Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County Nos. BF122970C, BF122970D. Michael E. Dellostritto and Gary T. Friedman, Judges.
Judge Dellostritto presided over motion to suppress; Judge Friedman presided over trial.
Kyle Gee, under appointment by the Court of Appeal, for Defendant and Appellant Miguel Angel Santiago.
Peggy A. Headley, under appointment by the Court of Appeal, for Defendant and Appellant Luis Manuel Vaca, Jr.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Craig S. Meyers, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
DETJEN, J.
Defendants Miguel Angel Santiago and Luis Manuel Vaca, Jr., were convicted of conspiracy to commit murder and attempted murder after Brandi Nye was shot in the head. Santiago was also convicted of two counts of conspiracy to dissuade a witness from testifying and Vaca was also convicted of one count of conspiracy to dissuade a witness from testifying. In addition, numerous enhancements were found true including the discharge of a firearm by a principal that caused great bodily injury and the crimes having been committed in association with a criminal street gang.
Nye was one of three participants in a previous home invasion robbery. The prosecution theory in this case was that defendants attempted to kill her to keep her from testifying against the other two home invasion robbery participants and to send a message to the victim of the robbery that he similarly should not testify. Defendants appeal raising numerous issues. We reverse counts three and four, conspiracy to dissuade a witness from testifying, because there was only one conspiracy and that conspiracy was contained in count one.
FACTS
In March 2007, Brandi Nye moved to Bakersfield because her mother was dying. Nye started using methamphetamine and hanging out with gang members. She knew Emil Alvary (a.k.a. Tiny) and Alfredo Palacios (a.k.a. Sapo or Freddy). She was friends with and did drugs with Emmalinda Martinez (a.k.a. Cookie) and she was seeing defendant Santiago (a.k.a. Night Owl).
Nye was staying at the home of Donald Azevedo for a few days. On March 3, 2008, Alvary and Palacios came to Azevedo’s home to see Nye. She told the two that Azevedo had marijuana. The men wanted to see the marijuana and Azevedo showed it to them. After looking at the marijuana, one of the men returned only half of the marijuana to him. Azevedo called him a thief and told him he had a weapon and would blow his brains out.
Nye, Palacios, and Alvary left. They returned shortly thereafter; Nye said they wanted to apologize. One of the men then held a gun to Azevedo. He was tied up and his money was taken. One of the men stabbed his dog. Nye stood at the door crying.
Nye, Palacios, and Alvary were arrested. Nye was questioned and told the police she did not know anything. All three were detained in jail. After Nye had been jailed for a couple of weeks she was told she was going to be released for a month and maybe then she would remember something. Alvary and Palacios were not released.
When Nye was released from jail she was picked up by Palacios’s parents. His parents took Nye to their house where Palacios’s niece, Crystal, then took her to meet up with Santiago. They all went to Santiago’s house. Santiago questioned her as to what she said in court. Nye told him that she did not say anything. Nye was kept at Crystal’s house for a week, was never left alone (she was always with Crystal, Santiago, Vaca or Christian Vargas-Diaz), and believed that she could not leave. During that week, Nye went to court with Jessica Quinton (a.k.a. Chicken) to hear Palacios’s case.
When Nye testified in the current case, she was granted immunity regarding the home invasion robbery. The jury was instructed that they could consider the grant of immunity in judging her credibility.
On March 24, 2008, police received a report of a woman in a roadway. They responded to the scene and found Nye. Nye had been shot in the head. Some of Nye’s personal belongings were found less than a mile from her location in the roadway.
Bakersfield Police Detective William Darbee, who had been involved in the investigation of the home invasion robbery of Azevedo, also became involved in the investigation of the shooting of Nye. He linked the two cases together and retrieved a phone call made from jail by Palacios to Santiago. In the recorded phone conversation Santiago asked Palacios, “Do you want— the, the meat I was talking to you about, do you want me to get rid of him or what?” Palacios said, “Yes dude.” Santiago said, “Of her.” Palacios replied yes and confirmed that Santiago should take care of both of them. Palacios said there would be no case if things were taken care of. Santiago told Palacios that she was more important than him and it should be done tomorrow. Santiago said that he had her “put away there.” Santiago said that whatever happened, “he’s going to get scared.” Palacios told Santiago he did not think “she” said anything. Santiago responded that he didn’t understand how she was out. To this Palacios said, “Well to, then fuck that, both of them.” Santiago told Palacios that she was more critical. To this Palacios said that, in the end, he was going to be the one that was going to say something. Santiago responded that he would be too scared and Palacios agreed “as long as he knows.” Santiago told Palacios he would send someone to tell him the same thing would happen to him if he didn’t watch out. The two discussed that their plan could backfire but Palacios concluded there was no other way out. Santiago said, “I got … Boy is gonna do that for me tomorrow.” Based on this phone conversation Santiago and Vaca (a.k.a. Boy) were arrested and Emmalinda Martinez was brought to the police station for questioning.
Although Martinez was married, she was dating Christian Vargas-Diaz. After initially denying any involvement in the shooting of Nye, Martinez said that it was her car that was used, Vargas-Diaz was the driver and she was in the front seat. She said three people were in the back seat, Night Owl, Nye, and Boy; Nye was in the middle. She said everyone in the back seat got out. Martinez said she and Vargas-Diaz stayed at the car and argued, she heard Nye screaming, and heard a shot. She then identified those two people as Night Owl (Santiago) and Boy (Vaca). When Santiago and Vaca got back in the car, one of them said Nye got what she deserved. Vargas-Diaz drove away and dropped Santiago and Vaca off somewhere on Weedpatch. Vargas-Diaz and Martinez drove home.
At trial Martinez testified she had never seen Santiago or Vaca before. She said she fell asleep in the car the night Nye was shot and didn’t wake up until the next day. She testified that she was made to say things during her interview by police that weren’t true. During further questioning Martinez said she kind of remembered being there but said she did not see the shooting. She testified that neither Santiago nor Vaca were in the car that night.
When Santiago was questioned at the police station he told officers that he was in Lamont and fell asleep about 10:00 p.m. He slept until the next morning. During this time his cell phone was with him in the charger being charged. When Vaca was questioned he said he was in Lamont on Easter (the day before the early morning shooting). Vargas-Diaz was also questioned and denied all knowledge of the shooting.
Jessica Quinton testified that she met Nye the night Nye was released from jail. She met her at an AM/PM. Nye was in a car with Crystal. Quinton was in a car with Night Owl, Boy, and a nephew named Diego. The car Quinton was in followed the car Nye was in to Crystal’s house. While Nye was at Crystal’s house she was always with Santiago, Vaca or Crystal. The evening after the morning that Nye was shot, Santiago picked up Quinton. Santiago told Quinton, “we did it.” Quinton did not know of a plan to kill Nye, but she did know of a plan to not let her talk and Quinton thought that maybe Nye would be beaten. Quinton testified that Santiago told her of the plan to not let Nye talk, and that Vaca, Crystal, and Vargas-Diaz were present when Santiago said this. Santiago told Quinton that he tried to fire the gun two times but it jammed. He handed the gun to Vaca who shot Nye in the head. Nye had tried to run, but Santiago grabbed her by the ponytail and the gun went off. Santiago also told Quinton that there were others in the car and the shooting took place at the mouth of the canyon. When Quinton was first interviewed she said she did not know anything. She was later taken to the police station by her mother and she gave her statement.
Cell phone records of Santiago, Vaca, Martinez, and Vargas-Diaz were examined by an investigator from the district attorney’s office. There were several calls made from Santiago’s cell phone near the location of the shooting, at the time of the shooting, including calls from Santiago to Vargas-Diaz. There were no phone calls made on Vaca’s cell phone from 11:30 p.m. on March 23, to 6:45 a.m. on March 24.
During the nine o’clock hour on the evening of March 24, Santiago sent Vaca three text messages. The first text read, “news said it was not link to the case no suspects she is in fair condition.” The second said, “29” (a local television station). The third text said, “look on the internet under local.”
Prints were found on Martinez’s car. These included Nye’s fingerprints on the exterior right passenger window, prints of Vargas-Diaz on the interior right front door window, and a palm print of Santiago’s on the trunk of the car. No prints were retrieved that matched Vaca.
The distance between the muzzle of the firearm and Nye when she was shot was “inches to a foot.” Nye also had a wound to her knuckle consistent with a bullet wound.
Antonio Lopez testified for the prosecution. He was a former member of the Colonia Bakers criminal street gang. While he was in prison he contacted the district attorney’s office wanting to testify in exchange for his release from prison; the prosecutor agreed. When Lopez testified at the trial, he was not in custody.
Lopez testified that the Colonia Bakers street gang is a southern gang. He described their territory, the crimes they commit, and their hierarchy. He explained that, when southern gang members are in prison, they all associate with the Surenos prison gang. He testified that it is a big deal in a gang to take out a snitch. He also testified that because Palacios used family (Santiago was Palacios’s cousin and Vaca was Santiago’s nephew) to shoot Nye, it was not a gang thing.
Police officer Shane Shaff testified as an expert on gangs. He said that the Surenos are a prison gang. When southern Hispanic gang members go to prison they can become Surenos in prison. Gang members may have an allegiance to more than one gang: a prison gang and a street gang. Respect is important in a gang and can be gained by committing crimes. If someone commits a crime and is known to be violent, people normally will not testify against them. Surenos and southern street gangs do commit crimes together.
Shaff reviewed information on Santiago, Palacios, Vargas-Diaz, and Vaca. He explained the basis for his opinion that Santiago was a member of the Surenos when he is in custody, but he did not believe Santiago was a member of a street gang “at this time.” It was Shaff’s opinion that Vargas-Diaz and Palacios were members of the Colonia Bakers street gang. Shaff said the information on Vaca was sparse, but during four bookings Vaca claimed an affiliation with the South and, in two of those four, claimed the clique of Lamont. It was Shaff’s opinion that Vaca was a possible associate of the Lamont street gang.
