Opinion
NOT TO BE PUBLISHED
City & County of San Francisco Super. Ct. No. 200828
Richman, J.
Vincent Timmons joined three codefendants in a plea deal that resolved numerous kidnapping, sexual assault, gang, and firearm charges, plus enhancements, for their guilty pleas to one count each of forcible kidnapping (count 1; Pen. Code, § 207, subd. (a)) with an admitted gang enhancement (§ 186.22, subd. (b)(1)(c)), and aggravated assault (count 12; § 245, subd. (a)(1)), for fixed aggregate prison terms of 14 years. Five weeks later, on the eve of sentencing, Timmons announced a desire to withdraw his plea. He filed a written motion (§ 1018) claiming coercion from threats by a codefendant. The People opposed the motion, and the court denied it. Sentenced to the agreed 14-year term (less 815 days of credit), Timmons secured a certificate of probable cause (§ 1237.5; People v. Cuevas (2008) 44 Cal.4th 374, 379, 381) and appeals challenging the denial.
All further section references are to the Penal Code unless otherwise stated.
The People assume that, while not specified on the record, the deal required the consent of all defendants. Timmons’s briefing likewise calls it “a package deal” to which all had to consent, as does his probable cause certificate executed by trial counsel. Finding no error, we need not ponder the unbriefed issue of how success by Timmons on this appeal might affect the deal as to codefendants.
We uphold the denial and affirm the resulting judgment.
I. BACKGROUND
We summarize evidence from the preliminary hearing, exhibits, and the People’s trial brief, which detailed later obtained forensic evidence. Sixteen-year-old D.I. was out with Mario Evans and other friends in San Francisco on April 19, 2006. Late that night or early the next morning, they were outside near Turk and Taylor Streets, D.I. smoking a cigarette, when a brown van occupied by four men—later identified as Timmons, Ryant Bluford, Eddie Perkins, and Allen Releford—pulled up. Timmons got out and, as Releford ordered D.I. inside at gunpoint, grabbed her by the elbow and forced her in. The van drove off, as one of the men ordered D.I. to undress.
Evans tried to follow the van in his own car but lost sight of it. He parked on Market Street and eventually flagged down police who took him to the Tenderloin station to give a statement. He described the van as brown, with a stripe and a sliding side door, and he had seen Timmons and the gunman.
D.I. was driven to a dead-end street and serially assaulted by the four, against her will. Releford, dressed all in black, went first, telling her: “Bitch, this is going to be the best night you ever had. You won’t forget this.” He forced her to orally copulate him and then have vaginal sex. At some point, he also penetrated her vagina with the barrel of the gun and with a “Hennessy liquor bottle.”
Timmons, clad in jeans, a red T-shirt and a black jacket with white fur collar, was second. He forced her to orally copulate and have vaginal sex with him. He handled the gun at one point but wore a glove while he did. Bluford, wearing a black and white T shirt, was third, warning: “If you’re cool, we won’t shoot you. Do what you’re supposed to do, we will let you live, we won’t kill you.” He then forced her to orally copulate him, then had vaginal and anal sex with her.
Perkins, wearing blue jeans and a white T-shirt with “Bay Area” on it, was fourth, first proposing: “Let’s just kill her, get it over with. Let’s just shoot the bitch.” He then forced her to orally copulate him and have vaginal sex.
After the assaults, the van drove off and, around 2:30 a.m., was heading east down Market Street. At the same time, two officers were transporting Evans west on the same street, in an unmarked car, from the station back to Evans’s car. At 10th Street, Evans saw the van passing in oncoming traffic and shouted, “That is the van, that is the van!” The officers made a U-turn, fell in behind the van, and radioed for backup. When the van stopped at a red light at 7th Street, the officers saw curtains closing at the rear windows. They activated their car’s red light to signal police presence and got out, with weapons drawn. The van did not move when the traffic signal turned green, but the sliding door opened, and D.I. came out and walked straight down the stairway entrance to a B.A.R.T. station. (Perkins had opened the door and ordered “Bitch, get out,” when the van stopped.) An officer caught up with D.I. on the stairs. She was “very disheveled,” her pants unzipped and unbuttoned, and shirt twisted around. She looked shocked and confused and said she had been raped by four men in the van.
