Opinion
Review Granted Oct. 15, 1997.
Previously published at 56 Cal.App.4th 163
William J. Kopeny, Irvine, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, and David L. Polsky, Deputy Attorney General, for Plaintiff and Respondent.
BARON, Associate Justice.
We consider in this case the issue whether a California trial court properly exercised criminal jurisdiction over appellant who, without leaving California, participated in the receipt of shipments of cocaine in Texas and their subsequent delivery to Michigan and Louisiana. For reasons we shall explain, we conclude that appellant committed criminal acts in California sufficient to justify punishment under the laws of this state.
FACTUAL AND PROCEDURAL SUMMARY
On January 13, 1994, appellant Isabel Morante called Rafael Flores and told him that she had some work for him. Flores had not seen appellant for eight months to a year but agreed to meet appellant at her home in Los Angeles. In that meeting appellant offered Flores a job transporting cocaine. Flores had never before been involved in selling or delivering cocaine. Appellant explained that Flores would go to Houston to meet some people. Appellant would provide him with an airline ticket and he would be paid $8,000 for his work, of which he was to give appellant $2,000. Appellant instructed Flores that he was to stay in contact with her by calling her beeper from pay phones. He was never to call her home because she was being followed.
Flores agreed and the next day, January 14, 1994, appellant picked him up at his house, drove him to the Los Angeles airport and purchased his airline ticket. Flores flew to Houston, checked into a hotel and called appellant as instructed. Appellant told Flores to call her back in one hour for instructions. When Flores called appellant back, she told him that two people would come to his room and not to leave the hotel. Two people arrived at his hotel room and left saying they were going to check with appellant to make sure Flores was the person appellant had sent to work with them. When the men returned, they gave Flores $2,000 and 10 kilos of cocaine. Flores packaged the cocaine in plastic bags using fabric softener and mustard as masking agents. Flores then paged appellant who called him back. Flores informed appellant he had received the cocaine. Appellant called Flores back an hour later with instructions to deliver the cocaine to Detroit.
On January 15, Flores flew to Detroit and called appellant from the airport and reported that his luggage, containing the cocaine, had been delayed. Appellant told Flores not to worry, to just wait. Flores's luggage arrived on the next plane from Houston and he called appellant for further instructions. Appellant told Flores to check into a hotel and to call her. Appellant instructed Flores to wait in his hotel room until noon when she would give him further instructions. At noon, appellant called Flores and told him to go to a certain room where he would meet two Black people. Appellant instructed Flores to knock three times at their door and the person inside would knock back three times before opening the door. Flores followed appellant's instructions, delivered the 10 kilos of cocaine, and then called appellant to tell her the delivery was complete. Appellant instructed Flores to fly back to Houston.
On January 16, Flores returned to Houston, checked into a hotel, and called appellant. Appellant told Flores to call her back in an hour and a half. When Flores called back, appellant instructed Flores to wait in the room because another 10 kilos of cocaine would be delivered. A few hours later, the same people delivered another 10 kilos of cocaine to Flores at his hotel. Flores called appellant to let her know he had received the shipment. Flores packaged the cocaine in plastic bags with the fabric softener and mustard and, pursuant to appellant's instructions, Unbeknown to appellant, narcotics agents were monitoring the telephone of the person who was giving appellant the instructions which she was passing on to Flores. Newport Beach Police Officer Scott Dean McKnight was assigned to the Orange County Regional Narcotics Suppression Program, a 60-member task force of investigators from local police departments, the DEA, FBI, and U.S. Customs Service. Their target was the Colombian cartel.
The officers believed that Robinson Suarez managed an organization that imported cocaine into the United States, collected the proceeds from those sales, and exported the currency to Colombia. Based upon authorization from a superior court judge, the task force installed wire taps on Suarez's telephone and placed him under surveillance. Officers monitored Suarez's telephone calls on a 24-hour basis. As a result, the task force learned of the relationship between Suarez and appellant and overheard Suarez providing appellant with the instructions to pass on to Flores. On November 29, 1993, the officers observed that Suarez spent the night at appellant's Los Angeles residence.