Shaff detailed predicate offenses for the Colonia Bakers criminal street gang. He opined that a hypothetical crime (that mirrored the facts of this case) would be a benefit to the Colonia Bakers street gang; it would result in the release of two gang members and would boost the reputation of this gang. People would not want to testify against someone so violent, and taking out a snitch is very important in gang circles. He said it did not matter that two of the people involved were not members of the particular gang, because it still furthers the gang. It did not matter that participants were family members because gang members oftentimes go to somebody they trust to commit these crimes.
EVIDENCE LIMITED TO SANTIAGO ONLY
When Santiago questioned Nye about what she said to the police, she told him she did not say anything. Santiago told her he wanted to believe her, but he couldn’t. Santiago told her she could not leave Crystal’s house. Santiago told Nye to kill Azevedo to show that she wasn’t a snitch.
While recovering from her gunshot wound, Nye walked away from the hospital. She was picked up by Officer Lynn Martinez. They had a conversation in the car and then Nye was interviewed to recount the statements she had made. Nye said that after she was released from jail, Santiago told her he needed to see her immediately. After that they kept tabs on her until she was shot. Santiago told her that whatever he told her to do, she better listen. Nye was told that she needed to “take care” of Azevedo. Nye explained that she was supposed to kill him before the next court date.
Lopez was in a cell with Palacios, Vargas-Diaz, and Santiago. Palacios told Lopez about robbing Azevedo. Palacios said Nye was released from jail so Palacios got on the phone and made a call. Nye was shot because they thought she was snitching on Palacios.
VERDICTS
Based on the above evidence, the jury convicted Vaca and Santiago of count one, conspiracy to commit murder. They found true for both defendants, the overt acts that a phone call was made between Vaca and Santiago, Vargas-Diaz drove to the crime scene, and Santiago tried to shoot Nye. The jury found not true the overt act alleging that Vaca shot Nye. In addition, as to count one, the jury found that each defendant was a principal and that, in the commission of the offense, at least one principal intentionally and personally discharged a firearm proximately causing great bodily injury within the meaning of Penal Code section 12022.53, subdivisions (d) and (e)(1). The jury also found that each defendant committed the offense for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further or assist in criminal conduct by gang members within the meaning of Penal Code section 186.22, subdivision (b)(1).
In count two, each defendant was found guilty of attempted murder done with premeditation and deliberation. The same gun and gang enhancements found true in count one were also found true in count two.
Both defendants were found guilty in count three of conspiracy to prevent or dissuade Nye from testifying. The same enhancements and overt acts found true in count one were also found true in count three.
Vaca was found not guilty in count four of conspiracy to prevent or dissuade Azevedo from testifying. Santiago was found guilty of this charge with the same enhancements and overt acts found true in count one, to be true for this count.
In a separate court trial it was found true as to each count that Santiago committed a prior strike offense, suffered a prior serious felony conviction within the meaning of Penal Code section 667, subdivision (a), and served a prior prison term within the meaning of Penal Code section 667.5, subdivision (b).
DISCUSSION
I. Batson/Wheeler Motion
During voir dire Santiago and Vaca made a Batson/Wheeler motion (Batson v. Kentucky (1986) 476 U.S. 79; People v. Wheeler (1978) 22 Cal.3d 258). Defendant Santiago claims the trial court erred when it ruled that a prima facie showing of discrimination had not been made. He states that under recent United States Supreme Court precedent a stage one ruling under Batson/Wheeler cannot be based on speculation as to the prosecutor’s possible reasons for the peremptory challenges. He asks that we review the court’s ruling under a de novo review standard. He faults the trial court for commenting on the challenge made by the defense to an Hispanic person. Without making further argument, Vaca joins in this issue raised by Santiago.
A Wheeler/Batson motion involves three distinct steps. “First, the defendant must make out a prima facie case ‘by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.’ [Citations.] Second, once the defendant has made out a prima facie case, the ‘burden shifts to the State to explain adequately the racial exclusion’ by offering permissible race-neutral justifications for the strikes. [Citations.] Third, ‘[i]f a race-neutral explanation is tendered, the trial court must then decide... whether the opponent of the strike has proved purposeful racial discrimination.’” (Johnson v. California (2005) 545 U.S. 162, 168.)
In determining whether a prima facie case has been established “a defendant satisfies the requirements of Batson’s first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.” (Johnson v. California, supra, 545 U.S. at p. 170.) “In this first stage of any Wheeler/Batson inquiry, the burden rests on the defendant to ‘“show[] that the totality of the relevant facts gives rise to an inference of discriminatory purpose.”’ [Citations.] In other words, this is not a case in which, after a prima facie case is found, the state must offer permissible nondiscriminatory reasons for the strikes (i.e., the second stage of the Wheeler/Batson analysis).” (People v. Carasi (2008) 44 Cal.4th 1263, 1292.) “The ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.” (People v. Lenix (2008) 44 Cal.4th 602 at pp. 612-613.)
“In deciding whether a prima facie case was stated, we consider the entire record before the trial court [citation], but certain types of evidence may be especially relevant: ‘[T]he party may show that his opponent has struck most or all of the members of the identified group from the venire, or has used a disproportionate number of his peremptories against the group. He may also demonstrate that the jurors in question share only this one characteristic—their membership in the group—and that in all other respects they are as heterogeneous as the community as a whole. Next, the showing may be supplemented when appropriate by such circumstances as the failure of his opponent to engage these same jurors in more than desultory voir dire, or indeed to ask them any questions at all. Lastly, ... the defendant need not be a member of the excluded group in order to complain of a violation of the representative cross-section rule; yet if he is, and especially if in addition his alleged victim is a member of the group to which the majority of the remaining jurors belong, these facts may also be called to the court’s attention.’” (People v. Bonilla (2007)41 Cal.4th 313, 342.)
The prosecutor excused three Hispanic prospective jurors. Jacob Valdez was the first prospective juror excused by the prosecution. When questioned he said he was a full-time student at Life Pacific College. His career goal was pastoral. His house had been broken into a couple of times when he was a child. His grandfather was currently incarcerated because of a driving-under-the-influence conviction. His grandfather had suffered several driving-under-the-influence convictions in the past seven years, and had suffered over 10 such convictions during his lifetime. Valdez believed his grandfather had been fairly treated and needed to be punished. When asked if he knew anyone in the legal field, he responded that he knew a public defender. He has known this public defender since he was a child and she was the daughter of his pastor. He said this would not affect his ability to be fair.
Valdez was questioned by the prosecutor. He was 20 years old and other members of his family were pastors. He has wanted to be a pastor for a number of years. He believed that everyone makes mistakes in life. He was currently in training as a youth pastor. The church he had been a part of throughout his entire life was an inner-city church. He grew up on the East side of Bakersfield and there was a lot of gang activity. This would not change his opinion about gang members. He knew a number of people who have grown up in street gangs. He had witnessed gang activity. He said this background would not affect his ability to sit on the jury.
Miguel Martinez was the second prospective juror excused by the prosecution. He was a student majoring in criminal justice. He wanted to be a probation officer. He did not attend school last semester and, instead, worked at a truck stop. He was currently working at a tire shop, having just begun training the day before. Jury service would not interfere with his job because the tire shop was owned by a friend. He lived with a significant other who did not work. The court then stated that being a housewife is a full-time job. Martinez replied, they did not have any children. The court stated, but there is still a house to take care of. Martinez responded, “I guess, yeah.” When asked why he wanted to be a probation officer he said it seems interesting. His brother’s car had been burglarized, but otherwise he did not have close family or friends who had been the victim of a crime.
Martinez was questioned by the prosecutor. He responded to many questions with “yeah.” Martinez said he wanted to be a probation officer because he had friends who were probation officers. Counsel for Vaca asked Martinez, “Any personal experience with gangs or drugs in your private life that may cause you concerns on the case?” Martinez responded, “Yeah, I’ve seen some but --.” Defense counsel continued with the next question and Martinez said it would not affect him in any way.
Yanira Hernandez was the third prospective juror excused by the prosecution. She was a full-time student majoring in human services with a career goal of being a social worker. Because it was summer she was currently not doing anything. Her sister was a counselor in juvenile hall and worked for the probation department.
When questioned by the prosecutor Hernandez said she was previously a student in Culinary Arts but changed her mind for a lot of reasons, including that the classes were too much work. She was asked if she had any experience growing up related to gangs. She answered no. When asked if she knew anyone in gangs she said her “uncles and stuff” were in gangs but she really did not hang out with them and she did not talk to them. The prosecutor focused on her background in social work and asked her if she would hold him to a higher burden of proof if she knew that the defendants had a bad upbringing or social condition. She was asked “[I]t wouldn’t increase my burden of proof and make me work harder to prove them guilty?” She replied, “Yeah, it would.” The prosecutor followed up with, “It would make it I’d have to prove more of my case?” She replied, “Yeah.” When asked why, she replied, “Because you would need a lot of evidence. You would need a lot of evidence to see if they really did it.”
The court intervened and asked Hernandez if she would hold the People to a higher burden of proof than what the law required. She said she would not.
The prosecutor’s first peremptory challenge was to Valdez. His second peremptory challenge was to Martinez. The prosecutor’s third challenge was to Hernandez. After Hernandez was dismissed counsel for Vaca made a Wheeler/Batson motion, joined by Santiago.
Vaca’s counsel said that all three prospective jurors dismissed by the prosecution were young Hispanic college students. His client is a young Hispanic male. Santiago’s counsel joined in the motion without making further comment. The People responded only to note that the age and education of prospective jurors is not a recognized class within the case law for a showing of systematic exclusion.
