People v. Tolliver
| Decision Date | 11 March 2008 |
| Docket Number | No. C049959.,C049959. |
| Citation | 160 Cal.App.4th 1231,73 Cal.Rptr.3d 375 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Jason TOLLIVER et al., Defendants and Appellants. |
Marilyn G. Burkhardt, under appointment by the Court of Appeal, for Defendant and Appellant Jason Tolliver.
Jerald W. Newton and Terrence A. Roden for Defendant and Appellant Antonio Villasenor.
Edmund G. Brown, Jr. and Bill Lockyer, Attorneys General, Dane R. Gillette and Mary Jo Graves, Chief Assistant Attorneys General, Michael P. Farrell, Senior Assistant Attorney General, J. Robert Jibson and Jesse Witt, Deputy Attorneys General, for Plaintiff and Respondent.
Defendants Jason Tolliver and Antonio Villasenor were involved in a large-scale drug trafficking enterprise. Convicted by jury and sentenced to state prison, they each appeal. In the published portion of this opinion, we conclude that Villasenor did not have a legitimate privacy interest in his vehicle because he disassociated himself from the vehicle to avoid having it connected to him in the event it was stopped during its use in the drug trafficking. In the unpublished portion of this opinion, we find no merit in Villasenor's remaining contentions. As to Tolliver, however, we conclude, also in the unpublished portion of the opinion, that his sentence must be reversed and the matter remanded for a new trial concerning whether one of his prior convictions was for a serious felony.
By indictment and later amendments to the indictment, Tolliver and Villasenor were charged, along with 13 others. The counts applicable to Tolliver and Villasenor were as follows:
• Count one (Tolliver and Villasenor), conspiracy to transport cocaine between noncontiguous counties (Health & Saf.Code, § 11352, subd. (b); Pen. Code, § 182, subd. (a)(1)), with the following additional allegations: (1) the offense involved more than 40 kilograms of cocaine (Health & Saf.Code, § 11370.4, subd. (a)(5)); (2) Villasenor and Tolliver were substantially involved in the planning, direction, execution or financing of the underlying offense (Health & Saf.Code, § 11370.4, subd. (a)); (3) a principal was armed with a firearm during the commission of the offense (Pen.Code, § 12022, subd. (a)(1)); (4) Villasenor induced others to participate in the offense or occupied a position of leadership in its commission (Cal. Rules of Court, rule 4.421(a)(4));
• Count two (Villasenor), conspiracy to use a minor to transport cocaine (Health & Saf.Code, § 11353, subd. (b); Pen.Code, § 182, subd. (a)(1));
• Count four (Tolliver and Villasenor), conspiracy to transport and sell cocaine (Health & Saf.Code, § 11352, subd. (a); Pen.Code, § 182, subd. (a)(1)), with the additional allegation that a principal was armed during the commission of the offense (Pen.Code, § 12022, subd. (a)(1));
• Count five (Tolliver and Villasenor), conspiracy to transport and sell methamphetamine (Health & Saf.Code, § 11379, subd. (a); Pen.Code, § 182, subd. (a)(1)), with the additional allegation that a principal was armed during the commission of the offense (Pen. Code, § 12022, subd. (a)(1));
• Count six (Tolliver and Villasenor), sale of methamphetamine (Health & Saf.Code, § 11379, subd. (a)) • Count eight (Villasenor), sale of cocaine (Health & Saf.Code, § 11352, subd. (a));
• Count eleven (Villasenor), possession of a false compartment to conceal a controlled substance (Health & Saf. Code, § 11366.8, subd. (a));
• Count twelve (Villasenor), possession of a false compartment to conceal a controlled substance (Health & Saf. Code, § 11366.8, subd. (a));
• Count thirteen (Tolliver), possession of methamphetamine for sale (Health & Saf.Code, § 11378), with an additional allegation that he possessed the methamphetamine in crystalline form (Pen. Code, § 1170.74); and
• Count fourteen (Tolliver), possession of cocaine (Health & Saf.Code, § 11350, subd. (a)).
An amendment to the indictment further alleged that Tolliver was convicted of two prior serious felonies: a 1992 conviction for brandishing a firearm against a person in a motor vehicle and a 1992 conviction for assault with a firearm.
A jury found Tolliver guilty on counts four, five, six, thirteen, and fourteen. It found true the allegation that he possessed methamphetamine in crystalline form, but found not true the arming allegations. The jury was unable to reach a verdict on count one, as to which the trial court declared a mistrial and later dismissed on the prosecution's motion. The jury found that Tolliver had two prior convictions, and the court found that those prior convictions were for serious felonies.
