People v. Orbe
| Decision Date | 07 November 1994 |
| Docket Number | No. D019161,D019161 |
| Citation | 35 Cal.Rptr.2d 339,29 Cal.App.4th 1532 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Previously published at 29 Cal.App.4th 1532, 34 Cal.App.4th 954, 39 Cal.App.4th 436 29 Cal.App.4th 1532, 34 Cal.App.4th 954, 39 Cal.App.4th 436 The PEOPLE, Plaintiff and Respondent, v. Victor Manuel ORBE, Defendant and Appellant. |
Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Gary W. Schons, Asst. Atty. Gen., Keith I. Motley and Sara Gros-Cloren, Deputy Attys. Gen., for plaintiff and respondent.
A jury found Victor Manuel Orbe guilty of selling heroin (HEALTH & SAF.CODE, § 113522, subd. (a); count 1), transporting heroin (§ 11352, subd. (a); count 2), possessing heroin for sale (§ 11351; count 3), possessing cocaine for sale (§ 11351; count 4), and contributing to the delinquency of a minor (Pen.Code, § 272; count 7). On the possession for sale crimes in counts three and four, the jury found Orbe was personally armed with a firearm, a handgun, within the meaning of Penal Code section 12022, subdivision (c). Pursuant to instructions that simple possession charges were lesser included offenses, the jury did not return verdicts on such charges in counts five and six.
The trial court sentenced Orbe to prison for a total of seven years consisting of a midterm of three years on the possession of heroin for sale conviction in count three and a consecutive four-year term for being personally armed. The court imposed a concurrent four-year term on the sale of heroin conviction in count one and a concurrent seven-year term on the possession of cocaine for sale conviction with the firearm enhancement in count four. It stayed sentencing under Penal Code section 654 on the transporting heroin conviction in count two.
In his appeal Orbe contends (1) the trial court prejudicially erred when it did not instruct sua sponte on the weight to be given expert testimony, (2) the use of CALJIC No. 2.90 violated his federal due process and jury trial rights, (3) his convictions for both transportation and sale of heroin are cooperative acts constituting but one offense and do not support multiple convictions, (4) the findings of personal arming on the possession for sale convictions in counts three and four are not supported by the evidence, and (5) the court erred in imposing the personal arming enhancement for both counts three and four because the offenses comprised an indivisible transaction and were incident to one objective.
San Diego County Sheriff's Detectives Randall Webb and Larry Van Wey were part of a team investigating drug selling from an apartment at 245 Palm Drive in Vista. On October 20, 1992, they obtained a search warrant for the apartment, and on October 28 took out a room in a motel located about one mile away in order to carry out a controlled purchase of heroin. Webb telephoned the apartment at about 1 p.m. on October 28 and Orbe answered. Webb asked for "Gabby," 16 year-old Gabriella G. who was living with Orbe at the apartment. Orbe gave the telephone to Gabriella, and Webb asked her As Orbe walked back to the car in which he and Gabriella had traveled to the motel, Webb and Van Wey arrested him. Orbe was taken to the Vista sheriff's station. With Van Wey acting as the lead agent for the search, the deputies then went to the Palm Drive apartment to execute the search warrant. When Van Wey knocked and announced the deputies' purpose, he heard someone running inside. The deputies opened the door and entered, finding Orbe's father inside. In a search of Orbe's father, the deputies recovered a 35mm film canister containing 11 bindles of black tar heroin and a bag of cocaine along with $308 in cash. The bindles of heroin were of the same color and type as the bindle Orbe sold to Webb. The amount of heroin in the 11 bindles totaled 2.95 grams and individually ranged from .05 grams to one gram per bindle. A dosage unit of heroin is in the range of .03 to .06 grams and sells from $10 to $20 per unit. The cocaine bindle weighed 6.4 grams. Usually cocaine is sold in .15 to .25 gram quantities for $20 to $25 each.
to sell him $40 worth of heroin. Webb heard her tell Orbe that an unknown person wanted to buy black tar heroin. Orbe told her it was okay to make the sale. Webb gave directions to the motel room where he remained until Orbe arrived about 10 minutes later and sold one bindle of heroin to Webb for $40. Orbe and Gabriella were under surveillance by Van Wey and other officers from the time they left Orbe's apartment.
