Opinion
G055038
08-27-2018
THE PEOPLE, Plaintiff and Appellant, v. MATTHEW KANE HALL, Defendant and Respondent.
Tony Rackauckas, District Attorney, and Elizabeth O. Molfetta, Deputy District Attorney, for Plaintiff and Appellant. Ricardo A. Nicol for Defendant 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 17ZF0001) OPINION Appeal from an order of the Superior Court of Orange County, Patrick Donahue, Judge. Reversed. Tony Rackauckas, District Attorney, and Elizabeth O. Molfetta, Deputy District Attorney, for Plaintiff and Appellant. Ricardo A. Nicol for Defendant and Respondent.
The Orange County District Attorney (District Attorney) appeals from the trial court's order granting defendant Matthew Kane Hall's Penal Code section 995 motion to dismiss two counts of a 17-count grand jury indictment as well as the enhancements and prior conviction allegations attached to those counts. (All statutory references are to the Penal Code.) The District Attorney contends sufficient evidence was presented to the grand jury to support indicting Hall for conspiring to commit extortion. We agree and reverse the trial court's dismissal orders.
I.
FACTS AND PROCEDURAL HISTORY
Because we are dealing solely with the conspiracy to commit extortion charge in this appeal, we omit the facts and charges involving the other defendants in the named indictment.
The Orange County Grand Jury returned an indictment charging eight defendants with 17 distinct substantive crimes and 12 various enhancements. Hall was named as a defendant in count 6, conspiracy to commit extortion (§§ 182, subd. (a)(1) & 518), and count 7, active participation in a criminal street gang (§ 186.22, subd. (a)), based upon the felonious conduct alleged in count 6. As to count 6, the indictment, in two separate enhancements, also alleged Hall entered the conspiracy to benefit two different criminal street gangs, the "Aryan Brotherhood" and "Public Enemy Number One."
The prosecution later filed a first amended indictment. The amendment made no substantive changes involving Hall, but added six prior conviction allegations.
Hall brought a section 995 motion to dismiss the indictment for lack of probable cause on both counts 6 and 7. The trial court granted Hall's motion, and dismissed counts 6 and 7 as to Hall only. To the extent any enhancements or prior conviction allegations were related to counts 6 and 7, they became a nullity, and were dismissed as a matter of law. The District Attorney now appeals from that dismissal order. A. Background: How a Planned Robbery Went Awry and Became a Murder
We cannot tell from the record whether the trial court dismissed count 7 only because the underlying felonious conduct upon which it was based (the conspiracy to commit extortion charge) was dismissed, or because there was insufficient evidence to establish the other elements of count 7's charge of active participation in a criminal street gang. Hall's counsel raised this latter issue in his moving papers, but the trial court did not specifically rule on it. Neither party addresses this issue in their briefing. Because we are ordering the trial court to reinstate counts 6 and 7, it is without prejudice to Hall's reopening his § 995 motion challenging the substantive grounds supporting count 7.
To understand the circumstantial evidence supporting the conspiracy offense with which Hall was charged, it is necessary to view it in relation to events occurring after formation of the alleged conspiracy.
On July 13, 2016, police found deceased drug dealer Daniel Richardson (also known as "Shakey") on a bed in an Anaheim motel room with a gunshot wound to his upper chest. Also in the room was Hall's codefendant William Shoop, who was on the phone to 911 and simultaneously giving Richardson chest compressions as police entered the room. Earlier that day, Richardson had purchased duct tape and zip ties at a Fullerton hardware store. In addition, that same day a friend and drug customer of Richardson's drove Richardson and Shoop to the Anaheim motel where he rented a room in his name, supposedly because Richardson did not want police to know he was there.
