The PEOPLE, Plaintiff and Respondent, v. Albert MATTOCKS, Defendant and Appellant.
Albert Mattocks appeals from his conviction of one count of conspiracy to transport and sell marijuana and cocaine, and two counts of transporting marijuana. He claims that under the exception to the inconsistent verdict rule, his acquittal of the substantive charge of transporting cocaine requires dismissal of the conspiracy allegation that he unlawfully transported cocaine. Assuming the correctness of his first argument, he then argues that Penal Code section 654 prohibits sentencing him for conspiracy based on the transportation of marijuana and for the substantive counts of transporting marijuana. We conclude that the verdicts are not inconsistent, and affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
The information in this case alleged that on a number of different occasions between April 1993 and August 1994 appellant and co-conspirator Louis Brown engaged in trafficking of cocaine and marijuana through the use of mail service. Count 1 of the eight-count information charged the two men with conspiracy to commit the crime of sale or transportation of cocaine/marijuana in violation of Health & Safety Code sections 11352, subdivision (a) and 11360. Eight overt acts were charged as to count 1:
(1) “On or between April 30, 1993 and January 20, 1994, defendant Louis Brown mailed 12 express mail packages, with fictitious return addresses, to the state of New York from Los Angeles County.”
(2) “On December 16, 1993, co-conspirators Albert Mattocks and Louis Brown sent an express mail package containing 22 pounds of marijuana with a fictitious return address of 110505 Riverside Dr., North Hollywood, CA 91607 to the state of Maryland.”
(3) “On January 24, 1994, co-conspirators Albert Mattocks and Louis Brown sent an express mail package containing 3,954.49 grams of cocaine with a fictitious return address of Louis Smith, 11505 [sic] Riverside Dr., # 206, North Hollywood, CA 91602 to the state of New York.”
(4) “Also on January 24, 1994, co-conspirators Albert Mattocks and Louis Brown sent an express mail package containing 8,924 grams of marijuana with a fictitious return address of Anthony Brown, 7125 Delongpre, # 207, Los Angeles, CA 90046 to the state of New York.”
(5) “On February 10, 1994, co-conspirators Albert Mattocks and Louis Brown sent an express mail package containing 6,721.15 grams of marijuana with a fictitious return address of 2308 S. La Brea Ave., Los Angeles, CA 90016.”
(6) “On March 11, 1994, co-conspirators Albert Mattocks and Louis Brown were driving in a Nissan Pathfinder and possessed handguns, express mail receipts, shipping and packing materials, pagers, carpet deodorizer, and over $4,000 cash.”
(7) “On August 20, 1994, co-conspirators Albert Mattocks and Louis Brown received a mailed package containing $35,440 in cash.”
(8) “On August 20, 1994, co-conspirators Albert Mattocks and Louis Brown maintained residences at 11505 Riverside Dr., # 204, North Hollywood, CA 91602 and at 11312 Morrison St., # 18, North Hollywood, CA where they possessed 9,762.18 grams of marijuana, a handgun, scales, express mail receipts for parcels weighing a total of over 150 pounds, over one hundred blank express mail shipping forms, a large quantity of shipping and packing materials, pagers, carpet deodorizer, over $25,000 cash and a bullet proof vest.”
The jury found appellant guilty of count 1, conspiracy to transport cocaine and marijuana, and guilty of counts 4 and 5, sale or transportation of marijuana on January 24, 1994 and February 10, 1994. He was found not guilty on count 3, sale or transportation of cocaine on January 24, 1994, and on count 8, possession of marijuana for sale on August 20, 1994. A mistrial was declared as to count 2, sale or transportation of marijuana on December 16, 1993, and counts 6 and 7 were dismissed pursuant to defense motion.
Appellant was sentenced to the high term of 5 years on count 1, and to consecutive one-year terms on counts 4 and 5. He appeals from the judgment of conviction.
The authorized punishment for conspiracy is the punishment specified for the object offense. (Pen.Code, § 182.) Appellant's five-year sentence on the conspiracy count (count 1) was the upper term for the overt act involving transportation of cocaine alleged in count 1. He argues this was improper, since the jury's finding the cocaine allegation true was inconsistent with its verdict, finding him not guilty on count 3, transporting cocaine.
The general rule regarding inconsistent verdicts is set out in the final sentence of Penal Code section 954: “An acquittal of one or more counts shall not be deemed an acquittal of any other count.” “[O]ur courts have ․ viewed an inconsistent acquittal as the product of confusion or an act of mercy on the part of the jury, of which an appellant is not permitted to take further advantage.” (People v. Pahl (1991) 226 Cal.App.3d 1651, 1657, 277 Cal.Rptr. 656.)