The van continued slowly down Market, its sliding door still open, and slowed to a stop just past 6th Street. Backup units had arrived by then, and the van’s occupants were ordered out. Timmons was the driver; he exited the front with Bluford. The others came out the side door. All were arrested, and D.I. positively identified all four at a “cold show” at 6th Street (while Evans remained in the back of the officers’ car). At a later cold show of two other detainees nearby, D.I. said that neither one was involved. D.I. was crying later as she filled out a statement at the station, and she was medically examined at San Francisco General Hospital.
Searches of the van disclosed a handgun with its serial number scratched off, a Hennessy bottle, various used and unused condoms, and a baggie with 70 individually wrapped rocks of cocaine base.
DNA testing revealed both Timmons’s and D.I.’s DNA on two of the condoms. Releford’s was found together with D.I.’s on condoms and the neck of the Hennessy bottle. The gun barrel and grip had D.I.’s DNA, plus DNA from at least two males. Bluford’s was found in anal and vaginal swabs from D.I. Perkins’s DNA was not found with certainty, but “his genetic profile individual markers” were present.
Timmons made no post-arrest statements, but the others did, after Miranda advice. (Miranda v. Arizona (1966) 384 U.S. 436.) Bluford claimed he was asleep when they picked D.I. up, did nothing himself, and did not see anyone having sex with her, or see a gun. Perkins, too, said he was asleep, saw and did nothing, saw no gun, and did not remember any girl being in the van. Releford gave two accounts. In a first statement, he said he sat behind the driver’s seat, never saw a gun, and that D.I. got in voluntarily and was “very friendly [and] rubbing her body against them,” and that he did not see it, but figured she had sex with the other three. Then Releford put on a condom and had vaginal sex with her but did not ejaculate. He threw the condom out of the van and never had oral sex. In a later statement, Releford said Timmons had a gun and pushed D.I. into the van. After Perkins drove and parked the van, everyone but him (Releford) had oral and vaginal sex with D.I.; Releford refused to join in until Timmons forced him, at gunpoint, to have intercourse with her.
On gang membership, expert testimony was that Timmons and Perkins were members of the West Mob, a criminal street gang, while Bluford was “an associate.” Timmons sported a tattoo (“R.I.P. Nitty”) that referenced “Frank Nitty, a/k/a Frank Hall,” a well-known West Mob leader who had been murdered within the past few years.
II. DISCUSSION
A. Governing Standards
On application of a defendant anytime before judgment, “the [trial] court may... for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted.... This section shall be liberally construed to effect these objects and to promote justice.” (§ 1018.) “Mistake, ignorance or any other factor overcoming the exercise of free judgment is good cause for withdrawal of a guilty plea. [Citations.] But good cause must be shown by clear and convincing evidence. [Citations.]” (People v. Cruz (1974) 12 Cal.3d 562, 566.) It is not enough that the defendant has changed his mind (In re Brown (1973) 9 Cal.3d 679, 686) or was reluctant or yielded to his counsel’s persuasions in pleading guilty (People v. Urfer (1979) 94 Cal.App.3d 887, 892).
In a “ ‘package-deal’ ” plea bargain, as here (fn. 2, ante), the trial court guards against the influence of “[e]xtraneous factors not related to the case or the prosecutor’s business” (In re Ibarra (1983) 34 Cal.3d 277, 287, overruled on other grounds in People v. Howard (1992) 1 Cal.4th 1132, 1177-1178) by testing voluntariness in a “totality of the circumstances” (In re Ibarra, supra, at p. 288). Factors include (1) that the inducement for the plea is proper, as there being a reasonable and good faith case against third parties receiving leniency (id. at pp. 288-289); (2) the factual basis as to the defendant and whether punishment is disproportionate to culpability (id. at p. 289); (3) coercive pressure should a third party be a family member or close friend, or should there be a “specific threat” (as opposed to mere thought of one) if defendant does not accept the plea bargain (ibid.); (4) whether a promise of leniency to a third party is an insignificant consideration, as opposed to a substantial factor, in the defendant’s decision (id. at pp. 289-290); and (5) any other factors that may be relevant, like the defendant’s age and whether charges have already been pressed against third parties (id. at p. 290).
Voluntariness, in the plea-withdrawal context, involves “factual questions for the trial court to resolve,” and the court is “not bound to accept and give credence to the affidavits submitted in support of the motion,” even if they are uncontradicted. (People v. Caruso (1959) 174 Cal.App.2d 624, 636.) “[T]he trial court, as trier of the fact, is the judge of the credibility of the witness, whether he testify in person or by affidavit. [Citations.]” (Ibid.) The court weighs “the defendant’s obvious interest in the outcome of the proceeding. [Citations.]” (People v. Beck (1961) 188 Cal.App.2d 549, 553.)
