P. v. Fambro

Filed 11/21/07 P. v. Fambro CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, William C. Ryan, Judge. Affirmed as Modified.

Ms. Shawn OLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Lance E. Winters, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Donyea Fambro, who represented himself in the trial court, was convicted in a non-jury trial of one count of sale of a controlled substance (Health & Saf. Code,  11352, subd. (a)).[1] The trial court found true the allegations that defendant had suffered a prior strike conviction (Pen. Code,  667, subds. (b) through (i), 1170.12, subds. (a) through (d)), two prior drug convictions (Health & Saf. Code,  11370.2. subd. (a)), and four prior prison terms (Pen. Code,  667.5, subd. (b)). The trial court sentenced defendant to the middle term of four years, doubled to eight years as a result of the prior strike. The court stayed the terms on the prior drug convictions and prison terms. Defendant appeals, contending: (1) the evidence is insufficient to prove that he aided an abetted the sale of cocaine base; (2) the trial court erred in not striking his prior strike conviction; and (3) the terms on the prior drug convictions and prison terms must be stricken, not stayed. We modify the judgment to strike the terms for the prior prison terms and prior narcotics convictions. Otherwise, we affirm the judgment.

DISCUSSION

I. Sufficiency of the Evidence

Defendant contends that the evidence is insufficient to prove that he aided and abetted the sale of cocaine base. We disagree. We summarize the evidence in accord with the standard on appeal. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)

Around 7:00 p.m. on September 20, 2006, Jorge Hernandez, a paid informant working with Los Angeles Police Officer Eliana Tapia, approached a man in the area of Fifth and Towne and asked who had drugs.[2] The man referred Hernandez to defendant who was nearby. Defendant said, Come on, and led Hernandez to a group of three or four men. Hernandez bought cocaine base from one of the men (Charles Stewart), using a prerecorded $10 bill. Defendant stood nearby, about ten feet away. As Hernandez walked away, defendant asked for some of the drugs, saying, I brought you to see this person so give me one hit. When Hernandez refused, defendant said, Im not playing, and produced a folded knife from his pants pocket. Police officers arrived and arrested defendant, recovered a knife from him, and recovered the prerecorded bill from Charles Stewart. At trial, Officer Tapia, a narcotics expert, testified that defendant acted as a hook, meaning a person who assisted in the sale.

At trial, defendant testified in his own defense. He stated that that day . . . was a very bad choice of words that came out of my actions. He apologized for his conduct toward Hernandez.

Defendant called Charles Stewart as a witness. Stewart denied having sold drugs, and testified that he did not know defendant and had never seen him before.

On appeal, defendant argues that the evidence showed merely that aided Hernandez in his purchase of cocaine base, not that he aided Charles Stewart in the sale. Therefore, according to defendant, his conviction for the sale must be set aside. (See People v. Edwards (1985) 39 Cal.3d 107, 114, fn. 6 [equal participant in purchase of narcotics not guilty of furnishing drugs to co-purchaser]; People v. Lamb (1955) 134 Cal.App.2d 582, 585-586 [purchaser of marijuana not an accomplice of seller, and thus accomplice instruction unnecessary]; see also People v. Label (1974) 43 Cal.App.3d 766, 770-771 [recipient of injection not accomplice in act of administering drug].) We find the evidence sufficient to convict defendant as an aider and abettor.

[A] person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime. (People v. Beeman (1984) 35 Cal.3d 547, 561.) Here, the evidence was sufficient to infer that defendant knew of seller Charles Stewarts unlawful purpose street narcotics salesand acted as his agent in steering Hernandez, a prospective purchaser, to him to consummate the sale. When Hernandez asked the first person he met about buying drugs, that person directed him to defendant. Defendant then took Hernandez directly Charles Stewart, and waited nearby as the sale occurred. After the sale, defendant demanded a piece of the cocaine base purchased by Hernandez, because he had taken Hernandez to the seller. From the fact that Hernandez was directed to defendant to find a seller, and from the fact that defendant took Hernandez to Stewart knowing Stewart was conducting street sales, the trial court could reasonably infer that, as Officer Tapia opined, defendant was acting as the hook the person who directs drug buyers to the seller. That defendant hoped to obtain a portion of the cocaine base purchased by Hernandez does not mean that defendant acted only as his agent. Further, the court was not required to accept Stewarts testimony that he did not know defendant. Accordingly, the evidence is sufficient to prove that defendant knew that Stewart was a narcotics dealer, that defendant intended to aid in that endeavor, and that he facilitated the sale to Hernandez by taking him to Stewarts location so the sale could occur.

