People v. Harvey

• Decision Date: 30 August 1991
• Docket Number: Nos. G009197,G009312,s. G009197
• Citation: 233 Cal.App.3d 1206,285 Cal.Rptr. 158
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Catalina HARVEY, Gilberto Sanchez Villada, and Fabio Leon Gil, Defendants and Appellants.

Page 158

285 Cal.Rptr. 158

233 Cal.App.3d 1206

The PEOPLE, Plaintiff and Respondent, v. Catalina HARVEY, Gilberto Sanchez Villada, and Fabio Leon Gil, Defendants and Appellants.

Nos. G009197, G009312.

Court of Appeal, Fourth District, Division 3, California.

Aug. 30, 1991.

As Modified Sept. 5, 1991.

Certified for Partial Publication ^*

Review Denied Nov. 26, 1991.

[233 Cal.App.3d 1209] Joseph T. Vodnoy, Los Angeles, for defendant and appellant Gilberto Sanchez Villada.

Joseph F. Walsh, Los Angeles, for defendant and appellant Catalina Harvey.

Stephen Gilbert, Santa Monica, under appointment by the Court of Appeal, for defendant and appellant Fabio Leon Gil.

Daniel E. Lungren and John K. Van de Kamp, Attys. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Harley D. Mayfield, Sr. Asst. Atty. Gen., Robert M. Foster, Supervising Deputy Atty. Gen., and Nancy L. Palmieri, Deputy Atty. Gen., for plaintiff and respondent.

OPINION

MOORE, Associate Justice.

Gilberto Sanchez Villada, Catalina Harvey and Fabio Leon Gil, along with defendant Maria Otilia Villada, were charged in a criminal information with conspiracy to sell or transport cocaine and conspiracy to possess cocaine for sale. (Pen.Code, § 182, subd. (a)(1)/Health & Saf.Code, §§ 11352 and 11351). The information charged one or more of the defendants with 27 overt acts in furtherance of the conspiracy. Defendants were also charged with possession for sale of cocaine (Health & Saf.Code, § 11351) with an allegation the cocaine possessed for sale exceeded 100 pounds by weight (Health & Saf.Code, § 11370.4, subd. (a)(4)) and a further "probation ineligibility" allegation the amount sold or possessed for sale exceeded 57 grams. (Pen.Code, § 1203.073, subd. (b)(1).) Defendants waived jury and, during a court trial, a Penal Code section 1118 motion to dismiss was granted as to defendant Maria Otilia Villada. Defendants Gilberto Sanchez Villada, Catalina Harvey and Fabio Leon Gil were found guilty by the court of all of the charged crimes. The weight allegations were also found to be true.

Defendant Gilberto Sanchez Villada was sentenced to the mitigated term of two years in state prison on the possession for sale charge. A 15-year enhancement pursuant to Health and Safety Code section 11370.4, subdivision (a)(4) was also imposed for a total term of 17 years. Sentence on the conspiracy count was imposed and stayed pursuant to Penal Code section 654.

Defendant Catalina Harvey was sentenced to the mid-term of three years on the possession for sale charge. The court also imposed the 15-year enhancement pursuant to Health and Safety Code section 11370.4, subdivision (a)(4) for a total term of 18 years. Sentence on the conspiracy count was imposed and stayed.

Defendant Fabio Leon Gil was sentenced to the aggravated term of five years in state prison on the conspiracy charge. The court also sentenced defendant to the mid-term of three years on the possession for sale charge, but ran that sentence concurrent to defendant's five-year sentence on the conspiracy charge. The weight enhancement pursuant to Health and Safety Code section 11370.4, subdivision (a)(4) was ordered stricken.

On appeal defendant Villada contends the trial court erred in admitting evidence of drug and money ledgers; in admitting expert opinion as to cocaine transactions; in denying his motion to dismiss for insufficient evidence; in denying his motion to suppress based on police officers' alleged failure to comply with "knock-notice" and in failing to exercise the discretion to impose a sentence enhancement less than the entire 15 years pursuant to Health and Safety Code section 11370.4, subdivision (a)(3).

Defendant Harvey contends the court erred in admitting evidence of drug and money ledgers; in admitting expert opinion as to cocaine transactions; in denying her motion for acquittal pursuant to Penal Code section 1118 and in imposing the 15-year sentence enhancement.

Defendant Gil contends the trial court erred in failing to grant his motion to dismiss pursuant to Penal Code section 1118; in allowing expert opinion testimony as to cocaine transactions; in allowing the introduction of drug and money ledgers and in imposing sentences for both possession of cocaine for sale and conspiracy to possess cocaine for sale.

