People v. Garcia

California Court of Appeal Feb 7, 1992 No. Docket Nos. F014522, F014755Published

Before: Stone (w.A.)

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Holding. The court held that a sentence enhancement for conspiracy under Health and Safety Code section 11370.4 is invalid if the jury fails to make an express finding that the defendant was substantially involved in the planning, direction, execution, or financing of the offense.

Issues

Whether a conspiracy sentence enhancement under Health and Safety Code section 11370.4 requires a jury finding of substantial involvement.
Whether the jury instructions and verdict forms were insufficient regarding the required findings for the enhancement.

Disposition. Modified and affirmed

Quotations verified verbatim against the opinion

“The conspiracy enhancements provided for in this paragraph shall not be imposed unless the trier of fact finds that the defendant conspirator was substantially involved in the planning, direction, execution, or financing of the underlying offense.”

“The Attorney General concedes the trier of fact made no express finding that Garcia was substantially involved in one of the ways described within the section.”

“The judgment of appellant Garcia is modified to strike the enhancement in count 1 for a violation of Health and Safety Code section 11370.4.”

Opinion

STONE (W. A.), Acting P. J.

The Case — Garcia

An information charged defendant Porfirio Martinez Garcia with four counts: count 1 — Penal Code section 182 (conspiracy to sell or transport a controlled substance); count 2 — Health and Safety Code section 11352 (transportation of a controlled substance); count 3 — Health and Safety Code section 11352 (sale of a controlled substance); and count 4 — Health and Safety Code section 11351 (possession of a controlled substance for purpose of sale). Each count also alleged the controlled substance weighed more than 3 pounds, in violation of Health and Safety Code section 11370.4, subdivision (a)(1), and amounted to more than 28.5 grams of cocaine hydrochloride, in violation of Penal Code section 1203.073, subdivision (b)(1).

[584]

A jury found Garcia guilty of counts 1 and 4, not guilty of counts 2 and 3, and the weight enhancement allegations to be true. The court sentenced him to the midterm of four years on count 1 (Pen. Code, § 182, conspiracy), a three-year consecutive enhancement based upon the weight of the contraband (Health & Saf. Code, § 11370.4, subd. (a)(1)), and to a concurrent three-year sentence for count 4 (Health & Saf. Code, § 11351, possession for sale) and the second weight enhancement (Health & Saf. Code, § 11370.4, subd. (a)(1)).

The Case — Morales - II

III

Health and Safety Code Section 11370.4, Subdivision (a)(1) and CALJIC No. 17.22.1.

Garcia argues the court improperly enhanced his conspiracy sentence pursuant to Health and Safety Code section 11370.4, subdivision (a)(1). He contends both the jury instructions and the verdict form were insufficient with regard to the specific findings required by the enhancement section.

The court instructed the jury with a modified version of CALJIC No. 17.22.1:

“It is alleged in counts one, two, three and four that at the time of the commission of the crime of which a defendant is accused, he possessed a substance containing cocaine hydrochloride which exceeded three pounds by weight.

People v. Garcia

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III

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