Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 06CF1781, Thomas M. Goethals, Judge. Affirmed in part, reversed in part.
Paul R. Ward, under appointment by the Court of Appeal, for Defendant and Appellant Peter Anthony Vieyra.
Thien Huong Tran, under appointment by the Court of Appeal, for Defendant and Appellant Frank Esparza, Jr.
Harry Zimmerman, under appointment by the Court of Appeal, for Defendant and Appellant Manuel Junior Solorio.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Arlene A. Sevidal, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SILLS, P. J.
A jury convicted Peter Anthony Vieyra, Frank Esparza, Jr., and Manuel Junior Solorio of conspiracy to stalk (Pen. Code §§ 182, subd. (a)(1), 646.9, subd. (a)) and criminal threats (§ 422). Vieyra and Esparza were also convicted of street terrorism (§ 186.22, subd. (a)). Although the information alleged the conspiracy and criminal threats were committed for the benefit of the Varrio 213 (V213), a criminal street gang, the jury found not true these enhancement allegations. The trial court sentenced Vieyra and Esparza to suspended terms of 365 days in jail and three years of formal probation, and Solorio to a suspended term of 90 days in jail and three years of formal probation.
All further statutory references are to the Penal Code unless otherwise stated.
Vieyra, Esparza and Solorio challenge the sufficiency of the evidence to support their convictions for conspiracy to stalk and criminal threats. Vieyra and Esparza also appeal their convictions on the street terrorism charge on the basis that the prosecution’s gang expert testimony was insufficient to establish that the V213 gang is a criminal street gang for purposes of section 186.22, subdivision (a). Solorio contends, and the Attorney General concedes, the trial court erroneously believed it lacked discretion to reduce the conspiracy to stalk conviction to a misdemeanor for sentencing purposes. We accept the Attorney General’s concession and remand Solorio’s case for a new sentencing hearing.
At oral argument, we invited the parties to submit letter briefs on recent changes to section 4019. We are persuaded that these changes apply retroactively and therefore recalculate the defendants’ presentence custody credits. As modified, the judgments in Vieyra and Esparza’s cases are affirmed.
I
FACTS
In late 2005, Chris and Stephanie Schroer were involved in an acrimonious divorce and child custody proceedings. They had pursued mutual restraining orders against each other. The court granted Stephanie’s restraining order, which required Chris to limit his telephone calls to Stephanie to one per day and limited the subject of the calls to matters concerning their child. Notwithstanding the court order, Chris continued to call Stephanie up to fifty times a day. More often than not the calls were not limited to matters concerning their child so Stephanie would not answer.
In December 2005, Stephanie moved in to the home of her new boyfriend Mark McCafferty in Fullerton, California. Between December 2005 and June 2006, there were at least 5 incidents of vandalism of cars at the McCafferty home. Stephanie was not the sole guest at McCafferty’s home. His nephew, Manuel Solorio, had also been living there since September 2005. Peter Vieyra was also a nephew of Mark McCafferty’s, but there is no evidence that he lived with McCafferty during the events of this case.
Meanwhile Chris, along with his and Stephanie’s five-year-old son, moved into the Orange, California, home of his mother, Joan Schroer. On May 7, 2006, Joan returned home from running errands to discover spray-painted graffiti on her garage door. The graffiti included the numbers “187” and the alpha-numeric “V213.” Chris recognized that “187” could be a reference to murder, and he understood it to be a death threat. A police officer later told Chris “V213” was associated with a criminal street gang.
Because they all share the same last name, Chris, Stephanie and Joan Schroer will hereafter be referred to by their first names. We mean no disrespect.
Penal Code section 187 sets forth the crime of murder. Detective Jackson, the People’s gang expert, testified to having seen similar messages in gang graffiti.
After the acts of vandalism, Joan and Chris installed two surveillance video cameras. On June 4, the newly installed cameras caught one person walking up to the front door and leaving a note, and another trying to grab one of the cameras and pull it down. Joan found the note on the front porch tucked under a mat. It read, “[s]top calling and disrespecting. You will regret it. We’ll be back.” Written on the back of the note were directions from the McCafferty home to Joan’s home.
Joan’s neighbor saw a white Chevy parked in front of Joan’s house and three men on her driveway. The neighbor saw one man jump and grab one of the cameras and heard one say “See, they got it on camera.” When Chris watched the video, he recognized Vieyra, whom he had previously seen at McCafferty’s home, as the person who left the note. Chris initially identified the “camera-puller” as McCafferty. However, he later realized the culprit was Solorio, not McCafferty.