Denial of Defendants Motion to Strike His Prior Strike

Before trial, defendant made an oral motion to strike his prior strike conviction a robbery (Pen. Code,  211) of which he was convicted in 1996. At the time defendant made his motion, the charges pending against him in the present case (besides his prior convictions and prison terms) were sale of narcotics (Health & Saf. Code,  11352, subd. (a)), and attempted robbery (Pen. Code,  664/211) with use of a knife (Pen. Code,  12022, subd. (b)(1)).

In support of the motion, defendant stated that he committed the prior robbery on the day after he was released from prison. He had taken prescribed psychiatric medication and consumed alcohol, resulting in him getting all hallucinated. At a food stand, he jokingly asked another man if he could have the dollar bill the man held in his hand. The man said no. Defendant took the dollar, but then put it back in the mans hand. The next thing defendant knew, he was thrown on the ground and maced. He woke up in custody. Defendant also argued that his prior offenses other than the robbery were drug-related.

The prosecution opposed the motion, based on defendants record. Referring to the decisions in People v. Williams (1998) 17 Cal.4th 148, 161 (Williams), and People v. Garcia (1999) 20 Cal.4th 490, 498-499 (Garcia), the trial court stated that under the relevant case law, defendant had to show that he was outside the spirit of the Three Strikes law. In denying the motion, the court stated: I dont think Im inclined to strike the strike . . . [b]ecause you do have a lengthy criminal record since [the prior robbery]. At least not at this time. So the motion is denied. Defendant did not renew the motion after trial.

We find no abuse of discretion in the courts ruling. In considering a motion to strike a prior strike conviction, the trial court must determine whether in light of the nature and circumstances of [the defendants] present felonies and the prior serious and/or violent felony convictions, and the particulars of his background, character and prospects, the defendant may be deemed outside the . . . spirit [of the Three Strikes law], in whole or in part. (Williams, supra, 17 Cal.4th at p. 161; Garcia, supra, 20 Cal.4th at pp. 498-499.) [E]xtraordinary must the circumstance be by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack. . . . [L]onger sentences for career criminals who commit at least one serious or violent felony certainly goes to the heart of the statutes purpose or spirit. (People v. Strong (2001) 87 Cal.App.4th 328, 338.)

In shorthand fashion, the trial court referred to the proper standard of review, and reasonably concluded that defendant fell within, not without, the spirit of the Three Strikes scheme. Because the motion was made prior to trial, before the prosecution was put to its proof, the court was required to assume the charges in the information to be true. As reflected in the allegations of the information (and undisputed by defendant at the time of the motions), before the prior robbery conviction in 1996, defendant had suffered four prior convictions for sale of narcotics (Health & Saf. Code,  11352). After the robbery conviction, he had suffered two convictions for possession of narcotics (Health & Saf. Code,  11350, subd. (a)). His present charges were for another sale of narcotics and an attempted robbery carrying an allegation of knife use. On this record, the court did not abuse its discretion in concluding that defendant fell within the purpose of the Three Strikes law, and that no extraordinary circumstance existed so as to justify striking his prior robbery conviction.

Defendant suggests that the court should have reconsidered defendants motion after trial, following defendants acquittal of the attempted robbery charge. However, defendant did not renew the motion, and the court had no obligation to consider the issue sua sponte.

Prior Narcotics Conviction and Prison Term Enhancements

Defendant contends, and respondent concedes, that the trial court improperly stayed rather struck the terms for the enhancements on two prior prison terms (Pen. Code,  667.5, subd. (b)) and two prior narcotics convictions (Health & Saf. Code,  11370.2, subd. (a)). (See People v. Langston (2004) 33 Cal.4th 1237, 1241; People v. Meloney (2003) 30 Cal.4th 1145, 1155.) We agree, and order the judgment modified.

DISPOSITION

The judgment is modified to strike the terms for the findings of two prior prison terms (Pen Code,  667.5, subd. (b)) and two prior narcotics convictions (Health & Saf. Code,  11370.2, subd. (a)). The clerk of the superior court is ordered to file an amended abstract of judgment so reflecting. Otherwise, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, J.

We concur:

EPSTEIN, P. J. MANELLA, J.

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[1] He was acquitted on an attempted robbery charge (Pen Code,  664/211) in which it was alleged he used a knife (Pen. Code,  12022, subd. (b)(1)).

[2] Hernandez had a hidden camera and audio transmitter on his person which recorded his activities. A DVD of the recording was played in court.