P. v. Nesbeth
Filed 7/16/12 P. v. Nesbeth CA2/5
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
NEZIAH IGNATIUS NESBETH, et al.,
Defendants and
Appellants.
B236375
(Los Angeles
County
Super. Ct.
No. TA118603)
APPEAL from a judgment of the Superior
Court of
County, Arthur M. Lew, Judge.
Affirmed.
Harold J. Levy & Associates,
Harold J. Levy for Defendant and Appellant Neziah Ignatius Nesbeth.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior
Assistant Attorney General, Marc A. Kohm and Thomas C. Hsieh, Deputy Attorneys
General, for Plaintiff and Respondent.
Defendant and appellant Neziah Ignatius Nesbeth, and his co-defendant, Rodwell H. Smith,
Saf. Code, § 11360, subd. (a)
name="_ftnref2" title="">[2]). Smith was also convicted of
11359). On appeal, Nesbeth contends that
the trial court punished him for exercising his right to trial by sentencing
him to a two year term in state prison,
erred in instructing the jury pursuant to CALCRIM 2361, and in denying his
Penal Code section 1118.1 motion for judgment of acquittal. We affirm Nesbeth’s judgment of conviction.
BACKGROUND
Factual
Background
Los Angeles
Police Department Officers Bryan Dameworth and Jesus Carrillo were in a patrol
car when a vehicle suddenly turned and changed lanes if front of them, causing
Officer Dameworth, who was driving, to brake.
The officers initiated a traffic stop.
Smith, the driver of the vehicle, exited it and Officer Dameworth
directed him to go to the sidewalk.
Officer Carrillo testified that he
approached the front passenger side of the vehicle, and the window was
open. Officer Carrillo smelled a “strong
pungent odor†of fresh, not burned, marijuana coming from the vehicle.
Officer
Carrillo asked Nesbeth, who was in the front passenger seat of the vehicle, if
he had been smoking marijuana, and Nesbeth responded, “Yes, sir, we both had
been smoking marijuana.â€
name="_ftnref3" title="">[3]
Officer Dameworth testified that
Officer Carrillo motioned to him that he smelled an odor of something in the
vehicle. Officer Carrillo walked over to
talk to Smith, and Office Dameworth walked to the passenger side of the
vehicle. Officer Dameworth smelled the
odor of marijuana when he was about two or three feet from the vehicle. Officer Carrillo testified that Smith had an
expired medical marijuana card.
Officer Dameworth testified that he
opened the passenger door to the vehicle, smelled “a strong odor†of marijuana,
and observed a blue trash bag in the center of the vehicle between the second
row passenger seats. The blue trash bag
contained four unwrapped bricks of marijuana totaling 16.8 pounds. Officer Dameworth testified that he did not
find any marijuana smoking paraphernalia or rolling papers in the vehicle or on
the persons of Smith or Nesbeth. The
officers testified that neither Smith nor Nesbeth showed any symptoms of being
under the influence of marijuana.
Based on a hypothetical question
closely tracking the facts introduced at the trial, Los Angeles Police
Department Officer Darren Stauffer, the prosecution’s expert witness, opined
that individuals in the vehicle possessed and transported the marijuana for
purpose of sale. Officer Stauffer
opined, based on his experience, that people who transported drugs sometimes do
it alone and sometimes in groups. The
street value of marijuana ranged from $1,000 to $10,000 a pound, depending on
the quality.
Evidence
Nesbeth
testified that he asked Smith for a ride to Victorville. Nesbeth smelled something “funny†in the
vehicle, but he did not ask Smith what the smell was. Nesbeth did not see any bag in the vehicle,
and he denied that he told the police that he had been smoking marijuana.
B.
Procedural
Background
The District Attorney of Los
Angeles County filed an information jointly charging Smith and Nesbeth with
possession of marijuana for sale in violation of section 11359 (count 1), and
sale/offer to sell/transportation of marijuana in violation of section 11360, subdivision
(a) (count 2). Following a trial, the
jury found Smith guilty on both counts.
