People v. Mendival, F013870
| Decision Date | 08 January 1992 |
| Docket Number | No. F013870,F013870 |
| Citation | 2 Cal.App.4th 562,3 Cal.Rptr.2d 566 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Trinidad Angulo MENDIVAL, et al., Defendants and Appellants. |
[2 Cal.App.4th 564] Jolene Larimore, Santa Barbara, Carlo Andreani, San Francisco and Charles Bush, San Rafael, under appointment by the Court of Appeal, for defendants and appellants.
Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson, Acting Sr. Asst. Atty. Gen., W. Scott Thorpe, Janet Neeley Kvarme, and Edgar Kerry, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.
On December 26, 1989, co-defendants Alfredo Meza, Trinidad Mendival, and Juan Rodriguez were charged with transporting cocaine in count one (Health & Saf.Code, § 11352); and offering cocaine for sale in count two (Health & Saf.Code, § 11352). Co-defendants Meza and Mendival were charged with possessing cocaine for purpose of sale in count three (Health & Saf.Code, § 11351). It was also alleged that defendants transported more than three pounds of a controlled substance (Health & Saf.Code, § 11370.4, subd. (a)(1)); that Meza and Mendival were personally armed with a firearm (Pen.Code, § 12022, subd. (c)); 1 and that Rodriguez was armed with a firearm (Pen.Code, § 12022, subd. (a)).
On March 13, 1990, after jury trial, Meza was found guilty on all counts and the enhancements were found to be true. Rodriguez was found guilty on counts one and two (he was not charged in count three), and the enhancements were found to be true. Mendival was found guilty on all counts and the enhancements were found to be true.
[2 Cal.App.4th 565] On April 12, 1990, Meza was sentenced to the mid-term of four years on count one, with three years consecutively on the weight enhancement and four years consecutively on the personal arming enhancement, for a total of eleven years on count one; on count two, four years concurrent with a three-year weight enhancement; and on count three, three years concurrently plus a three-year weight enhancement. The arming enhancement on count three was stayed pursuant to Penal Code section 654, for a total sentence of eleven years.
On April 12, 1990, Mendival received the same sentence as Meza, for a total of eleven years in state prison.
On April 26, 1990, Rodriguez was sentenced to the mid-term of four years on count one, with three years consecutively on the weight enhancement and one year consecutively on the arming enhancement. On count two, he received a concurrent sentence of four years, with three years on the weight enhancement. Thus, his total sentence was eight years.
All three defendants now appeal.
Ascension Duran was a paid police informant.
On November 1, 1989, Duran went to Express Auto Body in Fresno and met Rodriguez, who worked there. Duran subsequently reported to his police contact, Officer Alex Flores, that Rodriguez said he could obtain cocaine.
On November 3, 1989, Duran, in response to a call he had received the night before from Rodriguez, went back to Express Auto Body. Rodriguez showed Duran a kilo of cocaine, and the two discussed purchase of the kilo by Duran. Duran did not, however, purchase the kilo, because Officer Flores was not prepared to make an arrest.
On November 6, 1990, Duran again went to Express Auto Body and again talked with Rodriguez. Rodriguez told Duran there was a likelihood of 50 kilograms of cocaine arriving in Fresno that evening or the next morning. If that occurred, Rodriguez continued, perhaps two kilos could be brought to Express Auto Body so that Duran could see them.
The next day, Duran went again to Express Auto Body. Rodriguez reported that the expected shipment had not arrived, and promised to get in touch with Duran when it did.
[2 Cal.App.4th 566] Duran returned to Express Auto Body on the following day, November 8, 1989. Rodriguez told Duran that there had been a miscommunication; the quantity had arrived, but it was no longer in the Fresno area.
The following day, November 9, 1990, Duran went to Express Auto Body and talked with both Rodriguez and Rodriguez's brother, Alfredo Meza. Meza told Duran that a kilo or more of cocaine could be delivered to the Stockton area; in fact, on previous occasions, he (Meza) and Rodriguez had made kilo quantity deliveries to Stockton and even further north than Stockton.
On November 20, 1989, Duran contacted Officer Flores, stated that he had spoken with Rodriguez, and expressed optimism that a sale of three to five kilograms could take place that afternoon or evening. Later the same day, Duran went to Express Auto Body. Rodriguez was there, and told Duran that Meza was out conducting business but would be back soon. When Meza got back, Rodriguez continued, Duran could be shown the cocaine. Duran could either stay at the shop and wait for Meza, or leave and call back later.
Duran left Express Auto Body and returned a short time later. This time Meza was present at Express Auto Body. Meza said to Duran: Meza pulled out in a car, and Duran immediately followed in his own car.
Meza led Duran to a residence on Iowa Street, and the pair went inside the residence. There Meza showed Duran three brick kilos. Meza and Duran discussed the possibility of Duran buying more than three kilos, and Meza said he could come up with two more within a day. Meza quoted Duran a price of $17,000 per kilo. This was the same price Rodriguez had quoted Duran earlier. Meza gave Duran his number, and told Duran to call him whenever he was ready. Duran left and contacted Officer Flores. He then called the number Meza had given him and arranged to meet Meza at Highway 99 and Olive.
Mendival arrived at the Iowa Street residence while Meza was there. The two of them went in Meza's white Toyota to a gas station. They then went to a house on Fourth Street. The Fourth Street house was Meza's uncle's house. Meza called Duran on the telephone from Meza's uncle's house after Duran had called Meza's beeper. During this telephone conversation Meza and Duran agreed to meet at Olive and Highway 99 at 6 p.m. Meza then returned to the Iowa Street residence with Mendival. Meza testified at first that he placed the three kilos of cocaine in the trunk of the car before he and Mendival went to the gas station and to Meza's uncle's house. Later he [2 Cal.App.4th 567] testified that he put the three kilos of cocaine in the trunk of the car after he and Mendival had returned from the trip to the gas station and to Meza's uncle's house.
Meza and Mendival then left the Iowa Street residence in the Toyota and met Duran at Olive and Highway 99. After three or four minutes, Duran's car and Meza's car headed north on 99. Shortly before the Meza vehicle was stopped by police, passenger Mendival was observed tossing a small object out the window. It was retrieved by police and was found to be a folded dollar bill containing a small amount of cocaine.
On Highway 99 the police stopped Meza's car. In the car were the driver, Meza, and the passenger, Mendival. Lying on the front floorboard of the car was an unloaded handgun. In the trunk of the car, inside a backpack, the police found 6.8 pounds of cocaine.
I. Appellant Meza
Appellant Meza, the driver of the car in which the 6.8 pounds of cocaine were found, admitted the substantive offenses and the weight enhancement. He contested only the allegation that he was personally armed with a firearm. On appeal, he contends that (1) the trial court improperly instructed the jury on the allegation that he was personally armed with a firearm, and (2) the imposition of a concurrent sentence on count two (offering to sell cocaine) is prohibited by Penal Code section 654.
The trial judge instructed the jury as follows:
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