Opinion
D070142
06-21-2017
THE PEOPLE, Plaintiff and Respondent, v. RICKY MARVIN ALLISON, Defendant and Appellant.
Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD257049) APPEAL from a judgment of the Superior Court of San Diego County, Frederick Maguire, Judge. Affirmed as modified, with directions. Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
Marquitta Wilson fraudulently obtained checks from her employer made out to various friends and family members. Ricky Marvin Allison cashed a series of these unauthorized checks and now appeals from a judgment convicting him of conspiracy (count 1) and grand theft (count 2) based on his conduct. Allison contends his conspiracy conviction should be reversed because he was charged with a broad conspiracy involving Wilson and numerous others, but the evidence established a more limited conspiracy only with Wilson. He maintains he was prejudiced by the admission of evidence relating to the other conspiracies. He further contends his sentence for conspiracy should have been stayed under Penal Code section 654 because it arises from the same conduct underlying his grand theft conviction.
All further unspecified statutory references are to the Penal Code.
We recognize the evidence was insufficient to support Allison's involvement in the full breadth of the conspiracy as charged, but conclude any variance between the scope of the charged conspiracy and proof at trial was not prejudicial. However, in light of the more limited conspiracy established at trial, we conclude Allison had the same objective for both of his crimes and one of his sentences should have been stayed under section 654. We therefore affirm the judgment as modified to stay Allison's concurrent sentence on count 2.
FACTUAL AND PROCEDURAL BACKGROUND
In 2011 and 2012, Wilson was the office manager of the Families Forward (FF) program. The program provided payments for mental health services, rent, electricity, food, and other necessities to help maintain stable homes for minors with mental health issues. Individuals who rendered services to FF and its clients were called vendors. FF paid its vendors using a standard procedure: (1) FF submitted a check request to its parent company, Mental Health Systems (MHS); (2) MHS reviewed its files to locate the new vendor form and W-9 form for the specific vendor; (3) MHS then issued the check and either mailed it directly to the vendor or transmitted it to an FF employee for delivery as specified in the check request. As part of her job, Wilson prepared vendor requests and submitted invoices to the accounts payable department at MHS.
In April 2011, someone created a new vendor request form using Allison's name, describing the services he provided as "rental assistance" services, and listing a post office box address that belonged to Wilson. The vendor request form specified, "Do not mail check, give to Marquitta at Families Forward." (Some capitalization omitted.) Someone also placed a W-9 form for Allison in the files of MHS's accounts payable department.
Between April 2011 and November 2012, MHS issued and Allison cashed nine checks for fictitious vendor services totaling $14,073. Allison cashed the first four checks at The Check Center between April and October 2011. He cashed the five remaining checks at Logan Market and Liquor between December 2011 and November 2012.
In February 2016, the People filed an amended information against Allison, charging him with conspiracy to commit grand theft (§ 182, subd. (a)(1)) and grand theft (§ 487, subd. (a)). The object of the conspiracy was alleged to be "for MARQUITA WILSON, former Administrative Assistant for Mental Health Systems, Families Forward program, to illegally divert money from the Families Forward program funded by the County of San Diego to her family, friends, and family members of friends, RICKY ALLISON, KARLA ALONZO, AMBER BARNES, AUTUMN BARNES, OLIVER BOWLES, BOBBY DAVIS, CAROLYN FLOYD, CHRISTOHPER GLENN, MALCOLM LEWIS, LARONICA SELMON, and VICKIE TRAYLOR, for forged vendor requests, forged invoices, and forged checks." The amended information alleged 67 overt acts for the single conspiracy and further alleged Allison had three probation denial priors (§ 1203, subd. (e)(4)), and a single strike prior (§§ 667, subds. (b)-(i), 1170.12, and 668).
At Allison's trial, the People introduced into evidence a binder containing information about 25 different recipients of unauthorized checks paid by MHS. The binder included a chart summarizing all of the checks in alphabetical order by name of the recipient (Allison's name was first) and sections (also organized alphabetically) containing copies of new vendor request forms, W-9 forms, check requests, invoices, and cashed checks. The binder also contained false invoices discovered on Wilson's work computer for Autumn Barnes and Oliver Bowles, who were among the unauthorized check recipients. In addition, the binder contained e-mail messages from Wilson's work computer to Elmo Barnes, revealing her close relationship with him during the relevant time period and discussing her "hustling" money at FF.
