Opinion
E051954
08-04-2011
THE PEOPLE, Plaintiff and Respondent, v. CARLOS DONNIELLIE SPENCER, Defendant and Appellant.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez, and Annie Featherman Fraser, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. RIF10001201)
OPINION
APPEAL from the Superior Court of Riverside County. John V. Stroud, Judge. (Retired judge of the Sacramento Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part; reversed in part with directions.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez, and Annie Featherman Fraser, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Carlos Donniellie Spencer (defendant) was convicted of one count of conspiracy to bring marijuana into a prison, in violation of Penal Code section 4573; of one count of conspiracy to communicate with a prisoner, in violation of section 4570; and of one count of bringing marijuana into a prison, in violation of section 4573. He contends that there is insufficient evidence to support his convictions on all three counts. We agree as to count 2, conspiracy to violate section 4570. We will reverse the judgment as to that count and will otherwise affirm.
All statutory citations refer to the Penal Code unless another code is specified.
PROCEDURAL HISTORY
Defendant was charged with conspiracy to bring or send marijuana into a state prison (§§ 182/4573; count 1); conspiracy to communicate with a prisoner in a state prison without authorization (§§ 182/4570; count 2); and bringing or sending marijuana into a state prison (§ 4573; count 3). A jury found him guilty on all offenses as charged.
A fourth offense, transporting more than 28.5 grams of marijuana in violation of Health and Safety Code section 11360, subdivision (a), was dismissed on motion of the prosecutor when testing demonstrated that the marijuana weighed less than 28.5 grams.
The court granted formal probation for a period of 36 months. Defendant filed a timely notice of appeal.
FACTS
At approximately 4:45 or 5:00 a.m. on March 1, 2010, Cesar Ochoa, a corrections officer at California Rehabilitation Center (CRC), a state prison in Norco, saw a car stop on the road adjacent to the prison's perimeter fence. Ochoa saw someone get out of the car and throw two packages over the fence. The person got back into the car and the car left. The two packages landed near dormitories 205 and 206. Correctional Officer Eduardo Gonzalez retrieved the items which were thrown over the fence. The items were leather footballs wrapped in black tape. The footballs contained marijuana, cell phones and tobacco.
The following day, at 3:00 a.m., Ochoa again saw a car parked near the prison perimeter fence. Looking through binoculars, Ochoa saw someone throw what appeared to be a large green package over the fence. The package landed near dormitories 205 and 206. Ochoa called Sergeant Lugo, an investigative officer, on the intercom and alerted him. Lugo pursued the vehicle and called the Riverside County Sheriff's Department for backup. He stopped the vehicle because the driver was swerving and driving erratically. The driver was Gayle Varela Washington, who was married to Antonio Washington, an inmate at CRC who was housed in dormitory 205. The passenger in the car was defendant. On the dusty hood of the car was a diagram showing the area between dormitories 204 and 205, as well as the roadway adjacent to the prison. Inside the car, there was a strong odor of fresh (i.e., not burnt) marijuana.
Officer Gonzalez retrieved two footballs wrapped in green tape from the yard near dormitories 205 and 206. He delivered them to Sheriff's Deputy Howell. The footballs had a distinct odor of marijuana emanating from them. Howell cut the footballs open and found that they contained cell phones and accessories such as earphones and chargers, as well as rolling papers, tobacco and 25.31 grams of marijuana.
No marijuana was found inside the passenger compartment of the car. There was some marijuana in Washington's purse, which was in the trunk. Washington's purse also contained a yellow notepad with instructions as to where and how to do the drop off and with inmate Washington's housing address.
Marijuana, cell phones and tobacco are all prohibited inside a prison. All three items sell for a much higher price inside a prison than they do on the outside.
After being read his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436, defendant told Howell that a friend, Victor Serrano, whom he had known since Serrano was 12 or 13 years old, had recently been released from custody. Serrano told defendant that he was in trouble, that if some items were not delivered to the prison, he would be harmed. He asked defendant to toss some packages over the prison wall. He told defendant that the packages would contain cell phones and tobacco. He asked defendant to meet an unidentified female in Escondido and go to the prison. Defendant admitted that he had thrown the packages over the prison fence. Defendant denied having prepared the packages; he said that they were already prepared when Washington picked him up. He denied knowing that they contained anything but cell phones and cigarettes.