Later that day, a methamphetamine addict and drug dealer named Bryan G. arrived at the Anaheim motel room, ostensibly to buy $800 worth of heroin from Richardson. Bryan G. was a type of "middle-man" or "independent contractor" among drug dealers, who buys in quantity from major dealers, and then sells smaller quantities to lesser street-level dealers. Richardson and Bryan G. had a previous commercial relationship, but also were friends. Bryan G. testified he had no reason to suspect anything was amiss on that day. While Bryan G. often carried a gun for protection when buying drugs, on this occasion he did not because he had no basis to believe Richardson had any "ill will" toward him. In retrospect, Bryan G. realized not all was well with Richardson. Bryan G. knew Richardson "owed a lot of money," and recognized Richardson would consider Bryan G. to be an easy target in a phony drug deal. Bryan G. also found it odd that Richardson wanted to complete the deal in a motel room, wondering "why would you get a hotel room just to sell me [an ounce] of heroin."
A couple of days before the shooting, Bryan G. had called Richardson looking for heroin. The quoted price was too high, so Bryan G. declined. When Richardson later called back and offered him a lower price, the two agreed to meet at the Anaheim motel room.
Another witness — and Richardson customer — also testified Richardson had been raising his prices in the weeks preceding the shooting.
Shoop greeted Bryan G. as he entered the room. Also in the room was Richardson and codefendant Todd Schneider, whom Bryan G. did not know. After Bryan G. entered the room, Richardson slammed the door shut and Shoop pointed a silver and black handgun at Bryan G. Shoop told Bryan G. "don't do nothing stupid," and pistol-whipped him once. Bryan G. looked around and saw Richardson was pointing a gun at him, smaller than Shoop's and possibly a revolver. Shoop told Bryan G. to take off his backpack, which he did, and Schneider picked it up. Shoop then ordered Bryan G. to sit down in a chair that had been placed in the rear of the room, but Bryan G. told Shoop he would not obey until he was told what was going on. Shoop replied "empty your pockets and I'll tell you." Bryan G. testified he was carrying $3,000 or $4,000 in cash (in addition to the $800 for the heroin deal), a Rolex watch, and had no inclination to comply. When Bryan G. refused Shoop's command to empty his pockets, Shoop delivered another blow to Bryan G.'s head.
In response, Bryan G. lunged at Shoop, grabbed him and the gun, and the two toppled onto the bed. Bryan G. was able to pin Shoop's gun hand to the bed and began punching Shoop in the face. Richardson and Schneider began screaming "Stop!" and both pointed guns at Bryan G. as they rushed toward him. Bryan G. testified he jumped backward just as a gun discharged close to his face. Stunned, but sensing an opportunity, Bryan G. then ran for the motel room door and escaped. Remembering he had left his backpack behind, Bryan G. returned to the room, kicked the door open, and saw Shoop holding Richardson. As he watched, he saw Richardson slowly die.
Shoop told Schneider to "get the fucking guns" and "get out of here." Schneider left after he grabbed Bryan G.'s backpack and a gun off the bed. Bryan G. pursued Schneider, and was able to retrieve his backpack. In the struggle for the backpack, Schneider dropped a gun on the ground, but kept insisting Bryan G. give him the backpack. Bryan G. could not understand why Schneider wanted the backpack so badly until he later unzipped it and found a .25-caliber handgun that police later retrieved while searching Bryan G.'s house. Bryan G. testified Shoop clearly was in charge throughout the entire encounter,.
In a trash can outside the motel room, police found a nine-millimeter Sig Sauer semi-automatic pistol. While ballistics analysis could not perfectly match it with the Sig Sauer, the bullet that killed Richardson matched the other bullets still in the weapon when it was found by police.
Police seized a cell phone belonging to Bryan Bryan G. On the roof of the motel, police found Shoop's cell phone. Inside the motel room, police found another cell phone, still connected to the wall charger. Police determined this phone was Richardson's. Police forensically extracted the contents of all the seized phones.
Forensic analysis of Shoop's phone revealed a photograph of a Sig Sauer that had been sent from Shoop's phone to "Benny Woods" two days before the shooting. Benny Woods' relevance becomes clear below.
