People v. Tapia CA2/8 ( 2014 )

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B245474
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA 391773)
v.
PASCUAL BARRAGAN TAPIA,
Defendant and Appellant.
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 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.
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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
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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
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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
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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.
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