Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 03SCR00743
RAYE, Acting P.J.
Defendant Uriel Chavez Maldonado was found guilty by a jury of conspiracy to cultivate marijuana (Pen. Code, § 182, subd. (a)(1); Health & Saf. Code, § 11358) and conspiracy to possess marijuana for sale (Pen. Code, § 182, subd. (a)(1); Health & Saf. Code, § 11359). The trial court suspended execution of upper term sentences on each count and placed defendant on probation for three years.
Defendant appeals, raising the following claims: (1) there was insufficient evidence of intent to support his convictions, (2) comments during voir dire made by one of the prospective jurors prejudiced the jury panel, and (3) upper term sentences violated the holding in Cunningham v. California (2007) 549 U.S. __ [166 L.Ed.2d 856] (Cunningham). We find merit only in defendant’s sentencing claim and shall remand the matter for resentencing.
In addition, following supplemental briefing requested by this court, the parties agree that the evidence supports a conviction of only one count of conspiracy. We shall modify the judgment accordingly.
FACTUAL AND PROCEDURAL BACKGROUND
In November 2003 United States Forest Service Officer Walt Bliss responded to an accident on Recer Ridge Road -- a remote, unimproved dirt road in the Mendocino National Forest. The eight- to 10-mile road, which paralleled a better-maintained forest highway, had no developed recreation sites or facilities and was not well-traveled. Officer Bliss had found marijuana gardens in the Recer Ridge Road area in the past. Due to the remoteness of the area, people would be left at the sites to tend the marijuana gardens, and supplies would be brought to them. In late fall the marijuana would be transported from the sites.
At the accident scene, Officer Bliss located a pickup truck down an embankment in a culvert. He followed what appeared to be two sets of footsteps in the snow leading away from the truck and up a hill, where he discovered a “stash” of large plastic buckets behind a log. The buckets contained marijuana residue. Officer Bliss also found marijuana residue in the bed of the truck. He observed numerous food items and at least three new jackets with price tags attached in the passenger area of the truck. The driver of the truck, William Ucmoo, arrived and told Officer Bliss that the items in the truck belonged to a friend who had disappeared during the night and who must have removed the plastic buckets. Ucmoo left after a tow truck pulled the pickup onto the roadway.
Officer Bliss drove approximately one-half mile to Mendocino Pass to see if Ucmoo would return and try to drop off the supplies to someone tending a marijuana garden. At approximately 7:00 p.m., he saw a minivan coming from the direction in which the pickup had gone. At this point, it was rainy and there was a storm advisory for the mountains. The minivan passed Officer Bliss’s location, then turned down Recer Ridge Road. Officer Bliss waited 20 minutes, then followed the minivan’s tracks. He noticed a location at which the vehicle left two sets of tracks, indicating that it had turned around and come back for a distance before turning around again and heading away.
At some point, Officer Bliss encountered the minivan coming back toward him. He made contact with defendant, who was the driver and only occupant of the vehicle. Officer Bliss noticed that defendant’s hat and shoulders were wet. Defendant said he had rented the minivan and was on vacation from Arizona on his way to Santa Rosa. Defendant eventually left, heading back toward Mendocino Pass. Officer Bliss continued east on Recer Ridge Road to an area called Panther Creek, where the tracks from defendant’s minivan indicated he had stopped and turned around.
Two days later, Officer Bliss went with another forest service officer, Officer Mike Casey, to look for a marijuana garden that a hunter had reported as being in the Panther Creek area off Recer Ridge Road. The officers followed a foot trail and found a harvested marijuana garden. On the trail, they found the price tags from the jackets that the officer had seen in Ucmoo’s pickup. They also found remnants of a camp, including propane, food items, and garbage. The officers returned to the road, and as Officer Bliss was leading Officer Casey to where the accident had occurred involving Ucmoo’s truck, a Ford Expedition driven by defendant came toward them.
Defendant, who appeared to be wearing one of the jackets from Ucmoo’s truck, stopped and told Officer Bliss that he was going to Williams to see his sister. The vehicle he was driving was a rental, and he had put 490 miles on it in the preceding 24 hours. Defendant gave Officer Casey permission to search his vehicle, and when no contraband was found, defendant was permitted to leave.
After a few minutes, Officer Casey drove down Recer Ridge Road in the same direction defendant had gone. Coming around a curve at Panther Creek, Officer Casey saw defendant’s car stopped or coming to a stop in the road. He then saw two men come down from the hillside, run to defendant’s car, and get in. Officer Casey detained defendant and the two passengers -- one of whom was Ucmoo -- and called Officer Bliss for backup. Both passengers were wearing jackets that appeared identical to defendant’s jacket and to the new jackets that had been observed in Ucmoo’s truck two days earlier. Both passengers smelled strongly of freshly cut marijuana and had stains on their hands that were consistent with harvesting marijuana.
Defendant claimed he did not know the two passengers and had swerved to avoid hitting them because they ran in front of his vehicle. He maintained he was on Recer Ridge Road because it was scenic and reminded him of Mexico.
The next day, Officer Bliss and other law enforcement officers discovered another harvested marijuana garden and an encampment about 100 yards off the road from the spot where defendant picked up Ucmoo and the other passenger. At the encampment, which was near a second harvested site, the officers located several subjects processing marijuana. Buckets like those found near Ucmoo’s pickup were located at the site. The officers seized approximately 59 pounds of marijuana, with a street value of $236,000.
DISCUSSION
I
Defendant contends the evidence of intent was insufficient to support his convictions for conspiracy. He acknowledges there was sufficient evidence that he had the requisite knowledge of the criminal conspiracy but claims the People were required to prove he “had a stake in the venture.” He is incorrect.
To prove the element of intent for purposes of a charge of conspiracy, the prosecution must establish that the conspirators intended to agree and that they intended to commit the elements of the target offense. (People v. Swain (1996) 12 Cal.4th 593, 600.) “There is no need to show that the parties met and expressly agreed to commit a crime in order to prove a conspiracy. The evidence is sufficient if it supports an inference that the parties positively or tacitly came to a mutual understanding to commit a crime.” (In re Nathaniel C. (1991) 228 Cal.App.3d 990, 999.) Thus, ordinarily, it is not necessary to prove the defendant had a stake in the venture that is the aim of the conspiracy to establish the requisite intent.
Defendant relies on People v. Lauria (1967) 251 Cal.App.2d 471 (Lauria) to support his claim to the contrary. In that case, the defendant knowingly provided the services of his answering service business to prostitutes, and the appellate court addressed “the criminal liability of a supplier of lawful goods or services put to unlawful use.” (Id. at p. 476.) The court noted that, under those circumstances, “[b]oth the element of knowledge of the illegal use of the goods or services and the element of intent to further that use must be present in order to make the supplier a participant in a criminal conspiracy.” (Id. at pp. 476-477.) The court enumerated several situations in which the supplier’s intent may be inferred from his knowledge of the unlawful use of his product, one of which is when the supplier has “a stake in the venture.” (Id. at p. 478.)
The issue addressed in Lauria was how a defendant’s intent may be proved for purposes of establishing a conspiracy when the defendant participates as a supplier of lawful goods or services. However, the ambiguity regarding a defendant’s intent attendant to that situation is absent when a defendant’s contributions to the conspiracy are not in the course of conducting a lawful business. Unlike Lauria, here there is no evidence that defendant was involved in an otherwise legitimate commercial enterprise when he engaged in the conduct that aided the conspiracy in question. Accordingly, Lauria is not relevant to the circumstance before us.
It is also noteworthy that the court’s holding in Lauria was limited to misdemeanors. The court noted that when a serious crime is involved, a supplier of goods or services may be “held liable [for conspiracy] as a participant on the basis of knowledge alone,” even if “it cannot reasonably be said that the supplier has a stake in the venture or has acquired a special interest in the enterprise.” (Lauria, supra, 251 Cal.App.2d at p. 480.)