The San Diego financial crimes detective who investigated Wilson's unauthorized check scheme testified regarding his search for relationships among the 25 different people who had cashed unauthorized MHS checks. The detective explained that his investigation had focused most heavily on the 12 people (including Allison) who had either cashed the most checks or received the largest amount of money from MHS. His investigation revealed that several of the individuals were connected to Barnes, Wilson's fiancé, who was also the father of one of her children. For example, Amber and Autumn Barnes were Barnes's sisters, Christopher Glenn was his friend (as evidenced by jailhouse visitation records), and Malcolm Lewis was Facebook friends with Barnes. Lewis's sister, Karla Alonzo, and mother, Teresa Holder, were also check recipients. Other check recipients were associated with Bodeke Traylor (the father of one or more of Wilson's other children), such as his friend, Oliver Bowles; his mother, Vickie Traylor; his sister, Laronica Selmon Savare; and Savare's brother, Gary Selmon.
The detective also testified about Allison's and Barnes's cell phones, which were searched in September 2014 after the men were taken into custody together for reasons unrelated to the MHS check scheme. The "contacts" lists in the men's cell phones contained several e-mail addresses and telephone numbers in common, including Wilson's e-mail address. The detective further testified that Barnes was Facebook friends with four people who had visited Allison in jail in 2005, specifically, Allison's mother, brother and two friends.
By subpoenaing bank records, the detective learned that the majority of the unauthorized MHS checks had been cashed at Logan Market and Liquor and 13 different individuals, including Allison, Alonzo, Lewis, and Savare had cashed checks there. The bank records also revealed that Amber Barnes deposited two of the MHS checks into her personal bank account. Closely following the deposits, cash had been withdrawn from the account and in one case, funds had been withdrawn through a check made out to Wilson. Autumn Barnes also deposited six of the MHS checks into her personal account and made substantial withdrawals of cash shortly after each deposit. The detective believed these patterns of deposits and withdrawals evidenced money laundering. The bank accounts of Bobby Davis, Carolyn Floyd, and Christopher Glenn also revealed a pattern of MHS check deposits followed by substantial withdrawals.
Two brothers associated with Logan Market and Liquor testified that one or the other of them had participated in each of Allison's MHS check transactions at the store. Neither recognized Allison, but both had known Wilson for years, and one described her as a "regular customer[]" who used to live near the store. The brothers also testified that Wilson had brought several people into the store to cash MHS checks, introducing them as "co-workers."
Allison testified in his defense. He admitted that he had never performed any services for MHS, but had cashed all nine checks. He explained that he had cashed the checks for a former acquaintance, "Jarrod," who was "in a program for MHS" and had asked Allison to be his payee because his prior payees, Jarrod's mother and "auntie," had taken money from him. Allison said he had received each check from Jarrod and had given Jarrod all of the money from the cashed checks. Allison could not recall Jarrod's last name, address, or telephone number, and had not seen him in a long time. Although Allison had gone to look for Jarrod after being charged, and knew where Jarrod had lived in 2012 or 2013, he never recorded Jarrod's address. Allison could not recall why he had cashed the last five MHS checks at Logan Market and Liquor instead of at The Check Center, which was closer to his home, but thought it might have been because Jarrod lived near the store.
Allison further testified that he had known Barnes since "before high school" and Barnes had once been like a brother to him. In June 2011, Barnes was a witness at Allison's trial on a DUI charge—arising from the men's visit to a nightclub in December 2010—and the jury acquitted Allison after Barnes testified that Barnes had been driving. Allison acknowledged that he and Barnes had many friends and acquaintances in common, including those evident in their cell phone contact lists. Allison explained that many of his and Barnes's mutual friends were from the same small community in southeast San Diego, where "[e]verybody knows everybody." Allison also admitted to knowing both of Barnes's sisters, but claimed he had not seen them since they were children. Regarding Wilson, Allison said he had gone to high school with her, but he did not recall putting her e-mail address into his cell phone, had never spoken to her about the checks, had never seen the vendor forms, and had not had any contact with Wilson during the time period in which the checks were cashed.
