Opinion
No. C049959.
March 11, 2008. [CERTIFIED FOR PARTIAL PUBLICATION ]
Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for publication with the exception of parts I, II, III, IV, V, VII, VIII, IX, X, and XI.
Appeal from the Superior Court of Sacramento County, No. 03F00833, Richard H. Gilmour, Judge.
Marilyn G. Burkhardt, under appointment by the Court of Appeal, for Defendant and Appellant Jason Tolliver.
Jerald W. Newton and Terrence A. Roden for Defendant and Appellant Antonio Villasenor.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Dane R. Gillette and Mary Jo Graves, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, J. Robert Jibson and Jesse Witt, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Defendants Jason Tolliver and Antonio Villasenor were involved in a large-scale drug trafficking enterprise. Convicted by jury and sentenced to state prison, they each appeal. In the published portion of this opinion, we conclude that Villasenor did not have a legitimate privacy interest in his vehicle because he disassociated himself from the vehicle to avoid having it connected to him in the event it was stopped during its use in the drug trafficking, In the unpublished portion of this opinion, we find no merit in Villasenor's remaining contentions. As to Tolliver, however, we conclude, also in the unpublished portion of the opinion, that his sentence must be reversed and the matter remanded for a new trial concerning whether one of his prior convictions was for a serious felony.
PROCEDURE
By indictment and later amendments to the indictment, Tolliver and Villasenor were charged, along with 13 others. The counts applicable to Tolliver and Villasenor were as follows:
— Count one (Tolliver and Villasenor), conspiracy to transport cocaine between noncontiguous counties (Health Saf. Code, § 11352, subd. (b); Pen. Code, § 182, subd. (a)(1)), with the following additional allegations: (1) the offense involved more than 40 kilograms of cocaine (Health Saf. Code, § 11370.4, subd. (a)(5)); (2) Villasenor and Tolliver were substantially involved in the planning, direction, execution or financing of the underlying offense (Health Saf. Code, § 11370.4, subd. (a)); (3) a principal was armed with a firearm during the commission of the offense (Pen. Code, § 12022, subd. (a)(1)); (4) Villasenor induced others to participate in the offense or occupied a position of leadership in its commission (Cal. Rules of Court, rule 4.421(a)(4));
— Count two (Villasenor), conspiracy to use a minor to transport cocaine (Health Saf. Code, § 11353, subd. (b); Pen. Code, § 182, subd. (a)(1));
— Count four (Tolliver and Villasenor), conspiracy to transport and sell cocaine (Health Saf. Code, § 11352, subd. (a); Pen. Code, § 182, subd. (a)(1)), with the additional allegation that a principal was armed during the commission of the offense (Pen. Code, § 12022, subd. (a)(1));
— Count five (Tolliver and Villasenor), conspiracy to transport and sell methamphetamine (Health Saf. Code, § 11379, subd. (a); Pen. Code, § 182, subd. (a)(1)), with the additional allegation that a principal was armed during the commission of the offense (Pen. Code, § 12022, subd. (a)(1));
— Count six (Tolliver and Villasenor), sale of methamphetamine (Health Saf. Code, § 11379, subd. (a));
— Count eight (Villasenor), sale of cocaine (Health Saf. Code, § 11352, subd. (a));
— Count eleven (Villasenor), possession of a false compartment to conceal a controlled substance (Health Saf. Code, § 11366.8, subd. (a));
— Count twelve (Villasenor), possession of a false compartment to conceal a controlled substance (Health Saf. Code, § 11366.8, subd. (a));
— Count thirteen (Tolliver), possession of methamphetamine for sale (Health Saf. Code, § 11378), with an additional allegation that he possessed the methamphetamine in crystalline form (Pen. Code, § 1170.74); and
— Count fourteen (Tolliver), possession of cocaine (Health Saf. Code, § 11350, subd. (a)).
An amendment to the indictment further alleged that Tolliver was convicted of two prior serious felonies: a 1992 conviction for brandishing a firearm against a person in a motor vehicle and a 1992 conviction for assault with a firearm.
A jury found Tolliver guilty on counts four, five, six, thirteen, and fourteen. It found true the allegation that he possessed methamphetamine in crystalline form, but found not true the arming allegations. The jury was unable to reach a verdict on count one, as to which the trial court declared a mistrial and later dismissed on the prosecution's motion. The jury found that Tolliver had two prior convictions, and the court found that those prior convictions were for serious felonies.
The same jury found Villasenor guilty on all counts alleged against him except count six, on which the jury found Villasenor not guilty. The jury also found true all of the additional allegations relating to Villasenor.
At Tolliver's sentencing, the court granted Tolliver's motion to strike the prior serious felony findings as they related to counts four, five, thirteen, and fourteen. But the court denied the motion as to count six. It sentenced Tolliver to 25 years to life in state prison on count six and a middle term of two years, consecutive, on count thirteen. The terms for the remaining counts were imposed as concurrent terms, giving Tolliver a total determinate term of two years and an indeterminate term of 25 years to life in state prison.
At Villasenor's sentencing, the trial court imposed the upper term of nine years for count one, plus consecutive 20-year and one-year terms for the weight and arming enhancements, respectively. The court imposed the middle term for each of the remaining counts and either stayed the term pursuant to Penal Code section 644 or made the term concurrent to the term imposed for count one. Villasenor's total determinate term was 30 years.
FACTUAL BACKGROUND
Because of the nature of defendants' contentions on appeal, it is unnecessary to recount the details of the two-year investigation of the crimes. We therefore provide only a brief summary of the illegal activities in which Tolliver and Villasenor engaged and add details, as needed, in the discussion of their contentions on appeal.
An investigation conducted by a multiagency task force uncovered a large drug-trafficking operation that, among other illegal activities, sought to transport large quantities of cocaine from Texas to Sacramento. Using numerous investigative techniques, such as informants, searches, visual surveillance, and wiretapping, the investigators were able to identify Tolliver and Villasenor as participants in the illegal activities. Villasenor, along with John Quintero, was at the head of the organization, while Tolliver distributed controlled substances.
In early 2002, the investigation revealed trips between Texas and Sacramento on behalf of the trafficking operation. Jesse Vasquez, who worked under Villasenor in the organization, sent Sandra Cortez, a load car driver from Sacramento, on two trips to Texas and back. After Cortez's trips, Vasquez sent Joseph Duarte, another load car driver, to Texas in a Chrysler Concorde that had a false compartment installed in the trunk. While waiting in Texas for the directive to return to Sacramento, Duarte got cold feet and returned to Sacramento, leaving the Concorde in Texas. Other recruits took over and started the trip back to Sacramento in the Concorde and a red Jaguar that Cortez had used on her trips.
On May 16, 2002, the investigators, who had tracked the Concorde as it traveled, arranged for law enforcement in Texas to stop the Concorde and Jaguar. The resulting search revealed about 49 kilograms cocaine stashed in the false compartment of the Concorde. On the same day, Villasenor's home was searched, as well as a vehicle in his driveway. A firearm was found in the vehicle. Tolliver's residence was also searched that day, and a significant amount of methamphetamine was found.
See footnote, ante, page 1231.