The court summarized that the defense had excused a non-Hispanic, and then jointly excused Mr. Paredes. Vaca and Santiago’s counsel said that Paredes worked for the Department of Corrections and had some issues with this being a gang case.
The court ruled as follows: “[B]ased on what I recall of the witnesses [sic] and their testimony, their young age, specifically Mr. Valdez being a divinity -- young divinity student; Mr. Martinez, young, seemed a little bit slow in his responses at least to me and his mannerism; Ms. Hernandez about in the same category. I believe that she indicated that she started out as what a culinary arts major and decided probably for caring for children in that type that she wanted to switch her major to that of welfare or child services. Based upon what I’ve heard I do not find that the defense has made out a prima facie case for showing from the totality of the relevant facts as to each that the relevant facts give rise to an inference of discriminatory purpose on the excusal of the three Hispanics by the People. And understanding that to be correct the People are entitled if they wish to give reasons why they excused the three, understanding that we have denied the motion and set the record correct.”
The People declined to give their reasons on the record, but said it would file written justifications for the excusals that would be strictly for the appellate record.
We begin by noting that Santiago argues there were three Hispanic prospective jurors in the jury box when the prosecutor made his first challenge, two when he made his second challenge, and one when he made his last challenge. The record does not reflect how many Hispanics were in the jury box or in the venire at any time. While we can recognize Hispanic surnames, that does not eliminate the possibility that there could have been Hispanic jurors in the jury box that did not have Hispanic surnames. Additionally, Santiago did not provide us with a list of names of jurors who were actually selected to sit on the jury. We have no way of knowing their possible ethnic background from the group of numbers used to identify them and again it is possible that even if we were provided with their names, one or more could have been Hispanic without an Hispanic name. At the time defendants made their motion, they did not state on the record anything about the composition of the prospective jurors in the jury box, or in the venire in general, except to say that the prosecutor had excused three Hispanic jurors. Defendants thus failed to make a proper record for review. For this reason alone, their argument fails.
Santiago argues that the prima facie case is demonstrated just by the fact that the first three peremptory challenges by the prosecutor were to Hispanic prospective jurors. He contends that “‘happenstance is unlikely to produce this disparity.’” In addition, he contends that judicial speculation as to the reasons the prosecutor might have had is not properly considered on a Batson issue at the prima facie case stage in the trial court or on appeal.
Again, we cannot fairly evaluate the statistics of the challenges to the three Hispanic prospective jurors because the record does not demonstrate the composition of the prospective jurors in the jury box or the venire in general. Furthermore, although defendant argues that United States Supreme Court cases stand for the proposition that courts cannot speculate as to reasons the prosecutor might have used in dismissing the jury, the California Supreme Court continues to reiterate that the entire record must be analyzed in determining if a prima facie case has been made. Additionally, we agree with the courts in People v. Lancaster (2007) 41 Cal.4th 50 at pages 75-76 and People v. Neuman (2009) 176 Cal.App.4th 571 that rejected this same argument, finding that the reliance on language in the United States Supreme Court case of Johnson v. California, supra, 545 U.S. 162 was misplaced. The quoted and relied on language from Johnson was a discussion regarding the considerations applicable at the third step of the Batson inquiry.
Our examination of the entire record demonstrates the trial court did not err when it found there was no prima facie case of discrimination. As previously set forth, the record is inadequate for us to determine if the prosecutor struck most or all of the members of the identified group from the venire. The prosecutor questioned each of the challenged prospective jurors individually and for an appreciable period of time. Although defendants are members of the same ethnicity as the challenged jurors, this is just one factor. The record does not demonstrate whether the majority of the remaining members of the jury panel are aligned with the victim, the record does not demonstrate the ethnicity of any of the remaining jurors.
In addition, there were very viable, nondiscriminatory reasons for the dismissal of each juror. Valdez’s grandfather was currently incarcerated for driving under the influence and had been incarcerated a number of times. He was friends with a member of the public defender’s office and had known this public defender since birth. In addition, she was the daughter of Valdez’s pastor and Valdez was closely associated with the church, as he was pursuing a career in the ministry. He grew up in a gang area and witnessed gang activity. All of these factors might indicate that Valdez would not be a juror favorable to the prosecution.
Martinez gave answers that indicated a somewhat lackadaisical approach to life. In addition, his interaction with the court regarding whether there was work involved in keeping a home could be interpreted as a bias against females, the victim here is a female. Most importantly, when defense counsel asked him if he had any personal experience with gangs or drugs in his private life that might cause him concerns on the case, he replied, “Yeah, I’ve seen some but --.” His answer was not completed when defense counsel continued to question him. His positive response to this last question, as well as his other answers and demeanor during voir dire would support a legitimate challenge by the prosecution.
The same holds true for Hernandez. When asked if she had any experience with gangs growing up, she said no. On further questioning she said she had uncles who were in gangs. More important, when the prosecutor asked her if she would hold him to a higher burden of proof if she knew that the defendant had a bad upbringing or social condition she replied affirmatively more than once. This clearly was more than a legitimate reason for the prosecutor to challenge her, regardless of her race.
Based on the totality of the record we find the trial court did not err when it found a prima facie case of discrimination had not been shown.
Santiago argues that our review of the ruling by the trial court should be de novo, not abuse of discretion. We need not determine the standard of review because the argument fails under either standard.
II. Motion to Suppress
Prior to trial, Vaca filed a motion to suppress the statements he made to law enforcement and the text messages found on his phone. The trial court heard the motion and heard testimony from two Bakersfield police officers.
After Nye was shot, police officers asked personnel to review phone calls made by Palacios in jail. They did so because they knew of Nye from the prior home invasion robbery. They discovered a phone call placed by Palacios from jail to Santiago. In the taped conversation it was discussed that “Boy” was to intimidate a witness, or shoot or kill a witness.
Officer Steven Kauffman looked for Santiago at an address on Columbine Avenue. Santiago was not there, but Vaca was. Kauffman asked Vaca if he had any nicknames and he said yes, his nickname was “Boy.”
Detective William Darbee interviewed Miguel Santiago. Santiago denied involvement in the shooting and said “Boy” could vouch for him. He identified “Boy” as Manuel Santiago and gave the Columbine address as the location where they could find Manuel.
Officer Kauffman and the other officers were told to return to the Columbine address and locate and bring in an individual who went by the name of “Boy.” Kauffman returned with the other officers. They were given permission to enter the home. They found Vaca in the bedroom. He was placed in handcuffs and was led from the house. He was searched and his personal belongings removed. He was placed in the back of a marked patrol car and taken to the police station. He remained handcuffed at the police station and was not free to leave. Vaca was kept in a room pending his interview for over an hour. Darbee interviewed him beginning at 3:00 a.m.
Vaca waived his Miranda rights and spoke to Darbee. During the conversation he agreed that his nickname was “Boy” and he agreed to let Darbee inspect the contents of his cell phone. Darbee testified that Vaca was not under arrest, he was merely detained.
Vaca argued that this was not a detention, but an illegal arrest and his consent to search the phone was tainted by the illegal arrest. Vaca claimed there was not enough information for officers to arrest him and the contact with him was merely investigatory.
The trial court denied the motion to suppress. First, the court found that Vaca was not detained, he was arrested. The question was thus whether there was a lawful basis for his arrest. The court found there was: Darbee’s knowledge of Nye’s connection to Palacios, the fact Nye was shot, the content of the phone call linking “Boy” to the shooting, the information that Santiago gave him as to the location of “Boy, ” and Vaca’s identification as “Boy, ” provided probable cause for his arrest.
Vaca now claims the motion to suppress should have been granted because there was not probable cause to arrest him. He argues there was not sufficient reliable and trustworthy information to warrant a prudent person to believe Vaca shot Nye. First, he asserts there was no evidence to support the trial court’s factual findings that there was a link between Palacios and Nye because Darbee did not testify that Palacios was involved in the home invasion robbery. From this Vaca claims there was no evidence to explain why Darbee sought the telephone records of Palacios and no evidence why the Palacios/Santiago conversation had anything to do with Nye’s shooting. He continues by arguing the remaining facts do not establish probable cause. In conclusion, Vaca argues there is nothing to link himself to the shooting, no evidence of motive, no physical description of him given, and only the vague and nonspecific reference by Santiago in the conversation to have “Boy” do “that.” Vaca also argues that his statements and text messages should have been suppressed because his arrest was not supported by probable cause.
Santiago joins in all relevant arguments of Vaca. He does not make any further arguments. Thus, in issues raised by Vaca we will treat the issue as if Santiago has joined, if the argument could be relevant to Santiago.
“‘In reviewing the denial of [a motion to suppress evidence], we must view the record in the light most favorable to respondent [citation], uphold all express and implied factual findings of the trial court that are supported by substantial evidence, then independently apply the proper federal constitutional standards to those facts [citations].’ [Citation.] ‘“[T]he power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences, is vested in the trial court. On appeal all presumptions favor the exercise of that power....”’” (People v. Gomez (2004) 117 Cal.App.4th 531, 537.)
“‘Probable cause exists when the facts known to the arresting officer would persuade someone of “reasonable caution” that the person to be arrested has committed a crime. [Citation.] “[P]robable cause is a fluid concept—turning on the assessment of probabilities in particular factual contexts....” [Citation.] It is incapable of precise definition. [Citation.] “‘The substance of all the definitions of probable cause is a reasonable ground for belief of guilt, ’” and that belief must be “particularized with respect to the person to be... seized.”’” (People v. Thompson (2006) 38 Cal.4th 811, 818.)