From these contents, police were able to obtain a trove of cell phone data, including text messages and multimedia messages, from phones belonging to Hall, Shoop, and codefendant Kenneth Johnson, someone we describe in more detail below. Police also obtained Schneider's phone and were able to extract its contents. Compilations of all these data were admitted as exhibits in the grand jury as part of the prosecution's case, and were referred to by other witnesses, including a forensic expert and telephone company representatives, during their testimony. B. The Prison Gang Connection to the Conspiracy and the Botched Robbery of Bryan G.
In his brief, Hall's appellate counsel insists we not consider the grand jury exhibits referenced in the District Attorney's opening brief because they were not part of the appellate record. A few days after Hall filed his brief, we granted the District Attorney's request pursuant to designate grand jury exhibits 19, 29, 30, 31, 33, and 37 as part of the record on appeal. Hall has not objected to the lodging of these exhibits, nor has he asked leave to file a supplemental respondent's brief. Since these exhibits are now part of the record on appeal, we consider them accordingly.
Orange County Sheriff's Department Deputy Adam Treanor, an expert on white racist gangs, testified the Aryan Brotherhood (AB) is one of four major prison gangs in the California and federal prison systems. It comprises Caucasian inmates in prisons and jails, and other members and associates not in custody. Some of AB's cadre come from the white supremacist criminal street gang called Public Enemy Number One, or simply PEN1.
Treanor testified Hall's codefendant, Kenneth Johnson, was in a state prison at the time of these 2016 crimes, and is an AB member. He is also known as "Benny Woods" and "Kenwood." AB's size and dominance allows it to control other white supremacist street gangs, in and out of prison. When these other white supremacist gang members end up in prison they come under the domination of AB. If they do not comply with the AB's edicts, or its extortions labeled "taxation," they are subject to "targeting"; i.e., assault and even murder. As Treanor told the grand jury: "The Aryan Brotherhood uses violence or the threat of violence to enhance its criminal enterprise by basically forcing white inmates in correctional environments, and also members of the white criminal community outside of a custody environment, to follow their orders, or edicts, or to comply with taxes, or any other command that they give for fear of a reprisal in a custody environment and also outside of a custody environment."
Treanor testified cell phones are routinely smuggled into prison and AB members use them to communicate with and manage gang members out of custody. This is how Johnson communicated with both Hall and Shoop in addressing what they were to do regarding a $2,500 "fine" the AB had levied upon Richardson.
Treanor opined that during 2016, AB's primary activities were murder, assault, narcotics trafficking, and extortion. As he explained, AB benefits from the "taxation" and extortion of other gang members because the fear and violence it creates in the criminal community allows AB to maintain tight control of criminal proceeds on the outside, even though much of its control is exercised from inside prison. In addition, subservient white supremacist gangs such as PEN1 or the Orange County Skins (OCS) idolize AB, and will obey directives from AB because it boosts their own stature. This in turn increases their chances of becoming a future AB associate or member.
On the other hand, defying or neglecting an AB order could result in severe retribution. Depending on the nature of the infraction, the result could be a serious assault, or even murder. A lesser transgression results in a "fine" that is paid to the AB to "clean it up."
Sheriff's Deputy Matthew Parrish, an expert on white racist gangs, testified that Shoop is a PEN1 member and is adorned with a "PEN1 Death Squad" tattoo on his arm. Similarly, Parrish opined that Hall, who is known as "Cyco," is likewise a PEN1 member. Richardson had a tattoo reading "VWS," signifying "Volks Woven Skins," which is another white racist skinhead gang. And, according to Parrish, the final occupant of the motel room, Schneider, is a member of OCS.
Parrish testified Bryan G. is not a gang member.
During a search of Hall's apartment, police found Hall's PEN1 jacket and various items of Nazi memorabilia and literature. Significantly, they also seized letters addressed to Hall from "Kenny Johnson," with a state prison return address, including one that ended: "With long love and respect, your friend always, Kenny." Following his arrest after the search of his apartment, Hall gave a booking officer a cell phone number that police later connected to numerous calls and text messages to and from Johnson's prison cell phone. Police concluded Hall also had a different cell phone number that he used to communicate with Shoop.