The video showed the top and side of a bald male head, so difficulty in identifying the individual who pulled down the camera was not unreasonable.
The note apparently did not deter Chris. His telephone calls to Stephanie continued, as did the acts of vandalism at her home. On June 7, 2006, Solorio awoke to discover his car vandalized outside the McCafferty home for the third time. Solorio decided to go to the Schroer house to confront Chris about the vandalism. Solorio, Vieyra and Esparza, in a Chrysler driven by Esparza’s girlfriend, drove over to Chris’s house. As Chris was getting ready to pull out of his driveway in his Tahoe, the Chrysler blocked him in. The three men got out of their car and approached the driver’s side of the Tahoe.
Chris locked his doors. Solorio and Vieyra stood in front, yelling threats and telling Chris to stop calling Stephanie and to stop vandalizing cars. Chris testified that he saw each of the three men reach for their waistbands at different times throughout the confrontation. He feared they were concealing weapons there. Esparza asked Chris if he wanted “to fuckin’ die now, ” and he told Chris that it was his car that had been recently damaged. Chris told them he did not damage any of their vehicles and had no idea what they were talking about. Vieyra ordered him to “[g]et the fuck out of the car.” Chris refused to do so, as he suspected the men had weapons. He testified that he felt “really threatened.” Chris heard Esparza try to open the rear driver’s side door of his Tahoe, but it was locked. After approximately 90 seconds of yelling and threatening, the men got back in the Chrysler and drove off.
Chris called 911 and followed the Chrysler in order to get the police to arrest his harassers. The 911 operator urged Chris to break off the pursuit, but Chris refused. At one point Chris passed the Chrysler, so he pulled over to the shoulder. Once Chris was on the shoulder, the Chrysler pulled up behind him. Vieyra got out of the car and started walking toward Chris, throwing up his hands in a “what’s up” gesture. Chris testified Vieyra made a gesture toward his waistband again, and as he got close to Chris’s car, Chris pulled back out into traffic. Shortly after driving off, Chris was able to flag down an Anaheim police officer and have him pull over the Chrysler. Once the Chrysler was stopped, police officers at the scene had Chris confirm that Solorio, Vieyra and Esparza were the men who threatened him.
Officer Raymond Winick of the Orange Police Department learned of the arrests. Winick was aware of the previous incidents at the Schroer house, and suspected a connection between the June 7 incident and those of May 7 and June 4. He subsequently interviewed Solorio, Vieyra, and Esparza.
Solorio denied being a gang member and denied writing the note left at Chris’s house on June 4. He claimed that on June 4 he had been at church in Montebello and was not in Orange at all that day. With respect to the June 7 incident, Solorio told Winick he awoke that morning to discover his car vandalized. Believing Chris responsible for the vandalism, Solorio went to Chris’s home because “this need[ed] to be stopped.” Solorio acknowledged he may have put his hands in his pockets, but denied making any threats.
Vieyra admitted past membership in V213, but claimed he was no longer involved in the gang. He denied any involvement in the graffiti, but admitted to writing the note and leaving it at Chris’s home on June 4. Vieyra also admitted to being at Chris’s house on June 7, but denied making any threats or simulating reaching for a weapon in his waistband.
Winick noticed Vieyra had gang-style tattoos, including a “1” on one leg and a “0” on the other; “V213” on his back; and “East Side” on his chest. Vieyra told Winick that “10” was the street he grew up on and “V213” was the gang he belonged to for a couple of years. He told Winick his gang moniker was “Bambino” or “Termite.”
Esparza denied any involvement in the graffiti or note incidents and denied making any threats on June 7. He further denied being a member of V213 when questioned by Winick, but at trial the prosecution’s gang expert, Detective Jackson, testified Esparza had admitted to being a V213 gang member numerous times, and may even have been a “shot-caller” in the gang. Esparza also had gang-related tattoos, including the words “East Side” and “SLS” (for Spruce Street Locos) on his chest, and “V213” on his right shoulder.
According to Detective Jackson, a gang may have one “shot-caller” or several. Shot-callers can control the actions of the gang, particularly the activities of the younger members.
