Opinion
B200404
10-29-2008
THE PEOPLE, Plaintiff and Respondent, v. ROY STEVEN AGUILAR, Defendant and Appellant.
Joanie P. Chen, 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, Assistant Attorney General, Lance E. Winters and Dana M. Ali, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published
Roy Steven Aguilar (Aguilar) challenges the sufficiency of the evidence supporting his conviction for sale or transport of a controlled substance in violation of Health and Safety Code section 11352, subdivision (a) and possession of cocaine base for sale in violation of section 11351.5. The challenge to these convictions lacks merit. Accordingly, we affirm.
All further statutory references are to the Health and Safety Code unless otherwise indicated.
FACTS
The charges
The District Attorney of the County of Los Angeles filed an amended information alleging that Aguilar violated sections 11350, subdivision (a), 11352, subdivision (a) and 11351.5 by possessing cocaine base, selling or furnishing cocaine base, and possessing cocaine base for sale. It further alleged that Aguilar sustained two prior convictions for the unlawful possession of a controlled substance in violation of section 11350, subdivision (a), and that he served prison terms for robbery (Pen. Code, § 211), burglary (Pen. Code, § 459) and possessing or making or attempting to possess or make a weapon while in a penal institution (Pen. Code, § 4502). At the time of the offenses charged, Aguilar was on probation or parole on two prior cases.
The trial court granted the prosecutions motion to dismiss the section 11350, subdivision (a) count and to strike one of the priors.
Prosecution evidence
On August 30, 2006, Los Angeles Police Officer Carlos Sanchez, Jr., was working undercover on a narcotics detail. While riding a bike east on Parthenia, he saw Aguilar and asked, "Can you help me with a 40 of rock?" Aguilar said, "Thats where I am going right now." Aguilar said he had to make a call. Officer Sanchez said "okay," and Aguilar said he needed the money. Officer Sanchez gave Aguilar two $20 bills.
Officer Sanchez explained that a 40 of rock meant $40 worth of rock cocaine.
Aguilar went to a pay phone near the intersection of Parthenia and Columbus, picked up the receiver and pushed buttons. Officer Sanchez rode his bike in circles. Aguilar summoned Officer Sanchez to his side and told him to wait. Officer Sanchez rode to within five feet of the pay phone and straddled his bike. Aguilar hung up and said he had to make another call. He made another call, but did not appear to speak. He hung up and said he had to call the guy twice. Officer Sanchez asked why. Aguilar said, because "it was hot out here."
Based on Officer Sanchezs training and experience, he understood the phrase "its hot out here" to mean that police were in the area.
As he was about to make another call, Aguilar told Officer Sanchez to wait with the occupants of a Ford Explorer, a Hispanic man named Martinez and a Caucasian man named Poillon. Aguilar said, "Theyre with me." Officer Sanchez moved toward the Ford Explorer. Aguilar went back to the payphone, punched in some numbers, said, "Hey, Triste," and stayed on the phone for about a minute. Aguilar then said he was going to get "the rock" and "its on." He told Officer Sanchez to leave the area and come back "in a little bit." Officer Sanchez walked away and hid behind a liquor store. He watched Aguilar cross the street and walk out of view.
Los Angeles Police Officer Vinh Do saw the meeting between Aguilar and Officer Sanchez. After walking away, Aguilar sat on a wall on Parthenia. After a while he got up and went to use a payphone on Columbus. Upon hanging up, he went back to the wall and once again sat on it. Six or seven minutes later, he walked down Columbus and met Raymond Cambaliza (Cambaliza). They walked together for 15 to 20 seconds before stopping between two cars.
Aguilar was holding what appeared to be rolled up money. He offered it to Cambaliza. Because Officer Do was changing position, he did not see money exchange hands. Cambaliza walked away and put a hand behind his back, left palm up. Soon after, Aguilar jogged toward Cambaliza. When Aguilar passed, he placed his right palm on Cambalizas left palm. It appeared to Officer Do that Aguilar took a small object. Aguilar jogged back to the intersection of Parthenia and Columbus. Cambaliza followed.
Officer Sanchez observed Aguilar walk to the passenger side of the Ford Explorer. Martinez got out of the front passenger seat and moved to the back seat. Aguilar waved Officer Sanchez over. As Officer Sanchez rode his bike toward the Ford Explorer, Aguilar got into the front passenger seat and closed the door. Officer Sanchez looked through the passenger window, which was rolled down, and saw that Aguilar had eight to ten off-white rocks in his hand. He placed some of the rocks into Officer Sanchezs hand and said, "Here you go, homey."
