Opinion
NOT TO BE PUBLISHED
APPEAL from judgments of the Superior Court of San Diego County, Nos. SCD160797 SCD179259 SCD181651 Bernard E. Revak, Judge.
HALLER, J.
Arthur Torres, Julio Contreras, and Francisco Gongora were convicted of numerous offenses arising from their involvement in a methamphetamine distribution operation run by a gang known as the "Mexican Mafia." The prosecution's evidence showed that Torres was a crew leader for the Mexican Mafia operating a methamphetamine distribution operation in the community, and that Contreras and Gongora were part of his crew.
On appeal, defendants raise numerous challenges to some of their convictions. The convictions relevant to the issues on appeal are as follows. All three defendants were convicted of conspiracy to distribute methamphetamine (count 1). Contreras was convicted of possession of methamphetamine for sale (count 18). Torres and Contreras were convicted of conspiracy to extort Cesar Sanchez (count 6). Torres was convicted of kidnapping for robbery, assault, extortion, and robbery of Sanchez (counts 2 through 5). All three defendants were convicted of conspiracy to rob and residential robbery of Robert Bush (counts 8 and 9). Torres and Gongora were convicted of conspiracy to kidnap Richard Jauregui (count 15). Torres was convicted of conspiracy to furnish a firearm to a felon (count 14). The jury also found numerous alleged gang enhancements to be true.
Defendants were convicted of conspiring to violate section Health and Safety Code section 11379, subdivision (a), which applies when a person "transports, imports into this state, sells, furnishes, administers, or gives away" methamphetamine. Consistent with the terminology used at trial, we refer to the proscribed conduct as distribution of methamphetamine.
In section I of this opinion we evaluate defendants' challenge to the jury panel selection. In sections II through VI, we evaluate defendants' contentions as they relate to the specific offenses of which the defendants were convicted. In sections VII through IX, we address issues pertaining to gang enhancement findings, closing arguments, and sentencing. We address the specific issues in the following order.
I. Defendants assert the prosecutor's peremptory challenges to jurors were motivated by group bias.
II. Defendants raise several contentions related to the convictions of conspiracy to distribute methamphetamine and possession of methamphetamine for sale. (A) Contreras challenges the sufficiency of the evidence to support his conviction of conspiracy to distribute methamphetamine and possession of methamphetamine for sale. (B) Contreras argues the trial court should have given a unanimity instruction for the conspiracy to distribute methamphetamine count as it related to him. (C) Gongora and Contreras assert their rights under Aranda-Bruton were violated based on the admission of Torres's statement that Contreras and Gongora were working with him. (D) Contreras asserts his conviction of possession of methamphetamine for sale should have been stayed under Penal Code section 654.
People v. Aranda (1965) 63 Cal.2d 518; Bruton v. United States (1968) 391 U.S. 123.
Subsequent statutory references are to the Penal Code unless otherwise specified.
III. Contreras and Torres raise challenges related to the counts involving victim Sanchez (counts 2 through 6). (A) Contreras challenges the sufficiency of the evidence to support his participation in the conspiracy to extort Sanchez. (B) Torres contends the trial court erred because its cautionary instructions on accomplice testimony failed to fully identify the accomplices who participated in the offenses related to Sanchez.
IV. Gongora challenges the sufficiency of the evidence to support his participation in the conspiracy to rob and robbery of Bush.
V. Gongora and Torres raise challenges related to the conspiracy to kidnap Jauregui. (A) Gongora asserts the evidence does not show he conspired with Torres to kidnap Jauregui. (B) Torres asserts the trial court erred because its cautionary instructions on accomplice testimony did not identify Gongora as an accomplice for the offense against Jauregui.
VI. Torres challenges the sufficiency of the evidence to support his conviction of conspiring to furnish a firearm to an ex-felon.
VII. Gongora challenges the sufficiency of the evidence to support the gang enhancements findings as to him.
VIII. Defendants assert the prosecutor committed misconduct during closing arguments.
IX. Contreras raises several additional challenges to his sentence. He asserts the trial court erred in (A) imposing consecutive sentences in violation of his rights under the Apprendi rule (Apprendi v. New Jersey (2000) 530 U.S. 466); (B) imposing a one-year prior prison term enhancement on both his indeterminate and determinate terms; and (C) staying the sentences for the gang enhancements on counts 1 and 6 rather than striking these enhancements.
With one exception, we find no reversible error. The one item of reversible error is that the trial court should have stricken Contreras's gang enhancements on counts 1 and 6 rather than staying the punishment for these counts. We correct this error by modifying the judgment as to Contreras, and as so modified affirm his judgment. We affirm the judgments as to Gongora and Torres in their entirety.
FACTUAL AND PROCEDURAL BACKGROUND
In 2003, the authorities placed a wiretap on Torres's phone to obtain evidence about a methamphetamine distribution operation run by the Mexican Mafia. The Mexican Mafia is a Hispanic gang operating in California's prisons. The gang's methamphetamine distribution operation extends to the outside community. In the outside community, the gang designates crew leaders who manage the methamphetamine distribution operation. The crew leaders and crew members may belong to different gangs, and are not necessarily persons who have been accepted into the Mexican Mafia. The crew leaders are also charged with the responsibility of collecting debts owed to drug dealers who are under the Mexican Mafia umbrella and of "taxing" methamphetamine dealers who are allowed to operate in areas controlled by the Mexican Mafia. The taxation requires the dealers to provide the crew leader with money, which is then transmitted to Mexican Mafia members in prison and their family members.
Torres and Contreras are members of the Old Town National City gang, and Gongora is a member of the Del Sol gang. The prosecution presented evidence that Torres was a crew leader for the Mexican Mafia, running a methamphetamine distribution operation from June through December 2003. Torres worked under Mexican Mafia members Jose Marquez and Robert Marin, who he referred to as "the Señors." Contreras and Gongora were identified as crew members working for Torres.
Victims Sanchez and Bush were also methamphetamine dealers. The extortion-related conduct committed by Torres and Contreras against Sanchez occurred because Sanchez owed money to another methamphetamine dealer who Torres was protecting. The robbery-related offenses committed by defendants against victim Bush occurred as part of taxation activity directed at Bush. The conspiracy to kidnap Jauregui committed by Torres and Gongora arose because Torres believed Jauregui had arranged for Torres to be killed.
Much of the evidence against defendants was derived from the wiretaps on Torres's phone, as well as from the testimony of several methamphetamine dealers who agreed to testify on behalf of the prosecution. We will present more facts concerning the offenses in our discussion of the various issues raised by the defendants.
DISCUSSION
I. Batson-Wheeler Objections to Prosecutor's Peremptory Strikes of Jurors
Defendants contend the trial court erred in denying their Batson-Wheeler objections claiming discrimination in the prosecutor's peremptory strikes of five minority jurors.
Batson v. Kentucky (1986) 476 U.S. 79; People v. Wheeler (1978) 22 Cal.3d 258.
Background
During what turned out to be the initial round of peremptory challenges, the prosecutor excused six jurors, including an African-American woman (juror number 16) and a Hispanic man (juror number 43). When the prosecutor excused the Hispanic man, defense counsel made a Batson-Wheeler objection, contending the prosecutor had excused the only African-American woman and the only Hispanic man in the jury box. Defense counsel asserted the prosecutor was deliberately attempting to eliminate minorities, and the excusal of Hispanics was of particular concern because the defendants were Hispanic. In response, the trial court referred to a lengthy questionnaire the Hispanic man (and all prospective jurors) had completed and noted that he had stated on his questionnaire that his brother had been charged with various crimes and he believed the prosecution had treated his brother improperly. Based on this, the trial court denied the Batson-Wheeler motion.
For convenience, we shall refer to defense counsel without specifying which of the three defense counsel was addressing the court.
The peremptory challenges continued, and the prosecutor excused one additional juror. The parties were then satisfied with the jury and the jurors were sworn. Thereafter, juror number 38 (the only African-American male then on the jury) advised the court that he did not think he could stay focused on the case because of its magnitude and he was generally not comfortable with the case. The trial court excused juror number 38 and reopened the peremptory challenges.
The prosecutor excused 11 more jurors, including an African-American/Filipino woman (juror number 80) and an African-American male (juror number 85). Defense counsel made a second Batson-Wheeler objection. Defense counsel noted the prosecutor had excused two more African-American jurors, and argued this demonstrated a pattern of discrimination and an attempt to exclude minorities. Defense counsel argued that although juror number 85's questionnaire stated that he believed there was racial profiling, this was not a sufficient basis to excuse him.
The prosecutor argued there was no prima facie case of discrimination against African-Americans, stating his notes indicated juror number 80 was Filipino, and the prosecution had earlier allowed an African-American male to remain on the jury (juror number 38, subsequently excused by the court at the juror's request). Further, the prosecutor stated there was no showing of discrimination against minorities in general, noting there were three Hispanic males currently on the jury.
The trial court denied the second Batson-Wheeler challenge, stating the prosecutor had passed on African-American juror number 38, and in the court's recollection juror number 80 had not indicated she was African-American on her questionnaire, and thus "this is really the first one."
Peremptory challenges continued, and the prosecutor excused seven more jurors, including an African-American woman (juror number 113). Defense counsel objected on Batson-Wheeler grounds for a third time. Defense counsel asserted the prosecution was excusing all African-Americans, there were very few minorities on the jury, and there was no valid reason to excuse juror number 113. The prosecutor responded there was no prima facie case of discrimination, noting there was an African-American male on the jury, the prosecutor had earlier passed on African-American juror number 38, and there were minorities on the jury. At this time, six of the 12 jurors in the jury box were minorities, including one African-American male, one Native American male, three Hispanic males, and one Filipino/Irish male. The trial court denied the third Batson-Wheeler motion, stating there were minority (including African-American) jurors on the panel.
Thereafter, there was one additional peremptory challenge exercised by the defense (replacing a Caucasian juror with a Filipino juror), and the 12 jurors were sworn. The final jury consisted of seven minority jurors (an African-American male, a Native American male, three Hispanic males, a Filipino/Irish male, and a Filipino male). The five remaining jurors were Caucasian, consisting of one male and four females.
Analysis
On appeal, defendants contend the trial court's rulings on the Batson-Wheeler motions were procedurally flawed and erroneous on their merits. They assert the record shows the prosecutor's excusal of four African-American jurors, including three female African-Americans, was based on group bias.
Peremptory challenges to strike prospective jurors need not be supported by cause; the challenges may be based on even trivial reasons or hunches, including body language and the manner of answering questions. (People v. Reynoso (2003) 31 Cal.4th 903, 917; People v. Cornwell (2005) 37 Cal.4th 50, 70; Snyder v. Louisiana (2008) ___U.S.___ [128 S.Ct. 1203, 1208](Snyder) [juror's demeanor can support peremptory challenge].) However, under both the federal and state Constitutions, peremptory challenges may not be based on group bias. (Batson v. Kentucky, supra, 476 U.S. at p. 88; People v. Wheeler, supra, 22 Cal.3d at pp. 276-277; People v. Bell (2007) 40 Cal.4th 582, 596.)
The trial court's evaluation of a defendant's Batson-Wheeler motion occurs in three stages. First, the defendant must make a prima facie showing that the totality of relevant facts gives rise to an inference of discriminatory purpose. Second, if there is a prima facie showing, the burden shifts to the prosecutor to offer nondiscriminatory justifications for the strikes. Third, if nondiscriminatory explanations are presented, the trial court must then decide whether the defendant has proved purposeful discrimination. (People v. Bell, supra, 40 Cal.4th at p. 596.)
To make a prima facie showing, the defendant need only produce evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred. (People v. Cornwell, supra, 37 Cal.4th at p. 67.) The defendant may cite evidence showing the prosecutor has struck most or all of the members of the identified group; the prosecutor has used a disproportionate number of peremptory challenges against the group; the excused jurors share only their membership in the group in common but are otherwise heterogeneous; the prosecutor engaged the excused jurors in merely cursory, or no, voir dire; the defendant is a member of the excluded group; and the victim is a member of the same group as the majority of the remaining jurors. (People v. Bell, supra, 40 Cal.4th at p. 597.) In deciding whether the defendant has presented a prima facie case, the trial court should consider all relevant circumstances. (Ibid.) On appeal, we review the trial court's ruling on this issue for substantial evidence. (People v. Huggins (2006) 38 Cal.4th 175, 228, fn. 13.)