Detective Jackson identified the Spruce Street Locos as a “clique” of the 213 gang.
At trial, Detective Jackson of the Montebello Police Department testified as a gang expert for the prosecution. Jackson, a 17-year veteran of the Montebello Police Department, was a detective with the narcotics unit at the time of trial. However, he had worked as a detective in Montebello from 1998 to 2006. Prior to becoming a detective in the gang unit, Jackson had worked as a gang officer from 1994 to 1998. According to Jackson, a gang officer is responsible for conducting intelligence and taking pictures on a part-time basis, whereas his investigatory duties as a detective were full time.
Jackson’s training consisted of classes and meetings of anti-gang law enforcement groups. In 1998, Jackson attended a 40-hour class on street gangs. In 1999, Jackson participated in an 80-hour seminar on gang awareness and culture and prison gangs. Additionally, he was a member of California Gang Investigators Association, a group that provides training on new trends in gang crime during monthly meetings. Jackson also attended meetings of the Prison Gang Task Force on the occasions they were held in Southern California. As a gang detective, Jackson investigated crimes including vandalism, assaults with a deadly weapon, narcotics use and sales, and even murder. He testified to having conducted over a hundred interviews with gang members, and he had testified as a gang expert in court on four prior occasions.
Jackson explained the history of the V213 gang. The gang began in 1992 or 1993 as a group of “taggers, ” but not committing any other serious crimes. However, in 1994, the gang transitioned to more serious crimes such as assaults and robberies. As some of the original members of the gang moved out of Montebello, different cliques of the gang sprung up in cities such as Maywood, Bell, and Whittier. The Montebello cliques included the Spruce Street Locos. Jackson also testified there may be a 10th Street clique as well, as he had seen graffiti in the neighborhood, but was not sure whether it was an “official” clique within V213. Based on his informants, graffiti he saw, and information from other officers working the street, Jackson testified that as of June 2006, V213 was an ongoing criminal enterprise comprised of between 70 to 80 members.
Jackson participated in the investigation that led to the conviction of admitted V213 member Ruben Rodriguez Ortiz for the violation of section 246, shooting at an occupied motor vehicle, arising from an incident on October 23, 2003. Jackson was also personally involved in the investigation of another admitted V213 member, Jonathan Lee Carrillo, for the violation of Health and Safety Code section 11359, possession of marijuana for sale, committed on May 21, 2005. That investigation led to a conviction as well.
Jackson testified that the primary activities of V213 included vandalism, assaults, narcotics sales, and assaults with deadly weapons. Jackson said he had seen several incidents of felony vandalism by the V213 gang that cost the city thousands of dollars in graffiti clean-up. He also testified he had personally been involved in multiple cases involving the sale of narcotics by V213 members, which included the investigation leading to Carrillo’s conviction.
Jackson was familiar with Vieyra. He and other officers within his department had contacted Vieyra in August 2004. At the time, Vieyra said he had been a member of V213 since 2000. In addition, another detective told Jackson that Vieyra admitted he was still a member of V213 during a 2005 traffic stop. According to Jackson, Esparza personally admitted membership in V213 at least five times between 1997 and 2006. Moreover, Jackson testified that in previous conversations with Esparza and other V213 gang members, including Ortiz, it appeared that Esparza was in a position of leadership in the gang, or a so-called “shot-caller.” As an example, Jackson testified that after he told Esparza that neighbors were complaining about increased graffiti in the neighborhood, Esparza responded that the “youngsters” were to blame and “he would correct the problem.”
II
DISCUSSION
Standard of Review-Sufficiency of the Evidence
Defendants raise several challenges to the sufficiency of the evidence. When reviewing a conviction under a claim of insufficiency of evidence, “‘an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.’” (People v. Tafoya (2007) 42 Cal.4th 147, 170.)
On appeal, “[t]he pertinent inquiry is ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Citation.]” (People v. Romero (2008) 44 Cal.4th 386, 399.) It is not this court’s duty to reweigh the evidence or to redetermine the credibility of the witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) “We draw all reasonable inferences in support of the judgment.” (People v. Wader (1993) 5 Cal.4th 610, 640.) It is only the jury, rather than the reviewing court, that must be convinced of the defendant’s guilt beyond a reasonable doubt. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
V213 is a Criminal Street Gang
Vieyra and Esparza contend Detective Jackson’s expert testimony was insufficient to establish V213 is a criminal street gang for purposes of section 186.22, subdivision (a). They specifically challenge the sufficiency of the evidence to prove that the “primary activities” of V213’s is the commission of certain crimes, and the foundation for Jackson’s expert opinion that V213 is a criminal street gang. We reject both contentions.