“A decision to deny a motion to withdraw a guilty plea ‘ “rests in the sound discretion of the trial court,” ’ and is final unless the defendant can show a clear abuse of that discretion. [Citation.] Moreover, a reviewing court must adopt the trial court’s factual findings if substantial evidence supports them. [Citation.]” (People v. Fairbank (1997) 16 Cal.4th 1223, 1254 (Fairbank).)
We reject Timmons’s ambitious arguments for independent review on appeal. He concedes our Supreme Court’s 1997 recitation in Fairbank of the abuse of discretion standard, with concomitantly deferential appellate review, and acknowledges decades of unbroken Supreme Court and Court of Appeal precedent to the same effect, but he calls all of it dictum because none of the cases analyzed the question or explored contrary argument. (See generally Kisman v. Unocal Corp. (2005) 37 Cal.4th 659, 680.) In his view, the standard is an open question, and he posits two avenues for resolving it in favor of independent—de novo—review, or as a mixed question of law and fact.
First, he deems controlling, under the doctrine of stare decisis (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), our Supreme Court’s decision in People v. Panizzon (1996) 13 Cal.4th 68 (Panizzon). Panizzon said of a plea-bargained waiver of the right to appeal: “Waivers may be manifested either orally or in writing. [Citation.] The voluntariness of a waiver is a question of law which appellate courts review de novo. [Citation.]” (Id. at p. 80.) It held, based on the written terms of the negotiated plea, record recitations of advisements and assurances by counsel, and oral statements by the defendant at plea entry, that the right of appeal waiver was indeed voluntary. (Id. at pp. 79-84.)
Panizzon is not controlling. Actually, by Timmons’s own reasoning, Panizzon is dictum on the very point for which he cites it, for Panizzon did not appear to consider any argument that the waiver question was not one of law. But beyond that irony, Panizzon addressed voluntariness (of a waiver) in reviewing a plea entry proceedings governed by case-law mandates that a record manifest certain advisements and waivers so as to create an adequate record for appellate review. (See historical discussion in People v. Howard, supra, 1 Cal.4th at pp. 1177-1179.) A motion to withdraw such a plea, by contrast, calls not just for reexamining the plea entry proceedings, but also examining affidavits or testimony frequently at odds with those proceedings. This requires a trial court to decide credibility and choose between conflicting inferences, tasks that an appellate court is ill equipped to make for itself, de novo, on appeal. (See generally People v. Cromer (2001) 24 Cal.4th 889, 893-894; People v. Rodriguez (1999) 20 Cal.4th 1, 12; Crocker National Bank v. City and County of San Francisco (1989) 49 Cal.3d 881, 888.)
A United States Supreme Court decision cited by Timmons is similarly not controlling. It involved review of plea-entry proceedings and a pretrial hearing, but not a withdrawal motion, and was predicated on federal habeas corpus law rather than a direct appeal. (Marshall v. Lonberger (1983) 459 U.S. 422, 430-432 [under former habeas law, voluntariness was a question of federal law, not fact; yet the case posed obvious disputed issues of historical fact subject to a presumption of correctness].)
As for the abuse of discretion standard stated in Fairbank and a half century of prior law being mere dictum, we follow the lead of People v. Nance (1991) 1 Cal.App.4th 1453. Nance responded, when asked to dismiss as dictum similar law (now reiterated in Fairbank) that a defendant’s burden on a plea withdrawal motion is to show good cause by clear and convincing evidence: “[T]he California Supreme Court has embraced [that standard] in three opinions. Indeed, this burden of proof is so entrenched in the case law of California that it has taken on the character of bright line law. We stand on the principle of stare decisis. If this burden of proof was erroneously adopted, we leave it to the Supreme Court to abandon it and state a new one.” (Nance, supra, at pp. 1457-1458.)