As Lauria does not apply to defendant’s circumstances, and as he suggests no other basis for concluding that the evidence of his intent was insufficient, we reject his claim.
II
Defendant next contends the jury was prejudiced by the comments during voir dire of a prospective juror who had a personal relationship with the prosecuting attorney. As defendant interposed no objection and did not ask the trial court to take any particular action at the time the comments were made, we reject this claim as well.
When the trial court asked the first group of prospective jurors whether they knew any of the parties or lawyers, prospective Juror No. 6 responded that he knew the prosecuting attorney. The prosecutor explained that the prospective juror “live[d] on [his] place.” In response to further questions by the court, the juror explained that he was the prosecutor’s tenant and had a social relationship with him, but that he could take the case at face value and find defendant not guilty if the case was not proved.
Later, and without requesting that voir dire of this prospective juror take place outside the presence of the jury panel, defendant’s trial attorney asked prospective Juror No. 6 a series of questions regarding his relationship with the prosecutor. In response to these questions, the juror said he socialized with the prosecutor frequently but did not put him in a different position than the defense attorney. The following exchange then took place:
“[Defense Counsel]: And because he decided to prosecute this case, does that make any difference to you one way or the other? Does it make it any more credible that it was [the prosecuting attorney] as opposed to somebody else?
“Prospective Juror Number 6: I think that he’s been doing it a long time, and he wouldn’t prosecute it unless he thought he was right.
“[Defense Counsel]: That’s your belief?
“Prospective Juror Number 6: Yeah.
“[Defense Counsel]: Okay. So you don’t think he could be wrong about prosecuting a case?
“Prospective Juror Number 6: He could but I find it unlikely.
“[Defense Counsel]: And you still think you could be fair in this case?
“Prospective Juror Number 6: Yeah, I can weigh the evidence that’s portrayed to me.”
Later, when defendant’s attorney sought to have prospective Juror No. 6 excused for cause, the trial court asked the juror whether it was possible he would be unfair to the defense as a result of his relationship with the prosecuting attorney. The juror responded: “I don’t believe I would be unfair to the facts that were presented. I say that it’s unlikely that [the prosecuting attorney] made a mistake. But it’s not beyond the realm of possibility. As you said in the beginning, we’re all human.” The trial court denied the challenge for cause, after which the defense exercised a peremptory challenge to excuse prospective Juror No. 6.
No further issues were raised concerning prospective Juror No. 6 until several months later when, pending sentencing, the defense attorney filed a motion for a new trial based, in part, on the failure of the prosecuting attorney to reveal outside the presence of the jury pool that his tenant was on the jury panel. The defense attorney asserted that the comments of prospective Juror No. 6 “tainted and prejudiced the jury[,] preventing [defendant] from receiving a fair trial.” Defendant’s motion for a new trial was denied.
Defendant’s failure to raise an objection during voir dire or to seek any ameliorative action at that time is fatal to his claim on appeal. “Before a defendant may complain on appeal of misconduct of the trial judge or district attorney in the examination of veniremen, he must (1) object to such alleged misconduct, and (2) request the trial judge to admonish the veniremen to disregard the alleged improper conduct.” (People v. Guasti (1952) 110 Cal.App.2d 456, 465; see People v. Bolden (2002)29 Cal.4th 515, 540 [“‘[o]bjections to the jury selection process must be made when the selection occurs’”].)
Here, prior to the defense questioning of prospective Juror No. 6, the prospective juror had stated only that he was the prosecuting attorney’s tenant, that he had a social relationship with him, and that he could “take the case at face value” and vote not guilty if the case was not proved. Thus, defendant was aware of the relationship between the prospective juror and the prosecuting attorney when he began his voir dire and could have requested that further questioning of this prospective juror occur outside the presence of the jury panel, avoiding the alleged prejudice occasioned by his questioning of that prospective juror. He made no such request. Nor did defendant interpose an objection and seek curative instructions or dismissal of the jury panel at the time the comments were made. On this basis alone, his claim must be rejected.