I
True Finding Concerning Tolliver's Prior Strike
Considering the record of Tolliver's prior conviction, the trial court determined that his 1992 felony conviction for drawing or exhibiting a firearm in the presence of a motor vehicle occupant (Pen. Code, § 417.3) was a serious felony for the purpose of Three Strikes sentencing (§§ 667, subds. (b)-(i); 1170.12) because the record showed Tolliver personally used a firearm to commit that crime (§ 1192.7, subd. (c)(8)). The court sentenced Tolliver to a term of 25 years to life for sale of methamphetamine because of its determination that he had two prior strikes, relying on the two 1992 convictions (assault with a firearm (§ 245, subd. (a)(2)) and drawing or exhibiting a firearm in the presence of a motor vehicle occupant (§ 417.3)). Tolliver's contentions are limited to whether the use of his 1992 conviction for drawing or exhibiting a firearm in the presence of a motor vehicle occupant as a strike was proper. Based on a case decided after Tolliver's sentencing ( People v. Trujillo (2006) 40 Cal.4th 165 ( Trujillo)), we conclude that the trial court erred and therefore reverse Tolliver's sentence and remand for a new hearing concerning whether the prior conviction is a serious felony. Drawing or exhibiting a firearm in the presence of a motor vehicle occupant, a violation of section 417.3, is not included in the list of serious felonies in section 1192.7, subdivision (c), relevant to Three Strikes sentencing. However, any felony "in which the defendant personally uses a firearm" (§ 1192.7, subd. (c)(8)) qualifies as a serious felony, which makes a violation of section 417.3 a serious felony if the person personally uses the firearm. A violation of section 417.3 can be committed as an aider and abettor without personally using a firearm. Therefore, it is not a serious felony, for purposes of Three Strikes sentencing, unless the trial court in the current proceeding makes a finding that the defendant personally used a firearm in committing the prior crime. A jury trial was held on the question of whether Tolliver had two prior convictions. The jury found the prior conviction allegations true. However, this did not resolve the question of whether the violation of section 417.3 was a serious felony because it did not resolve the question of whether he personally used a firearm. That question was submitted to the court in a bench trial. During the bench trial of the allegation that Tolliver personally used a firearm in committing the prior crime, the prosecutor submitted (1) the complaint charging Tolliver with a violation of section 417.3, (2) a minute order showing his guilty plea to that charge, (3) a probation report and a supplemental probation report both prepared after Tolliver pled guilty, and (4) minute orders showing Tolliver was granted probation. The complaint filed in the prior proceeding alleged, as the only count, that Tolliver "was a person who, not in self-defense, in the presence of another person, to wit, Michael Leary, who was an occupant of a motor vehicle on a public street and highway, did willfully and unlawfully draw and exhibit a firearm, whether loaded or unloaded, in a threatening manner which would cause a reasonable person apprehension and fear of bodily harm." This language, though not identical to the statute, tracked the language of the statute closely. The minute order recounted that Tolliver pled guilty to "Ct 1 — 417.3 PC." We interpret this, in context, to mean that Tolliver pled guilty to a violation of section 417.3 as alleged in count one, the only count in the complaint. The probation report, prepared and filed after Tolliver pled guilty in the section 417.3 prosecution, contained the following two excerpts about statements attributed to Tolliver: 1. "Upon being Mirandized and confronted with the information, the defendant admittedly denied [ sic] pointing a gun at the off duty deputy, stating he had strictly pointed a 'bottle' at him. However, after being advised that the gun had been found, he admitted that the gun belonged to him and that he had bought it earlier for $100.00. However, he denied pointing it at the victim." 2. "When questioned as to the brandishing charge, the defendant admitted [to the probation officer] he had brandished a weapon at what turned out to be an off duty officer." Citing People v. Monreal (1997) 52 Cal.App.4th 670 ( Monreal), the trial court stated that it was considering the probation report as part of the record of conviction for the purpose of determining whether Tolliver personally used a firearm in violating section 417.3. Noting that Tolliver was charged with and convicted of brandishing a firearm, the court reasoned that Tolliver's statement that what he pointed at the victim was a bottle was "relatively irrelevant because he pled to the charge." Responding to defense counsel's argument that Tolliver could have been convicted of the section 417.3 violation based on an aiding and abetting theory, the court stated: "There is absolutely nothing in any of this documentation which would indicate that he is saying, 'It wasn't me, it was somebody else.' He's the one that's charged with doing it. He's the one that got convicted of it." Referring to Tolliver's post-plea admission to the probation officer, the trial court noted: "In this thing [the section 417.3 prosecution] he admitted he brandished a weapon. And it sounds to me like he changed his story from bottle to weapon. And I think it's the only legitimate inference that I can draw, is that he is guilty of what he pled to, firearm." Later, the court concluded: "I think the documentation through the probation report proves beyond a reasonable doubt that he got convicted of a 417.3 with personal use of a firearm."
Hereafter, unspecified code citations are to the Penal Code.
Tolliver raises no issue concerning the finding that his 1992 conviction for assault with a firearm was a strike for purposes of Three Strikes sentencing.
Section 417.3 provides: "Every person who, except in self-defense, in the presence of any other person who is an occupant of a motor vehicle proceeding on a public street or highway, draws or exhibits any firearm, whether loaded or unloaded, in a threatening manner against another person in such a way as to cause a reasonable person apprehension or fear of bodily harm is guilty of a felony. . . ."
At the hearing to determine whether the prior conviction was for a serious felony, Tolliver proffered a supplemental probation report from the section 417.3 case in which Tolliver complained to the probation officer that he was being blamed for something he did not do. The trial court agreed to consider the statement. On appeal, Tolliver makes no argument with respect to this statement.
II Jury Trial Right
Tolliver contends the trial court violated his Sixth and Fourteenth Amendment rights by not affording him a jury trial and full due process protections in the trial on whether his prior conviction for a violation of section 417.3 was a conviction for a serious felony. For this proposition, he cites Apprendi v. New Jersey (2000) 530 U.S. 466 [ 147 L.Ed.2d 435]. As Tolliver recognizes, however, the California Supreme Court rejected this proposition in People v. McGee (2006) 38 Cal.4th 682, at pages 686 and 687, as do we.
III Use of Probation Report to Make Prior Strike Finding
With respect to the strike finding, Tolliver contends that the trial court erred by relying on his post-plea statement found in the probation report. We agree because the statement was not part of the record of conviction, and we further conclude that the error was not harmless. A. Attorney General's Forfeiture Argument The Attorney General asserts that Tolliver failed to preserve for appeal the issue of whether the trial court erred when it used Tolliver's statements in the probation report to support its finding that his prior conviction for violation of section 417.3 was a serious felony for the purpose of Three Strikes sentencing. We conclude that, even though Tolliver did not object on the grounds later discussed in Trujillo, he can raise the issue on appeal because (1) Trujillo was decided after the hearing on Tolliver's prior convictions and (2) an objection to use of Tolliver's statements in the probation report would have been futile. Trujillo was decided in December 2006, long after the February 2005 hearing on Tolliver's prior convictions. It overruled Monreal, which held that a defendant's post-conviction statements to a probation officer, as reflected in the probation report, were admissible in determining whether the prior conviction was for a serious felony. Therefore, the law binding on the trial court at the time of the hearing was as stated in Monreal. Any attempt to have the trial court apply the law as later announced in Trujillo would have been futile. The trial court noted Monreal by name and stated that Tolliver's admissions in the probation report were admissible on the subject of whether the section 417.3 conviction was a serious felony. The trial court was bound by Monreal and so recognized. The Attorney General argues that Tolliver had to object to the trial court's use of his admissions in the probation report even though the objection would have been futile. We disagree. If the record is clear that the trial court would not have been persuaded by a timely and specific objection, there is no need to object before raising the issue on appeal. ( People v. Welch (1993) 5 Cal.4th 228, 237-238 [no objection required when it would be futile or contrary to existing law].) Here, the trial court had already stated its determination to rely on existing law. Accordingly, the futility of objecting excused Tolliver from the requirement that he object to preserve the issue for consideration on appeal. B. Error in Considering Post-plea Admission At the time the trial court sentenced Tolliver, Monreal was authority for the proposition that a trial court could use a defendant's admissions found in the probation report related to the prior case to determine whether a prior crime was a strike. In Monreal, the court concluded that the probation report is part of the "record of conviction" from which the later court can determine whether the crime qualified as a strike. Although the hearsay rule precludes use of much of the probation report, "the probation report of defendant's admissions to the probation officer qualifies both as part of the record of conviction and as admissible hearsay. . . ." ( Monreal, supra, 52 Cal.App.4th at p. 680.) As noted above, the trial court in this case relied on Monreal for its use of Tolliver's admissions in determining that the prior section 417.3 violation was a serious felony because Tolliver personally used a firearm. After Tolliver's sentencing, the Supreme Court disapproved Monreal in Trujillo. ( Trujillo, supra, 40 Cal.4th at p. 181, fn. 3.) The new rule, as stated in Trujillo, is "that a defendant's statements, made after a defendant's plea of guilty has been accepted, that appear in a probation officer's report prepared after the guilty plea has been accepted are not part of the record of the prior conviction, because such statements do not 'reflect? the facts of the offense for which the defendant was convicted.' [Citation.]" ( Id. at p. 179.) In this case, two admissions by Tolliver appeared in the probation report associated with the section 417.3 conviction: (1) his statement to the police officer that he pointed a bottle, even if the firearm the officer found admittedly belonged to Tolliver, and (2) his statement to the probation officer that he brandished a weapon at the victim. The holding in Trujillo does not apply to the first statement because it was made to a police officer before Tolliver pled guilty. On the other hand, Trujillo makes the use of the second statement error because the statement was made "after [Tolliver's] plea of guilty ha[d] been accepted." ( Trujillo, supra, 40 Cal.4th at p. 179.) Therefore, even though the trial court followed established law when it used the second statement to find that Tolliver's violation of section 417.3 was a serious felony, such use was error. C. Prejudice Analysis The trial court properly relied on established precedent when it used Tolliver's post-plea admission from the probation report when it found true the allegation that Tolliver personally used a firearm in violating section 417.3. However, after-acquired wisdom of the California Supreme Court teaches that use of this admission was error because it was not part of the record of the prior conviction. ( Trujillo, supra, 40 Cal.4th at p. 179.) We must therefore determine whether the trial court's error was prejudicial. (Cal. Const., art. VI, § 13.) We review this evidentiary error "under the standard stated in People v. Watson (1956) 46 Cal.2d 818, 836." ( People v. Reed (1996) 13 Cal.4th 217, 231 [applying Watson standard when trial court considered inadmissible hearsay in finding prior strike].) Under the Watson standard, we must determine whether it is "reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." ( People v. Watson, supra, at p. 836.) Here, it is reasonably probable that a result more favorable to Tolliver would have been reached if the trial court had disregarded Tolliver's post-plea statement. The court noted that Tolliver's statement was an admission that he brandished a weapon. The court concluded: "I think the documentation through the probation report proves beyond a reasonable doubt that he got convicted of a 417.3 with personal use of a firearm." In light of the trial court's explicit reliance on the inadmissible statement, we conclude the finding must be reversed and remanded for a new trial in which the statement is not considered as evidence.