Timmons’s second avenue to de novo or mixed fact/law review is that, lacking controlling state authority, we should adopt the views of some state and lower federal courts; however, we have controlling state high court authority. Also, to the extent that the cases of other jurisdictions are at odds with Fairbank, the law of other jurisdictions does not bind us. (People v. Bradley (1969) 1 Cal.3d 80, 86; Acco Contractors, Inc. v. McNamara & Peepe Lumber Co. (1976) 63 Cal.App.3d 292, 296.) We adhere to the abuse of discretion standard declared in Fairbank and over 50 years of Supreme Court antecedents. (People v. Wharton (1991) 53 Cal.3d 522, 585; People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 796; In re Brown, supra, 9 Cal.3d at p. 685; People v. Francis (1954) 42 Cal.2d 335, 338; People v. Griggs (1941) 17 Cal.2d 621, 624.)
B. Guilty Plea, Motion, and Ruling
All four defendants, with separate counsel, entered their guilty pleas in a single proceeding on January 15, 2008. The case was 21 months old at that point. Timmons had remained in custody throughout and had been charged from the start with codefendants Bluford and Perkins. Releford, a minor at the time of the offenses, had been joined by a first amended complaint filed in October 2007, after being found unfit for juvenile court (Welf. & Inst. Code, § 707). All four defendants had entered or reiterated pleas of not guilty and denied all allegations.
The first record mention of plea negotiations came on January 8, 2008, at a hearing set for in limine motions. Judge Carol Yaggy, who had heard matters in this case since presiding at the preliminary hearing in December 2006 and January 2007, continued the matter for further discussions, being advised then and through chambers discussions the day before, that progress was being made. The matter was continued once more, on January 14, 2008, when it appeared that a full settlement could be reach by the next day.
All unspecified further dates are in 2008.
By the time of the plea change on January 15, a Tuesday, negotiations had been ongoing since the chambers discussions of January 7. Those included discussions with the judge on the previous Thursday and Friday, and then again Monday and on Tuesday morning, plus joint meetings over the weekend. The sheriff’s department had enabled all defendants to participate in the weekend meetings, presumably by providing transport, and all defendants had again participated that morning.
Changed pleas proceeded as to all defendants on January 15, included joint advisement of the constitutional rights and other consequences, with individual waivers, and then this additional voir dire by the court specifically as to Timmons:
“The Court:... Has anyone threatened or pressured you in any way to plead guilty, Mr. Timmons?
“Defendant Timmons: No.
“The Court: Are you related to any of the codefendants in this case?
“Defendant Timmons: No.
“The Court: Are you pleading guilty in order to protect or help any of them?
“Defendant Timmons: No.
“The Court: Are you pleading guilty because charges against any of them would be dismissed or reduced?
“Defendant Timmons: No.
“The Court: Are you pleading guilty because any of them have threatened you with any harm if you don’t plead guilty?
“Defendant Timmons: No.”
Actual entry of the plea ensued as follows: “The Court: Vincent Timmons, what is your plea to a violation of section 207(a) of the California Penal Code, a felony, which occurred on the 19th of April of 2006? [¶] Defendant Timmons: Guilty. [¶] The Court: What is your plea to a violation of section 245(a)(1) of the California Penal Code, a felony which is not a strike offense, it is a soft 245(a)(1)? [¶] Defendant Timmons: Guilty. [¶] The Court: And do you admit the enhancement allegation under [section] 186.22(b)(1)(C) relating to the gang enhancement? [¶] Defendant Timmons: Guilty. [¶] The Court: And do you admit that enhancement? [¶] Defendant Timmons: Yes.”
On February 22, the day set for sentencing, Timmons’s counsel, Ellen Leonida, asked for a continuance, explaining that Timmons wanted to file a motion to withdraw his plea and had only advised her of this the afternoon before. The court continued the matter so that Timmons could file a formal written motion.
In his formal motion, an affidavit by Timmons revealed in pertinent part: “On January 14 and again on January 15, 2008, co-defendant Eddie Perkins threatened me. Mr. Perkins said that he did not want to go to trial and that I had better take the deal the prosecution was offering. He said if I did not take the deal, something was going to happen to me or my family.” He added that Perkins knew were “my wife, mother, and four year old son live,” that Timmons was afraid for his own and his family’s safety, and that he “only pled guilty in order to protect myself and my family from Mr. Perkins.” The People filed opposition, and Judge Yaggy heard the matter on March 28, denying the motion and sentencing Timmons per the agreement.
The court ruled with these remarks: “In addition to the authorities cited by counsel in their papers, the court has also reviewed the Sandoval case [(People v. Sandoval (2006) 140 Cal.App.4th 111)] as well as the Schaffer case [meaning People v. Shaver (1966) 239 Cal.App.2d 213)] and also the Brotherton case [(People v. Brotherton (1966) 239 Cal.App.2d 195)]. And in looking at the case with all of these authorities in mind, the court is not persuaded by clear and convincing evidence that the defendant has made out grounds to withdraw his plea of guilty in this case.