1. The STEP Act
The California Street Terrorism Enforcement and Prevention Act (STEP Act; § 186.20, et seq.) criminalizes participation in criminal street gangs. Section 186.22, subdivision (a), provides for punishment for “[a]ny person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang....”
In order to qualify as a “criminal street gang, ” three essential elements must be satisfied: “(1) that there be an ‘ongoing’ association involving three or more participants, having a ‘common name or common identifying sign or symbol’; (2) that the group has as one of its ‘primary activities’ the commission of one or more specified crimes; and (3) the group’s members either separately or as a group ‘have engaged in a pattern of criminal gang activity.’ [Citations.]” (In re Alexander L. (2007) 149 Cal.App.4th 605, 610-611 (Alexander).)
2. The Primary Activities of V213
To establish a gang’s primary activities, the trier of fact may look to both the past and present activities of the gang for the statutorily enumerated crimes. (People v. Sengpadchith (2001) 26 Cal.4th 316, 323.) Such criminal conduct must not be isolated. Rather, “[s]ufficient 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.” (Id. at p. 324, italics in original.) Expert testimony may serve as such evidence. (People v. Ferraez (2003) 112 Cal.App.4th 925, 930.)
3. Expert Qualifications Under California Law
The Evidence Code permits a person with “special knowledge, skill, experience, training, or education” in a particular field to qualify as an expert witness. (Evid. Code § 720, subd. (a)) and to give testimony in the form of an opinion (Evid. Code, § 801). Expert opinion testimony is generally admissible when the subject matter of the testimony is “sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.” (Evid. Code, § 801, subd. (a).) The subject matter of the culture and habits of criminal street gangs, of particular relevance here, meets this criterion. (People v. Gardeley (1996) 14 Cal.4th 605, 617 (Gardeley).)
“‘The requirements for expert testimony are that it relate to a subject sufficiently beyond common experience as to assist the trier of fact and be based on matter that is reasonably relied upon by an expert in forming an opinion on the subject to which his or her testimony relates. [Citations.]’ [Citation.] ‘Of course, any material that forms the basis of an expert’s opinion testimony must be reliable. [Citation.]... Like a house built on sand, the expert’s opinion is no better than the facts on which it is based. [Citation.]’ [Citation.]” (Alexander, supra, 149 Cal.App.4th at p. 612, italics in original.)
4. Officer Jackson’s Expert Testimony
At trial, Jackson testified as the prosecution’s gang expert. Jackson’s expert opinion was the fruit of an eight-year stint as a gang officer with the Montebello Police Department. During that time he investigated crimes ranging in severity from vandalism to murder, and conducted interviews with over 100 gang members. As one of only two gang officers in Montebello, Jackson was uniquely positioned to have comprehensive knowledge of the activities of the V213 gang. Jackson explained the foundation for his opinion was based on his knowledge and experience, his personal knowledge of V213’s activities, and evidence of other crimes he saw in police reports or heard about from other officers.
When asked about the primary activities of V213, Jackson testified the gang was “involved in vandalism, assaults, selling of narcotics, and assaults with deadly weapons.” He also referenced having personally seen a good amount of graffiti in V213’s neighborhood. On cross-examination, Jackson acknowledged he could not say whether each incident of graffiti vandalism he viewed qualified as felony vandalism, but did say “the city... spent in the thousands in graffiti clean-up involving 213” on two or three occasions.
Felony vandalism, as defined in section 594, subdivision (b)(1), is vandalism causing more than $400 damage and is an applicable “primary activity” offense under section 186.22, subdivision (e).
Although it is true that Jackson could not give an exact estimate of how many vandalism incidents would have qualified as felony vandalism, nor could he estimate how many misdemeanor assaults, or how many narcotics cases, or how many assaults with a deadly weapon occurred in the year preceding the date of the events at issue (May and June of 2006), he testified that he had personally been involved in multiple cases involving the sale of narcotics by V213 members, including one of the two predicate cases relied on to establish V213’s “pattern of criminal gang activity.”
Defendants do not challenge the sufficiency of the evidence to support the “pattern of criminal gang activity” element.