Tolliver states that " Trujillo may not apply to the first statement," and he makes no argument in favor of applying Trujillo to that statement.
IV Sufficiency of Evidence
Tolliver contends that the evidence was insufficient to sustain the finding that the 1992 conviction for violation of section 417.3 was a conviction for a serious felony. We need not address this contention because, even if the evidence presented by the prosecution was insufficient to sustain the finding that Tolliver's prior conviction was for a serious felony, that does not prevent retrial of the strike allegation. (See Monge v. California (1998) 524 U.S. 721, 734 [ 141 L.Ed.2d 615, 627-628] [U.S. Constitution]; People v. Barragan (2004) 32 Cal.4th 236, 241-242 [California Constitution].)
V Right to Testify
Tolliver argues that the trial court violated his due process rights by not allowing him to testify at the hearing concerning the prior strike. Although we remand for a new hearing, which renders moot this due process argument, we will resolve the contention for the guidance of the court on remand. Concerning his assertion that the trial court prevented him from testifying, Tolliver relies on a Ninth Circuit case, Gill v. Ayers (9th Cir. 2003) 342 F.3d 911 ( Gill). We conclude that Gill is not binding on the California courts (see People v. Crittenden (1994) 9 Cal.4th 83, 120, fn. 3 [California courts not bound by decisions of lower federal courts]) and is inconsistent with binding California precedent. (See People v. Guerrero (1988) 44 Cal.3d 343, 355 ( Guerrero).) The parties and the trial court discussed what evidence would be admitted during the sentencing hearing on the issue of whether the prior section 417.3 violation was a serious felony. That discussion was not reported. It spilled out, however, into the reported proceedings. The trial court opined that, although Tolliver could testify before the court concerning whether the record of conviction showed personal use of a firearm, he could not go behind the conviction and testify concerning the facts of the offense. The court stated: "And I suppose the defendant could testify to me, 'But the documents don't say that.' But other than that — because the lawyer can do that. So as far as I'm concerned, the defendant would not be allowed — it wouldn't be relevant for him to say, 'I don't care what I pled to, I don't care what the documents show. The truth of the matter is, I never did use a firearm personally.' That, in my opinion, would be more properly a matter of habeas corpus." In determining whether a prior conviction was for a serious felony, the trial court may look to the record of conviction, but no further. ( Guerrero, supra, 44 Cal.3d at p. 355.) Therefore, a defendant is not permitted to testify concerning the facts of the offense at the hearing to determine whether a prior conviction was for a serious felony. We are bound by Guerrero. ( Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) In Gill, the Ninth Circuit granted habeas corpus relief to a prisoner who had been denied the opportunity to testify in his own defense at his Three Strikes sentencing hearing. The defendant received a longer sentence under the Three Strikes law after the trial court found that a prior conviction for assault with a deadly weapon was a serious felony because the defendant had personally used a deadly weapon. The court based this determination on a jury verdict finding the defendant guilty and the defendant's admissions recorded in the probation report. "The [sentencing] court denied Gill's request to testify to explain his reasons for making the statements and to assert that he did not personally use the baseball bat as a deadly weapon." ( Gill, supra, 342 F.3d at pp. 915-916.) The Court of Appeal affirmed, and the Supreme Court denied review. The federal district court denied the defendant's petition for writ of habeas corpus, but the Ninth Circuit, by a two-to-one vote, reversed. ( Id. at pp. 916-917, 922.) Basing its decision on the defendant's contention that, had he been allowed to testify, he "would have established that he did not personally use a deadly weapon" ( Gill, supra, at p. 917), the Gill majority concluded that denying the defendant the opportunity to testify at his sentencing hearing violated his due process rights. ( Id. at p. 921.) While finding that the exclusion of the defendant's testimony was a denial of due process, the court acknowledged that a defendant's right to testify is not unfettered. It stated: "Although the Court has recognized that a defendant's right to testify may be restricted, 'restrictions of a defendant's right to testify may not be arbitrary or disproportionate to the purposes they are designed to serve. In applying its evidentiary rules a State must evaluate whether the interests served by a rule justify the limitation imposed on the defendant's constitutional right to testify.' [Citation.]" ( Id. at pp. 919-920.) California courts "are not bound by decisions of the lower federal courts, even on federal questions. [Citations.]" ( People v. Crittenden, supra, 9 Cal.4th at p. 120, fn. 3.) Since we are bound by Guerrero, the Ninth Circuit's holding in Gill is unhelpful to Tolliver and does not require the trial court to allow him to testify concerning the circumstances of the prior crime.
Later, the trial court may have equivocated: "Now, [Tolliver] could have gotten in here and said, 'The only reason I pled guilty, they gave me such a great deal. I didn't do anything. I wasn't even there.'" The record is unclear whether it was in the context of (1) talking to the probation officer or (2) testifying in the sentencing hearing that the trial court was referring to Tolliver's ability to deny personal use. Resolving this ambiguity is unnecessary to our analysis.
Tolliver asserts that (1) his pre-plea statement (concerning brandishing a bottle) should not have been admitted and (2) his confrontation rights were violated. We do not consider these contentions, which are rendered moot by our reversal of the sentence.
VI Privacy Interest in Concorde
Villasenor moved to suppress evidence obtained as a result of law enforcement's seizure of his 1993 Chrysler Concorde and installation of a GPS tracking device and subsequent tracking of the Concorde. The trial court denied the motion. It concluded that Villasenor did not have a reasonable expectation of privacy in the Concorde because he disassociated himself from the Concorde to avoid having it connected to him in the event it was discovered during its use in the drug trafficking. Villasenor argues, on appeal, that the trial court's denial of the motion to suppress was error because Villasenor owned the Concorde and therefore had a privacy interest in it. We agree with the trial court that, under the circumstances of this case, Villasenor did not have a legitimate expectation of privacy in the Concorde.A. Facts and Procedure
On March 21, 2002, Villasenor sent his brother, Raymond, to Grass Valley to purchase a 1993 Chrysler Concorde that Villasenor had read about in a newspaper advertisement. He gave Raymond money, about $3,000 in cash, for the purchase. Villasenor did not sign any paperwork for the car and his name was not listed on the pink slip. Raymond's name was listed on the pink slip and the release of liability. Villasenor did not register the car with the Department of Motor Vehicles, and he did not obtain insurance under his name. He followed this procedure because he intended to use the car to transport controlled substances and he did not want the car associated with himself in any way. HJ knew that Duarte, the load car driver, would be taking the car to Texas, and he did not want the car to be associated with him if Duarte was caught and the car was searched.
Villasenor included evidence presented during trial in his discussion of this issue. When reviewing the trial court's denial of a motion to suppress, we consider only the evidence presented to the trial court in connection with that motion. ( People v. Gibbs (1971) 16 Cal.App.3d 758, 761 [94 Cri.Rptr. 458].) Therefore, we will not consider the additional trial evidence cited by Villasenoi on appeal.
Through its investigation of Villasenor's drug-related activities, the Sacramento County Sheriff's Department concluded Villasenor and his coconspirators would use the Concorde as a load car to transport controlled substances. On this basis, the trial court issued a search warrant authorizing entry into the Concorde and installation of a GPS tracking device. The warrant also authorized the tracking device to remain in place for 10 days to transmit information to law enforcement and delayed for 10 days the sheriff's department's duty to notify the owner of the search.
