Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F09902017, Carlos A. Cabrera, Judge.
Gideon Margolis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jeffrey A. White, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Gomes, J., Levy, Acting P.J. and Kane, J.
On Isaac Torres Mendoza’s appeal from a judgment of conviction of conspiracy to sell a controlled substance (methamphetamine), the sole issue before us is the sufficiency of the evidence. We affirm.
BACKGROUND
On September 4, 2009, the district attorney filed a first amended information charging Mendoza with conspiracy to sell a controlled substance (methamphetamine) on April 2, 2009 (count 1; Pen. Code, § 182; Health & Saf. Code, § 11379), with possession for sale of a controlled substance (methamphetamine) on April 2, 2009 (count 2; Health & Saf. Code, § 11378), and with sale of a controlled substance (methamphetamine) on March 2, 2009 (count 4; Health & Saf. Code, § 11379, subd. (a)) and alleging he was personally armed with a firearm in the commission of the crimes in counts 1 and 2. (§ 12022, subd. (c).)
Later statutory references are to the Penal Code except where otherwise noted.
The information charged Jose Manuel Jimenez, Jorge Luis Torres, and Juan Sanchez Valadez with Mendoza in counts 1 and 2 and Valadez with Mendoza in count 4 and charged Jiminez and Torres with another crime in count 3 and Valadez with another crime in count 5. None of those charges is relevant to Mendoza’s appeal.
On September 15, 2009, a jury found Mendoza guilty as charged and found both firearm allegations true. On October 19, 2009, the court imposed an aggregate six-year term on count 2 (the aggravated three-year term on the crime and the mitigated three-year term on the enhancement), imposed and stayed an aggregate seven-year term on count 1 (the aggravated four-year term on the crime and the mitigated three-year term on the enhancement), and imposed and stayed the aggravated four-year term on count 4.
DISCUSSION
“The crime of conspiracy is defined in the Penal Code as ‘two or more persons conspir[ing]’ ‘[t]o commit any crime, ’ together with proof of the commission of an overt act ‘by one or more of the parties to such agreement’ in furtherance thereof. (Pen. Code, §§ 182, subd. (a)(1), 184.)” (People v. Swain (1996) 12 Cal.4th 593, 600 (Swain).) “The necessary elements of a criminal conspiracy are: (1) an agreement between two or more persons; (2) with the specific intent to agree to commit a public offense; (3) with the further specific intent to commit that offense; and (4) an overt act committed by one or more of the parties for the purpose of accomplishing the object of the agreement or conspiracy.” (People v. Liu (1996) 46 Cal.App.4th 1119, 1128, citing, e.g., People v. Backus (1979) 23 Cal.3d 360, 390.)
“‘Conspiracy is a “specific intent” crime…. The specific intent required divides logically into two elements: (a) the intent to agree, or conspire, and (b) the intent to commit the offense which is the object of the conspiracy…. To sustain a conviction for conspiracy to commit a particular offense, the prosecution must show not only that the conspirators intended to agree but also that they intended to commit the elements of that offense.’” (Swain, supra, 12 Cal.4th at p. 600, italics in original.) “In proving a conspiracy, however, it is not necessary to demonstrate that the parties met and actually agreed to undertake the unlawful act or that they had previously arranged a detailed plan. The evidence is sufficient if it supports an inference that the parties positively or tacitly came to a mutual understanding to commit a crime. Therefore, conspiracy may be proved through circumstantial evidence inferred from the conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy.” (People v. Prevost (1998) 60 Cal.App.4th 1382, 1399.)
Our duty on a challenge to the sufficiency of the evidence is to review the whole record in the light most favorable to the judgment for substantial evidence – credible and reasonable evidence of solid value – that could have enabled any rational trier of fact to have found the defendant guilty beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 318; People v. Prince (2007) 40 Cal.4th 1179, 1251.) The standard of review applies to circumstantial and direct evidence alike and requires us to presume in support of the judgment the existence of every fact a reasonable trier of fact reasonably could have deduced from the evidence. (Prince, supra, at p. 1251.)
Our duty to review the record begins with Mendoza’s own summary of the facts on which he relies. “The evidence in the instant case showed that Police Officer Jose Rivera, working undercover, had information that ‘Isaac’ was holding himself out as a person selling methamphetamine, ” he notes. “After a series of telephone conversations and meetings between Rivera, Valadez and [Mendoza], the three met and a discussion about the price of narcotics ensued, after which [Mendoza] told Rivera he could sell him an ounce of methamphetamine for $1800. Eventually, the parties discussed the price of a pound and agreed to meet at a later date. Subsequently, the drugs were delivered.”
On the basis of his own summary of the facts, Mendoza argues that “[e]ven if this evidence supports the finding that [he] possessed methamphetamine for sale” “there was no evidence, direct or circumstantial, ” that “he, Valadez, Jimenez and Torres agreed and conspired to commit” the crime of conspiracy to sell methamphetamine or that “he had an expectation to gain from the transaction.” Our duty to review the record obliges us to go beyond Mendoza’s own summary of the facts, of course.
Our own review of the record shows that Rivera called Mendoza’s cell phone to make arrangements to buy methamphetamine, kept in contact with the sellers by calling Mendoza’s cell phone, and recognized the voice of the person on the phone as Mendoza’s when he met him in person. Mendoza later told Rivera he could contact him or Valadez since “it doesn’t matter, we’re both the same.”
The record shows, too, that Rivera made about half a dozen phone calls to Mendoza’s cell phone to arrange for the methamphetamine transaction. A text message from Mendoza’s cell phone read, “Call me. I’m ready. ASAP.” After Mendoza told Rivera on the phone that three or four pounds of methamphetamine were ready, he passed the phone to Valadez, who quoted him a price of $20,000 a pound. Every time Rivera met with Valadez, Mendoza was present. As Valadez talked about methamphetamine with Rivera, Mendoza nodded yes or no to Rivera’s questions about price and quality. Rivera thought Mendoza acted as a lookout at one meeting.
Additionally, the record shows that, on the day the transaction was to occur, Mendoza drove to the arranged meeting place in an SUV with Valadez as his passenger. As the transaction progressed, Mendoza sat in the driver’s seat of the SUV with his head “turning different directions looking around, aware of his surroundings.”
In reliance on People v. Samarjian (1966) 240 Cal.App.2d 13 (Samarjian), Mendoza argues that “the prosecution proved at most that [he] was involved in a drug transaction” since there was “no evidence that [he] conspired to sell drugs.” He focuses on his post-arrest statements to a detective that he got $20 to $40 in gas money to drive Valadez around to help him buy a car and that when police arrived and arrested him he thought Valadez and Rivera were talking about buying a car. His argument is not at all persuasive.
Samarjian reversed a conviction of conspiracy to forge parimutuel tickets due to an insufficiency of the evidence of an agreement between the defendant who possessed the printing plates that could forge parimutuel tickets and the people who presented the forged parimutuel tickets. (Samarjian, supra, 240 Cal.App.2d at pp. 17-20.) Samarjian is as inapposite here as in People v. Bratis (1977) 73 Cal.App.3d 751, where “there was ample evidence to connect each of the defendants with the other, and each was observed engaged in activities which would contribute to the [illegal] end” of the conspiracy. (Id. at p. 765.) Mendoza’s insufficiency of the evidence argument simply asks us to reweigh the facts. That we cannot do. (People v. Bolin (1998) 18 Cal.4th 297, 331-333.)
DISPOSITION
The judgment is affirmed.