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.
1. Admission of Evidence
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: “[T]he reference is to [people] who [are] brothers. That doesn't prove who those brothers are. In a 352 sense, what we have in this case are two people who have the last name Razo who are before the jury. [¶] ․ [S]ince the [preliminary hearing] testimony ․ is that the owner [of the drugs] was, in fact, identified as ․ Ramirez, the hearsay statement by Leyva becomes unreliable and confusing․ Unless one could rule out that Ramirez has a brother who is involved in the, quote, business, I think it becomes highly prejudicial․” 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
2. Jury Instructions
a. Expert Opinion
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 officers. Jose later admitted on the stand that it was he who was driving the Lincoln from the Chino house, and that he was not following the other car driven by Leyva. Loera corroborated Jose's admission that he was the Lincoln's driver.
Jose now claims that the detective's opinions constituted expert testimony and the trial court erred by failing to instruct the jury, sua sponte, that it was not bound to accept them as conclusive, but could give them whatever weight was appropriate. (CALJIC No. 2.80.)
We disagree with the People that the detectives did not testify as experts when they offered their opinions that the manner in which Jose was driving was tied to drug trafficking. Certainly, this is beyond the ken of the ordinary person. CALJIC No. 2.80 should have been given. Its absence from the trial, however, does not require reversal as we conclude that it is unlikely a different result would have occurred had it been given.
As Jose points out, the detectives' observations were not corroborated by Loera, who was in the car at the time. Even if the jury believed the officers' testimony, that portion of it in which they described their actual observations (the starting and stopping, taking a circuitous route, and getting on and off the freeway) would not have been affected by an instruction on expert opinion. The jury could have concluded, based on the manner in which Jose drove the car, that he was doing so to avoid detection and apprehension by the police. Moreover, there is ample other evidence tying Jose to the crimes, which evidence is outlined below. The omission of CALJIC No. 2.80 did not significantly prejudice Jose.
b. Leyva's Statements
The jury was instructed, according to CALJIC No. 6.24, as to Leyva's statements previously discussed as follows:
“Any evidence of a statement made by one alleged conspirator other than at this trial shall not be considered by you as against another alleged conspirator unless you shall first determine from other independent evidence that at the time the statement was made a conspiracy to commit a crime existed and unless you shall further determine that the statement was made while the person making the statement was participating in the conspiracy and before or during the time the person against whom it was offered was participating in the conspiracy and, finally, that such statement was made in furtherance of the objective of the conspiracy.
“The word ‘statement’ as used in this instruction includes any oral or written verbal expression or the nonverbal conduct of a person intended by him as a substitute for oral or written verbal expression.”
During argument to the jury, the prosecutor's comment that Leyva's statements were admissible against Jose was interrupted by Jose's counsel. At a bench conference, the latter took issue with the prosecutor's contention that the statements were in furtherance of the conspiracy, and therefore admissible against Jose. It developed that the prosecutor and Jose's counsel disagreed about the prima facie showing required before the jury could consider admissions made in furtherance of the conspiracy. The prosecutor took the position that the prima facie proof need relate only to the existence of the conspiracy. Jose maintained that the proof must extend to his involvement in the conspiracy. Although counsel for Jose pressed for a ruling from the court on the foundational requirement underlying CALJIC No. 6.24, he abandoned this request after arguing to the jury that the proof must cover his involvement and the prosecutor's assurance that he would not contradict this in his closing argument, which he did not. The jury, of course, was left with the impression, via argument, that prima facie proof of the conspiracy must extend to Jose's involvement in it.
On appeal, Jose claims the jury should not have been given CALJIC No. 6.24 without being informed that the prima facie proof of the conspiracy must extend to his involvement. Although it is stated in People v. Perez, (1978) 83 Cal.App.3d 718, 728, 148 Cal.Rptr. 90, that “[t]he preliminary fact which must be established ․ is the existence of the conspiracy between the party and the declarant ․” neither Perez nor any other case Jose cited below or here, or any case we have found, holds that the prima facie proof must extend to the defendant's involvement. Nor have we been made aware of any decision which concludes that CALJIC No. 6.24 is an incorrect statement of the law or is confusing.
Even if there were such a requirement, it was clearly met here as defense counsel was permitted to argue this to the jury without contradiction by the prosecution. Finally we are persuaded, as outlined more specifically below, that there was sufficient independent proof of Jose's involvement in the conspiracy to permit reception of the statements at trial.
c. Accomplice Instructions
Jose complains that the jury was not instructed, sua sponte, that out-of-court statements by Leyva, Ramirez and Garcia implicating him must be corroborated because the three men were accomplices in the sale. (CALJIC Nos. 3.10, 3.11, 3.12, and 3.16.) None of these three men testified at trial.
