State v. Valencia, 36029-2-II.

• Citation: 198 P.3d 1065,148 Wn. App. 302
• Decision Date: 13 January 2009
• Docket Number: No. 36115-9-II.,No. 36029-2-II.,36029-2-II.,36115-9-II.
• Parties: STATE of Washington, Respondent, v. Isidro Sanchez VALENCIA, aka Isaias Vernal, aka Eugencio Gonzales Sanchez, aka Isaias Vernal-Valencial, aka Gonzales Eugencio Sanchez, aka Isidro Valencia Sanchez, Appellant. State of Washington, Respondent, v. Eduardo Chavez Sanchez, Appellant.
• Court: Court of Appeals of Washington

198 P.3d 1065

148 Wn. App. 302

STATE of Washington, Respondent, v. Isidro Sanchez VALENCIA, aka Isaias Vernal, aka Eugencio Gonzales Sanchez, aka Isaias Vernal-Valencial, aka Gonzales Eugencio Sanchez, aka Isidro Valencia Sanchez, Appellant.

State of Washington, Respondent, v. Eduardo Chavez Sanchez, Appellant.

No. 36029-2-II.

No. 36115-9-II.

Court of Appeals of Washington, Division 2.

January 13, 2009.

Michael C. Kinnie, Attorney at Law, Vancouver, WA, for Respondent.

John A. Hays, Lisa Elizabeth Tabbut, Attorney at Law, Longview, WA, for Appellant.

QUINN-BRINTNALL, J.

¶ 1 A jury convicted Isidro Sanchez Valencia and Eduardo Chavez Sanchez of possession of a controlled substance with intent to deliver — marijuana and conspiracy to commit possession of a controlled substance with intent to deliver — marijuana. Sanchez Valencia and Sanchez appeal, claiming that there was insufficient evidence to support their convictions. They also assert that the trial court erred by imposing a community custody condition prohibiting them from possessing drug paraphernalia because, they claim, the community custody condition is unconstitutionally vague. Because the evidence was sufficient to support their convictions and the challenge to the community custody condition is premature, we affirm.

FACTS

Background Facts

¶ 2 In August of 2006, detectives from the Cowlitz County Drug Task Force contacted Detective Bryan Acee of the Vancouver Police Department and asked him to begin surveillance on Jesus Gonzalez-Perez, a suspected drug trafficker. Acee began surveilling on a residence located at 2612 Grand Boulevard, No. B, in Vancouver, Washington, an address associated with Gonzalez-Perez. In the course of his investigation and surveillance on the Grand Boulevard address, Acee reported observing frequent foot and vehicle traffic coming to and from the residence, with visits usually lasting only a few minutes and on a number of occasions seeing hand-to-hand transactions occurring near the doorway.

¶ 3 Between August 27 and August 30, 2006, Detective Acee observed the occupants at the Grand Boulevard address move boxes and furniture to 806 S.E. 141st Avenue, another residential address in Vancouver, Washington. Acee and other officers continued surveillance at the 141st Avenue address through September and into October of 2006. On September 19, Acee observed an unknown male arrive at the 141st Avenue residence, talk briefly with someone at the doorway, engage in a hand-to-hand transaction, and leave with a small shoebox. On October 2, Acee observed seven different subjects arrive at the residence, again with visits lasting only a few minutes, with hand-to-hand transactions at the doorway, including what appeared to be an exchange of currency. Six of the seven visitors on October 2 left with either a shoebox or a black garbage bag.

¶ 4 On October 18, Detective Acee obtained a search warrant authorizing a search of the 141st Avenue house for items related to drug trafficking, as well as the persons of Gonzalez-Perez, Renee Turner, and Audel Arregan-Cardenas. On the morning of October 21, Acee and other officers continued surveillance on the residence with a plan to execute the search warrant later that evening.

¶ 5 On October 21, Detective Acee observed a number of people drive up to the house, enter, and then leave carrying one or two black garbage bags. The garbage bags appeared to be a quarter to a third full and contain something light. A number of officers followed the vehicles that left the residence that day and observed the drivers engage in "counter-surveillance" techniques.¹

¶ 6 One of the people arriving at the 141 st Avenue house that day was Sanchez, who left the residence carrying two black garbage bags that he placed in the trunk of his vehicle. This was the first time officers had seen Sanchez at this residence. Detective Acee attempted to follow Sanchez's vehicle, but lost him and returned to the residence to resume surveillance.

¶ 7 Another person leaving the residence with a black garbage bag that day was Mark Turner. Officer Troy Rawlins stopped Mark Turner's vehicle within a few blocks of the residence. Rawlins found a backpack tucked behind the driver's seat of Mark Turner's car. The backpack contained a black garbage bag with what appeared to be marijuana inside it. Officers later weighed and tested the contents of the black garbage bag, confirming it to be three pounds of marijuana.

