Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWF016690. F. Paul Dickerson III, Judge.
Koryn & Koyrn and Daniel G. Koryn, under appointment by the Court of Appeal, for Defendant and Appellant, Andre Jeriel Jacques.
Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant, Michael Durrell Ward.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant, Damita Jo Ward.
Edmund G. Brown, Jr. and Kamala Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Scott Taylor and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ P.J.
A jury convicted Michael Ward (hereinafter, “Michael”) of conspiracy to commit first degree murder (Pen. Code, § 182, subd. (c)(1)), conspiracy to commit witness intimidation (§ 182, subd. (a)(1)) and conspiracy to commit residential robbery (§ 182, subd. (a)(1)), all for the benefit of a criminal street gang (§ 186.22, subd. (b)). The jury convicted Andre Jacques of conspiracy to commit witness intimidation and conspiracy to commit residential robbery, both for the benefit of a criminal street gang. The jury convicted Michael’s mother, Damita Ward (hereinafter, “Damita”) of being an accessory after the fact (§ 32). Michael and Jacques were sentenced to prison and Damita was granted probation. All three appeal, making various claims. We affirm Michael’s conviction for conspiracy to commit first degree murder, the gang enhancement attached to it and its 25 years to life sentence, while reversing his convictions for conspiracy to commit witness intimidation and conspiracy to commit residential robbery and their enhancements and sentences. We affirm Jacques’s conviction for conspiracy to commit residential robbery and the gang enhancement attached to it, while reversing its sentence, his conviction for conspiracy to commit witness intimidation, its gang enhancement and its sentence. We remand the matter to the trial court to impose a correct sentence on the conspiracy to commit residential robbery conviction. We affirm the judgment as to Damita.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTS
In August 2005, Michael, a member of PHD (Pimping Hoes Daily) gang, was arrested for, inter alia, pimping minors, namely, the victim in this case and another of Michael’s prostitutes, Sylvana Hines (hereinafter “the pimping case”). From the day room at county jail, between August 5 and 26, 2005, Michael made a series of calls to Damita, during which he had his mother connect him through three way calls with fellow gang members, including Jacques, and with Hines and his girlfriend, Desiree Delfin, all in an effort to have his fellow gang members and Hines’s brother, Tommy Jacquett, go to the victim’s home, intimidate, rob and kill her so she could not testify against him in connection with the then pending charges. The calls were recorded and played for the jury and in them, Michael, fellow gang members including Jacques, Hines, Delfin and Jacquett frequently spoke in code so as to confound Michael’s jailers. Hines, Delfin, the case agent and Michael provided the translation of this code for the jury at trial. By the time of this trial, everyone else who had been charged, including Hines and Delfin, had pled guilty. More facts will be stated in connection with the issues discussed.
Alleged fellow PHD member, Ira Hatchett, who was also a defendant in this trial, was acquitted by the jury.
ISSUES AND DISCUSSION
1. Michael’s Conviction of Conspiracy to Commit Murder
a. Jury Instructions on Conspiracy
The jury was instructed, as provided by Judicial Council of California Criminal Jury Instruction, CALCRIM No. 500, that Michael had been charged with conspiracy to commit first degree murder. The instructions then stated, as provided by CALCRIM No. 520, “To prove Michael... is guilty of this crime, the People must prove that: [¶]... [t]he defendant committed an act that caused the death of (another person); [¶] [a]nd, ... [w]hen the defendant acted, (he) had the state of mind called malice aforethought[.]” This instruction went on to provide that malice aforethought could be either express, i.e., the intent to kill, or implied, and proof of either “is sufficient to establish the state of mind required for murder.” Finally, the jury was instructed, in pertinent part, “Michael... (is) charged... with conspiracy to commit murder. [¶] To prove that (the) defendant is guilty of this crime, the People must prove that: [¶]... [t]he defendant intended to agree and did agree with one or more of (the other defendants) to intentionally and unlawfully kill; [¶]... [and a]t the time of the agreement, the defendant and one or more of the alleged members of the conspiracy intended that one or more of them would intentionally and unlawfully kill... [¶]... [¶] To decide whether (the) defendant and one or more of the other alleged members of the conspiracy intended to commit murder, please refer to Instructions 500, 520, and 521, which define that crime. [¶] The People must prove that the members of the alleged conspiracy had an agreement and intent to commit murder.” Unfortunately, the jury was never given CALCRIM No. 521, which requires it to determine which degree of murder was committed and explains the difference between first and second degree murder, providing that first degree murder requires the intent to kill (CALCRIM No. 521). However, in the last quoted instruction, the jury was told that in order to convict Michael of conspiracy to commit first degree murder, the People had to prove, inter alia, that, at time of the agreement, Michael intended that a conspirator would intentionally and unlawfully kill. While the instruction directed the jury to refer to the instruction that provided for both the express and implied malice theories of murder “in deciding whether [Michael] intended to commit murder, ” that did not detract from the fact that it specifically required that he intended that a coconspirator would intentionally and unlawfully kill.
This is the jury instruction for murder, and, of course, Michael had not been charged with murder, so the introductory sentence, “To prove Michael is... guilty of... [¶]... conspiracy to commit first degree murder” was incorrect. However, Michael does not contend that this was error.
Much to the jury’s credit, this omission was caught by its members and reported to the trial court in the form of a request for 12 copies of CALCRIM No. 521. Unfortunately, the trial court, with the stipulation of counsel, responded, “Please disregard any reference to CALCRIM 521....”
Therefore, we reject Michael’s contention that the jury was not instructed that intent to kill was an element of the charged conspiracy.
The parties agree that intent to kill is a requisite element of conspiracy to commit first degree murder and implied malice is insufficient (People v. Swain (1996) 12 Cal.4th 593), therefore, directing the jury to consider the instruction requiring either an intent to kill or implied malice was erroneous. The question then becomes whether, notwithstanding the instruction’s clear requirement that Michael have the intent to kill, there is a reasonable likelihood that the jury nevertheless used that instruction’s reference to CALCRIM No. 520 as a basis for concluding that intent to kill was not required and implied malice would be sufficient (Estelle v. McGuire (1991) 502 U.S. 62, 72 [112 S.Ct. 475]; People v. Wallace (2008) 44 Cal.4th 1032, 1075). To make this determination, we may examine the argument of counsel (Boyde v. California (1990) 494 U.S. 370, 383-386 [110 S.Ct. 1190]).
