Opinion
A099174.
7-28-2003
THE PEOPLE, Plaintiff and Respondent, v. HAROLD NICOLAS, Defendant and Appellant.
Harold Nicolas appeals from a judgment of conviction of three drug offenses following a jury trial. Defendants court-appointed counsel has briefed no issues and asks this court to review the record pursuant to People v. Wende (1979) 25 Cal.3d 436, 158 Cal. Rptr. 839, 600 P.2d 1071.
An information filed in the San Mateo County Superior Court charged defendant with two counts of the sale of cocaine (Health & Saf. Code, § 11352) and one count of possession of cocaine for sale (§ 11351). Following a trial at which the principal defense was entrapment, the jury found defendant guilty as charged. After recalling the defendant to correct its initial sentence, the court sentenced defendant to the middle term of four years in state prison for the first count of the sale of cocaine (§ 11352) and to a consecutive term of sixteen months, or one-third the middle term, for the second count of the same offense (§ 11352). Thus, the aggregate term totaled five years and four months. The court stayed execution of sentence for possession of cocaine for sale (§ 11351) pursuant to Penal Code section 654. The court initially granted defendant 486 days total presentence credit and ordered him to pay a $ 200 restitution fine. Subsequently, the court granted defendant credit for an additional 42 days of time actually served.
All statutory references are to the Health and Safety Code unless otherwise indicated.
The Prosecutions Case
Carlos Sarmiento is a paid informant for the San Francisco Police Department who earns between $ 300 and $ 500 for each drug dealer he helps to arrest. He was first recruited to be an informant in 1997 by San Francisco Police Officer Ricardo Guerrero. Guerrero helped Sarmiento by intervening with the Immigration and Naturalization Service after Sarmiento was arrested. Sarmiento continued to work as an informant because he does not approve of selling drugs even though he used narcotics until at least July 1999.
Sarmiento frequented the Corneitas Bar in the Mission District of San Francisco and knew that drugs could be bought there. Sarmiento met defendant at this bar, and the two men became friends during the three to five years preceding February 1999. The two men associated outside the bar but most regularly played pool together at the Corneitas.
Sarmiento knew that Guerrero wanted to pursue the bigger traffickers and discovered such a dealer named Roman Calona. Sarmiento also knew that in February 1999 Calona lived with a man named Roberto Ramirez. According to Sarmiento, on February 23, 1999, he called Calona and set up a drug buy that would involve both Calona and Ramirez.
Sarmiento at that time knew nothing about defendants personal life but was aware that defendant was unemployed. Relying upon his long-standing friendship, Sarmiento decided to recruit defendant into assisting in the drug buy with Calona. On the evening of February 23, 1999, Sarmiento bought defendant a few beers and suggested that defendant could make some "easy money" by helping to buy some cocaine. Defendant agreed and asked, "how much do you want?"
Sarmiento immediately called his police contact, Guerrero, and told the officer of the proposed drug deal. Between 7:00 and 10:00 p.m. on the same evening, Guerrero went to the Cornietas with his partner, Officer Sanchez. While Sanchez waited outside in the car, Guerrero entered the bar where he was introduced to defendant by Sarmiento as someone who wanted to buy cocaine. The three men sat at a table and discussed the purchase of one ounce of powdered cocaine. Defendant told Guerrero that he had only a half-ounce and it had been promised to someone else. Defendant said he would try to get more the next day.
On February 24, 1999, Guerrero returned to the bar where Sarmiento was buying drinks for defendant. Once again, Sanchez waited outside in an unmarked police vehicle. Defendant told Guerrero that he did not have an ounce of cocaine but could call someone who did. Guerrero gave his cell phone to defendant who called someone, but the officer could not recall the conversation. Defendant eventually informed Guerrero that they needed to go to a Lyons Coffee Shop in Daly City to purchase the cocaine. Sarmiento, Guerrero, Sanchez and defendant drove to the parking lot of the Lyons Coffee Shop. Once there, Guerrero gave defendant $ 750 in marked bills which defendant took with him into the restaurant.
Other San Francisco narcotics officers were already at the scene when defendant arrived. Undercover Officer Kevin Healy followed defendant inside the coffee shop and saw him sit at the counter. Minutes later, Calona entered and sat next to defendant. Defendant gave Calona some folded currency, and Colona handed defendant a plastic bag containing a white substance. Defendant then walked out the front door.
Defendant walked back to the police vehicle in which he had arrived and gave the plastic bag to Guerrero. Sanchez then drove defendant back to the Mission District. En route, Guerrero asked defendant if he could get three to five more ounces of cocaine, and defendant said he could. Defendant gave Guerrero a pager number and told him to call.