Villasenor sent the Concorde to an automobile body shop to have a secret compartment installed. The proprietor of the shop cooperated with the sheriff's department and provided access to the car. The tracking device was installed in the Concorde on April 11, 2002, but it was thereafter determined that the signal was too weak. On April 12, the shop proprietor drove the Concorde to a supermarket parking lot where an officer entered the car again and installed a new antenna. No new warrant was obtained for the second entry. Three times, on April 19, April 29, and May 9, the sheriff's department obtained a court order extending by 10 days the time within which law enforcement was required to notify the owner about the search. On May 16, the Concorde, having been tracked to Texas, was stopped there and controlled substances were found during a search.
Villasenor filed a motion to suppress the evidence obtained by tracking the Concorde. In support, he filed, among other things, his own declaration asserting his ownership of the Concorde. After an evidentiary hearing in which Villasenor testified, the trial court denied the motion. In doing so, the court provided an extensive analysis of the issue of standing — whether Villasenor had a legitimate expectation of privacy. Finding Villasenor had no standing, the court did not make any factual determinations or provide analysis beyond that necessary to the standing issue.
The trial court reasoned that, although Villasenor owned the car, having paid for it and never relinquished ownership, he took several steps to distance himself from the car. The purpose of this disassociation was to prevent law enforcement from determining that he was involved if the car was stopped and controlled substances were found. Because Villasenor purposefully distanced himself from the car to avoid detection, the law, according to the trial court's reasoning, does not recognize his expectation of privacy as legitimate.
B. Standard of Review
"'An appellate court's review of a trial court's ruling on a motion to suppress is governed by well-settled principles. [Citations.] [¶] In ruling on such a motion, the trial court (1) finds the historical facts, (2) selects the applicable rule of law, and (3) applies the latter to the former to determine whether the rule of law as applied to the established facts is or is not violated. [Citations.] "The [trial] court's resolution of each of these inquiries is, of course, subject to appellate review." [Citations.] [¶] The court's resolution of the first inquiry, which involves questions of fact, is reviewed under the deferential substantial-evidence standard. [Citations.] Its decision on the second, which is a pure question of law, is scrutinized under the standard of independent review. [Citations.] Finally, its ruling on the third, which is a mixed fact-law question that is however predominantly one of law, . . . is also subject to independent review.'" ( People v. Alvarez (1996) 14 Cal.4th 155, 182 [ 58 Cal.Rptr.2d 385, 926 P.2d 365].)
C. Factual Determinations
The facts were essentially undisputed, but, on appeal, Tolliver fails to recognize the reasonable inferences to be drawn from the evidence. He focuses only on the ownership aspect of the analysis. The trial court, however, agreed that Villasenor had an ownership interest and may have even had a subjective expectation of privacy. The essential facts, supported by substantial evidence and crucial to our analysis, as will be seen, are those leading to an inference that Villasenor's own actions delegitimized his privacy interest in the Concorde. As the trial court found, Villasenor's actions constituted a premeditated deceit, a design to avoid detection and prosecution for felonious conduct.
D. Legitimacy of Villasenor's Privacy Interest
To obtain suppression of evidence discovered in an unlawful search, a defendant has the burden of proving that he had a legitimate expectation of privacy. ( Rowlings v. Kentucky (1980) 448 U.S. 98, 104 [ 65 L.Ed.2d 633, 641, 100 S.Ct. 2556].) Whether the defendant had a legitimate expectation of privacy is subject to a two-part test: (1) did the defendant manifest a subjective expectation of privacy in the object of the search? and (2) is society willing to recognize the expectation of privacy as legitimate? ( California v. Ciraolo (1986) 476 U.S. 207, 211, 219-220 [ 90 L.Ed.2d 210, 215, 220-221, 106 S.Ct. 1809].) Here, the trial court based its resolution of the issue of the second part of the test — that is, whether society is willing to recognize the expectation of privacy as legitimate. We will do the same, because it is dispositive.
The legitimacy of the expectation of privacy is determined under the totality of the circumstances. "It is settled law that a disclaimer of proprietary or possessory interest in the area searched or the evidence discovered terminates the legitimate expectation of privacy over such area or items. [Citation.]" ( People v. Stanislawski (1986) 180 Cal.App.3d 748 [ 225 Cal.Rptr. 770]; see also United States v. Hawkins (11th Cir. 1982) 681 F.2d 1343 ( Hawkins).) In Hawkins, the defendant denied ownership of a suitcase at the time of a warrantless search. However, at his suppression hearing, he claimed that he owned the suitcase and the heroin found in it. The Hawkins court held that the defendant's disclaimer of ownership at the time of the search was inconsistent with his later claim of a privacy interest and defeated that claim. ( Hawkins, supra, at p. 1346.)
Although cases such as Hawkins are analogous to this case, they are not precisely on point because Villasenor did not verbally disclaim the Concorde before it was searched. What he did, however, was more reprehensible. While in Hawkins, the defendant, acting on the spur of the moment, disclaimed ownership of a suitcase that he knew contained a controlled substance, Villasenor orchestrated an attempt to accomplish the same purpose by careful advanced planning and exploitation of others. As one of the leaders of the conspiracy, he sought to have others take the blame if the illegal acts were detected. Under these circumstances, we agree with the trial court that society does not recognize as legitimate any subjective expectation of privacy that Villasenor had. His expectation of privacy was illegitimate. ( California v. Ciraolo, supra, 476 U.S. at pp. 207, 211, 219-220.)
The decision of the 11th Circuit of the United States Court of Appeals in U.S. v. McKennon (11th Cir. 1987) 814 F.2d 1539 ( McKennon) supports this conclusion. In McKennon, the defendant and his girlfriend planned to fly from Florida to Missouri. The defendant packed a soft-sided bag with cocaine, a change of clothing, and some of his girlfriend's personal items. He gave his girlfriend the bag and told her not to let anyone look in the bag except him. He told her that, if she was delayed or detained, he would go on to Missouri without claiming the bag or acknowledging he was with her. At the airport, investigators observed that the defendant and his girlfriend were together, even though they tried to make it appear they were not. The bag was searched, the cocaine discovered, and the defendant and his girlfriend arrested. ( McKennon, supra, 814 F.2d at p. 1542.) Prosecuted for possession of the cocaine, the defendant moved to suppress the evidence, claiming an expectation of privacy in the bag and illegal seizure. The trial court granted the motion, finding that the defendant had a privacy interest in the bag, but the 11th Circuit reversed. ( Id. at pp. 1542, 1546.)
The McKennon court addressed the issue of whether the defendant's expectation of privacy was legitimate. It determined that the defendant took steps to disassociate himself from the bag and intentionally put his girlfriend at risk of detection and prosecution for possession of the cocaine. The court concluded that the defendant "significantly diminished the reasonableness of his expectation of privacy. After assessing the nature and quality of [the defendant's] privacy interest in light of the government's interest in impeding drug trafficking, we find that [the defendant's] expectation of privacy is too attenuated to receive constitutional protection. We do not believe that the Fourth Amendment was designed to protect the privacy interests of an individual who conspires to transport contraband, perceives the possibility that the container will be searched, severs all appreciable ties with the courier in an effort to escape criminal liability, and then asserts an interest in the container after the contraband and the conspiracy have been discovered in order to articulate an expectation of privacy and suppress evidence of criminal activity." ( McKennon, supra, 814 F.2d at p. 1545.)
The same is true here. Villasenor conspired to transport controlled substances, foresaw the possible search of the car, disassociated himself from the car, and now asserts that he had a constitutionally protected privacy interest in the car. Because the Fourth Amendment was not intended to protect this type of illegitimate privacy interest, Villasenor's attempt to assert such an interest fails.
McKennon also held that disclaimer of an interest in the property, such as happened in Hawkins, need not occur before the search or seizure if the circumstances of the case show that the defendant intended to disclaim an interest if a search was conducted and contraband found. ( McKennon, supra, 814 F.2d at p. 1546.) That is clearly the case here. Villasenor intended to disclaim an interest in the Concorde if it was searched and contraband found. He took all of the steps to prepare for such a disclaimer. He had someone else purchase the car. He avoided registering or insuring it in his name. He intended to have someone else drive the car when it was loaded with a controlled substance. Villasenor admitted that he took these steps to disassociate himself from the car because he intended to use the car to transport controlled substances. Therefore, Villasenor abandoned his privacy interest in the car and the privacy interest he asserted in his motion to suppress was illegitimate.
