Brief Bank # B-675 (Re: F 6.10d [Multiple Conspiracy: Jury Determination].)
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
PEOPLE OF THE STATE )
OF CALIFORNIA, )
Plaintiff and ) County of
Respondent, ) Shasta
) No. 0000000
)
vs. )
)
JOHN DOE, )
Defendant and )
Appellant. )
______________________________)
APPELLANT’S OPENING BRIEF
APPEAL FROM THE JUDGMENT OF THE
SUPERIOR COURT OF THE STATE OF
CALIFORNIA, ENTERED AUGUST 25, 1993.
HONORABLE STEVEN E. JAHR, JUDGE.
DALE DOMBKOWSKI
State Bar no. 99613
3145 Geary Blvd., No. 604
San Francisco, CA 94118
(415) 759-8555
Attorney for Appellant
By appointment of the
Court of Appeal under the
Central California
Appellate Program’s
independent case system.
ARGUMENT
I.
ONE OF APPELLANT’S CONSPIRACY CONVICTIONS SHOULD BE REVERSED
BECAUSE THE TWO CHARGED CONSPIRACIES WERE ONLY ONE CONSPIRACY
TO ACCOMPLISH THE ONE ULTIMATE PURPOSE OF SELLING
METHMPHETAMINE FOR FINANCIAL GAIN.
In People v. Lopez (Fifth District, January 20, 1994) 94 Daily Journal D.A.R. 768, the defendant was charged and convicted by jury of having committed three conspiracies: conspiracy to manufacture methamphetamine, conspiracy to illegally dispose of hazardous substances in violation of Health and Safety Code sections 11374.5(a) and 25189.5(b), and conspiracy to possess methamphetamine for sale. The defendant was sentenced to serve the upper term of seven years for the conspiracy to manufacture and to concurrent terms for the other two counts. (Id., at p. 768.)
The reviewing court applied a test described in People v. Skelton (1980) 109 Cal.App.3d 691, 718 (disapproved on other grounds in People v. Figueroa (1986) 41 Cal.3d 714, 731-732), and reversed two of the conspiracies.
In Skelton, the defendant had been convicted of one conspiracy, and sought to have it reversed on the grounds that the evidence suggested two conspiracies and that the jury should have been instructed accordingly. Skelton rejected the defendant’s contention, and stated the following test.
“‘The test is whether there was one overall agreement among the various parties to perform various functions in order to carry out the objectives of the conspiracy. If so, there is but a single conspiracy.’ (People v. Skelton (1980) 109 Cal.App.3d 691, 718.)” (People v. Lopez, supra, 94 Daily Journal D.A.R. 768, at p. 771.)
Lopez applied the test and held: “[A]ll three of the charged crimes were for one ultimate purpose, sale of methamphetamine for financial gain. All of the acts in each of the three target crimes were incidental to this objective, and many acts were a direct part of more than one of the crimes. Under these circumstances, but one count of conspiracy can be sustained.” (Ibid.)
An application of the Skelton test here demonstrates that, as in Lopez, only one conspiracy conviction was proper because both of the charged conspiracies were for the one ultimate purpose of selling methamphetamine for financial gain, and also because the overt and other acts were a direct part of more than one of the charged conspiracies.
Not only is it is inescapable on the face of the record that he re, as in Lopez, both alleged conspiracies — to manufacture and to sell methamphetamine — were for the one ultimate purpose of selling methamphetamine for financial gain, but the information documents it conclusively. By alleging that the two conspiracies transpired at the same time and by alleging the same five overt acts for both conspiracies, the information established that the conspiracies were the same. (See CT 86-87.)
Moreover, not only were all the overt acts the same in each conspiracy, but overt act number one alleged in both conspiracies, alleging that a conspirator sold methamphetamine, could only be the sale alleged as the count two conspiracy to sell. And, overt act number two alleged in both conspiracies, a conspirator transported chemicals, had to have been part of the count one conspiracy to manufacture.
In addition, during appellant’s purchase of the ephedrine necessary to manufacture methamphetamine, appellant talked continuously about the ultimate goal of selling methamphetamine. (See Court Exhibit number 2, the transcript of the tape recorded purchase of February 8, 1989.)