The trial court declared a mistrial on count 1 as to Nesbeth because the
jury was unable to reach a verdict, and the jury found defendant Nesbeth guilty
on count 2. The trial court denied
Nesbeth’s motion for judgment of acquittal made pursuant to Penal Code section
1118.1.
The trial court sentenced Smith to
184 days in county jail and three years of formal probation, and imposed fines.
was credited with 184 days in actual
custody credits. The trial court denied
Nesbeth probation and sentenced him to a state prison term of two years and
imposed fines. Nesbeth was credited
8 actual custody credits and 8 conduct credits.
DISCUSSION
of Right to Trial
Nesbeth contends that, in
sentencing him, the trial court punished him for exercising his right to
trial. We disagree.
We review
the trial court’s sentencing choices for an abuse of discretion, and do not
interfere with the court’s exercise of its discretion when it has considered
all facts bearing on the offense and the defendant. (People
v. Vargas (1975) 53 Cal.App.3d 516, 533; People v. Downey (2000) 82 Cal.App.4th 899, 909-910.) To merit relief on appeal from an alleged
abuse of discretion, it must clearly appear that the resulting injury is
sufficiently grave to manifest a miscarriage of justice. (People
v. Preyer (1985) 164 Cal.App.3d 568, 573-574.)
Our California
Supreme Court in People v. Collins
(2001) 26 Cal.4th 297, stated, “The Sixth Amendment, made applicable to the
states in this context by the Fourteenth Amendment of the federal Constitution,
confers upon a defendant in a criminal prosecution the right to a trial by
jury. [Citations.] . . . Similarly, article I, section 16 of the
California Constitution confers upon a defendant in a criminal prosecution the
right to a trial by jury.
[Citations.]†(
for exercising a constitutional right is ‘a due process violation of the most
basic sort.' [Citation.] [¶] . . . [T]he refusal of an accused to
negotiate a plea with the prosecution must not influence the sentence imposed
by the court after trial.†(
278-279.) The court in
however, that a trial court’s discretion in imposing sentence is in no way
limited by the terms of any negotiated pleas or sentences offered the defendant
by the prosecution. The imposition of
sentence within the legislatively prescribed limits is exclusively a judicial
function.
[Citation.] . . .
Legitimate facts may come to the court’s attention either through the
personal observations of the judge during trial [citation], or through the
presentence report by the probation department, to induce the court to impose a
sentence in excess of any recommended by the prosecution.†(Id.
at p. 281, footnote omitted; see In re
Edy D. (2004) 120 Cal.App.4th 1199, 1201.)
Moreover, our Supreme Court has stated, “The mere
fact . . . that following trial defendant received a more severe
sentence than he was offered during plea negotiations does not in itself support
the inference that he was penalized for
exercising his constitutional rights.†(
35.)
Facts
Smith desired to accept a plea
bargain offered prior to trial by the prosecution, but it was a “package dealâ€
made also to Nesbeth. Smith was
prevented from agreeing to the offered plea bargain because Nesbeth desired to
proceed to trial. Smith went to trial
but did not testify or call any witnesses.
Upon conviction, the trial court
sentenced Smith to, inter alia, three years of formal probation. The following exchange occurred during the
hearing on Nesbeth’s sentencing:
“[Nesbeth’s counsel:] “I am
submitting that [Nesbeth] should be given time served and released from the
court today. [Trial court:] Okay.
People? [Prosecutor:] Your Honor, our recommendation for Mr.
Nesbeth was 45 days Cal-Trans and 45 days of community service with 3 years of
formal probation. [Trial court:] And that was before the trial? [Prosecutor:]
Before the trial it was 30 days Cal-Trans and 30 days of community
service. [Trial court:] Right.
And he didn’t take that.
[Prosecutor:] Correct. [Trial court:] And he went to trial. And he got convicted of transporting almost
17 pounds of marijuana. And it’s a
felony. And the sentencing range for
that is 2 year, 3 years and 4 years.â€
The trial court then sentenced Nesbeth, stating, “I’m going to deny
probation. This isn’t a matter of
transporting a small amount of marijuana.