The conversations between appellant and Suarez were in code. Officer McKnight interpreted the meaning of the conversations for the jury.
The information they obtained led to a number of arrests of members of Suarez's organization. On December 27, 1993, Margarita Molina, a drug courier responsible for collecting proceeds from the sale of drugs, was arrested. In connection with Molina's arrest, the officers recovered $675,000 from her vehicle plus an additional $9,000 from her residence. They also seized "pay-owe" ledgers, which contained notes on the proceeds collected and balances outstanding for prior drug sales. On December 30, 1993, officers monitored a conversation between Suarez and appellant in which Suarez complained about the recent arrest of Molina as well as the number of seizures against his organization, and discussed how law enforcement was gaining its information.
On January 14, the officers heard Suarez call appellant and tell her to give their new drug courier the pager identification number of 42, and the code name of "Flip" or "Flipper." Suarez also asked appellant the name of the courier. Appellant replied, "Rafa." On the same date, Suarez called a Houston cellular telephone number and told a man (whom the officers were unable to identify) that the courier had arrived. The Houston man was instructed he would receive a call from Rafa who would use the number "42" and ask for "Flip." Suarez told the Houston man that Rafa knew how to do everything and to give it to him "raw," meaning that the Houston connection did not have to mask the cocaine, that Rafa would put those items on the cocaine. The Houston man asked Suarez if Rafa had already been told where to go. Suarez replied, " 'No, I'll tell him today. She'll tell him or I'll tell her to tell him. [p] ... I'll tell him, okay. I would imagine that he has to keep in touch with her.' " It was then decided between Suarez and the Houston man that the shipment should end up in Detroit. That night, a number of officers in cars kept watch over both Suarez and appellant. Suarez was seen going into appellant's residence where he stayed for a brief time.
The next day, January 15, Suarez called appellant who received the call at a public pay phone. They discussed that there were not as many cars watching her house as the night before. They discussed one car and the description of a woman whom they had both seen. Appellant informed Suarez that Suarez called appellant again on January 15. Appellant told Suarez that everything was still okay. Suarez told appellant that as soon as he learned the room number he would put the number in appellant's pager, and gave her the name "Captain," so that she could tell Rafa where to go and for whom to ask. Suarez asked appellant, " 'They're Black guys; right?' " Appellant replied, " 'Uh-huh.' " Suarez told appellant to have Rafa call her after he met with them, and then appellant was to let Suarez know by way of putting a key in his pager so he could inform his boss.
This woman fit the description of Officer Sandy Stone, who was the only female surveillance officer on duty that night.
On January 17, Suarez called appellant at a pay phone. Appellant and Suarez discussed that the cocaine had been delivered to Rafa but that Rafa had not been told where he was to take it. Suarez told appellant that Rafa was going to New Orleans. Appellant said she would call Rafa right away and tell him. Later that day, Suarez called appellant and she confirmed that Rafa had been provided with cocaine and expense money and was ready to go to New Orleans.
On January 18, Suarez called appellant at a pay phone and she provided Suarez with a telephone number which the officers traced to a Days Inn Hotel in Kenner, a small town outside of New Orleans. Officer McKnight contacted the DEA supervisor in New Orleans, explained their investigation and provided him with the hotel information. That same day, Suarez called appellant and complained that when he called the number she gave him for Rafa, it was in "Tanner" (Kenner) Louisiana, not New Orleans.
Detective Christopher Ortiz was assigned to the New Orleans DEA task force. On January 18, he set up a 24-hour surveillance on the hotel room in Kenner. During the next few days, the officers watched as Flores left this room once or twice a day to make pager calls from a pay phone. Flores was arrested on January 22, at the airport. A search of his suitcase revealed 10 kilos of cocaine. Flores called appellant who told him not to worry, they would send an attorney. David Elden, a Los Angeles criminal defense attorney, arrived in Louisiana to represent Flores the following Monday. Shortly thereafter, Flores pleaded guilty to transporting cocaine and was sentenced to federal prison.
