Filed 1/8/15 P. v. Garcia CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,                                                          B251496

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA398780)
         v.

SATURENO DEHORTA GARCIA,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County, C. H.
Rehm and Laura F. Priver, Judges. Affirmed.
         Steven A. Brody, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Steven D. Matthews,
Supervising Deputy Attorney General, J. Michael Lehmann and Timothy Weiner, Deputy
Attorneys General, for Plaintiff and Respondent.
                                    INTRODUCTION
       A jury convicted defendant and appellant Satureno Dehorta Garcia of conspiracy
to sell a controlled substance (methamphetamine) (Pen. Code, § 182, subd. (a)(1)),
possession for sale of a controlled substance (methamphetamine) (Health & Saf. Code, §
11378), and offer to sell a controlled substance (methamphetamine) (Health & Saf. Code,
§ 11379, subd. (a)).1 The jury found true the special allegation as to each offense that the
substance containing methamphetamine exceeded 1 kilogram (weight enhancement).
(Health & Saf. Code, § 11370.4, subd. (b)(1).) The trial court struck the weight
enhancement under Penal Code section 1385 as to all counts. It sentenced defendant to a
term of four years in county jail for his offer to sell a controlled substance conviction and
imposed and stayed, pursuant to Penal Code section 654, county jail terms of three and
two years, respectively, for his conspiracy to sell a controlled substance and possession
for sale of a controlled substance convictions. On appeal, defendant requests that we
review the sealed transcript of the trial court’s in camera hearing on his discovery motion
for certain information concerning an undercover informant to determine if the trial court
abused its discretion in denying the motion. He also contends that the trial court erred in
failing to instruct the jury on the weight enhancement as to the conspiracy to sell a
controlled substance charge. We affirm.


                                     BACKGROUND
       Los Angeles County Sheriff’s Department Deputy Anthony Ponce was assigned to
a drug task force run by the Drug Enforcement Agency. Deputy Ponce used Carlos
Astrudillo, a private investigator, in investigations. In May 2012, Astrudillo contacted
Deputy Ponce and said that he had information about a group of narcotics traffickers.
Astrudillo had been introduced by phone to “Tomas.” Astrudillo and Tomas spoke about
buying cocaine. Astrudillo never bought cocaine from Tomas, but Tomas introduced
Astrudillo to Medina, whom Tomas said could help Astrudillo. Astrudillo called Medina

1      Defendant’s codefendants, Manuela Medina and Lucy Leyva, are not parties to
this appeal.

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and said that he was “in the business” and that he needed some crystal methamphetamine
and cocaine. Medina said that she could help Astrudillo.
       One or two weeks later, Medina called Astrudillo and said she had a family
member who could provide him with “merchandise.” Medina introduced Astrudillo to
Leyva. Astrudillo told Leyva that he was looking for 10 kilograms of crystal
methamphetamine and 12 kilograms of cocaine. Leyva said that the price of a kilogram
of crystal methamphetamine was $23,000 and the price of a kilogram of cocaine was
$20,000. Astrudillo and Leyva arranged for the sale to take place in Phoenix, Arizona.
Astrudillo informed Deputy Ponce about his progress in the investigation.
       On June 4, 2012, Astrudillo drove from Los Angeles to Phoenix. The next day, he
called Leyva. She said that she was only able to locate 10 kilograms of crystal
methamphetamine. Later that day, Astrudillo met with Medina and Leyva at a restaurant
in Glendale, Arizona, where they discussed the mechanics of their transaction. Within a
half an hour, a man joined Medina, Leyva, and Astrudillo at the restaurant.2 Astrudillo
told the man that he had the money to purchase 10 kilograms of methamphetamine. The
man asked Medina and Leyva if they knew Astrudillo and whether they had “done any
deal before.” Leyva responded that they had not “done anything but we know him
through the phone.” The man said, “Well, if something happen, you know, you and your
family going to respond.”
       Leyva made some phone calls. She told Astrudillo that the “merchandise was
going to show up.” Astrudillo waited in the restaurant for two and a half hours. Because
“they” had not brought the methamphetamine to the restaurant by that time, Astrudillo
left and drove back to Los Angeles.
       Leyva called Astrudillo as he was driving back to Los Angeles. She apologized
that the “merchandise” was not in Phoenix, and said that it was in Los Angeles. She
offered to go to Los Angeles and deliver the “merchandise” to Astrudillo if he still
wanted to complete the transaction. Astrudillo was angry that he had been made to wait