An investigator for the defense testified that Victor Serrano, who was then incarcerated in San Diego County, told him that he went with Washington on the first occasion and attempted to throw the footballs into the prison. He was unable to throw them far enough, and they landed between the two perimeter fences. He said that he was told that the footballs contained cell phones and tobacco; he denied that Washington mentioned marijuana. Serrano said that the following day, he was asked to make another attempt. He went to defendant's home to ask for help. He spoke to defendant and defendant's brother Marvin Spencer. Marvin Spencer refused to become involved, but defendant agreed. Serrano told defendant that the footballs would contain cell phones and tobacco.
Marvin Spencer testified that he and his family had known Serrano since Serrano was a child. He and his brother knew that Serrano had been using drugs off and on for a couple of years and that he was a heavy drug user. Serrano told him he was in trouble with some people he knew in prison and needed help in delivering some footballs to the prison. He told Marvin that the footballs would contain only cell phones and cigarettes. However, it crossed Marvin's mind that there might be some dope in the footballs. Marvin refused to help. Serrano asked defendant to help him. Defendant repeatedly asked him what would be inside the footballs, and Serrano assured him that they would contain only cell phones and cigarettes.
LEGAL ANALYSIS
1.
DEFENDANT'S CONVICTION FOR CONSPIRACY TO VIOLATE SECTION
4570 IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE
Section 4570 provides "Every person who, without the permission of the warden or other officer in charge of any State prison . . . communicates with any prisoner or person detained therein, or brings therein or takes therefrom any letter, writing, literature, or reading matter to or from any prisoner or person confined therein, is guilty of a misdemeanor." Defendant contends that section 4570 prohibits only actual unauthorized communication with a prisoner and that providing a means of facilitating possible communication is not a violation of section 4570. He asserts that because "throwing cell phones into a prison yard is not 'communication' with a prisoner," his conviction for conspiracy to violate section 4570 is not supported by substantial evidence as a matter of law.
Interpretation of a statute is a question of law which we decide independently. (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432.) In construing a statute, our purpose is to determine the intent of the Legislature and effectuate the purpose of the law. To do so, we look first to the words of the statute because they are the most reliable indicator of legislative intent. (People v. Brookfield (2009) 47 Cal.4th 583, 592.) We construe the words in context, keeping in mind the nature and the purpose of the statute. (Ibid.)If the language is unambiguous, we do not resort to any extrinsic source to determine the Legislature's intent. (People v. Traylor (2009) 46 Cal.4th 1205, 1212.)
The language of section 4570 is unambiguous; it prohibits unauthorized "communicat[ion] with any prisoner" or bringing to or taking from any prisoner "any letter, writing, literature, or reading matter." It does not prohibit providing a means by which communication with an inmate can be achieved; as defendant points out, it does not prohibit providing pens or paper but prohibits only actual communications. Accordingly, unless the cell phones concealed in the footballs contained voice messages, text messages or photographs intended as communication with an inmate—and there was no evidence that they did—the act of providing cell phones to an inmate does not come within the unambiguous terms of the statute.
Although the act of providing cell phones does not, in and of itself, violate section 4570, however, defendant could nevertheless be convicted of conspiring to violate section 4570 if, as the Attorney General asserts, there is substantial evidence that the objective of the conspiracy was not merely to provide cell phones to an inmate but to use the cell phones to communicate with an inmate. If so, the act of throwing the cell phones over the prison fence was merely an overt act in furtherance of that objective.
Defendant argues that the cell phones were "most likely provided to sell," rather than to facilitate communication between Washington and her husband, as the prosecution asserted. The Attorney General responds that it is reasonable to infer that Washington intended to use the cell phones to communicate with her husband. She contends that because the evidence supports that inference, we must conclude that substantial evidence supports the verdict.
