Opinion
G040771.
6-25-2009
THE PEOPLE, Plaintiff and Respondent, v. GILBERTO GASTELUM, Defendant and Appellant.
Susan D. Shors, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Vincent P. LaPietra, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in Official Reports
OPINION
THE COURT:
Gilberto Gastelum appeals from his conviction of possessing a controlled substance (cocaine) for the purpose of sale, in violation of Health and Safety Code section 11351. Gastelum argues there was insufficient evidence of his dominion and control over the cocaine and of his specific intent to sell the cocaine to support the conviction of possession for sale. We conclude, based on the evidence before it, the jury could have concluded that Gastelum was in possession of the cocaine with the intent that it be sold. We affirm the judgment.
I
BACKGROUND
Ramon Alvarez, a City of Los Angeles police officer assigned to the narcotics division, was on duty in Buena Park as part of a surveillance team on August 24, 2006. Alvarez noticed a white Honda Accord with Mexican license plates that was driven by a male driver who appeared nervous. The driver drove slowly and constantly checked his rear-view and side-view car mirrors. Alvarez had the vehicle information run through an information system and discovered the automobile had entered the United States from Mexico one day earlier. The driver drove to 7255 Fillmore Avenue in Buena Park and into the garage. Gastelum was already inside the residence at the time the white Honda arrived.
Officer Neuhaus, a member of the surveillance team, parked down the street from the residence on Fillmore to observe any activity. Twenty minutes later Neuhaus watched as two Hispanic males got into a black Honda that was parked inside the garage. At that point Alvarez and three other officers walked up to the garage, and Alvarez tapped on the trunk of the car with his badge. Gastelum was sitting in the drivers seat and looked at Alvarez through his rear-view mirror. Alvarez explained to him, in Spanish, that he was a police officer conducting an investigation, and wanted to speak to the two men. Gastelum got out of the Accord and spoke in Spanish with Alvarez and another officer. Alvarez asked him why he was there, and Gastelum responded that he was taking care of the residence for a friend. Alvarez asked if there were drugs or weapons inside the house, to which Gastelum stated there was some cocaine. Gastelum signed a consent to search form and took a key off his key ring and told Alvarez it was the key to open the door that led from the garage into the residence.
Inside the house there was no furniture. There was only a duffel bag on the kitchen floor which contained 59 plastic wrapped bricks of cocaine weighing a total of 132.18 pounds, or 60 kilos. Alvarez testified the cocaine was in its original pure form and had traveled from South America through Mexico and into the United States. It was valued at a low end of $ 800,000 to $900,000, and at a high end of $3 million, depending upon how many times the dealer planned to "step on it" or mix it with a cutting agent. Alvarez concluded, based on his training and 23 years of officer experience, and the sheer quantity of cocaine found at the residence, that the drugs were for sale and not for personal use.
Alvarez testified the house on Fillmore was a "stash" house because of its lack of furniture, appliances, food, or clothing. He concluded the house was being used as a warehouse by a large drug trafficking organization to store drugs. No drugs were found in Gastelums black Honda. No money, scales, or latex gloves were found in the house. Gastelums fingerprints were not found on the duffel bag or the individual packages of cocaine.
Beatty Spurr, the property manager for the house on Fillmore, testified that in the summer of 2006 he rented the property to a father and son, both named Jose Ibarra. Once he found out about the police raid on the residence, he terminated the Ibarras lease based on illegal activity. While Spurr was showing the property to prospective tenants he opened a cabinet door and found a plastic wrapped package of cocaine.
Gastelum testified at his trial. He said that in 2006, he lived with his grandmother in San Diego and worked in sales for AT & T and as an assistant manager in his fathers hotel in Tijuana, Mexico. He knew Jose Ibarra, Jr., from high school where they played football together in 1999. Gastelum had not seen Ibarra from 1999 until July 2006, when he saw him in a convenience store, and Ibarra invited him to join him at a nightclub. Ibarra asked him to check on his fathers house in Buena Park, to pick up the mail and check that the doors and windows were locked. On August 24, 2006 he crossed the border from Mexico into the United States and was on his way to visit with his girlfriend in Los Angeles, and on the way to check Ibarras house.
Gastelum arrived at the house and noticed the garage door was open, so he parked his car in the garage. He went into the house using the key Ibarra gave him and noticed there was no furniture, and saw a big bag on the floor. Gastelum picked up the mail from under the front door, and about 10 minutes later heard another car enter the garage, then a man entered the house. He recognized the man, Gamaliel Gonzales, from when he and his girlfriend met Ibarra in a nightclub. Gonzales asked him if he was "tight" with Ibarra, to which he replied yes. Gonzales told him the bag contained over $2 million worth of "blow."
Gastelum got scared after hearing this and started to leave, but Gonzales asked for a ride to a bus station. They both got into Gastelums car, then Gastelum saw the detective behind him. The detective told them they were conducting a narcotics investigation, and asked if there were any drugs or weapons in the house. Gastelum told the detective there was cocaine in the house. He then signed the search consent form, and the officers entered the residence and found the bag.
The Orange County District Attorney (respondent) filed an information against Gastelum, charging him with one count of possession of cocaine for sale (Health & Saf. Code, § 11351). An enhancement under Health and Safety Code section 11370.4, subdivision (a)(5), alleged the cocaine exceeded 40 kilograms by weight. Gastelum pleaded not guilty to the complaint and denied all enhancements and prior convictions. Gastelums motion to suppress evidence under Penal Code section 1538.5 was denied.
A jury found Gastelum guilty of possessing a controlled substance for the purpose of sale, and that in the commission of the crime he possessed more than 40 kilograms by weight of cocaine. The court sentenced Gastelum to a total term of 22 years in prison.
II
DISCUSSION
In reviewing a criminal conviction challenged as lacking evidentiary support, "`[t]he test on appeal is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt. [Citation omitted.] The appellate court must determine whether a reasonable trier of fact could have found the prosecution sustained its burden of proving the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 576 (Johnson).)
"The standard of review is the same in cases such as this where the People rely primarily on circumstantial evidence. [Citation.] `Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court which must be convinced of the defendants guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment." (People v. Perez (1992) 2 Cal.4th 1117, 1124.)
Health and Safety Code section 11351 prohibits the possession for sale or the purchase for purposes of sale of any controlled substance. Gastelum argues his mere presence at the house where the cocaine was kept, coupled with knowledge of the nature of the drug, was not sufficient to prove possession for sale. He contends there was no evidence he lived on the premises or controlled who would be present at the house. He relies on U. S. v. Vasquez-Chan (9th Cir. 1992) 978 F.2d 546, 548 (Vasquez-Chan) to support his argument.
In Vasquez-Chan the Drug Enforcement Agency (DEA) conducted a "massive, planned, and well-organized" surveillance of individuals thought to be involved in a large scale cocaine trafficking operation in Tuscon. The DEA identified conspirators and monitored their movements and contacts. Defendants Sylvia Vasquez-Chan and Julia Gaxiola-Castillo were convicted by a jury of conspiracy to possess with the intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 841, 18 U.S.C. § 2, and 21 U.S.C. § 846. The reviewing court found the evidence legally insufficient upon which to base findings of guilt, and reversed their convictions. (Vasquez-Chan, supra, 978 F.2d 546, 548.)
The DEA surveillance revealed a new residence from which cocaine was being removed in preparation for a drug transaction arranged by a DEA agent. After the transaction was completed agents went to the residence where Vasquez and Gaxiola were inside. The agents found 600 kilograms of cocaine in a back bedroom. Neither Vasquez nor Gaxiola denied knowing the cocaine was in the residence. Vasquez stated she had resided in the house for three months and was a caretaker. Gaxiola stated she had been Vasquezs roommate in Mexico and had been visiting her for a few weeks, along with her infant daughter. (Vasquez-Chan, supra, 978 F.2d 546, 548-549.)