Los Angeles Police Officers Robert Beaty and Jeff Shoemaker went to a liquor store on the corner of Parthenia and Columbus to arrest Cambaliza. When Cambaliza saw them, he appeared nervous. He stuck something underneath two 12 packs of beer on the cashier counter. When Officer Beaty and Officer Shoemaker arrested Cambaliza, the store clerk pulled two rolled up $20 bills from under the beer and tried to give them to Cambaliza. The officers recovered the two $20 bills. The bills were the same ones Officer Sanchez previously gave to Aguilar.
Criminalist Edgardo Eugenia analyzed the "rocks" obtained by Officer Sanchez and determined that it was 0.24 grams of cocaine base. Officer Do opined that it was a usable quantity.
Defense evidence
Aguilar testified that he was addicted to rock cocaine. He knew Martinez because they were both users. They would meet at the "park." Aguilar did not sell rock cocaine. Sometimes he pooled his money with other people so that they could make a purchase.
On August 30, 2006, Aguilar, Martinez and Poillon pooled their money to make a buy. They only had about $20. Aguilar went to urinate. Afterwards, he was approached by Officer Sanchez. Officer Sanchez contributed $40 toward making a purchase. After Aguilar bought $60 of rock cocaine, he gave Officer Sanchez seven or eight pieces. Aguilar divided the rest equally with Martinez and Poillon.
Conviction; sentencing
A jury found Aguilar guilty of the crimes of selling or furnishing cocaine base and possession for sale of cocaine base. Aguilar received a total sentence of nine years in state prison.
This appeal followed.
STANDARD OF REVIEW
Aguilar contends that the record lacks substantial evidence to support his convictions. "We review insufficient-evidence contentions in criminal cases by viewing the evidence in the light most favorable to the judgment and deciding whether there is substantial evidence from which a reasonable trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt. [Citations.]" (People v. Taylor (2004) 119 Cal.App.4th 628, 639.) When applying the substantial evidence test, an appellate court resolves all conflicts in the evidence in favor of the prevailing party, and it draws all reasonable inferences in a manner that upholds the verdict. (Holmes v. Lerner (1999) 74 Cal.App.4th 442, 445.)
DISCUSSION
1. The conviction for violation of section 11352, subdivision (a).
Aguilar contends that he possessed cocaine for personal use and there is insufficient evidence to prove that he sold or furnished cocaine to Officer Sanchez. The People argue that the testimony from Officer Sanchez, Officer Do and Aguilar was sufficient to support the conviction.
We agree with the People.
It is unlawful to sell or furnish a controlled substance in California without a prescription from a licensed doctor. (§ 11352, subd. (a).) The illegal sale of a controlled substance is a general intent crime that transpires when there is a transfer of possession of the controlled substance to another person for cash. (People v. Daniels (1975) 14 Cal.3d 857, 859.) The dictionary definition of "furnish" is "to supply one with what is needed." (Websters Collegiate Dict. (10th ed. 1999) p. 474.)
When there are copurchasers of a controlled substance, our Supreme Court has indicated that the purchaser who takes a more active role in arranging or carrying out the transaction may be guilty of furnishing to the less active purchaser. As well, "one who acts as a go-between or agent of either the buyer or seller clearly may be found guilty of furnishing as an aider and abettor to the seller. [Citations.]" (People v. Edwards (1985) 39 Cal.3d 107, 114, fn. 5 (Edwards ).)
Viewed in the light most favorable to the conviction, the evidence shows that Aguilar violated section 11352, subdivision (a). He told Officer Sanchez that he could obtain rock cocaine and asked for $40. Aguilar met with Cambaliza and exchanged something for money. Aguilar then gave seven or eight pieces of rock cocaine to Officer Sanchez. Cambaliza had Officer Sanchezs $40. From this it can be gleaned that Aguilar purchased $ 40 worth of rock cocaine for Officer Sanchez through Cambaliza. When Aguilar gave the seven or eight rocks of cocaine to Officer Sanchez, Aguilar either sold or furnished a controlled substance without a license because he arranged the transaction with Cambaliza and acted as a go-between. This is sufficient to support the conviction.
The jury was instructed to prove that Aguilar sold or furnished cocaine base, the People had to prove that he sold or furnished cocaine base and knew of that nature of the substance that he was selling or furnishing. "Selling for the purposes of this instruction means exchanging a controlled substance for money, services, or anything of value. Selling does not require proof that any person profited from the exchange . . . of the controlled substance. [¶] A person furnishes a controlled substance when he . . . knowingly (intentionally) provides a controlled substance to another person or persons." Aguilar does not challenge this instruction. We therefore presume that it was correctly given.
Aguilar testified that he was not selling narcotics. He claimed he was pooling his money with Martinez, Poillon and Officer Sanchez to make a buy. But even if that is true, Aguilar still violated section 11352, subdivision (a) because he acted as the intermediary between Cambaliza and Officer Sanchez and provided the controlled substance to Officer Sanchez.