The Attorney General is correct that we must view the evidence in the light most favorable to the prosecution and presume in support of the judgment every fact the trier of fact could reasonably infer from the evidence. (People v. Guerra (2006) 37 Cal.4th 1067, 1129.) However, even if the evidence permits this inference as to Washington's intent, this is not sufficient to support the conviction. A conviction for conspiracy requires "proof that the defendant and another person had the specific intent to agree or conspire to commit an offense, as well as the specific intent to commit the elements of that offense, together with proof of the commission of an overt act [by one of the parties to the agreement] in furtherance of the conspiracy."(People v. Morante (1999) 20 Cal.4th 403, 416.) Accordingly, to support defendant's conviction for conspiracy to violate section 4570, there must be substantial evidence that he entered into the agreement with the specific intent of communicating with an inmate, or of assisting Washington in doing so; it is not enough that the evidence supported the inference that Washington acted with that intent. Even viewed in the light most favorable to the prosecution, the evidence shows only that defendant agreed to deliver the cell phones into the prison. It does not show that he had any knowledge as to Washington's reason for doing so or that he had any intent to achieve any objective beyond the mere delivery of the items. Consequently, his conviction for conspiring to violate section 4570 must be reversed.
Defendant filed a request that we take judicial notice of the legislative history of proposed bills which, he asserts, establish that it is not a crime to provide cell phones to an inmate. We do not find this material relevant to the issue before us, and we therefore decline the request. (See In re Nolan W. (2009) 45 Cal.4th 1217, 1227, fn. 3.)
2.
SUBSTANTIAL EVIDENCE SUPPORTS THE CONVICTION ON COUNT 1
Defendant contends that his conviction on count 1, for conspiracy to bring or send marijuana into a prison, is not supported by substantial evidence. He contends that there is no evidence that he knew that the footballs contained marijuana at the time he agreed with Serrano to assist in delivering the footballs into the prison. However, viewing the evidence in the light most favorable to the verdict, and indulging every inference a rational trier of fact could draw from the evidence (People v. Guerra, supra, 37 Cal.4th at p. 1129), we must conclude that there is substantial evidence which supports the inference that defendant conspired to deliver marijuana into the prison.
We are mindful that it is not our function to determine whether the evidence supports a finding of guilt beyond a reasonable doubt. Rather, our function is merely to determine whether any rational trier of fact could have made that determination based on the evidence before it. (People v. Mincey (1992) 2 Cal.4th 408, 432.)
Defendant focuses on the agreement between himself and Serrano as the conspiracy. He contends that unless there is evidence that he knew at the time he agreed with Serrano to deliver the footballs that they would contain marijuana, he cannot be liable as a conspirator. However, the information alleges that defendant and Washington conspired "together and with another person" or persons to deliver marijuana into the prison. There was evidence that a strong odor of marijuana emanated not only from Washington's car but also from the footballs, even before they were cut open. This is circumstantial evidence from which a rational trier of fact could infer that even if defendant did not originally know that the footballs would contain marijuana, he knew it by the time he arrived at the prison, and that he agreed with Washington to proceed with the plan. Proof of a conspiracy does not require evidence of an express or explicit agreement to commit the target offense; circumstantial evidence of a tacit agreement suffices. (People v. Vu (2006) 143 Cal.App.4th 1009, 1024-1025.) And, although there was no direct evidence that defendant was familiar with the smell of marijuana, there was some circumstantial evidence which supports the inference that he was familiar with it. His brother Marvin testified that he, defendant and Serrano used to perform rap music in clubs. He denied that marijuana was present during those shows. However, jurors could have inferred otherwise, if they determined that Marvin's demeanor or body language indicated that his denial was not truthful.
"The cold record cannot give the look or manner of the witnesses; their hesitations, their doubts, their variations of language, their precipitancy, their calmness or consideration. A witness may convince all who hear him testify that he is disingenuous and untruthful, and yet his testimony, when read, may convey a most favorable impression. Did plaintiff and her mother testify with the conviction and assurance compatible with truthfulness; or did either of them give testimony haltingly as though laboring under the handicap of apprehension and uncertainty or did either of them give it glibly as though a tale learned by rote for the purposes of the courtroom? These are questions which can only be answered by the trier of fact. The court having seen and heard the parties may well have concluded that there was collusion; that the plaintiff's testimony was a fabric of fancy and exaggeration woven to lift her from bonds now distasteful; and that the testimony of plaintiff's mother was a recital of rehearsed evidence." (Maslow v. Maslow (1953) 117 Cal.App.2d 237, 243, disapproved on other grounds in Liodas v. Sahadi (1977) 19 Cal.3d 278, 287.)