The prosecutor argued to the jury that Michael intended to agree and did agree with one or more persons to commit murder and that other person was Hines. He pointed out that CALCRIM No. 520 required malice aforethought and he then said, “Let’s talk about how we know [Michael] wanted [the victim] dead.” In discussing the second element of conspiracy to commit first degree murder, the prosecutor described it as, “At the time of the agreement, [Michael] and the other members of the conspiracy intended that one of them would kill.”
Defendant asserts that what the prosecutor said immediately after this statement suggested to the jury that it could rely on implied malice in determining whether Michael had the requisite intent for conspiracy to commit first degree murder. He said, “You do not have to find that... Jacquett... agreed or intended to commit the murder. That’s not what th[e instruction] says. Nobody has to sign on to be the murderer in order for Michael... to be guilty of conspiracy to commit murder.” At this point, counsel for Michael objected on the basis that the prosecutor’s comment was an improper statement of the law. The trial court overruled the objection and the prosecutor continued, “Nobody has to sign on to be the murderer for Michael... to be guilty of conspiracy to commit murder, nobody. It’s what Michael... wanted... Jacquett to do. Michael... intended for... Jacquett to commit that murder during the robbery. [Jacquett] was signed up to be the violent one, to do the dirty work. He was referenced by Michael... as the violent one. There’s a reason why Michael... wanted... Jacquett.”
Contrary to Michael’s interpretation, the above argument was not an invitation by the prosecutor to have the jury convict Michael of conspiracy to commit first degree murder on an implied malice theory. Rather, the prosecutor made clear that the instruction required that Michael intended that the victim be killed and he argued that Michael, indeed, intended that Jacquett kill the victim. What the prosecutor was additionally asserting was that it was not necessary that Jacquett agree to or intend to kill the victim in order for Michael to be convicted. Michael makes no argument here that such an assertion was incorrect. Certainly, it did not open the door for the jury to utilize implied malice as a substitute for Michael’s intent to have the victim killed.
Michael also asserts that the prosecutor’s remarks constituted misconduct, and he attempts to go around the requirement that he request an admonition, which he failed to do below. However, his argument fails on the merits, as we have already explained. In his further assertion that the prosecutor was suggesting, through the statement, that only Michael had to have the intent to kill, he ignores the prosecutor’s clear assertion, that we have already noted, that two people had to agree to commit murder and two people had to have the intent to kill, and that other person was Hines.
b. Insufficiency of the Evidence
Michael asserts that there was insufficient evidence to support his conviction for conspiracy to commit first degree murder because there was no credible solid evidence that one of the other participants intended to kill (People v. Petznick (2003) 114 Cal.App.4th 663, 680). We disagree.
Hines met Michael when she was 15 and began working for him as a prostitute when she was 16 while they were boyfriend/girlfriend and she was in love with him. Despite being convicted of prostitution in 2004 and 2005, she continued to work as his prostitute during August 2005, while Michael was in custody for the pimping case, and even after, until she was arrested in 2006. She knew he had seven or eight other prostitutes working for him at the same time, including the victim, and she knew he had a girlfriend, Delfin. She called Michael “Daddy” at his direction. She had his name tattooed in two different places on her body. Michael was physically abusive towards her and hurt her when she told him several times that she wanted to stop being a prostitute, but she continued to love him and work for him. She lived by a set of rules he dictated. She was aware of his membership in PHD and knew many of the other members. Long after these crimes were committed, she still loved and wanted to protect him, and while he was in jail awaiting trial in this case, she wrote him love letters.
She testified that Michael told her that if she loved him, she would prostitute herself for him.
On July 4, 2005, she heard an upset Michael say, possibly in the presence of fellow PHD members Shaunta Rankin and Ira Hatchett and others, that the victim was talking to the police and he believed the police would soon be talking to him. Thereafter, at Michael’s direction, she and another of his prostitutes bought.45-caliber bullets and dropped them off when Michael, Hatchett and Rankin were there. Michael told Hines he was going to use the bullets “on a mission.” The next day, an arrest warrant was issued for Michael for pimping and pandering minors and possessing sexually graphic pictures of minors, involving the victim and Hines (the pimping case). Michael told Hines that his picture was on the news and, at Michael’s direction, she took off with him and ran to several states before Michael was apprehended in Texas on August 1, returned to California and incarcerated in county jail.
See footnote two, ante, page three.
During a conversation on August 5, Michael reminded Hines that he, Rankin and Hatchett had intended to rob and intimidate the victim in mid-July and Hines had assisted him by purchasing the bullets for this “mission, ” but the men had not gone through with it. During an August 9 conversation, Michael told Hines to contact Rankin and Hatchett to see whether they were doing what they were supposed to do to the victim. Hines told Michael that he would be stupid to do what he was planning to do. Michael responded that it would be smart because the victim was the only thing holding him back. Michael then told Hines to call her brother, Jacquett, a 15-year-long member of the Emerald Hills Bloods, and ask him if he’d do the job for $5,000 and she agreed and told her brother what Michael wanted done, which was to have the victim close her mouth and not testify against Michael. Hines purchased a second set of bullets at Michael’s direction, having given the first set away before she left Texas.
Although in most cases, jurors are told by the trial court that transcripts of Exhibits that are recordings are merely auxiliary to the recordings themselves, this jury was not and the transcripts here were more frequently referred to by the parties than the actual recordings. Therefore, we have included in our citations to the record references those transcripts.
Hines was sufficiently close to her brother that he was staying with her in early/mid-August 2005, and, after he was arrested for attempted first degree murder on August 17, in an unrelated case, his wife stayed with her.
On August 10, Hines reported to Michael that Jacquett had agreed to do the job. Hines told Michael that Jacquett needed the victim’s address and she asked him if Delfin knew it. Michael told Hines if Delfin did not know it, she should call Rankin or Hatchett because they did, and Michael wanted Hatchett along on the job. Hines asked Michael if he wanted her to tell Jacquett to call Hatchett and Michael said yes, that he wanted it done as soon as possible, which, to Hines, meant that the process of getting to the victim was to start, and she agreed to do this. At Michael’s direction, Hines showed Jacquett a picture of the victim that was on her computer and urged him to involve Hatchett despite his reluctance to do so. Michael told Hines she needed to tell Jacquett to make it look like a robbery, similar to the successful one committed by two men who had used Michael’s car during the crime, an incident with which Hines was familiar. Hines then asked Michael, “But, what if... [¶]... [the victim is] gonna say something[?]” Michael replied, “... [J]ust act like... ‘[O]h, everybody alright[’]... but... then it’s something else.” In an attempt to clarify what Michael had just told her, Hines asked him if her brother was supposed to just put something over the victim (so she later couldn’t identify him). Michael replied, “That too..., but I’m saying... he really don’t need to because... who gonna be able to say something. Nobody....” Michael went on to say that the victim should be lulled into the sense that if she just cooperates with the robber, everything will be alright and therefore there would be no need for her to panic or get hysterical. However, everything would not be alright. Michael asked Hines if she understood what he meant and she said she did. Hines testified that it was at that moment that she knew that Michael wanted the victim to be killed. However, the jury was free to reject this assertion and believe, based on her previous actions and her relationship with Michael, that she had wanted the victim killed from the beginning.