A narrow exception has developed in conspiracy cases. That exception comes into play when a defendant is charged with conspiracy and the requisite overt acts, and charged with separate offenses using the exact language of overt act allegations. In such a case, acquittal of the separate offenses necessarily acquits the defendant of the conspiracy. (In re Johnston (1935) 3 Cal.2d 32, 34–36, 43 P.2d 541.) “The conspiracy exception is limited, applying only where, as in Johnston, an overt act alleged in a conspiracy charge is identical to another charged offense of which defendant is acquitted.” (People v. Pahl, supra, 226 Cal.App.3d at p. 1658, 277 Cal.Rptr. 656.) Under those unique circumstances, “section 954 should not be construed to support a judgment of conviction for conspiracy, because the defendant has been acquitted of every charged overt act.” (Ibid.)
Appellant does not claim he should have been acquitted of the conspiracy count; he recognizes that acquittal on the cocaine transportation count is not inconsistent with true findings as to seven of the overt act allegations. (See People v. Robinson (1954) 43 Cal.2d 132, 138, 271 P.2d 865 [“[W]here there are overt acts alleged in the conspiracy count in addition to those constituting the substantive offense, there may be a conviction of conspiracy and acquittal of the substantive offense.”]; see also People v. Guerrero (1943) 22 Cal.2d 183, 188, 137 P.2d 21.) He claims only that the true finding on the cocaine allegation should have been stricken, since he was acquitted of the identical offense charged in count 3. This would result in a reduction of his sentence, since the sentence range for sale or transportation of cocaine is 3, 4 or 5 years (Health & Saf.Code, § 11352, subd. (a)), and the sentence range for sale or transportation of marijuana is 2, 3 or 4 years. (Health & Saf.Code, § 11360, subd. (a).) If the finding as to the cocaine allegation is stricken, the maximum sentence on count 1 would be 4 years.
Count 3 of the information alleged: “On or about January 24, 1994, in the County of Los Angeles, the crime of SALE/TRANSPORTATION/OFFER TO SELL CONTROLLED SUBSTANCE, in violation of HEALTH AND SAFETY CODE SECTION 11352(a), a Felony, was committed by ALBERT MATTOCKS and LOUIS LAMONT BROWN, who did willfully and unlawfully transport, import into the State of California, sell, furnish, administer, and give away, and offer to transport, import into the State of California, sell, furnish, administer, and give away, and attempt to import into the State of California and transport a controlled substance, to wit, COCAINE.”
Overt Act No. 3 (later renumbered No. 2) alleged: “On January 24, 1994, co-conspirators Albert Mattocks and Louis Brown sent an express mail package containing 3,954.49 grams of cocaine with a fictitious return address of Louis Smith, 11505 Riverside Dr., # 206, North Hollywood, CA 91602 to the state of New York.” None of the other overt acts contained allegations specifying cocaine.
The substantive allegations are the same: that on or about January 24, 1994, appellant and Louis Brown transported or sold, or attempted to transport or sell, cocaine. The same proof was offered as to both: two suspicious-looking parcels came to the attention of a postal inspector in Pasadena, drug dogs alerted to the parcels, which were opened pursuant to a search warrant; one parcel contained approximately 4 kilograms of cocaine and the other contained approximately 7 kilograms of marijuana. The parcels were addressed to the Bronx, New York. Latent fingerprints on the parcels matched appellant's fingerprints.
Looking only this far, it would seem that the overt act of transporting cocaine and the substantive offense of transporting cocaine were essentially identical, bringing this case within the conspiracy exception to section 954. But the case was argued on conspiracy and aider and abettor theories, and the jury instructions on liability of a co-conspirator differed significantly from the jury instructions on liability of an aider and abettor.
On the conspiracy count, the jury was instructed in terms of CALJIC No. 6.10 that “A conspiracy is an agreement entered into between two or more persons with the specific intent to agree to commit the public offense of transportation of cocaine or transportation of marijuana, and with the further specific intent to commit such offense, followed by an overt act committed in this state by one or more of the parties for the purpose of accomplishing the object of the agreement. Conspiracy is a crime. [ ¶ ] In order to find the defendant guilty of conspiracy, in addition to proof of the unlawful agreement and specific intent, there must be proof of the commission of at least one of the overt acts alleged in the information. It is not necessary [to] the guilt of the defendant that he personally committed the overt act, if he was one of the conspirators when such an act was committed. [ ¶ ] The term ‘overt act’ means any step taken or act committed by one or more of the conspirators which goes beyond mere planning or agreement to commit a public offense and which step or act is done in furtherance of the accomplishment of the object of the conspiracy.”
The court read to the jury the overt acts which were alleged, including “Overt Act Number 2: On January 24, 1994 co-conspirators Albert Mattocks and Louis Brown sent an express mail package containing 3.95 kilograms of cocaine with a fictitious return address of Louis Smith, 11505 Riverside Drive, Number 206, North Hollywood, California 91602 to the state of New York.”