Later that day, Sanchez took the baggie holding the white substance from Guerrero and placed it in a marked envelope. He then put the envelope in a locked narcotics drop box in the Hall of Justice. San Mateo County Criminologist John Sanchez eventually tested the contents of the baggie and found it weighed 27.97 grams and contained cocaine salt.
On February 25, 1999, Sarmiento telephoned defendant and again asked him to arrange a cocaine purchase. Sarmiento also called Calona and asked him to supply the drugs. Later the same day, Sarmiento saw defendant at the Corneitas Bar and again asked him to assist in the drug deal with Calona. Sarmiento arranged with Calona for defendant to deliver the money for the cocaine and explained the plan to defendant. The next day, Sarmiento, Guerrero and Sanchez picked up defendant in the Mission District. Defendant told the others that they again needed to go to Lyons in Daly City where defendant could buy four ounces of cocaine for $ 3,000. The four men then drove to the Daly City restaurant. In the parking lot, Guerrero gave defendant $ 3,000 in marked bills.
Again, other undercover officers from both the San Francisco and Daly City Police Departments were in place when defendant arrived at the restaurant. San Francisco Officer Gary Delagnes was inside the coffee shop and saw defendant enter and sit at a booth. About 10 minutes later, Calona entered and immediately sat down opposite defendant in the same booth. Defendant handed Calona some currency that Calona briefly counted. Just then, Ramirez came into the restaurant and walked directly to the booth shared by Calona and defendant. Ramirez appeared nervous and quickly left. Healy, who had been stationed outside the restaurant, saw Ramirez come outside and walk to a blue tarp on the sidewalk. Ramirez placed a plastic shopping bag under the tarp and walked away. Healy then searched under the tarp and found a plastic bag containing four individually wrapped smaller baggies containing a white power. Shortly thereafter, Delagnes was informed by radio that Ramirez had been placed under arrest and that he should arrest Calona and defendant. After arresting the two suspects, Delagnes observed during the ensuing searches that Colona had $ 2,800 on his person and defendant had $ 200.
Police transported defendant to the Daly City police station where Officer James Murphy questioned him. Defendant was very cooperative and freely admitted that, as a favor for a friend, he had arranged the day before for the purchase of four ounces of cocaine from Calona. Defendant understood that he was to make $ 200 for his efforts and needed the money because his wife and three children were all living in a one-bedroom apartment while he was out of work.
Meanwhile, Healy kept the suspected narcotics found under the blue tarp and later that day gave them to Daly City Police Officer Carlos Schiantarelli. Schiantarelli in turn filled out the standard booking forms and placed the contraband in a secure locker at the Daly City Police Department. Booking Officer Thomas Anderson was the only person with access to the locker. Linda French, a San Mateo County criminalist, weighed and tested the contents of each of the four baggies. She found each baggie contained cocaine salt and weighed almost exactly one ounce.
It was stipulated that Calona and Ramirez each were convicted of the sale of cocaine (§ 11352) in November 1999. It was further stipulated that after his original arraignment, defendant absconded some time before November 12, 1999, and was rearrested on February 3, 2002.
Defense Case
Defendant testified that on the evening of February 23, 1999, Sarmiento approached him in Corneitas Bar and bought him some beer. Sarmiento said he needed to make some money by providing one of his friends with drugs and asked defendant as a favor to serve as the middleman. At first, defendant was confused. Although he knew Sarmiento had a drug problem, in their approximately five years of friendship, Sarmiento had never asked defendant to get involved in any such dealings. Sarmiento explained that Calona would supply the drugs but that he could not go directly to Calona because too many people knew who he was. Later that evening, Sarmiento introduced defendant to Guerrero. Guerrero bought the trio some more beer and tried to be friendly. When Guerrero left the bar, he gave Sarmiento $ 20 to buy more beer. At first, defendant refused to participate in Sarmientos and Guerreros proposed plan. Sarmiento kept telling defendant he could make "easy money" by participating in the deal with Calona. Sarmiento continued buying beer and pleading with defendant until defendant eventually agreed to be the middleman.
The next day, Sarmiento paged defendant and told him that a deal had been arranged. Defendants role was to deliver some cash to Calona at the Lyons Coffee Shop in Daly City in exchange for the cocaine. After exchanging the cash for the drugs and delivering the cocaine to Guerrero as directed, defendant received a payment of $ 50. In the car returning to San Francisco after this initial buy, Sarmiento and Guerrero asked defendant to help in a larger buy from Calona. Again, defendants first reaction was to refuse. When defendant and Sarmiento went to Cornietas Bar, Sarmiento continued to try to persuade defendant to participate in a second buy. He bought defendant more beer and told defendant to trust him, that everything would be all right. Again, defendant refused to join in the plan. On February 26, 1999, Sarmiento again implored defendant to help buy more cocaine. He emphasized that defendant would make even more "easy money" and that it would be a favor. Eventually, defendant agreed.