Villasenor's arguments that he had a legitimate expectation of privacy in the Concorde are without merit. He asserts that (1) he had a property right in the Concorde giving him the ability to challenge state action (citing Soldal v. Cook County (1992) 506 U.S. 56, 62 [ 121 L.Ed.2d 450, 458-459, 113 S.Ct. 538]), (2) installation of the GPS tracking device was a seizure of the Concorde for purposes of constitutional analysis (citing cone. opn. of Kleinfeld, J., in U.S. v. McIver (9th Cir. 1999) 186 F.3d 1119, 1133-1134), and (3) his ownership interest in the Concorde created a privacy right (citing Rakas v. Illinois (1978) 439 U.S. 128, 143, fn. 12 [ 58 L.Ed.2d 387, 401-402, 99 S.Ct. 421].) None of these assertions addresses or detracts from the trial court's (and our) conclusion that Villasenor's expectation of privacy was illegitimate because of his actions. (See People v. Ault (2004) 33 Cal.4th 1250, 1268, fn. 10 [ 17 Cal.Rptr.3d 302, 95 P.3d 523] [cases not authority for propositions not considered].)
We therefore conclude the trial court properly denied Villasenor's motion to suppress evidence obtained from the search of the Concorde.
After arguing that the trial court erred in finding that he did not have a legitimate expectation of privacy in the Concorde, Villasenor also argues that evidence obtained as a result of the installation of the GPS tracking system in the Concorde must be suppressed because (1) the officers did not obtain a warrant to reenter the Concorde and install a new antenna and (2) the GPS tracking system was used after the warrant authorizing its use had expired. We need not consider these arguments because, having had no legitimate expectation of privacy in the Concorde, Villasenor cannot raise them. ( California v. Ciraolo, supra, 476 U.S. at p. 211 [constitutionally protected privacy interest the touchstone of suppression analysis].)
In addition to his argument that the trial court was correct in concluding that Villasenor did not have a legitimate expectation of privacy in the Concorde, the Attorney General argues that (1) entry into the Concorde was accomplished pursuant to a valid warrant, (2) no warrant was required for entry into the Concorde because it was illegal to possess the Concorde with a hidden compartment, and (3) no warrant was required to track the Concorde through the use of the GPS tracking system. We also need not consider these contentions, having determined that Villasenor did not have a legitimate expectation of privacy in the Concorde.
VII-XI
See footnote, ante, page 1231.
Propriety of Wiretapping Orders
Although California law generally prohibits wiretapping, both state and federal law allow wiretapping to investigate specific serious crimes. ( People v. Leon (2007) 40 Cal.4th 376, 383 ( Leon).) Section 629.52 allows a court to authorize a wiretap if both a probable cause element and a necessity element are present. Villasenor does not contend the probable cause element was lacking. He claims that Detective Robin Kolb's affidavit, filed in support of the application for the wiretapping order, failed to establish the necessity element, namely, that "[n]ormal investigative procedures have been tried and have failed or reasonably appear either to be unlikely to succeed if tried or to be too dangerous." (§ 629.52, subd. (d); Leon, supra, at p. 384.) "With respect to necessity, the sole issue presented here, state law and federal law employ identical language. Each requires the judge, before authorizing a wiretap, to find that normal investigative techniques 'have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous.' ( 18 U.S.C. § 2518(3)(c); see Pen. Code, § 629.52(d).)" ( Leon, supra, 40 Cal.4th at pp. 384-385.) We review the issuance of a wiretapping order for abuse of discretion only. ( People v. Zepeda (2001) 87 Cal.App.4th 1183, 1204.) "The requirement of necessity is designed to ensure that wiretapping is neither 'routinely employed as the initial step in criminal investigation' [citation] nor 'resorted to in situations where traditional investigative techniques would suffice to expose the crime.' [Citation.] The necessity requirement can be satisfied 'by a showing in the application that ordinary investigative procedures, employed in good faith, would likely be ineffective in the particular case.' [Citation.] As numerous courts have explained, though, it is not necessary that law enforcement officials exhaust every conceivable alternative before seeking a wiretap. [Citations.] Instead, the adequacy of the showing of necessity '"is 'to be tested in a practical and commonsense fashion,' . . . that does not 'hamper unduly the investigative powers of law enforcement agents.'"' [Citation] A determination of necessity involves '"a consideration of all the facts and circumstances."' [Citation.]" ( Leon, supra, 40 Cal.4th at p. 385 [citing federal decisions].) A. Facts and Procedure On April 2, 2002, Detective Kolb filed an 89-page affidavit in support of her application for an order authorizing interception of communications using telephones associated with Villasenor and others. The detective set forth (1) details of the two-year investigation leading up to the application, (2) the goals of the investigation that had not been achieved through techniques other than wiretapping, (3) the reasons why a wiretapping order was necessary, and (4) her opinion that probable cause supported a wiretapping order. In March 2000, an informant (CI-1) told Detective Kolb that Villasenor had sold the informant significant amounts of methamphetamine. CI-1 stated that Villasenor sold methamphetamine, cocaine, and heroin out of his business (River City Auto Specialists) and his residence. Surveillance of known drug traffickers established that they went to River City Auto Specialists on numerous occasions. They never stayed long and did not appear to conduct auto repair related business. Analysis of telephone records showed numerous calls between known traffickers and River City Auto Specialists. Detective Kolb went to River City Auto Specialists undercover and asked for an estimate for a repair. While she was there, she observed multiple men that appeared to be having a meeting. None of them were dressed as or appeared to be auto mechanics. Through other sources, Detective Kolb became aware that Tolliver was also involved in trafficking of controlled substances. Telephone records showed that, on many occasions, Tolliver made calls to or received calls from River City Auto Specialists. Surveillance revealed Tolliver's visits to the same place, even though following him was often difficult because he used a significant amount of counter-surveillance driving techniques. Further investigation revealed other drug traffickers who could be connected with River City Auto Specialists. As the investigation continued over the next two years, numerous informants were used and attempts were made to infiltrate the organization. Law enforcement arrested 19 people, conducted surveillance on 13 separate occasions, and searched arrestees and locations affiliated with the investigation without gaining the information it needed to determine the extent of the organization, its sources, and its activities. Although law enforcement continued to gather information about the organization, the attempts to infiltrate were unsuccessful. The organization was close-knit and family-run, making it difficult to gain information on the extent of the organization or its activities. The organization used several layers of participants to shield the identify of upper echelon participants, and numerous locations were used to store the controlled substances and money. The participants in the organization were vigilant about law enforcement detection. They used counter-surveillance techniques and periodically suspended their activities when they suspected they were being watched. Because of these conditions, Detective Kolb had been unable to learn the full extent of the organization and its many participants. In her affidavit, Detective Kolb identified 10 goals of the investigation that she had not yet accomplished through the investigative techniques already used. They were to identify: 1) all participants,
To issue a wiretapping order, the court must find that there is probable cause to believe that (a) an individual has committed, is committing, or is about to commit one of the drug crimes listed in the statute; (b) communications concerning the crimes will be obtained through the wiretap; and (c) the communications device will be used by the person whose communications are to be intercepted. (§ 629.52, subds. (a)-(c).)
After Villasenor failed to state in his opening brief which standard of review we use on appeal on the wiretapping issue, the Attorney General stated that the standard of review is abuse of discretion, citing California and federal precedent. In his reply brief, Villasenor contends we must apply a de novo standard of review because Detective Kolb failed to inform the court of one informant. We conclude Villasenor forfeited consideration of this factual issue because he raised it for the first time in his reply brief. (See Shade Foods, Inc. v. Innovative Products Sales Marketing, Inc. (2000) 78 Cal.App.4th 847, 894-895, fn. 10 [points raised in reply brief not considered unless good cause shown]; see also Leon, supra, 40 Cal.4th at p. 385, fn. 3 [declining to resolve disagreement over applicable standard of review].)
As authority for the proposition that de novo review is appropriate if the affidavit was not full and complete, Villasenor cited United States v. Blackmon (9th Cir. 2001) 273 F.3d 1204, at page 1207, which states: "If a full and complete statement was submitted, we review the issuing judge's decision that the wiretap was necessary for an abuse of discretion. [Citation.]" From this statement, Villasenor reasons that, if a full and complete statement was not made, de novo review is employed. Because Villasenor did not make this argument in his opening brief, the Attorney General has not had a chance to respond to it. Villasenor makes no attempt to show good cause for not making the argument in his opening brief. Therefore, he has forfeited consideration of the issue. We will apply the abuse of discretion standard.
River City Auto Specialists was later known by two other names, Tranny Guys and Performance Auto Body and Paint.
