State v. Lopez

• Decision Date: 14 November 1995
• Docket Number: No. 13307-9-III,13307-9-III
• Citation: 904 P.2d 1179,79 Wn.App. 755
• Court: Washington Court of Appeals
• Parties: The STATE of Washington, Respondent, v. Antonio Verda LOPEZ, Appellant.

Page 755

79 Wn.App. 755

904 P.2d 1179

The STATE of Washington, Respondent, v. Antonio Verda LOPEZ, Appellant.

No. 13307-9-III.

Court of Appeals of Washington, Division 3 Panel Three.

Nov. 14, 1995.

Keith W. Howard, Wenatchee, for Appellant.

James A. Hershey, Deputy Prosecuting Attorney, Wenatchee, for Respondent.

THOMPSON, Chief Judge.

Antonio Verda Lopez appeals his convictions for two counts of possession of cocaine with intent to deliver. We hold the two convictions are for the same offense, and thus are a double jeopardy violation. We affirm the conviction for the remaining count and remand for resentencing.

On February 8, 1993, the Columbia River Drug Task Force was working undercover with a confidential informant, Shelly Harris. Ms. Harris knew a person living at the Bruce Hotel in Wenatchee, who she believed would purchase a large quantity of cocaine. The plan was that Ms. Harris and Detective Michael Simmons would go to the hotel in her car. She would go inside and get the person, then drive him to Lincoln Park and negotiate a deal. Detective Simmons was given two ounces of cocaine to make the deal.

Ms. Harris entered the hotel at approximately 5:30 p.m., while Detective Simmons waited. Within a short while, she came out with Mr. Lopez, who got into the back seat of the car. Ms. Harris offered to sell Mr. Lopez two ounces of good rock cocaine. Mr. Lopez seemed interested. Upon Detective Simmons' suggestion, they drove to Lincoln Park. Several other task force members, including Detectives Bruce Long and Larry Aiken, followed. Ms. Harris briefly parked in a lot in the park. Detective Simmons showed the cocaine to Mr. Lopez. Detective Simmons and Ms. Harris each told him the price for the two ounces would be $1,300. Mr. Lopez said he did not have the money with him, but he had it at the hotel. They drove back to the hotel, and Mr. Lopez went inside. Within a couple of minutes, he returned to the vehicle with Rogelio Hernandez. Mr. Lopez and Mr. Hernandez got into the back seat; Detective Simmons and Ms. Harris were in front. Mr. Hernandez, who spoke better English than Mr. Lopez, asked to see the cocaine. On Detective Simmons' insistence, they first returned to the parking lot at Lincoln Park. The surveillance team again followed to await an arrest signal from Detective Simmons.

At Lincoln Park, Detective Simmons handed the cocaine to Mr. Hernandez. Mr. Hernandez and Mr. Lopez examined it closely and conversed in Spanish. Mr. Hernandez again asked the price. Detective Simmons repeated the $1,300 price. Mr. Lopez and Mr. Hernandez conversed again, and Mr. Hernandez then asked Detective Simmons if he would take $1,000. Detective Simmons said, "Yes." Mr. Hernandez pulled out some money; he and Mr. Lopez counted out $1,000. They handed the money to Detective Simmons; he gave them the cocaine, which Mr. Lopez put in his left front pants pocket. Detective Simmons saw Mr. Lopez reach across and appear to hand something to Mr. Hernandez with a closed fist. Mr. Hernandez appeared to put an item in his pocket.

Detective Simmons then gave the bust signal, and several officers converged on the Harris vehicle. Detective Long shined his flashlight in the back seat and saw Mr. Lopez put his hand in his right front pocket, pull out the cocaine and leave it on the seat. The officers then arrested Mr. Lopez and Mr. Hernandez.

Detective Aiken took Mr. Lopez into custody. He recovered $600 in currency from Mr. Lopez' left front pants pocket, along with an envelope containing fourteen individual quarter-gram bindles of cocaine, weighing a total of 4.7 grams. In Mr. Lopez' right front pants pocket was $208 in currency. His wallet contained $18.50. The officers found no drug user paraphernalia on either Mr. Lopez or Mr. Hernandez.

Officer Bruce Nash recovered two baggies of cocaine from the floorboard in the back seat of the car. It appeared to be the cocaine that was sold to Mr. Lopez.

Detective Long testified about how cocaine dealers generally package their wares. The seller normally purchases quantities of one ounce or more at wholesale prices, cuts the drugs with a neutral substance such as inositol, and then repackages them into smaller baggies or packages such as grams for resale. These smaller quantities typically appear in paper bindles or very small plastic baggies with the end tied or heat-sealed. These small quantities typically sell for $20 to $50 each. The ounce sizes sell for $500 to $1,000. The street value of the two ounces of cocaine purchased by Mr. Lopez, if sold by the gram at the prevailing price of $80, would have been $4,560. Mr. Lopez' cost was $1,000. In Detective Long's experience, among the indicators that cocaine is being possessed with intent to deliver are a large number of small individual packages and large quantities such as two ounces, as was the case here. These factors led Detective Long to recommend charging Mr. Lopez with intent to deliver.

