. They received court permission to intercept the telephone calls of Cuevas and his associates.
In the Cuevas cell, Carlos Valle was responsible for picking up the vehicles the cell operated, loading cocaine into hidden compartments or non-factory compartments of vehicles in Mexicali, Mexico for transport through the Calexico port of entry into the United States, and particularly Los Angeles County. Usually another cell vehicle followed the drug-laden one and reported any problems to Cuevas.
In September 2005, Sawyer identified codefendant Louis Lopez as a suspect and photographed his gray Volkswagen Passat in front of Cuevas's house in Calexico, California. Between January 27, 2006, and February 16, 2006, the investigators intercepted approximately 700 telephone calls between Cuevas and Louis. Sawyer was able to identify Louis based on his voice in those calls and from observing him acting in ways consistent with information conveyed in those calls.
On February 9, 2006, based on information obtained through telephone intercepts, the investigators observed a green Volkswagen Passat registered to April Del Toro, which they believed the Cuevas cell used to import and transport cocaine into the United States. Sawyer obtained a copy of her driver's license. On February 10, 2006, Sawyer photographed her car on Ross Avenue in El Centro, California.
That same afternoon, the authorities, based on intercepted phone calls, believed Carlos Valle was preparing narcotics to import into the United States. Sawyer and his partner set up surveillance at the Calexico port of entry. The DEA employees monitoring phone calls between Louis and Cuevas continually updated Sawyer and told him that at 5:46 p.m., Louis reported to Cuevas that Del Toro was at the port of entry and had been sent to secondary inspection. Approximately five minutes later, Sawyer saw Del Toro, accompanied by her son and a dog, exiting the port of entry in her car. Sawyer and other agents kept her car under surveillance and saw her drive to a store, pick up her uncle, Noe, and drive to Ross Avenue in El Centro. She left there at approximately 6:45 p.m. and went to Max Foods store. She returned to the Ross Avenue apartment.
Cuevas told Louis in a 7:24 p.m. phone call, "[Y]ou're going over — you're going here close by to Fontana, dude." Approximately 30 minutes later, Del Toro, her son, and Noe left the Ross Avenue apartment, went to another address in El Centro, where they picked up Del Toro's brother, Cesar Delgadillo. They stopped at a 7-Eleven gas station, and at approximately 8:20 p.m. left El Centro County. In Riverside County, another team of DEA agents and local law enforcement took up primary surveillance of Del Toro's car.
Tuey Paiyarat, a Riverside County Sheriff's Department Investigator, started surveillance of Del Toro's car at 9:37 p.m. The driver of Del Toro's car took counter-surveillance measures including making rapid lane changes and adjusting speed to see if vehicles behind would also do so. Paiyarat followed Del Toro's car until it reached Durian Avenue in Fontana, California at 11:28 p.m. It stayed there approximately 20 minutes and returned in the same direction from which it had arrived.
At around midnight, Sawyer resumed surveillance of Del Toro's car. He saw Louis's car parked at a Circle K gas station in Fontana, and Louis standing near it. At that time, Del Toro's car was at the Durian Street residence. Shortly afterwards, Del Toro's car arrived at the Circle K gas station, and returned to the highway. While Sawyer was following Del Toro's car, Louis, driving his car, passed Sawyer's vehicle.
Del Toro's car crossed into Imperial County, and Sawyer saw a local sheriff's deputy stop it. Noe was the driver and the passengers were Del Toro, her brother, and her son. A canine officer searched Del Toro's car and found a non-factory hidden compartment in the back, which was reached by pulling back a carpet, removing a fairly large metal plate, which led to the compartment underneath the seat. Based on information obtained from intercepted phone calls, Sawyer was able to open a second false compartment located in the front bumper, using a pair of jumper cables that he had found in the trunk. He opened the car's hood and, with the jumper cables connected to the positive battery post, ran the battery cable over to the front screw by the driver side headlight and touched the positive current to the screw, causing the license plate to fall off of the front of the bumper. He found three tape-wrapped bags that contained $50,020. That morning, he videotaped the manner of opening the front compartment. During the stop, DEA agent Tracy Huxman, who was part of the surveillance team, searched Del Toro's purse. Huxman testified that $1,999 was found in it.
During Sawyer's trial testimony, the video recording was shown to the jury. Also, the jury was taken to the court's parking lot and Sawyer demonstrated the operation of the false compartments in Del Toro's car.
The Durian Avenue residence was kept under continuous surveillance until it was searched pursuant to a warrant the next day at 9:20 a.m. In a vehicle inside the garage, Paiyarat found 25 bricks of what lab tests later determined was 25.09 kilograms of pure cocaine. Paiyarat also found approximately $8,000 in cash in a closet in the master bedroom.