The first of these crimes, a 2005 conviction of possession of marijuana for sale was committed by Jonathan Lee Carrillo, an admitted member of the V213 gang. The second offense, a 2003 shooting at an occupied motor vehicle was committed by Ruben Rodriguez Ortiz, also an admitted member of the V213 gang. Jackson also testified that not only was he aware of that assault with a deadly weapon conviction, but “since then I know there’s been shootings involving 213 and South Side Montebello [gang].”
5. Case Law Supports the Jury’s Finding on these Facts
This court previously addressed the issue of what constitutes a sufficient foundation for an expert’s opinion regarding the primary activities element. In Alexander, the gang expert, Lang, testified to the primary activities of a particular gang. (Alexander, supra, 149 Cal.App.4th at pp. 611-612) Lang’s testimony was brief. He stated that “he ‘kn[e]w’ that the gang had been involved in certain crimes. No specifics were elicited as to the circumstances of these crimes, or where, when, or how Lang had obtained the information.” (Id. at p. 612) The Alexander court held that the testimony of Lang lacked adequate foundation. The court reasoned there was no way to establish the reliability of Lang’s testimony “because information establishing reliability was never elicited from him at trial.” (Ibid.)
The Alexander court compared the facts of that case to those of In re Nathaniel C. (1991) 228 Cal.App.3d 990, 1003 (Nathaniel), and In re Leland D. (1990) 223 Cal.App.3d 251, 259 (Leland.) In Nathaniel, a police officer testified as an expert to prove a gang member had committed a shooting. The officer had learned about the shooting from officers in another department, who “believed [the shooter]... was a [gang] member, and that the shooting was gang-related.” (Nathaniel, supra, 228 Cal.App.3d at p. 998.) The court concluded the testimony was “nonspecific hearsay of a suspected shooting of one [gang] member by another. The [expert] witness... had no personal knowledge of the incident and only repeated what San Bruno police told him they believed about the shooting.” (Id. at p. 1003; see Alexander, supra, 149 Cal.App.4th at p. 612) The police officer testifying as an expert in Leland similarly “did not provide any details of the gang’s crimes, but based his opinion that the predicate crimes had been committed solely on ‘hearsay statements from unidentified gang members and information pertaining to arrests of purported gang members....’” (Alexander, supra, 149 Cal.App.4th at p. 614, quoting Leland, supra, 223 Cal.App.3d at p. 259.)
Unlike Lang in Alexander, or the experts in Nathaniel and Leland, Detective Jackson testified he had personally investigated cases of narcotic sales by V213 gang members. He provided information, some from personal observation and some from his contacts with other officers, about acts of vandalism, narcotic sales, and assaults with a deadly weapon committed by V213 members. In fact this case is much closer to the facts of People v. Martinez (2008) 158 Cal.App.4th 1324 (Martinez) and Gardeley, supra, 14 Cal.4th at p. 621.
The sale of narcotics is a statutorily enumerated offense for the purpose of establishing a gang’s “primary activities.” (Pen. Code § 186.22, subd. (e)(4), (f).)
The Martinez court distinguished Alexander, noting that the gang expert in Martinez “had both training and experience as a gang expert. He specifically testified as to [the gang’s] primary activities... His eight years dealing with the gang, including investigations and personal conversations with members, and reviews of reports suffices to establish the foundation for his testimony.” (Martinez, supra, 158 Cal.App.4th at p. 1330.) In Gardeley, a gang expert, Boyd, testified his expert opinion was that the primary activities of the Family Crip gang consisted of narcotics sales and witness intimidation, offenses enumerated in section 186.22, subdivision (e). Boyd based his “opinion on conversations with the defendants and with other Family Crip members, his personal investigations of hundreds of crimes committed by gang members, as well as information from his colleagues and various law enforcement agencies.” (Gardeley, supra, 14 Cal.4th at p. 621.)
Here, Jackson’s qualifications are equivalent to the gang expert’s in Martinez who, like Jackson, had worked in the territory of the relevant gang for eight years, and also like Jackson, “was familiar with the gang based on regular investigations of its activity and interaction with its members.” (Martinez, supra, 158 Cal.App.4th at p. 1330.) Jackson relied on the 2003 conviction of Ruben Rodriguez Ortiz and 2005 conviction of Jonathan Lee Carrillo, in addition to his personal experience investigating the V213 gang, to support his opinion of the consistent and repeated primary activities of the gang between 2003 and 2006.