Thus, the two charged conspiracies are absolutely intertwined as one conspiracy with the ultimate purpose of selling methamphetamine for financial gain and with alleged overt and other acts that were a direct part of more than one of the charged conspiracies. As such, one of the conspiracy convictions should be reversed. People v. Lopez, supra, 94 Daily Journal D.A.R. 768, 771.)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
PEOPLE OF THE STATE
OF CALIFORNIA,
Plaintiff and County of
Respondent, Shasta
No. 9010094
vs.
JOHN DOE,
Defendant and
Appellant.
_______________________________/
APPELLANT’S REPLY BRIEF
APPEAL FROM THE JUDGMENT OF THE SUPERIOR COURT
OF THE STATE OF CALIFORNIA, ENTERED AUGUST 25, 1993.
HONORABLE STEVEN E. JAHR, JUDGE.
DALE DOMBKOWSKI
State Bar no. 99613
3145 Geary Blvd., No. 604
San Francisco, CA 94118
(415) 759-8555
Attorney for Appellant
By appointment of the
Court of Appeal under the
Central California
Appellate Program’s
independent case system.
ARGUMENT
I.
ONE OF APPELLANT’S CONSPIRACY CONVICTIONS SHOULD BE REVERSED
BECAUSE THE TWO CHARGED CONSPIRACIES WERE ONLY ONE CONSPIRACY
TO ACCOMPLISH THE ONE ULTIMATE PURPOSE OF SELLING
METHAMPHETAMINE FOR FINANCIAL GAIN.
Appellant contends that as in People v. Lopez (1994) ___ Cal.App.4th ___, 26 Cal.Rptr. 741, since all of the charged conspiracies were for one ultimate purpose, the sale of methamphetamine for financial gain, and since all of the acts in each of the target crimes were incidental to this objective, and many acts were a direct part of more than one of the crimes, but one count of conspiracy can be sustained.
In Lopez the defendant was convicted of being involved in three conspiracies — to manufacture methamphetamine, to illegally dispose of hazardous substances in violation of Health and Safety Code sections 11374.5(a) and 25189.5(b), and to possess methamphetamine for sale. Lopez reversed two of the three conspiracy convictions because all three of the charged crimes were for one ultimate purpose — sale of methamphetamine for financial gain. All of the acts in each of the three target crimes were incidental to this objective, and many acts were a direct part of more than one of the crimes.
Here, not only were both of the charged conspiracies to manufacture and to sell methamphetamine aimed to accomplish the one ultimate purpose of selling methamphetamine for financial gain, but the overt and other acts were a direct part of more than one of the charged conspiracies.
Thus, as in Lopez, all but one conspiracy conviction should be reversed.
In arguing that both of appellant’s conspiracy convictions should be affirmed, respondent admits that while “appellant was clearly engaged in a conspiracy to manufacture methamphetamine and no doubt the ultimate goal was to sell that methamphetamine for financial gain” (RB [Footnote 1]/ 7), respondent attempts to distinguish this case from Lopez because (1) law enforcement officers changed the method of their investigation from selling ephedrine to purchasing methamphetamine, and (2) “there is nothing in the record of the two-year long investigation to show that any of the participants in the manufacturing scheme ever attempted to sell methamphetamine prior to March of 1989.” (RB 7-8.)
Neither of these asserted distinctions have any merit.
Respondent’s first attempt to distinguish Lopez illogically transposes the goals of law enforcement with those of the conspirators. Whether or not appellant should be held responsible for more than one conspiracy depends on appellant’s ultimate purpose to sell methamphetamine for financial gain, not on whether the law enforcement officers’ goal was to sell ephedrine or to purchase methamphetamine. Even if such a transposition were logical, appellant still would be responsible for only one conspiracy because the law enforcement officers’ ultimate purpose was not to sell ephedrine or to purchase methamphetamine, but to seize the methamphetamine laboratory. (See RT 102.)
Respondent’s second distinction, the allegation that the record contains nothing to show that any of the participants in the manufacturing scheme ever attempted to sell methamphetamine prior to March of 1989 totally lacks merit on three accounts.
First, it is well established that a conspiracy to sell methamphetamine is not founded on an attempt to sell methamphetamine. It is based on an agreement to sell methamphetamine. (See People v. Sconce (1991) 228 Cal.App.3d 693, 700.) Thus, any failure of the conspirators to attempt to sell methamphetamine prior to March of 1989 is entirely irrelevant to whether they had conspired to sell methamphetamine.
