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Venezuela : Docket No. G014338. February 27, 1995. Opinion...

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Venezuela :

Docket No. G014338.

February 27, 1995. [Opinion certified for partial publication.]

Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts II and IV.

Appeal from Superior Court of Orange County, No. C-94527, Jean M. Rheinheimer, Judge.

COUNSEL

Leslie C. Greenbaum, under appointment by the Court of Appeal, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Robert M. Foster and Lilia E. Garcia, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

SILLS, P.J.

Reynaldo Peneda appeals his conviction for conspiracy to transport cocaine and the transportation and possession of that cocaine for sale. The jury found the total amount of cocaine exceeded 100 pounds in weight which enhanced Peneda's sentence by 15 years.

He was then sentenced to a total of 21 years in prison.

Peneda faced a count of conspiracy to distribute cocaine, a count of transportation or sale of cocaine, and two counts of possession of cocaine.

To this was added a single enhancement of the 100-pound weight (Health Saf. Code, § 11370.4, subdivision (a)(4)) which, by its language, was to be applied to all 4 counts.

Furthermore, there was a single enhancement for having either 28.5 grams by weight of pure cocaine or at least 57 grams of a substance containing cocaine (Pen. Code, § 1203.073, subd. (b)(1)) which was to be applied only to the two counts of cocaine possession.

At sentence, the court imposed the upper term for the transportation count, enhanced by the 15 years for the 100-pound weight and added 1/3 the midterm for 1 count of possession of cocaine.

All other counts and enhancements were stayed pursuant to Penal Code section 654.

Peneda contends his motion to suppress evidence was erroneously denied after the trial court refused him a separate Franks hearing.

He also argues the evidence is insufficient to support his conviction as an aider and abettor to the transportation of cocaine and to support the special allegation of the cocaine's weight.

He bases this latter argument on the expert's opinion that 100 pounds of cocaine was actually contained within the white powder seized by the police; the expert arrived at this conclusion through a probability calculation based on the samples taken from the whole amount.

Peneda objected to this evidence, asserting the prosecution failed to comply with the Kelly requirements for its admission.

Finally, he complains that certain language in the instruction defining reasonable doubt was unconstitutional, a contention which we reject summarily ( Victor v. Nebraska (1994) 511 U.S. ___ [127 L.Ed.2d 583, 114 S.Ct. 1239]; People v. Freeman (1994) 8 Cal.4th 450 [ 34 Cal.Rptr.2d 558, 882 P.2d 249]), and affirm the judgment.

See Franks v. Delaware (1978) 438 U.S. 154 [57 L.Ed.2d 667, 98 S.Ct. 2674].

See People v. Kelly (1976) 17 Cal.3d 24 [ 130 Cal.Rptr.

144, 549 P.2d 1240] and People v. Leahy (1994) 8 Cal.4th 587 [ 34 Cal.Rptr.2d 663, 882 P.2d 321].

I FACTS
A task force of law enforcement officers from various agencies in Orange County convened with the purpose of detecting major narcotics traffickers and breaking their organizations.

In March 1992 one officer from this group -- Armando Perez -- began an undercover investigation of Peneda after observing him meet with Alfredo Berrio, a suspect already known to them as part of a major ring of drug traffickers.

For the next two months, officers watched and recorded Peneda's activities, noting each of the residences he frequented, each of the vehicles he drove and each of the m

Posted November 29 2023 at 8:17 PM

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