People v. Magana CA4/1

Filed 11/3/20 P. v. Magana CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D075886
Plaintiff and Respondent,
v. (Super. Ct. No. SCD262083)
EDWIN EDMUNDO MAGANA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Joan P. Weber, Judge. Affirmed.
Heather L. Beugen, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Steve
Oetting and Kristen Ramirez, Deputy Attorneys General, for Plaintiff and
Respondent.
INTRODUCTION
After law enforcement recovered large amounts of liquid and solid
methamphetamines and several firearms from Edwin Edmundo Magana’s
property in Los Angeles County, they arrested and charged him in San Diego
County. When Magana challenged venue, the People argued the drugs
recovered at Magana’s home had entered the United States through a port in
San Diego and traveled the length of San Diego County before arriving in Los
Angeles, creating a nexus with San Diego County. The superior court agreed.
The case eventually went to trial in San Diego, and Magana was convicted.
Magana appeals his conviction, arguing that venue in San Diego
County was improper. We conclude there was some evidence to support the
superior court’s determination, and we will affirm.
BACKGROUND AND PROCEDURAL FACTS
In 2011 and 2012, the Drug Enforcement Administration (DEA) was
targeting a “cell” of drug traffickers. Within this cell, the DEA had identified
Armando Gomez as an individual who received drugs in Tijuana, packaged
them, placed them in cars, and directed their transport across the United
States border. The DEA had also identified Martin Bucio and Frederico
Perez Ramirez as participants who received drug loads from Gomez in the
United States.
To track these individuals, the DEA used wire taps. In one phone call
on May 15, 2012, Gomez told Bucio where the drugs were in San Diego and
when he could expect to receive the load. DEA Agent Holley testified:
“Basically[, Gomez] was telling [Bucio], hey, this is where it’s at, San Diego.
It will be to you by whatever time.” In other intercepted phone calls on May
18 and May 21, Gomez updated Ramirez about when to expect the drug loads
heading to him. On May 22, the DEA intercepted calls involving Gomez that
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identified an individual by name, a license plate, and provided a vehicle
description.
On May 23, 2012, agents seized narcotics from the vehicle identified in
the call at the San Ysidro port of entry in San Diego County. At that point in
time, more than 99 percent of methamphetamines were manufactured in
super labs in Mexico.
Gomez’s cell transported anywhere from 25 to 50 pounds of drugs at a
time from Tijuana through San Diego and into Los Angeles. The DEA never
discovered any other mode of transportation; couriers moved drugs through
the San Diego corridor to other parts of the country. The DEA confirmed
drug loads crossed through San Diego’s port of entry on May 15, May 18, and
May 23, and Special Agent Holley testified that the DEA had multiple drug
seizures in San Diego County, at the port of entry, from this drug
organization.
The DEA intercepted additional calls in June. It tracked a call made
June 18 to an address on Horace Avenue in Granada Hills, in Los Angeles
County. Ramirez, who was inside the home, indicated he was counting a
significant amount of drugs.
The following morning, law enforcement officers conducting
surveillance of the home on Horace Avenue observed Bucio and Ramirez
leave the property and followed them to another home in Los Angeles
County, where 190.5 pounds of methamphetamine were later seized.
On June 19, 2012, Laverne Police Department Detective Devin Harden
knocked on the door of the Horace Avenue home, and Magana answered.
When Detective Harden asked Magana if there were drugs or guns in the
home, Magana admitted there were both. He and his wife consented to a
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search and provided law enforcement with access to a detached garage on the
property.
Inside the garage, law enforcement recovered two AR-15 assault rifles,
four semiautomatic handguns, and magazines and ammunition. Law
enforcement found 26.6 kilograms, or 58.6 pounds, of solid methamphetamine
and 59.6 liters, or 131.1 pounds, of liquid methamphetamine in the garage.
Police also recovered $136,970 in U.S. currency from Magana’s bedroom.
At trial, Magana testified he had met a woman at the park near his
home who mentioned that she and her boyfriend, who had a restaurant
together, were having financial problems and needed someplace to store their
food for three to five weeks until they could get their own storage place. She
asked Magana if they could store the food at his home, and he said they
could. He said he did not know the stored items contained drugs.