You’re talking 16 plus pounds.
And because of that large quantity of marijuana, I think that’s an
aggravating factor that certainly would justify the court in denying
probation. [¶] Having said that there is the middle term of
3 years, which would be appropriate unless I think that it should be the high
term because of the amount of marijuana.
And I can use it to deny probation and also to find it as an aggravating
factor to impose the higher term. I’m
not going to do that because of what’s happened in this case overall. I won’t give him the midterm. I’ll sentence him to the low term of 2 years
in the state prison.â€
Nesbeth’s counsel stated, “In terms
of just general equity, given that the co-defendant was convicted of possession
for sale, and my client was only convicted of transportation, and the
co-defendant received 90 days time served, it—and my client has no record
whatsoever, and there was nothing complicated about the arrest or anything
else, I’m a little bit at a loss why a person who was convicted of possession
would receive a greater sentence than a person who was convicted of . . .
transportation and possession for sale?â€
The trial court responded, “Well, Mr. Smith early on wanted to admit his
guilt. That’s a factor. It’s also a factor that he’s—I’m giving
[Nesbeth] the low term rather than the midterm or the high term.â€
Nesbeth
contends that the trial court’s statements during sentencing indicated it was
punishing Nesbeth for his decision to have a jury trial. The trial court said that Nesbeth rejected
the plea offer, was convicted of transporting marijuana, and the crime was
subject to a specific sentencing range.
“A trial court’s judgment is presumed to be correct and to be based on
legitimate sentencing objectives.
Isolated or ambiguous remarks by the trial court do not overcome that
presumption. The party attacking the
judgment must clearly and affirmatively demonstrate that the trial court relied
on improper considerations.†(
Cal.App.4th 822, 835.) The trial court’s
statements could reasonably be inferred to mean that the plea offer was no
longer valid and the trial court was not bound to sentence Nesbeth under the
terms of the rejected plea offer. (
sentence is not limited by the terms of any negotiated plea, and sentencing is
a judicial function if it is within the legislatively prescribed limits].)
The trial
court did not abuse its discretion in denying Nesbeth probation. It did so because Nesbeth was convicted of
transporting a large quantity—over 16 pounds—of marijuana in violation of
section 11360, subdivision (a). This is
a factor that may be considered by the trial court in determining whether to
deny probation. (Cal. Rules of Court,
rule 4.414(a)(1) [“[t]he nature, seriousness, and circumstances of the crime as
compared to other instances of the same crime†is a criteria affecting the
decision to deny probation].) A
defendant convicted of violating section 11360, subdivision (a) “shall be
punished by imprisonment . . . for a period of two, three or
four years†(§ 11360, subd. (a)), and Nesbeth was sentenced to the low term of
2 years.
Nesbeth
contends that the trial court punished him for exercising his right to trial
because he was sentenced to two years in state
prison, but Smith received three years of formal probation. The trial court explained to Nesbeth’s
counsel that Smith received more lenient sentence because, unlike Nesbeth,
Smith wanted to admit guilt prior to trial.
Such a willingness to acknowledge wrongdoing at an early stage of the
criminal proceedings is appropriately considered as a circumstance in
mitigation for sentencing purposes.
(Cal. Rules of Court, rule 4.423(b)(3); see rule 4.414(b)(7) [a criteria
affecting the decision to grant or deny probation is “[w]hether the defendant
is remorsefulâ€]; rule 4.408(b) [enumeration of the criteria in the Rules of
Court does not prohibit application of additional criteria reasonably related
to the sentencing decision].) As to the
discrepancy in the sentence imposed on Nesbeth as opposed to Smith, it is also
reasonable to infer that the trial court determined that Nesbeth gave false
testimony under oath during the trial, which the trial court may properly
consider in determining Nesbeth’s sentence.