In order to avoid compromising their ongoing wire tap investigation of other high ranking cartel members in the United States, Officer McKnight did not arrest and search appellant pursuant to warrants until May 21, 1994. During a search of appellant's home, Officer McKnight seized appellant's day planner, which contained phone numbers for Suarez, Flores, Attorney David Elden and the New Orleans county jail. He also seized notations reflecting the price of cocaine by kilo. Appellant admitted to Officer McKnight that she had recruited Flores for Suarez and that "in her heart she knew that Rafael Flores was transporting cocaine." She believed that Suarez was a 100 kilogram per month dealer of cocaine. She knew about Flores's arrest for possession of cocaine in January and that Suarez had been arrested for money laundering. She and Suarez continued to speak nearly every day following his arrest.
Appellant was charged in Los Angeles Superior Court in count 1 with conspiracy to commit the crimes of possession of cocaine for sale and transportation of cocaine on January 22, 1994. (Pen.Code, § 182, subd. (a)(1).) Two overt acts were alleged to have occurred in Los Angeles County in support of the conspiracy charge: (1) that on or about January 14, 1994, appellant provided Robinson Suarez the name of an individual who could transport cocaine for him, and (2) on or about January 18, 1994, appellant received a call from Robinson Suarez in which she gave him the telephone number of Rafael Flores who would transport cocaine for him. Appellant also was charged in count 2 with possession for sale of cocaine exceeding 10 kilos by weight on January 22, 1994 (Health & Saf.Code, §§ 11351, 11370.4, subd. (a)),
DISCUSSION
I.
Appellant claims all of the crimes of which she was convicted took place in the State of Louisiana and urges reversal of her convictions for lack of jurisdiction in the State of California. Appellant argues the acts she committed in Los Angeles were merely preparatory, no drugs were possessed here, none were shown to have come from or into this state, and thus the evidence was insufficient to confer jurisdiction upon California courts to prosecute her.
The statutes governing the question of inter-jurisdictional crimes are subdivisions (a) of Penal Code sections 27 and 778a, which read: "The following persons are liable to punishment under the laws of this state: [p] (1) All persons who commit, in whole or in part, any crime within this state." (Pen.Code, § 27, subd. (a).) "Whenever a person, with intent to commit a crime, does any act within this state in execution or part execution of that intent, which culminates in the commission of a crime, either within or without this state, the person is punishable for that crime in this state in the same manner as if the crime had been committed entirely within this state." (Pen.Code, § 778a, subd. (a).)
"[I]n construing a statute, a court [must] ascertain the intent of the Legislature so as to effectuate the purpose of the law. [Citation.] In determining that intent, we first examine the words of the respective statutes: If there is no ambiguity in the language of the statute, then the Legislature is presumed to have meant what it said, and the plain meaning of the language governs. [Citation.] Where the statute is clear, courts will not interpret away clear language in favor of an ambiguity that does not exist. [Citations.] If, however, the terms of a statute provide no definitive answer, then courts may resort to extrinsic sources, including the ostensible objects to be achieved and the legislative history. [Citation.] We must select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences. [Citation.]" (People v. Coronado (1995) 12 Cal.4th 145, 151, 48 Cal.Rptr.2d 77, 906 P.2d 1232, internal quotation marks omitted.)
The Crime of Conspiracy
We read the plain language of Penal Code section 778a to mean that people who, while in this state, conspire to commit a crime and commit overt acts here in support of that conspiracy will be subject to California's jurisdiction whether the target crime is consummated within or without California. If we analogize to Supreme Court civil decisions, as has been suggested by one legal commentator, "the true question is whether or not the public of the state is threatened or has suffered some injury which justifies the imposition of criminal sanctions under the state's power to protects its citizens." (Note (1956) 29 So.Cal.L.Rev. 363, 365.) Only in the absence of such a relationship between the forum and the acts in question would the assertion of jurisdiction constitute a violation of the due process clause. (Op. cit. supra, at p. 365.)