The same jury found Villasenor guilty on all counts alleged against him except count six, on which the jury found Villasenor not guilty. The jury also found true all of the additional allegations relating to Villasenor.
At Tolliver's sentencing, the court granted Tolliver's motion to strike the prior serious felony findings as they related to counts four, five, thirteen, and fourteen. But the court denied the motion as to count six. It sentenced Tolliver to 25 years to life in state prison on count six and a middle term of two years, consecutive, on count thirteen. The terms for the remaining counts were imposed as concurrent terms, giving Tolliver a total determinate term of two years and an indeterminate term of 25 years to life in state prison.
At Villasenor's sentencing, the trial court imposed the upper term of nine years for count one, plus consecutive 20-year and one-year terms for the weight and arming enhancements, respectively. The court imposed the middle term for each of the remaining counts and either stayed the term pursuant to Penal Code section 654 or made the term concurrent to the term imposed for count one. Villasenor's total determinate term was 30 years.
Because of the nature of the defendants' contentions on appeal, it is unnecessary to recount the details of the two-year investigation of the crimes. We therefore provide only a brief summary of the illegal activities in which Tolliver and Villasenor engaged and add details, as needed, in the discussion of their contentions on appeal.
An investigation conducted by a multiagency task force uncovered a large drugtrafficking operation that, among other illegal activities, sought to transport large quantities of cocaine from Texas to Sacramento. Using numerous investigative techniques, such as informants, searches, visual surveillance, and wiretapping, the investigators were able to identify Tolliver and Villasenor as participants in the illegal activities. Villasenor, along with John Quintero, was at the head of the organization, while Tolliver distributed controlled substances.
In early 2002, the investigation revealed trips between Texas and Sacramento on behalf of the trafficking operation. Jesse Vasquez, who worked under Villasenor in the organization, sent Sandra Cortez, a load car driver from Sacramento, on two trips to Texas and back. After Cortez's trips, Vasquez sent Joseph Duarte, another load car driver, to Texas in a Chrysler Concorde that had a false compartment installed in the trunk. While waiting in Texas for the directive to return to Sacramento, Duarte got cold feet and returned to Sacramento, leaving the Concorde in Texas. Other recruits took over and started the trip back to Sacramento in the Concorde and a red Jaguar that Cortez had used on her trips.
On May 16, 2002, the investigators, who had tracked the Concorde as it traveled, arranged for law enforcement in Texas to stop the Concorde and Jaguar. The resulting search revealed about 49 kilograms stashed in the false compartment of the Concorde. On the same day, Villasenor's home was searched, as well as a vehicle in his driveway. A firearm was found in the vehicle. Tolliver's residence was also searched that day, and a significant amount of methamphetamine was found.
Villasenor moved to suppress evidence obtained as a result of law enforcement's seizure of his 1993 Chrysler Concorde and installation of a GPS tracking device and subsequent tracking of the Concorde. The trial court denied the motion. It concluded that Villasenor did not have a reasonable expectation of privacy in the Concorde because he disassociated himself from the Concorde to avoid having it connected to him in the event it was discovered during its use in the drug trafficking. Villasenor argues, on appeal, that the trial court's denial of the motion to suppress was error because Villasenor owned the Concorde and therefore had a privacy interest in it. We agree with the trial court that, under the circumstances of this case, Villasenor did not have a legitimate expectation of privacy in the Concorde.8
On March 21, 2002, Villasenor sent his brother, Raymond, to Grass Valley to purchase a 1993 Chrysler Concorde that Villasenor had read about in a newspaper advertisement. He gave Raymond money, about $3,000 in cash, for the purchase. Villasenor did not sign any paperwork for the car and his name was not listed on the pink slip. Raymond's name was listed on the pink slip and the release of liability. Villasenor did not register the car with the Department of Motor Vehicles, and he did not obtain insurance under his name. He followed this procedure because he intended to use the car to transport, controlled substances and he did not want the car associated with himself in any way. He knew that Duarte, the load car driver, would be taking the car to Texas, and he did not want the car to be associated with him if Duarte was caught and the car was searched.9
Through its investigation of Villasenor's drug-related activities, the Sacramento County Sheriffs Department concluded Villasenor and his coconspirators would use the Concorde as a load car to transport controlled substances. On this basis, the...
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Appendix E
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