Parrish further testified PEN1 was an active criminal street gang in Orange County from 2015-2017. Similarly, he stated both PEN1 and OCS are "subservient to the AB," and the AB is on "the top of the food chain" of all white supremacist gangs. PEN1 and OCS are also affiliated with each other. Parrish described PEN1 as the "varsity," OCS is the "JV" team, and membership in AB is admission to the "big leagues." Shoop, for example, is a former OCS member who eventually moved up into PEN1. C. Evidence That Richardson, Shoop, and Schneider Set Up the Failed Robbery of Bryan G. Because AB Imposed a $2,500 Fine on Richardson
AB had levied a $2,500 fine on Richardson, although there was no evidence presented to the grand jury explaining why AB imposed the fine. But in the weeks before his death, Richardson had been raising the prices on his drug sales and "selling short," or selling less than the agreed upon amount.
Evidence presented to the grand jury also showed Johnson put Hall in charge of collecting Richardson's fine, and Johnson repeatedly told Shoop that Hall was in charge. Thus, on July 6 (one week before the shooting), Johnson sent a text message from his prison cell phone to Shoop stating: "Just so you are crystal clear on this and not fuck yours off, that 2500 fine that was imposed on that dude is AB business, and not you or any other person can undo it or anything else. [Hall] will take charge[] of how to handle it and none else, got it?" Shoop responded: "Got it" Johnson's cellphone records show that immediately before and after this text message exchange with Shoop, Johnson had telephone conversations with Hall.
It is reasonable to infer Johnson had actually texted the word "yourself," not "yours off," and his "smart" phone decided to use its so-called "spell-check" function to change it.
Similarly, we can infer Johnson meant to send "no one," not "none."
The following day, July 7, Hall texted Shoop: "Hey skin call crash tell him we're both really busy right now but we still want to come out there and see him we have not forgot about him. And also retrieve that phone from that fucking n***** to anything else you may have reacquired since our last little visit and then bust him in the mouth if you feel like it."
The next day, July 8, Richardson texted Shoop the passcode to his iPhone. In addition, on July 10 Shoop texted Richardson "Don[']t forget to bring that phone up." Richardson responded "Ok." On July 10, Richardson began using a new phone number. This new phone was the one located in the motel room after Richardson's death. On July 12, Richardson texted Shoop the passcode for his iPad as well. That same day, the day before the robbery and murder, Richardson texted Shoop, telling him that someone he knew was going to bring him $800 the next day and it would be "ours."
II
DISCUSSION
A. Legal Principles Governing Section 995 Motions
"[I]t is the grand jury's function to determine whether probable cause exists to accuse a defendant of a particular crime." (Cummiskey v. Superior Court (1992) 3 Cal.4th 1018, 1026.) This task "is analogous [sic] to that of a magistrate deciding whether to bind a defendant over to the superior court on a criminal complaint. Like the magistrate, the grand jury must determine whether sufficient evidence has been presented to support holding a defendant to answer on a criminal complaint." (Id. at p. 1027.) That means that such an accusation, or indictment, is sufficiently based upon probable cause "'""if there is some rational ground for assuming the possibility that an offense has been committed and the defendant is guilty of it.[Citations.]'"'" (Ibid.)