Defendant claims the trial court’s unwillingness to grant a challenge for cause against prospective Juror No. 6 demonstrates that any objection would have been futile. But the trial court’s refusal to dismiss the prospective juror for cause signified only that the court found no actual or implied bias on the part of that juror (see Code Civ. Proc., § 225, subd. (b)(1)), a different inquiry from whether a prospective juror’s comments might have prejudiced other prospective jurors.
In the alternative, defendant argues, without analysis, that his trial attorney rendered ineffective assistance of counsel by not seeking “ameliorative steps” following the prospective juror’s comments. However, the allegedly objectionable comments were brief. In addition, the prospective juror made ameliorating remarks, including that it was possible the prosecuting attorney could make a mistake and that it was “possible for somebody to be sitting right there that could possibly be not guilty.” Under such circumstances, the record does not demonstrate defendant was prejudiced by trial counsel’s failure to raise a timely objection.
In any event, the trial court’s exercise of discretion in the manner in which voir dire is conducted is not cause for reversal of a conviction unless it has resulted in a miscarriage of justice. (Code Civ. Proc., § 223.) Even highly inflammatory comments by prospective jurors do not necessarily require the drastic remedy of excusing the entire panel. (People v. Medina (1990) 51 Cal.3d 870, 889 (Medina).)
For example, in Medina, two prospective jurors reported at least five other prospective jurors had made remarks reflecting a belief that the defendant was guilty. (Medina, supra, 51 Cal.3d at p. 888.) The trial court denied the defendant’s motion to dismiss the jury panel. (Id. at pp. 888-889.) In affirming the trial court’s ruling, the Supreme Court stated: “Defendant cites no case, and we have found none, indicating that such a drastic remedy is appropriate as a matter of course merely because a few prospective jurors have made inflammatory remarks.” (Id. at p. 889.) Numerous appellate decisions have reached a similar conclusion. (See, e.g., People v. Nguyen (1994) 23 Cal.App.4th 32, 40-41 [Vietnamese prospective juror indicated fear of retaliation from Vietnamese community if he was on jury in trial of Vietnamese defendant]; People v. Henderson (1980) 107 Cal.App.3d 475, 493 [prospective juror revealed that the victim recently had been her psychotherapy patient]; People v. Vernon (1979) 89 Cal.App.3d 853, 865 [prospective juror disclosed that the defendant had been tried for raping her niece].)
The prospective jurors made comments such as “‘even [the defendant’s] own lawyers think he’s guilty,’” “‘they ought to have [sic] him and get it over with,’” and “‘in frontier justice style,’ the authorities should ‘bring the guilty S.O.B. in, we’ll give him a trial, and then hang him.’” (Medina, supra, 51 Cal.3d at p. 888.)
Defendant attempts to analogize his circumstances to those in People v. Kirkes (1952) 39 Cal.2d 719, 722 (Kirkes), in which the prosecuting attorney stated during closing argument that he believed the defendant was guilty before becoming involved with the prosecution of the case and that he “would not have been associated with” prosecuting the case unless he believed the defendant was guilty. The California Supreme Court held that “statements by the prosecuting attorney, not based upon legitimate inferences from the evidence, to the effect that he has personal knowledge of the defendant’s guilt and that he would not conduct the prosecution unless he believed the defendant to be guilty are misconduct.” (Id. at p. 723.)
