PEOPLE v. CHACON

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Court of Appeal, Fourth District, Division 3, California.

The PEOPLE, Plaintiff and Respondent, v. Genaro Ramirez CHACON, Defendant and Appellant.

No. G011564.

Decided: February 28, 1994

Michael Ian Garey, Santa Ana, under appointment by the Court of Appeal, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Gary W. Schons, Sr. Asst. Atty. Gen., Janelle B. Davis, Warren P. Robinson and David I. Friedenberg, Deputy Attys. Gen., for plaintiff and respondent.

OPINION

Genaro Ramirez Chacon and seven others were charged with several narcotics trafficking offenses arising out of their involvement in a sophisticated cocaine distribution organization.   Count 1 charged conspiracy to possess, sell and transport cocaine and contained an enhancement allegation that the amount exceeded 100 pounds.   Count 2 charged possession of cocaine for sale, based on cocaine seized from a residence and contained an enhancement allegation that the amount exceeded 100 pounds.   Count 3 charged transportation of cocaine based on cocaine seized from an automobile and contained an enhancement allegation that the amount exceeded three pounds.   The information contained an additional enhancement allegation that Chacon possessed more than 57 grams of cocaine for sale.

Chacon's motions to suppress and dismiss were denied, as was his motion for judgment of acquittal.   Following a jury trial he was found guilty on all three counts and all enhancement allegations were found to be true.2  He was sentenced to the low term of three years on count 2, possession for sale of the cocaine found in the residence.   Middle terms on count 1, conspiracy, and count 3, transportation for sale, were stayed pursuant to Penal Code section 654.   A 15–year enhancement term was imposed on the possession count, but was stayed on the conspiracy count.   A three-year enhancement on the transportation count was also stayed.

Chacon raises numerous arguments on appeal.   In the published portion of this opinion we address his contention that the trial court failed to properly instruct the jury it must find him substantially involved in the conspiracy before it could impose a quantity enhancement for either the conspiracy count or the substantive possession counts if based on conspirator liability.3  We affirm his conviction, strike the three-year quantity enhancement imposed on count 3, and reverse and remand for a new trial on the 15–year quantity enhancements imposed on counts 1 and 2.

I–IV*

V

Chacon was convicted of conspiracy to possess, transport and sell cocaine and possession of cocaine.   The evidence was that about 235 pounds of cocaine were seized from a residence being used as a cutting and distribution center.   The jury found the amounts involved exceeded 100 pounds and the Health and Safety Code section 11370.4, subdivision (a)(4) 15–year enhancement on each count were found to be true.7  Chacon argues both 15–year enhancements must be stricken.  Section 11370.4, subdivision (a) provides the enhancement “shall not be imposed unless the trier of fact finds that the defendant conspirator was substantially involved in the planning, direction, execution, or financing of the underlying offense.”   The jury was not instructed that it must find Chacon was “substantially involved” in the conspiracy before it could impose the enhancements.

Chacon argues, and the Attorney General concedes, the lack of a substantial involvement finding compels us to strike the enhancement on the conspiracy count.  (See People v. Garcia (1992) 3 Cal.App.4th 582, 4 Cal.Rptr.2d 539.)   Chacon also contends the lack of a substantial involvement finding on the substantive possession count compels the striking of the quantity enhancement tied to it because his culpability for the substantive possession charge was premised upon his involvement as a conspirator.   The Attorney General does not concede this position.

The Attorney General first argues that when there is a conspiracy count and a substantive possession count, the substantial involvement finding is not necessary on the substantive count because it will have already been made on the conspiracy count.   There is no need for duplicate findings.   While this may otherwise be true, here the argument begs the question because there was no substantial involvement finding on the conspiracy charge.

The Attorney General next argues Chacon's argument is based on a faulty premise:  that a conspirator in a drug trafficking operation will always be guilty of the substantive possession offense based on his or her participation in the conspiracy.   In some cases a conspirator may be found guilty of substantive possession regardless of the existence of the conspiracy.   Again, this may otherwise be true, but here the jury was instructed on alternate theories upon which Chacon could be found guilty of substantive possession of the cocaine:  Co-conspirator liability, aider and abettor, and constructive possession.   As discussed in the unpublished portion of this opinion, Chacon could have been found guilty of possession of the cocaine as a co-conspirator or as a constructive possessor.

If the jury found Chacon guilty of the substantive charge of possession of cocaine based upon his participation in a conspiracy, a finding that he was substantially involved in the conspiracy is required before the quantity enhancement can be imposed.   The quantity enhancements of Health and Safety Code section 11370.4, subdivision (a) subject persons convicted of possession or transportation of heroin, cocaine base or cocaine for sale (Health & Saf.Code, §§ 11351, 11351.5, 11352) to term enhancements based upon the quantity of the substance involved.8  “The express legislative purpose in adding this section 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.’ ”  (People v. Pieters (1991) 52 Cal.3d 894, 898, 276 Cal.Rptr. 918, 802 P.2d 420.)