Be that as it may, even after this conversation, Hines continued to help Michael with his plan, including: 1) giving Jacquett and Hatchett each other’s phone numbers; 2) telling Hatchett what Michael wanted done; 3) asking Jacquett to do what Michael wanted him to do and telling him to tell Hatchett that Michael would pay him $5,000; 4) telling Michael that Hatchett told her that he had the gun, and, later, that Jacquett told her he had the gun and the bullets; 5) asking Michael who was supposed to get the gun after the job was completed; 6) telling Michael she had shown Jacquett a picture of the victim and conveyed to him Michael’s directive that they not do it August 12; 7) telling Michael she told Jacquett to talk to Hatchett and had told Jacques to talk to Jacquett; 8) giving Jacques Jacquett’s number; 9) initiating two different three-way calls with Michael and Jacques; 10) figuring out the meaning of a map Michael had sent her from jail concerning the location of the victim’s house and showing that map to Jacques, at Michael’s request; 11) arranging for the delivery to her of the gun that was to be used on the victim and keeping it in her apartment; 12) speaking to Jacques on the phone on August 14 at Michael’s direction; 13) calling Jacques on August 17 and putting him on the phone with Michael; 14) arranging a three-way call with Michael and Hatchett on August 21 so Hatchett could see the map; and 15) cleaning the gun.
That day, Jacquett and Jacques spoke to each other on the phone twice.
The jury was free to reject Hines’s claim that she did not want the victim to be killed, just as the jury rejected Michael’s identical claim. Hines’s assertion that she did not tell Jacquett that Michael wanted the victim killed could also have been rejected by the jury. The fact remains that after August 10, it was crystal clear to Hines that Michael wanted the victim dead and Hines did all the above-mentioned things to assist him in this plan. That was sufficient evidence that she intended that the victim be killed.
c. Exclusion of Jacquett’s Testimony
During trial, Michael sought to have Jacquett testify that he did not plan to kill anyone, he did not agree to kill anyone and he did not intend to kill anyone. The prosecutor told the trial court that Jacquett’s attorney had told Michael’s attorney that he would not allow Jacquett, who had been sentenced days before and still had almost 60 days in which to appeal, to testify, and calling Jacquett to testify would violate Jacquett’s Fifth and Sixth Amendment rights. The trial court agreed, accepting the prosecutor’s representation that Jacquett’s attorney did not want Jacquett to testify and it considered Jacquett to still be represented by this attorney until he filed a notice of appeal within 60 days of his sentencing. Additionally, the court concluded that Jacquett’s anticipated testimony was not clearly probative. Michael here contends that this ruling was in error and requires reversal of his conviction for conspiracy to commit first degree murder. We disagree.
Jacquett pled guilty to conspiracy to commit robbery, during which a principal was armed, and conspiracy to commit witness intimidation.
Counsel for Michael said that before Jacquett had been sentenced, counsel for Jacquett had told counsel for Michael that he did not want Jacquett testifying.
Michael contends that the evidence was relevant because it was the prosecution’s theory that “[Michael] and Jacquett agreed to kill” the victim. However, the portion of the prosecutor’s closing argument, which we have already cited, supports only the notion that Michael wanted Jacquett to kill the victim and intended that Jacquett kill her. However, the prosecutor never argued that Jacquett wanted to or intended to kill the victim. The prosecutor argued to the jury that Michael was guilty of conspiracy to commit first degree murder because he was able to communicate with Hines his intent to have the victim killed and he agreed with her to have the victim killed, said agreement being inferred from conduct upon a finding that she acted with a common purpose to commit the crime. The prosecutor cited some of the acts Hines engaged in after it was apparent to her that Michael wanted the victim killed which assisted in the plan to kill the victim as we have mentioned above. Therefore, the trial court was correct in that Jacquett’s intent was not particularly relevant.
See pages six through seven, ante.
In his reply brief, Michael asserts that the prosecutor used “conversations between Hines and Jacquett to establish intent to kill” citing to his opening brief on pages 88, 95-97, however, no such references appear on those pages. In fact, there were no recorded conversations between Hines and Jacquett introduced at trial. Moreover, as we have already stated, the prosecutor did not rely on any conversations between Hines and Jacquett to establish Michael’s intent to kill as this would have made no sense.
Michael concedes that Jacquett retained his privilege against self-incrimination as long as time remained for him to file an appeal. (People v. Fonseca (1995) 36 Cal.App.4th 631, 637.) Michael asserts, however, that since Jacquett had the burden of showing that his anticipated testimony might be incriminatory had he been called (Evid. Code, § 404) and the prosecutor made no such showing, the trial court’s finding that Jacquett’s Fifth Amendment right would be violated by being called as a witness by Michael was speculative, and, therefore, arbitrary. However, as the People correctly point out, Michael’s trial counsel did not request that Jacquett be put on the stand and asked if he was invoking his Fifth Amendment right, therefore, Michael waived the matter. (See People v. Partida (2005) 37 Cal.4th 428, 434.)
Because it is not reasonably probable that, even if Jacquett had agreed to testify and had testified as anticipated, a verdict more favorable to Michael would have resulted, reversal is not required. (People v. Espinoza (2002) 95 Cal.App.4th 1287, 1317.)
d. Jury Instruction on Number of Conspiracies
Michael asserts that the evidence showed only one conspiracy, regardless of the number of criminal objectives, because there was one ultimate objective (to prevent the victim from testifying against him), one victim, the overt acts for all three charged conspiracies were identical and all three occurred at the same time. Under Penal Code section 182, subdivision (a), Michael argues that he may stand convicted only of conspiracy to commit first degree murder, which carries the greatest maximum term among the convictions rendered by the jury. The People agree. Therefore, we will reverse Michael’s convictions of conspiracy to intimidate a witness and conspiracy to commit residential robbery and their attendant enhancements and sentences.
Because we reverse Michael’s conviction of conspiracy to commit witness intimidation, we need not address Jacques’s argument that the jury instructions on this crime were defective, in which Michael joins.