Carlos Cuevas's Accomplice Testimony
Carlos Cuevas testified that he had pleaded guilty to federal charges of being a cell leader in the Sinaloa Cartel that imported more than a thousand kilos of cocaine from Mexico to the United States from 2004 to 2007. As part of his plea agreement, he informed the federal authorities about the Cuevas cell, which operated from Mexicali, Mexico and Imperial County, California. He owned about 10 vehicles that he had altered by having false compartments installed for transporting cocaine across the port of entry. Cuevas paid to keep the cars in good repair.
At the time of trial, Cuevas was in federal custody awaiting sentencing for the federal convictions. He testified regarding his possible sentence: "I haven't gotten no promises. I didn't come here because they promised me nothing. I came to tell the truth."
Cuevas hired scouts to recruit drivers to transport the cocaine. He kept a copy of each of their driver's licenses, and decided which car to buy each driver based on the driver's age, photo and character. Every driver owned the car in his or her name and was required to have a valid driver's license and insurance. The drivers used the cars for their everyday use to become familiar with their operation in case they were asked to operate some feature at the port of entry. He did not permit his drivers to know him personally, although they probably knew about him. Cuevas also hired lookouts to drive in tandem with the car that transported the drugs to help with any car problems and to inform him if law enforcement agents stopped it.
Cuevas identified codefendant Louis as a lookout driver and recruiter, who started working for Cuevas in 2004. They spoke by cell phones that Cuevas had bought. Cuevas used several cell phones for different purposes; one was for talking exclusively with workers. He also insisted that Louis and his other lookout drivers carry two cell phones and use one solely to speak with him, and the other to speak with the driver. Cuevas never talked to the drivers by phone.
At trial, Cuevas identified Del Toro's photo and testified that Louis recruited her as a driver. In his phone conversations with Louis and Carlos Valle, he referred to her in Spanish as "the girl." He considered her very good at importing drugs because she had not been caught before February 11, 2006. She was the only female working for him at that time.
Del Toro worked for the Cuevas cell transporting cocaine from Mexicali to the Los Angeles area. Cuevas bought the 1998 green Volkswagen Passat for her in Otay Mesa and followed an associate who drove it to Los Angeles to have it modified with the two hidden compartments, which were accessed and operated as described above. Cuevas returned to Los Angeles to inspect the modifications and had a driver return it to Imperial County. Cuevas showed Louis how to open the false compartment, and Louis gave the car to Del Toro.
Cuevas paid the scout approximately $5,200 per trip, and out of that, the scout was responsible for paying the driver who transported the cocaine. Cuevas never used "blind mules," who transported drugs without knowing it. Rather, Cuevas insisted that the scout tell the drivers they were transporting cocaine, and for them to know the consequences of their actions. He followed this practice in Del Toro's case.
Cuevas kept the cocaine at a stash house. He instructed the recruiter to send the driver to a particular spot, where one of his workers, Carlos Valle, picked up the car from the driver, took it to the stash house, loaded previously wrapped cocaine in the car, and returned it to the driver.
In an intercepted February 9, 2006 telephone call, Cuevas and a member of the Sinaloa drug cartel, Fabian Santos Rocha Salazar, known as Chino, agreed that Cuevas would send a driver to pick up $50,000 from a man named "El Pulpo" in Fontana. By phone, Chino also arranged for Cuevas to send 25 kilos of cocaine to El Pulpo. Cuevas decided to combine the tasks in one trip and selected Del Toro as driver and Louis as her lookout. Cuevas testified he selected Del Toro's car to deliver that small order of cocaine because it was the smallest car in his fleet, rather than send a bigger car, which he could use to import even more cocaine.
On February 10, 2006, Cuevas phoned Louis and confirmed he needed Del Toro to transport 25 kilos of cocaine from Mexicali to El Pulpo in Fontana. Louis had told Cuevas that Del Toro was already at her grandmother's house in Mexicali. At around 3:45 p.m. that day, Cuevas spoke to Carlos Valle by phone and arranged for him to pick up Del Toro's car from her grandmother's apartment and load it with Chino's cocaine order. Del Toro stayed at her grandmother's house while Carlos Valle loaded her car with cocaine and returned the car to her. Carlos Valle confirmed with Cuevas by phone that he had delivered the car to Del Toro. Louis told Cuevas by phone that when Del Toro was crossing the border she was sent to secondary inspection, and that he was going to her grandmother's apartment.
Cuevas and Louis remained in phone contact during Louis's drive to Fontana, and in one call Louis confirmed that the amount of cocaine being transported was 25 kilos. At approximately 11:48 p.m., Louis telephoned Cuevas and said that he had reached the Fontana residence and had been followed there by DEA officers. Louis later told Cuevas that police had stopped Del Toro's car and found the false compartments and the money.