3.
INSTRUCTIONAL ERROR AS TO COUNT 3 WAS NOT PREJUDICIAL
In count 3, defendant was charged with sending a controlled substance, i.e., marijuana, into a prison. The court instructed the jury on the theory that defendant sent the marijuana into the prison, with knowledge of its presence and with knowledge that it was a controlled substance, and was thus a direct perpetrator of the offense. It also instructed the jury that if it found defendant guilty of conspiracy to violate section 4570, it could find him guilty on count 3 if it found that sending marijuana into the prison was a natural and probable consequence of the conspiracy to communicate with a prisoner.
Defendant contends, among other things, that it was error to instruct on the natural and probable consequences theory because there was no evidence that he conspired to communicate with a prisoner. We agree, as discussed above, that the evidence was insufficient to prove such a conspiracy. Accordingly, there was no factual basis for the natural and probable consequences instruction.
It is error to instruct on a legal theory which is not supported by the evidence. (People v. Guiton (1993) 4 Cal.4th 1116, 1129.) The giving of a legally correct but factually inapposite instruction requires reversal if, based on the entire record, "including the facts and the instructions, the arguments of counsel, any communications from the jury during deliberations, and the entire verdict," "affirmatively demonstrates a reasonable probability that the jury in fact found the defendant guilty solely on the unsupported theory." (Id. at p. 1130; accord, People v. Perez (2005) 35 Cal.4th 1219, 1233.) Here, although there is some indication that the jury may have relied on the natural and probable consequences theory to find defendant guilty on count 3, we conclude that the record as a whole belies that assertion.
A principal contested issue in the case was whether defendant knew, at the time he threw the footballs into the prison yard, that the contents included marijuana or any other controlled substance. There was no direct evidence that he did know, and in his argument, the prosecutor relied in the alternative on the natural and probable consequences theory.
On the morning of the second day of deliberations, the jury sent the court the following question: "Regarding Count 3, on the 2nd point the People must prove: 'The defendant knew of the substance's presence.' And Calcrim 400 Aiding and Abetting[:] Does aiding and abetting establish guilt even without the defendant's knowledge of the substance's presence?" As the court and counsel discussed the appropriate response to the question, the bailiff informed the court that the jury had "just left for half an hour and just came back." When the court asked why the jury had not continued to deliberate, the bailiff replied, "They said they couldn't continue without the answer to this." The jury returned from lunch at approximately 1:00 p.m. and received the court's answer, which stated that defendant could be found guilty on an aiding and abetting theory without knowledge of the presence of a controlled substance. The jury informed the court at 1:30 that it had reached verdicts. While under some circumstances this sequence of events might be sufficient to demonstrate a reasonable probability that at least some jurors were not convinced that defendant had actual knowledge of the presence of a controlled substance inside the footballs and that the conviction on count 3 was based on the natural and probable consequences theory, this conclusion cannot be reconciled with the jury's finding that defendant conspired to send marijuana into the prison. As we have previously discussed, conspiracy requires the specific intent to commit or facilitate the commission of the target offense. (People v. Morante, supra, 20 Cal.4th at p. 416.) A finding that defendant had the specific intent to deliver marijuana into the prison necessarily requires the finding that he knew the footballs contained marijuana. Consequently, we see no reasonable probability that the jury relied solely on the natural and probable consequences theory to convict defendant on count 3.
DISPOSITION
The judgment is reversed as to count 2, conspiracy to violate Penal Code section 4570. Reversal of a conviction for insufficient evidence is the equivalent of an acquittal, and double jeopardy bars retrial. (Burks v. United States (1978) 437 U.S. 1, 10-11, 18.) Accordingly, the trial court is directed to enter a judgment of acquittal as to count 2.
The judgment is otherwise affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKinster
Acting P.J.
We concur:
King
J.
Miller
J.