P. v. Williams
Filed 2/7/13 P. v. Williams CA4/1
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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publication or ordered published for purposes of rule 8.1115
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
CURTIS LEE WILLIAMS et al.,
Defendants and Appellants.
D060619
(Super. Ct.
No. SCD233770)
APPEALS
from orders of the Superior Court
of
County, Amalia Meza, Judge.
Affirmed.
I.
INTRODUCTION
A jury found Curtis Lee Williams
and Theresa Ann Lowery guilty of selling a controlled substance (Health and
Saf. Code, § 11352, subd. (a))
name="_ftnref1" title="">[1]
(count 1), transporting a controlled substance (§ 11352, subd. (a)) (count
2), possessing a controlled substance for sale (§ 11351) (count 3), and
two counts of furnishing a drug without a prescription (Bus. and Prof. Code,
§ 4059) (counts 4 and 5). The jury
also found Lowery guilty of obtaining controlled substances by fraud or deceit
(§ 11173, subd. (a)) (count 6). At
sentencing, the trial court stayed imposition of sentence and placed each
defendant on formal probation for a period of three years, subject to various
conditions.
On appeal, Williams contends that
there is insufficient evidence to
support the jury's verdicts finding him guilty of counts 1, 2, 3, and 5. Lowery contends that there is insufficient
evidence to support the jury's verdict finding her guilty of count 6. We reject these claims and affirm the orders
placing Williams and Lowery on probation.
II.
FACTUAL BACKGROUND
A.
On March 28, 2011, San Diego Police Detective Joseph Harper
called Lowery and asked her if she would sell him some "V's," which,
according to Detective Harper, is street slang for Vicodin. Lowery said that she had 15 pills to sell for
$2.00 each. Harper and Lowery agreed to
meet at a liquor store 30 minutes later.
A few minutes after this telephone call, Lowery called Harper back and
asked him if he wanted to buy some Ultram
and some Trazodone. During this second
conversation, Lowery also told Harper that she would arrive at the liquor store
in a white Taurus.
Williams drove Lowery to the liquor
store in his white Taurus. Lowery's son,
Casey Parker, was in the front passenger seat and Lowery was in the back
seat. Harper approached the Taurus and
Lowery opened the back door. Lowery
handed Harper a pill bottle that contained 15 Vicodin pills. Harper gave Lowery $30 in prerecorded money,
wrapped in a t-shirt.
Lowery asked Harper if he wanted to
buy some Trazodone. Harper bought one
pill for $2.00, giving Lowery two prerecorded $1 bills. Lowery then asked Harper if he wanted to buy
some Ultram. Williams told Harper that
Ultram was "good stuff" and said that "it would make [Harper]
feel really good." Harper gave
Lowery $2.00 in prerecorded money for one Ultram pill. Williams handed Lowery a pill bottle and
Lowery gave Harper one pill.
After the completion of the sales,
Williams drove Parker and Lowery from the scene. Police officers stopped Williams's Taurus two
blocks from the scene and searched the vehicle and its occupants. Williams had two prerecorded $1 bills in his
pocket, Parker had $32 of prerecorded money in his pocket, and Lowery had a
medicine bottle that contained 29 Trazodone pills in her jacket pocket. Police found another prescription bottle of
119 Ultram pills in or on the center console.
In a police interview, Lowery
admitted that she had sold the Vicodin and Trazodone to Harper. Lowery stated in the interview that she
obtained the Vicodin from her doctor and from Parker, and that the Ultram
belonged to Williams. During a separate
police interview, Williams stated that he knew he was driving Lowery and Parker
to to a location where one or both of them planned to sell Vicodin. Williams indicated that he agreed to drive
Lowery and Parker to the sales because he was hoping to sell his Ultram and to
be paid gas money for driving.
The People also presented evidence
that Lowery and Parker had fraudulently obtained prescriptions for controlled
substances from various doctors over a period of several months prior to the March 28, 2011 drug sales. (See part III.B., post.)
B.
Lowery testified that a person
who referred to himself as "Mike" called her on the telephone on the
day in question. Lowery agreed to meet
"Mike" at a liquor store parking lot.
Outside the liquor store, "Mike" reached into the white Taurus
in which Lowery was riding and removed Vicodin, Ultram, and Trazadone from the
car. According to Lowery, Mike also
threw a t-shirt into the Taurus. Lowery
later recognized Detective Harper as "Mike." Lowery denied having admitted to Detective
Harper that she sold him Vicodin.
Williams presented no testimony or
evidence.
III.
DISCUSSION
A. There is sufficient
evidence to support the jury's verdicts finding Williams
guilty of counts 1, 2,
3, and 5
Williams contends that there is
insufficient evidence to support the jury's verdicts finding him guilty of
selling a controlled substance (§ 11352, subd. (a)) (count 1),
transporting a controlled substance (§ 11352, subd. (a)) (count 2),
possessing a controlled substance for sale (§ 11351) (count 3), and
furnishing a drug without a prescription (Bus. and Prof. Code, § 4059)
(count 5). Specifically, Williams
maintains that there is insufficient evidence that he aided and abetted Lowery
in her commission of counts 1, 2, and 3, which relate to Lowery's sale of
Vicodin, and count 5, which relates to Lowery's sale of Trazadone.