2      Defendant was not the man who joined Medina, Leyva, and Astrudillo at the
restaurant.

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and said, “Well let me think about it.” On June 11, 2012, Leyva called Astrudillo and
said that she was planning to drive to Los Angeles to complete the transaction for the 10
kilograms of methamphetamine. Astrudillo told her to call him when she arrived.
      Between 11:00 a.m. and noon on June 13, 2012, Astrudillo met with Deputy
Ponce and other officers in a park on Peck Road near the 60 freeway. Deputy Ponce
instructed Astrudillo that the transaction would take place at a nearby McDonald’s.
Astrudillo followed Deputy Ponce to the McDonald’s. Astrudillo called Leyva to let her
know his location. He asked her if she was ready. Leyva told Astrudillo that she was
waiting for the “merchandise.” She said that the persons who owned the
methamphetamine wanted the initial transaction to be for two kilograms of
methamphetamine. She said that if that transaction went well, “then we do the rest.” She
said she would call Astrudillo when she received the “merchandise.”
      Astrudillo waited at the McDonald’s for about four hours. He spoke with Leyva
who said that she and Medina had gotten lost and were at a McDonald’s on Valley
Boulevard near the 10 freeway. Astrudillo told Leyva to wait for him and that he would
drive there. Astrudillo followed Deputy Ponce to the McDonald’s on Valley Boulevard.
When he arrived at the McDonald’s, Astrudillo parked and went inside. Medina was
sitting with defendant. Astrudillo was not surprised to see defendant because Leyva had
told him that the man who owned the “dope” would be there. Leyva was not present.
      Astrudillo greeted Medina and introduced himself to defendant. He asked about
Leyva, and walked outside to call her when told she was at another location. Astrudillo
called Leyva and said that he saw Medina with a man. Leyva said, “Yeah, that’s the
guy.” Astrudillo asked Leyva, “Where are you?” She responded that she was at another
location waiting for him. Shortly thereafter, Leyva arrived at the McDonald’s on Valley
Boulevard driving a Toyota Camry. Astrudillo commented that Leyva was driving a nice
car. She responded, “Yeah this is the—this is the guy car.” Defendant was the registered
owner of the Camry.
      Leyva asked Astrudillo if he was ready and if he had the money. Astrudillo
responded that he did not have the money with him and he wanted to see the

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“merchandise” first. Leyva said, “Okay, come to my car. Go to the passenger side and
try to not let this guy see you that you’re going into his car.” Astrudillo entered the
Camry and found a small box on the floor. He opened the box and saw four bags of
“merchandise.”
       Astrudillo told Leyva that he was going to call his “guy” to bring the money. He
then called Deputy Ponce and said, “It’s good. It’s good. Bring the money. You know
where I am.” Deputy Ponce and other officers arrived and arrested defendant, Medina,
and Leyva. Deputy Ponce searched the Camry. Among other things, he found a wadded
up piece of paper in the driver’s side door that contained about 7.82 grams of
methamphetamine.
       The contents of the four bags Astrudillo found in the box in the Camry were tested
and determined to be 1,785 grams (or 1.785 kilograms) of a solid substance containing
methamphetamine. Deputy Ponce opined that the methamphetamine recovered from the
Camry was possessed for sale.


                                      DISCUSSION
I.     The Trial Court’s in Camera Hearing on Defendant’s Discovery Motion
       Concerning An Undercover Informant’s Work in Other Cases
       Defendant requests that we review the sealed transcript of the trial court’s in
camera hearing on that part of his discovery motion that concerned the identity of the
defendants in other cases on which an undercover informant worked to determine if the
trial court abused its discretion in denying the motion. We have reviewed the reporter’s
transcript of the trial court’s in camera hearing and have determined that the trial court
did not abuse its discretion in denying the part of defendant’s discovery motion at issue.


       A.     Background
       Defendant moved for pre-trial discovery of a copy of the undercover informant’s
criminal history; the undercover informant’s full name and date of birth; and all
information regarding cases that the undercover informant worked on with law

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enforcement during the previous four years including the amount the undercover
informant was paid, the identity of the defendant, the extent of the undercover
informant’s work, the result of the case, whether the undercover informant testified, and
any corresponding police reports. The prosecutor objected only to discovery concerning
the identity of the “suspects” in other cases on which the undercover informant worked.
The trial court granted defendant’s discovery request except as objected to by the
prosecutor and set the matter for an in camera hearing concerning the contested part of
defendant’s discovery motion.
       The trial court conducted an in camera hearing, and denied the contested part of
defendant’s discovery motion. After the hearing, the trial court ruled, “As to the time that
this particular informant has worked with the Los Angeles County Sheriff’s Department,
it does not appear to the court that disclosure[3] of the individual identity of these
previous suspects is going to compromise any of the defendant’s constitutional rights or
deprive him of a fair trial.” It further ruled, “The Court after hearing the evidence
provided in camera determined that providing this information can result in substantial
danger to the informant, and the informant’s family, and perhaps compromise the
integrity of the assisting investigation.”