In
20, the codefendants in robbery and false imprisonment crimes were sentenced to
different terms because one defendant pled guilty and testified for the
prosecution under an agreement, while
the other was found guilty of the charges after a jury trial. (Id.
at pp. 23, 26.) The defendant with the
lengthier sentence (15 years, 4 months) appealed, arguing he was denied equal
protection and due process and should not be sentenced to more than the
four-year term his codefendant received in prison. (Id.
at pp. 26-27.) The court disagreed,
explaining that “[a] sentencing court considers not only the circumstances of
the crime, but circumstances individual to each defendant. [Citations.]
The court and prosecution could properly consider [the codefendant’s]
cooperation. So long as [the
defendant’s] sentence was justified by [the defendant’s] crimes, individual
culpability, and record, the sentence received by an accomplice is not
relevant.†(Id. at p. 27.) The trial
court did not punish Nesbeth for exercising his right to trial.
B. CALCRIM 2361
Nesbeth contends that the trial
court erred when it instructed the jury pursuant to CALCRIM 2361 because the
phrase “right to control†set forth therein was confusing, and the trial court
did not, sua sponte, further instruct the jury as to the meaning of that
phrase. We disagree.
As to count
2, transportation of marijuana in violation of section 11360, subdivision (a),
the trial court instructed the jury pursuant to CALCRIM No. 2361,
“A person does not
have to actually hold or touch something to transport it. It is enough if the person has control over
it or the right to control it either personally or through another person.â€
The
prosecutor’s theory that Nesbeth was guilty of transporting of marijuana in
violation of section 11360, subdivision (a) was that Nesbeth was aiding and
abetting in the crime. The parties to a
crime are principals and accessories.
(Pen. Code, § 30.) “All persons
concerned in the commission of a crime, whether it be felony or misdemeanor,
and whether they directly commit the act constituting the offense, or aid and
abet in its commission . . . are principals in any crime so
committed.†(Pen. Code, § 31.)
An aider
and abettor of the crime of transporting of marijuana is not required to have
possession of or a right to control the marijuana. The trial court instructed the jury on aiding
and abetting, pursuant to CALCRIM No. 401,
“the defendant not need to actually have been present when the crime was
committed to be guilty as an aider and abettor.†A defendant aids and abets the transportation of the
substance even when another “has sole dominion and control†over the controlled
substance. (People v. Busch (2010) 187 Cal.App.4th 150, 161.) There
is not a reasonable likelihood that the jury would have misapplied the language
“right to control†set forth in CALCRIM No. 2361.
Nesbeth contends that there is not
substantial evidence that Nesbeth had a right to control the contraband. Because the prosecutor’s theory that Nesbeth
was guilty of transporting of marijuana was because Nesbeth was aiding and
abetting in the crime, we do not reach this contention of substantial evidence
of control.
for Judgment of Acquittal
Nesbeth
contends that the trial court erred in denying his Penal Code section 1118.1
substantial evidence does not support the finding of aiding and abetting in the
crime of transporting marijuana. We
disagree.
of Review
Our review is for substantial evidence. “On a motion for judgment of acquittal under
section 1118.1, the trial court applies the same standard as an appellate court
reviewing the sufficiency of the evidence.
The court must consider whether there is any substantial evidence of the
existence of each element of the offense charged, sufficient for a reasonable
trier of fact to find the defendant guilty beyond a reasonable doubt. [Citation.]
We independently review the trial court’s ruling.†(People
v. Harris (2008) 43 Cal.4th 1269, 1286.)
“‘When
considering a challenge to the sufficiency of the evidence to support a
conviction, we review the entire record in the light most favorable to the
judgment to determine whether it contains substantial evidence—that is,
evidence that is reasonable, credible, and of solid value—from which a
reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt.’ [Citation.]†(People
v. Avila (2009) 46 Cal.4th 680, 701.)
“We must presume in support of the judgment the existence of every fact
that the trier of fact could reasonably deduce from the evidence. [Citation.]â€
(People v. Medina (2009) 46
Cal.4th 913, 919.) “A reversal for
insufficient evidence ‘is unwarranted unless it appears “that upon no
hypothesis whatever is there sufficient substantial evidence to supportâ€â€™ the
jury’s verdict. [Citation.]†(People
v. Zamudio (2008) 43 Cal.4th 327, 357.)