Viewing the evidence in the light most favorable to the judgment, the evidence supports the jury’s verdict that V213 is a criminal street gang with its primary activities being the commission of certain offenses enumerated in the STEP Act. Reversal is not warranted “unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.) That is not the case here. The judgments against Vieyra and Esparza on the charge of active participation in a criminal street gang are affirmed.
Substantial Evidence Supports Convictions for Conspiracy to Stalk
Penal Code section 182, subdivision (a)(1), specifies the elements of conspiracy. A conspiracy requires two or more persons to agree to commit the target crime. “A conviction of conspiracy requires proof that the defendant and another person had the specific intent to agree or conspire to commit an offense, as well as the specific intent to commit the elements of that offense, together with proof of the commission of an overt act ‘by one or more of the parties to such agreement’ in furtherance of the conspiracy. [Citations.] [¶]... [¶]... ‘Conspiracy is an inchoate crime. [Citation.] It does not require the commission of the substantive offense that is the object of the conspiracy. [Citation.]’... [¶] Thus, ‘[i]t is not necessary that a party to a conspiracy shall be present and personally participate with his co-conspirators in all or in any of the overt acts.’ [Citation.]” (People v. Morante (1999) 20 Cal.4th 403, 416-417.) “The extent of the assent of minds which are involved in a conspiracy may be, and from the secrecy of the crime usually must be, inferred by the jury from the proofs of the facts and circumstances which, when taken together, apparently indicate that they are parts to the same complete whole.” (Lorenson v. Superior Court (1950) 35 Cal.2d 49, 57-58.)
Section 646.9, subdivision (a), provides, “[a]ny person who... willfully and maliciously harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family is guilty of the crime of stalking....” For the purpose of section 646.9, “‘harasses’ means engages in a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, torments, or terrorizes the person....” (§ 646.9, subd. (e).) “[S]talking requires multiple acts and is ‘self-defined to require a course of conduct.’” (People v. Jantz (2006) 137 Cal.App.4th 1283, 1293, quoting People v. Zavala (2005) 130 Cal.App.4th 758, 769.) The term “‘course of conduct’ means two or more acts occurring over a period of time, however short, evidencing a continuity of purpose.” (§ 646.9, subd. (f).)
The evidence supports the jury’s verdict. Vieyra, Solorio, and Esparza do not contest their participation in the June 7, 2006 incident. They admitted driving to the Schroer house that day, and Solorio testified that they all confronted Chris while he sat in his car. While Solorio claimed he had no knowledge of the previous vandalism, or the fact that Vieyra left a note at the Schroer residence only three days earlier, a reasonable trier of fact could have rejected his testimony. Considering that the three men were in the car together for the express purpose of going to confront Chris about ongoing vandalism, it is reasonable to conclude the prior acts were discussed sometime before the trio arrived at Chris’s home.
Further, Vieyra admitted to leaving the note at the Schroer home on June 4, 2006, and it is reasonable to infer Solorio was present and took part as well. The Schroers’ neighbor testified he saw three men in the Schroers’ driveway when the note was left, and the videotape recording showed Vieyra leaving the note, as well as another man - who Chris identified as Solorio - pulling down the camera. The note included the plural personal pronoun, in its threat: “we’ll be back, ” which suggests a group effort. Plus, directions from the McCafferty home, where Solorio was living at the time, to the Schroer home were found on the back of the note. Solorio admitted to police as early as April 2006 that he had gotten directions to the Schroer house from Stephanie.
Solorio lived in McCafferty’s home from September 2005 to June 2006. Stephanie moved in with McCafferty in December 2005. At the time, she and Chris were involved in acrimonious divorce proceedings. She suspected Chris of vandalizing cars parked at the McCafferty home on numerous occasions from December 2005 to April 2006. Early in April 2006, Solorio’s car was vandalized for the second time. Shortly afterward, Stephanie relayed her suspicions of Chris’s involvement in the vandalism, along with details of the earlier incidents, to Solorio.