“The time period—this was not a quick negotiation. This was a negotiation that took place over a week and over a weekend, and the court made sure that the sheriff’s department would accommodate all four counsel to meet with all four defendants over the weekend, not only separately, but in a joint meeting.
“At the time of the plea, as the transcript reflects, on January 15th of this year, the court inquired specifically of Mr. Timmons about any threats or any pressure that he might have been feeling, and there was no response to any of that. There was not any indication to counsel until, literally, the afternoon before the sentencing. That’s the first that counsel learned of it, and the court first learned of it the next day. I am not persuaded on that record, given the case authorities that I have, that that is sufficient. So the motion to withdraw the plea is denied.
“The courts have made clear... in the Schaffer case [sic] the court makes clear there’s a strong policy against permitting a defendant to gamble on the anticipated result of a guilty plea and then, being disappointed, reestablish the right to trial. It is a very spare declaration offered by the defendant, very spare and conclusory, and I think it does not comport with the requirements of showing, by clear and convincing evidence, that this should be allowed, so the motion to withdraw the plea is denied.”
Immediately before that ruling, defense counsel Leonida had stated: “Mr. Timmons is informing me he would be willing to, if the district attorney doesn’t want to accept this as a stipulation or offer of proof, he would be willing to testify, if the court allowed him for this limited point, that his family moved two days prior to sentencing and that was why he first felt free to give me this information at that late juncture.” However, there was no stipulation to this information or testimony by Timmons.
C. Analysis
Timmons claims that the ruling is “tainted” by a factual mistake. By reciting the policy against allowing a defendant to “gamble” on the result and then withdraw a plea when “disappointed” with the result, he urges, the court must have assumed that he was disappointed by the result, when in fact the sentence was fixedby the plea bargainat 14 years. We see no such mistake. Judge Yaggy was privy to the week-long negotiations, took the very pleas that set the 14-year fixed term, and clearly knew that the sentence had not been imposed yet, for she imposed it right after denying the withdrawal motion. We must agree with the Attorney General that the cited policy (People v. Shaver, supra, 239 Cal.App.2d at p. 218) more broadly referred to disappointment not in an unanticipated result, but in an anticipated one. In fact, one of the cases cited by the court recites the policy where, as here, no disappointing result had emerged by the time of the withdrawal motion. (People v. Brotherton, supra, 239 Cal.App.2d at pp. 197-198, 203.) Another case states the policy two ways: “A defendant... cannot be permitted to gamble on the anticipated result of a plea of guilty and when disappointed in the outcome reestablish a right to trial. [Citations.] Nor is the fact that after plea but before sentence the defendant has become apprehensive regarding the anticipated sentence sufficient to compel the exercise of judicial discretion so as to permit the plea... to be withdrawn. [Citation.]” (People v. Caruso (1959) 174 Cal.App.2d 624, 642, italics added.) No mistake appears.
The root problem for Timmons is that the court impliedly disbelieved his claim that Perkins threatened him or his family, and his difficult task is to demonstrate lack of substantial evidence for that credibility determination. Timmons marshals evidence from which one could infer that the claim was true: for example, he had consistently declined to waive time and seemed eager to go to trial up until entering his guilty plea; preliminary hearing testimony showed Perkins to be a violent gang member and thus perhaps able to carry out threats through others in prison; and all defendants were housed together during plea negotiations, giving Perkins the chance to make threats.
The joint housing was not established by sworn testimony or affidavit. Rather, Timmons’s counsel stated on the record: “As the court is aware, all four defendants, during the course of the week that the case was being negotiated, were housed together in the same room. They spent a lot of time together unobserved by any deputies, court staff, or counsel, and there was plenty of opportunity for the [threats to be made.]” In fact, the record does not establish that the court had such knowledge.
Those, however, were not the only inferences the court could reasonably draw on the question of Timmons’s credibility, and we are bound to resolve conflicting inferences in favor of the ruling. (People v. Harvey (1984) 151 Cal.App.3d 660, 667.) Notably, the court cited Timmons’s contrary statements a month earlier, the lateness of his coming forward with the claim, and the paucity of his affidavit. His affidavit did not recite any exact threat or explain the circumstances, his beliefs of Perkins’s dangerousness or gang associations, or even whether they were housed together (fn. 6, ante). Both delay in making a claim and lack of specificity are established bases for disbelieving such a claim. (People v. Brotherton, supra, 239 Cal.App.2d at pp. 202-203; People v. Beck, supra, 188 Cal.App.2d at p. 553; People v. Caruso, supra, 174 Cal.App.2d at p. 641.)