Allison also testified that he "would never do anything like [cashing a fraudulent check]," "would never put [him]self in this position" and "wouldn't want to take any money from anybody." As a result, his convictions for robbery in 2005 and misdemeanor theft of personal property in 2003 were allowed into evidence for impeachment purposes.
Jury Verdict and Sentence
The jury convicted Allison of conspiracy to commit grand theft and grand theft of personal property, and found true a prior strike conviction. The court sentenced Allison to two years eight months in prison for each count, to be served concurrently. Allison was also ordered to pay $14,073.09 in restitution, jointly and severally with Wilson. The court explained that although Allison "could be on the hook for $314,000, I don't think that's appropriate because his involvement was for the $14,000."
DISCUSSION
I. No Prejudicial Variance in Allison's Conspiracy Conviction
Allison contends his conspiracy conviction must be reversed because the People charged him with a large single conspiracy but only presented evidence of a number of smaller conspiracies, and he was prejudiced by the presentation of evidence of the other conspiracies.
We consider the question of whether a single conspiracy or multiple conspiracies have been proved as an issue of the sufficiency of the evidence. (U.S. v. Kenny (9th Cir. 1981) 645 F.2d 1323, 1335 (Kenny).) In making our determination, we review " ' "the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable jury could find the defendant guilty beyond a reasonable doubt." ' " (People v. Vega-Robles (2017) 9 Cal.App.5th 382, 419 (Vega-Robles).) " 'The evidence need not be such that it excludes every hypothesis but that of a single conspiracy . . . ; rather, it is enough that the evidence adequately supports a finding that a single conspiracy exists. . . .' " (Ibid., citing Kenny, at p. 1335.)
Under section 182, subdivision (a)(1), a conspiracy occurs whenever "two or more persons conspire" to commit any crime. To convict a defendant of conspiracy, the prosecution must prove that the defendant and another person had the specific intent to agree to commit an offense and all of its elements, and that at least one of the conspirators committed an overt act in furtherance of the conspiracy. (People v. Johnson (2013) 57 Cal.4th 250, 257.) Conspiracy may be proven with circumstantial evidence; thus it is not necessary to establish that there was a meeting and express agreement between the parties. (People v. Vu (2006) 143 Cal.App.4th 1009, 1024-1025.)
A single conspiracy is demonstrated when the coconspirators' acts are " ' "tied together as stages in the formation of a larger all-inclusive combination, all directed to achieving a single unlawful end or result." ' " (People v. Meneses (2008) 165 Cal.App.4th 1648, 1672 (Meneses).) Factors relevant to the single conspiracy analysis include whether the crimes targeted a single or multiple victims, involved the same motives, and occurred "in the same time and place and by the same means." (Ibid.) In establishing a single comprehensive scheme, " ' "[i]t is sufficient to show that each defendant knew or had reason to know of the scope of the conspiracy and that each defendant had reason to believe that their own benefits were dependent upon the success of the entire venture." ' " (Vega-Robles, supra, 9 Cal.App.5th at p. 422 [evidence showing vertically integrated drug distribution scheme was sufficient to establish a single broad conspiracy to sell illegal drugs for profit, as charged].)
A defendant is not required to know "the identity or exact functions of all the members of the conspiracy." (People v. Van Eyk (1961) 56 Cal.2d 471, 479.) For example, in Blumenthal v. United States (1947) 332 U.S. 539 (Blumenthal) the Supreme Court concluded there was sufficient evidence to tie whiskey salesmen to a single conspiracy of illegal whiskey sales, even though there were arguably two distinct agreements, and the conspirators participating in one agreement did not know the identity of the whiskey's ultimate owner, who was the key player in the other agreement. (Id. at p. 558.) The court observed that the two groups of conspirators were tied together as stages in the formation of the larger all-inclusive scheme, and reasoned that the salesmen must have known there were others involved because the scope of the project was "so large" (4,000 cases of whiskey). (Ibid.) The court therefore concluded the conspirators were all "joined together by their knowledge of [the conspiracy's] essential features and broad scope, though not of its exact limits, and by their common single goal." (Ibid.)