However, Michael here asserts that the jury should have been given the following instruction,
“If you have found the defendant guilty of more than one count of conspiracy, you must then determine whether there was one overall conspiracy to commit [multiple] crimes, or whether there were separate conspiracies.... Whether the object of a single agreement is to commit one or many crimes, it is in either case the agreement which constitutes the crime. One agreement cannot be taken to be several agreements and hence several conspiracies simply because it envisions committing more than one crime. [¶] However if you find beyond a reasonable doubt that there was not one overall agreement, but separate agreements, each accompanied by an overt act, then separate conspiracies have been established. [¶] If you find the defendant guilty of more than one count of conspiracy, you will then include a finding as to whether there is one overall conspiracy or separate and distinct conspiracies.” (CALJIC No. 17.05)
Michael points out that there is no corresponding Judicial Council of California Criminal Jury Instruction (CALCRIM).
In his opening brief, Michael argues that his conviction for all three crimes must be reversed because the jury was not instructed that it must unanimously agree on the number of conspiracies and this was prejudicial because the evidence showed there was only one. In his opening brief, Michael concedes that appellate courts are divided on whether there is a sua sponte duty to instruct on single versus multiple conspiracies “when there is evidence to support alternative findings” and he sides with courts that require such instruction. He concludes by asserting, “The jury... should have been directed to decide the factual issue... whether the prosecution had proven beyond a reasonable doubt the existence of three separate conspiracies.”
Presumably, in light of their agreement with Michael that the evidence showed only one conspiracy, and that Michael should stand convicted only of conspiracy to commit first degree murder, the People did not respond to this argument in their brief. However, in his reply brief, Michael asserts that his conviction for conspiracy to commit first degree murder should be reversed because of the absence of the instruction, citing People v. Jasso (2006) 142 Cal.App.4th 1213 (Jasso). We find nothing in Jasso, nor in logic, requiring such an outcome.
In Jasso, a prison inmate was convicted of three counts of conspiring to transport a controlled substance into his prison. (Jasso, supra, 142 Cal.App.4th at p. 1215.) The inmate had called a man on June 5, 2001 and told him to get the wife of one of his fellow inmates to bring in drugs while she was visiting her husband. (Id. at p. 1217.) On June 6, the inmate called the same man and told him to have the wives of two other fellow inmates bring in drugs while they were visiting their husbands. (Ibid.) In all three cases, the drugs were intercepted. (Id. at pp. 1218-1219.) The appellate court held, “... [A]n instruction is warranted where the evidence could support a finding that there was one overall agreement among the various parties to perform various functions in order to carry out the objectives of the conspiracy. [Citations.] [¶]... [¶] [The inmate] claims the evidence could have supported a finding that he and [the man he spoke to on the phone] had a general, all-inclusive conspiracy aimed at achieving a single, unlawful result: smuggling drugs into [the prison]. We agree. [¶]... [The evidence] could support a finding that there was a single, all-inclusive agreement that encompassed the three... attempts to import drugs.... [¶]... [¶]... [A] conspiracy can have multiple criminal objectives. Consequently, if the jury determined that there was but one general plan or agreement, the fact that [the inmate] attempted to commit three crimes, that is, that he attempted to import drugs on three separate occasions, using three different women, would not automatically or necessarily convert a single agreement into three separate conspiracies. [¶]... [¶]... [T]he [trial] court erred in failing to instruct on single versus multiple conspiracies. Moreover, given the strong evidence that the three unsuccessful efforts were merely part of a single agreement between [the inmate] and [the man he called] to smuggle drugs into [the prison], we further conclude that it is reasonably probable the jury would have convicted defendant of a single conspiracy rather than three separate counts of conspiracy had it been properly instructed.” (Id. at pp. 1220-1223, italics added.) The obvious purpose of requiring this instruction is to prevent a jury from convicting a defendant of multiple conspiracies where the evidence supports the existence of only one conspiracy. With our reversal of Michael’s convictions of conspiracy to intimidate a witness and conspiracy to commit residential robbery, he stands convicted of only conspiracy to commit first degree murder, thus, he is not convicted of multiple conspiracies.
e. Cumulative Error
Having concluded there was no prejudicial error in the jury instructions, in the prosecutor’s remarks to the jury and in the refusal to allow Jacquett to testify, we necessarily conclude there was no cumulative error requiring reversal of Michael’s conviction.
2. Jacques’s Conviction of Conspiracy to Commit Residential Robbery
As with Michael, the People concede that the evidence supports Jacques’s conviction of only one conspiracy, and it is the one that carries the greatest term, therefore, we will reverse his conviction for conspiracy to intimidate a witness, leaving him convicted only of conspiracy to commit residential robbery.
Because we reverse Jacques’s conviction of conspiracy to commit witness intimidation, we will not address his assignment of error regarding the jury instructions for this crime.
a. Insufficiency of the Evidence
Jacques contends there was insufficient evidence to support his conviction for conspiracy to commit residential robbery. We disagree.
On August 5, Michael left a message for Hatchett and Rankin to reactivate the mid-July plan to rob and intimidate the victim and he mentioned this plan to Hines and her role in obtaining the bullets for it, which Hines had subsequently given away. On this day, during a conversation with Delfin, after Michael told her that he was facing 18 years for the pimping case involving the victim and Hines, he said that the mid-July plan would have to be back on, adding, “Niggers don’t tolerate that type of bullshit at all. So, and with no that, then it’s no nothing” meaning with the victim out of the way, there was no case against him. He also directed Delfin to call Hatchett and Rankin and let them know that the mid-July plan was back on.
Michael expressed confidence that the portion of the case involving Hines would not be a problem as she would not testify or provide any evidence against him.
On August 6, Michael directed Hatchett to get together with Rankin, whom Michael said had also been ratted out by the victim, and proceed with the mid-July plan and he repeated to Hatchett that he was facing 18 years (due to the pimping case). He told Hatchett that he had tried the previous day to reach Jacques, but was told that he was in jail, and that the case agent had asked Michael about Jacques and told Michael that he suspected that Michael and Jacques were PHD members. Michael, believing that Hatchett had agreed to proceed with the mid-July plan, told Hines that it was under way.
On August 7, Hatchett reported to Michael that he had not yet been able to reach Rankin or Jacques and Michael replied that the plan needed to go forward immediately and Hatchett said he’s “gonna get down on that.” Michael responded that he would be out of jail immediately, once again meaning that with the victim out of the way, there was no case against him. Michael directed Hatchett to go to the victim’s neighborhood and find out exactly where her house was and to not take his cell phone, because the police would be able to track his movements through it. Michael told Hatchett that this situation was “damn near” a prior incident during which the prostitute of a fellow PHD member had been kidnapped by that member and another member then threatened to kill her in order to stop her from continuing to testify at the preliminary hearing on the kidnapping. Michael told Hatchett that if Rankin forgot how to get to the victim’s house, Delfin or Jacques knew how to get there.