       B.      Standard of Review and Application of Relevant Principles
       We review a trial court’s discovery orders for abuse of discretion. (People v.
Sarpas (2014) 225 Cal.App.4th 1539, 1552.) Likewise, we review a trial court’s ruling
on an Evidence Code section 1040 claim of privilege to refuse to disclose official
information for an abuse of discretion. (People v. Suff (2014) 58 Cal.4th 1013, 1059.)
       “‘A public entity has a privilege to refuse to disclose official information’ (Evid.
Code, § 1040, subd. (b)) if ‘[d]isclosure of the information is against the public interest
because there is a necessity for preserving the confidentiality of the information that
outweighs the necessity for disclosure in the interest of justice . . . .’ (Id., subd. (b) (2).)”


3      The trial court appears to have intended to say “nondisclosure.”

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(People v. Suff, supra, 58 Cal.4th at p. 1059.) When a governmental agency makes a
claim of privilege for nondisclosure of official information, the trial court should hold an
in camera hearing to review the claim. (People v. Superior Court (2000) 80 Cal.App.4th
1305, 1316.) It is the governmental agency’s burden to demonstrate that the privilege
applies. (Ibid.)
       We have reviewed the reporter’s transcript of the trial court’s in camera hearing.
The trial court did not abuse its discretion in denying the part of defendant’s discovery
motion that concerned the identity of the defendants in other cases on which the
undercover informant worked.


II.    The Trial Court’s Failure to Instruct on the Weight Enhancement as to the
       Conspiracy to Sell a Controlled Substance Charge
       Defendant contends that the trial court erred in failing to instruct the jury on the
Health and Safety Code section 11370.4, subdivision (b)(1)4 weight enhancement as to
the conspiracy to sell a controlled substance charge. Due to its failure, defendant argues,
the trial court failed to instruct the jury that it had to find that he was “substantially
involved in the planning, direction, execution, or financing of the underlying offense” to
find true the weight enhancement as to the conspiracy charge.5 Defendant argues that the


4     Health and Safety Code section 11370.4, subdivision (b)(1) provides: “Any
person convicted of a violation of, or of conspiracy to violate, Section 11378, 11378.5,
11379, or 11379.5 with respect to a substance containing methamphetamine,
amphetamine, phencyclidine (PCP) and its analogs shall receive an additional term as
follows:
      “(1) Where the substance exceeds one kilogram by weight, or 30 liters by liquid
volume, the person shall receive an additional term of three years.
      “[¶]-[¶]
      “The conspiracy enhancements provided for in this subdivision 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.”

5       We note that the trial court did not instruct the jury on the weight enhancement at
all as to any of the other charged offenses, an omission defendant does not raise on

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trial court’s error was not harmless beyond a reasonable doubt and that we therefore must
strike the jury’s true finding on the weight enhancement as to his conspiracy conviction.
We asked the parties to submit supplemental briefs addressing whether defendant’s
contention on appeal is moot because the trial court struck the weight enhancement as to
all of defendant’s convictions, including defendant’s conspiracy conviction.
       “A case becomes moot when a court ruling can have no practical impact or cannot
provide the parties with effective relief.” (Simi Corp. v. Garamendi (2003) 109
Cal.App.4th 1496, 1503; Ebensteiner Co., Inc. v. Chadmar Group (2006) 143
Cal.App.4th 1174, 1178 [“Generally, courts decide only ‘actual controversies’ which will
result in a judgment that offers relief to the parties. [Citations.]”].) Thus, as a rule,
appellate courts will not render opinions on moot questions.” (Ebensteiner Co., Inc. v.
Chadmar Group, supra, 143 Cal.App.4th at pp. 1178-1179.)
       Defendant seeks to have the jury’s true finding on the Health and Safety Code
section 11370.4, subdivision (b)(1) weight enhancement stricken as to his conspiracy to
sell a controlled substance conviction. Because the trial court struck the weight
enhancement as to all of defendant’s convictions, including defendant’s conspiracy
conviction, at defendant’s sentencing hearing, defendant’s appeal with respect to this
issue is moot. (Simi Corp. v. Garamendi, supra, 109 Cal.App.4th at p. 1503; Ebensteiner
Co., Inc. v. Chadmar Group, supra, 143 Cal.App.4th at p. 1178.)




appeal, apparently due to the substantial evidence supporting the jury’s finding that the
methamphetamine involved in the case exceeded 1 kilogram.

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                                 DISPOSITION
     The judgment is affirmed.
     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.




                                          MOSK, J.


We concur:



             TURNER, P. J.



             KRIEGLER, J.




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