Trial Court Errs by Imposing 20 Kilogram Enhancement

There is a fundamental concept in our law that “sandbagging is frowned up,” as one court stated in the context of a civil discovery dispute, but which applies more generally under our concept of due process and fair notice.  This concept even applies to prosecutors and judges involved in criminal matters.  It is a concept consistent with the prosecutor’s duty to disclose all evidence to the defense, a duty that even continues after the conviction is reached.  We want to resolve matters on their merits, not based on games of “hiding the ball.”

On October 13, 2018, Ms. Alicia Haro crossed into the United States from Mexico at the Calexico port of entry while driving a blue Honda CR-V with her daughter.  After entering the U.S., she stopped at a Circle K gas station and another stop at an Arco gas station.  She then drove to the Ontario Mills Mall near the Rancho Cucamonga courthouse.

After she parked, she put the car key in the cupholder and left the car unlocked.  While Haro was in the mall with her daughter, Jonathan Bejarano went to the mall, parked near the blue Honda CR-V, then drove it off to another location, where he transferred several bags from the CR-V into a grey Toyota Camry.

A police officer who was monitoring the Camry then decided to pull it over.  Bejarano was now no longer driving, but Jesus Bayardo was.  Mr. Bayardo led the officer on a high-speed chase, only to ultimately be pulled over.  Investigators discovered forty-three pounds (19.5 kilograms) of methamphetamine inside the Camry.

On November 3, 2018, Haro again drove a blue CR-V and entered the United States from Mexico at the Calexico port of entry.  She had three passengers with her – her daughter and two other relatives.  She then drove to a gas station in Yuma, Arizona and then up to Phoenix, where she parked the car in the Arizona Mills Mall.  She then made a phone call and went into the mall for about five hours.  Jonathan Bejarano again arrived shortly thereafter and Haro handed him something.

Bejarano then drove away the CR-V to a nearby house and unloaded several bags from the CR-V.  He then returned the CR-V to the same parking spot at the parking lot at the mall.  Haro then exited the mall a few hours later and got into the CR-V and drove away.

Officers later executed a search warrant at the house Bejarano had driven the CR-V to and found 44.2 pounds (20 kilograms) of methamphetamine there.

On December 7, 2018, Haro again entered the United States from Mexico at the Calexico port of entry, this time driving a white CR-V, again with her daughter, but also her nephew with her.  Haro then made stops again at an Arco gas station, an AM/PM gas station and a Circle K gas station before stopping at a mall in the Moreno Valley (Murietta).

She again left the car keys in the cupholder and went into the mall with her daughter and her niece.  She left the car unlocked.  Jonathan Bejarano again went to the mall, parked near the CR-V and then drove it off.  Officers followed him.  Bejarano drove the CR-V to a nearby ranch, where he and another man took bags out of the CR-V and loaded them into a pickup truck.  Bejarano then returned the CR-V to the same parking spot at the mall and left the keys in the cup holder.

Officers later searched the pickup truck and found 38.5 pounds (17.5 kilograms) of methamphetamine.

Haro was eventually arrested and convicted of multiple drug related offenses in Imperial County Superior Court.  When interviewed about the “mule” jobs she was observed completing, she explained that she was paid between $1,000 and $1,500 for each trip. 

She was found guilty of transporting more than ten kilograms, but less than twenty kilograms, of methamphetamine to a noncontiguous county (Health & Safety Code § 11379(b) as to the transporting and § 11370.4(b)(3) as to the weight).  The judge sentenced her to 21 years in state prison.  It merits mention that evidence of the November 3, 2018, entry into the United States was introduced at trial, but Haro was never charged with any crime related to that event.  The 21-year sentenced included a single 20-kilogram weight enhancement of 15 years under Health and Safety Code § 11370.4(a)(4) that had not been alleged in the complaint, but which the evidence certainly supported.

Haro appealed her sentence on multiple grounds to the Court of Appeal for the Fourth Appellate District, arguing the court erred by adding the two ten-year enhancements to make a twenty-year enhancement when this enhancement was not alleged in the complaint.  The Fourth Appellate District agreed with Haro that such a sentence enhancement was improperly imposed and vacated the sentence and remanded the case for further proceedings.

The citation for the Fourth Appellate District Court ruling discussed above is People v. Alicia Haro (4th App. Dist., 2021) 68 Cal. App. 5th 776, 283 Cal. Rptr. 3d 673.

For more information about aggregating charges or amounts and drug offenses, please click on the following articles: