Opinion
F051645
4-18-2008
THE PEOPLE, Plaintiff and Respondent, v. MANUEL CONTRERAS, Defendant and Appellant.
Imhoff & Associates and Shannon M. Dorvall for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, J. Robert Jibson and Carlos A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Defendant Manuel Contreras is a member of the criminal street gang known as the Surenos. On October 29, 2003, defendants family residence was shot at while he and other gang members were present. Defendant believed members of the rival Nortenos gang were responsible for the shooting. Defendant asked fellow Sureno Pablo Salazar to procure a gun for his familys protection. The next day, Salazar brought a sawed-off shotgun to defendants house. Defendant, Salazar, and others took turns passing the gun around. They met again on October 31, 2003 and specifically spoke of getting "payback" for the October 29 shooting by stealing a car, finding Nortenos, and shooting at them.
Later that night, defendant set out in a borrowed truck belonging to defendants friend Lucio Delgadillo. Defendant was accompanied by Salazar and Alberto Corona. Defendant drove past a house where a Halloween party was in progress and they thought they recognized a few Nortenos among the partygoers in front of the house. After defendant drove by the house a couple more times, Salazar fired the shotgun at a group of three people who were standing closely together in front of the house. All three were struck by shotgun pellets discharged as a result of the single shot Salazar fired from a distance of about 15 feet: Javier Espindola was struck in the face and permanently blinded in both eyes, one of which had to be removed, Lorenzo Ruiz was also struck in the face and permanently blinded in one eye, and Edward Alonzo was hit by a single shotgun pellet which lodged in his shoulder.
Thereafter, a jury convicted defendant of three counts of conspiracy to commit murder (Pen. Code, §§ 182/187; counts 1-3), three counts of attempted murder (§§664/187; counts 4-6), two counts of mayhem (§ 203; counts 7 & 12), one count of permitting another to shoot from a vehicle (§ 12034, subd. (b); count 8), and three counts of assault with a firearm (§ 245, subd. (a)(2); counts 9-11), and found the attendant gang and firearm enhancements to be true. Defendant received a total indeterminate sentence of 145 years to life. The sentence consisted of three consecutive terms of 25 years to life for counts 1 through 3, plus two consecutive terms of 25 years to life for the section 12022.53, subdivision (d) enhancement in counts 1 and 2, and one consecutive term of 20 years for the section 12022.53, subdivision (c) enhancement in count 3. For the attempted murders in counts 4 through 6, defendant received concurrent terms of life with the possibility of parole, plus two consecutive terms of 25 years to life for the section 12022.53 enhancements in counts 4 and 5, and a consecutive term of twenty years for the section 12022.53, subdivision (c) enhancement in count 6. Defendants sentences in the remaining six counts were stayed pursuant to section 654.
Further statutory references are to the Penal Code unless otherwise specified.
Defendant raises three contentions on appeal. First, he contends he was impermissibly sentenced, without a stay, for both conspiracy to commit murder and the attempted murder of the same victims. Next, he contends the People improperly "splintered" its prosecution of conspiracy and attempted murder into multiple counts since each count was based on the same set of facts. Finally, he contends that, if the court disagrees with his first two claims, his sentence is still impermissible as cruel and unusual punishment. For reasons explained below, we conclude defendant could not be properly convicted of three separate counts of conspiracy because, as the parties on appeal recognize, the evidence presented at trial established a single agreement to commit crimes against Nortenos and thus established a single conspiracy. Accordingly, we will strike his convictions for conspiracy in counts 2 and 3 to reflect a single conviction of conspiracy in count 1. In all other respects, we will affirm the judgment.
DISCUSSION
I. Evidence of a single conspiracy
As noted above, defendant contends the People improperly "splintered" its prosecution of one conspiracy into three separate counts. In their arguments on appeal, the parties recognize that the evidence established a single agreement to shoot an unspecified number of Nortenos on a single occasion for the purpose of avenging the earlier shooting at defendants house. However, they disagree as to whether he could properly be convicted and punished for three counts of conspiracy based on the presence of three victims of the shooting. Because we find the evidence established one conspiracy, not three, we conclude that defendants sentences on counts 2 and 3 must be stricken to reflect that he was convicted of only one count of conspiracy.