Defense Case
Del Toro testified at trial that she lived in Imperial County but bought her car with her own money in San Diego County in December 2005. Noe helped her buy it from his acquaintance and helped her complete the paperwork. She did not drive it off the lot because she was not comfortable driving a stick shift car. At that time, she was staying with her mother at a Ross Avenue apartment in El Centro, California, and used that address on her driver's license. Whenever the car needed repairs, she paid for them herself. In January, 2006, she lost her front license plate and Noe helped her replace it on the car.
On February 9, 2006, Noe arranged for her to drive her Passat to a Burger King restaurant in Lake Elsinore, California for a prospective buyer to inspect it. Her sister and Louis, who Del Toro described as a high school friend, were at the restaurant. Noe showed the car to the prospective buyer, and she went inside to order for Noe and Louis. After about 15 minutes, Noe and Louis joined Del Toro, her son and Del Toro's sister inside the restaurant. They stayed there for about one hour.
Although Del Toro claimed Louis was merely an acquaintance, she acknowledged on cross-examination that she had known him for 12 years. The prosecutor noted on the record that she was talking to him during trial.
Del Toro testified that on February 10, 2006, she drove her car to Mexicali with Noe to visit her grandmother. Noe borrowed her car for about one hour. After she ate dinner, she, Noe, and her son went in her Passat to the downtown Calexico port of entry. She was sent to secondary inspection, a canine officer inspected her car and she was admitted into the United States. She drove to her mother's apartment and afterwards to Max Foods. They returned to her mother's apartment, picked up her brother and her son, stopped at an Ocotillo Street address, got gas at a 7-Eleven and headed northwards. In Westmorland, Noe took over the driving. Near midnight, they stopped at a Circle K gas station. Noe drove to a residence on Durian Avenue in Fontana and parked in the driveway. She did not know the people there, but went inside to use the restroom and afterwards stayed in the living room. Noe talked with a man at the house for approximately 15 minutes. Noe drove them back to Imperial County. She noticed a vehicle following them, and wrote the license plate number on an envelope. The police stopped them and found $1,200 in Del Toro's purse.
People's Rebuttal Testimony
Edward Stuckenschneider, a special agent with the California Department of Justice, helped the DEA investigate this case. He testified that on February 9, 2006, at approximately 1:00 p.m., he learned that Joseph Langer, who was under investigation, had arranged to meet some people in Lake Elsinore. Stuckenschneider conducted surveillance of Langer's encounter, which took place at a Burger King restaurant. Langer arrived in a Jeep Cherokee and entered the restaurant. Ten minutes later, Langer exited the restaurant with a Hispanic male and they walked to the rear of Del Toro's car, opened the driver's door and the Hispanic male pointed out to Langer different things in the driver's compartment area. They went to the front of the car, opened the hood and the Hispanic male pointed out other things to Langer, who appeared to acknowledge the information. The Hispanic male appeared to hand off a key to Langer, who left in Del Toro's car for approximately 45 minutes to an hour. The Hispanic male went inside the restaurant. Langer returned in Del Toro's car, entered the restaurant for about five minutes and left in his Jeep. The Hispanic male, who drove a silver or gray Volkswagen Passat, then left the restaurant. Stuckenschneider made a video of Langer and the Hispanic male. The video was shown to the jury at trial.
Cuevas testified that in January 2006, Carlos Valle told him that the door to the false compartment in front of Del Toro's car was missing, exposing a big hole. Therefore, Cuevas stopped using Del Toro's car to transport drugs. He told Louis to tell Del Toro to report the license plates as stolen or lost and get new plates from the Department of Motor Vehicles. Cuevas instructed Carlos Valle to put another frame in the front of Del Toro's car. Del Toro gave Carlos Valle her new license plates, and he temporarily covered the hole. Valle returned the car to Del Toro and it later crossed the port of entry without problems. Del Toro and Louis took the car to Los Angeles to repair the entire door of the false compartment.
Cuevas testified he used to sell cocaine to Langer, and on February 9, 2006, he instructed Louis to have Del Toro pick up money from Langer. The meeting took place at the Lake Elsinore Burger King. Cuevas told Louis to show Langer how to operate the false compartment. Langer took Del Toro's car and put the money in the false compartment. The money was later delivered to Cuevas.
DISCUSSION
I.
Del Toro contends that in denying her motion in limine to exclude Cuevas's testimony, the trial court violated her due process rights. Specifically, she contends she "had absolutely no opportunity, meaningful or otherwise, to contest Cuevas's claims to knowledge of [her] active participation in this criminal enterprise. [She] clearly could not call Lopez as a witness to dispute Cuevas's claims as he was being tried as a codefendant. That left Cuevas free to attribute anything he wished to Lopez."
