Opinion
A129052
09-29-2011
THE PEOPLE, Plaintiff and Respondent, v. FRANCO BANALES-PACHECO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Lake County Super. Ct. No. CR920264B)
Defendant Franco Banales-Pacheco appeals from his conviction for the cultivation, possession for sale, and transportation of marijuana, all arising out of a vehicle stop of two vehicles by United States Forest Service officers in the Mendocino National Forest. In one of the cars the officers found 91 pounds of processed marijuana, 11 pounds of unprocessed marijuana, and 10.36 pounds of marijuana seeds. Defendant was driving the second vehicle, in which no contraband was found. He contends the evidence was insufficient to support the cultivation conviction or to support any of the convictions under an aiding and abetting theory. We disagree and shall affirm.
BACKGROUND
Defendant was charged by an information with cultivation of marijuana (Health & Saf. Code, § 11358, count 1); possession of marijuana for sale (§ 11359; count 2); transportation of marijuana (§ 11360, subd. (a); count 3), and employing a minor to transport marijuana (§ 11361, subd. (a); count 4). The court ultimately dismissed count 4 under Penal Code section 1118.1.
All further statutory references are to the Health and Safety Code, unless otherwise noted.
The evidence introduced at trial established without significant dispute that in the early morning hours of August 30, 2009, during the marijuana harvest season, United States Forest Officer Benjamin Hughes and two other officers were on patrol in the Mendocino National Forest. Hughes testified the forest is the busiest area in the nation for marijuana cultivation. Within a four-mile radius of the vehicle stop, almost 20 gardens, with some 200,000 marijuana plants, had been eradicated that year. At 3:00 a.m., he saw the headlights of two vehicles following each other along a dark unpaved forest service road. The first vehicle was a blue Chevrolet Suburban and the second was a tan Chevrolet Tahoe. Hughes testified that there is little traffic in the area during the month of August, especially at that time in the morning. The officers observed the vehicles for five to ten minutes, and noted that the Suburban periodically stopped to wait for the Tahoe to catch up.
In his initial police report Hughes mistakenly referenced to the first vehicle as a GMC Yukon. He corrected his mistake in his second report and identified the vehicle as a Suburban. In the first report he also mistakenly referenced the second car, a tan Tahoe, as a Suburban, which was corrected in his second report as a Tahoe. All references herein to the first vehicle will identify it as a Suburban.
The officers drove along another forest road that intersected the road the two vehicles were travelling and pulled over the Suburban. The Tahoe pulled up behind the Suburban. As Hughes approached the Suburban, he smelled a strong odor of marijuana. He observed inside the vehicle two people and five to six green canvas military bags. The driver of the Suburban confirmed there was marijuana in the car. Hughes then approached the Tahoe, which was driven by defendant. There were nine people including defendant in the Tahoe. Defendant was clean and well-dressed while the other occupants wore soiled clothing, were dirty and smelled of marijuana.
The officers searched both vehicles. In the Suburban they found 91 pounds of dried, processed marijuana packaged into freezer bags weighing approximately one pound each, 11 pounds of unprocessed marijuana, and 10.36 pounds of marijuana seeds. They also found five sleeping bags and five blankets, along with toiletries and other camping supplies. The officers found no marijuana or other contraband in the Tahoe. All 11 individuals from the two vehicles were arrested.
The officers also seized two cell phones from the occupants in the first vehicle and another two cell phones from occupants of the second vehicle. Officer Christopher Magallon examined the call logs for the four phones and discovered numerous calls over a period of several months between the cell phones from occupants of the Suburban and the cell phones seized from the occupants of the Tahoe. No cell phone was seized from defendant and Magallon did not identify a number known to belong to defendant in any of the call logs.
Hughes described the methods normally used to grow marijuana in the national forests. From his training and experience, he testified that the process begins with a person in charge of the operation scouting the area and deciding where to place the marijuana garden. He will then bring into the forest a large crew who plant the garden. A few people will remain for the duration of the summer to tend the plants. When the plants are ready for harvest, a large crew will return, harvest the plants, trim the leaves and hang them to dry. Typically, the dried leaves are placed in one gallon freezer bags which are weighed at one pound each. After harvest, a mid-level trusted person will usually come to transport the marijuana out of the forest. Hughes testified that many of the trafficking organizations are linked to Mexico, specifically the Michoacan area. Familial relationships are often involved and many of the lower level workers are smuggled from Mexico and forced to work in the gardens.
The jury found defendant guilty on counts 1, 2, and 3. The court suspended imposition of a sentence and placed defendant on probation for five years, with the condition that he serve 330 days in county jail. Defendant timely filed a notice of appeal.
DISCUSSION
Defendant contends there is insufficient evidence to support any of the three convictions, and that the convictions therefore violate his state and federal constitutional rights to due process of law.