In 1989 the Legislature amended Health and Safety Code section 11370.4, subdivision (a) to make the quantity enhancements applicable to those convicted of conspiracy to violate Health and Safety Code sections 11351, 11351.5 or 11352.   However, the Legislature also provided, “The conspiracy enhancements provided for in [subdivision (a) ] shall not be imposed unless the trier of fact finds that the defendant conspirator was substantially involved in the planning, direction, execution, or financing of the underlying offense.” 9  The obvious purpose of this proviso is to ensure that conspirators whose participation in the trafficking operation is relatively minor do not suffer the harsh additional punishment intended for active drug traffickers.   It is in keeping with the expressly stated purpose of the enhancement itself, to severely punish persons regularly involved in trafficking as compared to those involved occasionally or who have a relatively minor role.  (See People v. Pieters, supra, 52 Cal.3d at p. 898, 276 Cal.Rptr. 918, 802 P.2d 420.)

“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.’ ”  (People v. Carvajal (1988) 202 Cal.App.3d 487, 501, 249 Cal.Rptr. 368.)   The Legislature's intent is that conspirator-defendants be subject to the enhancements only if their role in the conspiracy is substantial.   But, when a defendant is convicted of conspiracy to possess or transport controlled substances for sale, he or she is usually guilty of the substantive offense because of participation in the conspiracy.  (People v. Luparello (1986) 187 Cal.App.3d 410, 442, 231 Cal.Rptr. 832;  In re Darrell T. (1979) 90 Cal.App.3d 325, 334, 153 Cal.Rptr. 261.)   Indeed such is the case with Chacon.   It would be absurd to conclude that such a defendant, based on the identical facts supporting conviction for each crime, could be subjected to the enhancement on the substantive offense even though he or she is not substantially involved in the conspiracy.   Such a conclusion ignores the purpose of the statute.

We conclude the quantity enhancements under section 11370.4, subdivision (a) cannot be imposed upon a defendant found guilty of the substantive offense based on a conspiracy theory unless the trier of fact makes a finding the conspirator defendant was substantially involved in the conspiracy.   No such finding was made here.   The jury was instructed on alternate theories upon which Chacon could be found guilty of the substantive offense:  conspirator liability, constructive possession and aiding and abetting.   If the jury convicted him as a constructive possessor the substantial involvement finding would not be required.   In closing argument the prosecutor contended this was a conspiracy case:  “From the People's point of view this is a conspiracy case.”   But the prosecutor also argued that Chacon exerted sufficient control over the Walnut Street cocaine to be a constructive possessor.   We cannot tell from the record which theory the conviction for the substantive offense, and hence the enhancement, was based upon.   Because the instruction was legally incorrect the quantity enhancement must be reversed and the case remanded for a limited new trial on that quantity enhancement.  (People v. Green (1980) 27 Cal.3d 1, 69, 164 Cal.Rptr. 1, 609 P.2d 468;  People v. Garewal (1985) 173 Cal.App.3d 285, 303, 218 Cal.Rptr. 690.   See also, People v. Guiton (1993) 4 Cal.4th 1116, 1128–1129, 17 Cal.Rptr.2d 365, 847 P.2d 45.)

VI–VIII**

FOOTNOTES

2.   Chacon was tried with one other codefendant.   The record does not indicate the disposition of the charges as to the remaining codefendants.

3.   In the unpublished portion of this opinion we address Chacon's other contentions:  (1) the trial court erred in denying his motion to suppress evidence;  (2) the evidence is insufficient to support either the conspiracy or substantive possession convictions;  (3) the evidence is insufficient to support the three-year quantity enhancement;  (4) the court improperly instructed the jury in accordance with CALJIC No. 2.62 that it could draw adverse inferences from his failure to explain or deny evidence against him, when there had been no such failure;  (5) expert testimony regarding the modus operandi of cocaine distribution organizations was improper because it was drug courier profile evidence;  and (6) he was denied effective assistance of counsel.

FOOTNOTE.   See footnote 1, ante.

7.   Under the current version of Health and Safety Code section 11370.4, subdivision (a)(6), effective January 1, 1993, the enhancement has been increased to 25 years when the amount exceeds 80 kilograms.   (Stats.1992, ch. 680, § 1.)

8.   Health and Safety Code section 11370.4, subdivision (b) contains similar quantity enhancements for violating, or conspiring to violate, laws regarding trafficking in methamphetamine, amphetamine, or PCP.

9.   A similar caveat applies to Health and Safety Code section 11370.4, subdivision (b).

FOOTNOTE.   See footnote 1, ante.

WALLIN, Associate Justice.

SILLS, P.J., and MOORE, J., concur.

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