2) locations used to facilitate sales and distribution,
3) methods used by the participants,
4) locations to which substances were distributed,
5) means of transporting controlled substances,
6) communications devices used,
7) dates, times, and places for transactions, as well as the quantity and price of the controlled substances for sale;
8) location of assets accumulated by the organization,
9) location of records of the organization, and
10) admissible proof of intent of each participant.Detective Kolb discussed different investigative techniques (such as (1) use of confidential informants and undercover agents, (2) surveillance, (3) telephone records, (4) grand jury investigation and interviews, and (5) search and arrest warrants) and discussed why these would not be sufficient to achieve the goals of the investigation. She also explained how any authorized wiretap would be minimized to avoid, as possible, interception of communications not related to the investigation. Based on Detective Kolb's affidavit, the trial court authorized the wiretap of Villasenor's cell phone, along with other phones owned by other participants in the organization. Villasenor moved to suppress the fruits of the wiretap, asserting that Detective Kolb's affidavit did not establish the necessity of the wiretap of Villasenor's cell phone because other investigative techniques were potentially productive and not unduly dangerous. The trial court denied the motion, providing a lengthy analysis of why Detective Kolb's affidavit showed the wiretap was necessary. B. Necessity of Wiretap On appeal, Villasenor renews his argument that Detective Kolb's affidavit did not sufficiently show necessity — that is, that conventional investigative techniques were insufficient to attain the goals of the investigation. We find no merit in this contention and conclude that issuance of the wiretap order was not an abuse of discretion. Villasenor's argument consists of (1) his criticism of the efforts of Detective Kolb and the other investigators, claiming that they could have obtained more information if they had taken certain actions, and (2) his assertion that the goals stated in Detective Kolb's affidavit were unreasonable and unattainable. Each element of Villasenor's argument is without merit. Villasenor asserts, as the bulk of his argument, several ways that he believes Detective Kolb could have obtained more information about the organization without wiretapping his phone. These suggestions include:
Villasenor also argues that "there is no justification for the subsequent extension of the initial wire and electronic intercepts, and insofar as the Kolb's [ sic] affidavit is tainted by these intercepts, the information contained in the subsequent applications and affidavits must be excised and the evidence derived therefore must be suppressed. [Citations.]" Because Villasenor provides no explanation for this assertion of a "subsequent extension" and no citation to the record for such an extension, we have nothing upon which to base the requested review. In any event, we conclude Detective Kolb's application sufficiently showed necessity and, therefore, any subsequent extension would have not been tainted by evidence obtained by wiretapping pursuant to an order based on Detective Kolb's affidavit.
• using an informant or others whose names had not been disclosed as informants,
• arresting those who had been identified as affiliated with the organization and turn them into informants,
• arranging a "reverse sting,"
• arranging more purchases of cocaine,
• searching the River City Auto Specialists location,
• arresting Villasenor to induce him to give information about the entire organization,
• doing a parole search on Villasenor's brother,
• obtaining better optical equipment (responding to Detective Kolb's assertion that people could not always be identified during surveillance), and
• searching known suspects and known locations.In light of the extensive investigation undertaken before Detective Kolb applied for the wiretapping order, Villasenor's suggestions concerning what law enforcement could have done further are unavailing. As noted above, "it is not necessary that law enforcement officials exhaust every conceivable alternative before seeking a wiretap. [Citations.] Instead, the adequacy of the showing of necessity '"is 'to be tested in a practical and commonsense fashion,' . . . that does not 'hamper unduly the investigative powers of law enforcement agents.'"' [Citation]" ( Leon, supra, 40 Cal.4th at p. 385.) Applying such a practical and commonsense approach, it is clear the court did not abuse its discretion by granting the application to wiretap Villasenor's cell phone. Visual surveillance had been helpful but had not answered many of the questions that arose during the investigation, such as the extent of the organization, the location of controlled substances, assets, and records, and the timing and location of transactions. Further searches and arrests would have alerted the organization to the magnitude of the investigation and would have made it impossible to continue the investigation. Confidential informants had been used, but the information they were able to obtain was limited. After two years of investigation, law enforcement could and did show the necessity of wiretapping. Under these circumstances, Villasenor's suggestions of possible alternative modes and means of investigation are insufficient to establish that the court abused its discretion. Villasenor's contention that the goals of the investigation, as stated by Detective Kolb, were unattainable is likewise unavailing. Villasenor contends that "it was virtually impossible for any set of investigative tools, including wiretap, to succeed." He notes that, even with the wiretap, the investigation never revealed the source of the organization's cocaine and amphetamine. Nonetheless, the wiretap goals, as stated above, were reasonable. The investigation, up to the time when Detective Kolb sought the wiretap order, revealed that this was a large-scale operation, many aspects of which remained undiscovered. The wiretap goals related to valid law enforcement concerns and were designed to uncover as much of this illicit organization as possible. If the investigation had continued using conventional investigative techniques without wiretapping, it is apparent that it would have continued to reveal only the edges of the organization — a buy here, a meeting there — without exposing the core of the organization. This case shows how wiretapping, as authorized by state and federal statutes, can be used as a proper investigative tool. The court did not abuse its discretion in authorizing the wiretap.
VIII Sufficiency of Evidence that Villasenor was Armed
Penal Code section 12022, subdivision (a)(1), provides for an additional term of one year if the defendant was "armed with a firearm in the commission of a felony. . . ." Here, the jury found Villasenor was armed in the commission of three different conspiracies. The trial court sentenced Villasenor to an additional year as to each of those conspiracies, based on the true finding of the arming allegations. Villasenor contends there is insufficient evidence to support the true finding on each of the arming allegations. We conclude the contention is without merit. A. Allegations and Facts The conspiracy counts as to which the jury found that Villasenor was armed with a firearm were alleged to have taken place: (1) from January 1, 2002, to May 16, 2002 (count one); (2) from April 1, 2002, to May 16, 2002 (count four); and (3) from April 1, 2002, to May 16, 2002 (count five). The facts directly related to the firearm that Villasenor was alleged to have possessed during the conspiracies consist of two incidents: (1) a telephone call in which Villasenor stated he was taking the firearm to a funeral and (2) the discovery of the firearm in a GMC Yukon in front of Villasenor's residence. 1. Telephone Call On April 11, 2002, Villasenor received a call from Mark Montez, to whom Villasenor referred as "Uncle Mark." Montez had been to a funeral which Villasenor had not attended. When Montez told Villasenor the gathering was still in progress, Villasenor said he was going. Montez asked Villasenor who he was going with, and Villasenor replied: "myself, my 380." Montez asked "who"? And Villasenor told him, "my 38." The day after the call in which Villasenor told Montez that he was taking his firearm to a funeral, Montez reported to Villasenor and Jesse Vasquez that he had discovered surveillance on the organization by law enforcement. Montez advised Vasquez, who apparently had been followed that morning, not to do anything. 2. GMC Yukon The GMC Yukon was seen on several occasions by deputies conducting surveillance of the organization, including at the automobile body shop where the Concorde was being fitted for a secret compartment and in front of Villasenor's residence in West Sacramento. At least once, Villasenor was seen driving the Yukon. On May 16, 2002, a search was conducted of Villasenor's West Sacramento residence. The Yukon was parked in the driveway of the house, and Villasenor, Shonda Chadree (also a resident), and two little children were the only occupants of the residence at the time. A loaded .38 caliber revolver was found in the center console of the Yukon. Also found in the Yukon were papers bearing Villasenor's name and the names of five other people. B. Sufficiency of Arming Evidence We review a claim of insufficiency of evidence by viewing the evidence in the light most favorable to the verdict and drawing every reasonable inference in favor of the verdict. If the verdict is supported by reasonable and credible evidence of solid value, we defer to the finder of fact. ( People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) The arming enhancement pursuant to section 12022, subdivision (a)(1) is designed to deter use of a firearm because the very presence of a firearm at the scene of a crime increases the chances of death or injury. ( People v. Bland (1995) 10 Cal.4th 991, 996.) "To trigger the enhancement, the defendant need only have a gun 'available for use to further the commission of the underlying felony.' [Citation.] Moreover, when the underlying felony is a continuing offense, it is sufficient if the defendant has a gun available at any time during the felony to aid in its commission. [Citation.]" ( People v. Becker (2000) 83 Cal.App.4th 294, 297, quoting People v. Bland, supra, at p. 999.) Conspiracy is a continuing offense subject to this rule. ( Id. at pp. 297-298.) "The classification of conspiracy as a continuing offense is important because, as noted, the period during which the arming enhancement may attach to such an offense is very broad: So long as the defendant has a weapon available for use at any point during the course of a continuing offense, his sentence may be enhanced for being armed. [Citations.]" ( Id. at p. 298.) The evidence here supports a reasonable inference that Villasenor was in possession of the .38 caliber revolver during the period of each conspiracy. Both of the incidents (the April 11 statement that he was taking his firearm to a funeral and the May 16 discovery of the firearm in the Yukon) occurred during each of the conspiracies, the latest of which started on April 1 and ended May 16. Villasenor contends that "the prosecution failed to produce any evidence that [he] had a firearm to use in any drug deal or to aid him during the 3 conspiracies he was convicted of." To the contrary, the conspiracies were continuing crimes, occurring through the periods alleged. Villasenor had a firearm during that time, and it is reasonable to infer that he possessed it to further the conspiracies. By their nature, the conspiracies to traffic in controlled substances were fraught with danger. (See People v. Duarte (2007) 147 Cal.App.4th 1231, 1237 [Villasenor's coconspirator's case; drug trade fraught with danger].) From the fact that Villasenor possessed a firearm as a prominent actor during these conspiracies, the jury could reasonably infer that he possessed it to protect himself, other conspirators, the controlled substances, and any assets from dangers or perceived dangers arising from the conspiracy. It was unnecessary to show that he used the firearm in any specific way, such as during a drug deal. Citing a case in which a defendant transported a victim away from the location of his own firearm before raping her ( People v. Jackson (1995) 32 Cal.App.4th 411, 421), Villasenor asserts he cannot be held criminally liable under the arming enhancement because there was no evidence the firearm was ever near any controlled substances or money. But a conspiracy is significantly different from a rape. It was unnecessary to show that Villasenor possessed the firearm in proximity to the controlled substances that were the object of the conspiracy. It was the agreement and the execution of the agreement for which Villasenor was convicted, not any particular possession of controlled substances. "What is important is that defendants [here, Villasenor] had a gun available during the commission of the conspiracy and that the gun's presence created an added risk of death or injury. That is enough to justify the arming enhancement." ( People v. Becker, supra, 83 Cal.App.4th at p. 298.)