As previously set forth, the trial court is allowed to draw factual inferences from the evidence. Darbee testified he knew of Nye because of the previous home invasion robbery. He then requested phone records from the jail. He listened to the conversation between Palacios and Santiago where they discussed having “Boy” intimidate a witness, or shoot and kill a witness. Darbee testified that he interviewed Santiago, who was arrested for this case. Santiago identified “Boy” as being able to vouch for him. While Darbee did not directly say that Nye was connected to Palacios, it was a reasonable factual inference from his testimony. There would be no reason for Darbee to request phone records from Palacios after hearing about Nye being shot and no reason for Santiago to be brought in for questioning in the Nye shooting unless there was a direct connection between Nye, Palacios, Santiago, the home invasion and the shooting of Nye. The testimony at the hearing was sufficient to link the shooting of Nye to the Palacios/Santiago conversation.
Having found this link, the trial court correctly found probable cause to arrest Vaca. Vaca identified himself as “Boy.” “Boy” was the person who was supposed to carry out the intimidation of the witness plot discussed by Palacios and Santiago, which included a discussion of shooting or killing someone. Nye was shot. Santiago claimed that “Boy” could vouch for him that he did not shoot Nye, and Santiago gave an address where “Boy” could be located. Vaca, a.k.a. “Boy, ” was at the address provided by Santiago, further linking “Boy” to Santiago and the shooting of Nye. From this information a reasonable and prudent man could entertain an honest and strong suspicion that Vaca had committed a crime.
The trial court did not err when it denied the motion to suppress.
Defendant made a motion before trial seeking to exclude his statement and search of his cell phone arguing that his statement was coerced. He does not renew this challenge on appeal.
III. Statement of a Coconspirator
Prior to trial, Vaca made a motion to exclude any evidence of the statement made by Santiago to Quinton that he tried to fire the weapon twice and when it didn’t fire, Santiago handed it to Vaca and Vaca shot Nye. The prosecution claimed the evidence was admissible because it fell within two exceptions to the hearsay rule: an admission and a statement of a coconspirator. Vaca argued that the statement of Santiago to Quinton was not made during the course of the conspiracy because the shooting of Nye was complete and the coconspirators had reached safety. He claimed the statement was not done in furtherance of the conspiracy. In addition, Vaca argued that Santiago was placing the blame on Vaca and the statement created antagonistic defenses, particularly, because personally discharging a firearm carries a much higher penalty. Finally, he asserted that the evidence should be excluded under Evidence Code section 352 as more prejudicial than probative.
The court found that the statement was admissible and Aranda/Bruton (People v. Aranda (1965) 63 Cal.2d 518; Bruton v. United States (1968) 391 U.S. 123) did not apply. The court stated that the statement was not testimonial and fell within the coconspirator and declaration against penal interest exceptions to the hearsay rule.
Vaca now asserts the trial court erred in allowing Quinton to testify to the statement Santiago made to her. He argues the evidence is not admissible under Bruton and did not fall within the coconspirator exception to the hearsay rule. Vaca contends that Santiago’s statement to Quinton amounted to a confession and a confession does nothing to further a conspiracy. He claims that the conspiracy had ended and thus the statements were not admissible because they were not made during a time when Vaca was participating in that conspiracy. In addition, he argues that the statement did not fit within the declaration against interest exception to the hearsay rule.
“‘The Aranda/Bruton rule addresses the situation in which “an out-of-court confession of one defendant... incriminates not only that defendant but another defendant jointly charged.” [Citation.] “The United States Supreme Court has held that, because jurors cannot be expected to ignore one defendant’s confession that is ‘powerfully incriminating’ as to a second defendant when determining the latter’s guilt, admission of such a confession at a joint trial generally violates the confrontation rights of the nondeclarant.”’” (People v. Combs (2004) 34 Cal.4th 821, 841, italics omitted.) However, if the statement is admissible against the declarant codefendant under an exception to the hearsay rule, and it does not offend the confrontation clause, then the jury may consider it against the nondeclarant codefendant. (People v. Greenberger, supra, 58 Cal.App.4th at p. 332.)
“[T]he California Supreme Court has stated that the rule of Aranda was abrogated to the extent it required exclusion of relevant evidence that need not be excluded under federal constitutional law.” (People v. Greenberger (1997) 58 Cal.App.4th 298, 331, fn. 12.)
“‘Hearsay evidence is... generally inadmissible. [Citation.] Hearsay statements by coconspirators, however, may nevertheless be admitted against a party if, at the threshold, the offering party presents “independent evidence to establish prima facie the existence of... [a] conspiracy.” [Citations.] Once independent proof of a conspiracy has been shown, three preliminary facts must be established: “(1) that the declarant was participating in a conspiracy at the time of the declaration; (2) that the declaration was in furtherance of the objective of that conspiracy; and (3) that at the time of the declaration the party against whom the evidence is offered was participating or would later participate in the conspiracy.”’” (In re Hardy (2007) 41 Cal.4th 977, 995-996; Evid. Code, § 1223.)
In People v. Hardy (1992)2 Cal.4th 86 (Hardy), Cliff Morgan conspired with Hardy and Reilly to murder Morgan’s wife and son so that Cliff Morgan could collect proceeds from insurance policies he took out on them. The murders were carried out. The trial court found that there was a conspiracy to commit insurance fraud and that the conspiracy was ongoing at the time of trial. In doing so, the trial court allowed the prosecution to rely on the coconspirator exception to the hearsay rule to admit certain statements of the defendants at the joint trial of the coconspirators. (Id. at p. 143.)
On appeal the defendants argued that the court erred in finding a continuing conspiracy. The Supreme Court noted the general rule that “a ‘conspiracy usually comes to an end when the substantive crime for which the coconspirators are being tried is either attained or defeated.’” (Hardy, supra, 2 Cal.4th at p. 143.) Because the primary goal of the conspiracy was the acquisition of money through the receipt of the insurance benefits, the Supreme Court found the conspiracy was ongoing and did not end with the death of the insureds. “Instead... it continued until the coconspirators received the insurance proceeds [citation], or Morgan was convicted of unjustifiable homicide of the victims, thus disabling him from legally collecting the insurance proceeds. [Citation.] Because the insurance companies had not yet paid out at the time of trial, the conspiracy was a continuing one, permitting the introduction of hearsay statements made during the time between the crime [murders] and the trial.” (Id. at p. 144, fn. omitted.)
Here, although the shooting of Nye was complete, the conspiracy to prevent or dissuade a witness from testifying was not complete. Nye was not dead, and thus could still testify. At the time of Santiago’s statement Nye was not prevented from testifying because she was alive and it was not known if the shooting was sufficient to dissuade her from testifying. In addition, the conspiracy included the goal of preventing or dissuading Azevedo from testifying. At the time of Santiago’s statement it was not known if the shooting of Nye had this affect. “‘It is for the trier of fact—considering the unique circumstances and the nature and purpose of the conspiracy of each case—to determine precisely when the conspiracy has ended.’” (Hardy, supra, 2 Cal.4th at p. 143.) Thus, the object of the conspiracy here was neither attained nor defeated at the time of Santiago’s statement and the conspiracy was ongoing.
Vaca also argues that the statement of Santiago did not further the conspiracy and thus fails to meet the requirement that the statement must be made in furtherance of the conspiracy. “‘[A]lthough it has been held that statements which merely narrate past events are not to be deemed as made in furtherance of a conspiracy [citations], such a rule cannot be applied mechanically.’” (Hardy, supra, 2 Cal.4th at p. 146.) Rigid rules do not exist in this area and the question depends on an analysis of the totality of the facts and circumstances in the case. (Ibid.)
Here, the object of the conspiracy was to keep witnesses quiet. By revealing details of the killing to another, including that more than one person was involved and that the two continued in their enterprise even after the gun did not fire the first two times, Santiago might create further fear in the minds of the witnesses who were alive if they were to learn of these facts. While the statement of Santiago was a recounting of the shooting of Nye, if the recounting were to reach the persons sought to be silenced, it had the potential of further dissuading their testimony. This exact type of scenario was discussed during the phone conversation between Palacios and Santiago. In addition, Quinton knew Nye and hung around people that Nye knew, thus the chance that Nye would learn of this was strong. Under the totality of the circumstances the statement was in furtherance of the conspiracy.
Our conclusion is supported by the recent case of People v. Gann (2011) __Cal.App.4th__, (D055431). Gann and his sister, Hansen, conspired to kill their stepfather and have the murder appear to be a burglary or home invasion robbery. The plan was carried out with Gann committing the murder and Hansen reporting that she and her stepfather had been confronted by an armed masked man. Hansen made this report to the 911 operator and to police when she was questioned. During trial these statements were admitted. On appeal Gann claimed Hansen’s statements were not admissible under any hearsay exception. The appellate court disagreed. The conspiracy included a plan to make the murder look like a home invasion robbery. Thus, although the stepfather had been killed, the statements by Hansen were in furtherance of the conspiracy because they were integral to creating the false impression that the stepfather died during a home invasion robbery.
Because the statement was properly admitted under the coconspirator exception to the hearsay rule, we need not determine if it was properly admitted as an admission. We also need not discuss prejudice, because there was no error in admitting the statement.
The People agree with defendants that at the time Santiago made the statement to Quinton the conspiracy had ended. We are not required to accept the People’s concession and decline to do so. Our discussion demonstrates that the conspiracy was ongoing at the time the statement was made.
IV. Failure to Give Accomplice Instructions
Santiago contends that in-custody declarant, Palacios, was an accomplice as a matter of law and that a reasonable juror could have deemed Martinez and/or Quinton to be accomplices. He argues that based on this, the trial court prejudicially erred when it failed to sua sponte give accomplice instructions. In particular, he argues the statements of Palacios, Martinez, and Quinton were critical to the prosecutor’s case against him, yet, the jury was not told they should view their testimony with caution.
Vaca joins in Santiago’s argument. In addition to the arguments made by Santiago, Vaca contends that Santiago should be deemed an accomplice and his statements should be viewed with caution. He argues the error is even more prejudicial against him because there was little evidence connecting him to the crime.