As the People correctly point out, in People v. Pic'l, (1981) 114 Cal.App.3d 824, 873–874, 171 Cal.Rptr. 106 [reversed on other grounds in People v. Pic'l (1982) 31 Cal.3d 731, 183 Cal.Rptr. 685, 646 P.2d 847; disapproved on other grounds in People v. Kimble (1988) 44 Cal.3d 480, 498, 244 Cal.Rptr. 148, 749 P.2d 803] Bernard Jefferson, writing for the court, held, “The corroboration-of-accomplice-testimony requirement is derived from Penal Code section 1111. [¶] ․ [I]n order for the corroboration requirements of Penal Code section 1111 to be considered applicable, we would have to hold that the out-of-court statements of [the coconspirator] constituted ‘testimony’ within the meaning of section 1111. [¶] ‘Testimony is limited to that sort of evidence which is given by witnesses speaking under oath or affirmation․’ [¶] The only departure from this generally accepted concept that ‘testimony’ is limited to in-court statements given under oath by a witness ․ is found in ․ [People v.] Belton [ (1979) 23 Cal.3d 516, 153 Cal.Rptr. 195, 591 P.2d 485] ․ In Belton, the accomplice-witness' in-court testimony was exculpatory. It was the out-of-court statements of the witness that constituted the incriminating evidence against the defendant which needed corroboration under Penal Code section 1111. Since [the coconspirator] before us did not testify at all as [a] witness[ ], the Belton case cannot constitute authority for holding that [his] out-of-court hearsay statements constituted ‘testimony’ within the meaning of Penal Code section 1111.”
We agree with Jefferson's reasoning in Pic'l and note that it remains good law. Moreover, the jury was instructed that there must be independent corroboration of all the statements of the coconspirators, who were clearly identified during trial as including Leyva, Ramirez and Garcia. Assuming it was error to omit the accomplice instructions, we cannot see how this prejudiced Jose, given the instructions that were read to the jury.
3. Insufficiency of the Evidence
Jose claims there was insufficient evidence to convict him of the crimes because the People's case proved only that he drove the Lincoln. He is incorrect. Jose and Ismael were identified early in the conspiracy as the suppliers of the cocaine. This fact was corroborated at the Chino house when Ismael's permission was sought and obtained for the release of the drug and its transportation to the inn parking lot. Jose was a few feet away when this conversation took place. Jose admitted himself that he drove the Lincoln, without following the other car, back to the inn. Jose was present when the trunk of the Lincoln was opened. The fact the jury failed to find, as an overt act of the conspiracy, that Jose, Leyva and Ramirez met with Garcia and Pacheco for the purpose of selling the drug is of no moment. There is no requirement in conspiracy law that the parties meet. (In re Darrell T. (1979) 90 Cal.App.3d 325, 334, 153 Cal.Rptr. 261.)
Jose also claims that because the object of the conspiracy, i.e., the sale of the cocaine, had already occurred when he drove the Lincoln, he could not be guilty of any of the charged offenses. We disagree with his premise. Although those at the house had been told that the money Pacheco was using to purchase the drugs had been “secured” before the drugs were placed in the trunk of the Lincoln, the fact remains that no money whatsoever had or ever did pass hands. Moreover, we reject Jose's characterization of the deposit of the drugs in the trunk as turning them over to the buyer when, in fact, Jose thereafter took possession of the keys and drove the car most of the way to the inn parking lot. The sale had still not been completed (the drugs were not in Pacheco's hands and the money was not in the hands of the sellers) when the arrests were made. Jose's point has no merit.
a. The Enhancement
Both Jose and Ismael received a five-year enhancement, pursuant to Health and Safety Code section 11370.4, subdivision (a)(2), because the amount of cocaine involved exceeded ten pounds. They were also sentenced to the lower term of three years for the principal offense of selling cocaine. They contend the five-year enhancement violates the proscription against imposing a total sentence more than double the base term (Penal Code section 1170.1, subdivision (g)). While noting there is much room to disagree on this subject, we conclude that the better decision is to follow the course impliedly stated by the Supreme Court, through its method of depublication and denying hearing, and find that 1170.1, subdivision (g), does not apply to section 11370.4, subdivision (a)(2).
