P. v. Tapia

 

 

 

Filed 1/8/14  P. v. Tapia
CA2/8

 

 

 

 

 

>NOT TO BE PUBLISHED IN THE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  This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

 

 
>

THE PEOPLE,               Plaintiff and Respondent,               v.   PASCUAL BARRAGAN TAPIA,               Defendant and Appellant.

B245474         (Los Angeles County       Super. Ct. No. BA 391773)

 

 

            APPEAL
from a judgment of the Superior Court of
Los Angeles County, Terry A. Bork, Judge.  Affirmed.

 

            Hart J.
Levin, under appointment by the Court of Appeal, for Defendant and Appellant.

 

            Kamala D.
Harris, Attorney General, Dane R.
Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Kenneth C. Byrne and Shira B. Seigle, Deputy
Attorneys General, for Plaintiff and Respondent.

 

* *
* * * *

            Defendant
Pascual Barragan Tapia appeals from a judgment convicting him of one count of sale
of a controlled substance, in violation of href="http://www.sandiegohealthdirectory.com/">Health and Safety Code
section 11379, subdivision (a).  Defendant
contends there was insufficient evidence to sustain the jury’s verdict.  We disagree, and affirm the judgment.

>FACTS

            In April 2010, Detective Guillermo Mixer and Officers
Enrique Robledo and Andrew Paredes of the Los Angeles Police Department (LAPD) began
a joint task force investigation of Robert Lujano.  Lujano was believed to be involved in the sale
of firearms and narcotics.  During the
year-long investigation of Lujano, the LAPD employed a confidential informant (the
informant) to engage in approximately 15 to 20 undercover narcotics purchases.  Of those, at least three transactions involved
the sale of methamphetamines.

            On April 21, 2010, Detective Mixer set up an
undercover operation that required the informant purchase two ounces of
methamphetamines from Lujano.  The
operation was scheduled to take place on the following day.

            On April 22, 2010, the informant was searched
at the task force’s staging area immediately before the actual operation began to
protect the operation’s integrity.  Once
the search was completed and no contraband was found on the informant,
Detective Mixer gave the informant $2,000 to purchase two ounces of
methamphetamines.  Officer Robledo, dressed
in plain clothes, drove the informant to Lujano’s house.  The informant was equipped with a transmitter
and recording device.  Officer Robledo also
was equipped with a transmitter. 
Detective Mixer monitored the informant and Officer Robledo through their
transmitters.

            Upon
arriving at Lujano’s residence, the informant called Lujano.  Lujano came out of his residence and approached
Officer Robledo’s vehicle.  Lujano
instructed the informant to follow him to another location to meet with the
methamphetamine supplier.  Officer
Robledo and the informant followed Lujano to a Numero Uno Market parking lot.

            Lujano was
seen speaking to a driver of a black Honda, which was already parked in the
lot.  Lujano remained in his truck during
his interaction with the other driver.  Officer
Robledo did not see anything exchanged between Lujano and the driver of the
black Honda.

            The informant
exited Officer Robledo’s vehicle and entered the passenger side of Lujano’s
truck.  When the informant asked Lujano
what they were doing in the parking lot, Lujano stated they were waiting for
his “uncle,” who was “already on his way with it.”  While the two men waited for the “uncle” in
Lujano’s truck, the informant counted out $1,960 to purchase two ounces of
methamphetamine.  Shortly thereafter, a
silver Dodge Nitro pulled into the parking lot and parked two stalls to the
left of Lujano’s truck.  Lujano told the
informant, “let me get it from him,” exited his truck and entered the front passenger
side of the Dodge Nitro.  Other than
Lujano, Officer Robledo was able to see that defendant was the only person in
the Dodge Nitro.  The informant remained
in Lujano’s truck.

            About 10 to 15
seconds later, Lujano exited the Dodge Nitro and entered his truck.  After a brief conversation between Lujano and
the informant, Lujano said, “Let me, let me pay him real quick.”  The informant exited the truck and entered
Officer Robledo’s vehicle.  As Officer
Robledo prepared to leave the parking lot, Lujano exited his truck and
reentered the Dodge Nitro.

            Upon
entering Officer Robledo’s vehicle, the informant showed Officer Robledo two packages
containing round clusters that appeared to be methamphetamine.  Officer Robledo took possession of the two
packages and secured them in the center console.  Detective Mixer later received the packages
and booked them into evidence.  Once the
narcotics operation was completed, the informant was searched again to ensure
he did not possess any narcotics on his person. 
No contraband was found on the informant’s person.