“Substantial evidence includes circumstantial evidence and the
reasonable inferences flowing therefrom.â€
(People v. Ugalino (2009) 174
Cal.App.4th 1060, 1064.) “We ‘must
accept logical inferences that the jury might have drawn from the
circumstantial evidence.
[Citation.]’ [Citation]
. . . . ‘[I]t is the
jury, not the appellate court that must be convinced of the defendant’s guilt
beyond a reasonable doubt. [Citation.]’â€
(People v. Zamudio,
“In
deciding the sufficiency of the evidence, a reviewing court resolves neither
credibility issues nor evidentiary conflicts.
[Citation.] Resolution of
conflicts and inconsistencies in the testimony is the exclusive province of the
trier of fact. [Citation.]†(
1181.)
“A person aids and abets the commission of a
crime when he or she, (i) with knowledge of the unlawful purpose of the
perpetrator, (ii) and with the intent or purpose of committing, facilitating or
encouraging commission of the crime, (iii) by act or advice, aids, promotes,
encourages or instigates the commission of the crime.†(People
v. Cooper (1991) 53 Cal.3d 1158, 1164; People
v. Beeman (1984) 35 Cal.3d 547, 561.)
“‘Whether defendant aided and abetted the crime is a question of fact,
and on appeal all conflicts in the evidence and reasonable inferences must be
resolved in favor of the judgment.’
[Citation.]†(
402, 409.)
The jury could have reasonably
inferred that Nesbeth knew of the presence of marijuana and Smith was
transporting it. Officer Carrillo
smelled a “strong pungent odor†of marijuana coming from the vehicle. Officer Dameworth smelled the odor of
marijuana when he was about two or three feet from the vehicle, and when he
opened the passenger door to the vehicle he smelled “a strong odor†of
marijuana. Nesbeth told Officer Carrillo
that both he and Smith had been smoking marijuana. And the prosecution’s expert witness
testified that people who transported drugs sometimes do it alone and sometimes
in groups.
There was
substantial evidence that Nesbeth intended to commit, facilitate, or encourage
transportation of marijuana, and by act or advice, aided, promoted, or
encouraged the commission of that crime.
Nesbeth was present in the vehicle.
Although mere presence at the scene of a crime is not sufficient by
itself to establish liability as an aider and abettor of the crime (
911; People v. Richardson (2008) 43
Cal.4th 959, 1024), it is among the factors which may be considered in making
that determination. (
398, 407; People v. Campbell,
Other factors
which may be considered in making the determination of aiding and abetting
include companionship, and conduct before and after the offense. (People
v. Medina, supra, 46 Cal.4th at
p. 924; People v. Miranda,
There is evidence that the marijuana weighed almost 17 pounds, and
depending on the quality it had a street value ranging from $1,000 to $10,000 a
pound. It could be reasonably inferred
that Nesbeth would not be trusted to be in the vehicle unless he were
participating in the crime. The jury
could also reasonably infer that Nesbeth’s statement to Officer Carrillo that
both he and Smith had been smoking marijuana was an attempt to prevent the
officers from finding the marijuana by attempting to convince the officers that
the smell of marijuana was due the defendants smoking it, and not because they
were transporting large quantities of it.
There was
substantial evidence supporting the jury’s finding that Nesbeth was guilty of
aiding and abetting in the crime of transporting marijuana. The trial court did not err in denying
Nesbeth’s motion.
DISPOSITION
The judgment is affirmed.
NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS.
MOSK,
J.
We concur:
ARMSTRONG,
Acting P. J.
KRIEGLER,
J.
name="_ftn1" title="">[1] Appointed
counsel for Smith filed an opening brief in accordance with
436. We consider Smith’s matter in a
separate opinion.
name="_ftn2" title="">[2] All
statutory citations are to the Health and Safety Code unless otherwise noted.