“If ‘considerable time’ has elapsed between the guilty plea and the motion to withdraw the plea, the burden is on the defendant to explain and justify the delay. [Citations.]” (People v. Caruso, supra, 174 Cal.App.2d at p. 641.) This was Timmons’s burden from the start of his motion, not, as he suggests, something that came as a surprise during argument on the motion. He relies on his counsel’s offer of proof, just before submission, that he could testify “that his family moved two days prior to sentencing and that was why he first felt free to give me this information at that late juncture,” but his counsel submitted immediately, never pressing for a ruling, for a stipulation, or for his client to testify. (See fn. 6, ante; contrast People v. Francis, supra, 42 Cal.2d at p. 337 [trial court “refused” defendant’s offer].) As the Attorney General correctly observes, these were mere unsworn statements, not evidence. (People v. Brotherton, supra, 239 Cal.App.2d at p. 203.) Even if the court somehow took the statements as evidence, the explanation of lateness itself came so late in the hearing—after argument and just before the ruling—that it naturally cast doubt on its own veracity, providing substantial evidence for rejecting it.
Timmons goes through the list of factors generally governing the voluntariness of package-deal pleas (In re Ibarra, supra, 34 Cal.3d at pp. 287-290), conceding some and arguing about others, but his problem is that the ruling rested on disbelief of his claim of threats, a credibility decision that is supported by substantial evidence. Without a threat, there was no coercion, and thus no basis for his withdrawal motion (Pen. Code, § 1018). He does not attack the plea entry proceedings themselves as showing involuntariness. His effort to paint the People’s case against him as “weak,” moreover, borders on the absurd. Against overwhelming evidence of his guilt from the victim’s testimony and DNA evidence, he posits a theory that, since the victim delayed revealing to police having had intercourse earlier that day with her companion Evans, and since Evans also downplayed the nature of his relationship with her, “it showed both of them willing to deceive law enforcement.” He posits that, in truth, the victim voluntarily got into the van “to escape from Evans, voluntarily engaged in consensual sex with the defendants, and was implicated in drug trafficking as her DNA alone was found on the bag of 70 rocks of cocaine.” But this notion of agreeing to multiple sex acts with four men she did not know, including penetration with a gun and liquor bottle, is bizarre in the extreme. It also does not square with her traumatized state upon fleeing the van. The reluctance of Evans or her to admit sexual relations, on the other hand, is hardly surprising given that she was under age (Pen. Code, § 261.5). Finally, absolutely none of this was argued to the court on the motion below, orally or in writing.
No abuse of discretion appears. Drawing all supported evidence and inferences in favor of the ruling, we cannot say that the court exceeded the bounds of reason. (People v. Clair (1992) 2 Cal.4th 629, 655.) We would also uphold the result if, after drawing all supported factual and inferences in favor of the ruling, we applied independent judgment to the question of voluntariness as a question of law.
III. CONCLUSION
The judgment is affirmed.
We concur: Haerle, Acting P.J., Lambden, J.
Dismissed as to Timmons, under the deal, were counts for forcible rape in concert (count 2; §§ 261, 264.1), forcible vaginal insertion of a gun in concert (count 3; §§ 289, 264.1), forcible anal and vaginal insertions of a bottle in concert (counts 4-5; §§ 264.1, 289), forcible oral copulation in concert (count 6; §§ 264.1, 288a, subd. (d)(1)), forcible sodomy in concert (count 7; § 286, subd. (d)), gang participation (count 8; § 186.22, subd. (a)), carrying a concealed gun in a vehicle (count 9; § 12025, subd. (a)(1)), firearm identity tampering (count 10; § 12090), and possessing cocaine base for sale (count 11; Health & Saf. Code, § 11351.5). Most dismissed counts carried multiple enhancements ranging from handgun arming and use, increased risk from moving a kidnap victim, to gang furtherance. An amendment of count 1 to forcible kidnapping (§ 207, subd. (a)) from kidnapping in concert for purposes of rape eliminated sentence exposure to a life term (§ 209, subd. (b)(1)).