Del Toro concedes that Cuevas's testimony regarding his conversations with Lopez and others, which implicated Del Toro in the charged conspiracy, was not testimonial under Crawford v. Washington (2004) 541 U.S. 36. The United States Supreme Court has stated: "[C]o-conspirators' statements, when made in the course and in furtherance of the conspiracy, have a long tradition of being outside the compass of the general hearsay exclusion. Accordingly, we hold that the Confrontation Clause does not require a court to embark on an independent inquiry into the reliability of [such] statements." (Bourjaily v. U.S. (1987) 483 U.S. 171, 183; accord, People v. Williams (1997) 16 Cal.4th 635, 682 (Williams).)
"The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State's accusations. The rights to confront and cross-examine witnesses and to call witnesses in one's own behalf have long been recognized as essential to due process." (Chambers v. Mississippi (1973) 410 U.S. 284, 294.)
Del Toro was charged with a conspiracy to commit false compartment activity. "A conspiracy exists when one or more persons have 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.] These facts may be established through the use of circumstantial evidence. [Citations.] They may also ' "be inferred from the conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy." ' " (People v. Herrera (2004) 83 Cal.App.4th 46, 64.)
Hearsay evidence is generally inadmissible. (Evid. Code, § 1200.) " 'Hearsay statements by coconspirators, however, may nevertheless be admitted against a party if, at the threshold, the offering party presents "independent evidence to establish prima facie the existence of... [a] conspiracy." [Citations.] Once independent proof of a conspiracy has been shown, three preliminary facts must be established: "(1) that the declarant was participating in a conspiracy at the time of the declaration; (2) that the declaration was in furtherance of the objective of that conspiracy; and (3) that at the time of the declaration the party against whom the evidence is offered was participating or would later participate in the conspiracy." ' " (People v. Hardy (2007) 41 Cal.4th 977, 996.)
Evidence Code section 1223 provides in part: "Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if: [¶] (a) The statement was made by the declarant while participating in a conspiracy to commit a crime or civil wrong and in furtherance of the objective of that conspiracy; [and] [¶] (b) The statement was made prior to or during the time that the party was participating in that conspiracy."
"The necessary corroborative evidence for accomplice testimony can be a defendant's own admissions." (Williams, supra, 16 Cal.4th at pp. 680-681.) " ' "The evidence required for corroboration of an accomplice 'need not corroborate the accomplice as to every fact to which he testifies but is sufficient if it does not require interpretation and direction from the testimony of the accomplice yet tends to connect the defendant with the commission of the offense in such a way as reasonably may satisfy a jury that the accomplice is telling the truth; it must tend to implicate the defendant and therefore must relate to some act or fact which is an element of the crime but it is not necessary that the corroborative evidence be sufficient in itself to establish every element of the offense charged.' [Citations.] Moreover, evidence of corroboration is sufficient if it connects defendant with the crime, although such evidence 'is slight and entitled, when standing by itself, to but little consideration.' " ' " (Williams, supra, at pp. 680-681.)
" 'As a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused's right to present a defense.' " (People v. Phillips (2000) 22 Cal.4th 226, 238.) "[T]he admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair." (People v. Partida (2005) 37 Cal.4th 428, 439.)
Del Toro joined Lopez's in limine motion to exclude Cuevas's testimony under Evidence Code section 1223, contending (1) the testimony was inadmissible because there was no proof of a conspiracy or her involvement in a conspiracy; (2) if Cuevas was not present at trial, his statements should be excluded based on her constitutional confrontation rights; and (3) the wire-intercept transcripts are not admissible as a business records exception to the hearsay rule. At the hearing on the motion, Del Toro's counsel argued, "I read what Mr. Cuevas will testify to, and I don't believe he's ever spoken to [Del Toro]. And the only way that he can establish her participation is through hearsay. If he can.... [he has ] never observed her do anything that's involving a conspiracy."
The prosecutor countered, "[Evidence Code section] 1223 isn't the only exception to the hearsay rule.... for example,... an out-of-court statement that's an admission against interest is admissible as an exception to the hearsay rule." The trial court ruled, "That's something to be shown at trial. So we'll just see how it shakes out. Sometimes these in limine motions are best reserved on and ruled [on] after it's clear what's happened and we've got a record."
Here, the Evidence Code section 1223 criteria were met. As set forth above, Sawyer's testimony, and that of the other law enforcement officers, if believed by the jury, was sufficient to independently establish that it was more likely than not that Cuevas, Del Toro, Louis and Carlos Valle were involved in a conspiracy to import cocaine into the United States. In the intercepted phone calls, particularly those made on February 9 and 10, 2006, Cuevas spoke with Louis and Carlos Valle about plans to load Del Toro's car with drugs to cross the port of entry and eventually go to Fontana. Cuevas also referred to payment for the drugs being returned to Cuevas in the same vehicle that took the cocaine. The DEA surveilled Louis and Del Toro and they travelled to Fontana just as was reported in the intercepted phone calls. Moreover, the driver of Del Toro's car took counter-surveillance measures.
