Filed 8/23/17 P. v. Gomez CA4/3


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

RICARDO ALFONSO GOMEZ,

Defendant and Appellant.


G053870

(Super. Ct. No. 14CF3514)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Steven D. Bromberg, Judge. Affirmed.
Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Theodore M. Cropley, Alana Cohen Butler and Kimberley A. Donohue, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted defendant Ricardo Alfonso Gomez of possession of a firearm on school grounds (Pen. Code, § 626.9, subd. (b) ; count one), possession of a firearm by a felon (§ 29800, subd. (a)(1); count two), possession of ammunition by a prohibited person (§ 30305, subd. (a)(1); count three), transportation of methamphetamine for sale (Heath & Saf. Code, § 11379, subd. (a); count four), possession of methamphetamine for sale (Health & Saf. Code, § 11378; count five), transportation of heroin for sale (Health & Saf. Code § 11352, subd. (a); count six), possession of heroin for sale (Health & Saf. Code, § 11351; count seven), and street terrorism (§ 186.22, subd. (a); count eight). It also found true defendant had committed counts one through seven for the benefit of a criminal street gang. (§ 186.22, subd. (b).) Subsequently, the trial court found true defendant had been previously convicted of a serious and violent felony (§§ 667, subds. (d), (e)(1) & 1170.12, subds. (b), (c)(1)), suffered a prior serious felony conviction (§ 667, subd. (a)(1)), and served two prior prison terms (§ 667.5, subd. (b)). But it struck the strike prior, and sentenced defendant to 10 years in prison.
Defendant’s sole contention on appeal is that the trial court erred in failing to instruct the jury sua sponte on accomplice testimony. We conclude no error occurred and affirm the judgment.
I
FACTS
Late one night, Santa Ana Police Officer Armando Chacon and his partner pulled into the driveway leading to a parking lot near some apartment buildings to conduct a curfew check. As they parked, Chacon saw a group of people standing by a car. Defendant and two other males started running away from their patrol car. Chacon radioed for assistance. Officers responded and detained the three males.
Chacon made contact with the others in the parking lot by the car. This included Nicole Shewbridge and John Pearson. Shewbridge was sitting in the driver’s seat of the car and Pearson was standing in front of it. Police found methamphetamine and heroin in the car and arrested Shewbridge. Shewbridge admitted she had previously gone to that area to purchase drugs from defendant.
II
DISCUSSION
Defendant contends the trial court prejudicially erred in failing to instruct sua sponte that if it found Shewbridge was an accomplice, because she aided and abetted his sale of drugs by purchasing them, her testimony had to be corroborated. The contention lacks merit.
“Section 1111 defines an accomplice as ‘one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.’ In order to be chargeable with the identical offense, the witness must be considered a principal under section 31. That statute defines principals to include ‘[a]ll persons concerned in the commission of a crime . . . whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission . . . .’ [Citations.]” (People v. Horton (1995) 11 Cal.4th 1068, 1113-1114.) An aider and abettor must act with knowledge of the perpetrator’s criminal purpose and with intent to commit, encourage or facilitate the commission of the offense. (People v. Stankewitz (1990) 51 Cal.3d 72, 90-91.)
“Accomplice status is a question of fact for the jury unless the evidence permits only a single inference. [Citations.] Defendant must establish the accomplice status of a prosecution witness by a preponderance of the evidence. [Citation.]” (People v. Sully (1991) 53 Cal.3d 1195, 1227-1228.) “‘When there is sufficient evidence that a witness is an accomplice, the trial court is required on its own motion to instruct the jury on the principles governing the law of accomplices,’ including the need for corroboration.” (People v. Tobias (2001) 25 Cal.4th 327, 331.) “The reason most often cited in support of these instructions is that an accomplice is inherently untrustworthy because he or she ‘usually testif[ies] in the hope of favor or the expectation of immunity.’ [Citation.] In addition, an accomplice may try to shift blame to the defendant in an effort to minimize his or her own culpability. [Citation.]” (Ibid.) “[I]f the evidence is insufficient as a matter of law to support a finding that a witness is an accomplice, the trial court may make that determination and, in that situation, need not instruct the jury on accomplice testimony.” (People v. Horton, supra, 11 Cal.4th at p. 1114.)
A mere purchaser of drugs is not an aider and abettor of the seller. (People v. Edwards (1985) 39 Cal.3d 107, 114, fn. 5 (Edwards); People v. Label (1974) 43 Cal.App.3d 766, 770-771.) A buyer is not the accomplice of the dealer. (Id. at p. 770.)
Defendant presented no evidence that Shewbridge was an accomplice in the possession of the drugs for sale, either as a coconspirator or as an aider and abettor. According to defendant, Shewbridge “was at the apartments to purchase narcotics.” There is no evidence she was a dealer herself, that she took “a more active role” in the drug transaction, or acted as a “go-between.” (Edwards, supra, 39 Cal.3d at p. 114, fn. 5.) By defendant’s own admission, Shewbridge was simply a buyer.
In his reply brief, defendant argues footnote 5 of Edwards does not stand for the above proposition. Rather, he states Edwards, supra, 39 Cal.3d at page 110, held “that the trial court erred in failing to instruct the jury that defendant could not be convicted of furnishing heroin to [decedent with whom he shared drugs] if he and [decedent] were merely copurchasers of the heroin.” But the last sentence of footnote 5 of Edwards is a statement of law necessary to the court’s holding, as it explains why a copurchaser cannot be held liable for selling or furnishing narcotics, i.e., “because one who merely purchases drugs is not guilty of furnishing as an aider and abettor of the seller [citation].” (Id. at p. 114, fn. 5, citing People v. Label, supra, 43 Cal.App.3d at p. 770.) As such, the statement in the footnote constitutes binding precedent and not dicta. (Hubbard v. Superior Court (1997) 66 Cal.App.4th 1163, 1168-1169.) “‘Even if properly characterized as dictum, statements of the Supreme Court should be considered persuasive. [Citation.]’ [Citation.]” (Id. at p. 1169.) We conclude footnote 5 of Edwards is compelling and apply it here. Because Shewbridge was only a purchaser of the drugs defendant was selling, she was not an accomplice and an instruction on the need for corroborating evidence was not required.
III
DISPOSITION
The judgment is affirmed.



MOORE, J.

WE CONCUR:



O’LEARY, P. J.



THOMPSON, J.