Preliminarily, we note that our conclusion is based on well-established principles of conspiracy law and cases addressing analogous situations, which, inexplicably, the parties fail to address in their briefing. Instead, they have focused their discussion on whether multiple conspiracy convictions and punishment are permissible under the rule stated in Wilkoff v. Superior Court (1985) 38 Cal.3d 345, 349 (Wilkoff), that "a charge of multiple counts of violating a statute is appropriate only where the actus reus prohibited by the statute — the gravamen of the offense — has been committed more than once." Defendant argues the multiple-victim exception urged by the People is not applicable here because the actus reus of the crime of conspiracy is not an act of violence. He makes the same claim with respect to the attempted murder counts, which we will reject for reasons discussed below. Notwithstanding the parties focus on Wilkoff, we find the issues raised concerning the conspiracy counts are resolved by applying conspiracy principles to determine whether defendant violated the conspiracy statute more than once. Because, as the parties recognize, the evidence established a single agreement to commit crimes against Nortenos, we find that defendant could only be properly convicted of one count of conspiracy under the applicable law.
A. Background
The amended information charged defendant in counts 1 through 3 with criminal conspiracy. The language of each charge read:
"On or about the 31st day of October, 2003, in the above named Judicial District, the crime of CONSPIRACY TO COMMIT A CRIME, in violation of Penal Code Section PC182(A)(1), a FELONY, was committed by MANUEL ANTONIO CONTRERAS, who did unlawfully conspire together and with another person and persons whose identity is unknown to commit the crime of MURDER OF JOHN DOE, A RIVAL GANG MEMBER, in violation of Section 187(A) of the PENAL Code, a felony ...."
Each charge also alleged six overt acts: (1) "Obtain a vehicle"; (2) "Obtain a firearm"; (3) "Drive past location"; (4) "Locate perceived rival gang member"; (5) "Discharge firearm at perceived rival gang members"; and (6) "Shot fired hits victim [initials]."
Each count included a different victims initials in the sixth overt act. Thus, count 1 referred to "victim J.E.", count 2 referred to "victim L.R.", and count 3 referred to "victim E.C.A."
In addition, counts 1 through 3 included the special allegation that the offenses were committed for the benefit of a criminal street gang in violation of section 187.22, subdivision (b)(1). Counts 1 and 2 alleged that a principal personally and intentionally discharged a firearm which proximately caused great bodily injury to "J.E." and "L.R." within the meaning of section 12022.53, subdivisions (d) and (e)(1), while count 3 alleged that a principal personally a intentionally discharged a firearm within the meaning of section 12022.53 (c) and (e)(1).
With respect to conspiracy, the jury was instructed in the language of Judicial Council of California Criminal Jury Instructions (2007-2008), CALCRIM No. 415 (CALCRIM), in part, as follows:
"Defendant is charged in Counts 1, 2 and 3 with conspiracy to commit Murder.
"To prove that the defendant is guilty of this crime, the People must prove that:
"1. The defendant intended to agree and did agree with one or more of the co-participants, Pablo Salazar, Alberto Corona, and Lucio Delgadillo to commit murder;
"2. At the time of the agreement, the defendant and one or more of the other alleged members of the conspiracy intended that one or more of them would commit murder;
"3. The defendant, or Pablo Salazar, Alberto Corona or Lucio Delgadillo or any combination of them committed at least one of the alleged overt acts to accomplish murder: to wit, obtain a vehicle, obtain a firearm, drive past location, locate perceived rival gang member, discharge firearm at perceived rival gang member, shot fired hits three separate people;
"AND
"4. At least one of these overt acts was committed in California. [¶]... [¶]
"The People must prove that the members of the alleged conspiracy had an agreement and intent to commit murder. The People do not have to prove any of the members of the alleged conspiracy actually met or came to a detailed or formal agreement to commit that crimes [sic]. An agreement may be inferred from conduct if you conclude that members of the alleged conspiracy acted with a common purpose to commit the crimes."
On the issue of liability for the acts of coconspirators, the jury was instructed in the language of CALCRIM No. 417, in part:
"To prove that the defendant is guilty of the crime[s] charged in Count[s] 1, 2 or 3, the People must prove that:
"1. The defendant conspired to commit the following crimes of murder;
"2. A member of the conspiracy committed attempted murder and assault with a firearm to further the conspiracy;
"AND
"3. Attempted murder and assault with a firearm were natural and probable consequence[s] of the common plan or design of the crime that the defendant conspired to commit."
The jury found defendant guilty of each count and found true the special allegations. The jury verdicts differed from the information in that each "John Doe" was subsequently identified by the first name of one of the three people injured as a result of the shot fired into the crowd of party-goers on October 31, 2003. Thus, the jurys verdict for count 1 reads, "We, the Jury, find the defendant Guilty, as charged in Count 1 of the Information, of, CONSPIRACY TO COMMIT MURDER (JOHN DOE) in violation of Penal Code section 182/187, Javier Espindola." The verdicts in counts 2 and 3 likewise identified the victims "Lorenzo Ruiz" and "Edward Christopher Alonzo" as the intended "John Doe" targets of the alleged conspiracy to commit murder.