On August 9, as stated before, Michael told Hines to get together with Hatchett or Rankin and see what they were doing in terms of the plan and he repeated that the victim was the only thing standing in his way. Also, as stated before, Michael told Hines to offer her brother, Jacquett, $5,000 to participate. Hatchett, Rankin and Jacques were together during the call. For the first time, Michael spoke directly to Jacques, asking him if he remembered the night in Hollywood when Jacques, Michael and a third PHD member “had to get active” in a shooting and he asked Jacques if he was ready to “get active” again, in other words, to participate in the plan to get the victim. Jacques said that he was. Michael made a reference to the intimidation of the fellow PHD member’s prostitute (mentioned above), and he asked Jacques if Jacques still remembered how to get to the victim’s house. Jacques said that he did, somewhat, and Michael asked Jacques when Jacques was going to be ready because Delfin was going to show him where it was, as things needed to get started. As with Hatchett, Michael told Jacques not to take his cell phone, in order to avoid detection by the police, and Jacques replied that he knew that. Michael also spoke to Rankin directly for the first time and got him involved in the plan. Michael directed Delfin to call Jacques, Rankin and Hatchett concerning the location of the victim’s home. Phone records show that Delfin talked to Hatchett that night for 25 minutes.
As stated before, on August 10, Hines told Michael that Jacquett would participate in the plan and Michael directed Hines to put Jacquett and Hatchett in touch with each other to get the plan started. Also as stated before, by August 11, Hatchett had said that he had the gun to be used in the plan.
On August 13, Michael told Jacques that Jacquett was trying to reach him and others to find out the location of the victim’s house. Michael gave Jacques Jacquett’s number, which Jacques programmed into his cell phone. Michael told Hines to give Jacquett Jacques’s cell phone number and have Jacquett call Jacques immediately. According to cell phone records, Jacquett and Jacques spoke by phone the next day twice, Jacques tried to call Jacquett four times, and Jacques spoke briefly to Hines. There had been no prior calls on those records between Jacques and Jacquett. On the same day, Hatchett and Jacques spoke by phone twice. Also on August 13, Jacques and Michael discussed how to get to the victim’s home, but Jacques told Michael that he needed an exact address. Michael replied that he was going to draw a map to show the way. Jacques told Michael that by going ahead with the plan, Michael was going to bring on bad things. Michael again told Jacques not to bring his cell phone and to get Rankin to help him. After Michael complained to Jacques about people not doing what they were supposed to do, Jacques said that the victim would already have been taken care of if he had his car. Michael told Jacques to tell Jacquett to make it look like a robbery, but he said that Jacquett knew that robberies go bad. Michael repeated to Jacques what he had said to Hines-that robbery victims think everything will be alright if they just cooperate, but that isn’t always the case. They ended their conversation by Jacques telling Michael to call him every time he got access to a phone.
On August 14, Hines told Michael that she called Jacques, gave him Jacquett’s number and asked him to call Jacquett. As stated before, Jacques and Jacquett spoke that day. Also as stated before, on that day, Hines told Michael that Jacquett had the gun and the bullets. Michael told Hines to call Jacques and tell him to come to her place so he could see the map Michael was sending to her, but Hines reported that Jacques’s phone had been turned off. Michael, concerned with the possibility that Jacques wasn’t cooperating fully, called him and expressed his feelings. However, then Michael directed Jacques to look at the map he was sending. Jacques volunteered to put money on Michael’s account at jail.
On August 15, Jacques told Michael that others should be helping Michael out more with his plan and he was planning to go to Hines apartment and look at the map Michael was sending. That night, Jacques reported to Michael that in a phone conversation he had with Jacquett, he told Jacquett that he did not know the exact location of the victim’s home. Michael told Jacques that was alright, as the map he was sending would make it clear. Michael asked Jacques if Jacques called Rankin, but Jacques said that Rankin had no minutes left on his phone. Michael and Jacques discussed the importance of using Hatchett’s car in the plan, and Michael told Jacques to “stay on” Hatchett to come through despite Hatchett’s apparent lack of enthusiasm for the venture, but Jacques replied that he could not make Hatchett do something Hatchett did not want to do (and he called Hatchett a choice name).
On August 16, Michael complained to Hines that all of his friends, including Jacques, were not doing what he wanted them to do. By that night, Michael was furious with Jacques and the rest.
On August 17, Hines received the map that Michael had sent and Michael called Jacques and told him to get over to Hines’s apartment and look at it. On August 18, Michael was again angry with Jacques for his inaction. As stated before, the same day, Michael learned that Jacquett had been arrested on August 17. On August 25, Michael remained angry at Jacques and the others. On August 26, Damita and Hines told Michael that their homes had been searched by the police in connection with a conspiracy to commit murder and items were seized, including the gun and the map, and that the police had been listening in on all of his phone calls. During the call, Jacquett’s wife told Michael that Jacques, Hatchett and Rankin had come to Hines’s apartment and demanded the gun that was supposed to be used in the plan, but Hines had refused to give it to them.
On August 26, Michael called Jacques and told him about the searches of the homes of Damita and Hines. Jacques told Michael about him, Hatchett and Rankin going to Hines’s apartment the night before the searches and her refusal to give them the gun, which angered him. Despite this, Jacques asked Michael again if he needed money on his jail account and Michael replied that he needed money for his lawyer and rent by Sunday. Michael told Jacques that the plan was off, that the police were listening to everything they said and they knew everything and they had the gun that was to be used and Jacques should not say anything to the police.
