People v. Cattaneo

• Decision Date: 20 February 1990
• Docket Number: No. B038550,B038550
• Citation: 266 Cal.Rptr. 710,217 Cal.App.3d 1577
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Richard Antonio CATTANEO, Defendant and Appellant. Crim.

Page 710

266 Cal.Rptr. 710

217 Cal.App.3d 1577

The PEOPLE, Plaintiff and Respondent, v. Richard Antonio CATTANEO, Defendant and Appellant.

Crim. No. B038550.

Court of Appeal, Second District, Division 5, California.

Feb. 20, 1990.

Review Denied June 7, 1990.

Maureen J. Shanahan, under appointment by the Court of Appeal, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Edward T. Fogel, Jr., Mark Alan Hart, and William H. Davis, Jr., Deputy Attys. Gen., for plaintiff and respondent.

I. PROCEDURAL HISTORY

TURNER, Associate Justice.

In this appeal, Richard Cattaneo challenges his convictions for sale, furnishing, or transportation of cocaine on the ground that the evidence was insufficient to support the convictions for aiding and abetting the sales of the controlled substance. He also contends that the trial court erred in denying him probation and in sentencing him to the mid-term of four years. We have raised the issue of the lawfulness of the order staying the five-year enhancement that was imposed pursuant to Health & Safety Code section 11370.4, subdivision (a)(2). We affirm defendant's convictions and the concurrent four year terms for cocaine sale. However, as will be noted, the order staying the enhancement is reversed and the case is remanded with directions to either strike or impose the enhancement.

Defendant was charged by information and found guilty by a jury of two counts of sale, furnishing, or transportation of a controlled substance in violation of Health and Safety Code section 11352. The jury also found the special allegations contained in count 2 that defendant sold 57 grams of a substance containing cocaine hydrochloride within the meaning of Penal Code section 1203.073, subdivision (b)(1) and the substance containing cocaine exceeded 10 pounds by weight within the meaning of Health and Safety Code section 11370.4, subdivision (a)(2) to be true.

Defendant was sentenced to concurrent prison terms of 4 years on counts 1 and 2. The five-year enhancement for sale of more than 10 pounds of cocaine (Health & Saf.Code § 11370.4, subd. (a)(2)) contained in count 2 was imposed and then ordered stayed.

II. THE FACTS

There were two witnesses who offered relevant testimony concerning the charges involving defendant. The first witness, Deputy Narcizo Reaza of the Los Angeles County Sheriff's Department, stated that he had a conversation with an informant named David. The deputy was told by David that defendant was looking for a "large scale" narcotics seller. The informant, David, had known defendant for several years. On December 16, 1986, David and Deputy Reaza, who was working in an undercover capacity, met with defendant at a Tiny Naylor's restaurant in Arcadia. Deputy Reaza, who used the name Steve in his undercover role, said that he was the "man with the merchandise."

Defendant then took the deputy to another table. There, defendant introduced Deputy Reaza to Ronald Caiello (Caiello). Defendant said to Caiello, " 'Ronnie, this is Steve. This is the man with the merchandise. The guy with the coke.' " Caiello responded, " 'I understand you have some good coke for sale.' " Defendant then excused himself and said, " 'You guys go ahead and talk your business. I'll be around.' "

After defendant left the table, Deputy Reaza and Caiello discussed a cocaine transaction. Caiello said that his source of cocaine "had dried up" and that "he was looking for another source." Deputy Reaza said that he "had some good cocaine for sale" at a price of $24,000 per kilogram. Caiello counter-offered to buy the cocaine for $20,500 per kilogram. Deputy Reaza said that his $24,000 per kilogram figure was a "very good price." However, if Caiello "had a better price," Deputy Reaza offered to buy the cocaine from "him all day long." Caiello did not seem surprised by the deputy's offer to buy the contraband. However, Caiello did say that he never thought he would be selling the cocaine to Deputy Reaza. ¹

On December 24, 1986, Deputy Reaza purchased one-half kilogram of cocaine from Caiello. On December 31, the deputy purchased an additional seven kilograms of cocaine from Caiello. At the December 31 sale, Caiello and the deputy agreed to "deal some more cocaine." However, Caiello was immediately arrested thereafter.

Deputy Sheriff Jon Austin testified as to defendant's statements made following his arrest. Defendant said that he had a conversation with Caiello prior to being introduced to Deputy Reaza. During that conversation, Caiello asked defendant "if he knew anybody that wanted to buy large scale narcotics." Caiello in that conversation specifically mentioned cocaine. Defendant told Caiello that he did not know anyone who wanted to buy a large quantity of cocaine. However, defendant promised that if he became aware of somebody in the market for a large quantity of cocaine, he would "then get a hold of...." Caiello later.