The prosecuting attorney’s comments in Kirkes are readily distinguishable from the general comments made by the prospective juror here, which did not purport to be based on any specific knowledge of defendant’s case. When comments are general in nature, do not suggest reliance on evidence not presented at trial, and could have been ameliorated with an admonition to the jury, reversal is not warranted. (People v. Dick (1962) 200 Cal.App.2d 424, 433, citing People v. Chilcott (1937) 18 Cal.App.2d 583 and distinguishing Kirkes, supra, 39 Cal.2d 719.) For this reason, Mach v. Stewart (9th Cir. 1998) 137 F.3d 630, also relied on by defendant, is likewise distinguishable, as the prospective juror in that case -- involving sexual conduct with a minor -- was a child protective services social worker who stated she had never become aware of a case in which a child had lied about being sexually assaulted. (Id. at pp. 631-632.)
For all of the foregoing reasons, we conclude defendant’s claim is without merit.
III
Defendant argues that an upper term sentence imposed violated the holding in Cunningham, supra,549 U.S. __ [166 L.Ed.2d 856]. We agree.
In Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely), the United States Supreme Court held that any circumstance other than the fact of a prior conviction that is relied on by a trial court to increase the penalty for a crime beyond the statutory maximum must be tried before a jury and proved beyond a reasonable doubt. (Blakely, supra, 542 U.S. at pp. 301, 303 [159 L.Ed.2d at pp. 412, 413-414].) Although the California Supreme Court held in People v. Black (2005) 35 Cal.4th 1238, 1244 (Black) that “the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence . . . under California law” does not violate Blakely, the United States Supreme Court rejected this holding in Cunningham and concluded that the middle term is the statutory maximum under California’s determinate sentencing scheme. (Cunningham, supra, 549 U.S. at p. __ [166 L.Ed.2d at p. 873].)
According to the probation report in the present matter, defendant had no criminal record aside from a misdemeanor reckless driving conviction six years earlier and two vehicle code infractions. The probation report listed three factors in aggravation: (1) defendant was convicted of other crimes for which consecutive sentences could have been imposed but for which concurrent sentences are being imposed; (2) the manner in which the crime was carried out indicates planning, sophistication, and professionalism; and (3) the crime involved a large quantity of contraband. The trial court cited only the sophistication of the marijuana growing operation when selecting the upper term.
Initially, we reject the People’s contention that defendant has forfeited his claim by failing to object on this basis in the trial court. “Reviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence.” (People v. Welch (1993) 5 Cal.4th 228, 237.) At the time of defendant’s sentencing, Black had upheld the California sentencing scheme under Blakely, and Cunningham had yet to be decided. As Black was still binding precedent at the time of defendant’s sentencing, an objection based on Blakely would have been futile and consequently was not required to preserve the issue. (People v. Sandoval (2007) 41 Cal.4th 825, 837, fn. 4 (Sandoval).)
We turn to the merits of defendant’s claim. The People acknowledge, as they must, that the trial court was not authorized to impose an aggravated term based on facts unrelated to recidivism that were neither admitted by defendant nor found true by the jury, and the sophistication of defendant’s crime does not fall into any of these categories. As also acknowledged by the People, the harmless-beyond-a-reasonable-doubt standard applies to such errors, rendering the error harmless if “the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury.” (Sandoval, supra, 41 Cal.4th at p. 839.)
The People contend that based on the remote location, the size of the gardens, and the amount of contraband produced, the jury would have found beyond a reasonable doubt that the operation was sophisticated. We do not agree. A determination as to the sophistication of the operation involves a qualitative assessment, and we cannot say beyond a reasonable doubt that the jury would have made the same qualitative assessment as the People or the trial court. (See Sandoval, supra, 41 Cal.4th at p. 840.) Moreover, as pointed out by our Supreme Court, “a reviewing court cannot always be confident that the factual record would have been the same had aggravating circumstances been charged and tried to the jury.” (Ibid.) Thus, we must remand this case for resentencing.
Our Supreme Court has directed that sentencing proceedings following remand under Cunningham “are to be conducted in a manner consistent with the amendments to the [determinate sentencing law] adopted by the Legislature [following Cunningham].” (Sandoval, supra, 41 Cal.4th at p. 846.) Accordingly, we will remand this matter for resentencing.