Here, although the trial court did not expressly rule that the defense had not made a prima facie showing of discrimination, it is apparent from the record this was the basis for the court's denial of the Batson-Wheeler motions. After the first objection, the trial court did not ask the prosecutor to state his reasons for the excusals. Rather, the court simply denied the motion based on its evaluation of the excused Hispanic juror's questionnaire. After the second and third objections, the trial court asked the prosecutor for a response and the prosecutor argued no prima facie case had been made. Again, the trial court did not ask the prosecutor to state his reasons, but merely denied the motions after the prosecutor argued there was no prima facie case. Accordingly, we consider whether the record supports the trial court's implied findings that there was no prima facie showing of discriminatory purpose. (See People v. Bonilla (2007) 41 Cal.4th 313, 345; People v. Howard (2008) 42 Cal.4th 1016, 1018.)
At the time of the first motion, the prosecutor had excused six jurors, including an African-American female (juror no. 16) and a Hispanic male (juror no. 43). Defense counsel asserted the prosecutor was eliminating minorities, and that the elimination of Hispanics was of particular concern. Based on a review of the Hispanic juror's questionnaire, the trial court ascertained that this juror had expressed a belief that the prosecution had treated his brother unfairly. This was an obvious race-neutral justification for the prosecutor's exclusion of this juror. The trial court reasonably denied the first Batson-Wheeler motion because the Hispanic juror's bias against the prosecution belied any inference of discriminatory motive.
Contrary to defendants' assertion on appeal, the trial court's reliance on juror number 43's questionnaire was not improper speculation into the prosecutor's reasons for the excusal. Once a prima facie showing is made by the defendant, the trial court should not speculate about the prosecutor's reasons but should require the prosecutor to provide an explanation. (People v. Cornwell, supra, 37 Cal.4th at pp. 73-74.) However, the trial court must first make the threshold inquiry as to whether the record can support an inference of discriminatory purpose. (Ibid.) If the information available to the court shows any prosecutor would excuse the juror for nondiscriminatory reasons, this defeats a prima facie showing. (See id. at pp. 69-70, 73-74.) Because juror number 43's clear statement of bias against the prosecution in the questionnaire would cause any prosecutor to excuse him, the trial court properly relied on this information to deny the motion without further inquiry as to the prosecutor's actual reasons.
Defendants assert the trial court's ruling was erroneous because the court failed to evaluate their Batson-Wheeler challenge as to juror number 16. When defendants made the first Batson-Wheeler challenge, juror number 16 was the only African-American that had been excused by the prosecutor. The premise of the motion was that the prosecutor was discriminating against minorities (i.e., an African-American and a Hispanic). In effect, the evidence of discriminatory purpose as to juror number 16 was based on the combined effect of excusing both juror numbers 16 and 43. Once the court ascertained an obvious nondiscriminatory purpose for excusing juror number 43, there was no need for the court to further address the challenge to juror number 16. Absent some other indication of discriminatory motive, the removal of one member of an identified group from the jury is normally insufficient to support an inference of discriminatory bias. (See People v. Bell, supra, 40 Cal.4th at p. 598 and fn. 3 [the exclusion of one or two jurors of a particular group can rarely suggest discriminatory purpose].)
The second Batson-Wheeler challenge was made after the prosecutor excused an African-American/Filipino woman (juror no. 80) and an African-American man (juror no. 85). Defense counsel noted the excusal of two more African-Americans, and argued the prosecutor was attempting to exclude minorities. By this time, there were three Hispanic jurors on the jury. Further, the prosecutor had earlier passed on an African-American juror, and that juror had been removed for cause at the juror's, not the prosecutor's, request. The trial court reasonably concluded that there was no prima facie showing of discriminatory purpose given that the prosecutor had accepted three Hispanic jurors and had earlier accepted an African-American juror. Notably, the second Batson-Wheeler objection was directed at the exclusion of two African-Americans, whereas the defendants are Hispanic. Although a defendant need not be a member of the excluded group to raise a discrimination claim, the absence of this factor is relevant to the determination of whether the defendant has made a prima facie case. (People v. Bell, supra, 40 Cal.4th at pp. 597, 599-600.)
We note, as emphasized by defendants on appeal, the trial court did err when it stated its recollection that the African-American/Filipino woman (juror no. 80) was not African-American. This juror's questionnaire identifies herself as African-American/Filipino. However, this factual error does not require reversal. Exercising our independent review—and for the reasons just stated—we likewise conclude the record does not show a prima facie case of discrimination arising from the dismissal of juror numbers 80 and 85. (See People v. Bell, supra, 40 Cal.4th at p. 597 [appellate court may independently review whether record supports inference of discrimination].)
The trial court's statement after the excusal of African-American juror numbers 80 and 85 that "this is really the first one" suggests that it may also have forgotten about the earlier excusal of African-American juror number 16. Assuming this is so, and exercising our independent judgment, we find no inference of discriminatory motive at this point arising simply from the excusal of three African-American jurors. As stated, the prosecutor had accepted an African-American juror and three Hispanic jurors, and the defendants are Hispanic, not African-American.
Defense counsel made the third Batson-Wheeler motion based on the exclusion of another African-American woman (juror no. 113), arguing discrimination against African-Americans and minorities. Defendants argue the excusal of a total of four African-American jurors shows a discriminatory purpose against this racial group. At the time the fourth African-American juror was excused, the jurors accepted by the prosecution and seated in the jury box included an African-American male, three Hispanic males, a Native American male, and a Filipino/Irish male. Thus, there were three seated jurors who were the same ethnicity as the defendants; there was a seated African-American juror; and the prosecutor had earlier accepted another African-American juror. Given the minority jurors accepted by the prosecutor (including African-Americans and jurors of the same ethnicity as the defendants), the trial court could reasonably infer the prosecutor did not have a discriminatory purpose to eliminate African-Americans or any other minority group.
To support their claim of discrimination, defendants note that the prosecutor excused all three African-American females that were called to the jury box. When making their Batson-Wheeler objections before the trial court, defendants asserted the prosecutor was attempting to exclude minorities (in particular Hispanics and African-Americans). Defendants did not contend the prosecutor was singling out African-American females; thus this claim is forfeited on appeal. (People v. Cornwell, supra, 37 Cal.4th at pp. 70-71, fn. 4.) In any event, exercising our independent review, the fact that there were no African-American females left on the jury does not alone support an inference of discriminatory purpose in this case. An African-American male and four Caucasian women were on the jury. The defendants are not African-American females. There is nothing about the facts of the case which would suggest that African-American females might favor the defense. Under these circumstances, the record does not suggest a discriminatory purpose based merely on the prosecutor's excusal of the three African-American woman. (See People v. Bonilla, supra, 41 Cal.4th at pp. 344-345.)
Defendants assert that an inference of discriminatory purpose against African-Americans was shown because during voir dire questioning, the prosecutor did not engage in meaningful voir dire of two of the excluded African-American females, i.e., he did not ask juror number 16 any questions and he asked juror number 80 only one short question. First, the weight of this factor is of less significance in a case where, as here, the jurors filled out questionnaires which gave the prosecutor information about their background and attitudes. (See People v. Bell, supra, 40 Cal.4th at pp. 598-599, fn. 5.) Second, as recognized by defendants, the prosecutor questioned the third excused African-American female juror (juror no. 113) at length, and also engaged in lengthy questioning of the excused African-American male juror (juror no. 85). The record does not show that the manner in which the prosecutor handled voir dire questioning of African-American jurors supported an inference of discriminatory purpose against African-Americans.
We note also that although the prosecutor did not ask juror number 16 any questions, the defense did question her, thereby giving the prosecutor an opportunity to observe her demeanor.
Defendants also contend the trial court erred in its rulings because they were not required to show a pattern of discrimination; rather, the dismissal of even one juror for a discriminatory reason is unconstitutional. (People v. Bell, supra, 40 Cal.3d at p. 598, fn. 3.) However, there must still be some threshold evidence in the record supporting an inference that the prosecutor had a discriminatory motive when excusing one or more jurors. As set forth above, the trial court reasonably concluded there was no such evidence here. In a similar vein, defendants argue that reversal is required because the prosecutor failed to point to anything in the record showing a legitimate reason for excusing the four African-American jurors. The contention is unavailing because absent a prima facie showing of discriminatory motive, the prosecutor had no obligation to explain why he exercised a peremptory challenge to remove a particular juror.
Finally, defendants request, for the first time on appeal, that we engage in a comparative analysis between the excluded jurors and the retained jurors. Comparative analysis is used to ascertain whether a prosecutor's proffered reason for striking a juror is pretextual; for example, by showing that a proffered reason applies equally to a retained juror who is not a member of the identified group. (See People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1017 (Lewis); Snyder, supra, 128 S.Ct. at pp. 1211-1212.) As illustrated in Lewis, " 'If a prosecutor's proffered reason for striking a [B]lack panelist applies just as well to an otherwise-similar non[-B]lack who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson's third step.' " (Lewis, supra, at p. 1017; see also People v. Cornwell, supra, 37 Cal.4th at p. 71.)
However, although a comparative analysis for the first time on appeal may be appropriate in some cases (see Lewis, supra, 39 Cal.4th at p. 1017; Snyder, supra, 128 S.Ct. at p. 1211), it is not appropriate in a case involving only first-stage Batson-Wheeler analysis where the prosecutor was not required to, and did not, present reasons for the strikes. (People v. Bell, supra, 40 Cal.4th at p. 601.) As explained in Bell, "In the circumstances of this first-stage Wheeler-Batson case, comparative juror analysis would make little sense. In determining whether defendant has made a prima facie case, the trial court did not ask the prosecutor to give reasons for his challenges, the prosecutor did not volunteer any, and the court did not hypothesize any. Nor, obviously, did the trial court compare the challenged and accepted jurors to determine the plausibility of any asserted or hypothesized reasons. Where, as here, no reasons for the prosecutor's challenges were accepted or posited by either the trial court or this court, there is no fit subject for comparison. Comparative juror analysis would be formless and unbounded." (People v. Bell, supra, 40 Cal.4th at p. 601.)
Here, based on the trial court's rulings of no prima facie case, the prosecutor was not required to, and did not, state his reasons for excusing the jurors. Accordingly, a comparative analysis to determine whether the prosecutor's reasons were pretextual is not warranted.
We note that the only instance where the trial court in effect identified a reason for the prosecutor's striking of a juror was when it ascertained the clear statement of bias against the prosecution in Hispanic juror number 43's questionnaire. Even assuming comparative analysis might be appropriate as to this juror, defendants do not contend, and our review of the record does not reveal, that the prosecutor retained Caucasian jurors who evinced such a clear bias. Moreover, on appeal defendants confine their challenge to the excusal of African-Americans, not Hispanics. We note additionally that in People v. Howard, supra, 42 Cal.4th at page 1020, the court held that even when the prosecution offers reasons for its peremptory challenges, a comparative analysis is not required when the trial court ultimately rules no prima facie discrimination was shown. (See also People v. Bonilla, supra, 41 Cal.4th at p. 350.)
Defendants have not cited any evidence that defeats the trial court's rulings that there was no showing of a prima facie case of discrimination. Accordingly, the court did not err in denying the Batson-Wheeler motions.
II. Conspiracy to Distribute Methamphetamine and Possession of Methamphetamine for Sale
A. Substantial Evidence of Contreras's Culpability for Conspiracy to Distribute Methamphetamine and Possession of Methamphetamine for Sale
Contreras asserts there is insufficient evidence to support the jury verdicts that he participated in the conspiracy to distribute methamphetamine and possessed methamphetamine for sale.
In evaluating a challenge to the sufficiency of the evidence, we review the whole record in the light most favorable to the judgment to determine whether there is substantial evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Thomas (1992) 2 Cal.4th 489, 514.) If the circumstances reasonably justify the trier of fact's findings, reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. (Ibid.)
Factual Background
Between June and November 2003, the police wiretap recorded a voluminous number of conversations on Torres's phone. Of particular relevance to the methamphetamine distribution operation, there were frequent conversations between Torres and two brothers, Richard Ortega (Richard) and Hector Ortega (Hector), in which they specifically discussed methamphetamine distribution. Contreras was ultimately tied to these conversations.
During Torres's numerous conversations with Richard, the two men discussed various transactions involving their methamphetamine dealing. Hector was mentioned or was involved in some of these conversations. For example, during a conversation on November 7, Richard told Torres that Hector was on his way over to deliver money to Torres, apparently to be used by Torres to pay for a delivery of methamphetamine. During a conversation on November 16, Hector told Torres that he needed an "ounce" (referring to methamphetamine) right away and that he needed to deliver it to someone's house.