We turn to such an analogy. In Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 58 Cal.Rptr.2d 899, 926 P.2d 1085, the Supreme Court was called upon to determine whether California courts could exercise in personam jurisdiction over owners of Jack-in-the-Box franchises located in the State of Washington who had undercooked We think the Vons principles are particularly applicable in this case. From her base in Los Angeles, appellant recruited Flores to act as a drug courier for Suarez, provided his name and telephone number to Suarez, instructed Flores on how to package the cocaine so that it could not be detected by drug-sniffing dogs, instructed Flores on how to communicate with her to avoid detection by the police, drove Flores to the airport and paid for his flight from California to Texas, and communicated to Flores the instructions she received from Suarez on where and from whom Flores would receive the cocaine. Additionally, while in Los Angeles, appellant instructed Flores regarding where and to whom the cocaine was to be delivered and, upon Flores's arrest, provided a Los Angeles attorney to represent him.
While California was neither the pick up nor the delivery point for the drugs, appellant, with the use of today's advanced communications technology, was able to assist in the direction of this criminal operation from within California's borders. And, we can reasonably infer, the monetary proceeds from the out-of-state drug trafficking were flowing through California on their way to Columbia. When Molina, a principal in the organization, was arrested, she was in possession of over $675,000 along with "pay-owe" sheets. When appellant was arrested, she also was in possession of "pay-owe" sheets. In addition, appellant's agreement with Flores called for her to receive 25 percent of his fee for delivering the cocaine. Appellant's actions more than meet the "minimum contacts" test.
In addition to appellant's "minimum contacts" with California, each of the remaining Vons factors are present. It was California police officers, working in conjunction with federal agents in California, Texas, and Louisiana, who expended their time and energy in investigating appellant for cocaine trafficking which is a crime in all states and civilized nations. It was California judges who reviewed the affidavits and issued the wire tap authorizations, and arrest and search warrants. In sum, the successful seizure of 10 kilos of raw cocaine before it hit the streets of Detroit was due to a major California law enforcement effort which culminated in the arrest in California of persons directing this major cocaine trafficking enterprise. California's interest in "convenient and effective relief, judicial economy," and the "shared interest of the several States in furthering fundamental substantive social policies" support for our view that assertion of criminal jurisdiction over appellant neither burdens her, is unfair or denies her "substantial justice."
If conspirators receive the benefits of living in California and the protection of its laws while they are conspiring to violate the laws of this and the target state, they must be subject to the penalties of our laws when apprehended. To hold otherwise sends a message to conspirators that they may plan and direct their criminal operations in California with impunity. Law enforcement efforts to interdict criminal conspiracies are weakened and California becomes a safe haven for conspirators. In sum, we believe Penal Code sections 27 and 778a reflect a legislative policy that when criminals conspire Thus, were we writing on a clean slate, we would give Penal Code sections 27 and 778a their plain and literal meaning and conclude they expressly permit our courts to take jurisdiction over this case. But our conclusion that California's criminal penalties should be imposed on appellant for conspiracy in California to possess for sale and transport cocaine conflicts with the interpretation of sections 27 and 778a set forth by the California Supreme Court in People v. Buffum (1953) 40 Cal.2d 709, 256 P.2d 317. Thus our views are not controlling and we are left to giving them expression in the hope they will lead our Supreme Court to take a fresh look at its decision in Buffum.
In Buffum, the Supreme Court construed Penal Code sections 27 and 778a as applying only "where the acts done within the state are sufficient to amount to an attempt to commit a crime but not otherwise. [Citations.]" (People v. Buffum, supra, 40 Cal.2d at p. 716, 256 P.2d 317, emphasis added.) The defendants in Buffum were prosecuted for conspiracy to commit abortions in violation of Penal Code sections 182 and 274. The evidence showed that four pregnant women solicited defendant Buffum's assistance in inducing miscarriages. Buffum, a physician and surgeon, refused to perform the abortions but took their telephone numbers and told them they would receive a call. Codefendant Rankin called the women, told them the amount they must pay, arranged to meet them at a designated intersection in Long Beach, and drove them to Tijuana, Mexico, where Rankin assisted another man in performing the abortions. Shortly thereafter, three of the women required hospitalization. Defendant Buffum treated one of them without examination or inquiry as to the nature of her illness, and reimbursed her family for the hospital bill. (People v. Buffum, supra, at p. 714, 256 P.2d 317.) The defendants' convictions were reversed on the grounds that the defendants' conduct was merely preparatory and did not constitute a direct, unequivocal act done toward committing illegal abortions in California. (Id., at p. 718, 256 P.2d 317.)
Twenty-five years ago we pointed out that Buffum's requirement that the defendant's acts must constitute at least an attempt to commit the crime in California was being strongly criticized. (People v. Utter (1972) 24 Cal.App.3d 535, 550, 101 Cal.Rptr. 214.) One critic put it this way: "If one Californian lures another to Mexico and there murders him is California indifferent or helpless?" (Currie, Justice Traynor and the Conflict of Laws (1961) 13 Stanford L.Rev. 719, 748.) That was the factual circumstance in Utter. There, the defendant was convicted of murder based upon evidence that he lured a wealthy woman to Switzerland and killed her. We reluctantly reversed the defendant's murder conviction as we felt bound by the rule in Buffum that the defendant must commit acts amounting to an attempt to commit the crime in California in order to be subject to California jurisdiction. (People v. Utter, supra, at p. 550, 101 Cal.Rptr. 214.)
The court ruled evidence that abortion was also a criminal offense under Mexican law was erroneously admitted. (People v. Buffum, supra, 40 Cal.2d at p. 719, 256 P.2d 317.)
Subsequently, the Supreme Court revisited the issue in People v. Burt (1955) 45 Cal.2d 311, 288 P.2d 503. Regrettably, the court chose to distinguish rather than to discredit the Buffum reasoning. In Burt, the court outlined two types of conflicts which could occur if we applied our conspiracy law to crimes committed in another state. As examples it stated: "Two or more persons may conspire to commit an act in another state that would not be a crime there but would be a crime if committed in this state, or that would not be a crime here but would be a crime in the other state." (People v. Burt, supra, at p. 313, 288 P.2d 503.) Thus, the Supreme Court stated: "Since the Legislature is not ordinarily concerned with regulating conduct in other jurisdictions (People v. Buffum, supra, 40 Cal.2d 709, 716, 256 P.2d 317), and since section 182[ ] suggests no answer to the many difficult questions that
Penal Code section 182, as relevant herein, provides: "(a) If two or more persons conspire: [p] (1) To commit ... [p] ... any ... felony, they shall be punish[ed] in the same manner and to the same extent as is provided for the punishment of that felony."
Thus, as we are bound by the foregoing precedents (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937), we turn to whether the evidence in this case is sufficient to support an "attempt" to commit the crime of possession for sale of cocaine and transportation of cocaine in California. "An attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission." (Pen.Code, § 21a.) "To amount to an attempt, the act or acts must go further than mere preparation; they must be such as would ordinarily result in the crime except for the interruption. [Citations.] [p] The crime of attempt is distinct from the crime of solicitation [citation]. To make a solicitation into an attempt, a direct unequivocal act towards committing the crime must be undertaken. [Citations.]" (1 Witkin & Epstein, Cal.Criminal Law. (2d ed.1988) § 143, p. 161, original emphasis.)
There is no evidence here revealing that appellant made any attempt to possess for sale cocaine in California or to transport cocaine into or out of California. It follows that, based upon the interpretation of sections 27 and 778a given by Buffum and Burt which we are bound to follow, the judgment of conspiracy in count 1 cannot be sustained.
The Substantive Crimes
Appellant also was convicted of the target offenses of possession for sale and transportation of the cocaine seized at the New Orleans airport based upon the theory that she aided and abetted Flores in committing those crimes. Penal Code section 31 provides: "All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and 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, ... are principals in any crime so committed." We find no discussion in Buffum and Burt regarding the applicability of section 31 to those who, from California, aid and abet crimes committed in another state. Thus, in this regard, the slate is clean and we need not assume that the Supreme Court would limit the statute only to crimes occurring in this state.