Effective March 30, 2007, Penal Code section 1170, subdivision (b) was amended to provide, in pertinent part: “When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court.” (§ 1170, subd. (b), as amended by Stats. 2007, ch. 3, § 2.)
IV
Pursuant to this court’s request, the parties submitted supplemental briefing on the issue of whether defendant properly was convicted of more than one conspiracy count. The parties agree he was not, and we concur.
“[W]hen a single agreement to commit one or more substantive crimes is evidenced by an overt act, as the statute requires, the precise nature and extent of the conspiracy must be determined by reference to the agreement which embraces and defines its objects. Whether the object of a single agreement is to commit one or many crimes, it is in either case that agreement which constitutes the conspiracy which the statute punishes. The one agreement cannot be taken to be several agreements and hence several conspiracies because it envisages the violation of several statutes rather than one.” (Braverman v. United States (1942) 317 U.S. 49, 53 [87 L.Ed. 23] (Braverman).) “The single agreement is the prohibited conspiracy, and however diverse its objects it violates but a single statute.” (Id. at p. 54; see People v. Lopez (1994) 21 Cal.App.4th 1551, 1557 (Lopez).)
In Braverman, the defendants were charged with multiple counts of conspiracy based on an agreement that would entail violating statutory restrictions on the manufacture, transportation, and distribution of liquor. (Braverman, supra, 317 U.S. at pp. 50-51.) It was conceded that all of the statutory violations were pursuant to a single agreement. The United States Supreme Court determined that under such circumstances, it was improper to find “that even though a single agreement is entered into, the conspirators are guilty of as many offenses as the agreement has criminal objects.” (Id. at p. 53.)
In Lopez, the defendant was found guilty by jury of three conspiracy counts -- conspiracy to illegally dispose of hazardous substances, to manufacture methamphetamine, and to possess methamphetamine for sale. (Lopez, supra, 21 Cal.App.4th at pp. 1553-1554.) The charges were based on an agreement the defendant made with an individual (who, unbeknownst to the defendant, was an undercover sheriff’s deputy) to receive a large quantity of ephedrine from him in return for a portion of the methamphetamine the defendant planned to manufacture using the ephedrine. (Ibid.) The appellate court held: “[A]ll three of the charged crimes were for one ultimate purpose, sale of methamphetamine for financial gain. All of the acts in each of the three target crimes were incidental to this objective, and many acts were a direct part of more than one of the crimes. Under these circumstances, but one count of conspiracy can be sustained.” (Id. at pp. 1558-1559.)
Similarly, in People v. Patrick (1981) 126 Cal.App.3d 952, the defendant was convicted of two counts of conspiracy concerning the same victim -- conspiracy to kidnap and conspiracy to falsely imprison. Noting the defendant was charged with the same overt acts for each conspiracy, the appellate court struck one of the conspiracy convictions because “the instructions given to the jury allowed them to convict [the defendant] of two conspiracy offenses based on exactly the same conduct.” (Id. at p. 965.)
Comparable circumstances underlie defendant’s conspiracy convictions. The same overt acts were charged as to each count of conspiracy. No evidence was presented to support findings of two separate conspiracies for the growing and possession for sale of marijuana. To the contrary, the evidence suggests there was one overarching agreement among the conspirators, which contemplated the cultivation of marijuana for the purpose of selling it. Accordingly, only one of the two conspiracy convictions can stand.
DISPOSITION
The conviction on count I, conspiracy to cultivate marijuana, is reversed. The conviction on count II, conspiracy to posses marijuana for sale, is affirmed. Defendant’s upper term sentence on count II is vacated and the matter is remanded to the trial court for resentencing in accordance with the procedures set forth in Sandoval, supra, 41 Cal.4th at pages 846-847.
We concur: HULL, J., CANTIL-SAKAUYE , J.