People v. Razo
| Decision Date | 10 January 1990 |
| Docket Number | No. E005692,E005692 |
| Citation | 266 Cal.Rptr. 158,217 Cal.App.3d 616 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Previously published at 217 Cal.App.3d 616 217 Cal.App.3d 616 PEOPLE of the State of California, Plaintiff and Respondent, v. Jose Martinez RAZO, et al., Defendant and Appellant. |
A jury convicted Jose Razo and Ismael Razo of selling cocaine (Health & Saf.Code, § 11352), possessing cocaine for sale (Health & Saf.Code, § 11351), and conspiracy to sell cocaine (Pen.Code, § 182, subd. (a)(1)). They were sentenced to prison and appeal. Jose contends the trial court erred in admitting certain evidence and instructing the jury. He further contends that insufficient evidence was presented at trial to support his convictions. He and Ismael also contend the court committed sentencing error. We reject all their contentions, save part of the last one, and accordingly affirm with directions to the trial court to correct its sentencing error.
Undercover agent Pacheco, with the assistance of undercover informants Loera and a third man, entered into negotiations in Arizona with Oswaldo Garcia and Dennys Leyva for the purchase of five kilos of cocaine. Pacheco, Loera, Garcia and Leyva traveled to California to effect the sale. During phone calls among Pacheco, Garcia and Leyva, Pacheco was informed that the cocaine was coming from two brothers who had a house at a particular address in Pico Rivera. Jose and Ismael Razo were brothers who owned and occupied that house. Pacheco was also told that the suppliers of the cocaine were cousins of one Raphael Banda, who was also involved in the sale. At trial, it was revealed that the Razos were distant cousins of Banda. The group, minus Pacheco, met at the Razos' house, to which Pacheco made telephone calls. During one of the phone conversations, it was agreed that the group would meet in the parking lot of an Ontario inn, where the drug transaction would take place. They met, and while Pacheco and Garcia remained at the inn, the rest traveled in two cars to a house in Chino where the Razos were waiting. In Jose's presence, Leyva told Ismael that the money for the sale was "secure" and he obtained Ismael's permission to load the cocaine into a Lincoln car which Pacheco had rented earlier. On the way back to the inn parking lot, Jose drove the Lincoln for most of the journey, and he did so in a circuitous fashion. When they arrived back at the inn, the trunk of the Lincoln was opened in the presence of all the men. All but Pacheco and Loera were thereupon arrested.
a. Leyva's Statements
During one of the tape-recorded phone calls Pacheco made, Leyva attempted to calm Pacheco's fears about the sale of the five kilos by telling him that "the[se] person[s] we are dealing with" were Mexicans who were friends, like "family" and with whom he had been working for eight years. He told Pacheco that they have been living here for six years, and had bought a house "on the outside." He said they were brothers who lived together. He added that when he and Pacheco arrived at their residence, Pacheco would develop more confidence in them. He said one brother would be going with them. He then instructed Pacheco to go to a house in Pico Rivera which Jose later testified was the home he shared with his brother, Ismael. The tape also contained a statement by Leyva that "I take up to three and there is no problem" which Pacheco was permitted to testify meant that "they had given him three kilos of cocaine and ... that there was no problem."
Before trial began, 1 the parties disputed the admissibility of that portion of the above-mentioned telephone conversation in which "Leyva told Pacheco that the sellers or the owners of the cocaine were brothers, ... [were] Mexican, and they have been dealing with them for quite sometime and trusted them." During the motion on the admissibility of the statements, it was stipulated among the parties that Leyva, Garcia, Pacheco, and Loera went to California to make the sale and Leyva was to arrange the purchase on behalf of Pacheco, not as a representative of the California sellers, who included Jose. Once the sale was completed, the drugs were to be taken by Pacheco and a third man to New Mexico for distribution. There was no agreement between Leyva and the California sellers except that Leyva was to buy the drugs they were selling.
Jose argued below that these facts indicated that there was not one conspiracy but two--one among the buyers, of which Leyva was a member, to purchase, and one among the sellers to sell. He maintained that there was not and could not be a conspiracy between the two groups; therefore the statements were inadmissible under Evidence Code section 1223. 2 The trial court ruled there was prima facie evidence of a conspiracy involving both Leyva and Jose and the statements were admissible. Jose now contests this ruling. We agree with it.