¶ 8 Officers also saw Sanchez Valencia at the residence earlier that morning repairing a mailbox. Before October 21, officers had not seen Sanchez Valencia at this residence during any of their surveillance. Later that day, officers saw Sanchez Valencia leave the residence carrying a black garbage bag. He placed the bag in his vehicle and then left with a young boy. Officer Josannah Hopkins followed Sanchez Valencia's vehicle but lost sight of him. Hopkins did not observe Sanchez Valencia use any "counter-surveillance" techniques while driving away from the residence.

¶ 9 Later that same afternoon, Detective Acee called the officers who were surveilling various locations so they could help him execute the search warrant. When they entered the house, the officers were overwhelmed with the odor of fresh marijuana. But there was no one at the residence. Officers discovered 68 one-pound clear plastic bags of marijuana on the floor of a bedroom closet, as well as a digital scale. They also found a receipt in the pocket of a shirt which indicated that Sanchez had wired $2,000 to Mexico earlier that month. Officers also discovered a large shopping bag containing approximately $126,000 in the closet of a second bedroom and a loaded handgun in a third bedroom. Finally, officers found various items throughout the house and in a backyard shed, such as prepaid cellular phones, walkie-talkies, a box of black garbage bags, scales, two one-pound packaged bags of marijuana, a Vancouver motel receipt in the name of Sanchez, and a "shake net."²

¶ 10 After searching the house, officers moved all the police cars and returned to the residence to await people returning. Renee Turner and Alberto Valencia-Rojos arrived at the house with an infant in the back seat. Officers detained Renee Turner and Valencia-Rojos, searched their vehicle, and discovered a loaded handgun in the glove box, two-way radios in the back seat, and paperwork addressed to Sanchez in the vehicle's center console. Officers also detected a strong odor of marijuana, but they did not find any marijuana nor did they find the black garbage bags they had seen the suspects placing in the vehicle earlier that day.

¶ 11 Sanchez Valencia was the next to arrive at the house, driving the same vehicle he left with earlier that day. Officers searched this vehicle but, once again, they did not discover any marijuana nor did they discover the black bag he had placed in the vehicle, although they did detect the scent of marijuana behind the driver's seat. When later interviewed, Sanchez Valencia told Detective Shane Gardner that his name was Eugenio Gonzalez Sanchez. As the evening progressed, two other vehicles arrived at the residence. Officers similarly searched the vehicles, detected a strong odor of marijuana, but failed to find any marijuana other than some loose particles in the trunk of one of the vehicles.

¶ 12 Sanchez was the last to arrive at the residence. Again, officers detected the scent of marijuana in his vehicle, but they did not find any marijuana. They searched Sanchez's person and found approximately $8,500 in cash wrapped in a rubber band in the pocket of his jeans.

Procedural Facts

¶ 13 On October 26, 2006, Clark County charged eight different individuals, including Sanchez and Sanchez Valencia, with possession of marijuana with intent to deliver and conspiracy to possess marijuana with intent to deliver. The possession of marijuana with intent to deliver charge included an enhancement because the offense occurred within 1,000 feet of a school bus stop. The case was tried to a jury with Sanchez and Sanchez Valencia as co-defendants.

¶ 14 At the trial, Detective Acee testified that, in his years of experience investigating drug distribution rings, he recognized the activities occurring around the two residences in Vancouver, Washington, as evidence of a sophisticated drug distribution operation. Acee also testified that he recognized the residences as being "safe houses," places where marijuana is delivered from growers and is packaged for sale by distributors. Acee further testified that, in his experience, he recognized Renee Turner as a "facilitator," a person with a clean record who can register vehicles, utilities, and phone records in her name so that law enforcement will not suspect illegal activities at the safe house. Acee also testified that large drug operations often utilized an organizational hierarchy similar to legitimate businesses. Acee recognized Gonzalez-Perez as a "broker," one who represents a geographical region and is responsible for hiring "managers" who are responsible for the money collection and often carry guns. At the bottom of the hierarchy are "runners" or "couriers" who simply take the product from the safe house and deliver it to neighborhood drug houses. Acee also testified about how drug distribution operations use communication devices such as prepaid cellular phones and walkie-talkies, stating:

In my experience, [prepaid cellular phones and walkie-talkies] are used as a communication — a secure communication device between people. I have seen, in — in terms of drug trafficking, where the person's driving the load vehicle, or the vehicle that's loaded with narcotics, can call ahead and check in with scouts that are put out on the road ahead of time to look for police roadblocks or police canine units, or just police cruisers in general; and they're also used to communicate to the driver of the load vehicle that it...