Second, the idea that the conspirators ever sought to manufacture large quantities of methamphetamine without the ultimate purpose of selling it for financial gain is completely frivolous and should be rejected outright.
Third, contrary to respondent’s assertion that there was no evidence that the conspirators ever had attempted to sell methamphetamine before March of 1989, as noted at page 16 of appellant’s opening brief, during appellant’s February 8, 1989, purchase of the ephedrine necessary to manufacture methamphetamine, appellant talked continuously about the ultimate goal of selling methamphetamine. (See Court Exhibit number 2, the transcript of the tape recorded purchase of February 8, 1989.) In addition, as detailed at pages 10 and 11 of appellant’s opening brief, the prosecution introduced evidence of $107,215 cash and a variety of very expensive property seized from the methamphetamine chemist Mr. O which the prosecution seized as fruits of methamphetamine sales income. Finally, agent Huffaker testified specifically: “Mr. C was basically a high level — what I consider a high level dealer. He deals in pound or quarter pound to multi-pound quantities. He obtains his directly from the cook, in this case Mr. O.” “Initially, for two years, Mr. C got his methamphetamine from Mr. O. But since about November of 188 through the arrest, Mr. Y was also conducting — was able to conduct hand-to-hand transactions with Mr. O.” (RT 287-288.)
Thus, respondent’s claim that “there is nothing in the record of the two-year long investigation to show that any of the participants in the manufacturing scheme ever attempted to, sell methamphetamine prior to March of 1989” (RB 7-8) completely belies the record.
To summarize:
By alleging that the two conspiracies transpired at the same time and by alleging the same five overt acts for both conspiracies, the information established that the conspiracies were the same. (See CT 86-87.)
Moreover, not only were all the overt acts the same in each conspiracy, but overt act number one alleged in both conspiracies, alleging that a conspirator sold methamphetamine, could only be the sale alleged as the count two conspiracy to sell. And, overt act number two alleged in both conspiracies, a conspirator transported chemicals, had to have been part of the count one conspiracy to manufacture.
In addition, during appellant’s purchase of the ephedrine necessary to manufacture methamphetamine, appellant talked continuously about the ultimate goal of selling methamphetamine. (See Court Exhibit number 2, the transcript of the tape recorded purchase of February 8, 1989.)
In addition, Agent Huffaker testified that the briefcase containing the methamphetamine sold pursuant to the conspiracy appeared to be the same one. used by appellant in the February 8, 1989, ephedrine purchase. (RT 270-271.)
Thus, the two charged conspiracies are absolutely intertwined as one conspiracy with the ultimate purpose of selling methamphetamine for financial gain and with alleged overt and other acts that were a direct part of more than one of the charged conspiracies. As such, one of the conspiracy convictions should be reversed. (People v. Lopez, supra, Cal.App.4th 26 Cal.Rptr. 741; People v. Skelton (1980) 109 Cal.App.3d 691.)
People v. McLead (1990) 225 Cal.App.3d 906, 920, quoted at pages 6 to 7 of respondent’s brief, describes the same test with language relevant to the facts in that case. McLead agreed that a defendant who had committed multiple criminal acts against multiple victims with the single unlawful purpose of eliminating a competitor for financial gain was guilty of only one conspiracy, but held that in McLead “the evidence does not support it” because the defendants agreed to kill three different people and each separate agreement had its own distinct illegal end. (Id., at p. 921.)
Applying the language of McLead to this case yields the same conclusion. As stated in McLead: “‘Where two or more persons agree to commit a number of criminal acts, the test of whether a single conspiracy has been formed is whether the acts “were tied together as stages in the formation of a larger all-inclusive combination, all directed to achieving a single unlawful end or result.” [Citations.],’. [Citation.) Relevant factors to consider in determining this issue include whether the crimes involved the same motives, were to occur in the same time and place and by the same means. [Citation.) However, these factors are not determinative, and we may consider other facts. (Citation.311 (Ibid.)
Here, the manufacture of methamphetamine was tied to the sale as a necessary stage in the formation of the larger all inclusive ultimate single purpose of selling the methamphetamine for financial gain. Since Lopez considers perfectly analogous relevant facts, as explained above and in appellant’s opening brief, as in Lopez, only one conviction should be sustained.
FOOTNOTES:
Footnote 1: RB refers to respondent’s brief.