The Vasquez-Chan court found the critical question to be whether either defendant "possessed" the drugs; i.e., had the power to exercise dominion and control over the narcotics. The evidence that tended to show Vazquez did not exercise dominion and control included: (1) other individuals clearly had control over the cocaine; (2) lack of her fingerprints on the cocaine or mixing paraphernalia; (3) the owners of the cocaine did not refer to her directly or indirectly during any of the negotiations; (4) she did not come to the DEAs attention during the extensive investigation of the narcotics conspiracy; (5) she did not lease or rent the premises; (6) she did not attempt to destroy or conceal evidence or to flee from police; (7) she did not carry a firearm, nor was one present in the residence; (8) no bills or documents relating to the house were in her name other than a single electric bill; and (9) undisputed testimony indicated that the cocaine had been in the house for only three days before her arrest. Similar factors tended to show Gaxiola did not possess the cocaine. (Vasquez-Chan, supra, 978 F.2d 546, 550.)
The court looked at other cases in which it upheld convictions and concluded there was no comparable evidence in the case before it that Vasquez or Gaxiola were found with cash or weapons, and there was overwhelming evidence that the narcotics belonged to others. (Vasquez-Chan, supra, 978 F.2d 546, 551.)
In this case, the house in Buena Park, unlike the house in Tuscon, was bare of furniture, clothing, appliances, or any other indication that it was lived in. Alvarez testified the conditions were such that it was a "stash" house used for the warehousing of drugs. Alvarez testified that a person who is placed in charge of a location is trusted more than a person who merely transports drugs. Gastelum had a key to the residence, knew cocaine was present in the residence, and had the ability to exercise dominion and control over the narcotics. The court in Vasquez-Chan upheld a conviction in another case where a defendant was found in a residence that contained no furniture, was located in an out of the way location, on a camouflaged plot of land, and was "clearly being used exclusively as a warehouse for illegal substances." (Vasquez-Chan, supra, 978 F.2d 546, 552, citing to United States v. Valles-Valencia (9th Cir. 1987) 811 F.2d 1232.)
California courts are not bound by decisions of the lower federal courts. (People v. Crittenden (1994) 9 Cal.4th 83, 120, fn.3.) We are mindful that our task on review "`does not require a court to "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." [Citation omitted.] Instead the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Johnson, supra, 26 Cal.3d 557, 576.) A reasonable jury could have rejected Gastelums testimony that he happened to be at the house in Buena Park on the request of a former high school classmate to pick up the mail, and instead to accept the Peoples evidence that he was the person in charge of that stash house and exerted control over the contents of the house. Accordingly, substantial evidence supports Gastelums conviction.
Gastelum also argues there was insufficient evidence presented to the jury of any specific intent by Gastelum to possess the cocaine for the purpose of sale, or a shared intent to sell as required for aiding and abetting the crime. He argues his lack of possession of cutting agents, packaging supplies, cash, scales, or pay/owe sheets, and the fact that the drugs were not found on his possession, show the lack of a specific intent on his part to sell the cocaine.
This argument is belied by the sheer amount of cocaine that Gastelum had under his control. A conviction under Health and Safety Code section 11351 requires a defendant to either possess the specific intent to sell the controlled substance personally, or to possess the specific intent that someone else will sell the controlled substance. (People v. Parra (1999) 70 Cal.App.4th 222, 227.) Intent to sell may be established circumstantially by the quantity of drugs in a defendants possession. (People v. Austin (1994) 23 Cal.App.4th 1596, 1614.)
In this case, Alvarez testified the cocaine was pure enough to be cut multiple times, and was far in excess of what a street dealer would possess, much less a cocaine user. Once the trier-of-fact made the determination that Gastelum possessed the 60 kilograms of cocaine, it was reasonable for the jury to then infer that he intended for the cocaine to be sold.
"Thus, though the evidence is admittedly not overwhelming, it is sufficient to sustain the jurys finding. As we have stated, the relevant question on appeal is not whether we are convinced beyond a reasonable doubt, but whether any rational trier of fact could have been persuaded beyond a reasonable doubt that defendant (committed the crime)." (People v. Perez, supra, 2 Cal.4th 1117, 1127.)
III
DISPOSITION
The judgment is affirmed. --------------- Notes: Before Rylaarsdam, Acting P.J., Aronson, J., and Ikola, J.