People v. Tinajero

• Decision Date: 02 November 1993
• Docket Number: No. F017646,F017646
• Citation: 24 Cal.Rptr.2d 298,19 Cal.App.4th 1541
• Parties: The PEOPLE, Plaintiff and Respondent, v. Gerardo Cervantes TINAJERO, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 298

24 Cal.Rptr.2d 298

19 Cal.App.4th 1541

The PEOPLE, Plaintiff and Respondent, v. Gerardo Cervantes TINAJERO, Defendant and Appellant.

No. F017646.

Court of Appeal, Fifth District, California.

Nov. 2, 1993.

[19 Cal.App.4th 1543] Michael J. Fitzpatrick, Tahoe, under appointment by the Court of Appeal, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson, Sr. Asst. Atty. Gen., Margaret Garnand Venturi and Janis Shank McLean, Deputy Attys. Gen., for plaintiff and respondent.

OPINION

HARRIS, Associate Justice.

STATEMENT OF THE CASE

On January 6, 1992, an information was filed in Tulare County Superior Court charging appellant Gerardo Cervantes Tinajero with felony sale or transportation of cocaine (Health & Saf. Code, § 11352) with an enhancement for a prior drug conviction within the meaning of section 11370.2, subdivision (a), and service of a prior prison term within the meaning of Penal Code section 667.5, subdivision (b).

On January 8, 1992, appellant was arraigned and pleaded not guilty. Appellant's jury trial began on February 25, 1992. On February 27, appellant was found guilty. He waived his right to a jury trial as to the enhancements. The court found the Health and Safety Code section 11370.2, subdivision (a) enhancement to be true, and the Penal Code section 667.5, subdivision (b) enhancement not to be true. On March 26, 1992, the court denied probation and appellant was sentenced to the mid term of four years, with a consecutive term of three years for the enhancement.

On April 9, 1992, a timely notice of appeal was filed. On August 24, 1992, appellate counsel filed an opening brief pursuant to People v. Wende (1979) 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071. On January 25, 1993, and May 4, 1993, this court requested additional briefing from the parties.

STATEMENT OF FACTS

On November 26, 1991, Officer Thomas Salazar of the Tulare Police Department was working undercover with the interagency narcotics enforcement team. He came into contact with appellant Tinajero and discussed purchasing several kilos of cocaine from him. Appellant stated that his connection wouldn't produce that much, but offered one kilo for "trust" and others would follow if the purchase went smoothly. Appellant stated that he possibly could get a kilo for about $14,000. Appellant promised to contact Salazar after speaking with his connection.

Salazar called appellant around noon on November 27. Appellant stated that he hadn't contacted his connection because his connection wouldn't be home until 5 p.m. Appellant promised to contact Salazar as soon as he spoke with his connection. Appellant called Salazar at 5:51 p.m., and reported that everything was ready. Salazar agreed to meet him at 6:30 p.m. at a rest stop on Highway 99 just north of Traver.

At 6:30 p.m., Salazar arrived at the rest stop accompanied by an unmarked undercover backup unit. Appellant arrived at the rest stop 45 minutes later, and Salazar was waiting for him on a park bench. Appellant opened the hood of his car and fiddled inside the engine compartment for several minutes, then closed the hood and walked toward Salazar. They discussed whether appellant needed oil for his vehicle and walked toward appellant's car. Just before they reached his car, appellant said, " 'The stuff's inside.' " Appellant entered the driver's side, and Salazar sat on the front passenger seat. Appellant said, " 'It's on the floor,' " and Salazar noticed a plastic package on the floorboard. Salazar picked it up and opened it. Inside was a hard package wrapped in beige plastic. Salazar took possession of the package. Salazar told appellant that the money was in the trunk of his car, and they left appellant's vehicle and walked toward Salazar's car. As Salazar unlocked the trunk, he gave the signal for his backup unit to move in and arrest appellant, but they didn't immediately respond. Salazar attempted to stall for a little time and told appellant that he couldn't find the money. Appellant offered to help him, and reached into the trunk to look for the money. Appellant found the brown paper bag containing $15,000 cash, pulled it out of the trunk, and handed it to Salazar. Salazar opened the bag and showed appellant the money, then placed the plastic package into the trunk of his car. As Salazar and appellant walked back toward appellant's car, the backup unit finally arrived and appellant was taken into custody.

It was later determined that the plastic package consisted of approximately one kilo of pure cocaine hydrochloride.