On November 21, 2003, Torres received a phone call from an individual named Jorge Munoz. Munoz asked Torres who was working with him. In response, Torres identified Hector, Richard, Contreras, Gongora, and Jaime Lopez (Jaime).
Contreras and Gongora contend Torres's statements to Munoz about who was working with him violated the Aranda-Bruton rule. We reject this contention in our discussion in section II(C) below.
The police wiretap also recorded conversations in which Contreras was involved. In several conversations during June 2003, Contreras asked Torres if he had any drugs, apparently for Contreras's personal use. Contreras primarily requested heroin; Torres told Contreras he did not deal in heroin. In a June 9 conversation, Contreras also asked for methamphetamine; Torres told him he did not have any.
In a June 20 conversation, Contreras and Torres discussed an anticipated job in Temecula, Contreras's need for drugs, and their mutual interest in obtaining drugs. First, Contreras told Torres that a certain person (who was not identified during the call) had already left their "pad" but that Contreras would try to find him. Torres told Contreras that "we . . . got another job that's coming up right now" in Temecula, involving "[s]ome good . . . . you know?" Torres told Contreras to let the individual know as soon as he comes over and then let Torres know. Contreras then asked if Torres had "[a]nything" now because he was "doing bad." Torres told Contreras that right now he was "broke," but that Contreras should keep checking with him. Torres and Contreras agreed that they needed to get "something going here" because everyone was "doing bad." (Italics added.) Contreras complained, "All of a sudden the [unintelligible] ain't got no mother fucking cri-cri coming." Torres told Contreras that he would see "what [he could] get" to help Contreras out, and that Contreras should call him back.
This portion of the conversation was as follows: Contreras: "And you ain't got nothing now? Anything? Well, I'll let you know." Torres: "Not right now, homie, no . . . shit, no! I'm broke." Contreras: "I'm doing bad, boy." Torres: "You? Fuck, everybody is." Contreras: "Yeah. Man, eh!" Torres: "That's what I'm saying, you know. Gotta get . . . you know, something going here." Contreras: "I know. Man, we need to, man. Fuck this."
The police wiretap also revealed several conversations between Contreras and Torres in October, November, and December 2003, where it appears Contreras was asking Torres to procure drugs for Contreras's personal use.
On December 15, 2003, the police wiretap revealed a tie-in between Contreras and Torres's methamphetamine operations with Hector. In a recorded phone conversation on December 15, 2003, at 12:22 p.m., Torres called Contreras and gave Contreras instructions to meet with Hector. Torres gave Contreras a phone number, and told him to immediately call Hector and find out where Hector wanted to meet Contreras. Torres instructed Contreras to identify himself as "Mosco" and stated that Hector "knows." Contreras stated he would call Hector right now, and Torres told him to "hurry up."
That same day (December 15), the police set up surveillance near Torres's residence. At about 12:50 p.m., the police saw Jaime (a member of Torres's crew) go to Torres's residence, and then go across the street to an apartment complex. They also saw Contreras at this apartment complex. At about 2:29 p.m., the police saw Jaime, Contreras, and Hector run to Torres's apartment. Shortly thereafter, Jaime, Contreras, and Hector ran out of the apartment and left the area in a black Ford Ranger truck.
The police officers had been briefed that there was probable cause to arrest the truck occupants; accordingly, they followed the truck and pulled it over. Contreras and Jaime exited the truck, climbed a four-foot fence, and ran into a nearby trailer park. Hector, who did not flee, was taken into custody. The police caught Jaime and Contreras in the trailer park and arrested them. The police found a pouch containing approximately $4,000 on the ground between trailers in the area where they arrested Jaime and Contreras. They found methamphetamine in a baggie by the fence that Jaime and Contreras had climbed, and methamphetamine scattered inside and outside the Ford Ranger truck. The methamphetamine in the baggie weighed approximately 9.92 grams and the scattered methamphetamine (including soil and debris) weighed about 137.85 grams. Based on the large amount of methamphetamine and cash, the police ascertained the methamphetamine was possessed for sale.
Analysis
Contreras's Agreement to Join the Methamphetamine Distribution Conspiracy
A criminal conspiracy exists when there is an unlawful agreement between two or more people to commit a crime, and an overt act in furtherance of the agreement. (People v. Prevost (1998) 60 Cal.App.4th 1382, 1399.) The prosecution must show the defendant intended to agree and intended to commit the elements of the offense. (Ibid.; People v. Morante (1999) 20 Cal.4th 403, 416.) However, "it is not necessary to demonstrate that the parties met and actually agreed to undertake the unlawful act or that they had previously arranged a detailed plan. The evidence is sufficient if it supports an inference that the parties positively or tacitly came to a mutual understanding to commit a crime. Therefore, conspiracy may be proved through circumstantial evidence inferred from the conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy." (People v. Prevost, supra, 60 Cal.App.4th at p. 1399.)
The evidence supports the jury verdict that Contreras agreed and intended to participate in Torres's methamphetamine distribution operation. When speaking with Munoz, Torres identified Contreras as one of the people who was working with him. Based on the contents of Torres's numerous phone conversations between June and November 2003, the jury could find that Torres's primary work was methamphetamine distribution, and thus that the people who worked for him were participating in the distribution operation. The jury could also find that the discussion between Torres and Contreras on June 20 regarding a job in Temecula which involved something "good" referred to methamphetamine, and that Contreras was helping Torres contact the people who would participate in the transaction. Further, the jury could infer from this same conversation that Torres's and Contreras's agreement that they need to get "something going" meant they agreed that they needed to obtain methamphetamine to distribute to people.
The reliability of the inference that Contreras had agreed to participate in Torres's methamphetamine distribution operation was confirmed by the December 15, 2003 conversation between Torres and Contreras, followed by the arrest of Contreras and the discovery of cash and methamphetamine in the possession of the truck occupants. On the day of Contreras's arrest, Torres instructed Contreras to meet with Hector, who was one of the other individuals involved with Torres in methamphetamine distribution. Contreras met with Hector at Torres's apartment; he left Torres's apartment in a truck with Hector and Jaime; and when he was stopped by the police he fled with Jaime from the truck. The police then found the discarded cash and the methamphetamine near the truck. Based on all the evidence, including the communications between Torres and Contreras, the jury could reasonably infer that Contreras was aware of the methamphetamine in the truck and had agreed to participate in the methamphetamine distribution operation.
To support his challenge to the methamphetamine distribution conspiracy, Contreras notes that he was not named in any of the alleged overt acts except the last one occurring on December 15 when he was arrested. This does not defeat the evidentiary support for his agreement to participate in the conspiracy. A conspirator need not personally participate in any of the overt acts as long as he or she conspired to commit the crime and an overt act is committed by a coconspirator. (People v. Morante, supra, 20 Cal.4th at p. 417; People v. Cooks (1983) 141 Cal.App.3d 224, 312.)
Contreras's Possession of Methamphetamine for Sale
A defendant may be found guilty of possession of drugs for sale based on actual or constructive possession of the drugs, knowledge of the presence of the drugs, and intent to sell. (People v. Newman (1971) 5 Cal.3d 48, 52, disapproved on other grounds in People v. Daniels (1975) 14 Cal.3d 857, 862.) Constructive possession exists when the defendant has control or the right to control the drugs. (People v. Newman, supra, 5 Cal.3d at p. 52.) Possession may be imputed when the drugs are found in a place immediately accessible to the defendant and subject to his or her exclusive or joint dominion and control. (Ibid.; People v. Harrington (1970) 2 Cal.3d 991, 998.)
Here, the evidence showing that Contreras had agreed to participate in the methamphetamine distribution operation likewise showed that he knew about the methamphetamine in the truck, he had control over the drugs, and he intended to sell them. Contrary to Contreras's assertion, this is not a case where the only evidence to support the jury's verdict was Contreras's mere presence in the truck. (See, e.g., In re Elisabeth H. (1971) 20 Cal.App.3d 323, 330.) In addition to Torres's presence in the truck, the jury's finding that Contreras knowingly possessed the methamphetamine for sale was supported by Torres's instruction to Contreras to meet with Hector on December 15 and by the discovery of the discarded methamphetamine and the large amount of cash near the areas where Contreras fled after being stopped by the police.
B. Failure to Give Unanimity Instruction for Methamphetamine Distribution Conspiracy Count as it Related to Contreras
Contreras asserts that a unanimity instruction should have been given for the conspiracy to distribute methamphetamine count because the prosecutor presented two alternative theories that could prove his culpability: (1) he conspired with Torres to obtain methamphetamine to sell to others, or (2) he conspired with Torres to obtain methamphetamine for his personal use.
A defendant's constitutional right to a unanimous jury verdict requires that when the evidence shows more than one unlawful act that could support a single charged offense, the prosecution must either elect which act to rely upon or the trial court must sua sponte give a unanimity instruction telling the jurors they must unanimously agree which act constituted the crime. (People v. Melhado (1998) 60 Cal.App.4th 1529, 1534.) The unanimity instruction is designed to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agreed the defendant committed. (Ibid.)
However, no unanimity instruction is required when the prosecution presents multiple theories regarding one discrete criminal act or event. (People v. Russo (2001) 25 Cal.4th 1124, 1134-1135.) "[W]here the evidence shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed or what the defendant's precise role was, the jury need not unanimously agree on the basis or . . . the 'theory' whereby the defendant is guilty." (Id. at p. 1132.) Similarly, no unanimity instruction is required when the offense involves a continuous course of conduct; i.e., when the statute defining the crimes applies to an offense that may be continuous in nature. (People v. Funes (1994) 23 Cal.App.4th 1506, 1526-1527.)
The evidence showed that Torres engaged in a methamphetamine distribution operation with the assistance of other individuals. Contreras's participation in the methamphetamine distribution operation was supported by the phone calls between him and Torres discussing the need to acquire drugs, for Contreras's personal use as well as for other people, and culminating in the discovery of a large amount of methamphetamine in Contreras's possession when he was arrested. Although the prosecution proffered multiple theories to support Contreras's culpability (i.e., his intent to secure methamphetamine for others or for himself), the evidence showed a discrete agreement to participate in Torres's methamphetamine distribution activity. Further, the conspiracy involved a continuous, unified course of conduct with the single overall goal of acquiring and distributing methamphetamine. The trial court was not required to give a unanimity instruction.
C. Aranda-Bruton Challenge Based on Admission of Torres's Statement that Contreras and Gongora Were Working with Him
Gongora and Contreras contend their rights to a fair trial under Aranda-Bruton principles were violated by the admission of Torres's statement to Munoz during the November 21, 2003 recorded phone conversation identifying Gongora and Contreras as persons working with him. They contend Torres's statement did not fall within the coconspirator hearsay exception, and hence it was inadmissible under Aranda-Bruton.
Prior to trial, defendants moved to sever their trials on Aranda-Bruton grounds. The prosecutor argued against severance, asserting that all codefendant statements that would be offered into evidence were made in furtherance of a conspiracy and thus not subject to the Aranda-Bruton rule. The trial court denied the severance motion, stating that it would only admit nontestifying codefendant statements that were made in furtherance of a conspiracy. After the jury was presented with the recorded phone conversation containing Torres's statement incriminating Gongora and Contreras as crew members, Gongora and Contreras moved for a mistrial on Aranda-Bruton grounds. The prosecutor opposed the motion, arguing Torres's statement was made in furtherance of the methamphetamine distribution conspiracy. The trial court denied the mistrial motion.
The trial court took the mistrial motion under submission, and apparently never expressly ruled on it. We construe this as an implied denial of the motion.
Under the Aranda-Bruton rule, the prosecution cannot introduce a nontestifying defendant's statements inculpating a nondeclarant defendant (which would not have been admissible against the nondeclarant defendant in a severed trial) even though at the joint trial the statements are admissible against the declarant defendant as a party admission. (People v. Fletcher (1996) 13 Cal.4th 451, 455; People v. Morales (1968) 263 Cal.App.2d 368, 374.) The rationale for this rule is that the jury might not be able to follow instructions to disregard the declarant defendant's statement in determining the guilt or innocence of the nondeclarant defendant. (People v. Fletcher, supra, 13 Cal.4th at p. 455; People v. Brawley (1969) 1 Cal.3d 277, 286.)