Mr. Lopez admitted going with Ms. Harris to buy cocaine on February 8 because he was an addict and consumed the drug at the rate of about a gram per day. He said he spent an estimated $200 to $300 per week on his habit. Mr. Lopez testified Mr. Hernandez came with him as an interpreter, and that Mr. Hernandez counted out $1,000, and Mr. Lopez gave it to the officer in exchange for the cocaine. Mr. Lopez testified he then put out his hand so that Mr. Hernandez could give him any money left over from the deal. He denied giving any cocaine to Mr. Hernandez. He testified all of the money used in the transaction was his own, and that he had earned it working construction. He had no idea how much he earned in 1992. Mr. Lopez admitted at the time of arrest he also possessed some cocaine that he had purchased earlier, and that he sometimes buys a two- or three-month supply.

The State charged Mr. Lopez with two counts of unlawful possession of cocaine with intent to deliver and one count of delivery of cocaine to a person under age 18 (Mr. Hernandez) in a public park. The case went to jury trial on April 13-14, 1993.

The jury convicted Mr. Lopez of the two counts of possession of cocaine with intent to deliver, but acquitted him of the delivery charge. The court imposed concurrent forty-two-month, standard range sentences. This appeal followed. ¹

Double jeopardy

We first address Mr. Lopez' argument the convictions for two counts of possession with intent to deliver subject Mr. Lopez to double jeopardy. The double jeopardy clauses of the Fifth Amendment and Wash. Const. art. I, § 9 prohibit multiple punishments for the same offense. State v. Gocken, 127 Wash.2d 95, 896 P.2d 1267 (1995). Mr Lopez contends here ² that the two convictions for possession with intent to deliver actually are based on a single act, and that he therefore has been punished twice for the same offense. ³

For multiple acts to constitute the "same offense," they must be the same both in law and in fact. State v. Vladovic, 99 Wash.2d 413, 423, 662 P.2d 853 (1983). Double jeopardy questions frequently arise when a defendant is convicted of multiple, different crimes arising from the same set of events. See, e.g., Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981); State v. Calle, 125 Wash.2d 769, 888 P.2d 155 (1995). The question in that circumstance is whether the Legislature intended to authorize separate punishments. Albernaz, 450 U.S. at 343, 101 S.Ct. at 1145; Calle, 125 Wash.2d at 778-80, 888 P.2d 155. These cases address whether the offenses are the same in law.

Other cases address whether multiple offenses are the same in fact. See State v. McFadden, 63 Wash.App. 441, 452, 820 P.2d 53 (1991), review denied, 119 Wash.2d 1002, 832 P.2d 487 (1992); see also State v. Garcia, 65 Wash.App. 681, 690, 829 P.2d 241, review denied, 120 Wash.2d 1003, 838 P.2d 1143 (1992). The question in these cases is whether the events are so related as to merge into a single offense. Garcia, 65 Wash.App. at 690, 829 P.2d 241.

Here, there is no question that Mr. Lopez' convictions are the same offense at law; they are based on violation of the same statute, RCW 69.50.401. The question, then, is whether the two convictions were in fact one offense for double jeopardy purposes.

The State argues Mr. Lopez' possession of the fourteen bindles of cocaine (which he obtained before the transaction) is separate from his possession of the two ounces of cocaine (which he obtained during the transaction). The State contends Mr. Lopez possessed two separate quantities of the drug, at different times and locations. This argument appears to be based in part on the fact that Mr. Lopez acquired the cocaine from more than one source and possessed the drugs in different ways. However, it is difficult to see how the source of contraband or how it is held should have an effect on the crime of possession.

Separating a defendant's possessions on this basis would create proof problems in other contexts. For example, RCW 69.50.401(a)(1)(i)(B) dramatically increases the penalty for possession of two or more kilograms of controlled substances. If the source of the drug or the manner in which it was possessed was a determining factor, a careful defendant could avoid the heightened penalty simply by making sure he acquired them in or divided them into amounts of less than two kilograms. See also RCW 69.50.401(e) (making it a misdemeanor to possess forty grams or less of marijuana).

The State also points out that Mr. Lopez possessed cocaine at different times and places. While any event can be split into increasingly smaller units, "[t]he Double Jeopardy Clause is not such a fragile guarantee that prosecutors can avoid its limitations by the simple expedient of dividing a single crime into a series of temporal or spatial units." Brown v. Ohio, 432 U.S. 161, 169, 97 S.Ct. 2221, 2227, 53 L.Ed.2d 187 (1977) (holding auto theft and joyriding during nine-day period were a single...