Likewise, the United States Court of Appeals for the Ninth Circuit in Kenny determined there was sufficient evidence to support a single conspiracy between Kenny, a military service provider, and a supervisor and three employees at the Naval Electronics Laboratory Center (NELC), whom Kenny had individually bribed in order to obtain contracts with the United States Navy. (Kenny, supra, 645 F.2d at p. 1336.) The evidence established that the NELC defendants worked closely together; three of the employees had a side business that Kenny assisted with; and the supervisor, upon learning of the Navy's investigation of the side business, hid those business records, had the three employees execute false statements regarding their lack of any conflict of interest, and told those employees he had " 'killed' " the investigation. (Id. at pp. 1331, 1328, 1335-1336.) The court concluded that this evidence provided a "substantial basis for the inference that 'each defendant knew or had reason to know of the scope of the conspiracy and that each defendant had reason to believe that their own benefits were dependent on the success of the entire venture.' " (Id. at p. 1335.)
In contrast, multiple smaller conspiracies exist when one key participant operates as the center of a wheel involving many participants, or " 'spokes,' " but there is no evidence of a "rim of the wheel to enclose the spokes." (Kotteakos v. United States (1946) 328 U.S. 750, 755 (Kotteakos).) For example, in Kotteakos one defendant (the hub) acted as a broker and fraudulently obtained home improvement loans (from various lenders) for numerous alleged coconspirators, many of whom had no connection with one another other than their independent dealings with the broker. (Id. at pp. 752-753, 754-755 [indictment named 32 people, 19 defendants were brought to trial, 13 names were submitted to the jury, and both parties agreed that at least eight separate conspiracies were proven].) Similarly, in Meneses there was inadequate evidence to support a single conspiracy where a defendant obtained stolen police accident reports and used them to contact injured insureds, referred the insureds to several different lawyers and chiropractors, and persuaded the insureds to file false insurance claims with various insurers. (Meneses, supra, 165 Cal.App.4th at p. 1671.) In that case, as in Kotteakos, the court concluded the only common element was the hub defendant, who formed separate agreements with the various participants at different times for distinct transactions. (Meneses, at p. 1671.)
Here, Allison does not contend there was insufficient evidence at trial to establish his participation in a conspiracy, but instead argues that the evidence was insufficient to prove his participation in the broad conspiracy alleged in the amended indictment. Allison was charged with entering into a conspiracy with Wilson and 10 others to illegally obtain money from the FF program through the use of "forged vendor requests, forged invoices, and forged checks." The evidence presented at trial proved the charged conspiracy targeted a single victim (MHS/FF), involved the same motive (to benefit Wilson and others), and used the same overall process and methodology—all factors tending to establish a single conspiracy. (Meneses, supra, 165 Cal.App.4th at p. 1672.) However, we conclude that a variance exists because, while the evidence presented at trial established beyond a reasonable doubt that Allison participated in a conspiracy with at least one other person (Wilson), it was insufficient to allow the jury to infer Allison's participation in the single large conspiracy charged in the amended indictment.
The record established that Allison had a close relationship with Barnes, knew Barnes's sisters, and knew Wilson. At the same time, however, the evidence failed to show that Allison had had any recent contacts with the sisters, knew of their involvement in the conspiracy, or had any idea of the magnitude of Wilson's fraudulent scheme. Although there was evidence Allison cashed five of the fraudulent MHS checks at the same liquor store as other alleged coconspirators, and that Wilson brought various people into the store to cash the MHS checks, the evidence fell short of proving that Allison ever entered the store with any coconspirator. Nor was the conspiracy structured in a way that necessarily should have alerted Allison to its broad scope, and there is no evidence that Allison received any benefit contingent upon the action of anyone other than Wilson. (See Vega-Robles, supra, 9 Cal.App.5th at p. 422; Blumenthal, supra, 332 U.S. at p. 558; Kenny, supra, 645 F.2d at p. 1336.) Consequently, even examined in the light most favorable to the judgment, the evidence presented was insufficient to establish Allison's participation in the full scope of the charged conspiracy.
