COUNT 3 MUST BE DISMISSED BECAUSE THE EVIDENCE SHOWS ONLY A MEXICAN MAFIA SOLICITATION UNDER PENAL CODE § 653f(d), NOT A CONSPIRACY.
Penal Code § 653f(d) states, in relevant part:
- Every person who, with the intent that the crime be committed, solicits another to commit an offense specified in Section 11352, 11379, 11379.5, 11379.6, or 11391 of the Health and Safety Code shall be punished by imprisonment in a county jail not exceeding six months. Every person, who, having been convicted of soliciting another to commit an offense specified in this subdivision, is subsequently convicted of the proscribed solicitation, shall be punished by imprisonment in a county jail not exceeding one year, or pursuant to subdivision (h) of Section 1170.
- This subdivision does not apply where the term of imprisonment imposed under other provisions of law would result in a longer term of imprisonment.
The evidence supporting Count 3, an alleged conspiracy to transport, sell, or distribute a controlled substance, supports probable cause for a solicitation under § 653f, not a conspiracy under § 182. It is “firmly established” that a defendant cannot be prosecuted under a general statue—such as the conspiracy statute—where the conduct alleged is prohibited by a special, more specific statute. (People v. Mayers (1980) 110 Cal.App.3d 809, 813.) This rule, sometimes called the Swann-Gilbert rule or the “special over the general” rule is “necessary to prevent a general statute from swallowing up the exceptions contained in specific enactments.” (Id. at p. 814; People v. Gilbert (1969) 1 Cal.3d 475; People v. Swann (1963) 213 Cal.App.2d 447.)
The companion cases of People v. York (1998) 60 Cal.App.4th 1499, and People v. Sanchez (1998) 60 Cal.App.4th 1490, illustrate application of the Swann-Gilbert rule. Both York and Sanchez arose out of “reverse sting” operations in which police officers posed as street-level cocaine dealers in areas known for drug activity. (York, supra, 60 Cal.App.4th at p. 1502; Sanchez, supra, 60 Cal.App.4th at p. 1492.) Both defendants approached officers participating in the sting and said “rock,” which the officers interpreted as requests to purchase rock cocaine. (York, supra, 60 Cal.App.4th at p. 1502; Sanchez, supra, 60 Cal.App.4th at p. 1493.) In York, the defendant also said, “30,” indicating a quantity; the officer told him to wait, and the defendant was subsequently arrested. (York, supra, 60 Cal.App.4th at p. 1502.) In Sanchez, the defendant actively bartered with the officer, offering to trade a car stereo and a vest for $30 worth of cocaine. (Sanchez, supra, 60 Cal.App.4th at p. 1493.) Both defendants were charged with attempted possession of cocaine in violation of Penal Code § 664 and Health & Safety Code § 11350, and in both cases, the trial court dismissed the charges, reasoning that under the Swann-Gilbert rule, a more specific solicitation statute, § 653f(d), preempted prosecution of the alleged conduct as an attempted drug possession. (York, supra, 60 Cal.App.4th at pp. 1501-1502; Sanchez, supra, 60 Cal.App.4th at p. 1492.)
The Court of Appeals for the Fourth District upheld dismissal of York’s charges. It reasoned that the crime of attempt requires the alleged acts “go further than mere preparation; they must be such as would ordinarily result in the crime except for the interruption.” (York, supra, 60 Cal.App.4th at pp. 1505-1506 [internal quotation marks omitted; emphasis in original].) “Merely soliciting another is not the ‘act or acts’ as would ordinarily result in the crime . . . .” (Id. at p. 1506.) For conduct to go beyond solicitation, the prospective narcotics buyer must “at least” display or proffer money. (Ibid. [emphasis in original].) The defendant did nothing more than ask for the drugs; he committed the “exact conduct” prohibited by Penal Code § 653f. (Id. at p. 1503.) As such, the Swann-Gilbert rule barred prosecution under the more general attempt statute. (See id. at p. 1504.)
The same court, however, reversed the dismissal of Sanchez’s charges. It distinguished York on the facts, reasoning that the Sanchez defendant, unlike the York defendant, committed “all the acts which a buyer can do short of actually taking possession of the drugs . . . .” (Sanchez, supra, 60 Cal.App.4th at p. 1497.) By negotiating a deal and actually tendering the stereo and vest, the defendant went beyond the specific conduct prohibited by the solicitation statute. (Ibid.) His conduct could be punished as an attempted possession under the general attempt statute, § 664. (Ibid.)
In this case, York controls. A conspiracy, like an attempt, requires proof of an act in furtherance. Conduct does not go beyond solicitation—either as an attempt or as a conspiracy—without more than mere preparation or agreement. And with respect to Count 3 here, the evidence shows nothing more. Just like the York defendant, Defendant requested a quantity of drugs; just like the undercover officer in York, Arreola agreed. And unlike in Sanchez, there is no evidence Defendant negotiated a deal or tendered anything in exchange. In short, like in York, Count 3 alleges the “exact conduct” prohibited by Penal Code § 653f; therefore, the Swann-Gilbert rule bars prosecution as a conspiracy. Count 3 must be dismissed on that basis.
However, even if that argument fails in light of the newer amendments, there is still the lack of proof inherent in the conspiracy count, as discussed supra. Indeed, Overt acts #1 through #4 detail a conversation wherein Defendant asks for “3.” There is no indication that either ever secured “3” nor did they meet or tender anything in exhcange, per the evidence adduced. The Deputy testified that “3” was code for an amount of drugs, but had no other specifics he could offer.
 This is true notwithstanding the newly-enacted subdivision (2) of 647f(d). That provision only applies where a prosecution under some “other provision of law” would result in harsher punishment. The thrust of Defendant’s argument here is that there is no “other provision of law” under which he may be punished. There simply does not exist a conspiracy on these facts.