While there were no witnesses to the garage door vandalism on May 7, 2006, it is reasonable to infer that defendants were involved in ongoing retaliation for the incidents of vandalism at the McCafferty home. The facts support such an inference: the graffiti included the V213 gang’s name; Vieyra and Esparza were admitted members of V213; and Vieyra lived on and off with his uncle, McCafferty, in McCafferty’s home, and had grown up with Solorio. Given the nature of their relationship to each other and the timing of the incidents it is reasonable to infer that Vieyra, Solorio, and Esparza made an agreement to stalk Chris prior to the June 7 incident.
After his arrest on June 7, Esparza denied any involvement in either the graffiti incident or leaving the note. Of course, he also denied any involvement in V213. However, Detective Jackson testified Esparza was an admitted V213 member, and was likely a shot-caller for the gang. On the day the note was left, Joan’s neighbor saw a white Chevy parked in front of Joan’s house and three men on her driveway. The video showed the trio was driving a white Impala. During the June 7 incident, Esparza told Chris that it was his white Impala that had been damaged. Therefore, sufficient evidence supports the jury’s finding that Esparza conspired with Vieyra and Solorio.
Appellants contend the evidence is insufficient to show an agreement to make multiple threats, and that the court had a sua sponte duty to instruct the jury on the distinction between conspiracy to commit single or multiple acts. However, the jury instructions stated that the charged conspiracy was to commit the specific crime of stalking, and that stalking requires a continuous “course of conduct.” The jury could have found any one of the incidents, May 7, June 4, or June 7 2006 to be an overt act for the purpose of finding the appellants guilty of the charge of conspiracy to stalk. The June incidents, three days apart, demonstrate a continuity of purpose and are sufficient to constitute a “course of conduct.”
However, even if the jury did not find that at least two of the incidents constituted a “course of conduct” as required for a true finding on a charge of stalking, they apparently found at least one incident to be an overt act in furtherance of the conspiracy. Because conspiracy is an inchoate crime, the actual commission of the substantive offense that is the object of the conspiracy is not required. (People v. Morante, supra, 20 Cal.4th at pp. 416-417.) Therefore, we find that sufficient evidence existed to permit a reasonable trier of fact to find the defendants guilty beyond a reasonable doubt of the charge of conspiracy to stalk.
Substantial Evidence Supports Defendants’ Criminal Threats Conviction
Defendants argue the evidence is insufficient to support a finding that the threats caused Chris to remain in sustained fear. We disagree.
To prove a criminal threat, the prosecution must show: (1) that the defendant “‘willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person, ’” (2) that the defendant made the threat “‘with the specific intent that the statement... is to be taken as a threat, even if there is no intent of actually carrying it out, ’” (3) that the threat which may be “‘made verbally, in writing, or by means of an electronic communication device’” was “‘on its face and under the circumstances in which it [was] made, ... so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, ’” (4) that the threat actually caused the person threatened “‘to be in sustained fear for his or her own safety or for his or her immediate family’s safety, ’” and (5) that the threatened person’s fear was “‘reasonabl[e]’” under the circumstances. (People v. Toledo (2001) 26 Cal.4th 221, 227-228, citing (People v. Bolin, supra, 18 Cal.4th at pp. 337-340 & fn. 13).) The fourth element, that the threat must cause “sustained” fear, has been interpreted as fear “beyond what is momentary, fleeting, or transitory.” (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.) The victim’s knowledge of a defendant’s prior conduct is relevant in establishing that the victim was in a state of sustained fear. (People v. Garrett (1994) 30 Cal.App.4th 962, 967.)
Relying on In re Ricky T. (2001) 87 Cal.App.4th 1132 (Ricky T.), Vieyra argues Chris’s fear was only momentary, and therefore insufficient to sustain a conviction for criminal threats. In Ricky T., a student threatened a teacher during an argument at school, saying “I’m going to get you.” (Id. at p. 1135.) The teacher then sent the student to the principal’s office, where he went willingly. The police were not notified until the following day. The court found “there was nothing to indicate that the fear was more than fleeting or transitory. Indeed, [the teacher] admitted the threat was not specific.” (Id. at p. 1140.) In this case, the threat was much more immediate and specific.
Three men approached Chris’s car, and for a period of approximately 90 seconds threatened Chris with language like “You want to fuckin’ die now?” and “Get the fuck out of the car.” They threatened Chris with “I know where you live, ” and even threatened his son, telling Chris “I know where your son goes to school” and identifying the school by name. Indeed, while the teacher in Ricky T. waited until the next day to call the police, in this case Chris, pursuing a course of action that can most charitably be described as ill-advised, followed the defendants until he was able to flag down an officer. Considering what had occurred at Chris’s home during the previous month, gang graffiti and a note threatening murder, substantial evidence supports the jury’s finding that Chris experienced “sustained fear.”