Salazar testified his conversations with appellant were conducted in Spanish. Salazar explained that he spoke a little Spanish but was not fluent. On cross-examination Salazar was impeached with his testimony from the preliminary hearing in which he stated that he did not discuss the price of $15,000 with appellant prior to the sale. Salazar was asked the reason for bringing $15,000 when they agreed to the purchase price of $14,000. Salazar explained that his sergeant gave him that particular sum of money to use in the undercover operation. The defense rested without calling any witnesses.

Appellant was charged with one count of violating Health and Safety Code section 11352, sale or transportation of cocaine. During closing argument, the prosecutor argued that the incident at the rest stop established both the sale and the transportation of cocaine. Appellant transported cocaine based on Salazar's testimony that appellant arrived at the rest stop with a kilo of cocaine in his car. The prosecutor also argued that the evidence established the sale of cocaine: "Detective Salazar took possession of the cocaine in the defendant's car. He later showed the defendant a flash of the $15,000 that he had in the trunk of his undercover car." Defense counsel attacked the veracity of Salazar's testimony, pointing to the conflict regarding the prearranged price in the preliminary hearing transcript and whether Salazar could speak Spanish and conduct a conversation with appellant. Counsel also argued that appellant never took possession of the bag of money and that Salazar never intended to give it to him. Salazar merely showed appellant the money and retained the bag. "So at some point Officer Salazar has the money and the drugs. My client has nothing. He's certainly never has the money." In rebuttal, the prosecutor inferred that Salazar never intended to let appellant leave with the money.

The jury was instructed that appellant was accused of violating Health and Safety Code section 11352: "Every person who transports, sells, furnishes, [administers] or gives away a controlled substance, namely cocaine, is guilty of the crime. p In order to prove such crime, each of the following elements must be proved: A person sold or transported cocaine, a controlled substance, and two, such person had knowledge of [its] presence and nature as a controlled substance." The jury also received the unanimity instruction: "The defendant is accused of having committed the crime of sale or transportation of cocaine. The prosecution has introduced evidence tending to prove there is more than one act upon which a conviction may be based. The defendant may be found guilty if the proof shows beyond a reasonable doubt that he committed any one or more of such acts. However, in order to return a verdict of guilty, all jurors must agree that he committed the same act or acts. It is not necessary that the particular act agreed upon be stated in your verdict." The defense did not request, and the trial court did not give, instructions on any lesser included offenses.

Appellant was found guilty of violating Health and Safety Code section 11352, sale or transportation of cocaine.

The issues on appeal are whether the court had a sua sponte duty to instruct on possession for sale and simple possession as lesser included offenses of sale of cocaine, and assuming instructional error, is it reversible pursuant to People v. Guiton (1993) 4 Cal.4th 1116, 17 Cal.Rptr.2d 365, 847 P.2d 45 given the alternative nature of the charged offense.

DISCUSSION

The initial question posed by this case is whether the trial court had a sua sponte duty to instruct on lesser included offenses to the alternative charged offense of sale of cocaine. Where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense. (People v. Lohbauer (1981) 29 Cal.3d 364, 369, 173 Cal.Rptr. 453, 627 P.2d 183.) The court must instruct on a lesser included offense, even if not requested to do so, when the evidence raises a question as to whether all of the elements of the charged offense are present and there is evidence that would justify a conviction of such a lesser offense, but not when there is no evidence that the offense was less than that charged. (People v. Turner (1990) 50 Cal.3d 668, 690, 268 Cal.Rptr. 706, 789 P.2d 887; People v. Barrick (1982) 33 Cal.3d 115, 133, 187 Cal.Rptr. 716, 654 P.2d 1243; People v. Kaurish (1990) 52 Cal.3d 648, 696, 276 Cal.Rptr. 788, 802 P.2d 278.)

"The necessity for instructions on lesser included offenses is based in the defendant's constitutional right to have the jury determine every material issue presented by the evidence. [Citations.] As the United States Supreme Court explained in Keeble v. United States (1973) 412 U.S. 205, 212 [93 S.Ct. 1993, 1997-98, 36 L.Ed.2d 844] ...: '[I]t is no answer to petitioner's demand for a jury instruction on a lesser included offense to argue that a defendant may be better off without such an instruction. True, if the prosecution has not established beyond a reasonable doubt every element of the offense charged, and if no lesser offense instruction is offered, the jury must, as a theoretical matter, return a verdict of acquittal. But a defendant is entitled to a lesser offense instruction--in this...