Under section 995 a defendant may move to dismiss an indictment on grounds "the defendant ha[s] been committed without reasonable or probable cause." (§ 995, subd. (a)(2)(B).) "In the context of a motion to dismiss an indictment under section 995, the grand jury sits as the finder of fact, while the superior court sits as the reviewing court. [Citation.] Every legitimate inference that may be drawn from the evidence must be drawn in favor of the indictment. [Citation.] The superior court, as the reviewing court, may not substitute its judgment as to the weight of the evidence for that of the fact finder. [Citation.] And, while there must be some showing as to the existence of each element of the crime, such a showing may be made by means of circumstantial evidence supportive of reasonable inferences. [Citation.]" (People v. Superior Court (Costa) 183 Cal.App.4th 690, 699 (Costa).) In determining if charges in an indictment can withstand a motion under section 995, "neither the superior court nor the appellate court may reweigh the evidence or determine the credibility of the witnesses." (People v. Superior Court (Jurado) (1992) 4 Cal.App.4th 1217, 1226.) "Ordinarily, if there is some evidence in support of the [indictment], the reviewing court will not inquire into its sufficiency. [Citations.] Thus, an indictment or information should be set aside only when there is a total absence of evidence to support a necessary element of the offense charged." (Ibid.) Under section 995, "the issue is not whether the prosecution has proven its case but whether there is some rational ground for assuming the possibility that an offense has been committed." (People v. Molina (1994) 25 Cal.App.4th 1038, 1044.)
As the appellate court reviewing a challenge to an indictment, we disregard the trial court's ruling and instead directly review the evidence supporting the indictment. (Costa, supra, 183 Cal.App.4th at p. 699.) We must draw all reasonable inferences in favor of an indictment and decide whether there is probable cause to indict a defendant, i.e., whether the evidence presented to the grand jury was such that a reasonable person could harbor a strong suspicion of the defendant's guilt. (Cf. Lexin v. Superior Court (2010) 47 Cal.4th 1050, 1072 [reviewing magistrate's holding order after preliminary hearing].) B. Legal Principles Governing Conspiracy and Extortion
Criminal conspiracy is an offense distinct from the actual commission of the criminal offense that is the object of the conspiracy. (Clune v. United States (1895) 159 U.S. 590, 595.) It is an inchoate crime, and does not require the commission of the substantive offense that is the object of the conspiracy. (People v. Manson (1977) 71 Cal.App.3d 1, 47; see United States v. Feola (1975) 420 U.S. 671, 694 ["The law of conspiracy identifies the agreement to engage in a criminal venture as an event of sufficient threat to social order to permit the imposition of criminal sanctions for the agreement alone, plus an overt act in pursuit of it, regardless of whether the crime agreed upon actually is committed"].)
A conspiracy to commit extortion consists of an agreement by two or more people, with the specific intent to commit extortion, followed by the commission of at least one overt act toward achieving that objective. (§ 182; People v. Martin (1983) 150 Cal.App.3d 148, 163.) Extortion is the obtaining of property from another with consent induced by force or fear. (§ 518.)
To establish a defendant is guilty of a conspiracy to commit extortion, the District Attorney must prove that: (1) the defendant had the specific intent to agree with, or conspire with, another person to commit extortion; (2) the defendant had the specific intent to commit all the elements of extortion; and (3) one or more of the parties to the agreement committed an overt act in furtherance of the conspiracy. (People v. Covarrubias (2016) 1 Cal.5th 838, 888.) Conspiracy thus requires both the specific intent to conspire, and specific intent to commit the target crime. (People v. Johnson (2013) 57 Cal.4th 250, 262; People v. Swain (1996) 12 Cal.4th 593, 600 (Swain).)
Although the crime of extortion is defined as "the obtaining of property . . . from another, with his consent . . . induced by a wrongful use of force or fear" (§ 518, italics added), here the prosecution proceeded against the defendants in count 6 solely on the basis of causing Richardson to fear what would transpire should he not pay his $2,500 AB "fine."