Solorio’s Sentence
Solorio contends, and the Attorney General agrees, the sentence imposed for the conspiracy to stalk conviction should be reversed and remanded to allow the trial court to properly exercise its sentencing discretion. We agree.
Solorio was convicted of conspiracy to stalk (§§ 182, subd. (a)(1), 646.9, subd. (a)) and criminal threats (§ 422). The court suspended Solorio’s sentence and placed him on three years of felony probation subject to him serving 90 days in jail. The trial court did not believe it had the authority to reduce Solorio’s conviction for conspiracy to stalk from a felony to a misdemeanor. However, sections 182 and 646.9 are both “wobbler” offenses, and pursuant to section 17, subdivision (b), the trial court did have discretion to reduce Solorio’s conviction to a misdemeanor. Therefore, the matter is remanded to permit the trial court to properly exercise its discretion. However, by remanding for resentencing, we intend no finding as the appropriateness of reducing the offense.
Credit Calculation
In October 2009, the legislature passed Senate Bill No. 18 (Sen. Bill No. 18), which revised the accrual rate for conduct credits, pursuant to section 4019. (Stats. 2009-2010, ch. 28, § 50.) SB 18 became effective on January 25, 2010, while Vieyra and Solorio’s appeals were pending. Former section 4019 provided two days of conduct credit for every four days served in custody. Under the current version of section 4019, certain defendants are eligible to earn two days of conduct credit for every two days of actual custody. Excluded from the change are, among others, defendants with current serious felony convictions. Section 1192.7, subdivision (c)(38), lists a violation of section 422, making criminal threats, as a serious felony.
“‘Conduct credit’ collectively refers to worktime credit pursuant to section 4019, subdivision (b), and to good behavior credit pursuant to section 4019, subdivision (c).” (People v. Dieck (2009) 46 Cal.4th 934, 939 fn. 3.)
While Vieyra and Solorio were both convicted of felony criminal threats, Solorio’s conviction was subsequently reduced to a misdemeanor. Thus, only Solorio may receive the benefit of the additional conduct credits. The question then becomes whether to prospectively or retroactively apply the amended version of section 4019. If prospective, it would apply to all cases after January 25, 2010. If applied retroactively, the change would affect all cases not yet final as of that date.
A split has emerged among the Courts of Appeal about whether to apply the amendments to section 4019, which affects presentence custody credit calculations for certain classes of convicted felons, prospectively or retroactively. Division Five of the First District held that the amended statute only applies prospectively, and that prospective application of the statute does not violate principles of equal protection. (People v. Rodriguez (2010) 183 Cal.App.4th 1 (Rodriguez).) To date, several other courts (the Third District, Division One of the Second District, and Division Two of the First District) have held that the amended statute applies retroactively. (People v. Brown (2010) 182 Cal.App.4th 1354; People v. House (2010) 183 Cal.App.4th 1049; People v. Landon (Apr. 13, 2010, A123779) __ Cal.App.4th __.) We agree with the analysis of those courts that have retroactively applied the amendments to section 4019, and respectfully disagree with the contrary conclusion reached in Rodriguez.
On April 18, 2008, the trial court reduced Solorio’s section 422 conviction from a felony to a misdemeanor and placed him on three years formal probation. The trial court calculated an award of 47 actual and 22 presentence custody credits, for a total of 69 days of presentence confinement credit. The conduct credits were awarded based on the version of section 4019 in effect at the time of sentencing. Per the new version of section 4019, Solorio should receive an additional 24 days of presentence custody credits, for a total of 93 days.
III
DISPOSITION
The judgment is affirmed as to Vieyra and Esparza. With respect to Solorio, the sentence imposed on the conspiracy to stalk conviction is reversed and the matter remanded to the trial court for resentencing. In addition, Solorio is granted an additional 24 days credit, for a total of 93 days presentence custody credit, pursuant to the amendments to section 4019. The clerk of the superior court is directed to prepare and send an amended abstract of judgment and forward a copy of it to the Department of Corrections. In all other respects, the judgment as to Solorio is affirmed.
WE CONCUR: MOORE, J.FYBEL, J.