1. Governing
law
a.
insufficient evidence
"A state court conviction that
is not supported by sufficient evidence violates the due process clause of the
that reason." (People v. Rowland
(1992) 4 Cal.4th 238, 269, citing Jackson v. Virginia (1979) 443 U.S. 307,
313–324.) In determining the
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." (Jackson v.
Virginia, supra, at p. 319.)
"[T]he court must review the whole record in the light most
favorable to the judgment below to determine whether it discloses substantial
evidence—that is, evidence which is reasonable, credible, and of solid
value—such that a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt." (People
v. Johnson (1980) 26 Cal.3d 557, 578.)
b.
Section
11352, subdivision (a) provides in relevant part: "Except as otherwise provided in this
division, every person who transports, imports into this state, sells,
furnishes, administers, or gives away, or offers to transport, import into this
state, sell, furnish, administer, or give away, or attempts to import into this
state or transport (1) any controlled substance specified in [various statutes][
. . shall be punished by imprisonment pursuant to subdivision (h) of Section
1170 of the Penal Code for three, four, or five years."
Section
11351 provides in relevant part:
"Except as otherwise provided in this division, every person who
possesses for sale or purchases for purposes of sale . . . any controlled
substance specified in [various statutes] shall be punished by imprisonment
pursuant to subdivision (h) of Section 1170 of the Penal Code for two, three,
or four years."
Business
and Professions Code section 4059 provides in relevant part: "(a) A person may not furnish any
dangerous drug,[
title="">[4]]
except upon the prescription of a physician, dentist, podiatrist, optometrist,
veterinarian, or naturopathic doctor pursuant to Section 3640.7."
c.
Aiding and abetting
A person may be guilty of a crime
either as a direct perpetrator or as an aider and abettor. (See Pen. Code, § 31; People v. McCoy
(2001) 25 Cal.4th 1111, 1117 ["a person who aids and abets a crime is
guilty of that crime even if someone else committed some or all of the criminal
acts"].) " 'A person aids and
abets the commission of a crime when he . . . (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.' [Citation.]" (People v. Hill (1998) 17 Cal.4th 800,
851.)
"Factors relevant to a determination
of whether defendant [is] guilty of aiding and abetting include: presence at the scene of the crime,
companionship, and conduct before and after the offense." (People
v. Singleton (1987) 196 Cal.App.3d 488, 492; accord
913, 924.)
2.
Relevant evidence
The People
presented evidence that Detective Harper telephoned Lowery and arranged a drug
transaction. (See pt. II.A.,
Williams then drove Lowery in a white Taurus to the site of the drug
sales, "ma[de] it his business" to observe the sales by
"look[ing] back over his shoulder" into the back seat of the vehicle
where the transactions were taking place, attempted to persuade Detective
Harper to purchase Ultram while Lowery was selling Harper the Vicodin and
Trazadone, and drove Lowery away from the sales. In addition, Williams acknowledged to
Detective Harper both that he knew that he was driving Lowery and Parker to a
location where one of them intended to sell Vicodin, and that he did so in the
hopes of selling Ultram to get gas money for driving.
3.
Applying the factors for
determining aider and abettor liability to this evidence (see
could reasonably find that Williams was present at the scene of the offenses,
that he had a relationship with Lowery and knew about her plan to sell Vicodin
and Trazadone, and that he facilitated the sales by driving Lowery to the site
of the transactions, permitting her to conduct the transactions in his vehicle,
and driving her away from the site.
Based on this evidence, the jury could reasonably find that Williams
aided and abetted Lowery in the commission of counts 1, 2, 3, and 5. (See ibid.;
see also In re Z.A. (2011) 207
Cal.App.4th 1401, 1426 [concluding that the People presented sufficient
evidence to support transportation and possession for sale convictions premised
on aiding and abetting theory of criminal liability through presentation of
evidence that defendant was "a full participant in the transportation of
the drugs on the day in question"]; People v. Meza (1995) 38
Cal.App.4th 1741, 1746 [concluding record contained
evidence of defendant's guilt for transporting cocaine for sale and possessing
cocaine for sale where trier of fact could infer that passenger in vehicle
containing drugs "went along to assist [driver]"].)
With
respect to counts 1, 2, and 3, Williams concedes that there was evidence that
he "was aware of Lowery's plan to sell controlled substances and he drove
her to the location where there was a buyer in order to 'get in on it' by
selling a few of his own . . . prescription [Ultram] tablets[
to that buyer." However, Williams
contends that although he was aware
of Lowery's plan to sell Vicodin and he assisted
her in the commission of the sale by driving her to the location where the drug
sale was to take place, the jury could not find the third necessary element to
establish aider and abettor liability, namely, that he intended to aid her commission of counts 1, 2, and 3. Williams maintains that in taking these
actions he acted solely for the purpose of "mak[ing] some money for
himself." We are not persuaded. From the evidence discussed above, the jury
could find that Williams intended both to facilitate the sale of his Ultram and
to assist Lowery in the sale of the Vicodin.