An accomplice is a person “who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.” (Pen. Code, § 1111.) Accomplice instructions inform the jury that the testimony of an accomplice must be corroborated and should be viewed with caution. “An erroneous failure to give accomplice instructions is deemed harmless as long as there is ‘sufficient’ (or ‘ample’) evidence of corroboration. [Citations.] ‘“Corroborating evidence may be slight, may be entirely circumstantial, and need not be sufficient to establish every element of the charged offense. [Citations.]” [Citation.] The evidence “is sufficient if it tends to connect the defendant with the crime in such a way as to satisfy the jury that the accomplice is telling the truth.”’” (People v. Felton (2004) 122 Cal.App.4th 260, 271-272.)
We need not determine if any of the persons alleged to be accomplices by defendants were possible accomplices because there was sufficient evidence of corroboration. Nye testified that she was kept in Crystal’s home for days following her release from jail until she was shot. She was always left with someone, including Vaca and Santiago. The testimony of Nye, who was not an accomplice, was sufficient evidence of corroboration to tie Vaca and Santiago to the crimes. Any error, in failing to give accomplice instructions was harmless.
V. In-Custody Informant Instruction
An in-custody informant is “a person, other than a codefendant, percipient witness, accomplice, or coconspirator whose testimony is based upon statements made by the defendant while both the defendant and the informant are held within a correctional institution.” (Pen. Code, § 1127a, subd. (a).) Lopez testified regarding a conversation he had with Palacios, Santiago, and Vargas-Diaz while in custody.
If a party requests an instruction regarding the testimony of an in-custody informant, the court must give the instruction. The instruction tells the jury that the testimony of such an informant should be viewed with caution and close scrutiny. In addition, the jury is told it may consider any benefits the informant may have received for giving testimony. (Pen. Code, § 1127a, subd. (b).)
Although the conversation that was admitted at trial took place while Lopez and the others were in custody, Lopez was not in custody when he testified at trial. While discussing the instructions to be given to the jury the court stated that, because Lopez was out of custody when he testified, the in-custody informant instruction (CALCRIM No. 336) probably did not need to be given. The court added that the promise of leniency instruction covered the issue. The court gave the parties the opportunity to modify the in-custody instruction if they wanted to. Counsel for Santiago and Vaca agreed the instruction could be withdrawn. They did not make a further request for additional or modified instructions on this issue.
Santiago now claims the court prejudicially erred when it failed to give this instruction. He asserts the court had a duty to give the instruction because it was requested, and erred when it informed the defense that the instruction did not apply because Lopez was not in custody. Santiago argues that the testimony of Lopez was a tipping point in this case and the error in failing to give this instruction, along with other errors claimed on appeal, resulted in prejudice by allowing the jury to reach its verdicts without appropriate skepticism toward a number of suspect witnesses and declarants. Vaca joins in this issue. He does not make any arguments in addition to the arguments made by Santiago.
The bulk of Santiago’s argument to the jury was that the crimes here were not perpetrated for the benefit of a criminal street gang. In making this argument Santiago relied heavily on the testimony of Lopez who said this was a family affair, not a gang situation.
Santiago could not have been prejudiced by the absence of this instruction. He wanted the jury to believe the testimony of Lopez, particularly regarding the gang testimony given by Lopez. The instruction would have defeated his reliance on the testimony of Lopez. Error, if any, was not prejudicial.
VI. Lesser Included Offense Instructions for Conspiracy to Commit Murder
The trial court stated that it appeared there were no lesser included offenses to conspiracy to commit murder. Counsel for Santiago and Vaca agreed. The court did not give any lesser included instructions for conspiracy to commit murder.
Santiago now claims the trial court erred in failing to instruct on the lesser included offense of conspiracy to commit felony assault. Vaca joins in this argument without further discussion except to argue the error was more prejudicial as to him because the evidence against him was weak.
There is a split of authority on the question of whether conspiracy to commit an assault is a lesser included offense to conspiracy to commit murder. In People v. Cook (2001) 91 Cal.App.4th 910 the court held that under the accusatory pleading test, assault could be a lesser included offense within conspiracy to commit murder when one considers the overt acts alleged as to the murder conspiracy. In reaching this conclusion the court in Cook disagreed with the court in People v. Fenenbock (1996) 46 Cal.App.4th 1688. In Fenenbock the court held that it was improper to consider the overt acts allegations when applying the accusatory pleading test and, thus, conspiracy to commit assault with a deadly weapon could not be included within conspiracy to commit murder.
“To determine whether a lesser offense is necessarily included in a greater charged offense, one of two tests must be met. [Citation.] The ‘elements’ test is satisfied if the statutory elements of the greater offense include all the elements of the lesser offense so that the greater offense cannot be committed without committing the lesser offense. [Citation.] The ‘accusatory pleading’ test is satisfied if ‘the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater [offense] cannot be committed without also committing the lesser [offense].’” (People v. Cook, supra, 91 Cal.App.4th at p. 918.)
We need not decide whether Fenenbock or Cook is correct because, even if the court erred by failing to instruct on conspiracy to commit felony assault as a lesser included offense to conspiracy to commit murder, any error was harmless. “Error in failing to instruct the jury on a lesser included offense is harmless when the jury necessarily decides the factual questions posed by the omitted instructions adversely to defendant under other properly given instructions.” (People v. Lewis (2001) 25 Cal.4th 610, 646.) The jury found Vaca and Santiago guilty in count two of premeditated, deliberate attempted murder, thus, the jury necessarily found they had the specific intent to kill required for conspiracy to commit murder.
VII. Evidence of Multiple Conspiracies
Vaca and Santiago were found guilty in count two of conspiracy to murder Nye and found guilty in count three of conspiracy to dissuade or prevent Nye from testifying. Santiago was convicted of count four, conspiracy to dissuade or prevent Azevedo from testifying, Vaca was acquitted of this charge.
Santiago claims there was insufficient evidence to establish the existence of multiple conspiracies. He argues that the question of whether one, two, or three conspiracies were proven is a question of law. He does not claim that the evidence is insufficient to support a finding that a conspiracy took place, just that it is insufficient to support a finding that more than one conspiracy took place. Alternatively, he argues that, if there is sufficient evidence to support two conspiracies then the trial court erred in not instructing the jury that they must determine from the evidence if two conspiracies took place. Vaca joins in this argument, noting his acquittal in count four.
The People concede that count three should be dismissed as to both defendants because there were only two conspiracies—one to dissuade Azevedo from testifying against Palacios and one to kill Nye (which would have the effect of her not testifying). The People do not, however, provide a factual argument with citation to legal authorities to support that position. The People do not address the instructional issue, claiming it need not be addressed because Santiago’s conspiracy argument is made in the alternative. The People’s concession regarding only one of the three counts, however, does not eliminate the instructional error argument.
First we must determine if the evidence is sufficient to support more than one conspiracy. “‘[W]e review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.]” (People v. Avila (2009) 46 Cal.4th 680, 701.) In making this determination we “‘presume[] in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ [Citation.]” (Ibid.; see also Jackson v. Virginia (1979) 443 U.S. 307 at pp. 319-320.) “Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence.” (People v. Maury (2003) 30 Cal.4th 342, 403.)
“[T]he essence of the crime of conspiracy is the agreement, and thus it is the number of the agreements (not the number of the victims or number of statutes violated) that determine the number of the conspiracies. As the United States Supreme Court stated long ago: ‘The gist of the crime of conspiracy... is the agreement or confederation of the conspirators to commit one or more unlawful acts....’ [Citation.] ‘“The conspiracy is the crime, and that is one, however diverse its objects.”’ [Citation.]” (People v. Meneses (2008) 165 Cal.App.4th 1648, 1669-1670.) “Where two or more persons agree to commit a number of criminal acts, the test of whether a single conspiracy has been formed is whether the acts ‘were tied together as stages in the formation of a larger all-inclusive combination, all directed to achieving a single unlawful end or result.’” (People v. Morocco (1987) 191 Cal.App.3d 1449, 1453.)
Although “[i]t is... widely stated that the question of whether the evidence shows a single conspiracy or multiple conspiracies is a question of fact for the jury to decide” (People v. Meneses, supra, 165 Cal.App.4th at p. 1670), this is true only if the evidence is susceptible to a finding that there were two or more conspiracies. For example, in In re Nichols (1927) 82 Cal.App. 73, “[t]he conspirators were charged in two counts: conspiracy to commit the crime of extortion and conspiracy to falsely maintain a lawsuit.” (People v. Lopez (1994) 21 Cal.App.4th 1551, 1557.) Nichols was found guilty of two counts of conspiracy. The appellate court found the evidence demonstrated only a single conspiracy after the “conspirators enticed a man into a rented room with defendant, accosted him, threatened him with suit for alienation of the defendant’s affections, and hired an attorney to file the suit.” (Ibid.)
One conspiracy was found in People v. Skelton (1980) 109 Cal.App.3d 691, a case involving sophisticated securities fraud transactions. Because there was only one overall scheme, the appellate court found there was only one conspiracy. “The test is whether there was one overall agreement among the various parties to perform various functions in order to carry out the objectives of the conspiracy. If so, there is but a single conspiracy.” (Id. at p. 718.)
In People v. Lopez, supra, 21 Cal.App.4th 1551, the defendant was convicted of three counts of conspiracy: to manufacture methamphetamine, to illegally dispose of hazardous substances, and to possess methamphetamine for sale. An undercover officer offered Flores a large quantity of ephedrine (a precursor chemical used in manufacturing methamphetamine). After several failed attempts were made to purchase the ephedrine, the undercover officer agreed to provide the ephedrine in return for a portion of the methamphetamine to be produced. Flores put the officer in contact with the defendant and over the course of several days; they reached an agreement for the transfer of the ephedrine. The defendant met the undercover officer and another man loaded the ephedrine from the officer’s car into the defendant’s car. (Id. at pp. 1553-1554.) This court found that “all 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.)