When Van Wey entered the apartment he saw a revolver on the couch about 10 or 12 feet from the front door which led into the kitchen. The revolver, a .38 Smith and Wesson, was loaded with six bullets. It was within 10 or 12 feet from various materials, such as three scales, plastic baggies and powdered sugar, indicating drug packaging activity took place in the living room and kitchen areas of the small two bedroom apartment. "Pay-owe" ledgers, a rental agreement and utility bills bearing Orbe's name were also found. A locked metal safe measuring two feet by two feet was on the living room floor. While the deputies were in the apartment, the telephone rang continuously, every four or five minutes. Webb answered six of the calls over a half-hour period, and on four of them the callers would first ask for Orbe, then Gabriella, then Orbe's father. On the other two calls, the callers asked for Orbe or Gabriella.
About three hours after Orbe's arrest, Webb gave Orbe his Miranda 3 rights which Orbe understood and waived. Orbe gave a confession, starting with his remembering talking to Webb on the telephone and telling Gabriella it was okay to make the sale of heroin Webb requested. Orbe said his father was asleep when the call was made. After the call from Webb, some guests left the apartment and Orbe put the film canister containing about two grams of heroin and seven grams of cocaine on the kitchen table. Orbe said he had been selling drugs for two to three months and his father had figured this out just two weeks earlier when he confronted him and Orbe told him about the whole business. After telling his father about the drug selling business, Orbe began openly leaving the drugs out instead of hiding them. Orbe said he was selling daily between one and one-half and two grams of heroin, $400 per day, and about one-half gram of cocaine, $50 per day. He said that when he went out to make a sale he normally left the majority of the drugs that he had for sale out in the open in the apartment.
Asked how he was set up in business, Orbe said the people he worked with were leaving him between six and eight grams of heroin and about seven grams of cocaine per week. These people also provided the revolver found in the apartment. In return for selling the drugs, the suppliers were paying Orbe and Gabriella $200 per week, paying for their apartment and paying the utilities.
The parties stipulated that Orbe's father and Gabriella both pled guilty to drug related felonies arising from the events of October 28, 1992.
Van Wey qualified as an expert and gave his opinion the bindles of heroin were possessed for sales based on the way they were packaged, preweighed using the scales, the amount present, the fact sales were memorialized
and [29 Cal.App.4th 442] the fact it was sold to Webb. Van Wey similarly opined the cocaine was possessed for sale based on distinctive entries in the pay-owe sheets referring to "blanca" and "negra," the scales, the packaging and the numerous telephone calls asking to purchase both cocaine and heroin. Van Wey said that persons who sell narcotics often arm themselves for multiple reasons including protection of their "investment" from robbers or the police.
Orbe contends the trial court prejudicially erred when it failed in its obligation to sua sponte instruct the jury on the weight to be given expert opinion testimony. Pertaining to the testimony of a criminalist about having tested and determined the substances to be cocaine and heroin and of the detectives, particularly Van Wey, about possession of heroin and cocaine for sale, Orbe argues CALJIC No. 2.80 4 on expert testimony should have been given sua sponte in accord with Penal Code section 1127b. (See People v. Bowens (1964) 229 Cal.App.2d 590, 600, 40 Cal.Rptr. 435 (disapproved on another point in People v. Mayberry (1975) 15 Cal.3d. 143, 158, 125 Cal.Rptr. 745, 542 P.2d 1337; see also People v. Reeder (1976) 65 Cal.App.3d 235, 241, 135 Cal.Rptr. 421; People v. Ruiz (1970) 11 Cal.App.3d 852, 865, 90 Cal.Rptr. 110.) Orbe acknowledges, however, the general rule is:
(Reeder, supra, 65 Cal.App.3d at p. 241, 135 Cal.Rptr. 421.)
Orbe focuses on the possession for sale counts, emphasizing that the heroin and cocaine were recovered from the person of his father and noting that to prove these counts the prosecution relied in part on the testimony of the officers about narcotics sales in general and the facts of this case in relation to the officers' expertise on the subject of narcotics sales. For example, he mentions the written materials which Van Wey described as records of amounts of drugs paid or sold, the powdered sugar and scales on the kitchen table that Van Wey said were used for cutting and packaging contraband, and the presence of the gun which contributed to Van Wey's conclusion the heroin and cocaine...
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People v. Orbe, S043613
...PEOPLE, Respondent, v. Victor Manuel ORBE, Appellant. No. S043613. Supreme Court of California. Nov. 22, 1995. Prior report: Cal.App., 35 Cal.Rptr.2d 339. Pursuant to rule 29.4(c), California Rules of Court, the above-entitled review is DISMISSED and cause is remanded to the Court of Appeal......