However, even when a defendant is charged with participation in a large single conspiracy and the evidence at trial reveals multiple smaller conspiracies, the variance does not require reversal unless it prejudicially affects the defendant's substantial rights. (Vega-Robles, supra, 9 Cal.App.5th at p. 422; People v. Elliott (1978) 77 Cal.App.3d 673, 685 ["A judgment will not be reversed on the ground that two separate conspiracies were charged as one, unless the appellant shows that he was prejudiced thereby."].) A defendant's substantial rights are prejudiced through exposure to " 'evidentiary spillover,' " when "it is 'highly probable that [the evidentiary spillover] had substantial and injurious effect or influence in determining the jury's verdict.' " (United States v. Duran (9th Cir. 1999) 189 F.3d 1071, 1081 (Duran), citing Kotteakos, supra, 328 U.S. at p. 776.)
The variance analysis is similar to the analysis used to determine if joinder was prejudicial. (Duran, supra, 189 F.3d at p. 1081.) Thus, " 'of foremost importance' " in assessing prejudice is whether the evidence is easily compartmentalized—the acts constituting the separate crimes are discrete. (Id. at pp. 1081, 1082; see United States v. Osborne (6th Cir. 2008) 545 F.3d 440, 444 [variance held to be harmless when the evidence was unlikely to confuse the jurors into transferring guilt from one defendant to another].) In addition, the risk of imputing the acts of others onto a defendant increases when there are multiple defendants and large numbers of conspiracies demonstrated at trial, but is greatly reduced when there is only a single defendant. (United States v. Ailsworth (10th Cir. 1998) 138 F.3d 843, 850 [no prejudicial variance when there was only one defendant, six alleged coconspirators, and two conspiracies].) The court may also consider the strength of the evidence of the defendant's guilt of the narrower conspiracy. (United States v. Sutherland (5th Cir. 1981) 656 F.2d 1181, 1196 [evidence of overwhelming guilt was a dispositive factor, the others being the small number of conspiracies and defendants and the distinctiveness of the evidence as to each conspiracy, rendering confusion unlikely].)
Allison argues that, as in Kotteakos, the variance was prejudicial and must be reversed. We find the present case distinguishable in this respect from Kotteakos. In Kotteakos, the indictment named 32 defendants and four additional unindicted coconspirators in a single conspiracy, 19 defendants went to trial, the jury considered the guilt of 13 of them, the evidence established eight or more conspiracies, and "the only nexus among them" was the participation of the same broker, who submitted loan applications through multiple lenders, with varying types of fraudulent statements. (Kotteakos, supra, 328 U.S. at pp. 773, 752, fn. 1, 753, 754-755.) On those facts, a court could readily envision jury confusion and the potential for transference of guilt among defendants.
In contrast, Allison's case involved a single victim (MHS/FF), Wilson used the same basic procedure for each fraudulent transaction, and the evidence was easily compartmentalized by a coconspirator—particularly as the documentary evidence was presented alphabetically with the evidence relating to Allison placed first. In addition, Allison was tried alone and his indictment referenced 12 coconspirators in total, in contrast to the 13 to 19 defendants on trial and 32 coconspirators charged in the indictment in Kotteakos. (Kotteakos, supra, 328 U.S. at pp. 752-753.) Moreover, there was strong evidence to convict Allison of conspiring with Wilson. Specifically, Allison cashed nine checks from MHS over the course of 19 months for services he admittedly never provided; five of the checks were cashed at a liquor store near Wilson's home where she had brought various people to cash other MHS checks; MHS distributed Allison's checks through Wilson, whom Allison had known since high school and whose e-mail address was among the contacts listed in his cell phone; and Barnes, Wilson's fiancé, was Allison's long-time close friend, akin to a brother, when the conspiracy began. Under these circumstances, where the fraudulent scheme was simple, the evidence was readily compartmentalized, Allison was the only defendant, the trial was short (testimony was completed in less than two and a half days), and there was overwhelming evidence of Allison's guilt, we conclude that it is not " 'highly probable' " any evidentiary spillover resulting from the variance between the conspiracy charged in the indictment and that proven at trial had a substantial injurious impact on the jury's verdict. (Duran, supra, 189 F.3d at p. 1081.)
Allison contends admission of evidence relating to the broader conspiracy could not have been harmless because the verdict depended on whether the jurors believed Allison's claims of having been innocently duped by Jarrod and his credibility was wrongfully judged based on the acts of others. He cites to various cases in which a defendant's conviction turned on the defendant's credibility and the admission of certain improper evidence was held to require reversal even though the prosecution's evidence was strong. (See People v. Holt (1984) 37 Cal.3d 436, 459 (Holt); People v. Thomas (1978) 20 Cal.3d 457, 470 (Thomas); People v. Adams (1988) 198 Cal.App.3d 10, 19 (Adams).) However, each of these cases is readily distinguishable.