The basis for a belief in the existence of the conspiracy having been established, Cuevas's testimony showed that he was participating in the conspiracy at the time that he made the statements to Carlos Valle and Louis, that the statements were made in furtherance or the objective of the conspiracy, and that at the time of the statements Del Toro was participating or would later participate in the conspiracy. Specifically, Cuevas testified that he bought the green Passat for Del Toro; he took the car to get outfitted with the false compartment and later arranged for Louis and Del Toro to go to the same mechanic in Los Angeles for him to repair the front bumper. Cuevas made the decision to hire her as a driver, having reviewed her driver's license and obtained information from Louis about her. She had made successful drug importations for him before and he considered that she was good at it. His out of court conversations with Louis and Cuevas pertained to the conspiracy and Del Toro's involvement in it, as he instructed Carlos Valle to pick up Del Toro's car from her grandmother's house, load it and return it to her. Cuevas gave Louis the Fontana address for delivery of the cocaine, and Louis kept him informed of where they were at different points along the way, including Del Toro's being sent to secondary inspection and her being stopped by police after she left Fontana.
Contrary to Del Toro's claim, Cuevas was not free to attribute anything to Louis because the tape recordings of his telephone conversations provided the context for his trial testimony regarding what he and Louis discussed. Del Toro's counsel also subjected Cuevas to extensive and vigorous cross-examination, and therefore he could not speculate regarding the topic of his conversations with Louis.
Del Toro's own testimony corroborated some aspects of the conspiracy. Specifically, she testified she owned her car. On February 9, 2006, she took it to the Burger King in Lake Elsinore, where someone inspected it. On February 10, 2006, she was visiting her grandmother in Mexicali, someone picked up her car from the apartment and returned it. That evening, she drove the car across the Calexico port of entry, was sent to secondary inspection, and afterwards made stops at the different places as stated by Sawyer, who surveilled her car. She placed herself at the Durian Street residence in Fontana. She was stopped on her way back, and she had a large amount of cash in her purse.
We note the trial court instructed the jury with CALCRIM No. 335 regarding accomplice testimony: "If the [charged] crimes... [were] committed, then Carlos Cuevas was an accomplice to those crimes. [¶] You may not convict the defendants of the above crimes based on the testimony of an accomplice alone." The same instruction provided, "Any testimony of an accomplice that tends to incriminate the defendants should be viewed with caution. You may not, however, arbitrarily disregard it. You should give that testimony the weight you think it deserves after examining it with care and caution and in the light of all other evidence."
In light of the foregoing, we conclude that admission of Cuevas's testimony did not intrude on Del Toro's right to present a defense and did not render her trial fundamentally unfair; therefore, we reject the claim of constitutional error.
II.
Del Toro contends that at the close of the People's case-in-chief, the People had not provided sufficient evidence that she had the state of mind to commit false compartment activity and conspiracy to commit false compartment activity as charged in counts 4 and 8, and therefore her trial counsel provided ineffective assistance by declining to join in her codefendant's motion for judgment of acquittal under Penal Code section 1118.1.
"In ruling on a motion for judgment of acquittal pursuant to [Penal Code] section 1118.1, a trial court applies the same standard an appellate court applies in reviewing the sufficiency of the evidence to support a conviction, that is, ' "whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged." ' [Citations.] 'Where the [Penal Code] section 1181.1 motion is made at the close of the prosecution's case-in-chief, the sufficiency of the evidence is tested as it stood at that point.' " (People v. Cole (2004) 33 Cal.4th 1158, 1211-1213 (Cole); People v. Huggins (1997) 51 Cal.App.4th 1654, 1656.) "We review independently a trial court's ruling under [Penal Code] section 1118.1 that the evidence is sufficient to support a conviction." (Cole, supra, at p. 1213.)
Louis moved for judgment of acquittal on counts 4 and 8, arguing that the People did not prove he had knowledge of the secret compartment in Del Toro's vehicle. He further argued, under Penal Code section 1111, that the People did not provide testimony to corroborate Cuevas's accomplice testimony. The People countered that Cuevas and Louis discussed that Del Toro was sent to secondary inspection over the phone, and one of them mentioned, "They'll never find it, dude," referring to the secret compartment that contained the cocaine. The trial court agreed with the People and denied the motion. "Yeah. I'm going to have to hang my hat on that. And I'm going to deny the motion based upon that particular logic."
Penal Code section 1111 provides: "A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. [¶] An accomplice is hereby defined as one who is liable to prosecution for the identical offenses charged against the defendant on trial in the cause in which the testimony of the accomplice is given."