"Fear, such as will constitute extortion, may be induced by a threat . . . [¶] [t]o do an unlawful injury to the person or property of the individual threatened or of a third person." (§ 519, subd. 1.) So narrowed, a completed extortion is (1) "[a] wrongful use of . . . fear," (2) "with the specific intent of inducing the victim to consent to the defendant's obtaining his or her property," (3) "which does in fact induce such consent and results in the defendant's obtaining property from the victim." (People v. Hesslink (1985) 167 Cal.App.3d 781, 789.) What matters is "the intent of the person who makes the threat[,] and not the effect the threat has on the victim." (People v. Bollaert (2016) 248 Cal.App.4th 699, 726.) C. The Trial Erred in Granting Hall's Section 995 Motion to Dismiss
"'Evidence is sufficient to prove a conspiracy to commit a crime "if it supports an inference that the [coconspirators] positively or tacitly came to a mutual understanding to commit a crime. [Citation.] The existence of a conspiracy may be inferred from the conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy."' [Citations.]" (People v. Maciel (2013) 57 Cal.4th 482, 515-516.) The elements of agreement and intent may be established by circumstantial evidence. (People v. Homick (2012) 55 Cal.4th 816, 870; People v. Bogan (2007) 152 Cal.App.4th 1070, 1074.) Motive to commit the target offense, with an opportunity for discussion and agreement, can supply evidence of an agreement. (See, e.g., People v. Jurado (2006) 38 Cal.4th 72, 121; People v. Vu (2006) 143 Cal.App.4th 1009, 1025.)
Because conspiracy criminalizes the agreement to commit a crime, it "'does not require the commission of the substantive offense that is the object of the conspiracy.' [Citation.]" (People v. Morante (1999) 20 Cal.4th 403, 416-417 (Morante).) As a result, the absence of evidence of any specific threats against specific persons is of no consequence. Similarly, the absence of evidence of a defendant's personal involvement in making threats is also of no consequence. That is because "'[i]t is not necessary that a party to a conspiracy shall be present and personally participate with his [coconspirators] in all or any of the overt acts [citation]'"; instead, "'"'[e]ach [conspirator] is responsible for everything done by his confederates, which follows incidentally in the execution of the common design . . . . [Citations.]'"'" (Id. at p. 417.)
"Other than the agreement, the only act required is an overt act by any of the conspirators, not necessarily the defendant, and that overt act need not itself be criminal." (People v. Smith (2014) 60 Cal.4th 603, 616, citing People v. Russo (2001) 25 Cal.4th 1124, 1135.) Thus, Hall need not have personally committed or participated in — or even been present at the time of any of the overt acts — to be liable. (Morante, supra, 20 Cal.4th at p. 417.)
Similarly, it was not necessary for the prosecution to set forth in the indictment, or present to the grand jury, the express manner in which the conspirators would inflict bodily harm. (People v. Peppercorn (1939) 34 Cal.App.2d 603, 606.) Neither experienced extortionists such as AB members, nor their subservient agents, need to "find it necessary to designate specifically what he intends to do as a means of terrorizing his prey. [Citation.] The more vague and general his actions and statements the better they will serve his purpose in magnifying the fear of his victim and the better also it will serve to protect him in the event of the failure to accomplish his extortion and of a prosecution of his attempted crime. [Citations.] "'No precise words are necessary to convey a threat. Conduct takes its legal color and quality more or less from the circumstances surrounding it. [Citation.]"'" (People v. Massengale (1968) 261 Cal.App.2d 758, 764-765.) Here, the "'circumstances'" include the looming presence of the AB and its "business practices," something inferably known by all the white supremacist gang members involved in this matter.
The grand jury was entitled to give little weight to evidence that Shoop expressed sympathy for Richardson, and was even assisting him to collect money so he could pay his "fine." Just as playing "good cop" does not make someone less of a cop, playing "good extortionist" did not necessarily make Shoop less of an extortionist. There is no evidence Shoop's help to Richardson ever extended to telling him he should not pay the $2,500 to AB, or guaranteeing his safety if he came up short. Based on this evidence, the grand jury reasonably could conclude Shoop acted both as a concerned friend and as an extortionist.
Hall argues there was no evidence "of any force or fear used against [Richardson], or any sort of attempt to collect money from him." Perhaps, but Hall was not charged with the completed crime of extortion (separately punishable under § 518), nor with the crime of attempted extortion (punishable under § 524). Even assuming there is no evidence of the actual use of force or fear, such use is not an element of a conspiracy, which punishes agreements, not physical acts.