Contrary to Jacques’s assertion that there was no evidence he had any knowledge about a gun or a plan to rob the victim, on August 9, Michael reminded Jacques of what they had done during the shooting in Hollywood and asked him if he was willing to do it again and Jacques said he was. Michael also reminded Jacques of when another member’s prostitute had had her life threatened when she testified against that member for kidnapping her. Jacques knew Michael was speaking of the victim and he said he had something of a recollection of where she lived. On August 13, Jacques told Michael he needed the victim’s address and Michael said he would send the map. Jacques demonstrated his awareness of the severity of the undertaking by telling Michael that bad things were going to happen because of the plan. When Michael complained to Jacques about his perception that others were not doing what he wanted them to do, Jacques told Michael that if he had had his car, the victim would already have been taken care of. Michael told Jacques to make it look like a robbery, but added that robberies can go bad, and victims can believe they will be okay, but they are not. Jacques told Michael to call him every time Michael had access to the phone. On the 14th, Jacques spoke with both Jacquett and Hatchett on the phone, under Michael’s direction. Although Michael expressed some displeasure with Jacques that day, he still directed Jacques to go to Hines’s apartment to see the map he had sent of the location of the victim’s home. On August 15, Jacques told Michael he was planning on doing that and he sympathized with Michael’s complaints about the others’ inactivity. Jacques reported to Michael about the conversation he had had with Jacquett and that they still did not know the victim’s exact address, but Michael reassured him that the map would clear things up. Jacques reported to Michael that he had carried out Michael’s directive to call Rankin, but was unable to reach him. They discussed the importance of using Hatchett’s car. On August 17, Michael told Jacques to go look at the map. Despite Michael’s anger at Jacques, and his apparent frustration over Jacquett being arrested and the police finding out about the plan, Jacques continued to attempt to help Michael by offering him money.
Jacques suggestion that Michael, during his testimony at trial, interpreted some of the more cryptic statements that were made during the phone calls in a way that undermined Jacques is belied by the record-in fact, Michael did his best on the stand to exonerate not only Damita but Jacques, claiming that Jacques had played him for a fool and did not intend to help with the plan. Jacques’s contention that the gang evidence did nothing but suggest that he was guilty by association ignores the fact that the gang evidence played no part in the conversations which we have summarized above, and those conversations demonstrate that Jacques entered into a conspiracy to rob the victim.
b. Misconduct by Trial Counsel for Michael
We note that part of Jacques’s brief is missing concerning this issue. A quick scanning of the draft brief by appellate counsel for Jacques would have revealed the omission and prevented it from appearing in the final version of the brief.
Jacques here contends that his conviction for conspiracy to commit robbery should be reversed because of misconduct by trial counsel for Michael. In People v. Estrada (1998) 63 Cal.App.4th 1090, 1095, 1096, Division One of this court stated, “While it is clear that the conduct of counsel for a codefendant can violate a defendant’s constitutional rights [citations], there are few cases on the matter, and the law generally applicable to such situations is not well developed. Since we conclude, however, that the direction of the blow is less important than the wound inflicted, we decide that the analysis applicable to prosecutorial misconduct, if not a perfect template, is at least a useful guide for the review of misconduct committed by counsel for a codefendant. [¶] A federal constitutional violation occurs when the behavior of the prosecutor ‘“‘comprises a pattern of conduct “so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.”... ’”’ [Citation.]”
Jacques cites as misconduct the fact that Michael’s trial counsel cross-examined Delfin about the shooting incident in Hollywood. Because Jacques fails to specify what in particular about Delfin’s testimony on the 110 pages he cites is objectionable, we will assume that he is assigning as error any question Michael’s attorney asked Delfin about the incident. We note that not once did trial counsel for Jacques object to any questions trial counsel for Michael asked Delfin about this incident. Therefore, if the rules applicable to prosecutorial misconduct applied to conduct by counsel for a codefendant, the rule of waiver would apply to foreclose Jacques’s claim. (People v. Green (1980) 27 Cal.3d 1, 27-34.) Absent those rules, Jacques is still foreclosed by his failure to object below. (Evid. Code, § 353.) Moreover, the questions were aimed at impeaching Delfin’s version of the incident, which version inculpated both Michael and Jacques. Finally, there was extensive testimony about the incident, much of it not in response to questions by Michael’s attorney. Therefore, the jury heard about it, regardless of the actions of trial counsel for Michael.
We note, additionally, that appellate counsel for Jacques was careless in citing the portions of the record he did, as this incident is not even mentioned on 78 of the 110 pages he cited.
Jacques also criticizes questions asked by trial counsel for Michael about the relationship between Hines and Michael, much of which we have summarized above. In support, he cites the entire cross-examination of Hines by Michael’s trial attorney (125 pages) and his direct examination of her when called as a witness by Michael (29 pages), without specifying any specific subject matter found on any particular page. As before, this is an insufficient specification of error. (See People v. Gionis (1995) 9 Cal.4th 1196, 1214, fn. 11.) Moreover, trial counsel for Jacques failed to object to most of it below. Additionally, it was questions by the prosecutor that established Hines’s age when she met Michael, that he turned her into a prostitute, that she lived by the concept of not being “out of pocket” (meaning that she was to tend to Michael and not speak to other pimps) and that he threatened her with “consequences” for her disobedience of him. Therefore, the jury heard this evidence regardless of the actions of trial counsel for Michael. Moreover, Jacques fails to even assert that it was the questions by counsel for Michael concerning the relationship between Michael and Hines that hinted that Jacques was “by association” what Jacques asserts was a monster, like Michael. Finally, while Michael’s attorney solicited details concerning the relationship not brought out by the prosecutor and other counsel, there was a method to his madness-by soliciting those details, he used them to impeach Hines, who was one of the primary witnesses against both Michael and Jacques. Apparently, trial counsel for Jacques agreed with this particular strategy and we cannot conclude that she was incorrect in this.
Although appellate counsel for Jacques also asserts that trial counsel for Michael should not have asked Delfin certain questions about her relationship with Michael, he cites no portion of her testimony, therefore, we will not address it.
Counsel for Jacques did object to the question by counsel for Michael as to Hines’s age when she met Michael, but only on the grounds that it had already been asked and answered, which was true. Despite this, the trial court overruled her objection. She also objected to a question about the relationship, but on vagueness grounds, and her objection was sustained. Her relevancy objection to the question whether Hines considered herself in love with Michael when she began working for him as a prostitute was sustained. Her first vagueness objection to a question whether on one of the phone calls Hines gave Michael a hard time about his not being nice to Hines was overruled and the second was sustained. Her relevancy objection to the question whether Hines continued to prostitute herself after Michael was incarcerated on this case was sustained and her relevancy objection to the question as to why Hines continued to prostitute herself after Michael was incarcerated was overruled. Her relevancy objection to the question whether Michael “pushed [Hines’s] buttons” to get her to do what he wanted her to do most of the time was sustained.
In relation to his argument that Michael’s attorney asked questions prejudicial to Jacques of the case agent, who was also a gang expert, Jacques cites a block of 179 pages and a block of 50 pages, without specifying on which pages the matters to which he now objects appear. This is not a sufficiently specific assignment of error. Additionally, trial counsel for Jacques objected to none of this testimony. Moreover, testimony by the case agent, Hines and Delfin, under questioning by counsel other than Michael’s, established Jacques’s membership in the gang and supported the jury’s finding that the crime of which Jacques was convicted was committed for the benefit of that gang. This evidence came before the jury, regardless of the actions of counsel for Michael. Finally, as with Hines’s testimony about her relationship with Michael, the otherwise undisclosed details elicited by trial counsel for Michael about PHD, Michael’s and Jacques’s participation in it, and the relationship between it and these crimes were used by counsel to impeach the testimony unfavorable to both defendants on these subjects. Again, apparently trial counsel for Jacques agreed with this strategy and we cannot find error in this.