Del Toro was liable for use and possession of the false compartments as an aider and abettor. The doctrine that one may be liable as an aider and abettor "when he or she aids the perpetrator of an offense, knowing of the perpetrator's unlawful purpose and intending, by his or her act of aid, to commit, encourage, or facilitate commission of the offense, 'snares all who intentionally contribute to the accomplishment of a crime in the net of criminal liability defined by the crime, even though the actor does not personally engage in all of the elements of the crime.' " (People v. Montoya (1994) 7 Cal.4th 1027, 1039.) Aiding and abetting does not require personal participation in the offense, "but merely assistance in committing the offense." (People v. Morante (1999) 20 Cal.4th 403, 433; see also People v. Beeman (1984) 35 Cal.3d 547, 554-555.) Where, as here, the offense is a specific intent crime, " 'the accomplice must "share the specific intent of the perpetrator"; this occurs when the accomplice "knows the full extent of the perpetrator's criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrator's commission of the crime." ' " (People v. McCoy (2001) 25 Cal.4th 1111, 1118.)
"Whether a defendant aided and abetted the crime is a question of fact, and on appeal all conflicts in the evidence and reasonable inferences must be resolved in favor of the judgment." (People v. Mitchell (1986) 183 Cal.App.3d, 325, 329.) "Evidence of a defendant's state of mind is almost inevitably circumstantial, but circumstantial evidence is as sufficient as direct evidence to support a conviction." (People v. Bloom (1989) 48 Cal.3d 1194, 1208.) A jury may infer a defendant's specific intent from the circumstances attending the act, the manner in which it is done, and the means used, among other factors. (People v. Ferrell (1990) 218 Cal.App.3d 828, 834.) The aider and abettor's presence at the scene of the crime, companionship with the principal, and conduct before and after the offense are among the factors that may be considered in determining whether the defendant had the requisite knowledge and intent. (People v. Campbell (1994) 25 Cal.App.4th 402, 409.)
The People in their case-in-chief presented sufficient circumstantial evidence that Del Toro had the specific intention to engage in false compartment activity. Cuevas testified she had successfully imported cocaine into the United States several times and was good at it. A short time before she left for the border crossing, as was the practice, Carlos Valle took her car from her grandmother's apartment, loaded it with cocaine, and returned it to her. It is reasonable to infer she temporarily relinquished her car to him knowing his purpose for taking it. Del Toro also assisted the conspiracy in other ways, including by driving her car to Fontana with the drugs in it. Cuevas stated that he did not use blind mules but wanted his drivers to know the consequences of their actions. He sought to have the drivers be familiar with their cars so that they could operate it if asked to do so at the port of entry. Accordingly, it is reasonable to infer that armed with the knowledge she would import cocaine, Del Toro would seek to know where it was kept, and that Louis would tell her.
The People also provided sufficient evidence for a jury to find beyond a reasonable doubt that Del Toro was a member of a conspiracy to commit the crime of possession for sale of a controlled substance, transportation of a controlled substance, transportation of a controlled substance to a non-contiguous county, and false compartment activity as she was charged with doing in count 8. The People were required to prove that (1) Del Toro intended to agree and did agree with the other defendant or another coparticipant to commit the alleged crime; (2) at the time of the agreement the defendant and one or more of the other alleged members of the conspiracy intended that one or more of them would commit the alleged crime; (3) one of the defendants, or another coparticipant, committed at least one of ten alleged overt acts to accomplish the alleged crime. Among the alleged overt acts were: "On February 10, 2006, at or about 11:21 p.m., defendant April Del Toro delivered the drug-laden Volkswagen Passat [5SWF865] to 14122 Durian Avenue, City of Fontana, County of San Bernardino, California, where 25 kilograms of cocaine were unloaded from under the rear seat of said vehicle, and $50,000 in proceeds from said drug sale was secured in a false compartment in the front bumper of said vehicle." Another overt act alleged that "[o]n February 11, 2006, commencing at about 12:15 a.m., defendants April Del Toro and Louis Lopez drove in tandem from the drug delivery point in Fontana, California, the $50,000 in proceeds from said drug sale secured in the hidden compartment of Del Toro's [car] to Imperial County, California, where said proceeds were ultimately seized from the hidden compartment following seizure of said vehicle near Desert Shores, California."
At the close of their case-in-chief, the People provided sufficient evidence from which a reasonable jury could conclude that Del Toro was involved in a conspiracy to commit false compartment activity. In addition to the evidence used to establish the count 4 conviction, other supportive evidence included that provided by Sawyer's surveillance team which tracked her car as it drove to a Fontana residence, where she stayed for approximately 20 minutes. At that residence, which was kept in continuous surveillance after her car left, 25 kilos of cocaine was found, the same amount Cuevas had spoken about in an intercepted phone call. When Del Toro's car was stopped, $50,000 was found in a false compartment, the same amount Cuevas told Louis about in an intercepted phone call. Del Toro also had almost $2,000 in her purse, and it can be reasonably inferred that Louis paid her that amount for participating in the conspiracy, based on Cuevas's testimony he paid the lookout $5,200 per trip and the lookout was responsible for paying the driver out of that.
To establish ineffective assistance of counsel, defendant must show that counsel's performance "fell below an objective standard of reasonableness," and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland v. Washington (1984) 466 U.S. 668, 688, 694; see also People v. Hester (2000) 22 Cal.4th 290, 296.) It is not necessary to determine whether counsel's challenged action was professionally unreasonable in every case, however. If the reviewing court can resolve the ineffective-assistance claim by first deciding whether there is a reasonable probability that the outcome would have been different absent counsel's challenged actions or omissions-it may do so. (Strickland v. Washington, supra, at p. 697.)
Here, based on the evidence recited above as to Del Toro's aiding and abetting and her participation in the conspiracy, we conclude there was no reasonable probability that the trial court would have granted a Penal Code section 1118.1 motion if Del Toro's trial counsel had joined in codefendant's motion or brought a separate motion on Del Toro's behalf.
III.
Del Toro contends the court's instruction stating that a "false compartment" could be any space or enclosure "intended or designed" to conceal or prevent discovery of a controlled substance, "permitted a conviction based on the use of a premarket space or enclosure without any finding of alteration, installation or modification." We disagree.
Specifically, the jury was instructed in the language of CALCRIM No. 2441 as follows: "The defendants are charged in count 4 with attaching a false compartment with the intent to store, conceal, smuggle, and transport a controlled substance in a vehicle, in violation of Health and Safety Code section 11366.8. To prove that the defendants are guilty of this crime, the People must prove that, one, the defendants possessed or used a false compartment with the intent to smuggle or transport a controlled substance in the false compartment in a vehicle; and, two, the defendants knew of the existence of the false compartment in the vehicle; or, three, the defendants designed, constructed, built, altered, fabricated, or installed the false compartment in a vehicle with the intent to store, conceal, smuggle, or transport a controlled substance in it. A false compartment is any box, container, space, or enclosure intended or designed to conceal, hide, or otherwise prevent discovery of any controlled substance within or attached to a vehicle. A false compartment may be a false, modified, or altered fuel tank, original factory equipment of a vehicle that is modified, altered or changed, or a compartment, space or box that is added or made or created from existing compartments, spaces, or boxes within a vehicle Two or more people may possess something at the same time. A person does not have to actually hold or touch something to possess it. It is enough that the person has control over it or the right to control it either personally or through another person.
"In considering a claim of instructional error we must first ascertain what the relevant law provides, and then determine what meaning the instruction given conveys. The test is whether there is a reasonable likelihood that the jury understood the instruction in a manner that violated the defendant's rights." (People v. Andrade (2000) 85 Cal.App.4th 579, 585; see also Sandstrom v. Montana (1979) 442 U.S. 510, 514; People v. Warren (1988) 45 Cal.3d 471, 487; People v. Smith (1992) 9 Cal.App.4th 196, 201.) "A court is required to instruct the jury on the points of law applicable to the case, and no particular form is required as long as the instructions are complete and correctly state the law." (People v. Andrade, supra, at p. 585.) "When a claim is made that instructions are deficient, we must determine whether their meaning was objectionable as communicated to the jury. If the meaning of instructions as communicated to the jury was unobjectionable, the instructions cannot be deemed erroneous." (People v. Dieguez (2001) 89 Cal.App.4th 266, 276; see also Estelle v. McGuire (1991) 502 U.S. 62, 70-75; People v. Kelly (1992) 1 Cal.4th 495, 525; People v. Fonseca (2003) 105 Cal.App.4th 543, 549.)
Health and Safety Code section 11366.8, subdivision (d)(1-3) defines "false compartment" as follows: "[A]ny box, container space, or enclosure that is intended for use or designed for use to conceal, hide, or otherwise prevent discovery of any controlled substance within or attached to a vehicle, including, but not limited to, any of the following: [¶] (1) False, altered, or modified fuel tanks. [¶] (2) Original factory equipment of a vehicle that is modified, altered, or changed. [¶] (3) Compartment, space, or box that is added to, or fabricated, made, or created from, existing compartments, spaces, or boxes within a vehicle."
In People v. Arias (2008) 45 Cal.4th 169, the California Supreme Court interpreted Health and Safety Code section 11366.8 to exclude from its definition of " 'false compartment' a vehicle's original factory equipment that has not been modified, altered, or changed in any way." (Arias, supra, at pp. 173-174, 177-178.) The court disapproved a jury instruction that stated in part that "a false compartment is a space in a vehicle that is neither designed nor intended for storage or transportation of personal items, but is, nevertheless, used to conceal controlled substances even without any modification of the physical configuration of the space." (Id. at p. 176.) The court concluded that "if the Legislature had intended to be included within its definition of 'false compartment' original factory equipment of a vehicle that was not modified, altered or changed, it would not have included those three qualifying modifiers to 'original factory equipment' in its second example of a false compartment." (Id. at p. 179.)
After Arias was decided and the trial in this matter was completed, a new CALJIC No. 12.38 states: "The term 'false compartment' does not refer to a vehicle's original equipment that has not been modified, altered, or changed in any way."