Villasenor argues that, because there was some ambiguity concerning whether he was referring to a .38 or a .380, the jury was required to resolve the ambiguity by finding he was referring to a .380, the more innocent explanation considering the later discovery of a .38 in a vehicle associated with Villasenor. (See CALJIC No. 2.01 [jury must adopt interpretation that points to innocence].) To the contrary, Villasenor fails to draw our attention to any evidence presented to the jury that there was a difference between a .380 and a .38, and we draw the inference most favorable to the verdict. ( In re James D. (1981) 116 Cal.App.3d 810, 813.) Furthermore, the jury may have found no ambiguity at all if it concluded that defendant was correcting what he perceived as an erroneous reference to a "380" when he said "my 38."
IX Propriety of Transportation Conviction
Villasenor contends, citing In re Williamson (1954) 43 Cal.2d 651, that his conviction in count one for conspiring to transport cocaine between noncontiguous counties must be reversed because he committed the more specific offense of conspiracy to transport (or import) cocaine from outside of the state. In re Williamson, however, is inapplicable to this case, and Villasenor's contention fails because importation of cocaine is not a more specific offense than transportation between noncontiguous counties. The two statutory provisions at issue in Villasenor's contention that prohibit transportation of cocaine are both found in Health and Safety Code section 11352. Subdivision (a) provides that "every person who transports, imports into this state, sells, furnishes, administers, or gives away . . . any controlled substance . . . shall be punished by imprisonment in the state prison for three, four, or five years." Subdivision (b) states: "Notwithstanding the penalty provisions of subdivision (a), any person who transports for sale any controlled substances . . . within this state from one county to another noncontiguous county shall be punished by imprisonment in the state prison for three, six, or nine years." The conspiracy for which Villasenor was convicted in count one involved the transportation of controlled substances, by car, through southern California to Sacramento. Therefore, it was a conspiracy to violate both subdivisions of Health and Safety Code section 11352 because it would import cocaine into the state (subd. (a)) and then transport the cocaine between noncontiguous counties (subd. (b)). When two statutes conflict, the more specific statute prevails over the general statute. (See In re Williamson, supra, 43 Cal.2d at p. 654.) Put differently, "when the Legislature has enacted a specific statute addressing a specific matter, and has prescribed a sanction therefor, the People may not prosecute under a general statute that covers the same conduct, but which prescribes a more severe penalty, unless a legislative intent to permit such alternative prosecution clearly appears. [Citation.]" ( Mitchell v. Superior Court (1989) 49 Cal.3d 1230, 1250, italics and fn. omitted.) Villasenor argues that the more specific provision between the two subdivisions is (a). He asserts: "While subdivision (a) discusses transportation, importation, and sale, under these facts it is clear that the conduct engaged in was importation, as the cocaine was to come from Texas. Specifically, the statute applies to any 'person who . . . imports into this state" cocaine. This specific provision of the statute governs over the general provision, transportation." The flaw in Villasenor's argument is that subdivision (a) of Health and Safety Code section 11352 is not more specific than subdivision (b). Subdivision (a) states the general proscription on any transportation of controlled substances, including importation, and provides for terms of three, four, or five years. Subdivision (b) provides for greater terms (three, six, or nine years) if the violation of subdivision (a) involves transportation between noncontiguous counties, "[n]otwithstanding the penalty provisions of subdivision (a). . . ." Therefore, under this statutory scheme, subdivision (b) is the specific statute and there was no error in convicting Villasenor of conspiracy to violate subdivision (b) under the circumstances here in which the conspiracy was to violate both subdivisions (a) and (b). Villasenor contends that this interpretation of subdivisions (a) and (b) of Health and Safety Code section 11352 is impermissible because it renders meaningless the inclusion of importation in subdivision (a). This contention is without merit because it is possible to import controlled substances into California without transporting it between noncontiguous counties. Villasenor makes this point, himself, when he argues, in the next contention considered in this opinion, that the evidence of a conspiracy to transport cocaine between noncontiguous counties was insufficient because it could have been the intent of the conspirators to transport the cocaine through the Tahoe area and counties contiguous to Sacramento County. The inclusion of importation in subdivision (a) is not rendered meaningless by our interpretation of subdivisions (a) and (b) together. Accordingly, Villasenor's contention that his conviction for conspiracy to violate Health and Safety Code section 11352, subdivision (b) is contrary to the law as established in In re Williamson, supra, 43 Cal.2d 651, is without merit.