However, the Aranda-Bruton rule is inapplicable if the extrajudicial statements come within the coconspirators' exception to the hearsay rule. (People v. Roberts (1992) 2 Cal.4th 271, 304; People v. Brawley, supra, 1 Cal.3d at p. 286.) This exception to the Aranda-Bruton rule is premised on the fact that if the declarant defendant's statements were admissible at a severed trial under the coconspirator's hearsay exception, a separate trial would not afford the nondeclarant defendant any greater protection and thus there is no reason to exclude the statements at a joint trial. (People v. Morales, supra, 263 Cal.App.2d at p. 374; see also Bourjaily v. United States (1987) 483 U.S. 171, 183-184.)
To admit a declarant defendant's statement under the coconspirator hearsay exception, there must be a preliminary showing, independent of the coconspirator's statement, that a conspiracy exists and that (1) the declarant was participating in the conspiracy at the time of the declaration, (2) the declaration was in furtherance of the objective of that conspiracy, and (3) at the time of the declaration the party against whom the evidence is offered was participating or would later participate in the conspiracy. (People v. Hardy (1992) 2 Cal.4th 86, 139; People v. Leach (1975) 15 Cal.3d 419, 430-431, fn. 10; Evid. Code, § 1223.) The preliminary showing requirement is satisfied if the proponent of the evidence provides sufficient evidence for a reasonable trier of fact to conclude the preliminary fact is true by a preponderance of the evidence. (People v. Herrera (2000) 83 Cal.App.4th 46, 63.)
The jury here was instructed that it should not consider out-of-court coconspirator statements unless it found these preliminary facts to be true by a preponderance of the evidence. (See CALJIC No. 6.24.)
Gongora and Contreras do not dispute there was independent evidence showing a methamphetamine distribution conspiracy. However, they contend there was no evidence to satisfy the three additional requirements; i.e., that the declarant (Torres) was participating in the methamphetamine distribution conspiracy when he made the statement; that Torres made the statement to further the methamphetamine distribution conspiracy; and that Contreras and Gongora were participating in the methamphetamine distribution conspiracy at the time of the statement or thereafter. The record shows otherwise.
As to the first requirement, there was clear evidence that Torres was involved in a conspiracy to distribute methamphetamine during the November 2003 time period when he made the statement at issue. During this time, Torres had numerous phone conversations with the Ortega brothers specifically discussing methamphetamine distribution. Thus, the record supports that Torres was participating in the methamphetamine distribution conspiracy when he made the statement.
The second requirement—that Torres's statement was designed to further the conspiracy—is supported when the lengthy phone conversation between Torres and Munoz is considered in its entirety. During the conversation, Munoz and Torres discussed two men (Danny Ray and Mark Kramer) who Torres and Munoz had heard were asking about them. Torres commented that Kramer "used to run some shit . . . in I-B." Munoz asked Torres why Kramer was asking about them. Torres responded that he did not know what Ray and Kramer wanted, but Ray and Kramer had "mentioned the Señor." Torres told Munoz that he wanted to know who Ray and Kramer were. Torres elaborated that he had been "hunting" and was getting closer, and he would "challenge [Ray and Kramer] and see what's up." Munoz agreed that Torres needed to find out who Ray and Kramer were. Further, Munoz told Torres that an individual (apparently referring to Munoz's uncle with whom Munoz had earlier discussed the matter) had said " 'find out who those motherfuckers are.' " Munoz told Torres that when Torres was "ready to roll," Munoz would "roll with [Torres]." Torres stated he would let Munoz know "whatever comes up." Following this exchange, Munoz asked Torres who was working with him, and Torres identified Gongora, Contreras, and the others. Munoz stated he was working with only one other individual, identified as "Ewok from East Side." Torres asked, "Just you guys?" Munoz responded, "Yup. So if anybody else is trying to say. . . . They're bull shitting. All right?"
The prosecution presented evidence showing that Torres was a crew leader for the Mexican Mafia, and that he called his Mexican Mafia boss "the Señor." During the conversation with Munoz, Torres stated the two men they were discussing (Ray and Kramer) had "mentioned the Señor." It is apparent from the conversation that Munoz understood what this reference meant. Munoz and Torres discussed plans to challenge the two men. The fact that Munoz understood who the Señor was and understood the implications arising from other people referring to the Señor creates a reasonable inference that Munoz was also connected to the Mexican Mafia methamphetamine distribution operation. Accordingly, the record supports a finding that when Munoz and Torres identified the individuals who were working with them, they were referring to crew members who worked on the methamphetamine distribution operation and they were furthering the organizational goals of that operation.
Finally, as to the third requirement, the record supports that Contreras and Gongora were participating in the methamphetamine distribution conspiracy at the time of Torres's November 21, 2003 statement. Contreras was arrested with methamphetamine in his possession on December 15, 2003; this supported an inference of his participation during the relevant time period.
Regarding Gongora's involvement in the conspiracy, the wiretap revealed several conversations between Torres and Gongora in June 2003 during which they discussed drug distribution. Further, methamphetamine dealer Pulido testified that Torres came to his residence in May 2003 to inform him that he had to pay a tax for his methamphetamine operations, and that Gongora accompanied Torres on this visit. Additionally, during various phone conversations from June through August 2003, Torres and Gongora discussed a variety of other matters, including weapons that Gongora was holding for Torres, the Sanchez kidnapping and extortion, the Bush robbery, and the Jauregui kidnapping plans. The Sanchez and Bush matters involved activities that assisted the methamphetamine distribution operation—i.e., Sanchez was targeted because he owed money to methamphetamine dealer Sergio Pulido whom Torres was protecting, and Bush was targeted because he was dealing in methamphetamine without having paid a tax to Torres. This evidence supports that Gongora was participating in Torres's methamphetamine distribution operation and related activities during the relevant time period.
Gongora asserts there were no recorded conversations between Torres and Gongora after November 15, 2003, and thus there was no evidence he was still participating in the methamphetamine distribution operation when Torres identified him to Munoz on November 21, 2003. A defendant who has joined a conspiracy remains a member until he affirmatively communicates his withdrawal. (People v. Sconce (1991) 228 Cal.App.3d 693, 701; People v. Cooks, supra, 141 Cal.App.3d at p. 316.) Gongora has cited no evidence indicating that he had communicated such an intent to withdraw. Moreover, it is apparent from the recorded conversations that Torres kept Gongora apprised of his activities related to methamphetamine distribution and other matters, and that Gongora viewed himself as available to assist Torres in his activities. Gongora's ongoing communications and involvement with Torres supported an inference that Gongora was still part of the methamphetamine distribution conspiracy when Torres spoke with Munoz on November 21, 2003.
The November 15, 2003 conversation between Torres and Gongora did not concern methamphetamine distribution.
The record supports that Torres's statement to Munoz fell within the coconspirator hearsay exception. Accordingly, the admission of the evidence did not violate the Aranda-Bruton rule, and the trial court did not err in denying the motion for mistrial.
D. Multiple Punishment of Contreras for Conspiracy to Distribute Methamphetamine and Possession of Methamphetamine for Sale
The trial court imposed a three-year sentence on Contreras's conspiracy to distribute methamphetamine conviction and a consecutive eight-month sentence on his possession of methamphetamine for sale conviction. Contreras asserts the trial court should have stayed the sentence on his possession of methamphetamine for sale conviction under section 654 because the possession for sale count was based on the same act as his conspiracy to furnish methamphetamine conviction.
Section 654 prohibits multiple punishment for a single act or indivisible course of conduct. (People v. Deloza (1998) 18 Cal.4th 585, 591.) When a defendant is convicted of two offenses that are part of an indivisible course of conduct, the sentence for one of the offenses must be stayed. (Id. at pp. 591-592.) The purpose of section 654 is to ensure that a defendant's punishment is commensurate with his or her culpability. (People v. Latimer (1993) 5 Cal.4th 1203, 1211.) Whether a course of criminal conduct is divisible so as to allow multiple punishment depends on whether the defendant had a separate criminal objective for each offense. (Id. at pp. 1208-1209.)
A course of conduct that is divisible in time can support a finding of multiple criminal objectives even though the conduct shares a common overall objective. (See People v. Gopal (1985) 171 Cal.App.3d 524, 550.) On appeal we apply the substantial evidence test to review the court's finding on this issue. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
In the context of conspiracy law, the general rule is that a defendant may not be punished for both a conspiracy to commit a substantive offense and that substantive offense, unless the evidence shows the conspiracy had another objective apart from the substantive offense for which the defendant is being punished. (In re Cruz (1966) 64 Cal.2d 178, 180-181; People v. Vargas (2001) 91 Cal.App.4th 506, 571.) However, when the conspiracy shows multiple instances of the same substantive offense, the defendant may properly be punished for one of the substantive offenses, as well as for the conspiracy to commit the other (identical) substantive offenses for which the defendant is not being punished. (See, e.g., People v. Scott (1964) 224 Cal.App.2d 146, 150-152 [multiple drug sale offenses committed; defendant could be punished for substantive offense of drug sales as well as conspiracy to furnish illegal drugs]; People v. Richardson (1978) 83 Cal.App.3d 853, 868, disapproved on other grounds in People v. Saddler (1979) 24 Cal.3d 671, 682, fn. 8 [multiple forgeries committed; defendant could be punished for substantive offense of forgery as well as conspiracy to commit forgery].) As explained in Scott: "The 'one objective' test . . . cannot apply where, as in the instant case, there are multiple objectives or transactions. Logic suggests a contrary result, for to give effect to this argument would allow persons who conspired to commit 10 different robberies to escape punishment for the conspiracy upon being [punished] for one of the robberies." (People v. Scott, supra, 224 Cal.App.2d at p. 152.)
Here, the facts did not involve a methamphetamine distribution conspiracy that was geared toward a single distribution activity to occur on December 15, the date Contreras was found in possession of methamphetamine for sale. Rather, the record shows numerous phone conversations where Contreras's coconspirators discussed methamphetamine distribution transactions that were occurring on occasions distinct from and prior to December 15. Contreras essentially concedes that the conspiracy had objectives to distribute methamphetamine before the distribution activity that occurred on December 15. However, he asserts the evidence did not show he joined the conspiracy until December 15. As set forth earlier, the record supports a finding that he joined the conspiracy on June 20, when he and Torres discussed the need for drugs and agreed they had to get "something going." Thus, the trial court could reasonably conclude that the issue of whether Contreras had a criminal objective distinct from his objective on December 15 should be evaluated based on a consideration of the objectives evinced during the course of the conspiracy prior to December 15.
We note the fact that the methamphetamine sales conspiracy constituted a continuous course of conduct for purposes of not requiring a unanimity instruction does not preclude a finding that the conspiracy involved multiple criminal objectives for purposes of allowing multiple punishment under section 654. The test under section 654 is distinct from the issue of whether a unanimity instruction is required. Whether a course of criminal conduct is divisible so as to allow multiple punishment depends on whether the defendant had a separate objective for each offense. (People v. Latimer, supra, 5 Cal.4th at pp. 1208-1209.) In contrast, the unanimity instruction requirement turns on whether the jury might improperly render a guilty verdict without unanimous agreement on the offense that supports the verdict. (People v. Russo, supra, 25 Cal.4th at p. 1132.)
Under conspiracy law, the act of one conspirator is the act of all, and a defendant is responsible for all the acts of his coconspirators that are a natural and probable consequence of the common design. (People v. Morante, supra, 20 Cal.4th at p. 417.) Contrary to Contreras's assertion, because of the nature of conspiracy culpability, it was not necessary for Contreras to personally participate in his coconspirators' methamphetamine distribution discussions in order to impute a criminal objective to him distinct from his objective on December 15. Based on these coconspirator conversations reflecting methamphetamine distribution during the weeks preceding December 15, the record supports that Contreras entertained multiple criminal objectives to distribute methamphetamine beyond the objective he entertained on December 15 when he was arrested. Accordingly, the trial court's decision to impose punishment for both the conspiracy and possession for sale offenses is supported by substantial evidence.
III. Conspiracy to Commit Extortion and Other Offenses Against Sanchez
In count 6, Torres and Contreras were charged with engaging in a conspiracy to commit extortion against Sanchez from June 4 through June 27, 2003. Additionally, in counts 2 through 5, the information alleged that on June 4, 2003, Torres and Contreras committed five offenses against Sanchez; i.e., kidnapping for robbery, robbery, assault by means of force likely to cause great bodily injury, and extortion. After the presentation of the prosecution's case, the kidnapping for robbery and robbery offenses were dismissed as to Contreras based on insufficient evidence. The jury convicted Contreras of conspiracy to commit extortion, but acquitted him of the June 4 assault and extortion charges. Torres was convicted of all the charged offenses related to Sanchez.