3. Damita’s Conviction for Being an Accessory After the Fact
a. Damita’s Motion for Severance
Shortly before trial began, Damita moved to sever her trial from that of her codefendants. She asserted that because she had not been charged with a gang allegation, unlike her codefendants, gang evidence the prosecutor planned to introduce would be completely irrelevant to her and highly prejudicial. She also asserted that most of the case proving the conspiracies was comprised of telephone conversations in which she neither participated nor was she implicated, and admission of these conversations would prejudice her because of their sheer volume and admission of the statements in them would violate Aranda/Bruton because she had not been charged with conspiracy. The trial court pointed out that it had been alleged that she had facilitated these calls. Defense counsel admitted that she had made it possible for Michael and his codefendants to participate in them. He also asserted that she did not know about the conspiracies until after most of the calls had been made. The prosecutor pointed out that since Damita had been charged with being an accessory after the fact to the conspiracies, he had the burden of proving the existence of the conspiracies and he could not do that without introducing the phone conversations. The trial court agreed with the prosecutor. It also ordered the prosecutor to draft a limiting instruction to be read before and after recordings of the calls were played for the jurors, directing them not to consider the statements therein against Damita. The court further concluded that because those statements did not implicate Damita, there was no Aranda/Bruton problem and the jury would follow the court’s instruction not to consider the gang evidence against her.
Trial counsel for Damita said he was joining a severance motion previously brought by trial counsel for another codefendant who subsequently pled and was no longer a defendant in the case at the time Damita pressed for severance. If cocounsel had submitted a written motion for severance, it is not in the record before this court, nor are any oral arguments he made in support of it. Therefore, on the record before us, we have only the oral statements of trial counsel for Damita as the basis for which he requested severance for her.
People v. Aranda (1965) 63 Cal.2d 518; Bruton v. United States (1968) 391 U.S. 123 [88 S.Ct. 1620].
Damita here claims that the trial court abused its discretion (People v. Boyde (1988) 46 Cal.3d 212, 232) in denying her motion to sever, therefore, reversal of her conviction for being an accessory after the fact is appropriate. In claiming the trial court abused its discretion in denying her motion to sever, Damita merely asserts the points she made below, without regard to the facts that neither the contents of the phone conversations nor the gang evidence was admitted against her. Still, she insists that she was prejudiced by it, but cannot be more specific than that, other than to say that she was “guilty by association” and she was forced to sit through a two month trial when, if hers had been severed it would have taken three to four days. However, the relative lengths of a non-severed and a severed trial are not legitimate factors in determining whether the trial court abused its discretion. (People v. Hardy (1992) 2 Cal.4th 86, 167; People v. Massie (1967) 66 Cal.2d 899, 917.) Damita says it best when she asserts that the contents of the calls and the gang evidence “had [nothing] whatsoever to do with the... charge against” her. We think the jury was smart enough to realize this and thus avoid the pitfall of “guilt by association.” Certainly, the jury’s acquittal of Hatchett proved this point.
She adds that the trial also included evidence that Michael was involved in prostitution, of which she was unaware until the time of trial. According to Hines, after Michael had been arrested on this case, in either trips she made to Damita or Damita made to her, she delivered a few thousand dollars of the money she made as a prostitute to Damita, who never asked her the source of the money. A comment Damita made during a call strongly suggest that she was well aware of the source of this money and that supplied by Michael’s stripper girlfriend, Delfin. Also, Michael testified that he had been a pimp since he was 16 years old. Presumably, he was living with his mother at that time. In light of the facts that Michael had been arrested for pimping a minor when he was 16 and, at the time of these crimes, he had no other job because he pimped 10 hours a day, seven days a week, the case involving his pimping of the victim was pending against him, he co-owned a home in Murrieta and, according to Michael, Damita knew he was in legal trouble because his picture was all over the news in mid-July in connection with suspected pimping at that home, Damita would have had to really have been out of touch to not know that her son was up to something nefarious. (Michael’s half brother, who was not Damita’ son, also had prostitutes. Moreover, as with the content of the phone calls and the gang evidence, by Damita’s own admission “none of [it] had anything whatsoever to do with the... charge” against her.
See footnote two, ante, page three.
b. Insufficiency of the Evidence
The case agent testified that he helped serve the search warrant at Damita’s home on August 26 and while there “... [I] told her that... [Michael] was conspiring with other PHD members to commit [conspiracy to murder, conspiracy to intimidate a witness and conspiracy to commit robbery] and that she was actually helping them.... [¶]... [¶] I told her that, by helping... Michael make phone calls from inside the jail to other people, she was actually assisting him in committing these crimes. If she would not do this, then he wouldn’t be able to communicate with them.... [¶] I... [¶]... explained to her sort of her step in the process, what she was doing as far as making the three-way phone call[.] [¶]... I also explained that she could be arrested for this.” “I specifically told her that... because [Michael] was in custody and he was conspiring with other members to commit a murder against the victim..., that I wanted to relay to her how she’s actually helping him. [¶] [I]... specifically recall telling her... that there was a conspiracy to commit murder going on... [¶]... [¶]... I told her... [Michael was involved in this conspiracy] and... some of the people that she was helping him talk to. [¶]... [¶]... [H]er response was that she’s trying to be a good mother.” Thereafter, Damita told Michael during a phone call what the police took from her house during the search, that Hines said that the police had been listening to everything and it had to do with a conspiracy to murder and that she had called Delfin and told her what had happened. At Michael’s request, Damita connected him with Hines. Michael asked Hines if Jacquett’s wife got the identification and Hines said she did and Michael told Hines to tell Jacquett’s wife to visit him the next day, then had Hines put Jacquett’s wife on the phone and she assured him that she “knows nothing about nothing” and she and Michael “just met.” Several hours after this phone call, Michael told Damita to call Hatchett and Jacques (Jacquett had already been arrested by then) and tell them that they were about to be harassed by the police. Damita tried to reach them, but the calls went to voicemail and Michael left a message for Hatchett to call Damita back. Michael had Damita call Delfin, but, again, it went to voicemail. Michael then had Damita call Jacques a second time, and this time he answered and Michael told him that the police had been to the homes of Damita and Hines. Michael told Jacques that the police are listening to their conversations, that they had the gun that was going to be used on the victim and the plan involving her was not going to happen because the police knew about it. Michael told Jacques not to say anything to the police.