At the time these crimes were committed, section 1170.1, subdivision (g), provided exceptions to its double-the-base-term proscription. Section 11370.4, subdivision (a)(2), was not among them, although this was later rectified by legislation the year these crimes occurred, the legislation being effective six months after the commission. In People v. Carvajal (1988) 202 Cal.App.3d 487, 501–502, 249 Cal.Rptr. 368, the second district noted that: “The express purpose of [section 11370.4] was ‘to punish more severely those persons who are in the regular business of trafficking in, or production of, narcotics and those persons who deal in large quantities of narcotics as opposed to individuals who have a less serious, occasional, or relatively minor role in this activity.’ (Assem. Bill No. 2320 (1985–1986 Reg.Sess.) ch. 1398, § 1.) [¶] ․ Were we [to literally apply section 1170.1(g)'s prohibition against double-the-base-term sentences] ․ a five-year enhancement could be imposed on a person possessing ten pounds or more of cocaine only if the upper base term of five years were selected. In the case of a person convicted of possessing 25 or more pounds of cocaine, the 10–year enhancement [provided by 11370.4(a)(3) ] could never be imposed since the double-the-base-term limitation of Penal Code section 1170.1 would be violated even if the upper, 5–year term were imposed. [¶] A cardinal rule of statutory interpretation requires that statutes ‘be construed in a reasonable and common sense manner consistent with their apparent purpose and the legislative intent underlying them—one practical, rather than technical, and one promoting a wise policy rather than mischief or absurdity.’ [Citation.] Moreover, ‘a statute should not be given a construction that results in rendering one of its provisions nugatory.’ [Citation.] We decline appellants' invitation to interpret Health and Safety Code section 11370.4 and Penal Code section 1170.1, subdivision (g) in a manner which violates both of these rules. [¶] In holding that enhancements under Health and Safety Code section 11370.4 are not limited by subdivision (g) of Penal Code section 1170.1, we are cognizant that ‘[o]rdinarily, any reasonable doubts as to the proper meaning of an ambiguous criminal statute should be resolve in favor of the defendant.’ [Citation.] ‘However, this rule is not inflexible and courts decline to apply it where it leads to results that are contrary to legislative intent or that fail to prevent the harm that is identified in the statute or that override common sense and create palpable absurdities.’ [Citation.] [¶] We hold that enhancements under Health and Safety Code section 11370.4 were not, in 1986, limited by the double-the-base-term rule of former Penal Code section 1170.1, subdivision (g), despite the Legislature's initial, inadvertent failure to include such enhancements among the enumerated exclusions. To hold otherwise would frustrate the Legislature's purpose to punish narcotic drug dealers in proportion to the quantity of drug possessed. [Citation.]”
Of course, as the parties acknowledge, People v. Matus, which reached the opposite conclusion, was depublished by the Supreme Court. More recently, in People v. Garcia (1989) 211 Cal.App.3d 1096, 260 Cal.Rptr. 71, [hearing denied], Division One of this court applied an analysis identical to Carvajal 's in discussing section 1170.1, subdivision (g)'s inapplicability to Health and Safety Code section 11370.2, which provides enhancements for repeat drug dealers. Our brothers at Division One held,
“․ Penal Code section 1170.1, subdivision (g), has been amended since the time of [the defendant's] crime to expressly exclude from the twice-the-base-term rule enhancements imposed under section 11370.2, as well as those under section 11370.4. [Citation omitted.] At the time of the amendment, the Assembly File Analysis spoke of the amendment in regard to the inclusion of [the] section[s] as an attempt to ‘clarify’ the intent of the Legislature, that the judge could impose a sentence of over twice-the-base-term on [certain] drug offenders ․ ‘[W]e regard this belated amendment as declaratory of existing law rather than an expansion of the exceptions to the double-the-base-term rule.’ [Citation omitted.] Consequently, no ex post facto application of the amended statute occurred․” (Id. at pp. 1102–1103, 260 Cal.Rptr. 71; emphasis added.)
The five-year enhancements here were properly imposed.
b. Concurrent Terms
The sentencing court imposed concurrent terms for the defendants' convictions of conspiracy and possessing cocaine for sale. The parties agree that this was a violation of section 654. We will, therefore, stay the punishment for those offenses.
Jose's and Ismael's sentences for possessing cocaine for sale (count 2) and for conspiracy (count 3) are stayed, pursuant to Penal Code section 654. The trial court is directed to amend the Abstract of Judgment to reflect this. In all other respects, the judgments are affirmed.
1. Appellate counsel for Jose causes this court extreme inconvenience and potentially jeopardizes his client's interests by failing to indicate that the points he urges on appeal were brought below in a pretrial motion. Appellate counsel cites only to the objection made during trial which had no relevance whatsoever to the issues addressed here.