Contreras and Torres challenge these convictions on appeal. Contreras contends the evidence was insufficient to show that he participated in the conspiracy to commit extortion against Sanchez. Torres contends the trial court erred because its accomplice instructions failed to identify Francisco Lopez (Francisco) and Pulido as accomplices in all of the offenses involving victim Sanchez.
Factual Background
Sanchez and Pulido were methamphetamine drug dealers. As a result of their transactions, Sanchez owed money to Pulido. Torres, who was providing protection to Pulido, conspired with several individuals to collect money or drugs from Sanchez to pay off the Pulido debt.
Pulido and Francisco testified at trial and provided evidence implicating Torres in the offenses against Sanchez. The June 4 offenses of kidnapping for robbery, assault by means of force likely to cause great bodily injury, extortion, and robbery commenced at Pulido's residence and continued on at a residence shared by Jaime and Contreras. Pulido testified that Torres and Jaime arrived at Pulido's residence at about 3:00 p.m. on June 4 asking for Sanchez. Pulido directed them to a bedroom where Sanchez was visiting him. Francisco arrived at the residence shortly after Torres and Jaime. Francisco observed Sanchez in the bedroom, dressed only in his underwear, on his knees with his head against closet doors or a wall. As Francisco was leaving the bedroom, Jaime hit Sanchez. Francisco stayed in the living room with Pulido, and Pulido left the residence about five minutes later.
About 10 or 15 minutes later, Francisco saw Jaime and Torres walk with Sanchez (now clothed) out of the residence. Sanchez, Jaime, and Jaime's girlfriend left in Sanchez's car, and Torres left on foot. Jaime's girlfriend was driving Sanchez's car, and Jaime and Sanchez were sitting in the backseat. Sanchez looked scared.
Thereafter, the police wiretap revealed that Sanchez was taken to Jaime's and Contreras's residence, where the assault and threats continued into the night of June 4. During these recorded conversations, Torres revealed his intention not to return Sanchez's car to him. In a recorded conversation between Torres and Jaime at 6:06 p.m. on June 4, Jaime reported that he had Sanchez with him and that Sanchez was trying to get drugs from "his people" to pay the debt. Torres instructed Jaime to tell Sanchez that he better come up with some money, or he was not going anywhere and was not going to live. During this same conversation, Torres told Jaime that he had promised Sanchez's car to the Señor. During a 7:49 p.m. conversation, Jaime told Torres that he had beaten Sanchez up, and told Sanchez that he had to pay "[e]verything right now, tonight, or else . . . ." At 8:28 p.m., Jaime reported that Sanchez asked to be let go for a day so he could get what was needed to pay them, and that Jaime told Sanchez the next time he saw him he would "see no more." Torres told Jaime to tell Sanchez that "he better not report that car either." Torres instructed Jaime to do what he thought was right, and that Jaime could consider if he thought Sanchez was "going to come through."
In many of the recorded conversations discussing the events of June 4 and thereafter, Sanchez was not identified by name. However, from a review of all the phone calls and other information it is apparent that the person being discussed was Sanchez.
The wiretap revealed that Contreras was also at his residence while Sanchez was being held captive there. At 9:02 p.m. on June 4, Contreras called Torres and told him that he was "[r]ight here when the shit happened." Torres asked what was happening right then; Contreras responded "we're talking to him right now and shit . . . I think we're having a little chat." Torres told Contreras to tell Jaime to call Torres in a few minutes because if they needed to move Sanchez to another place, it was ready.
At 12:24 a.m. on June 5, Jaime called Torres and reported "it's done"; that Sanchez was going to report in tomorrow; and that Jaime would call Torres the next day. Subsequent recorded conversations revealed that Sanchez had been freed by Jaime and that Torres was monitoring the situation to ensure that Sanchez adhered to his promise to pay the debt. From June 5 through June 27, there were numerous phone calls between Torres and other individuals discussing the ongoing attempts to get money or drugs from Sanchez to pay off the debt, as well as Torres's anger at Sanchez and his intent to assault him and/or take his property. Francisco and Pulido were frequent participants in the recorded conversations.
Following Sanchez's release, Contreras was involved in three conversations with Torres in which Sanchez was discussed. During a conversation on June 7, Contreras asked Torres, "[w]hat's up with [Sanchez]?" Torres responded that he was waiting for Jaime to reach Sanchez and then report to Torres. Contreras asked whether Sanchez had "come through." Torres stated no, and that he was getting upset and was "gonna go over there and fucking kill that mother fucker [Sanchez]."
On June 8, after Torres had discovered that Sanchez had lied to him about his assets, Torres told Contreras that he needed to talk to Jaime because there was a problem with Sanchez that Torres needed to handle "personally." Contreras stated that he thought another individual (apparently referring to Jaime) was going to handle it. Torres stated, "No. . . . He lied to me and you know how I feel about fucking liars. [¶] . . . [¶] I fucking found out some shit, homie. And I confirmed it, and now he's going to be mine." In response to this disclosure, Contreras called Sanchez a "motherfucker," and stated, "What the heck is this guy's problem, man?" Torres told Contreras he could not say what he was planning to do over the phone, and Contreras responded "Yes" and "Uh-huh." Torres continued, "But, this guy . . . you think he got fucking hurt last time," and then laughed. Contreras stated, "Man . . . seriously?" Torres answered, "Seriously, homie." Torres asked Contreras to find Jaime for him so he could talk to him about this matter, and Contreras agreed he would do so.
On June 9, Contreras called Torres and asked if anything had happened. Torres responded that he knew where Sanchez was staying. Contreras inquired, "[I]f he's hiding out, though[,] [w]hat makes you think he gots anything?" Torres stated he had confirmed that Sanchez had money and was "moving some shit right now." Torres assured Contreras that he was "gonna be in there, don't worry."
Analysis
A. Substantial Evidence of Contreras's Culpability for Conspiracy to Extort Sanchez
Contreras concedes the record supports a finding that he knew about the conspiracy to commit extortion against Sanchez, but asserts the evidence does not show he agreed to participate in the extortion. Although the record suggests Contreras was not a key player in the extortion conspiracy, there was sufficient evidence for the jury to find he agreed to join in Torres's efforts to engage in the extortion. In the June 4 recorded conversation between Contreras and Torres, Contreras stated that he was at the residence when "the shit happened" and that "we're talking to [Sanchez] right now." The jury could find that Contreras's reference to talking to Sanchez meant that he was participating in the threats to Sanchez. After Sanchez was released, on June 7, 8, and 9, Contreras discussed with Torres the plans that Torres had for Sanchez. During the June 8 conversation, Contreras agreed to find Jaime for Torres so Torres could talk to Jaime about his plans for Sanchez after finding out Sanchez had lied to him. Based on the evidence supporting a finding that Contreras joined in the June 4 activities at his residence and then continued to communicate and provide assistance to Torres regarding Sanchez, the jury could infer Contreras had implicitly agreed to assist Torres in his plans to extort money from Sanchez.
Contreras asserts that because the jury acquitted him of the assault and extortion offenses occurring on June 4, and because the prosecutor's theory was that the conspiracy started after the June 4 events, the evidence of his participation in the events on June 4 cannot be used to infer that he agreed to participate in the extortion conspiracy. This contention is unavailing. When evaluating a challenge to the sufficiency of the evidence, "each count must stand on its own, and a verdict on one has no bearing on any other" even if the verdicts are inconsistent. (People v. Pahl (1991) 226 Cal.App.3d 1651, 1657.) This principle is premised on the recognition that an inconsistent acquittal may be the product of mistake, compromise, or leniency, and the defendant should not be permitted to take further advantage of the result. (Ibid.; People v. Lewis (2001) 25 Cal.4th 610, 656.) " 'Sufficiency-of-the-evidence review involves assessment by the courts of whether the evidence adduced at trial could support any rational determination of guilt beyond a reasonable doubt. . . . This review should be independent of the jury's determination that evidence on another count was insufficient.' " (People v. Palmer (2001) 24 Cal.4th 856, 863.)
Thus, the jury's acquittals on the assault and extortion counts did not preclude the jury from relying on the facts associated with those counts to render a guilty verdict as to the conspiracy to commit extortion count. Further, even though the prosecution's theory was that the conspiracy commenced after the June 4 events, the jury could permissibly consider the June 4 events when evaluating whether Contreras implicitly agreed to be part of the ongoing efforts to extract money or property from Sanchez.
The evidence, including the June 4 recorded conversation, supports the jury's finding that Contreras agreed to participate in the extortion.
B. Torres's Challenge Based on the Failure to Instruct that Francisco and Pulido Were Accomplices in All the Offenses Against Sanchez
The trial court gave the jurors the cautionary instructions applicable to accomplices, informing them that accomplice testimony should be viewed with caution, that it must be corroborated, and that one accomplice's testimony may not be corroborated by another accomplice's testimony. The court instructed the jury that Pulido was an accomplice as a matter of law for the count 6 offense of conspiracy to commit extortion against Sanchez. Torres contends the trial court should have also instructed the jury that Pulido was, or could be found by the jury to be, an accomplice for the June 4 offenses against Sanchez alleged in counts 2 through 5 (kidnapping for robbery, assault, extortion, and robbery).
The court instructed the jury that Francisco was an accomplice as a matter of law for various counts unrelated to the Sanchez count. However, Francisco was not identified as an accomplice for the counts related to victim Sanchez. Torres asserts this was error.
We agree the trial court should have given accomplice instructions for Pulido and Francisco for all the counts related to victim Sanchez. If the evidence is sufficient to support a conclusion that a witness implicating the defendant was an accomplice, the trial court must sua sponte instruct the jury to determine whether the witness was an accomplice and give the cautionary accomplice instructions. (People v. Zapien (1993) 4 Cal.4th 929, 982.) The jury could have found that Pulido and Francisco were accomplices in the offenses committed against Sanchez on June 4, including the assault at Pulido's residence, the kidnapping for robbery, the robbery of his vehicle, and the extortion.
Both Pulido and Francisco were at Pulido's residence when Sanchez was first assaulted by Jaime. Sanchez was being assaulted for a debt he owed Pulido. From this fact the jury could infer that Pulido participated as an aider and abettor, for example by arranging for the encounter at his residence to give Jaime an opportunity to assault, kidnap, extort, and rob Sanchez. The jury could have also concluded that Francisco was an aider and abettor based on the facts that Francisco was present at Pulido's residence when the offenses occurred, and (as we will discuss shortly) during the ensuing weeks there were repeated discussions between Torres and Francisco about the efforts to get money or property from Sanchez. Because Francisco was involved in the efforts to obtain money or property from Sanchez after June 4, the jury could reasonably infer that he was likewise an aider and abettor while at Pulido's residence on June 4.
The jury could also find that Francisco participated in the conspiracy to commit the extortion. In a June 5 conversation, Francisco reported to Torres that Sanchez had called him and stated he wanted to pay off the debt with drugs. Francisco agreed to call Pulido for Torres to check whether Pulido would accept drugs instead of cash. Francisco had additional conversations with Torres about collecting the debt from Sanchez on June 5, 8, and 9. On June 10, Francisco met with Sanchez and acquired methamphetamine from him; Francisco then delivered the drugs to Torres. Torres tested the drugs and discovered they were not good quality. When Torres angrily informed Francisco of this, Francisco agreed that Sanchez "keeps messing around" and "that's why he's got coming what he's got coming." Subsequently, Francisco assisted Torres in efforts to try to reach Sanchez. On June 27, Francisco reported to Torres that Sanchez's telephone had been disconnected and promised that he would try to find Sanchez. This evidence provided a sufficient basis for a jury finding that Francisco was an accomplice in the extortion conspiracy.
However, the failure to identify Pulido and Francisco as accomplices for all the Sanchez offenses does not require reversal. Because an accomplice may tend to shift blame to the defendant, the accomplice instructions inform the jury that an accomplice's testimony should be viewed with caution and must be corroborated by evidence, independent of the accomplice's testimony, that tends to connect the defendant with the commission of the crime. (People v. Howard, supra, 42 Cal.4th at p. 1022; People v. Zapien, supra, 4 Cal.4th at p. 982.) The failure to give accomplice instructions is harmless if there is sufficient corroborating evidence in the record. (People v. Zapien, supra, 4 Cal.4th at p. 982.) Corroborating evidence may be slight, may be entitled to little consideration when standing alone, and need not establish all the elements of the crime. (Ibid.)
Torres's connection to the charged offenses against Sanchez was amply corroborated by the recorded phone conversations with Torres obtained from the police wiretap. These conversations contained repeated admissions by Torres reflecting his intention that Sanchez be beaten and threatened, his plans to keep Sanchez's car, and his continued efforts to get money or property from Sanchez.