In Holt, the appellate court concluded there was prejudicial error when, among other things, the court had erroneously admitted directly conflicting testimony of the defendant's prior accomplice, and the defendant's guilt turned primarily upon a comparison of the two men's credibility. (Holt, supra, 37 Cal.3d at pp. 458-459.) In Thomas, the appellate court determined there was prejudicial error when the theory of defense was that the victims made up allegations of sexual abuse at the behest of a certain person and the trial court allowed that person to testify about the defendant's prior sex offenses. (Thomas, supra, 20 Cal.3d at p. 470.) In Adams, the appellate court concluded there was "a miscarriage of justice" when the trial court excluded evidence that a testifying rape victim had previously made false rape accusations, and the sole issue before the jury was whether to believe the defendant or the victim's version of events. (Adams, supra, 198 Cal.App.3d at p. 19.)
Unlike the evidence in Holt, Thomas, and Adams, the evidence presented in Allison's trial regarding the other alleged coconspirators did not directly undermine his version of events. The coconspirators did not testify regarding their knowing participation in the conspiracy, leaving open the possibility that at least some of them were similarly duped into assisting Wilson. Moreover, the jury's implicit refusal to believe Allison's testimony regarding Jarrod undoubtedly turned on the implausible nature of his story; his failure to provide any supporting evidence of Jarrod's existence; and the evidence of his two prior convictions, which contradicted his testimony that he would never steal. On these facts, it was not highly or even reasonably probable that the information relating to the other conspirators was a substantial factor in destroying Allison's credibility. We therefore conclude any variance between the scope of conspiracy charged and that supported by the evidence was harmless in this case.
II. Section 654 Requires a Stay of Allison's Sentence for Grand Theft
Allison maintains section 654 requires the court to stay the sentence on one of his convictions because the evidence only supported a narrow conspiracy duplicative of his grand theft conviction. The People argue that section 654 permits concurrent sentences for Allison's conspiracy and grand theft convictions because the objective of the conspiracy is broader than the acts underlying Allison's commission of grand theft. We believe Allison has the better argument.
Section 654's prohibition against multiple punishment applies even where a course of conduct violates more than one statute if it comprises an indivisible transaction. (In re Cruz (1966) 64 Cal.2d 178, 180.) "The divisibility of a course of conduct depends upon the intent and objective of the defendant, and if all the offenses are incident to one objective the defendant may be punished for any one of them but not for more than one." (Ibid.; People v. Briones (2008) 167 Cal.App.4th 524, 529 ["Section 654 prohibits multiple punishment for both the conspiracy and the substantive offenses that were its object."].) Thus, a defendant may only be sentenced for both the conspiracy and the underlying offense where the "conspiracy had an objective apart from an offense for which the defendant is punished." (Cruz, at p. 181.) We review for substantial evidence the court's implicit determination that a defendant held more than one objective when he committed the crimes. (People v. Osband (1996) 13 Cal.4th 622, 730-731.)
As described above, although the conspiracy Allison was charged with had the stated objective of benefiting Wilson, Allison, and 10 other coconspirators, the evidence offered at trial was insufficient to establish that Allison participated in such a broad conspiracy. Substantial evidence supports a narrower conspiracy between Wilson and Allison, with a more limited objective of benefiting one or both of them, and the same indivisible course of conduct served as the basis for Allison's grand theft charge because Wilson's cooperation was essential to Allison's theft. Consequently, the trial court should have stayed Allison's concurrent sentence for grand theft (count 2) under section 654.
Allison's sentence for count 1 was used as the principal term and the terms imposed for each count were identical, thus we conclude count 2 should be stayed. --------
DISPOSITION
The superior court is directed to amend the abstract of judgment to reflect a stay of Allison's sentence on count 2 under Penal Code section 654. The superior court is further directed to prepare an amended abstract of judgment and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
DATO, J. WE CONCUR: BENKE, Acting P. J. HUFFMAN, J.