This case is distinguishable from this divisions opinion in People v. Mayfield (1964) 225 Cal.App.2d 263 (Mayfield). Mayfield, Brown and Dennis met at a bar. They decided to pool their funds and purchase heroin from a supplier known to Brown. The three men proceeded to a street corner, where they met Ricard. Ricard was also interested in the purchase of heroin. He offered to pay his pro rata share. One of the men purchased two balloons of heroin at the street corner. Who made the purchase was not clear from the record. They went to Browns apartment and divided the drugs for use. Ricard injected himself and died. Brown and Mayfield were convicted of second degree murder on the theory that they had administered the heroin in violation of statute. Our predecessors reversed, finding that the men did not sell narcotics to anyone or each other. They were involved in a group purchase for their individual use. (Mayfield, supra, 225 Cal.App.2d at p. 267.)
Unlike in Mayfield, there was no agreement between Aguilar and Officer Sanchez to pool their funds. Officer Sanchez did not offer to pay his pro rata share of a joint purchase. Instead, he asked Aguilar to obtain $40 of rock cocaine. Officer Sanchez was not present when Aguilar obtained the rock cocaine from Cambaliza. Rather, Aguilar told Officer Sanchez to leave the area and come back later. Aguilar made phone calls to Cambaliza and then met Cambaliza at a location outside of Officer Sanchezs view to make a purchase. In other words, the purchase of the rock cocaine was facilitated entirely by Aguilar as a go-between. This permits a finding of guilt, as indicated by our Supreme Court in Edwards.
2. The conviction for violation of section 11351.5.
Aguilar argues that there was insufficient evidence to prove that he possessed cocaine base for sale. The argument lacks merit.
"In order to secure a conviction of [possession of a controlled substance for the purpose of sale, a violation of Health and Safety Code section 11351.5], the prosecution must prove beyond a reasonable doubt that (1) the defendant exercised dominion and control over the controlled substance, (2) the defendant was aware that he or she was in possession of a controlled substance, (3) the defendant was aware of the nature of a controlled substance, (4) the controlled substance was in an amount sufficient to be used for sale or consumption as a controlled substance, and (5) the defendant possessed a controlled substance with the specific intent to sell it." (People v. Parra (1999) 70 Cal.App.4th 222, 225-226.) The offense of selling cocaine base for sale also requires that the amount possessed be sufficient for sale and that when a defendant possesses the drugs that they are possessed with the specific intent that they are to be sold. (People v. Groom (1964) 60 Cal.2d 694, 696; People v. Consuegra (1994) 26 Cal.App.4th, 1726, 1731-1732 & fn. 4.)
The jury was instructed consistent with these authorities.
Instead of addressing the elements of the crime, Aguilar posits the following: "The fact that Officer Sanchez came along with $40.00 to contribute to [Aguilars] pool of money does not change the original intent of the group purchase—that is, the group was making a purchase for personal use." Aguilar, Poillon and Martinez drove to Panorama City to make a purchase from Martinezs supplier but did not succeed. They subsequently drove to the parking lot of a liquor store so that Aguilar could try to buy from his supplier, Cambaliza. When Aguilar was on his way to make a buy, he was approached by Officer Sanchez. There was no evidence that Aguilar approached Officer Sanchez or advertised that he had drugs for sale, or that Aguilar worked under Cambalizas supervision in rounding up buyers. When Martinez and Poillon were arrested, they swallowed their contraband. They did not possess cell phones, pagers, weapons, scales or other items that might belong to drug dealers. Based on the foregoing, Aguilar contends that his "conviction cannot survive the test of evidence which is `reasonable, credible and of solid value."
Even if the facts Aguilar marshals to his defense are true, the evidence supports his conviction. He exercised dominion and control over the rock cocaine once he obtained it from Cambaliza. As Aguilar readily admits, he knew he possessed rock cocaine. Officer Do testified that the rock cocaine Aguilar gave to Officer Sanchez was a usable amount. The circumstantial evidence establishes that Aguilar possessed the rock cocaine with the intent to sell it because he exchanged it for Officer Sanchezs $40. Whether Aguilar was a habitual drug dealer or was just acting as an intermediary on a one-time basis is not relevant. Under either scenario, the conviction must stand. This case does not involve copurchasers. Aguilar purchased rock cocaine and resold it to Officer Sanchez.
Determinations of credibility are within the exclusive province of the jury. An appellate court "must accord due deference to the trier of fact and not substitute [its] evaluation of a witnesss credibility for that of the fact finder." (People v. Jones (1990) 51 Cal.3d 294, 314.) To the extent the jury did not find Aguilar credible, we must accept that finding. The inference from the conviction is that the jury did not believe Aguilars claim of innocence. Thus, we are required to disregard Aguilars contention that he was not selling narcotics.
DISPOSITION
The judgment is affirmed.
We concur:
BOREN, P. J.
DOI TODD, J.