Other Instructions
To support his contention of reversible error, Torres asserts the trial court compounded the error arising from the incomplete accomplice instructions by instructing the jury with CALJIC Nos. 2.11.5 and 2.27. CALJIC No. 2.11.5 admonished the jury not to speculate why other persons who may have been involved in the crimes were not being prosecuted in this trial, and that the jury's sole duty was to decide whether the People had proven the guilt of each defendant on trial. Torres asserts the instruction should not have been given because Francisco, Pulido, and a third accomplice (Julio Navarette) testified for the prosecution in exchange for lenient deals.
In People v. Carrera (1989) 49 Cal.3d 291, 312-313, the court held that a former version of CALJIC No. 2.11.5 should not be given when a prosecution witness has been afforded leniency, because the jury may be misled to believe that it was precluded from considering whether the witness had a strong incentive to testify favorably to the prosecution. However, the Carrera court concluded the "potential for such a misunderstanding of the instruction appears minimal" and thus the error in giving the instruction was harmless under any standard of review. (People v. Carrera, supra, at p. 313.) To support this conclusion, the Carrera court noted the jury was instructed to consider the instructions as a whole, and that it may consider the existence of a bias, interest, or other motive when evaluating credibility. (See CALJIC Nos. 1.01, 2.20; People v. Carrera, supra, 49 Cal.3d at p. 313; see also People v. Lawley (2002) 27 Cal.4th 102, 162-163; People v. Fonseca (2003) 105 Cal.App.4th 543, 547-550.)
Here, as in Carrera, the jury was instructed in the language of CALJIC Nos. 1.01 and 2.20. Based on these instructions, and as a matter of common sense, we are confident the jury understood it could consider the lenient deals provided by the prosecution when evaluating the accomplices' credibility. Any error arising from giving CALJIC No. 2.11.5 does not warrant reversal, even when considered in light of the failure to fully specify all the counts for which Francisco and Pulido could have been found to be accomplices.
CALJIC No. 2.27 told the jury that it should give uncorroborated testimony of a single witness whatever weight the jury thought it deserved, and testimony concerning any fact by one witness who did not require corroboration was sufficient to prove that fact. As stated, the police wiretap contained repeated admissions from Torres clearly tying him to the Sanchez counts. Thus, the jury would certainly have found corroboration for these counts if it had been instructed that such corroboration was necessary in order to rely on Francisco's and Pulido's testimony. Once this corroboration was found to exist, the jury could properly rely on a single accomplice's testimony to establish a fact. Under these circumstances, we find no reversible error arising from the incomplete accomplice instructions even when considered in light of CALJIC No. 2.27.
As we will discuss below in section V(B), the trial court also erred in failing to instruct the jury regarding codefendant Gongora's status as an accomplice in count 15 (conspiracy to kidnap Jauregui), but we find the error harmless based on sufficient corroborating evidence. We likewise find no prejudice arising from the giving of CALJIC Nos. 2.11.5 and 2.27 as it pertains to Gongora.
IV. Substantial Evidence of Gongora's Culpability for Conspiracy to Rob and Robbery of Bush
Torres, Contreras, and Gongora were convicted of conspiracy to rob and robbery of Robert Bush. Gongora challenges the sufficiency of the evidence to support the jury's verdicts that he was a conspirator liable for these offenses. The events took place between June 27 and July 1, 2003.
Bush was a methamphetamine dealer. On June 27, 2003, at 1:00 p.m., the police wiretap revealed a conversation between Torres and Navarette, during which Torres requested Navarette's assistance in extracting a tax from Bush for Bush's methamphetamine sales activity. At about 4:00 p.m., Torres and Gongora engaged in a recorded conversation during which they discussed the plans to tax Bush. Torres told Gongora that he had found Bush, that Bush was making and selling methamphetamine at his residence, and that they were going to "hit on him today." Gongora asked where Bush lived. Torres gave him the cross-street location; stated that Contreras and Jaime were "right now checking it out"; and invited Gongora to join the operation. Gongora responded, "Sounds like a party to me. . . . Let me . . . wash up and shit and I'll call you back. Tell me where they're at, all right?" Torres stated, "You know it, homie." At about 6:00 p.m. that evening, Torres, Contreras, and Jaime went to Bush's residence and stole cash, drugs, and other property from him. Later on June 27 and on June 28, 29, 30, and July 1, Torres, Contreras, Jaime, and others (but not Gongora) engaged in further discussions about plans to rob Bush.
To establish Gongora's culpability for conspiracy to rob Bush, the prosecution was required to show Gongora's express or implicit agreement to commit the robbery, his intent to commit the robbery, and at least one overt act committed by a coconspirator towards its commission. (People v. Prevost, supra, 60 Cal.App.4th at p. 1399; People v. Sconce, supra, 228 Cal.App.3d at p. 702.) An overt act consists of an outward act done to pursue the crime and manifesting an intent to accomplish the crime; the act need not be criminal in nature and need not amount to an attempt to commit the offense. (People v. Sconce, supra, 228 Cal.App.3d at p. 700; People v. Von Villas (1992) 11 Cal.App.4th 175, 243-244.) Once the defendant's agreement, intent, and an overt act are shown, conspiracy culpability is established even if the defendant was not present and did not personally participate in an overt act. (See People v. Morante, supra, 20 Cal.4th at p. 417; People v. Cooks, supra, 141 Cal.App.3d at p. 312.) A defendant is liable for the acts of his coconspirators which are committed in furtherance of the conspiracy or are a natural and probable consequence of the conspiracy, unless the defendant affirmatively repudiates membership in the conspiracy prior to the coconspirator's conduct. (People v. Morante, supra, 20 Cal.4th at p. 417; People v. Sconce, supra, 228 Cal.App.3d at p. 701; People v. Cooks, supra, 141 Cal.App.3d at p. 316.) Imposition of criminal culpability for a conspiracy is justified by a " 'group danger' " rationale—i.e., group association encourages more ambitious goals, increases the likelihood of success, and decreases the likelihood that the plan will be abandoned. (People v. Sconce, supra, 228 Cal.App.3d at p. 700.)
The recorded phone conversation on June 27 between Gongora and Torres—in which Torres referred to the plan to "hit" Bush because he was selling methamphetamine and Gongora indicated his intent to join the "party" and asked to be apprised of Contreras's and Jaime's location—was sufficient to show Gongora agreed and intended to participate in the robbery. The overt act was shown by Torres's statement to Gongora that Contreras and Jaime were already in the area of Bush's residence.
Even though Gongora did not ultimately go to Bush's residence to commit the robbery, this fact did not require the jury to conclude Gongora had not agreed to participate in this planned crime when speaking with Torres. An agreement to commit a crime may be inferred from the conduct and relationship of the parties before and during the conspiracy. (People v. Prevost, supra, 60 Cal.App.4th at p. 1399.) As noted earlier, the ongoing recorded phone conversations showed that Gongora and Torres regularly communicated about various activities related to Torres's criminal activities and that Gongora repeatedly expressed his willingness to assist Torres in these activities. Considering all the evidence, the jury could reasonably infer that Gongora's statement on June 27 consisted of another assent by him to join in Torres's criminal activities.
Gongora argues the evidence does not show that Torres's statement about the plan to "hit" Bush was understood by Gongora to mean a plan to rob him. Robbery is the taking of property by force or fear with the intent to permanently deprive. (People v. Carrasco (2006) 137 Cal.App.4th 1050, 1057.) The record supports an inference that Torres intended to tax Bush for his methamphetamine sales activity, that such taxation consisted of taking property by force or fear, and that Gongora understood this to be Torres's plan vis-à-vis Bush. Methamphetamine dealer Pulido testified that in May 2003 Torres—accompanied by Gongora—came to Pulido's residence, told Pulido that he had to pay to support "the homies in jail" because he was selling methamphetamine, and took methamphetamine from Pulido without paying. Pulido testified that he did not have any choice but to pay the tax. Because Gongora was present during Torres's taxation of Pulido, the jury could infer Gongora knew about Torres's taxation operation and knew that such taxation involved a taking by force or fear. Further, because during the June 27 conversation Torres informed Gongora that Bush was selling methamphetamine, the jury could reasonably infer that Gongora knew the intended "hit" activity was connected to Bush's methamphetamine sales activity and involved taxation (i.e., robbery).
Gongora also argues that an intervening recorded conversation between Torres and Gongora (occurring from 5:22 p.m. to 5:32 p.m. on June 27, about one-half hour before the Bush robbery) showed that Gongora was not part of the conspiracy to rob Bush. During this conversation, Gongora asked if he could borrow some car speakers from Torres. As stated, the evidence supports imposition of conspiracy culpability on Gongora based on his agreement and the overt act committed by Contreras and Jaime. The jury was not required to conclude that the speaker discussion evinced Gongora's intent to withdraw from the conspiracy. Withdrawal from a conspiracy is a question of fact. (People v. Cooks, supra, 141 Cal.App.3d at p. 316.) Although the conversation made no mention of the plans to rob Bush, the jury was not compelled to imply that Gongora's preoccupation with another matter shortly before the actual robbery meant that he no longer wanted to be part of the agreement and that he had effectively communicated this intent to Torres.
The record also supports the jury's finding that Gongora was vicariously culpable for the actual robbery of Bush committed by his coconspirators. The robbery occurred about two hours after Gongora agreed to join the conspiracy. Given the close timeframe and the absence of evidence compelling a finding that Gongora had withdrawn from the conspiracy, the jury could reasonably conclude that Gongora was still part of the conspiracy at the time the June 27 robbery was committed.
V. Conspiracy to Kidnap Jauregui
Torres and Gongora were convicted of conspiracy to kidnap Jauregui between August 2 and 4, 2003. Gongora asserts the evidence does not show that he conspired with Torres to kidnap Jauregui, as opposed to conspiring to commit some other offense against this victim such as assault or car theft. Also challenging this conviction, Torres asserts the trial court erred because its cautionary accomplice instructions failed to identify Gongora as an accomplice in the alleged conspiracy to kidnap Jauregui.
A. Substantial Evidence that Gongora Conspired to Kidnap Jauregui
The police wiretap revealed that in August 2003 Torres believed Jauregui was planning to have Torres killed. On August 3, Torres repeatedly left messages on Jauregui's phone stating that Jauregui should come and meet him if he had the "balls." The wiretap revealed that Torres was arranging for several individuals to get Jauregui and "put him somewhere where [Torres] want[ed] him." On August 3, Torres and his coconspirators formulated a plan to grab Jauregui when he arrived at a location near a trolley station. Jauregui never showed up. On August 4, Torres and his cohorts decided to get Jauregui when he got off work. On that same day, the police notified Jauregui that he was in danger.
As with other wiretap recordings, the conversations did not always identify Jauregui by name, but his identity was apparent from the context of the conversations and other information.
The recorded conversations revealed that on August 3, Torres told Gongora about the threat to his life. On that same day, Gongora assisted Torres in an assault on another individual whom they believed was also involved in the plot to kill Torres. Thereafter, Gongora participated in two specific discussions regarding the plans to kidnap Jauregui. In an August 4 conversation at 6:28 a.m., Torres told Gongora to "[g]et your ass over here 'cause these guys are gonna take care of [Jauregui] over there at his work." Gongora responded, "All right, I'll be over there." In a recorded conversation about two hours later, Torres asked Gongora what time he wanted "this to happen." Gongora responded the best time to "get on him" was when he (Jauregui) got off work.
The record supports that Gongora understood and agreed that the plan was to kidnap Jauregui. The recorded conversations between Torres and other coconspirators (apart from Gongora) regarding Jauregui contain statements that the men were going to "take the . . . dude with them"; "put him somewhere where [Torres] want[s] him"; "take him somewhere"; "pick up this bastard and . . . take him over there"; "take him away"; "take his ass"; and "snatch him." These statements support that the plan was to seize and transport Jauregui to a location where Torres could confront him. Based on the August 4 communication between Gongora and Torres in which Torres asked Gongora what time he wanted the event to occur and Gongora responded the best time to "get on" Jauregui was when he got off work, the jury could reasonably infer that Gongora was aware of and in accord with these kidnapping plans.
B. Failure to Instruct that Gongora Was an Accomplice in the Jauregui Conspiracy Count
When giving the cautionary instructions pertaining to testimony from an accomplice, the trial court did not identify Gongora as an accomplice in the count charging Torres with conspiracy to kidnap Jauregui. Torres contends this was error.