Magana was charged with four felony counts: (1) possession for sale of
powder Methamphetamine (Health & Saf. Code,1 § 11378; count 1);
(2) possession for sale of liquid methamphetamine (§ 11378; count 2);
(3) possession of more than $100,000 dollars knowingly obtained from the
unlawful sale, possession for sale, or transportation for sale, of a controlled
substance (§ 11370.6, subd. (a); count 3); and (4) knowingly receiving or
acquiring more than $25,000 dollars from a violation of the Uniform
Controlled Substances Act (§ 11470.9, subd. (a); count 4). In connection with
count 1, Magana was charged with four quantity allegations: one kilogram,
four kilograms, 10 kilograms, and 20 kilograms. (§ 11370.4, subd. (b)(1)–(4)).)
With respect to count 2, it was alleged that the liquid methamphetamine
exceeded 30 liters. (§ 11370.4, subd. (b)(1).) The charging documents also
1 Further unspecified statutory references are to the Health & Safety
Code.
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alleged, in connection with counts 1 and 2, that Magana was personally
armed with six firearms. (Pen. Code, § 12022, subd. (c).)
Before trial, defense counsel moved for a change of venue, arguing
there were no criminal allegations with connections to San Diego County, and
Los Angeles County offered a more appropriate venue because it was where
the defendant resided, where witnesses and evidence were located, and where
the crime occurred. At the hearing on the matter, Magana’s attorney argued
that Evidence Code section 781 did not provide a basis for venue because
there were insufficient preparatory acts in San Diego County to justify venue.
The court concluded San Diego County was a proper venue because one
of the preliminary acts was transporting the drugs from Tijuana to Los
Angeles, necessitating travel through San Diego. The court noted that over
99 percent of the methamphetamines entering Los Angeles were produced in
Mexico, no drugs were produced from any other location, including the
United States, and the drugs managed by Gomez and Bucio specifically were
entering through San Diego County; thus, there was a preponderance of
evidence that there was a nexus with San Diego.
Following trial in San Diego, a jury found Magana guilty of all four
counts and found true the weapons allegations attached to counts 1 and 2.
The court sentenced Magana to 14 years four months in prison. Defendant
timely appealed.
DISCUSSION
The prosecution bears the burden at trial of proving by a
preponderance of the evidence facts that establish venue in the county where
the defendant is being prosecuted. (People v. Thomas (2012) 53 Cal. 4th 1276,
1283 (Thomas).) We uphold the determination on appeal if there is some
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evidence to support the finding. (Ibid.; People v. Chavarria (2013) 213
Cal. App. 4th 1364, 1369 (Chavarria).)
Generally, defendants are prosecuted in the venue in which the crime
was committed. (Pen. Code, § 777.) However, Penal Code section 781
permits a defendant whose alleged crime has occurred in two jurisdictional
territories to be prosecuted in “any competent court within either
jurisdictional territory.” Penal Code section 781 is liberally construed
(People v. Posey (2004) 32 Cal. 4th 193, 202 (Posey)), and venue is proper in
any county where “ ‘preparatory acts have occurred,’ ” even when those acts
are not elements of the charged offense. (Thomas, supra, 53 Cal.4th at
p. 1284.) Courts have determined preparatory acts include stealing firearms
in one county before shooting a victim in a different county (People v. Price
(1991) 1 Cal. 4th 324, 385-386) and meeting victims in one county and making
phone calls from there before killing the victims in another county (People v.
Douglas (1990) 50 Cal. 3d 468, 493-494).
Venue can also be based on “ ‘preparatory effects,’ ” or the effects of
preparatory acts. (Thomas, supra, 53 Cal.4th at pp. 1285, 1286; Posey, supra,
32 Cal.4th at p. 202.) Thus, in a case like the one before us, venue is proper if
“ ‘the acts or effects thereof constituting or requisite to the consummation of’
defendant’s unlawful possession occurred in [San Diego] County.” (Thomas,
at p. 1284.) In Posey, the Supreme Court concluded venue was proper in
Marin County based on preparatory effects. There, a police officer in Marin
County paged the defendant in San Francisco, the defendant believed he was
calling back the officer in Sonoma, and the defendant agreed to sell drugs in
San Francisco, where the sale actually occurred. (Posey, at p. 220.) The court
explained that even though the defendant may not have known he was
placing a telephone call to Marin County, “venue turns on the presence or
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absence, in a county, of acts or effects constituting the crime or requisite to
the commission of the crime—not on the defendant’s state of mind or on the
soundness of any beliefs that he or she might hold as to the location of those
acts or effects.” (Id. at p. 221.)