In what certainly was the most comedic moment in this long and tedious trial, the jury heard Damita say during one of her recorded phone calls with Michael concerning the search of her home and environs, “... [The officer] couldn’t open up the shed and he was talking about breaking it.... It pissed me off. And then he... ask[ed] me do I work. I said, ‘No, I don’t work.’ He’s talking about who pays the rent. I’m getting ready to tell him his mama pays it....”
Despite Damita’s claim while testifying at trial that she was not told by the case agent about a conspiracy to commit murder, or that she did not realize it was a conspiracy to commit murder, she admitted telling Michael during a phone call with him after the search of her home that the police had told Hines that they were trying to implicate her in a conspiracy to murder. Indeed, during that phone conversation, Michael told Hines, “... [Damita] tried to tell me about [the police] talking about some little conspiracy for murder charge....”
Jacquett’s wife was staying with Hines at the time. (See fn. 10, ante, p. 10.) The jury could reasonably conclude that this was the fake identification Michael had obtained for the victim, which had been referenced during earlier calls.
It was the People’s theory that Damita was an accessory after the fact when, after being told what she was told by the case agent during the search of her home, she continued to make phone calls for Michael to Hines, Damita, Hatchett and Jacques.
Damita here asserts that she cannot be guilty of being an accessory after the fact because the conspiracy was still ongoing and incomplete at the time of her post-search calls; therefore, it had not already been “committed.” Damita cites no authority for the proposition that the continuation of a conspiracy means that it is incomplete even after the agreement is entered into. Certainly, Michael’s agreement with Hines to kill the victim happened long before Damita made these calls.
Next, Damita asserts that her actions during the post-search calls did not aid Michael in avoiding escape, arrest or conviction for the conspiracy. We disagree. Damita told Michael what had been taken from her home, that Hines had said that the police had been listening to everything and it had to do with a conspiracy to murder, and she had told Delfin what had happened. Damita then connected Michael to Hines and he told her to tell Jacquett’s wife to bring the victim’s fake identification to the jail the next day, then Jacquett’s wife assured Michael that she was going to say that she knew nothing about anything and she and Michael had just met. Additionally, Damita followed Michael’s direction to call Jacques and Hatchett and let them know that the police would be contacting them, the clear implication being to keep their mouths shut. At Michael’s direction, Damita also attempted to call Delfin, but was unsuccessful. Damita then reached Jacques, and Michael told him that the police had been listening to their conversations, they had the gun that was going to be used on the victim, the plan involving the victim was off and he should not say anything to the police. The jury could reasonably conclude that all of these activities were aimed at aiding Michael escape conviction for the conspiracy.
Next, Damita asserts that there was no evidence that she intended that Michael avoid trial, conviction or punishment for the conspiracy. Again, we disagree. Damita’s words to the case agent when told that she was helping Michael conspire to commit murder by hooking him up with his coconspirators said it all-she was just trying to be a mother. Additionally, there was evidence of statements and actions throughout the period during which Damita was making the calls that supports a finding of her culpable intent. There were times during phone calls when it was clear that Damita was overhearing parts of the coded conversations between Michael and his coconspirators. Delfin, who stayed at Damita’s house during the conspiracy, testified that she showed a piece of paper to Damita on which Michael had directed Delfin to write words that would help her figure out where the victim’s home was and she and Damita tried to figure out what the words meant. Delfin also testified that she told Damita that she had figured out some of Michael’s codes. In fact, Delfin cracked some of the codes while she sat with Damita and she talked to Damita about them in her effort to crack them. When she and Damita discussed the codes, Delfin referenced the victim to Damita. Delfin told Damita that Delfin knew that the American flag, which Michael had given as a clue to the location of the victim’s home, had to do with that home and another reference to the word “Apostle” had to do with the victim, whose last name was Apostle. Delfin told Damita that Delfin was to give the codes to Hines. At Damita’s home at the time of the search were a letter Michael had written to Delfin containing information about locating the victim’s house, a piece of paper containing the names and phone numbers of Hatchett, Jacques and others and another paper containing information that helped identify the victim’s home. On August 6, Damita agreed to Michael’s directive that she tell the mother of her grandchildren to tell the woman whose identification Michael had used to create a fake identification for the victim to say that she doesn’t know Michael and ask her if the police had contacted her. Damita did as she agreed.
This was found inside Damita’s purse.
4. Sentencing Issues
a. Michael
With the reversal of Michael’s convictions for conspiracy to intimidate a witness and conspiracy to commit robbery, his only remaining sentencing issue is whether the sentencing court’s imposition of a ten-year consecutive term for the gang enhancement was proper. The parties agree that it was not-that the gang enhancement means only that he has a 15-year parole eligibility on his 25-years-to-life term. Therefore, the ten year term will be stricken.
b. Jacques
With the reversal of Jacques’s conviction for conspiracy to intimidate a witness, his only remaining sentencing issue is the sentencing court’s imposition of a 15-year-to-life term for conspiracy to commit robbery, which is appropriate only if the crime was for the benefit of a gang and involved a home invasion robbery in concert. The parties agree that since there was no allegation that the robbery was in concert and no such finding was made by the jury, the term should be three, four or six years, plus the 10 year gang enhancement. The matter will be remanded to the sentencing court for imposition of such a term.
DISPOSITION
Michael’s conviction for conspiracy to commit first degree murder, its gang enhancement and its attendant sentence of 25 years to life are affirmed. His convictions for conspiracy to intimidate a witness and conspiracy to commit residential robbery, their attendant enhancements and sentences and the 10 year gang enhancement on the conspiracy to commit first degree murder are reversed. The 25-years-to-life term for conspiracy to commit first degree murder has a 15 year minimum parole eligibility date, based on the gang enhancement. The trial court is directed to amend the abstract of judgment to reflect this and to forward a copy of the amended abstract to the Department of Corrections and Rehabilitation.
Jacques’s conviction for conspiracy to commit residential robbery and its gang enhancement are affirmed. His conviction for conspiracy to commit witness intimidation, its gang enhancement and attendant sentence and the 15-year-to-life sentence imposed for conspiracy to commit residential robbery are reversed. The matter is remanded to the trial court to impose a term of three, four or six years for the conspiracy to commit residential robbery and ten years for its attendant gang enhancement.
Damita’s conviction for being an accessory after the fact, for which she received probation, is affirmed.
We concur: HOLLENHORST J. McKINSTER J.