Contrary to Del Toro's contention, it was not reasonably likely that the jury interpreted the instruction in a way that ran afoul of the law as stated in Arias, supra, or in a way that violated her rights. Specifically, unlike the instruction at issue in Arias, the words "intended or designed" used in the instruction here were not reasonably susceptible to an interpretation that a false compartment includes original factory equipment of the vehicle that is not modified fabricated or altered. The jury would likely have interpreted those words in the context of the entire instruction, which had the cumulative effect of emphasizing the requirement that the compartment be "modified," "altered" or "changed."
Moreover, on this record, even assuming arguendo the court erred, we nevertheless would conclude that error was harmless under both the federal and state constitutional standards of prejudice. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836.) Applying the federal Chapman standard of prejudice, it appears beyond a reasonable doubt that the claimed instructional error did not contribute to the jury's verdict in this case. Here, the jury heard testimony that Cuevas took Del Toro's car to Los Angeles to install the false compartments. When Del Toro's front license plate fell off, Del Toro and Louis took her car to Los Angeles to repair the door to the false compartment. The jury saw a video recording showing how Sawyer operated the false compartments. Finally, the jury saw a live demonstration of the operation of the false compartments. Based on the foregoing, the jury most likely interpreted the instruction to apply to the facts of this case, which involved a modified false compartments, as opposed to original equipment that is unmodified or unaltered.
IV.
Del Toro contends the trial court abused its discretion in sentencing her to state prison instead of probation because the court based its decision on its finding that she had transported 25 kilos of cocaine notwithstanding that the jury acquitted her of all charges related to possession and transportation of the 25 kilos of cocaine.
"The trial court enjoys broad discretion in determining whether a defendant is suitable for probation." (People v. Lai (2006) 138 Cal.App.4th 1227, 1256.) "To establish abuse, the defendant must show that, under the circumstances, the denial of probation was arbitrary or capricious. [Citations.] A decision denying probation will be reversed only on a showing of abuse of discretion." (Id. at p. 1257.) Under California Rules of Court, Rule 4.414(a)(2), one of the criteria affecting the decision to grant or deny probation includes facts relating to the crime, such as: "The nature, seriousness, and circumstances of the crime as compared to other instances of the same crime."
In denying Del Toro's motion, the trial court ruled: "Well I can't be blind to the fact that she drove and owned a car registered to her that had two false compartments in it. One compartment took 25 kilos of cocaine up to San Bernardino County. The other compartment brought $50,000 for some odd reason back to Imperial County. And it just strains credibility [sic]. It's just hard to imagine that this all was done and she had no idea it happened. [¶] Now, I admit the jury couldn't find her guilty beyond a reasonable doubt. But there it was. It was her car with the two false compartments, registered to her. If this had been a few ounces of cocaine or maybe a few pounds of cocaine, I think your argument that probation would be in order for a first offense might have more weight. But we're talking about 25 kilos of cocaine. And enormous sums of money.... That's just a major, major load of — it was pure cocaine."
The trial court did not abuse its discretion in denying Del Toro's application for probation by referring to the large quantity of cocaine involved here because that information was relevant to both the count 4 conviction for engaging in false compartment activity to smuggle controlled substances and the count 8 conspiracy charge, in which two of the alleged overt acts referred to the concealment of drugs. For purposes of evaluating Del Toro's suitability for probation, the trial court was entitled to take into account that she was in possession of a car having a false compartment that held 25 kilos of cocaine and $50,000 in cash. The quantity of cocaine was not insignificant in comparison to other cases involving drug smuggling activity.
Specifically, the indictment alleged: "On February 10, 2006, at or about 11:21 p.m., defendant April Del Toro delivered the drug-laden Volkswagen Passat [5SWF865] to 14122 Durian Avenue, City of Fontana, County of San Bernardino, California, where 25 kilograms of cocaine were unloaded from under the rear seat of said vehicle, and $50,000 in proceeds from said drug sale was secured in a false compartment in the front bumper of said vehicle." As another overt act, the indictment alleged that "[o]n February 11, 2006, commencing at about 12:15 a.m., defendants April Del Toro and Louis Lopez drove in tandem from the drug delivery point in Fontana, California, the $50,000 in proceeds from said drug sale secured in the hidden compartment of Del Toro's [car] to Imperial County, California, where said proceeds were ultimately seized from the hidden compartment following seizure of said vehicle near Desert Shores, California."
DISPOSITION
The judgment is affirmed.
WE CONCUR: HALLER, Acting P. J., IRION, J.
She was tried jointly with codefendant, Louis Lopez, who was convicted of all eight counts, and in the case against him, the jury made a finding that the controlled substance exceeded 20 kilograms. We shall refer to Louis by his first name to avoid confusion with Noe Lopez, Del Toro's uncle.