The jury was instructed in terms of CALJIC No. 6.11: “Each member of a criminal conspiracy is liable for each act and bound by each declaration of every other member of the conspiracy if such act or such declaration is in furtherance of the object of the conspiracy. [ ¶ ] The act of one conspirator pursuant to or in furtherance of the common design of the conspiracy is the act of all conspirators. [ ¶ ] A member of a conspiracy is not only guilty of the particular crime that to his or her knowledge his or her confederates are contemplating committing, but is also liable for the natural and probable consequences of any acts of a co-conspirator to further the object of the conspiracy, even though such act was not intended as a part of the original plan. And even though he or she was not present at the time of the commission of such act. [ ¶ ] You must determine whether defendant is guilty as a member of a conspiracy to commit the crime originally contemplated and, if so, whether the crime alleged in Count 3, transportation of cocaine, was perpetrated by co-conspirators in furtherance of such conspiracy and was a natural and probable consequence of the originally contemplated criminal objective of the conspiracy.” (Emphasis added.)
On Count 3, the jury was instructed in terms of CALJIC No. 12.02: “The defendant is accused in Count 3 of the information of having violated section 11352 of the Health and Safety Code, a crime. [ ¶ ] Every person who transports a controlled substance, namely, cocaine is guilty of the crime of violation of section 11352 of the Health and Safety Code, a crime. [ ¶ ] In order to prove such crime, each of the following elements must be proved: [ ¶ ] One, a person transported cocaine, a controlled substance; [ ¶ ] Two, such person had knowledge of its presence and nature as a controlled substance.”
The jury then received instructions on aiding and abetting, beginning with CALJIC No. 3.00: “Persons concerned in the commission of a crime who are regarded by the law as principals in the crime and equally guilty thereof are: [ ¶ ] One, those who directly and actively commit the act constituting the crime or; [ ¶ ] Two, those who aid and abet the commission of the crime.” Aiding and abetting was defined in terms of CALJIC No. 3.01: “A person aids and abets the commission of a crime when he or she, [ ¶ ] One, with knowledge of the unlawful purpose of the perpetrator and, [ ¶ ] Two, with the intent or purpose of committing, encouraging or facilitating the commission of the crime by act or advice aids, promotes, encourages or instigates the commission of the crime. [ ¶ ] A person who aids and abets the commission of the crime need not be personally present at the scene of the crime.”
The jury was not instructed in terms of CALJIC No. 3.02, which provides in pertinent part: “One who aids and abets [another] in the commission of a crime [or crimes] is not only guilty of [that crime] [those crimes], but is also guilty of any other crime committed by a principal which is a natural and probable consequence of the crime[s] originally aided and abetted.”
The omission is significant. The prosecutor argued to the jury that it “may find and the evidence shows that Mr. Mattocks was not the one perhaps who actually put the parcel on the counter of UPS, but certainly was involved in the process as an aider and abettor and as a co-conspirator. [ ¶ ] An aider and abettor is someone who, with the purpose of committing, encouraging or facilitating the crime by act or advice promotes, encourages or instigates the commission of the crime. Aids, promotes or encourages. That's the key thing.”
Later, the prosecutor discussed the liability of a conspirator for the acts of his or her co-conspirators: “[I]f you find that there was a conspiracy and even though one person may not have done a particular act, as long as there was conspiracy, everybody is liable for everybody else's acts. You are also liable for acts that naturally flow from the type of criminal activity that you were involved in. [ ¶ ] And that would apply in this case with the cocaine and marijuana. If you are involved in shipping marijuana on an ongoing basis, one of your co-conspirators ships the cocaine package, that is a natural and probable consequence of being in a full scale marijuana shipping operation that you also, from time to time, are going to ship some cocaine using the same modus operandi.”
Based on this argument and the court's instructions, the jury could have determined that the transportation of cocaine by a co-conspirator was a natural and probable consequence of being involved in a conspiracy to transport marijuana. Under this reasoning, the jury could find true the overt act allegation that appellant and his co-conspirator shipped a package of cocaine on January 24, 1994.
Neither the argument nor the instructions presented the natural and probable consequences theory for finding appellant guilty of aiding and abetting the transportation of cocaine, as alleged in Count 3. Instead, the jury was instructed that “A person aids and abets the commission of a crime when he or she, [ ¶ ] One, with knowledge of the unlawful purpose of the perpetrator and, [ ¶ ] Two, with the intent or purpose of committing, encouraging or facilitating the commission of the crime by act or advice aids, promotes, encourages or instigates the commission of the crime.” (CALJIC No. 3.01) If the jury believed that appellant did not know that Louis Brown's “unlawful purpose” on January 24, 1994 was the transportation of cocaine, under these instructions, appellant could not be found guilty of that crime as an aider and abettor. In light of the distinctions between the conspiracy and aiding and abetting theories presented to the jury, the verdicts were not inconsistent.
Appellant's second argument, that Penal Code section 654 precluded his separate punishment for counts 4 and 5, is dependent on the success of his first argument, which would have resulted in dismissal of the true finding of the cocaine portion of the conspiracy count. Having rejected the first argument, we must also reject the second.
The judgment is affirmed.
EPSTEIN, Associate Justice.
CHARLES S. VOGEL, P.J., and BARON, J., concur.