Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 07WF0932, William Lee Evans, Judge.
Lauren E. Eskenazi, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Elizabeth A. Hartwig, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOORE, J.
Defendant was convicted of one count of sale or transportation of a controlled substance. He argues there is insufficient evidence to uphold his conviction. He also claims that testimony about the differences between customs and practices of drug dealers of different ethnicities did not constitute substantial evidence and was also inadmissible racial profiling evidence. We concur with defendant that the evidence was insufficient to sustain his conviction as a matter of law. We also agree with defendant that the use of evidence that invites jurors to base their decision on racial or ethnic stereotypes is improper, and we decline to consider such testimony to evaluate whether the evidence supporting defendant’s conviction was substantial.
I
FACTS
On April 5, 2007, Detective Richard Burillo of the Garden Grove Police Department received a call regarding the sale of narcotics in front of a Euclid Boulevard strip mall. An arrest was made, and prior to leaving the area another detective thought that the suspects might have hidden some drugs in the area to avoid being caught with them. While Burillo was searching the area, he heard someone “kind of whistling.” When he looked in the direction of the sound, he saw defendant sitting in a chair about 40 feet away. Defendant started walking toward Burillo, asking him what he was doing there. Burillo responded by asking defendant “Hey, can I get a 20” meaning $20 worth of drugs. Defendant asked him what he wanted a 20 for, and Burillo responded, “crystal.”
Burillo then told defendant that he would be back in a minute, and walked over to the undercover detective, Michael James Viscomi, who was sitting in a nearby car, informing him about the possible drug purchase. Upon his return, he saw another man, later identified as Juan Rojas, sitting on a bicycle near defendant. When he was 25 to 30 feet from defendant and Rojas, he asked again if he could get a 20. Defendant again asked what for, and Burillo responded, “crystal.” Thereafter, Burillo watched, but did not overhear, a brief conversation between defendant and Rojas. Defendant nodded his head and Rojas rode his bicycle toward Burillo, and defendant stayed where he had been speaking with Rojas.
As Rojas approached, he asked Burillo what he wanted, and Burillo again said $20 worth of crystal. Rojas said he did not have it with him and asked if Burillo wanted to wait. Burillo said he would, and Rojas left on his bicycle. Rojas returned about two minutes later with a small plastic bag in his hand. Burillo took the bag and gave Rojas $20. Rojas left the area.
Burillo returned to the car with the other undercover officer and verified that the substance appeared to be methamphetamine. He informed the other officers and both Rojas and defendant were arrested. No drugs or drug paraphernalia were found in defendant’s possession at the time of arrest.
At trial, Burillo testified, over the defense’s objection, that unlike Caucasian and African-American drug dealers, Hispanic dealers worked in groups, with some of the members watching to see who was in the area. He described Hispanic dealers as “more cautious” in that respect. He repeated this opinion later when describing the use of “runners” in drug transactions, who are intended to shield the principal dealer. He repeated that Hispanic dealers are more “cautious” and use lookouts. On cross-examination, he admitted that he had seen Hispanic dealers working alone. Viscomi also testified, stating that Hispanics tended to work in groups more.
In an amended information, defendant was charged with sale or transportation of a controlled substance (Health & Saf. Code, § 11979, subd. (a).) The information also alleged defendant had served a prior prison term within the meaning of Penal Code section 667.5, subdivision (b).
The information also served as the basis for a petition to revoke defendant’s then existing probation. We affirmed the revocation of probation in a nonpublished opinion. (People v. Rodriguez (Mar. 20, 2009, G039831).)
A first trial, in December 2007, resulted in a mistrial when the jury could not reach a verdict as to defendant. (Rojas was convicted of the sale of methamphetamine, but he is not a party to this appeal.) At retrial in April 2008, the jury found defendant guilty of the sale of methamphetamine. Defendant admitted the prison term prior. The court sentenced defendant to one year in state prison, to be served consecutively to the sentence in a prior matter, and exercised its discretion to strike the prison prior. The sentence for both cases was a total of four years in state prison. Defendant now appeals.
II
DISCUSSION
Defendant argues there is insufficient evidence that he took part in the drug transaction or aided and abetted the sale of drugs. He also contends that Burillo’s testimony about the custom and practice of drug dealers of different ethnicities should not be considered as evidence, and was improperly admitted.
With respect to defendant’s sufficiency of the evidence claim, we must view the evidence in the light most favorable to the judgment, drawing all reasonable deductions from the evidence in the judgment’s favor. We must accept all assessments of credibility as made by the trier of fact, then determine if substantial evidence exists to support each element of the offense(s). (See People v. Carpenter (1997) 15 Cal.4th 312, 387.) To be substantial, evidence must be “reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.]” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
Health and Safety Code section 11379, subdivision (a) states, in relevant part, that the section is violated when someone “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 controlled substance....” The crime is complete when the defendant offers to sell the proscribed drug with the specific intent to make a sale; delivery of the drug is not required. (People v. Allen (1967) 254 Cal.App.2d 597, 602.) Aiding and abetting, the other theory proffered by the prosecution, requires that a defendant act with knowledge of the perpetrator’s criminal purpose and the intent to commit, facilitate, or encourage commission of the offense. (People v. Prettyman (1996) 14 Cal.4th 248, 259.)
The evidence here simply does not meet the substantial evidence threshold under either theory. To prove defendant’s guilt under Health and Safety Code section 11379, an offer to sell with specific intent is required. The one-way nature of the request by Burillo, without a response by defendant, is insufficient, and fails to meet the substantial evidence test, which requires that evidence be “reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.]” (People v. Rodriguez, supra, 20 Cal.4th at p. 11.) Asking the detective what he wanted, even several times, is not an offer, nor does it sufficiently demonstrate specific intent.
With respect to aiding and abetting, the evidence is equally unpersuasive. There was no evidence that defendant contacted Rojas, and the not-overheard conversation cannot constitute substantial evidence that defendant aided and abetted in the drug sale. The facts here are simply too thin and the inferential leaps required are too great to sustain the conviction.
The same holds true with or without the “racial profiling” testimony, and thus, we need not consider defendant’s arguments on this point in any detail. We note, however, that testimony based on race and ethnicity is always problematic, and should only be admitted with great care and caution. While the testimony here did not come anywhere close to approaching the extreme bias of the cases defendant cites (People v. Bain (1971) 5 Cal.3d 839; People v. Castaneda (1997) 55 Cal.App.4th 1067; People v. Criscione (1981) 125 Cal.App.3d 275), it is nonetheless troublesome, inviting misinterpretation by jurors. While the witness might say something like “Caucasian and African-American drug dealers act in one way, and Hispanic dealers act in another way,” it is too easy a jump for a juror to conclude that a defendant is more likely to be guilty because he is of a particular race or ethnicity, and this is the essence of improper racial stereotyping.
While we would not ordinarily concern ourselves with the possible ways in which testimony can be misconstrued, racial and ethnic stereotypes and prejudices are deep-seated and long held, and the greatest care must be taken with any evidence that touches on such issues. Both relevance and Evidence Code section 352 factors should be carefully considered. Further, the same type of background and explanatory information can often be elicited in other ways that do not require testimony about race and ethnicity.
In any event, the testimony here was insufficient to close the broad gap in the prosecution’s evidence. With or without such testimony, the evidence was insufficient to sustain the conviction.
III
DISPOSITION
The judgment is reversed.
WE CONCUR: RYLAARSDAM, ACTING P. J., IKOLA, J.