Opinion
C039219.
7-8-2003
THE PEOPLE, Plaintiff and Respondent, v. GABRIEL AVALOS MENDOZA, Defendant and Appellant.
A jury convicted defendant Gabriel Avalos Mendoza of maintaining a place for selling, giving away, and using methamphetamine (Health & Saf. Code, § 11366 — count I), possession of methamphetamine (§ 11377, subd. (a) — count II), possession of methamphetamine for sale (& sect; 11378, subd. (a) — count III), and transportation and sale of methamphetamine (§ 11379, subd. (a) — count IV).
Sentenced to state prison for three years, eight months, defendant appeals contending (1) the evidence was insufficient to prove he was the person involved in the above offenses, and (2) the trial court prejudicially erred by instructing the jury with the functional equivalent of CALJIC No. 17.41.1, regarding the jurors duty to report any juror misconduct to the court. We shall affirm the judgment.
FACTS
On April 10, 2000, California Highway Patrol Officer Joe Lapthorne, along with other officers, was working with a confidential informant to make an undercover purchase of methamphetamine from defendant. The informant and his vehicle were searched and no drugs or cash were found. At 10:06 p.m. Lapthorne and the informant telephoned defendants cell phone number. A person with a moderate Spanish accent, and responding to the name of Gabriel, answered the call. The informant told Gabriel that he had someone who wanted to purchase a half ounce of methamphetamine. It was agreed that Gabriel would leave the house immediately and meet the informant and buyer at AJs restaurant.
About 17 minutes after the phone call, Lapthorne, who was aware of defendants appearance from previous sightings, saw defendant pull into AJs parking lot in a 1990 maroon Lincoln Continental. Lapthorne and the informant went to defendants vehicle where the informant told defendant that Lapthorne wanted to buy a half ounce. Defendant refused, stating, "I dont want to do business with him. I only want to do business with you." The informant got into the Continental and he and defendant drove to another spot in the parking lot. The informant returned and Lapthorne agreed to the informants making the purchase at a nearby Jack-in-the-Box restaurant and gave the informant $ 250. The informant got into defendants vehicle and left.
Lapthorne drove to the Jack-in-the-Box and about 10 minutes later the Continental drove up. The informant got out and the Continental drove off. The informant gave Lapthorne four packages of methamphetamine. Lapthorne searched the informant, finding neither money nor methamphetamine.
During the above described negotiations for the buy, Officer Bruce Bonner, who was in radio contact with Lapthorne, was conducting surveillance of defendants house at a distance of about 125 yards. Bonner received word that the phone call to defendant had been made and that defendant would be coming to AJs. At 10:19 p.m., Bonner observed a person, whom he could not identify, leave defendants residence and get into a maroon Lincoln Continental and drive off. Bonner radioed this information so that other units could pick up the Continental and follow it. Bonner then proceeded to the area of AJs restaurant.
While near AJs, Bonner heard that defendant was going back to his residence, so Bonner also returned. At defendants residence, Bonner saw the same Continental pull up to defendants home and the driver go into the house. Five minutes later the driver exited the house, got into the Continental and drove off.
DISCUSSION
Defendant contends that the evidence is insufficient to prove that he was the person involved in the April 10, 2000, transaction. He argues: "Taken in the light most favorable to the prosecution, the evidence supports a finding that the [defendant] engaged in a conversation with a CI who wanted to buy narcotics, and that [defendant] picked up the CI in a parking lot a short time later. The car left the parking lot, and the officers lost sight of it. When the car returned and the CI left the car with narcotics, nobody saw [defendant] driving the car. At what point and from where the CI received the narcotics was not presented, and nobody saw the money exchanged for narcotics. [P] The inability to account for [defendants] whereabouts during the alleged transaction, the lack of a witness to any exchange, and the absence of anyone seeing [defendant] with any drugs, packages or money, provided insufficient evidence to prove he either possessed methamphetamine for sale or sold/transported it as alleged . . . ."
This is wishful thinking.
"When the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence — i.e., evidence that is credible and of solid value — from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt." (People v. Green (1980) 27 Cal.3d 1, 55, 164 Cal. Rptr. 1, 609 P.2d 468.)
Officer Lapthorne called the cell phone number registered to defendant; the person who responded answered to the name Gabriel, which is defendants name; after the drug transaction was agreed upon, defendant arrived at AJs parking lot, the designated location for the deal, in a maroon Lincoln Continental; shortly after Lapthornes telephone call to defendant, Officer Bonner observed someone leave defendants residence in a maroon Lincoln Continental; also shortly after Lapthornes call, defendant arrived in a maroon Lincoln Continental and stated he would only deal methamphetamine to the informant; the informant, who had been searched for money and drugs, was given $ 250 to complete the deal and drove off with defendant; within five minutes of defendants departure, Bonner saw the maroon Lincoln Continental drive up to defendants residence and a person go into that residence; five minutes later Bonner saw the person come out and leave in the same Continental; within a few minutes thereafter, the maroon Continental pulled into the newly designated buy location, Jack-in-the-Box, and the informant got out and the Continental was driven off; the informant then gave Lapthorne four packages of methamphetamine.
From this evidence the only conclusion a rational jury could draw was that defendant was the person involved in transporting and selling the methamphetamine. Consequently, defendants contention is rejected.
II
Defendant contends the trial court committed prejudicial error when it gave instructions which were the equivalent of CALJIC No. 17.41.1, regarding a jurors duty to inform the court of any juror misconduct. According to defendant, CALJIC No. 17.41.1 impermissibly infringes on both a jurys right to nullification and a defendants Sixth Amendment right to a unanimous jury. We reject the contention.
CALJIC No. 17.41.1 provides: "The integrity of a trial requires that the jurors, at all times during their deliberations, conduct themselves as required by these instructions. Accordingly, should it occur that any juror refuses to deliberate or expresses an intention to disregard the law or to decide the case based on [penalty or punishment or,] any [other] improper basis, it is the obligation of the other jurors to immediately advise the Court of the situation."
The instructions defendant claims are the functional equivalent of CALJIC No. 17.41.1 are: "The jurors are bound at all times to conduct themselves as required by the instructions," and "If a juror violates any of these directions, please notify the bailiff promptly."
First, we do not agree that these instructions are the functional equivalent of CALJIC No. 17.41.1. The first cited instruction was given at the close of the presentation of evidence. The second cited instruction, which is not contained in the reporters transcript but is contained in the clerks transcript, was given as part of the courts preliminary instructions preceding the presentation of evidence. In such circumstances, the jury would likely conclude that the second instruction related only to the preliminary instructions which essentially told the jurors how to conduct themselves during the presentation of evidence rather than during deliberations.
In any event, even assuming the instructions were the functional equivalent of CALJIC No. 17.41.1, the instructions neither impinged upon the jurys right to nullification nor defendants Sixth Amendment right to a unanimous jury. A jury does not have a right to nullification (People v. Williams (2001) 25 Cal.4th 441, 463) and our state Supreme Court has ruled that CALJIC No. 17.41.1 does not deny a defendant his Sixth Amendment right to a unanimous jury (People v. Engelman (2002) 28 Cal.4th 436, 439-440). The matters having been decided adversely to defendant by our state Supreme Court, the issues are therefore closed. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal. Rptr. 321, 369 P.2d 937.)
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P. J., and RAYE, J. --------------- Notes: References to undesignated sections are to the Health and Safety Code.