Here, each separately charged conspiracy alleged the same overt acts. The conversation between Palacios and Santiago revolved around how to make sure there were no witnesses who would testify against Palacios for the home invasion robbery. This was the single unlawful end or result sought. Although the two discussed various scenarios to achieve their result, the purpose remained singular; to obtain the release of Palacios from jail by making sure no one showed up to testify against him. Killing Nye was envisioned as accomplishing this goal; she would not testify because she would be dead and Azevedo would not testify because he would be frightened by the killing of Nye.
Only one count of conspiracy can be sustained. Because we have found the evidence supported only one count of conspiracy, we need not discuss the issue regarding the instruction.
We note, however, that if the evidence had been susceptible to a finding of multiple conspiracies, then the trial court would have had a sua sponte duty to instruct the jury to determine if a single or multiple conspiracies existed. (People v. Meneses, supra, 165 Cal.App.4th at pp. 1668-1671.)
VIII. Evidence to Support Gang Enhancement
A Penal Code section 186.22, subdivision (b)(1) gang enhancement was alleged and found true as to each count. In addition, the jury found as to each count that a principal intentionally and personally discharged a firearm proximately causing great bodily injury to a person other than an accomplice. (Pen. Code, § 12022.53, subds. (d) & (e)(1).) Santiago and Vaca argue that the true findings on both enhancements should be reversed.
If any principal in the offense committed an act specified in Penal Code section 12022.53, subdivision (d), then Penal Code section, 12022.53, subdivision (e) provides that the firearm enhancement applies to all principals involved if those principals are also found guilty of the gang enhancement. In such a situation, personal use is not required.
A criminal street gang is “any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the [enumerated] criminal acts..., having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.” (Pen. Code, § 186.22, subd. (f).)
“‘To establish a gang enhancement allegation, “the prosecution must prove that the crime for which the defendant was convicted had been ‘committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.’” [Citation.]’ [Citations.] There is rarely direct evidence that a crime was committed for the benefit of a gang. For this reason, ‘we routinely draw inferences about intent from the predictable results of action. We cannot look into people’s minds directly to see their purposes. We can discover mental state only from how people act and what they say.’ [Citation.] ‘Commission of a crime in concert with known gang members is substantial evidence which supports the inference that the defendant acted with the specific intent to promote, further or assist gang members in the commission of the crime.’ [Citations.]” (People v. Miranda (2011) 192 Cal.App.4th 398, 411-412.)
Santiago claims the evidence is insufficient to support the gang enhancement. In particular, he argues the evidence was insufficient to show the offense was “‘in association with, at the direction of or for the benefit of’” the Colonia Bakers. There was insufficient evidence of the specific intent necessary to prove a gang-related crime, and there was insufficient evidence with regard to the Colonia Bakers’s primary activities. Santiago argues that the gun enhancement must also be reversed because it was based on the finding that the crime was committed for the benefit of a street gang.
Vaca joins Santiago’s argument and additionally notes that the expert testified that Vaca was not a member of a criminal street gang. Vaca claims Shaff’s testimony was not sufficient to satisfy the primary activities requirement of the statute because Shaff referred to Hispanic gangs in general and not to the Colonia Bakers. In addition, Vaca argues the gang registration requirement must be stricken because there was insufficient evidence to support the gang enhancement.
Lopez testified as a witness for the prosecution. He was 31 years old at the time of trial and stated that he had been a member of the Colonia Bakers street gang, but he was now a dropout. He said the Colonia Bakers was a gang in town with a lot of members. He said that he was an O.G.—old original gangster, before he dropped out. To be an O.G. a gang member has to be old, has to do “dirt” for the gang, supply for them, care for them. Lopez said dirt is “you go out there and you take care of business, like sell dope, steal cars, shoot people … [b]eat people’s asses.… [¶] … [¶] rob people, do burglaries, and sometimes you murder, stuff like that.” Lopez stated that he loved cars, and had been to prison five times for stealing cars. He finally decided that all the things “these guys do is dumb.” So he dropped out. He has seen members from the Colonia Bakers “doing dirt, fighting and stealing and robbing.”
Lopez described the territory of the Colonia Bakers. He said that gang members are required to protect their territory (“putting in work”) for the benefit of the gang. If they don’t put in their work, then they get dealt with accordingly. There is a hierarchy in the gang. He explained that although the gangs may not get along on the streets, once a person becomes incarcerated you leave your differences on the street and get along with everybody.
Lopez testified that a lot of members of the gangs make their money by committing crimes. If a gang member robbed someone they would probably use the money to buy drugs and would “give homeys hook-ups” for drugs. The respect in the gang for that member would increase, at least until he ran out of drugs. He said that respect is very important in the gang and if you put in more work, you get more respect. People are particularly afraid of shooters in a gang. Lopez said that he attended meetings of the gang. At the meetings they talk about crimes that are going to be committed, including stealing cars and selling dope. Shootings were discussed at these meetings as well as confrontations with other gangs.
Lopez identified Palacios and Vargas-Diaz at trial. He had a personal dispute with Palacios, and Vargas-Diaz was present during this dispute. He had seen Palacios at Colonia meetings, he had not seen Vargas-Diaz at any of the meetings.
Lopez explained that there are gangs in neighborhoods and a different system of gangs in prison. In prison the Hispanics break off into Northerners and Southerners. The Surenos is the southern street gang. Colonia Bakers associate with Surenos in prison. The southern street gangs do not fight with each other in jail or prison.
Someone who wants to be a member of the Colonia Bakers, but is not a member, is a “wannabe.” The gang uses them. Surenos and street gangs, like the Colonia Bakers, associate on the street and commit crimes together on the street.
Lopez testified that if someone snitches (testifies against a gang member), it is “like a death penalty.” If a gang member thinks that someone is snitching it is a “bullet to the head.” A person is on top of their game in a gang if they take out a snitch.
On cross-examination Lopez testified that Palacios’s conspiracy to have Nye shot was for himself. When asked if Palacios was doing it for the Colonia Bakers street gang, Lopez responded, “Not that I know of.” Lopez did not think Santiago was a member of the Colonia Bakers gang and said he did not know Vaca. Lopez had not been in contact with members of the gang for about a year.
On further cross-examination Lopez was asked about the shooting of Nye. Counsel for Santiago asked, “So it wasn’t anything that started off with the Colonia.” Lopez responded, “Well, it was called by -- yeah. You know, Sapo’s [Palacios] the one. He’s from Colonia. See what I’m saying?”
As previously set forth, Bakersfield Police Officer Shane Shaff testified as an expert in the area of criminal street gangs. He is familiar with the Colonia Bakers criminal street gang in Kern County and has conducted investigations regarding it. Shaff described the territory of the Colonia Bakers and their rivals. Similar to the testimony of Lopez, Shaff said that when southern Hispanic street gang members go into prison they can become members of the Surenos while in prison. Gang members can share allegiance to a street gang and a prison gang.
Shaff testified that respect is the more important thing to members of Hispanic street gangs. They will commit crimes to gain or keep respect. A gang keeps its power by instilling fear in the community. A common sign or symbol of the Surenos street gang is the number 13.
Shaff reviewed information regarding Santiago. He had reviewed eight offense reports involving Santiago beginning in 1992. At that time Santiago claimed a street gang out of Los Angeles and said he “backs” the Southside and Lamont. Subsequent reports said that Santiago had the street name of Night Owl, and had gang tattoos. Shaff reviewed 17 booking reports for Santiago. When booked he claimed an affiliation with the South in most instances, and he claimed subsets of the South on six booking reports, including Al Capone (from Los Angeles) and Lamont (from Bakersfield). Based on all of these reports Shaff believed Santiago was a member of the Surenos when he was in custody, but was not a member of a street gang at this time.
Shaff reviewed reports for Palacios and Vargas-Diaz and concluded that they were members of the Colonia Bakers criminal street gang. Vaca is not a member of a criminal street gang, but he claimed an affiliation with the South and with Lamont in four bookings. He was a possible associate of Lamont.
Shaff detailed three predicate crimes committed by members of the Colonia Bakers, including the home invasion robbery by Palacios and Alvary.
Shaff was asked a hypothetical question mirroring the facts of this case. His opinion was that this conduct would benefit the Colonia Bakers because two members would be released from prison, and it would also boost the reputation of the gang because the crime was violent and involved shooting a snitch; it was very important to a gang if they could “get a snitch.” The crime furthers the gang even if nonmembers of that specific gang commit the crime. The fact that the nonmembers were related to the members of the gang occurs because gang members oftentimes go to somebody they trust to commit these crimes.
Defendants rely on a trilogy of cases from this court to support their argument: People v. Ramon (2009) 175 Cal.App.4th 843, People v. Killebrew (2002) 103 Cal.App.4th 644, and In re Frank S. (2006) 141 Cal.App.4th 1192. These cases are clearly distinguishable from the instant case.
In Killebrew, several gang members were traveling together in three cars, and a weapon was found in one of the cars; the defendant was seen in the vicinity of the cars and the prosecution argued he had been in one of the vehicles earlier that evening. (People v. Killebrew, supra, 103 Cal.App.4th at p. 659.) An expert testified to his opinion, based on hypothetical questions, that when “one gang member in a car possesses a gun, every other gang member in the car knows of the gun and will constructively possess the gun.” (Id. at p. 652, fn. omitted.) Defendant was convicted of conspiracy to possess a handgun with a gang enhancement. (Id. at pp. 647, 658.)