First, we reject Jose's contention that there were multiple conspiracies. The parties agree that whether a particular series of acts constitutes one or a number of conspiracies is a question of fact. We agree with the trial court that there was sufficient prima facie evidence presented here that the acts of both the buyer group and the seller group were part of a larger, all-inclusive plan which had as its singular objective the distribution of cocaine. (People v. Morocco (1987) 191 Cal.App.3d 1449, 1453, 237 Cal.Rptr. 113.) We also reject Jose's suggestion that buyers and sellers of a drug are not in sufficient privity with each other to be members of the same conspiracy. 3 It is well established that middlemen or go-betweens to a drug sale are coconspirators with all others involved in the sale. (People v. Roberts (1953) 40 Cal.2d 483, 487-488, 254 P.2d 501; People v. Rodriguez (1963) 213 Cal.App.2d 555, 557, 29 Cal.Rptr. 83; People v. Pacheco (1961) 194 Cal.App.2d 191, 198, 14 Cal.Rptr. 840.) It is equally clear that it does not matter on which side of the fence--the buyer's or the seller's--that these enablers stand. In People v. Martinez (1960) 186 Cal.App.2d 529, 539, 9 Cal.Rptr. 61, the court found a conspiracy existed between the seller and one who arranged the sale on behalf of the purchaser. In People v. Cockrell (1965) 63 Cal.2d 659, 47 Cal.Rptr. 788, 408 P.2d 116, the Supreme Court upheld the conviction for conspiracy of the supplier of marijuana and one who represented the buyer.
Moreover, it is well established that "persons can be prosecuted as conspirators if, by buying, selling, or doing some other act, they knowingly participated in a general plan to place narcotics in the hands of ultimate users." (People v. Van Eyk (1961) 56 Cal.2d 471, 479, 15 Cal.Rptr. 150, 364 P.2d 326.) This rule was applied in People v. Lipinski (1976) 65 Cal.App.3d 566, 135 Cal.Rptr. 451 to the seller and one who arranged the purchase by the undercover agent/buyer of a large quantity of pills. The fact that distribution of the pills to their ultimate consumers could not have taken place because that distribution would have necessarily been at the hands of an undercover police officer did not deter the court from finding a conspiracy to sell existed and those who participated in it were guilty. 4 It is equally true that it is irrelevant where the anticipated eventual distribution is to occur. (See People v. Lipinski, id.; People v. Morales (1968) 263 Cal.App.2d 368, 69 Cal.Rptr. 402.) 5
Jose also reiterates here his claim below that the evidence should have been excluded pursuant to Evidence Code section 352. In this regard, he contended below: The trial court found the probative value of the statements outweighed their prejudicial impact and admitted them. We agree with the trial court, particularly in light of the defense's admission during trial that Jose and Ismael were indeed brothers and the lack of evidence at trial that Ramirez owned the drugs.
Finally, Jose takes issue with the admission of that portion of the taped conversation in which Leyva told Pacheco that "I take up to three, and there is no problem ..." and Pacheco's interpretation of this to mean, "that they had given him three kilos of cocaine and ... there was no problem." Unfortunately, Jose made no objection to this evidence below, so we may not consider his point on appeal. 6
The taped conversation was properly admitted into evidence. 7
Two police detectives testified for the prosecution at trial that they observed the driver of the Lincoln travel between the Chino house and the inn using a circuitous driving pattern, including the use of U-turns, stopping and starting, and getting on and off the freeway. They opined, based on their training and experience as narcotics officers, that this constituted "anti-surveillance" driving, aimed at avoiding detection from observing police...
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People v. Razo
...Respondent, v. Jose Martinez RAZO et al., Appellants. Supreme Court of California, In Bank. March 29, 1990. Prior Report: Cal.App., 266 Cal.Rptr. 158. Appellants' petitions for review Submission of additional briefing, otherwise required by rule 29.3, California Rules of Court, is deferred ......
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People v. Razo
...v. Jose Martinez RAZO et al., Appellants. No. S014126. Supreme Court of California, In Bank. Feb. 28, 1991. Prior Report: Cal.App., 266 Cal.Rptr. 158. 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, Fo......