I FACTS

A joint investigation by federal, state and local law enforcement agencies named "Operation Polarcap" focused on money laundering operations taking place in a wholesale jewelry business in downtown Los Angeles called "Ropex Incorporated." A federal court order was obtained authorizing the installation of a surveillance camera inside Ropex. Law enforcement also targeted "money runners," those individuals who brought drug proceeds from narcotics dealers to Ropex. It was through the surveillance of one particular money runner, Eduardo Ortiz, that law enforcement became aware of the activities of the defendants.

The cogent facts of this case begin on November 21, 1988. Law enforcement officers were following and surveilling Ortiz, whom they had seen delivering money to Ropex. Ortiz was observed with an individual by the name of Javier Villada behind a Denny's restaurant in Costa Mesa. Each was in a separate car. After meeting, they drove about two blocks to a dead end street and spoke to one another. Javier Villada handed Ortiz a cardboard box, which Ortiz put in his car.

After his meeting with Ortiz, Javier Villada was followed to the South Coast Plaza Mall in Costa Mesa. He parked his car in the parking lot and sat in it for about 20 minutes. He got out of his car and made a phone call at a pay phone. He reentered his car and drove across the street to a gas station, where he began filling his tires with air. He continued to watch traffic during the time he was in the gas station. He got back into his car and drove to a K-Mart located in the City of El Toro. He made another call from a pay phone. He then drove to a residence on Eaglemont Avenue in the City of El Toro. He left the residence about 20 minutes later with one of his cousins, defendant Gilberto Villada. They drove together to a post office in El Toro. Javier Villada went inside the post office, while Gilberto Villada made a 30-minute phone call. This call appeared to law enforcement officers to be a credit card call or a "beeper" call. During Gilberto Villada's phone call, Javier Villada came out of the post office and was handed the phone. Javier spoke for a short time and handed the phone back to Gilberto. After the call, they drove back to the Eaglemont residence.

Later that day, they left the Eaglemont residence, got into separate cars, and drove to the John Wayne Orange County Airport. The gold Pontiac driven by Gilberto Villada was returned to the Avis Rent-A-Car lot. Javier Villada had recently been arrested for driving under the influence in the car that was returned.

Javier Villada returned to the Eaglemont residence. He later came outside accompanied by two women, Nancy LeDesma and Maria Otilia Villada. Nancy LeDesma was Javier's fiance. Maria Otilia Villada was Javier and Gilberto's aunt. The three individuals drove to the Mission Viejo shopping plaza and went into a Montgomery Ward store. Javier received a beeper call and left the store by himself. He drove to the Laguna Hills shopping plaza and parked in the parking lot. After waiting a few minutes, he entered the Broadway store. He came out of the store accompanied by defendants Catalina Harvey and Fabio Gil. They got into Javier's car and drove around the parking lot as they talked. Harvey and Gil got out of Javier's car and into a black Mercury Merkur. Javier returned to the Montgomery Ward's store.

After the meeting between Eduardo Ortiz and Javier Villada, Ortiz and another person entered Ropex. The other person carried a briefcase which contained approximately $100,000 in bundles held together by rubber bands. Ortiz carried a cardboard box which contained approximately $300,000. The money was processed through a money counting machine and wrapped in paper.

On December 1, 1988, Gilberto Villada left the Eaglemont residence and drove to a security-type apartment complex at Second and Mariposa Streets in Los Angeles. He carried a blue gym bag which appeared to be very heavy and was let into the security complex by someone inside after speaking into an intercom. Shortly thereafter, he was seen standing inside the gated garage area of the apartment complex speaking with a Latin male who, in turn, was speaking on a portable cellular telephone. After the two spoke for several minutes, Gilberto Villada left the garage area, got back into his car, and drove back to Orange County. The blue gym bag which he was carrying appeared to be significantly lighter than it had been upon his entry.

On December 2, Gilberto Villada left the Eaglemont residence and drove to the Laguna Hills shopping mall, where he drove up and down the aisles of the parking lot without parking. He then drove to an area near the front of a Broadway store, where Fabio Gil was walking with two children. The two spoke for several minutes.

Fabio Gil went into the Broadway store with the two children and then left the store. He walked over to a pay phone and made two beeper-type calls. After the second, the phone rang and Gil spoke for several minutes to the person on the other end of the line. He left the parking lot with the two children, driving the black Mercury Merkur and drove to a townhome on Sunstream in the City of Irvine. Gil, Harvey and Harvey's mother left the Sunstream townhome together and drove to a security-type apartment complex at La Brea and Coliseum Streets in the City of Los Angeles. It was late afternoon and traffic was bumper to bumper the entire way. They pressed an intercom-like device and were admitted into the security complex. Harvey was seen inside one of the apartments speaking with a black gentleman. Minutes later, the three individuals...