The Killebrew court reversed the jury’s finding on the gang enhancement and held the expert’s testimony regarding the defendant’s subjective knowledge and intent, which was the only evidence to establish the elements of the gang enhancement, exceeded “the type of culture and habit testimony found in the reported cases.” (People v. Killebrew, supra, 103 Cal.App.4th at p. 654.) The expert improperly “testified to the subjective knowledge and intent of each occupant in each vehicle. Such testimony is much different from the expectations of gang members in general when confronted with a specific action.” (Id. at p. 658.) The expert’s testimony “did nothing more than inform the jury how [the expert] believed the case should be decided. It was an improper opinion on the ultimate issue and should have been excluded.” (Ibid.)
In Ramon, this court found insufficient evidence to support the specific intent prong of the gang enhancement. The defendant was a known gang member, he was arrested while driving a stolen vehicle in his gang’s territory, and he was with a fellow gang member. A loaded, unregistered firearm was under the driver’s seat. The defendant was charged with receiving a stolen vehicle, possession of a firearm by a felon and by an active gang member, and carrying a loaded firearm in public, with gang enhancements as to all counts. (People v. Ramon, supra, 175 Cal.App.4th at pp. 846-848.) The prosecution’s gang expert testified one of the primary activities of the defendant’s gang was to steal cars; by driving a stolen vehicle in his gang territory, the defendant could have conducted numerous crimes in a vehicle that he did not have ties to, he could have used the gun to conduct the crimes, and the unregistered gun and stolen vehicle could be used to spread fear and intimidation. (Id. at pp. 847-848.) In response to a hypothetical question which mirrored the facts of the case, the expert concluded the defendant’s crimes would have benefited his gang. (Ibid.)
The Ramon court vacated the gang enhancements and found the gang expert’s speculative testimony was the only evidence to support the inference that the defendant committed the offenses with the specific intent to promote, further, or assist his gang’s criminal conduct. “The People’s expert simply informed the jury of how he felt the case should be resolved. This was an improper opinion and could not provide substantial evidence to support the jury’s finding. There were no facts from which the expert could discern whether [the defendant and his colleague] were acting on their own behalf the night they were arrested or were acting on behalf of [their gang]. While it is possible the two were acting for the benefit of the gang, a mere possibility is nothing more than speculation. Speculation is not substantial evidence. [Citation.]” (People v. Ramon, supra, 175 Cal.App.4th at p. 851.)
In Frank S., the minor defendant was a gang member. The minor was riding down the street on his bicycle when he was stopped by police. He was found in possession of a concealed weapon. He was charged with possession of a concealed weapon with an accompanying gang enhancement. The gang expert testified that the minor’s possession of a knife benefitted his gang because it would help gang members protect themselves should they be assaulted by rival gangs. (In re Frank S., supra, 141 Cal.App.4th at pp. 1195-1196.) We concluded substantial evidence did not support the specific intent element of the gang enhancement and reversed the gang enhancement finding. There was no evidence the minor was in gang territory, had gang members with him, had recent encounters with opposing gang members, or had any intent to use the knife in a gang-related offense.
This case differs significantly from the above cases. Here defendants conspired with a known member of the Colonia Bakers (Palacios) to kill Nye. The purpose of the killing was to gain the release of Palacios and Alvary, both known gang members of the Colonia Bakers. While neither Santiago nor Vaca were members of the Colonia Bakers when they committed the target offense of killing Nye, they were accompanied by Vargas-Diaz, a known member of the Colonia Bakers. It was testified to by Shaff and Lopez that killing a snitch is very important to gangs and significantly elevates the reputation of the gang. Even without the expert’s testimony, it was reasonable to infer that the killing of Nye was for the purpose of obtaining the release of two known gang members; that release would clearly benefit the gang.
Defendants argue that Shaff did not provide sufficient testimony to support the primary activities element of the criminal street gang enhancement. Both defendants ignore the testimony of Lopez, which more than sufficed to show this element. “Evidence of past or present conduct by gang members involving the commission of one or more of the statutorily enumerated crimes is relevant in determining the group’s primary activities. Both past and present offenses have some tendency in reason to show the group’s primary activity.” (People v. Sengpadychith (2001) 26 Cal.4th 316, 323.) “Sufficient proof of the gang’s primary activities might consist of evidence that the group’s members consistently and repeatedly have committed criminal activity listed in the gang statute. Also sufficient might be expert testimony.” (Id. at p. 324.)
Lopez testified to the extensive criminal activities of the Colonia Bakers. His testimony was more than sufficient to establish the primary activities element of the gang enhancement.
Sufficient evidence supported the gang enhancements, and because the gang enhancements were supported by substantial evidence, the gang element of the firearm enhancement was also supported by substantial evidence. In turn, the gang registration requirement was properly imposed.
IX. Vaca’s Motion for New Trial
Prior to trial, Vaca filed a motion for separate trials. At the time that motion was filed, Vargas-Diaz and Palacios were also codefendants. He argued that the disparity of evidence against him as compared to the codefendants would result in an unfair trial for him. He asserted that he would be denied the right to confrontation if the hearsay conversations between Quinton and Santiago and among the other defendants in jail were admitted at trial. He contended that his defense was antagonistic to Santiago’s because Santiago transferred blame to Vaca for the personal discharge of the firearm. Vaca would be prejudiced because he would be tried with gang members. He made these same arguments at the oral motion.
The court denied the motion to sever. The court found the case involved the same victims, same crimes, and the common thread of an alleged conspiracy and there was no showing of undue prejudice if the cases were tried together. The court dismissed the allegation of a violation of Aranda/Bruton because the statements were coming in as declarations against penal interest and made in the furtherance of a conspiracy. The court also denied the motion to sever the counts relating to dissuading a witness.
During deliberations, the jury sent out a list of the following questions: “1. Legal clarification of gang enhancements and conspira[]cy. [¶] 2. If we find one party guilty of conspiracy, is the other automatically guilty of the attempted murder? [¶] 3. If we find one guilty of gang affiliation is the other automatically guilty of attempted murder[?] [¶] 4. If one defendant is found guilty on some counts and the gang enhanc[e]ments are found to be true, does that mean[:] in the case of the other defendant; if he is found guilty of count 1 [conspiracy to commit murder], is he automatically guilty of counts 2 [attempted murder], 3 [dissuading a witness-Nye], and 4 [dissuading a witness-Azevedo]?”
The court answered the jury questions by reading the charges and explaining to the jury that each defendant and each count was separate and apart from the other. The court explained that the jury could not even reach the issue of a gang enhancement until after it found the underlying crime true. The court reread several instructions regarding how to approach a case involving multiple defendants, treating each count separately, and how to determine enhancements. The jury returned their verdicts, as previously set forth, including finding Santiago guilty of count four and Vaca not guilty of count four.
Vaca filed a motion for new trial alleging that the trial court’s failure to grant him a separate trial was a denial of due process. He claimed a severance should have been granted based on his association with a codefendant of disreputable character.
At the motion, Vaca argued the evidence was insufficient to convict him of the gang enhancements or the gun allegations. Furthermore, the note from the jury was disturbing and demonstrated that the jury was incapable or unwilling to follow the court’s instructions that each defendant was to be tried and considered separately. In addition, Vaca claimed the jury was not capable of following the instruction regarding two reasonable conclusions from the evidence which instructs the jury to accept the conclusion that points away from guilt. This argument was made by Vaca on the premise that the prosecution presented two theories for the gang involvement, one from Lopez (that it was a family affair), and one from Shaff (that it was gang related). Vaca asserted these were two distinct theories, both offered by the prosecution, and the jury had no choice but to accept Lopez’s version, yet they failed to do so. It was argued by Vaca that the gang allegations were very prejudicial, the evidence was insufficient to support them, and he was unduly prejudiced by the gang evidence that was relevant as to Santiago.
The court denied the motion. First, the court found the jury spent a considerable amount of time arriving at their verdicts after they asked their questions. Additionally, the jury followed the instructions because they found one overt act not true (that Vaca shot Nye), and found Vaca not guilty of count four. The court found that there was substantial evidence to prove the gang enhancement, the court did not err in allowing the admission of gang evidence, the court did not err in denying the severance motion, and that the jury did not engage in misconduct.
Vaca now claims the trial court erred in denying his motion for a new trial because the joint trial prevented the jury from making a reliable determination of his guilt. He asserts a finding of error is supported by the Bruton error, the strength of the case against Santiago versus the scant evidence against Vaca, the significant amount of evidence admissible only against Santiago, the inflammatory gang allegations where the expert agreed Vaca was not a member of a criminal street gang, the jury’s alarming questions during deliberations, and the fact that the jury did not find true that Vaca shot Nye. Vaca asserts these circumstances established the joint trial resulted in a miscarriage of justice.
“[Penal Code s]ection 1098 provides in pertinent part: ‘When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court order[s] separate trials.’ Our Legislature has thus ‘expressed a preference for joint trials.’ [Citation.] But the court may, in its discretion, order separate trials ‘in the face of an incriminating confession, prejudicial association with codefendants, likely confusion resulting from evidence on multiple counts, conflicting defenses, or the possibility that at a separate trial a codefendant would give exonerating testimony.’ [Citations.] [¶] We review a trial court’s denial of a severance motion for abuse of discretion based on the facts as they appeared at the time the court ruled on the motion. [Citation.] If the court’s joinder ruling was proper at the time it was made, a reviewing court may reverse a judgment only on a showing that joinder ‘“resulted in ‘gross unfairness’ amounting to a denial of due process.”’” (People v. Avila (2006) 38 Cal.4th 491, 574-575.)
“‘“The determination of a motion for a new trial rests so completely within the court’s discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.”’ [Citations.] ‘“[I]n determining whether there has been a proper exercise of discretion on such motion, each case must be judged from its own factual background.”’” (People v. Delgado (1993) 5 Cal.4th 312, 328.)