2. “§ 1223. Admission of co-conspirator. Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if:“(a) The statement was made by the declarant while participating in a conspiracy to commit a crime or civil wrong and in furtherance of the objective of that conspiracy;“(b) The statement was made prior to or during the time that the party was participating in that conspiracy; and“(c) The evidence is offered either after admission of evidence sufficient to sustain a finding of the facts specified in subdivisions (a) and (b) or, in the court's discretion as to the order of proof, subject to the admission of such evidence.”
3. Jose cites a number of cases which hold that in a simple drug sale, the buyer does not have an intent common with the seller such that the former can be considered an accomplice of the latter. These cases, however, do not hold that buyers and sellers may not form conspiracies.Jose cites People v. Donahue (1975) 46 Cal.App.3d 832, 120 Cal.Rptr. 489, which, he claims, supports his contention that buyers and sellers are not in sufficient privity to be coconspirators. Donahue makes no such rule. Donahue produced an obscene movie in 1971. Two years later, a theater owner and his manager showed the movie in their theater. The Court of Appeal affirmed the trial court's refusal to bind over the three on a conspiracy charge, saying, “[The theater owner's and manager's] possession of the film two years [after Donahue produced it] with the intent to exhibit it ․ does not lead to the conclusion that [the three] agreed and conspired to produce and exhibit the allegedly obscene film․ ‘[A] defendant ․ could not be found guilty of conspiring to [prepare/exhibit an obscene film] in the absence of evidence that he and one or more other persons entered into an agreement, to prepare and distribute obscene material.’ [¶] All the evidence [then] negatives any suggestion that the parties intentionally agreed to [prepare/exhibit obscene materials].” (Id., at pp. 837, 839, 120 Cal.Rptr. 489; emphasis original.)What was missing in Donahue was not privity, as Jose maintains, but an agreement between the parties.
4. This disposes of Jose's argument that because the conspiracy envisioned eventual distribution of the drug by Pacheco, there can be no conspiracy. Jose cites People v. Towery (1985) 174 Cal.App.3d 1114, 220 Cal.Rptr. 475, in support of his argument, but it is inapplicable. Towery holds that “if the members of an alleged conspiracy intend that an essential ingredient of the substantive offense be committed by, and only by, a government agent, the conspirators are not legally guilty ․ since the government agent cannot be criminally liable for an offense committed in the performance of his duty.” (Id., at p. 1131, 220 Cal.Rptr. 475; emphasis original and added.) Here, the substantive offense was not the envisioned eventual distribution by Pacheco to consumers, but the sale of the drugs to Pacheco.
5. Jose's citation to People v. Buffum (1953) 40 Cal.2d 709, 256 P.2d 317, in his argument to the contrary, misses the mark. Buffum, a doctor who drove patients to Mexico to have abortions, which were illegal both there and in California, committed no offenses in the State of California while so doing. Thus, the court found no conspiracy to violate California law. There can be no dispute, however, that here all the conspirators broke several laws of the State of California in getting the cocaine to Pacheco.
6. The only objections to it were voiced by Garcia's attorney and were not joined in by Jose's. Jose objected to that portion of the conversation in which Leyva claimed he had worked with the “person[s] we are dealing with” for eight years. He also asked for a jury instruction on the use of the entire conversation, but voiced no objection to the remark about the three kilos.
7. In his brief on appeal, Jose also objects to the admission of the conversation pursuant to People v. Leach (1975) 15 Cal.3d 419, 124 Cal.Rptr. 752, 541 P.2d 296. Once again, we are stymied by the failure of appellate counsel for Jose to advise this court if he objected on such grounds below. If he did not, we would be unable to even respond to his contention on appeal. For purposes of this discussion, however, we will assume he did.In People v. Brawley (1969) 1 Cal.3d 277, 486, 82 Cal.Rptr. 161, 461 P.2d 361, the California Supreme Court held that Aranda rules which block the admission of statements implicating codefendants do not apply to statements that come within the coconspirators' exception to the hearsay rule. In People v. Leach, supra, 15 Cal.3d 419, 124 Cal.Rptr. 752, 541 P.2d 296, the court held that the declaration against penal interest exception to the hearsay rule did not override Aranda. However, as Jose conveniently ignores, the Leach court ruled that the statements before it did not fall within the coconspirators' exception to the hearsay rule. Therefore, no disapproval of the Brawley rule was ever even suggested in Leach. Obviously, the Brawley rule is alive and well. (See, e.g., People v. Olivencia (1988) 204 Cal.App.3d 1391, 1402, 251 Cal.Rptr. 880.) Not one case cited by Jose indicates otherwise. Jose's point has no merit.
HOLLENHORST, Acting Presiding Justice.
McDANIEL and DABNEY, JJ., concur.