Gongora testified at trial. In his testimony, Gongora acknowledged that Torres was afraid because someone was threatening his life and that Torres and he had a phone conversation during which they discussed "get[ting] [Jauregui] after he gets off work." On appeal, the Attorney General agrees the trial court should have instructed that Gongora was an accomplice in the Jauregui count, but asserts the instructional error was harmless.
As noted, the failure to give accomplice instructions is harmless if there is sufficient corroborating evidence in the record, and the corroborating evidence may be slight. (People v. Zapien, supra, 4 Cal.4th at p. 982.) The recorded phone conversations contain repeated admissions by Torres showing his involvement in the conspiracy to kidnap Jauregui. Because Gongora's testimony regarding this count was corroborated by Torres's admissions, the instructional error was harmless.
VI. Substantial Evidence Showing Torres Conspired to Furnish a Firearm to an Ex-Felon
Torres challenges the sufficiency of the evidence to support his conviction of conspiracy to furnish a firearm to an ex-felon (count 14). He contends: (1) there was no evidence to support the corpus delicti apart from his own admissions; (2) there was no evidence of an overt act; and (3) there was no evidence that his alleged coconspirator knew he was an ex-felon.
In a recorded conversation on the morning of July 10, 2003, Torres told an individual named Richard Alvarado that Torres's family had been threatened. Alvarado told Torres he could get him some guns, and Torres stated he needed some. Alvarado stated he could get the guns in about one hour. Later during the day Alvarado informed Torres that the delivery of the guns had been delayed. At 9:55 p.m., Alvarado told Torres he had a gun for Torres, and agreed to bring it to Torres. Later, Alvarado told Torres he could not get a ride. Torres stated he would go to where Alvarado was, and Alvarado gave Torres directions. Torres asked what kind of gun it was, and Alvarado stated it was "a .20-gauge, sawed off." At 11:44 p.m., Torres told Alvarado that he was "on [his] way" and the two agreed to meet at a particular taco shop.
Torres's challenges to this conspiracy conviction based on the corpus delicti rule and on the absence of an overt act are unavailing. The corpus delicti rule requires proof that a crime actually occurred by evidence other than the defendant's own out-of-court statements. (People v. Herrera (2006) 136 Cal.App.4th 1191, 1200.) The independent proof of the crime may be slight or minimal. (Ibid.) Here, the conspiracy offense was supported by both Torres's and Alvarado's statements during the recorded conversations. Thus, the corpus delicti was shown independent of Torres's own statements. To the extent Torres suggests the corpus delicti was not established because there was no evidence he actually acquired a gun from Alvarado, the contention is unavailing. Conspiracy is an " 'inchoate crime [that] does not require commission of the substantive offense that is the object of the conspiracy.' " (People v. Morante, supra, 20 Cal.4th at pp. 416-417.)
The overt act necessary for conspiracy culpability can be any outward act done to pursue the crime and manifesting an intent to accomplish the crime. (People v. Von Villas, supra, 11 Cal.App.4th at pp. 243-244.) Alvarado's statement that he had obtained a gun for Torres was sufficient to show an overt act had been committed.
Finally, there is substantial evidence to support the knowledge element of the substantive offense of supplying a firearm to an ex-felon. This offense is committed when the defendant "knowingly" furnishes a firearm to an ex-felon (§ 12072, subd. (a)(1)) or furnishes a firearm with "cause to believe" (§ 12072, subd. (a)(2)) the recipient is an ex-felon. A violation of the "knowingly" provision is a felony punishable by a two-, three-, or four-year sentence (§ 12072, subd. (g)(2)(A)), whereas a violation of the "cause to believe" provision is a "wobbler" punishable by a fine, jail sentence, or prison sentence (§ 12072, subd. (g)(3)(A)). Here, the jury was instructed solely under the "knowingly" prong of section 12072. Accordingly, we shall evaluate the evidence under this prong.
Section 12072 states in relevant part: "(a)(1) No person, corporation, or firm shall knowingly supply, deliver, sell, or give possession or control of a firearm to any person within any of the classes prohibited by Section 12021 or 12021.1 [ex-felons]. [¶] (2) No person, corporation, or dealer shall sell, supply, deliver, or give possession or control of a firearm to any person whom he or she has cause to believe to be within any of the classes prohibited by Section 12021 or 12021.1 of this code . . . ." (Italics added.)
Preliminarily, we note we are not persuaded by the Attorney General's argument that a violation of section 12072, subdivision (a)(1) occurs when a person knowingly supplies a firearm, even without knowledge of the recipient's ex-felon status. This assertion is contrary to the plain language of section 12072, subdivisions (a)(1) and (a)(2), which differentiates between "knowingly" supplying a firearm to an ex-felon and supplying a firearm with "cause to believe" the person is an ex-felon. Further, the assertion is contrary to the general rule that, absent compelling evidence of a contrary legislative intent, "the prosecution [must] prove some form of guilty intent, knowledge, or criminal negligence" to support a criminal conviction. (In re Jorge M. (2000) 23 Cal.4th 866, 872, 879; In re Jennings (2004) 34 Cal.4th 254, 267.) The Attorney General's interpretation is also unsupported when the statute is viewed in its entirety. As stated, a violation of section 12072, subdivision (a)(1) is a felony, whereas a violation of section 12072, subdivision (a)(2) may be punished as a felony or a misdemeanor. It makes no sense that the harsher felony provision has no knowledge requirement at all regarding ex-felon status, whereas the more lenient "wobbler" provision does impose a knowledge (i.e., imputed knowledge) requirement.
We note that in People v. Snyder (1982) 32 Cal.3d 590, 592-593, the court held that a defendant's claim that she thought she was convicted of a misdemeanor, not a felony, was not a defense to a charge of possession of a firearm by an ex-felon. The court reasoned that the defendant's claim constituted a mistake of law, and the defendant was charged with knowledge that the offense she was convicted of was a felony. (Id. at p. 593.) There is nothing in Snyder which supports interpreting section 12072, subdivision (a) to dispense with the plainly-stated requirement that the defendant must have actual or imputed knowledge of the firearm recipient's ex-felon status.
A conspiracy conviction requires that both "the defendant and another person had the specific intent to agree or conspire to commit an offense, as well as the specific intent to commit the elements of that offense . . . ." (People v. Morante, supra, 20 Cal.4th at p. 416, italics added.) A person " 'may not conspire with himself.' " (People v. Palmer, supra, 24 Cal.4th at p. 864.) Thus, to sustain a conviction under count 14, the prosecution had to prove that both Torres and Alvarado knew Torres was an ex-felon.
Knowledge may be proven by circumstantial evidence. (In re Jorge M., supra, 23 Cal.4th at p. 884.) A prosecution witness testified that Alvarado was a National City gang member who worked for Torres. Because a primary activity of a criminal street gang is to engage in felonious criminal activities, the jury could reasonably infer that gang members who associate with each other are aware when one of their associates is caught, prosecuted, and convicted of a felony. The jury could reasonably conclude that the nature of the association between Torres and Alvarado established that Alvarado was apprised that Torres had suffered a felony conviction.
Although the record it not entirely clear, Alvarado may have been a member of the National City Locos gang, whereas Torres was a member of the Old Town National City gang.
There is substantial evidence to support Torres's conviction of conspiracy to supply a firearm to an ex-felon.
VII. Substantial Evidence of Gang Enhancement Findings for Gongora
The jury found the gang enhancement allegations true for Gongora's offenses of conspiracy to distribute methamphetamine, conspiracy to rob and robbery of Bush, and conspiracy to kidnap Jauregui. Gongora contends the evidence did not show that he knew the conspiracies had any connection to the Mexican Mafia gang.
To establish a gang enhancement, the prosecution must prove (1) the crime was "committed for the benefit of, at the direction of, or in association with" a criminal street gang, and (2) the defendant had "the specific intent to promote, further, or assist in any criminal conduct by gang members." (§ 186.22, subd. (b)(1).)
The record supports that Gongora knew Torres was working for the Mexican Mafia and that Gongora intended to further the gang's criminal activities by assisting Torres in his various criminal activities. As noted, the prosecution evidence showed that Torres called his Mexican Mafia boss "the Señor." In a November 15, 2003 recorded conversation between Torres and Gongora, Torres advised Gongora to be careful of a particular person because this person had "double-crossed the Señor." Torres also commented that a particular person had "wanted to put [Gongora] on the cross with the Señor." Based on this conversation the jury could reasonably infer that Gongora knew who the Señor was (i.e., a Mexican Mafia boss) and knew that Torres's activities were connected to the Señor and hence to the Mexican Mafia. Supporting this inference, Gongora himself acknowledged in his testimony that when Torres referred to the Señor during a conversation in September 2003, Gongora understood what Torres meant.
Further, Gongora was involved in Torres's taxation activity directed towards drug dealers Pulido and Bush. Pulido testified that when Torres and Gongora came to his residence to inform him that he had to pay a tax, Torres explained that the money was for "the homies in jail." Because the Mexican Mafia is a prison gang, the jury could deduce that Gongora knew that Torres was a crew leader collecting money on behalf of Mexican Mafia inmates. Considering this evidence as a whole, the jury could reasonably infer that Gongora understood that Torres was not engaging in the criminal activity on his own but was working as part of a larger organizational effort headed by the Mexican Mafia. This evidence supports the jury's findings that Gongora joined in the methamphetamine distribution, Bush robbery, and Jauregui kidnapping conspiracies with the intent to further the Mexican Mafia's criminal conduct.
VIII. Prosecutor's Closing Arguments
Defendants contend the prosecutor committed misconduct during closing arguments when he urged the jury to convict the defendants to help stop gang activity and repair the societal damage caused by gangs; by referring to crimes that were not attributed to the Mexican Mafia and were not committed by the defendants; and by citing inflammatory matters that were not in evidence. The complained-of statements occurred during the following arguments by the prosecutor:
"[T]he good citizens of this community [might] just say 'they want to kill drug dealers or rob drug dealers or extort drug dealers, just let them be. You shouldn't be wasting our time.'. . . [¶] . . . We're not wasting our time. You can't think that way, because it just grows and grows and grows. This is a bigger part of the criminal justice system. Mr. Contreras is a bit player clearly. . . . Mr. Gongora is a bit player. Mr. Torres a little bit higher. Mr. Marquez, Mr. Marin, bigger players. But it doesn't matter. . . . If they commit crimes in this community, they should be held accountable. . . . Whether it's on a drug dealer . . . or somebody else who maybe some people wouldn't want living next door to them as their neighbor.
[¶] . . . [¶]
"And I also submit to you that if these wiretaps weren't up, if this investigation wasn't occurring, that worse things would have happened to these intended targets of the conspiracy.
[¶] . . . [¶]
"[O]bviously people were going to be hurt and these things were averted. . . . Should we just say, 'Oh, well, he's a petty drug dealer and in prison. Who cares?' I don't think that's what the process is about, and I hope you agree with me, because you can't look at it just with the specifics of who the particular person is and then decide. . . . I don't like that person so, therefore, they don't deserve the protections of the law. . . .
"[I]f people were extorted, if they were robbed, if they were stabbed, if they were kidnapped, and you find the evidence sufficient to prove beyond a reasonable doubt that they're guilty, you should find them guilty just in and of itself.
"But also consider the other things that we're talking about with regards to this organization, all of these people, what they're willing to do. We talked about stray bullets killing innocent people. [¶] . . . [¶] We talked about people ending up dead and no one being held responsible and no one willing to come forward and talk about it. I'm not saying every one of those crimes are things that the Mexican Mafia commits. But you did hear the experts talk about that, about cars being left burnt in the streets, that intimidates the community. You heard about witnesses not wanting to come forward in those cases about the Mexican Mafia. And in this case you heard about all those things. That's not right. That is not right that we can allow some criminal element to run even parts of the streets.
[¶] . . . [¶]
"[People] would tell you that they're terrorized oftentimes by these local street gangs because they ruin their property by putting graffiti on it, there's shootings between gangs, they rob people in the streets. [¶] It's not complete . . . lawlessness. No one is saying that. I'm not trying to exaggerate the situation. However, it happens and people are afraid, and that's not just because of the local street gangs, it's also because of this influence. . . . And in a way it's unfortunate because of the process. People may be young and dumb and full of testosterone and hurt people or sell drugs . . . and go to camp when they're younger, and maybe they meet other kids from National City, . . . all of sudden now there's more of a criminal association. And then in the end they get back out, and . . . they decide to sell drugs and work for people who can give them money. . . . Then they go back to prison, and these same people are running things in prison. They get out of prison, and now they're hardened again. You know, that's a societal issue and that's not for us to solve here, but that's the fact of the matter. . . .