We reject Vaca’s argument. First, as previously set forth, the trial court did not err in admitting the conversation between Santiago and Quinton after the shooting occurred, so there was no Aranda/Bruton error.
While there was more incriminating evidence against Santiago than there was against Vaca, the evidence was not so one-sided that the jury would convict Vaca based solely on the evidence against Santiago.
While there was some evidence admissible against Santiago only, the jury was instructed on each occasion to apply the evidence only against Santiago. In addition, the bulk of the evidence admitted only against Santiago was favorable to Vaca. For example, Vaca was not mentioned during Santiago’s conversation with Nye about killing Azevedo, and Vaca was not mentioned during the jailhouse conversation among Palacios, Santiago, and Lopez. This evidence admitted against Santiago was not detrimental to Vaca.
One of the main theories of the prosecution was that this was a gang crime, where a gang member (Palacios) wanted to eliminate a witness (Nye). Such a crime would benefit Palacios and Alvary (another known gang member) personally, but would also increase respect for the gang since eliminating a snitch is highly regarded in the gang culture. Thus, gang evidence was highly relevant to the question of motive. The fact that Vaca was not a gang member would not have resulted in the exclusion of gang evidence if he had been tried separately.
While the questions sent out by the jury during deliberations indicates confusion on the part of at least one juror, it is apparent from the fact that the jury convicted Santiago in count four and acquitted Vaca of the same count, that they comprehended the instructions given by the court after they asked their questions.
We note the fact that the jury sends a question to the court does not mean the entire panel misunderstands something. It is very possible that only one juror misunderstood and the question was asked so the court could clarify, to the juror or jurors who misunderstood, the proper way to proceed.
The fact that the jury did not find true the overt act that Vaca shot Nye does not demonstrate prejudice to Vaca. Vaca questions if he “did not shoot Brandi Nye, then what was it that appellant did?” The fact that the jury did not find this overt act true, does not indicate that Vaca was not involved. It indicates the jury could not determine who fired the shot. There was conflicting evidence on this point, Santiago told Quinton that Vaca shot Nye, Lopez told Detective Darbee that he was told by Palacios that Vargas-Diaz shot Nye, and Martinez was inconsistent or could not remember when Vargas-Diaz was in the car and not in the car at the scene of the shooting. The evidence demonstrated that Vaca was in Crystal’s home during the vigil to keep track of Nye and he was at the scene of the shooting. He was involved in the shooting early on, because Santiago told Palacios that “Boy” was prepared to do it. The fact that the jury found this overt act was not true demonstrates that they considered the evidence carefully and could not determine who the shooter was.
This is a classic case for a joint trial. Defendants were charged with the same crimes arising from the same events. (People v. Letner and Tobin (2010) 50 Cal.4th 99, 150-151.) The quantity and quality of the evidence was not so dissimilar that the jury was likely to convict Vaca based upon the strength of the evidence against Santiago. Vaca has failed to show the requisite prejudice.
X. Substantial Evidence of Attempted Murder
Vaca contends the evidence is insufficient to support his conviction for premeditated and deliberate attempted murder. He begins by repeating his contentions that it was error to admit the testimony of Quinton about Santiago’s statements to her, and was error to admit any evidence seized from him following his “illegal” arrest. He continues by arguing that the accomplice testimony must be viewed with distrust and corroborated. No physical evidence placed him at the scene; his fingerprints were not in the car and his cell phone records did not put him near the scene. In addition, he points out that Lopez testified that Vargas-Diaz was the shooter and the jury did not find the overt act that he shot Nye to be true.
We “‘review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’” (People v. Hillhouse (2002) 27 Cal.4th 469, 496.)
Vaca claims that other than accomplice testimony there was nothing to connect him with the attempted murder. He asserts that his presence at Crystal’s house is not sufficient corroboration linking him to the crime as the direct perpetrator or as an aider and abettor.
“Evidence that sufficiently corroborates an accomplice’s testimony ‘“‘must tend to implicate the defendant and therefore must relate to some act or fact which is an element of the crime[, ] but it is not necessary that the corroborative evidence be sufficient in itself to establish every element of the offense charged.’ [Citation.]” [Citation.]’ [Citation.] The evidence necessary to corroborate accomplice testimony need only be slight, such that it would be entitled to little consideration standing alone. [Citation.] It is enough that the corroborative evidence tends to connect defendant with the crime in a way that may reasonably satisfy a jury that the accomplice is telling the truth. [Citation.] Corroborative evidence may be entirely circumstantial.” (People v. Narvaez (2002) 104 Cal.App.4th 1295, 1303.)
Nye was not an accomplice. She placed Vaca at Crystal’s home following her release from jail and during the time when she was not left alone leading up to the shooting. This period of time was an integral part of the conspiracy and was sufficient to corroborate the testimony of the accomplices at trial.
Next, Vaca argues the evidence was insufficient to show he had the requisite specific intent to kill as a direct perpetrator or an aider and abettor, and if he was an aider and abettor, he argues the evidence does not show that he by act or advice promoted, encouraged, or instigated the shooting of Nye.
“‘The mental state required for attempted murder has long differed from that required for murder itself. Murder does not require the intent to kill....’ [Citation.] In contrast, ‘[a]ttempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.’” (People v. Smith (2005) 37 Cal.4th 733, 739.)
“Evidence of intent to kill is usually inferred from defendant’s acts and the circumstances of the crime. [Citation.] Firing a gun toward a victim at a close range in a manner that could have inflicted a mortal wound had the bullet been on target supports an inference of intent to kill.” (People v. Ramos (2011) 193 Cal.App.4th 43, [p. 7].)
As previously set forth, we have rejected the arguments of defendants relating to the exclusion of Quinton’s testimony and the evidence seized as a result of Vaca’s arrest. The evidence thus established that Vaca was named during the conversation between Palacios and Santiago, as the person who would take care of Nye. Nye was held under constant watch from the time she was released from jail until the time she was shot, Vaca was one of the individuals who watched over Nye, he was in the car with Nye when she was driven to the location where Nye was shot, he got out of the car with Santiago, a gunshot was heard and he returned to the car, and he exchanged text messages with Santiago after the crime was completed regarding the news reports about the shooting of Nye. In addition, Nye was shot in the head from a very close range. All of the above is more than sufficient to prove that Vaca had the specific intent to kill Nye and acted as a direct perpetrator or an aider and abettor.
Finally, Vaca argues the evidence is not sufficient to support the jury’s finding that the attempted murder was premeditated and deliberate. He contends there is no evidence of planning activity by him nor was there any motive for him to do anything because he was not involved in the home invasion robbery.
“‘“Generally, there are three categories of evidence that are sufficient to sustain a premeditated and deliberate murder: evidence of planning, motive, and method. [Citations.] When evidence of all three categories is not present, ‘we require either very strong evidence of planning, or some evidence of motive in conjunction with planning or a deliberate manner of killing.’ [Citation.] But these categories of evidence, borrowed from People v. Anderson (1968) 70 Cal.2d 15, 26-27, ‘are descriptive, not normative.’ [Citation.] They are simply an ‘aid [for] reviewing courts in assessing whether the evidence is supportive of an inference that the killing was the result of preexisting reflection and weighing of considerations rather than mere unconsidered or rash impulse.’”’” (People v. Prince (2007) 40 Cal.4th 1179, 1253.)
There was sufficient evidence to support the finding of premeditated and deliberate attempted murder. The motive was to silence Nye and keep her from testifying against Palacios and Alvary. The crime was planned, with Nye held under supervision for several days before she was shot. The method used to try to kill her was deliberate: she was shot in the head from close range.
XI. Sufficient Evidence of Conspiracy to Commit Murder
Vaca raises identical points as those made in his previous argument, in arguing the evidence is insufficient to support his conviction for conspiracy to commit murder. As previously set forth, we reject his arguments regarding the admission of evidence and the lack of corroboration.
“The necessary elements of a criminal conspiracy are: (1) an agreement between two or more persons; (2) with the specific intent to agree to commit a public offense; (3) with the further specific intent to commit that offense; and (4) an overt act committed by one or more of the parties for the purpose of accomplishing the object of the agreement or conspiracy.” (People v. Liu (1996) 46 Cal.App.4th 1119, 1128.)
“‘In proving a conspiracy, ... it is not necessary to demonstrate that the parties met and actually agreed to undertake the unlawful act or that they had previously arranged a detailed plan. The evidence is sufficient if it supports an inference that the parties positively or tacitly came to a mutual understanding to commit a crime. Therefore, conspiracy may be proved through circumstantial evidence inferred from the conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy.’ [Citation.] ‘The agreement in a conspiracy may be shown by … conduct of the defendants in mutually carrying out an activity which constitutes a crime.’” (People v. Gonzalez (2004) 116 Cal.App.4th 1405, 1417.)
The evidence was more than sufficient to support the conviction for conspiracy to murder Nye. The same evidence that supports the conviction for attempted murder, supports the conspiracy count. Santiago and Palacios agreed to silence Nye. Santiago said “Boy” (Vaca) would carry out the plan. Vaca was part of the group that guarded Nye following her release from jail. He was with Santiago when they drove Nye to an area where she was shot in the head and left in the road. He communicated with Santiago, by text message, about the shooting after it occurred. Circumstantial evidence supports that there was a tacit understanding to commit the crime and that Vaca was a part of that understanding. An overt act was committed to effectuate the crime.
DISPOSITION
The convictions and related enhancements for conspiracy to dissuade a witness in counts three and four are reversed for Santiago, with retrial prohibited. The conviction and related enhancements for conspiracy to dissuade a witness (Nye) in count three is reversed for Vaca, with retrial prohibited. The matter is remanded to the trial court for resentencing. In all other respects the judgments are affirmed.
WE CONCUR: HILL, P.J., VORTMANN, J.
Judge of the Tulare Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.