Marin County Super. Ct. No. SC161567
The opinion of the court was delivered by: Marchiano, P.J.
P. v. Sincler-Varrellesa CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendants Marcos Ramon Sincler-Varrellesa, Osvaldo Martinez-Ayala, and Luis Alberto Yupit appeal convictions relating to controlled substances in violation of the Health and Safety Code.*fn1 Sincler-Varrrellesa claims the trial court erred in denying his motion to suppress evidence found during a warrantless search to which his wife, Maria Espinoza, had consented. Martinez-Ayala challenges the court's failure to give an instruction concerning entrapment, and the verdict finding him guilty of offering to sell cocaine. Yupit contends the court erred in denying his motion to quash and traverse the search warrant used to conduct a search of his property and person, and in failing to determine he was eligible for mandatory probation under Proposition 36. Both Sincler-Varrellesa and Martinez-Ayala urge that the court miscalculated their presentence credits. As discussed below, we conclude the court erred in calculating presentence credits for Sincler-Varrellesa and Martinez-Ayala and remand on that issue. We conclude there was otherwise no prejudicial error and affirm in all others respects.
The Marin County Major Crimes Task Force (Task Force), a part of the county's Sheriff's Department, performs narcotics investigations throughout the county. It conducts "controlled buy[s]" in which an "undercover officer purchases drugs from a drug dealer," and then attempts to determine the source of the dealer's drugs in order to identify the county's "mid to upper level" drug dealers.
A Task Force team, led by Detective Brennan Collins, began an investigation in October 2008 that focused primarily on Martinez-Ayala. Deputy Edgar Villalobos worked as the undercover officer for the team. On October 7, Villalobos telephoned Martinez-Ayala and arranged to purchase an ounce of cocaine from the latter. The next day Villalobos went to Martinez-Ayala's residence in Novato. Martinez-Ayala came outside and approached Villalobos' vehicle. After informing Villalobos that "his source was arriving," a black Jeep Cherokee drove up, whereupon Villalobos gave prerecorded cash to Martinez-Ayala, who went to the Jeep and, after a few minutes, returned and gave Villalobos the cocaine.
Deputy Villalobos telephoned to arrange the purchase of another ounce of cocaine from Martinez-Ayala on October 14, 2008, which again was to take place outside the latter's residence. Martinez-Ayala told him to come to his residence "so we can make the deal happen." When Villalobos arrived, Martinez-Ayala again went out to his vehicle, where the two engaged in "small talk" for a few minutes. During that time, Martinez-Ayala placed some telephone calls, but ultimately did not furnish any cocaine that day, and the two arranged to conduct a deal the next day.
On October 15, 2008, Deputy Villalobos telephoned Martinez-Ayala to rearrange his second purchase of an ounce of cocaine at the same location. Martinez-Ayala again came out to Villalobos' vehicle. About 30 minutes later, Villalobos saw a blue Saturn drive into the apartment complex driveway. Martinez-Ayala took cash from Villalobos as he had before and walked into the area where the blue Saturn had gone. Villalobos saw Martinez-Ayala exit that area a few minutes later--the two made contact inside Villalobos' vehicle and Martinez-Ayala handed the cocaine over. As Villalobos was leaving he saw the blue Saturn driving away as well, and called in the license plate number and a description. Subsequently, Task Force members identified Yupit as the driver of the blue Saturn on October 15.
Deputy Villalobos set up a third transaction with Martinez-Ayala on October 21, 2008, to purchase two ounces of cocaine. Again, Villalobos parked outside Martinez-Ayala's residence, made contact with him, and engaged in conversation with him. Villalobos then observed a black Jetta pull up. Martinez-Ayala took Villalobos' money to the Jetta, whereupon Villalobos observed the driver of the Jetta remove a plastic bag from the trunk and give it to Martinez-Ayala, who then handed the bag to Villalobos, who confirmed it contained cocaine. Villalobos later identified the driver of the black Jetta as Sincler-Varrellesa.
Deputy Villalobos arranged a fourth transaction to purchase three ounces of cocaine from Martinez-Ayala, which occurred on October 24, 2008. The Task Force team intended to make arrests at the conclusion of this final "buy-bust" transaction. Villalobos again observed Sincler-Varrellesa arrive in the black Jetta, and the transaction proceeded much as it had on October 21. Other members of the Task Force then moved in and arrested Martinez-Ayala and Sincler-Varrellesa. Maria Espinoza, who was with Sincler-Varrellesa in the black Jetta, was detained but later released. Yupit was arrested at his residence later the same day.
Detective Collins, the lead investigator, had obtained a search warrant the day prior to the "buy-bust" on October 24, 2008, which his team executed in conjunction with the arrest of defendants. The warrant authorized the Task Force to search the defendants' persons as well as specified residences and vehicles.
An information filed February 18, 2009, set out 11 counts against the three defendants. It charged Sincler-Varrellesa with three felony violations of section 11351 (possession for sale of cocaine) on October 21 and October 24, 2008, and two felony violations of section 11352, subdivision (a) (sale of cocaine), on October 21 and 24. It alleged Martinez-Ayala had committed four felony violations of section 11351 (possession for sale of cocaine) on October 8, 15, 21, and 24, four felony violations of section 11352, subdivision (a) (sale of cocaine), on those same dates, and a further felony violation of section 11352, subdivision (a) (offer to sell cocaine), on October 14. Yupit was charged with one felony violation of section 11351 (possession for sale of cocaine) on October 15, one felony violation of section 11352, subdivision (a) (sale of cocaine) on October 15, and a further felony violation of section 11351 (possession for sale of cocaine) on October 24. At their arraignment on the information, on February 25, all defendants entered not guilty pleas.
On June 10, 2009, the ninth day of trial, the jury returned with verdicts finding Sincler-Varrellesa and Martinez-Ayala guilty of the charges against each. As to Yupit, the jury found him not guilty of the alleged violation of section 11351 (possession for sale of cocaine) on October 15, 2008, not guilty of the violation of section 11352, subdivision (a) (sale of cocaine) on October 15, and not guilty of the second alleged violation of section 11351 (possession for sale of cocaine) on October 24. As to the last charged offense, however, the jury found Yupit guilty of the lesser included violation of section 11350, subdivision (a) (possession of cocaine).
At the sentencing hearing, on July 8, 2009, the trail court suspended the imposition of sentence on all three defendants. It granted formal probation for both Martinez-Ayala and Sincler-Varrellesa for a period of five years, including a total term of 12 months incarceration in the county jail for each. As to Yupit, the court granted formal probation for a period of three years, including a jail term of 30 days.
Each defendant has appealed. (§ 1237, subd. (a).) On Yupit's application, the trial court stayed imposition of the condition that he spend 30 days' jail time pending his appeal.