[¶] . . . [¶]
"Now, saying all of that, that's the backdrop of this entire case. . . . It may be in opening statement when I told you the underbelly of society and the Mexican Mafia was this, and that's the first time many of you had ever heard of the Mexican Mafia. . . . It may be good for others to know that there is this criminal element and that . . . there is a fight between good and evil here . . . . [¶] Selling drugs and hurting people is not right in and of itself, and nobody should look the other way. And whenever there is an opportunity to infiltrate some organization like this, I think all of you would agree that the FBI . . . or the local law enforcement agencies should . . . stop them from committing more crimes and hurting more people, whether that's drug dealers, or people asleep in their bed when a bullet comes through and hits their child, whichever one it is.
[¶] . . . [¶]
"[A]ll of you, I think, understand that street gangs cause an unbelievable amount of damage to our society. They commit many violent crimes, they are part of ruining children's lives and pulling them into street gangs and ruining the chances they have to have a future because instead of . . . finish[ing] high school and start[ing] work . . . or go[ing] . . . on to college . . . people go to camp and prison." (Italics added.)
This last-quoted paragraph of the prosecutor's argument was made when the prosecutor was delineating the purpose of the gang enhancement allegations.
When the prosecutor argued that but for the wiretaps worse things would have happened to the conspiracy targets, defense counsel unsuccessfully objected. When the prosecutor stated that the jury should find guilt in and of itself if the evidence showed guilt beyond a reasonable doubt, and then continued to argue that the jury should also consider the other things done by the Mexican Mafia or other gangs (such as stray bullets killing innocent people), defense counsel again unsuccessfully objected and then asked for a sidebar. The trial court denied his request. Later during a recess, defense counsel argued that it was improper for the prosecutor to tell the jury to consider the facts and determine whether guilt was shown beyond a reasonable doubt, and then to go on to say that the jury should also consider the effect the Mexican Mafia has on society. Defense counsel asked that the jury be admonished. The trial court denied the request, stating the prosecutor's statements were a prelude to comments that followed and were fair argument.
A prosecutor is given wide latitude to vigorously argue the case and may make remarks based on the evidence and inferences drawn from the record. (People v. Hill, (1998)17 Cal.4th 800, 819.) As long as the prosecutor does not urge the jury to render a verdict based on community sentiment or some other matter unrelated to the evidence, the prosecutor may generally comment on the danger to the community created by criminal conduct and remind the jury of its important role in the criminal justice system. (See People v. Adanandus (2007) 157 Cal.App.4th 496, 513; People v. Lang (1989) 49 Cal.3d 991, 1041.)
However, the prosecutor should not encourage the jury to evaluate the case based on an emotional reaction to a societal problem rather than on the evidence. (See United States v. Weatherspoon (9th Cir. 2005) 410 F.3d 1142, 1149-1150.) Further, a prosecutor should not refer to facts not in evidence unless they are matters of common knowledge or drawn from common experience. (People v. Hill, supra, 17 Cal.4th at pp. 819, 823.) When evaluating claims of prosecutorial misconduct "the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion." (People v. Samayoa (1997) 15 Cal.4th 795, 841.) Generally, to preserve the issue for appellate review, a defendant must object to prosecutorial misconduct and request that the jury be admonished, unless these actions would be futile or ineffective in curing the harm. (People v. Hill, supra, 17 Cal.4th at p. 820.)
Here, the prosecutor's comments about the problems caused by gangs were made in the context of urging the jury to take the case seriously even though the victims included drug dealers. The jury had been presented with evidence describing the crimes committed by the Mexican Mafia. To the extent the prosecutor was merely citing this gang-related evidence to encourage the jury to seriously evaluate the evidence relevant to the charges even though the victims were not innocent community members, there was no misconduct.
However, we agree with defendants that the trial court should have sustained defense counsel's objection and admonished the jury regarding the portion of the argument where the prosecutor first stated the jury should render guilty verdicts based on the evidence, and then urged the jury to also consider crimes generally committed by the Mexican Mafia or other gangs. The jury's sole job was to consider whether the evidence regarding the charged offenses and enhancements supported conviction. The prosecutor's comments in this portion of his argument could be construed to erroneously suggest that societal problems caused by gangs are also a relevant consideration.
However, examining the arguments as a whole, there is no reasonable likelihood the jury construed the prosecutor's argument to mean it was permitted to base its verdicts on factors other than the evidence pertaining to the charges. The prosecutor acknowledged in his argument that it was not the jury's role to solve societal problems. Further, it is clear from the argument that the prosecutor's overall point was that the jury should not "look the other way" merely because the victims were also criminals. As stated, it was permissible for the prosecutor to cite the gang activity evidence in order to emphasize the need to seriously evaluate the evidence regardless of who the victims were. We are satisfied the jury understood this point and did not base its verdicts on an assessment of the effects of gang activity in the community.
We note that in a couple of portions of the prosecutor's argument, the prosecutor referred to matters that were not in evidence and that can be viewed as designed to elicit an emotional response from the jury—i.e., the references to stray bullets killing innocent people and to "people asleep in their bed when a bullet comes through and hits their child . . . ." Assuming that these comments were improper, there is no reasonable likelihood they were improperly construed by the jury. First, as noted, the comments were in the context of asking the jury to review the evidence seriously even though the victims included drug dealers. Second, the comments were brief and not presented in such an inflammatory fashion that they would have distracted the jury from its task of evaluating the charges based on the evidence.
IX. Contreras's Additional Sentencing Challenges
Contreras received an indeterminate term of 15 years to life for count 9 (the Bush residential robbery with a gang enhancement). For the offenses subject to determinate terms, the court selected count 6 (conspiracy to extort Sanchez) as the principal term. For this count, the court imposed the three-year middle term concurrently to the indeterminate term and stayed the sentence on the accompanying gang enhancement. For count 1 (conspiracy to distribute methamphetamine), the court imposed a concurrent three-year middle term, and stayed the sentence on the gang enhancement. For count 8 (conspiracy to rob Bush) and its gang enhancement, the court stayed sentence under section 654. For count 18 (possession of methamphetamine for sale), the court imposed a consecutive term of eight months (one-third the middle term), and a one-year term (one-third the middle term) for the gang enhancement. For count 19 (possession of a deadly weapon while in custody), the court imposed a consecutive term of one year (one-third the middle term). Finally, the court added a one-year term for a prior prison term enhancement to both the indeterminate term as well as to the total determinate term.
Contreras argues: (1) the consecutive sentences imposed for counts 18 and 19 violated his jury trial rights under the Apprendi rule; (2) the court erred in imposing the one-year prior prison term enhancement on both the indeterminate and determinate terms; and (3) the court erred in staying the punishment on the gang enhancements on counts 1 and 6 rather than striking these gang enhancements.
A. Apprendi Challenge to Consecutive Sentences
In his reply brief, Contreras acknowledges that an Apprendi challenge to consecutive sentences was recently rejected by the California Supreme Court in People v. Black (2007) 41 Cal.4th 799, 820-823. He presents the argument for purposes of preserving the issue for further review. Based on Black, we reject his Apprendi challenge.
B. Imposition of Prior Prison Term Enhancement on Both Indeterminate and Determinate Sentences
Contreras asserts the trial court erred in imposing the one-year prior prison term enhancement (§ 667.5, subd. (b)) on both his indeterminate and determinate terms. He asserts the enhancement should have been imposed only once.
Preliminarily, we note that, contrary to Contreras's contention, the language of section 667.5, subdivision (b) does not indicate that the prior prison term enhancement should be imposed only once on the total term. This section states: "Enhancement of prison terms for new offenses because of prior prison terms shall be imposed as follows: [¶] . . . [¶] (b) [W]here the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefore, the court shall impose a one-year term for each prior separate prison term served for any felony . . . ." (§ 667.5, subd. (b).) This language does not shed light on whether single or multiple prior prison term enhancements should be imposed when there are multiple new offenses. Accordingly, we must look elsewhere to determine the statutory intent. We find guidance in three decisions which addressed this issue in the context of prior conviction enhancements which—like section 667.5, subdivision (b)—by their terms do not indicate the number of enhancements which should be imposed in a case involving multiple offenses. (People v. Tassell (1984) 36 Cal.3d 77, overruled on other grounds in People v. Ewoldt (1994) 7 Cal.4th 380, 401 [prior sex offense enhancement, § 667.6, subd. (a)]; People v. Williams (2004) 34 Cal.4th 397 [prior serious felony enhancement, § 667, subd. (a)]; People v. Misa (2006) 140 Cal.App.4th 837 [same].)
In Tassell, the court held that a status enhancement related to the nature of the offender, not the nature of the offense (such as a prior conviction enhancement), should be added only once to increase the aggregate term from multiple determinate sentences. (People v. Tassell, supra, 36 Cal.3d at pp. 89-92.) In People v. Williams, supra, 34 Cal.4th at pages 401-402, the court held this limitation did not apply to multiple indeterminate sentences imposed under the Three Strikes law, and that a prior serious felony enhancement should be added to each indeterminate sentence. The Williams court reasoned that Tassell's restriction was derived from the language of the determinative sentencing statute (§ 1170.1) and not on the language or legislative history of the prior conviction enhancement statute; section 1170.1 was only applicable to determinate sentences; the Three Strikes scheme requires that enhancements be added as separate determinate terms; and adding the enhancement for each new offense was consistent with the logic of the Three Strikes law which separately increases the sentence imposed for each new felony conviction. (People v. Williams, supra, 34 Cal.4th at pp. 402-405.)
In People v. Misa, supra, 140 Cal.App.4th at pages 844-847, we applied the Williams rationale to require imposition of a prior serious felony enhancement on both an indeterminate term and a determinate term for a defendant who was subject to the Three Strikes law as a second striker. The indeterminate term in Misa was based on the statutory penalty for torture. (Id. at p. 846.) We reasoned that the defendant's recidivist status as a second striker warranted extending the Williams holding to require imposition of the enhancement on both the indeterminate and determinate sentences. (Id. at p. 847.)
Here, Contreras's indeterminate term was not derived from the Three Strikes law, nor is he a recidivist under that particular law. Rather, his indeterminate term was based on the gang enhancement statute, which requires a sentence of 15 years to life when a home invasion robbery is committed to benefit a gang. (§ 186.22, subd. (b)(4)(B).) Akin to the Three Strikes law, the purpose of section 186.22 is to "impose harsher punishment for gang-related offenses." (People v. Arroyas (2002) 96 Cal.App.4th 1439, 1444.) Because indeterminate sentences are not governed by the sentencing rules applicable to determinate sentences, and because Contreras's indeterminate sentence was derived from a punishment-augmenting statutory scheme, we conclude that the Williams holding applies equally here. The trial court did not err in imposing the prior prison term enhancement on both the indeterminate and determinate terms.
C. Counts 1 and 6 Gang Enhancements Should Be Stricken
Contreras contends the trial court erred because it stayed the sentences on the gang enhancements for counts 1 and 6 rather than striking these enhancements. The trial court stayed the sentences on these gang enhancements based on the prosecutor's representation to the court that staying the punishment, rather than striking the enhancement, was the appropriate procedure under section 186.22, subdivision (g). Contrary to the prosecutor's statement to the court, section 186.22, subdivision (g) provides that the trial court "may strike the additional punishment for the [gang] enhancements . . . in an unusual case where the interests of justice would best be served, if the court specifies on the record and enters into the minutes the circumstances indicating that the interests of justice would best be served by that disposition." (Italics added.) Because it is apparent that the trial court's sentencing decision as to these enhancements was based on section 186.22, subdivision (g), under the plain language of the statute the court should have stricken the enhancements rather than staying the sentences. (See People v. Jones (1992) 8 Cal.App.4th 756, 758.)
DISPOSITION
As to Gongora and Torres, the judgments are affirmed in all respects.
As to Contreras, we modify the judgment to strike the gang enhancements on counts 1 and 6. As so modified, the judgment is affirmed. The trial court is directed to prepare a corrected abstract of judgment and transmit a copy to the Department of Corrections and Rehabilitation.
Although Contreras's abstract of judgment does not refer to the stayed gang enhancement sentences for counts 1 and 6 on the first page of the determinate sentence, the second page refers to these stays. This reference should be removed. The reference to the stayed gang enhancement sentence for count 8 is correct and should remain because sentence on this count was stayed under section 654.
WE CONCUR: NARES, Acting P. J., IRION, J.