(Cf. People v. Jaska (2011)
194 Cal.App.4th 971, 984 [" 'intent . . . is
established by circumstantial evidence and the reasonable inferences to which
it gives rise' [citation]"].)
With respect to count 5, pertaining
to Lowery's sale of Trazadone, Williams contends that there is no evidence that
he had knowledge of Lowery's plan to sell Trazadone. We disagree. After his arrest, Williams told Detective
Harper that the Ultram belonged to him and that he drove Lowery and Parker to
the site of the drug deal in part so that he could sell Ultram. Detective Harper also testified that Williams
participated in the sale of the Ultram.
prior to the sale, Lowery telephoned him and asked if he was interested in
purchasing Trazadone
Harper that she would be arriving at the site of the proposed transaction in a
white Taurus, which is Williams's car.
The jury could reasonably infer from this evidence that Williams had
knowledge of Lowery's plan to sell Trazadone.
Accordingly,
we conclude that there is sufficient evidence to support the jury's verdicts finding
Williams guilty of selling a controlled substance (§ 11352, subd. (a))
(count 1), transporting a controlled substance (§ 11352, subd. (a)) (count
2), possessing a controlled substance for sale (§ 11351) (count 3), and
furnishing a drug without a prescription (Bus. and Prof. Code, § 4059)
(count 5).
B. There is sufficient
evidence to support the jury's verdict finding Lowery guilty
of obtaining prescription drugs by fraud or
deceit
Lowery contends that there is
insufficient evidence to support the jury's verdict finding her guilty of
obtaining controlled substances by fraud or deceit (§ 11173, subd. (a))
(count 6). We apply the law governing
sufficiency claims discussed in part III.A.1, ante.
Section 11173,
subdivision (a) provides:
"No person shall obtain or
attempt to obtain controlled substances, or procure or attempt to procure the
administration of or prescription for controlled substances, (1) by fraud,
deceit, misrepresentation, or subterfuge; or (2) by the concealment of a
material fact."
At trial, the People presented
evidence that Lowery obtained 10 prescriptions for controlled substances from
nine different doctors over a period of approximately four months, beginning on
December 13, 2010.
title="">[8] For example, during one 10-day period in March
2011, Lowery filled five prescriptions from four different doctors. In addition, Lowery filled the prescriptions
that she received over this four-month period at five different pharmacies.
On several occasions Lowery and
Parker each obtained prescriptions for controlled substances during joint
visits to various emergency rooms.
Parker was with Lowery at the time of her commission of the controlled
substance offenses charged in counts 1 through 5, and Lowery sold some of the
controlled substances that she and Parker had obtained to an undercover
officer.
California Department of Justice
Special Agent John Wilde reviewed Lowery's medical records and her CURES
report, as well as information gained from Detective Harper's
investigation. Wilde testified that in
his opinion, the evidence demonstrated that Lowery had obtained prescription
medication by fraud. Wilde explained the
basis for his opinion as follows:
"[B]ased on the CURES
report, the doctor-shopping, the going in between different hospitals, the
using different pharmacies—and even in one instance, she was in an emergency
room . . . one day, discharged early in the morning, and the very next . . .
day she was back with a similar complaint.
[¶] So based on the number of
visits, the type of medication that she was getting, the different pharmacies,
the complaints, talking with the doctors, the prescribing physicians, and the
fact that she sold some of these controlled substances to an undercover police
detective—that leads me to believe the substances were gotten solely for the
purpose of sales."
Special Agent Wilde also stated
that Lowery's medical records indicated that she had never informed any of the
prescribing physicians that she was taking any controlled substances. Wilde stated that this was significant
because "if [a patient] is already taking Vicodin," a doctor would
not "prescribe [the patient] more Vicodin . . . because [the patient is] already taking
it."
We reject Lowery's contention that
the evidence presented at trial is insufficient to support the verdict because
the prosecution presented no evidence that she did not suffer from a legitimate
medical condition that required medication at the time she obtained the various
controlled substances. The evidence
cited above is plainly sufficient for the jury to have inferred that Lowery
obtained the controlled substances by fraud for the purpose of selling them,
and not for personal consumption for the treatment of any medical
condition.
IV.
DISPOSITION
The
orders granting probation are affirmed.
AARON, J.
WE CONCUR:
O'ROURKE,
Acting P. J.
IRION,
J.
name="_ftn1" title="">[1] Unless otherwise specified, all subsequent statutory
references are to the Health and Safety Code.
name="_ftn2" title="">[2] Detective Harper testified that Ultram and Tramadol are
"one and the same." We use the
name Ultram throughout this opinion for purposes of clarity.