All three convictions rest on an aiding and abetting theory. An individual who aids and abets the commission of a crime is guilty to the same extent as one who directly commits the offense. (Pen. Code, § 31.) A person is guilty of aiding and abetting when he intends to help the perpetrator with knowledge of the perpetrator's criminal purpose, and does in fact aid either directly or through encouragement of the offense. (People v. Beeman (1984) 35 Cal.3d 547, 560-561.) Pursuant to CALCRIM No. 401, the jury was properly instructed: "To prove that the defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that: [¶] 1. The perpetrator committed the crime; [¶] 2. The defendant knew that the perpetrator intended to commit the crime; [¶] 3. Before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; and [¶] 4. The defendant's words or conduct did in fact aid and abet the perpetrator's commission of the crime."
Substantial evidence sufficient to support a conviction is " 'evidence that 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." (People v. Guerra (2006) 37 Cal.4th 1067, 1129.) "The same standard of review applies to cases in which the prosecution relies mainly on circumstantial evidence . . . ." (People v. Maury (2003) 30 Cal.4th 342, 396.) " 'Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt.' " (People v. Bloyd (1987) 43 Cal.3d 333, 347.) " ' "Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt. ' "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment." ' " ' " (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) "We do not reweigh evidence or reevaluate a witness's credibility." (People v. Guerra, supra, at p. 1129.) A conviction may not be reversed for lack of supporting evidence unless there is no hypothesis under which there is substantial evidence to support the conviction. (People v. Bolin (1998) 18 Cal.4th 297, 331.) Possession for Sale and Transportation of Marijuana
Defendant asserts that there is no evidence to support his conviction for the possession for sale or for the transportation of marijuana since no marijuana was found in his vehicle. While there is no evidence directly connecting the marijuana in the Suburban to the defendant's vehicle, the evidence was sufficient to support the inference that defendant aided and abetted the possession for sale and the transportation of the marijuana found in the Suburban.
Section 11359 states: "Every person who possesses for sale any marijuana, except as otherwise provided by law, shall be punished by imprisonment in the state prison."
Section 11360, subdivision (a) states: "Except as otherwise provided by this section or as authorized by law, every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport any marijuana shall be punished by imprisonment in the state prison for a period of two, three, or four years."
Unlawful possession of a controlled substance requires the defendant to have physical or constructive possession of the illegal drug. (People v. Francis (1969) 71 Cal.2d 66, 71.) Possession of drugs is constructive if the defendant had control or the right to control drugs in the physical possession of another. (People v. Rogers (1971) 5 Cal.3d 129, 134.) A defendant's knowledge of the presence and character of illegal drugs, coupled with joint or exclusive possession of the drugs in a moving vehicle, is sufficient to establish illegal transportation. (Ibid.) Here, defendant does not question that the evidence was sufficient to show that the occupants of the Suburban possessed for sale and were transporting marijuana. We conclude the evidence was also sufficient to support the finding that defendant aided and abetted the commission of those offenses.
The evidence established that on a seldom travelled road in a known marijuana-growing area, in the dark of night during the marijuana harvest season, defendant drove the Tahoe following in tandem behind the Suburban carrying the load of marijuana. The arresting officers testified that defendant closely followed the Suburban and that the Suburban periodically stopped to permit the Tahoe to catch up with it. These circumstances permitted the reasonable inference that there was a connection between the two vehicles. By following behind the Suburban with additional manpower, the Tahoe provided additional security for the Suburban and its cargo, which may have been useful in any number of ways. The appearance of the occupants in the two vehicles was consistent with Hughes's description of the methods employed by growers to harvest and remove marijuana from the fields, supporting the obvious inference that defendant was the person overseeing the removal process. Additionally, the phone records connected defendant's passengers to those in the Suburban, providing further evidence that all were engaged in a common enterprise.
The jury also could have inferred from the circumstances that defendant knew of the marijuana being transported in the Suburban. As just indicated, defendant's clean appearance compared to that of the other passengers in his vehicle supports the inference that he was the trusted person sent to pick up the crew and remove the harvested crop from the field, which necessarily required knowledge of the contraband. Defendant was not a mere passive passenger but the driver who transported eight members of the crew. The strong odor of marijuana and the dirty appearance of the passengers in defendant's vehicle further supports the inference that defendant was fully aware of the presence of the marijuana.
Defendant asserts there was no indication of sales in the two vehicles. However, that controlled substances are possessed for the purpose of sale may be established by opinion testimony of an experienced law enforcement officer. (People v. Harris (2000) 83 Cal.App.4th 371, 374-375.) Here, the officers found 91 pounds of processed marijuana divided into almost exactly one pound bags. Hughes testified that it is standard industry practice for illegal marijuana operations to use clear plastic freezer bags like those found in the Suburban and for each bag to contain almost exactly the same quantity. Here, almost all of the bags weighed the same. Some contained little pieces of paper with names written on them which the officer interpreted to mean either that someone owned those bags or that the content was to be divided by them for sale. The large volume of marijuana and the fact that 91 pounds had already been trimmed, processed and had a value of $250,000 wholesale indicates that the marijuana was not for personal consumption.