            Suspecting
defendant was involved as a “supplier” in the drug trade following the April 22, 2010 undercover operation, the
LAPD began its investigation of defendant.  On May
11, 2010, the LAPD conducted surveillance on defendant.  An observation point was set up at
defendant’s residence.  When defendant left
his residence, the investigating officers followed.  Defendant was seen driving from his home to
various locations in a Dodge Nitro, the same vehicle that was observed in the
Numero Uno parking lot on April 22,
2010.  A Department of
Motor Vehicles printout based upon the license plate of the Dodge Nitro
established that the car was registered to the same address as defendant’s
residence.  On December 7, 2010, a search warrant was executed
at defendant’s residence.  No evidence
related to drugs, drug paraphernalia or drug sales was recovered.

>PROCEDURE

            On June 13, 2012, an information was
filed, charging defendant with one count of selling or transporting a controlled
substances, in violation of Health and Safety Code section 11379, subdivision
(a).

            Prior to
submitting the case to the jury, the prosecution and defense counsel stipulated
that (1) the substance of the two packages was examined by the United States
Department of Justice, Drug Enforcement Administration, and tested positive for
methamphetamine; (2) there were no identifiable fingerprints found on the packages;
and (3) the weight of the methamphetamine amounted to 2.06 ounces.

            On October 17, 2012, a jury returned a verdict,
finding defendant guilty as charged.  The
prosecution filed a sentencing memorandum requesting the court to sentence
defendant to three years of felony probation and 15 days of community service.  The trial court imposed a midterm jail
sentence of three years, suspended the execution of the sentence, and granted
three years of felony probation. 
Defendant was given credit for two actual days in custody and was
ordered to perform 160 hours of community service.

>DISCUSSION

            Defendant contends there was insufficient evidence at
trial to support his conviction.  Defendant
argues “the evidence did not establish that he was the one who actually
provided the methamphetamine to the informant” because the facts supported two
inconsistent inferences.  In essence,
defendant claims Lujano could have obtained the methamphetamine from the driver
of the black Honda.  We disagree.

            “‘In
reviewing a challenge to the sufficiency of the evidence, we do not determine
the facts ourselves.  Rather, we “examine
the whole record in the light most favorable to the judgment to determine
whether it discloses substantial evidence – evidence that is reasonable, credible
and of solid value – such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.” 
[Citations.]  We presume in
support of the judgment the existence of every fact the trier could reasonably
deduce from the evidence. 
[Citation.]  [¶]  The same standard of review applies to cases
in which the prosecution relies primarily on circumstantial evidence . . . .  [Citation.] 
“[I]f the circumstances reasonably justify the jury’s findings, the
judgment may not be reversed simply because the circumstances might also
reasonably be reconciled with a contrary finding.”  [Citation.] 
We do not reweigh evidence or reevaluate a witness’s credibility.  [Citation.]’” 
(People v. Nelson (2011) 51
Cal.4th 198, 210.)  “‘Circumstantial evidence
may be as convincing in its force and as conclusive as the testimony of
witnesses to an overt act.’”  (>People v. Cline (1947) 79 Cal.App.2d 11,
15.)

            Substantial
evidence supports the verdict.  During
the April 22, 2010 operation, Lujano
told the informant his “uncle” was “already on his way with [the narcotics].”  When a Dodge Nitro entered the parking lot,
Lujano told the informant he would “get it from him,” exited his truck and
entered the Dodge Nitro.  Other than
Lujano, defendant was the only person in the Nitro.  When Lujano returned to his truck, he told
the informant he had to “pay him real quick,” got out of his truck, and again,
returned to the Dodge Nitro.  The informant returned with two ounces of
methamphetamines.  Although Lujano spoke to
someone in the black Honda, Lujano was seen entering and exiting only two
vehicles: his own and defendant’s Dodge Nitro.  A reasonable jury could infer that, on April 22, 2010, Lujano waited for
defendant to bring the methamphetamine to the parking lot, defendant brought
the methamphetamine, and Lujano paid defendant for the methamphetamine.

            Defendant’s
argument that the evidence is susceptible to an inference he obtained the
methamphetamine from the person in the black Honda does not compel a different
result.  First, the argument is not
persuasive because Lujano made no exchange with the person in the black
Honda.  (People v. Burns (1952) 109 Cal.App.2d 524, 534.)  Second, “‘the mere fact that the evidence is
susceptible of two inferences, one of innocence and one of guilt[,] would not
warrant a reversal of conviction.’”  (>Ibid.)  Because there is substantial evidence to
support the jury’s finding of defendant’s guilt, this court “‘is bound by the
findings of the jury where it rejects the hypothesis of innocence.’”  (Ibid.)
 Therefore, defendant’s conviction must
stand.

>DISPOSITION

            The judgment is affirmed.

 

 

                                                                                    FLIER,
J.

WE CONCUR:

 

 

            RUBIN, Acting P. J.

 

 

            GRIMES, J.