To be convicted under an aiding and abetting theory, "an aider and abettor [must] act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense. [Citations.]" (People v. Beeman (1984) 35 Cal.3d 547, 560, 199 Cal.Rptr. 60, 674 P.2d 1318, emphasis omitted.) The jury was instructed pursuant to CALJIC Instruction Nos. 3.00 and 3.01 regarding these principles of aiding and abetting.
Appellant's conduct in California, plus the well-established doctrine of constructive possession, supports our view that California properly subjected appellant to its criminal jurisdiction. A defendant is "deemed to have the same possession as any person actually possessing the narcotic pursuant to his direction or permission where he [or she] retains the right to exercise dominion or control over the property. [Citations.] [p] When the doctrine is applicable, the accused is deemed to have present constructive possession of the property even though he [or she] does not have actual possession." (People v. Showers (1968) 68 Cal.2d 639, 644, 68 Cal.Rptr. 459, 440 P.2d 939, original emphasis; People v. Austin (1994) 23 Cal.App.4th 1596, 1608-1609, 28 Cal.Rptr.2d 885.) Here, the evidence sufficiently established appellant's exercise of control over the narcotics. Clearly, due process is not violated by imposing California's criminal penalties upon appellant.
II.
Alternatively, appellant argues that, if we do not reverse the entire judgment based upon the Buffum principle, we should at least strike the 10-year enhanced penalty relating Prior to trial, the court struck this enhancement as it related to the conspiracy charge in count 1 because the People failed to offer sufficient evidence at the preliminary hearing that appellant was substantially involved in the planning, direction, execution, or financing of the conspiracy. Appellant asserts that to the extent the People are required to prove the substantial involvement of conspirators but are not required to prove the substantial involvement of those, such as appellant, who are charged as conspirators and also charged with the target offenses committed by other conspirators, application of the statute violates federal and state principles of equal protection. We disagree.
First, as is clear from our discussion in part I, there was substantial evidence that appellant was involved in the planning, direction, execution, and financing of the conspiracy. Furthermore, as appellant recognizes, " 'The California Constitution [art. I, § 7], like the equal protection clause of the Fourteenth Amendment, requires that classifications of those to whom the state accords benefits and those on whom it imposes burdens must be reasonably related to a legitimate public purpose.' [Citation.]" (Sykes v. Superior Court (1973) 9 Cal.3d 83, 92, 106 Cal.Rptr. 786, 507 P.2d 90.)
We find such a legitimate purpose in the difference between being found guilty as a conspirator and being found guilty as a principal in the substantive crime. " 'The essence of the crime of conspiracy is the "evil" or "corrupt" agreement to do an unlawful act. It is the evil intent that makes a combination criminally indictable.' [Citation.]" (People v. Aday (1964) 226 Cal.App.2d 520, 533, 38 Cal.Rptr. 199.) A criminal conspiracy is established by showing that there was an agreement between two or more persons to commit a crime and that an overt act was done in California to effect the object of the agreement. (Pen.Code, §§ 182, 184; People v. Buffum, supra, 40 Cal.2d at p. 715, 256 P.2d 317.) "It is not necessary that the overt act be criminal" and it is not necessary that the defendant personally commit the overt act. (People v. Aday, supra, 226 Cal.App.2d at pp. 533-534, 38 Cal.Rptr. 199.) "Proof that two or more individuals conspired to commit a crime and engaged in overt acts leading to its commission will sustain a conviction of conspiracy even though they failed to accomplish the object of their intrigue. [Citation.]" (People v. Klinkenberg (1949) 90 Cal.App.2d 608, 635, 204 P.2d 47.)
This being so, it is not a denial of equal protection to impose a requirement of additional proof that the conspirator was "substantially involved in the planning, direction, execution, or financing of the underlying offense" (Health & Safety Code, § 11370.4, subd. (a)) before an additional penalty may be imposed. The difference in the elements necessary to achieve a conviction for the crime of conspiracy and the substantive crime supports the legislative distinction.
DISPOSITION
The judgment of conviction in count 1 is reversed. The judgment in counts 2 and 3 is affirmed.
EPSTEIN, Acting P.J., and HASTINGS, J., concur.