The court in Chavarria likewise looked at the preparatory effects in
determining venue. There, unlike in Posey, the defendant was not directly
involved in the preparatory acts that formed the basis of venue. (Chavarria,
supra, 213 Cal.App.4th at pp. 1370-1371.) Several phone calls were
exchanged between an informant in Ventura County and a third person in
Los Angeles County for the sale of drugs in Los Angeles. (Id. at p. 1367.)
Although the defendant did not initiate or participate in the phone calls
between the informant and the third party, the appellate court nonetheless
concluded that the conversation in which the drug sale was negotiated was a
preparatory act that occurred in two counties, Ventura and Los Angeles,
making each appropriate for prosecution. (Id. at pp. 1370-1371.) Even
though the defendant was not directly involved in those preparatory acts,
“[t]he drug sale of which appellant was convicted was negotiated by his
accomplice over the phone with an individual who was physically present in
Ventura County. But for that call, there could have been no sale. Because this
constitutes some evidence sufficient to support the finding that preparatory
acts or effects requisite to commission of appellant’s crimes took place in
Ventura County, his motion to dismiss for lack of proper venue in that county
was properly denied.” (Id. at p. 1371.) Penal Code section 781 does not
require the acts or effects “ ‘requisite to the consummation of the offense’ ” to
directly involve the charged defendant. (Chavarria, at p. 1371.)
The question before us is whether there was “some evidence” of
preparatory acts or effects in San Diego to justify venue in San Diego.
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(Thomas, supra, 53 Cal.4th at p. 1283.) Magana argues there were not,
primarily because there was no evidence of preparatory acts in San Diego,
like drugs changing hands, stash houses, or phone calls. And he argues there
were no effects from the drugs traveling through San Diego that would justify
its imposition of venue.
We disagree with Magana’s assessment of the evidence. While it is
accurate that the People did not present evidence of stash houses in San
Diego, there was some evidence of communication between members of the
drug cell and couriers in San Diego. In particular, during the May 15 phone
call intercepted by the DEA, Gomez conveyed to Bucio where, specifically, the
courier transporting drugs was located in San Diego. In order to do that, the
drug courier had to have communicated in some manner the load’s location to
Gomez. Although Magana, like the defendant in Chavarria, was not directly
involved in those conversations, as long as preparatory acts or their effects
occurred in San Diego County, even without a defendant’s involvement,
venue is proper. (Chavarria, 213 Cal.App.4th at pp. 1370-1371.)
Magana also argues that no preparatory acts or effects occurred in San
Diego because the drugs traveled directly from the border to Los Angeles and
there is no evidence the specific drugs recovered from Magana’s home were
those sent through San Diego. But because over 99 percent of all
methamphetamines were created in Mexico super labs and the drugs had to
move through San Diego County to get to Los Angeles, the act of transporting
the drugs necessarily occurred in San Diego. Additionally, even if the courier
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made no stops in San Diego County after passing through the port of entry,2
he certainly accessed San Diego resources by traveling either along the
Interstate 5 or Interstate 15 corridors. Absent the drugs traveling through
San Diego, Magana would not have had them in his possession; thus, there
was some evidence of the preparatory acts or effects “ ‘requisite to the
consummation of’ defendant’s unlawful possession.” (Thomas, supra, 53
Cal.4th at p. 1284.)
DISPOSITION
The judgment is affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
IRION, J.
2 Magana argues in both his opening brief and his reply that there was
no evidence couriers stopped in San Diego because Agent Holley testified the
drugs “came from the source, which is Tijuana, and [were] trafficked directly
to [the house on] Horace [Avenue].” However, this exchange addressed
whether the drugs were sourced to any other distributors outside the chain.
Agent Holley did not specify whether drugs were transferred to new couriers
in San Diego after passing through the San Ysidro port of entry or whether
the drugs were carried all the way to Los Angeles by the same individuals
who transported them across the border, only that the drugs went directly to
Magana’s house. There is no question that drugs were seized in San Diego
County at the port of entry, or that they traveled through San Diego before
arriving at Magana’s property.
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