X Sufficiency of Conspiracy Evidence
Villasenor asserts the evidence was insufficient to support the conviction on count one for conspiracy to transport a controlled substance between noncontiguous counties. He argues that the conclusion that the conspirators agreed to transport the controlled substance through any California county that is not contiguous to Sacramento County is based on speculation, not evidence or reasonable inferences from the evidence. We disagree. The evidence and reasonable inferences drawn from the evidence are sufficient to sustain the conviction. A. Facts In January 2002, Jesse Vasquez, one of the conspirators, hired Sandra Cortez to drive a Jaguar from Texas to California. He instructed her on the route to take. She entered California on Interstate 10 and went through Los Angeles on her way to Sacramento. In February 2002, Cortez drove the Jaguar, in which a hidden compartment had been installed, back to Texas at Vasquez's direction. In Texas, Vasquez took the Jaguar from Cortez, then returned it several days later with instructions on the route to take back to Sacramento. Cortez drove the Jaguar back to Sacramento, entering California at Needles. The back end of the Jaguar was heavy, causing difficulty in steering. In April 2002, Vasquez hired Joseph Duarte to drive the Concorde to Texas and back. They agreed that Duarte would go to Riverside County and pick up his seven-year-old son from the boy's mother and take him on the trip to and from Texas. Duarte left southern California and went to Texas, driving through Arizona and New Mexico. While in Texas, Duarte talked to Vasquez by telephone for instructions. Duarte finally got cold feet and left Texas without the Concorde. On May 16, the Concorde was tracked leaving San Antonio. Law enforcement executed a stop as the Concorde was heading for Interstate 10. Villasenor asserts that this last trip was directed by Anthony Luna, known to the conspirators as "Bad Breath," not Jesse Vasquez, who directed the other trips. However, the portions of the reporter's transcript that Villasenor cites for this proposition establish only that Luna was involved with the Concorde while it was in Texas, not that he picked the route the Concorde would take back to Sacramento. Other evidence established that Vasquez was still in charge of the Texas operation. For example, Vasquez called and spoke to Duarte, trying to convince him to drive the Concorde back to Sacramento. This last trip was the subject of the conspiracy alleged in count one with the weight enhancement for the 49 kilograms of cocaine. B. Intent to Transport Between Noncontiguous Counties To sustain a conviction for conspiracy, the evidence and reasonable inferences drawn from the evidence must show that the conspirators intended to agree and intended to commit the elements of the target offense. ( People v. Swain (1996) 12 Cal.4th 593, 600.) The prosecution may prove the conspiracy by inferences drawn from the conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy. ( People v. Cooks (1983) 141 Cal.App.3d 224, 311.) The facts here support the inference that the conspirators intended to have the Concorde return to Sacramento through southern California, thus transporting the controlled substances between noncontiguous counties. Through southern California is the only route the conspirators had used. There is no evidence the conspirators intended to go by any other route on the last trip. The occupants of the Concorde and Lincoln were headed on a direct route to Interstate 10 when they were stopped, and Interstate 10 enters California in the south, making it necessary to travel through counties noncontiguous to Sacramento County. Citing to evidence that it is possible to get controlled substances to Sacramento from Texas without going through a California county that is not contiguous to Sacramento County, Villasenor claims we cannot conclude the evidence was sufficient to sustain a conviction for conspiracy to transport a controlled substance between noncontiguous counties because the plan may have been to take that route. If the Concorde were to travel up through Nevada and into California through El Dorado County, which is contiguous to Sacramento County, there would be no violation of Health and Safety Code section 11352, subdivision (b). A possibility that the cocaine could have been imported through El Dorado County, however, does not prevent a finding that there was substantial evidence that the conspirators intended to transport the controlled substance through southern California. Villasenor asserts that only speculation supports the conclusion that the conspirators intended to transport the controlled substance through southern California. In support, he cites People v. Raley (1992) 2 Cal.4th 870, at pages 889 through 891 ( Raley). In Raley, the Supreme Court reviewed the defendant's conviction for oral copulation and found the evidence was insufficient to sustain the conviction. ( Id. at p. 889.) The defendant held two minors, Jeanine and Laurie, captive and told them they would have to "fool around" with him for five minutes before he would let them go. He took Jeanine away, and Laurie heard Jeanine scream. The defendant then came back 15 minutes later and, leaving Jeanine, took Laurie away. He directed Laurie to orally copulate him. When she gagged, he directed her to manipulate his penis with her hands until he ejaculated. ( Id. at p. 882.) Jeanine later told someone that the defendant had not raped her but had made her "fool around." ( Id. at p. 884.) As to the defendant's sexual assault on Jeanine, the Raley court rejected the argument that layered inferences leading to a conclusion that the defendant orally copulated Jeanine were reasonable. Specifically, the court found unreasonable the inference that "fool around" referred to oral copulation. The court stated: "Oral copulation was not the only sexual activity defendant had in mind with his second victim [Laurie]; 'fooling around' seemed to mean several things to him. It is also speculative to conclude that Jeanine would use the term in the same restricted sense respondent claims defendant intended to convey. 'A reasonable inference, however, "may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. [¶] . . . A finding of fact must be an inference drawn from evidence rather than . . . a mere speculation as to probabilities without evidence."' [Citation.]" ( Raley, supra, at pp. 890-891.) Here, there were alternative ways the conspirators could have transported the controlled substance to Sacramento, not all of which involved transporting the controlled substance through noncontiguous counties. However, as noted above, the circumstances of this case, including (1) the prior conduct of the conspirators, (2) the fact that the Concorde was heading for Interstate 10, and (3) the lack of evidence that the conspirators considered using any other route, make the inference in favor of the conviction reasonable and distinguish this case from Raley. The evidence was sufficient to support the conviction for conspiracy to transport a controlled substance between noncontiguous counties pursuant to Health and Safety Code section 11352, subdivision (b).
XI Alleged Cunningham Error
Villasenor contends that, under Cunningham v. California (2007) ___ U.S. ___ [ 166 L.Ed.2d 856], the trial court violated his right to trial by jury when it relied on facts not found by a jury in imposing the upper term of nine years for count one, conspiracy to transport a controlled substance between noncontiguous counties. We affirm because an aggravating factor relied on by the court to impose the upper term was found, beyond a reasonable doubt, by the jury. ( People v. Black (2007) 41 Cal.4th 799 ( Black II).) In sentencing Villasenor to the upper term of nine years on count one, the trial court relied on four aggravating circumstances: (1) Villasenor induced others to participate in the offense and occupied a position of leadership over other participants; (2) Villasenor conspired to use a minor in the transportation of controlled substances; (3) Villasenor was convicted of other crimes for which consecutive sentences could be imposed, but for which concurrent sentences are being imposed; and (4) the crimes manifested professionalism by Villasenor. The court decided that these four circumstances in aggravation outweighed the following two circumstances in mitigation: (1) Villasenor's criminal record was minimal and (2) Villasenor was not on parole or probation when he committed the offenses. As an allegation associated with count one, the jury found that Villasenor induced others to participate in the offense or occupied a position of leadership in its commission. This was one of the aggravating factors relied on by the court to impose the upper term on count one, and Villasenor concedes it was properly found by the jury. In Cunningham v. California, supra, ___ U.S. ___ [ 166 L.Ed.2d 856], the United States Supreme Court held that using facts not found by a jury to impose an upper term violated the right to jury trial as explained in Apprendi v. New Jersey, supra, 530 U.S. at page 490. Any fact, other than the fact of a prior conviction, that increases a sentence for a crime beyond the statutory maximum must be tried by a jury and proved beyond a reasonable doubt. ( Cunningham v. California, supra, ___ U.S. ___ [ 166 L.Ed.2d at p. 873].) Under recent California Supreme Court precedent, the one aggravating factor was sufficient to impose the upper term without violating Villasenor's jury trial rights. ( Black II, supra, 41 Cal.4th at pp. 805-806.) The Supreme Court held "that imposition of an upper term sentence did not violate defendant's right to a jury trial, because at least one aggravating circumstance was established by means that satisfy Sixth Amendment requirements and thus made him eligible for the upper term." ( Ibid.) Even if it did violate Villasenor's jury trial rights to impose the upper term based on at least one aggravating factor that was not found by the jury, we conclude such error was harmless beyond a reasonable doubt. (See People v. Sandoval (2007) 41 Cal.4th 825 ( Sandoval) [applying harmless-beyond-a-reasonable-doubt standard to Cunningham error].) In addition to the aggravating factor which Villasenor concedes was found by the jury, the jury also found another factor used by the trial court to impose the upper term. The jury found, as count two, that Villasenor was guilty of conspiring to use a minor in transporting cocaine. (Health Saf. Code, § 11353, subd. (b).) The trial court stayed the sentence on that count, however, and used the facts underlying that count as an aggravating circumstance as to count one. The jury found that Villasenor was a leader in a sophisticated drug dealing operation and that he conspired to use a minor to traffic drugs. The severity of these two aggravating circumstances, weighed against the mitigating circumstances, compels the conclusion that there is no reasonable possibility that the trial court would haveconsidered the middle term. Therefore, any error was harmless beyond a reasonable doubt.
The trial court noted that count two, conspiracy to use a minor, was "necessarily incidental" to count one, conspiracy to transport cocaine between noncontiguous counties. For that reason, the court stayed the count two sentence pursuant to section 654.
Villasenor asserts the trial court could not use the conviction in count two as an aggravating factor in count one because (1) conspiracy to use a minor is "the critical element of count two," and, under California Rules of Court, rule 4.420(d), an element of the offense cannot be used to impose the upper term and (2) conspiring to use a minor to transport drugs is not mentioned in the list of approved circumstances in aggravation under California Rules of Court, rule 4.421. Both of these contentions fail. First, we know of no authority for the proposition that a trial court cannot stay a sentence on one count and use the circumstances of the stayed count as an aggravating factor for another count. There is no double punishment involved. And second, the list of aggravating factors in California Rules of Court, rule 4.420, is not an exclusive list. The trial court can use as aggravating factors any "other circumstances that are reasonably related to the sentencing determination." ( People v. Brown (2000) 83 Cal.App.4th 1037, 1044; Cal. Rules of Court, rule 4.408(a).)
Per miscellaneous order 2007-016 of this court, dated July 26, 2007, Villasenor is deemed to have challenged the decisions in Black II and Sandoval on federal constitutional grounds. We reject the challenge because we are bound by Black II and Sandoval. ( Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.)
DISPOSITION
As to Tolliver, the sentence is reversed and the matter is remanded for retrial of whether the prior conviction for violation of Penal Code section 417.3 was a conviction for a serious felony and for resentencing. In all other respects, the judgment against Tolliver is affirmed.As to Villasenor, the judgment is affirmed.
Scotland, P. J., and Morrison, J., concurred.
A petition for a rehearing was denied April 10, 2008, and the opinion was modified to read as printed above. The petition of appellant Antonio Villasenor for review by the Supreme Court was denied June 18, 2008, S162946. George, C. J., Werdegar, J., and Corrigan, J., did not participate therein.