Defendant further stated that he later arranged for a meeting between Caiello and a person "involved in narcotics trafficking." Defendant admitted that he introduced Deputy Reaza to Caiello at the Tiny Naylor's restaurant in Arcadia on December 16, 1986.

III. DISCUSSION

A. SUFFICIENCY OF THE EVIDENCE

Defendant contends that the evidence was insufficient to support a conviction for aiding and abetting the two sales of a controlled substance since the only evidence indicated that defendant made the introduction for the sole purpose of purchasing the cocaine and he had no knowledge that Caiello was going to be the seller. ² This argument is without merit.

The test for sufficiency of the evidence " 'is whether substantial evidence supports the conclusion of the trier of fact....' " (People v. Johnson (1980) 26 Cal.3d 557, 576, 162 Cal.Rptr. 431, 606 P.2d 738.) This court must review the whole record in the light most favorable to the judgment below to determine if there is substantial evidence such that a reasonable trier of fact could have found that the prosecution sustained its burden of proving beyond a reasonable doubt that defendant was guilty. (People v. Barnes (1986) 42 Cal.3d 284, 303, 228 Cal.Rptr. 228, 721 P.2d 110.) The issue in this case is not the role Caiello ultimately played as a seller rather than a buyer. Rather, it is whether defendant can be convicted of the acts of Caiello for selling the cocaine when defendant's intent at the December 16 meeting at the Tiny Naylor's restaurant in Arcadia was to facilitate the purchase of cocaine by Caiello from Deputy Reaza.

As an intermediary, defendant may be criminally liable for the ensuing contraband sales. The California Supreme Court has held, "[O]ne who acts as a go-between or agent of either the buyer or seller clearly may be found guilty of furnishing as an aider and abettor to the seller." (People v. Edwards (1985) 39 Cal.3d 107, 114, fn. 5, 216 Cal.Rptr. 397, 702 P.2d 555; People v. Richards (1961) 198 Cal.App.2d 465, 469-471, 17 Cal.Rptr. 845.) Courts in other states have reached similar conclusions. (State v. Hecht (1984) 116 Wis.2d 605, 342 N.W.2d 721, 731; Loder v. State (1976) 140 Ga.App. 166, 230 S.E.2d 124, 127, vacated by 238 Ga. 200, 232 S.E.2d 71, reaffirmed in 141 Ga.App. 665, 234 S.E.2d 132; State v. Mansir (Me.1982) 440 A.2d 6, 7.) Defendant, citing People v. Beeman (1984) 35 Cal.3d 547, 560, 199 Cal.Rptr. 60, 674 P.2d 1318, argues that the prosecutor was required to prove the existence of a specific intent on defendant's part to sell cocaine or to facilitate the particular sales ultimately made by Caiello. Such is not the law. In People v. Croy (1985) 41 Cal.3d 1, 12, fn. 5, 221 Cal.Rptr. 592, 710 P.2d 392, the Supreme Court held: "[A] defendant whose liability is predicated on his status as an aider and abettor need not have intended to encourage or facilitate the particular offense ultimately committed by the perpetrator. His knowledge that an act which is criminal was intended, and his action taken with the intent that the act be encouraged or facilitated, are sufficient to impose liability on him for any reasonably foreseeable offense committed as a consequence by the perpetrator. It is the intent to encourage and bring about conduct that is criminal, not the specific intent that is an element of the target offense, which Beeman holds must be found by the jury."

Therefore, the mental state that the prosecution was required to prove was that defendant intended to encourage or facilitate Caiello's commission of the crime of a large scale cocaine sale. (Ibid.) Defendant's intent to encourage or facilitate a major drug transaction was demonstrated by substantial circumstantial evidence. In his confession to Deputy Austin, defendant related that Caiello expressed a desire to find a large scale narcotics purchaser several weeks prior to the December 16 meeting in Arcadia. Caiello asked defendant, "if he knew anybody that wanted to buy a large quantity of cocaine." Defendant did not know of a prospective major purchaser of Caiello's cocaine then. However, if he met somebody who wanted to buy a large quantity of cocaine, defendant promised to "then get a hold" of Caiello. Once defendant became aware of Deputy Reaza's identity through the informant, David, the meeting with Caiello was arranged at the Tiny Naylor's restaurant. Defendant introduced Deputy Reaza to Caiello. Defendant's intent was further evidenced by his statements that Deputy Reaza was " 'the man with the merchandise. The guy with the coke.' "

Once that intent was formed, defendant's liability extended to the natural and reasonable consequences of the acts he knowingly and intentionally encouraged. "The critical element which must be found to establish vicarious liability for an unplanned offense is that the offense was in fact a natural and probable consequence of the targeted offense." (People v. Jones (1989) 207 Cal.App.3d 1090, 1096, 255 Cal.Rptr. 464.) It is a question of fact as to whether the...