Similarly, even assuming there was no "attempt" to collect the AB fine from Richardson (although Richardson's surrender of his phone and passcode would belie such an assumption), that fact is also irrelevant, because no one was charged with attempted extortion. As emphasized above, conspiracy punishes the parties to the illegal agreement, not whether the parties achieved the result contemplated. As an inchoate crime, conspiracy fixes the point of legal liability at the time of the agreement to commit a crime, and thus reaches even further back into preparatory conduct than an attempt requires. (Swain, supra, 12 Cal.4th at p. 600.)
Hall suggests that collection of an AB fine levied upon an individual in these circumstances is not extortion, but provides no authority to support such a claim. Extortion is "the obtaining of property . . . from another, with his consent induced by a wrongful use of . . . fear." (§ 518.) Richardson was himself a white supremacist gang member, who the grand jury reasonably could infer had to have been keenly aware of the serious meaning of an AB "fine." More importantly, he must also have been cognizant of the dire consequences of defying the Aryan Brotherhood by not paying his fine. We therefore reject Hall's unsupported contention.
Hall also argues there was no evidence he agreed to "utilize illegal means to collect the debt." Not so. The AB is not a bank or credit card issuer. It does not employ lawful means to collect from its debtors, by use of lawsuits or writs of attachment. As the experts testified, the AB's preferable tools involve assault and even murder. And as a loyal PEN1 member, Hall would be fully prepared to follow the AB's collection order, lest he suffer AB's wrath himself. If this is not extortion, then many of the classic organized crime "protection rackets" are not either.
Parrish testified: "If a PEN1 member is given a mission or task by an Aryan Brotherhood member and it's not followed, well, his gang is going to suffer and so is he." (Italics added.) --------
Moreover, as in People v. Jurado, supra, 38 Cal.4th at p. 121, and People v. Vu, supra, 143 Cal.App.4th at p. 1025, both Hall and Shoop had numerous opportunities to communicate with Johnson and, based on the unique gang context involved, had clear motives to ensure Johnson would ultimately get the $2,500 AB fine Richardson owed. Indeed, the phone records presented to the grand jury contain hundreds of texts and phone calls between Johnson and both Hall and Shoop in the weeks before Richardson's death. Similarly, although to a lesser degree, the phone records show Hall and Shoop were also often in contact. These joint motives to commit the target offense, with ample opportunities for discussion and agreement between Johnson, Hall and Shoop, provide further circumstantial evidence of an agreement to collect Richardson's fine. Thus, the grand jury reasonably could find circumstantial evidence of an ongoing agreement between Hall and others, with the specific intent to conspire to and commit the crime of extortion.
We also come back to Johnson's text message to Shoop about the fine where he tells Shoop that the "2500 fine that was imposed on that dude is AB business, and not you or any other person can undo it or anything else. [Hall] will take charge[] of how to handle it and [no one] else." The grand jury reasonably could infer from this that Johnson told Hall he was being put in charge of collecting Richardson's fine and, based on Johnson's warning to Shoop, Hall had agreed to do so. This means two persons had discussed the collection of the fine. Similarly, it is not unreasonable to infer Hall agreed to perform this task, or Johnson would not have texted Shoop, ordering him to stay away. This inference is corroborated by the numerous texts and calls between Johnson and Hall both before and after the text message to Shoop. At this point, therefore, the agreement had been reached and the conspiracy formed. Several overt acts followed, long before the attempted robbery (e.g., Hall ordered Shoop to get Richardson's phone, and "bust him in the mouth if you feel like it").
In essence, through rhetorical questions, much of Hall's brief on appeal simply disputes the inferences the District Attorney draws from the circumstantial evidence presented to the grand jury. Instead, he implies that alternative, less inculpatory, inferences are just as likely to explain what transpired in the days leading up to Richardson's death.