Defendant explained that he fled after his arraignment because he knew Calona was a "big-time drug dealer" and defendant feared for his life. Defendant went home to Nicaragua but returned because he missed his family and wanted to clear his name.
Maria Nicolas, defendants wife, testified that in February 1999, both she and defendant were out of work. The family survived on unemployment, welfare and occasional financial assistance from Marias mother. Maria had never known defendant to use drugs and never found any drugs in the house. She was surprised when her husband was arrested for the present matter because it was not the sort of thing her husband would do.
Defense counsel argued to the jury that defendant had been entrapped. The court adequately instructed the jury on the defense of entrapment by giving the standard instructions: CALJIC Nos. 4.60 and 4.61. The court rejected defendants proposed jury instruction based on Jacobson v. United States (1992) 503 U.S. 540, 549-550, 118 L. Ed. 2d 174, 112 S. Ct. 1535, that would have required the prosecution to prove beyond a reasonable doubt that defendant was disposed to commit the offenses before being approached by the informant and undercover police officers. The defense of entrapment is an affirmative defense that is collateral to a defendants guilt or innocence. It is not dependent on whether defendants conduct was consistent with the elements of the charged offenses. The fact at issue is the conduct of state agents, not that of the defendant. Thus, under California law, defendant has the burden of proving by a preponderance of the evidence the facts underlying the defense. (People v. Mower (2002) 28 Cal.4th 457, 480-481.)
CALJIC No. 4.60: "It is a defense to a criminal charge that the commission of the alleged criminal act, was induced by the conduct of law enforcement agents or officers [or persons acting under their direction, suggestion or control] when the conduct would likely induce a normally law-abiding person to commit the crime. [P] To establish this defense the defendant has the burden of proving by a preponderance of the evidence that the conduct of the law enforcement agents or officers [or persons acting under their direction, suggestion or control] would likely induce a normally law-abiding person to commit the crime."
CALJIC No. 4.61: "In deciding whether this defense has been established, guidance will generally be found in the application of one or both of two principles. First, if the actions of the law enforcement agent would generate in a normally law-abiding person a motive for the crime other than ordinary criminal intent, entrapment will be established. An example of this type of conduct would be an appeal by the police that would induce a normally law-abiding person to commit the act because of friendship or sympathy, instead of a desire for personal gain or other typical criminal purpose. Second, affirmative police conduct that would make commission of the crime unusually attractive to a normally law-abiding person will likewise constitute entrapment. This conduct would include, for example, a guarantee that the act is not illegal or the crime will go undetected, an offer of exorbitant consideration, or any similar enticement. [P] Finally, while the inquiry must focus primarily on the conduct of the law enforcement agent, that conduct is not to be viewed in a vacuum; it should also be judged by the effect it would have on a normally law-abiding person situated in the circumstances of the case at hand. Among the circumstances that may be relevant for this purpose, for example, are the transactions preceding the crime, the suspects response to the inducements of the officer, the gravity of the crime, and the difficulty of detecting instances of its commission. . . ." (The remainder of the instruction was not given.)
Over the defendants objection, the court permitted the jury to be told of the stipulated facts concerning the defendants long flight from prosecution, and the court instructed the jury that this evidence could be considered as evidence of guilt (CALJIC No. 2.52). Although this instruction is generally appropriate where a defendant flees immediately after the commission of an offense, the time span between the commission of the offense and the alleged flight goes to the weight rather than the admissibility of the evidence. Here, the court acted within its discretion when it implicitly determined that the probative value of the evidence outweighed its prejudicial potential. (People v. Sherren (1979) 89 Cal. App. 3d 752, 762-764, 152 Cal. Rptr. 828.)
Finally, before trial commenced, defendant moved to dismiss the matter based on the police departments destruction of the cocaine seized in the two drug buys defendant facilitated. Apparently Daly City Police Officer Thomas Anderson obtained a court order for the destruction of the contraband because he erroneously believed that defendants case had been resolved at the same time as those of codefendants Calona and Rodriguez. The cocaine was presented at defendants preliminary hearing, and nothing in the record demonstrates that defendant had any interest in ordering independent testing. In any event, defendant could not demonstrate that the destroyed evidence possessed any exculpatory value that should have been apparent to the officer who disposed of it. Accordingly, the court properly denied the motion. (People v. Hardy (1992) 2 Cal.4th 86, 165-166, 825 P.2d 781.)
Thus, substantial evidence supports the jurys verdict, and the jury was properly instructed. There was no sentencing error and there are no issues that require further briefing.
The judgment is affirmed.
We concur: McGuiness, P. J., Corrigan, J.