Even if defendant did not himself have constructive possession of the marijuana in the Suburban, there unquestionably was sufficient evidence to support the finding that he aided and abetted the possession of that marijuana for the purpose of sale and its transportation. Cultivation of Marijuana
Defendant also contends there is insufficient evidence that he aided and abetted in the cultivation of marijuana. He asserts that there is no evidence that the marijuana found in the Suburban was cultivated by any person in either of the two vehicles. None of these people was observed planting, harvesting or drying the marijuana. There was no evidence of the growing site of the marijuana, and neither of the two vehicles contained fertilizer, planting tools, firearms, watering equipment, or live plants. Nonetheless, although no farm tools were found in either car, marijuana seeds for up to 300,000 marijuana plants and camping supplies for at least five workers were found in the Suburban. A solar panel often used to generate electricity in the forest was also in the car. From this evidence the jury reasonably could infer that the passengers had been camping in the forest to cultivate the marijuana crop. Hughes testified that gardening tools and other equipment are often abandoned in the forest.
While the 10 pounds of marijuana seeds found in the Suburban suggest an involvement in cultivation, one need not plant marijuana to violate section 11358. The statute encompasses harvesting and processing in addition to cultivation. Even if those in the car did not plant the marijuana, the jury could infer their involvement in its processing. Performing any step in the process of preparing marijuana for consumption constitutes processing marijuana within the meaning of section 11358. (People v. Tierce (1985) 165 Cal.App.3d 256, 267-269.) "[O]ne who removes the leaves from marijuana plants in order to render the leaves usable for smoking is engaged in processing the drug and thus violates the provisions of . . . section 11358." (Tierce, p. 269.) Here, the officers confiscated 91 pounds of dried and processed marijuana in individual freezer bags each weighing one pound. Particularly in view of the dirty appearance of those in the two vehicles and the presence of camping equipment, the jury could reasonably infer that those in the car played some role in harvesting and processing that marijuana. Moreover, the 11 pounds of unprocessed marijuana also found in the Suburban suggests that they planned to process the additional marijuana at a later date.
Section 11358 states: "Every person who plants, cultivates, harvests, dries, or processes any marijuana or any part thereof, except as otherwise provided by law, shall be punished by imprisonment in the state prison."
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The evidence, thus, is sufficient to support the finding that the passengers in the two vehicles violated section 11358. The same evidence that supports a finding that defendant aided and abetted the possession and transportation of the marijuana supports the inference that he was an aider and abetter in its cultivation. As defendant argues, there was no evidence that he instructed anyone or was physically present in the field where the marijuana was grown. Nor was there evidence that any of the camping supplies belonged to him. Nonetheless, the circumstances surrounding his arrest, described above, support the inference that he was knowingly driving those who harvested the marijuana from the fields with the harvested crop. Transporting the workers alone undoubtedly is sufficient to establish aiding and abetting, provided that knowledge of their activity can reasonably be inferred.
The prosecution cited People v. Bradford(1995) 38 Cal.App.4th 1733, 1739 and People v. Heath (1998) 66 Cal.App.4th 697 to support the proposition that one need not be present at the site to be guilty of cultivation. Defendant's attempt to distinguish these cases is unpersuasive. Although Bradford addresses a sentencing issue, it recognizes that "[l]ike possession of drugs, the crime of cultivation of marijuana is a continuing one. The crime continues at least during a period of cultivation that the defendant undertakes or aids or abets. One need not be physically present at the site of a cultivation in order to be guilty of the offense." (38 Cal.App.4th at pp. 1738-1739, italics added.) In Bradford the defendant was not found at his cabin where marijuana was grown but the circumstances supported a fair inference that he was present at some point during the cultivation process. (Id. at p. 1739.) Heath involves a conviction for aiding and abetting the manufacture of methamphetamine. Although dealing with the manufacture of methamphetamine rather than the cultivation of marijuana, the court rejected the defendant's argument that "the evidence was insufficient because an aider and abetter must assist in the crime before or during its commission, and no manufacturing of methamphetamine was actually taking place when defendant was apprehended at the premises." (66 Cal.App.4th at p. 707.) The court concluded that "defendant was properly convicted as an aider and abetter even without a showing that work was being actively performed while he was on the premises." (Id. at p. 708.) Like the manufacture of methamphetamine, the cultivation of marijuana is an ongoing process. The evidence was sufficient to connect defendant to the cultivation of the marijuana as an aider and abetter without a showing that he worked the garden where the marijuana was grown. Defendant's State and Federal Constitutional Rights
Because there was sufficient evidence to establish defendant's guilt on all three counts, his conviction violates none of his constitutional rights. (People v. Cole (2004) 33 Cal.4th 1158, 1212; People v. Berryman (1993) 6 Cal.4th 1048, 1083, overruled on different ground in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1; People v. Johnson (1980) 26 Cal.3d 557, 578; Jackson v. Virginia (1979) 443 U.S. 307, 316-320.)
DISPOSITION
The judgment is affirmed.
Pollak, Acting P.J. We concur: Siggins, J. Jenkins, J.