On section 995 review, however, a court cannot pick and choose among alternative inferences. Rather, "[a] reviewing court may not substitute its judgment for that of the grand jury . . . in determining the sufficiency of the evidence and must draw all reasonable inferences in support of the indictment . . . ." (People v. Backus (1979) 23 Cal.3d 360, 391.) Hall's basic arguments in this regard fundamentally misconstrue the appropriate standard of review for section 995.
Ortega v. Superior Court (1982) 135 Cal.App.3d 244 (Ortega), illustrates the process a reviewing court must follow in a section 995 context when drawing possible inferences from circumstantial evidence.
In Ortega, a young woman was beaten and stabbed to death. Her purse was later found in the closet of a room occupied by one of the defendants. (Ortega, supra, 135 Cal.App.3d at pp. 249-251.) The evidence presented at the preliminary examination implied the victim was attacked out of anger at having told people that codefendant Ortega was homosexual. (Id. at p. 250.) Nevertheless, the magistrate held both defendants to answer on charges of robbery, rape, murder with special circumstances, and conspiracy to murder. (Id. at p. 248.)
The Court of Appeal held that there was sufficient evidence to support the holding order on the robbery charge. (Ortega, supra, 135 Cal.App.3d at p. 257.) The court explained a court's role in drawing inferences from circumstantial evidence presented at a preliminary examination: "One requirement for proving a robbery is a showing that the act of force or intimidation by which the taking of property is accomplished was motivated by the intent to steal. [Citation.] [Defendant] argues no evidence shows an intent to steal motivated the attack on [the victim] and therefore no reasonable or probable cause exists to hold him to answer to a charge of robbery. [¶] Ordinarily, a showing that defendant took property from the victim of an assault provides a strong inference that the act of force was motivated by an intent to steal. However, the usual inference may be weakened here and not available. [Defendant] submits the evidence shows the most likely explanation of events is the victim was attacked as a result of some motive other than to acquire her purse and it remained in the car after the attack accidentally. If this account is correct no robbery occurred. [Citation.] The argument continues, since this version of events is the most probable based on the evidence, there is no reasonable or probable cause sufficient to bind him over for trial." (Id. at pp. 256-257.)
Nevertheless, the court observed that "[w]e are not at liberty to select from available inferences. The evidence permits two inferences about [defendant's] intent. He may have formed an intent to take [victim's] purse before the attack or he may have been oblivious to the purse until he returned to the car after the attack was completed. No item of evidence lends differential weight to either inference. If the same evidence is presented at trial the jury could not find [defendant] guilty of robbery. [Fn. omitted.] However, as related above, the evidence to support an information need not be sufficient to support a conviction. It is possible to infer that [defendant] was aware [victim] was carrying a purse and to infer he resolved to take it from her before the attack. We are required to accept that inference in reviewing the sufficiency of the information. It provides reasonable and probable cause to support a charge of robbery." (Ortega, supra, 135 Cal.App.3d at p. 257.)
So too here. The grand jury was presented with evidence supporting a reasonable inference regarding Hall's agreement to join in and take charge of the efforts to collect the AB's fine from Richardson, and that is all that is required to meet section 995 review. The fact it is also possible to infer that this evidence could equally lead to another, less culpable, state of affairs is simply not relevant under section 995.
Simply put, a section 995 motion is not a second grand jury proceeding, where a defendant obtains a shot at convincing a different fact finder the evidence does not provide sufficient weight to support a particular charge. The evidence presented to the grand jury reasonably supports the inference Hall was a member of a conspiracy with Johnson and Shoop to collect, i.e., extort, $2,500 from Richardson. As a result, and based upon the circumstantial evidence presented to them, it was possible to draw the inferences the grand jury drew and we must accept those inferences.
III.
DISPOSITION
The trial court's order dismissing counts 6 and 7 of the indictment, and their concomitant enhancements and allegations, is reversed. The trial court is ordered to reinstate counts 6 and 7, their enhancements, and any prior conviction allegations.
ARONSON, J. WE CONCUR: MOORE, ACTING P. J. THOMPSON, J.