B. Analysis
"[W]hen a single agreement to commit one or more substantive crimes is evidenced by an overt act, as the statute requires, the precise nature and extent of the conspiracy must be determined by reference to the agreement which embraces and defines its objects. Whether the object of a single agreement is to commit one or many crimes, it is in either case that agreement which constitutes the conspiracy which the statute punishes. The one agreement cannot be taken to be several agreements and hence several conspiracies because it envisages the violation of several statutes rather than one." (Braverman v. United States (1942) 317 U.S. 49, 53 (Braverman).) "The single agreement is the prohibited conspiracy, and however diverse its objects it violates but a single statute ...." (Id. at p. 54.)
In Braverman, the defendants were charged with multiple counts of conspiracy based on an agreement that would entail violating statutory restrictions on the manufacture, transportation and distribution of liquor. (Braverman, supra, 317 U.S. at p. 51.) The parties agreed that all of the statutory violations were pursuant to a single agreement. The United States Supreme Court concluded that, under such circumstances, there is only one conspiracy, deeming it improper to find "that even though a single agreement is entered into, the conspirators are guilty of as many offenses as the agreement has criminal objects." (Id. at p. 53.)
In People v. Lopez (1994) 21 Cal.App.4th 1551, a jury convicted the defendant of three counts of conspiracy — conspiracy to unlawfully dispose of hazardous substances, manufacture methamphetamine, and possess methamphetamine for sale. (Id. at pp. 1553-1554.) The charges were based on an agreement between the defendant and an undercover officer for the officer to deliver a large quantity of ephedrine in return for a portion of the methamphetamine the defendant planned to manufacture using the ephedrine. On appeal, this court held 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.)
In People v. Patrick (1981) 126 Cal.App.3d 952, the defendant was convicted of two counts of conspiracy involving the same victim — conspiracy to kidnap and conspiracy to falsely imprison. Noting the defendant was charged with the same overt acts for each conspiracy, the appellate court struck one of the conspiracy convictions because "the instructions given to the jury allowed them to convict Patrick of two conspiracy offenses based on exactly the same conduct." (Id. at p. 965.)
Likewise, in In re Nichols (1927) 82 Cal.App. 73, the petitioner was charged with two counts of conspiracy, the first count alleging conspiracy to commit extortion and the second count alleging conspiracy to falsely move and maintain a lawsuit. The charges were based on the petitioners agreement with two other individuals to lure the victim into an apartment with a female conspirator where he would be discovered and threatened with a lawsuit for alienation of affection. Both counts were based on "substantially the same acts." (Id. at p. 75.) The Court of Appeal concluded "that the basis therefor was a single transaction and involved but one conspiracy." (Id. at p. 79.)
Also instructive is People v. Morocco (1987) 191 Cal.App.3d 1449 (Morocco). In Morocco, the defendant solicited a police informant to murder his former wife and her husband in exchange for drugs and weapons. The defendant was charged with and convicted of two counts of solicitation to commit murder. (Id. at p. 1450.) After applying principles of conspiracy law to determine whether the defendant was guilty of one or two solicitations, the appellate court struck the defendants second conviction. (Id. at pp. 1453-1454.) The court explained: "We find it unnecessary to reverse for a retrial because we agree with Morocco that the evidence, even when viewed in the light most favorable to the prosecution, establishes but a single crime of solicitation. The potential victims were a husband and wife. They were to be killed at the same time, presumably by the same means. The record is very unclear as to Moroccos motive in soliciting the killings, but there is certainly no suggestion of an independent motive or objective as to each victim." (Id. at p. 1454; but see People v. Davis (1989) 211 Cal.App.3d 317, 321-322 [court agreed with theory that there are as many solicitations as there are identifiable victims but relied on other relevant factors to find multiple solicitations, including facts the defendant agreed to pay separate consideration for each murder and provided separate addresses for intended victims, thereby permitting inference the murders were to occur at different times and places, and possibly by different means]; see also People v. Liu (1996) 46 Cal.App.4th 1119, 1133.)
Here, defendant was charged with three counts of conspiracy. The amended information alleged that all three counts occurred during the same period of time and referred to a single list of overt acts to support all three counts. As in the conspiracy and solicitation cases discussed previously, the evidence here did not establish separate agreements to commit crimes against particular individuals. Rather, as the People acknowledge on appeal: "The objective of the conspiracy was to murder Nortenos. There was no evidence the conspiracy was directed specifically at the three victims. In fact, all of the evidence indicates the victims fate was tied to their location at the time Salazar shot at the party." To further the conspiracys primary objective, defendant and his coconspirators obtained a gun and a vehicle, drove until they found a house where a party they believed to be attended by Nortenos was in progress, and then, after driving around the block a few more times, fired once at the group comprised of the three victims before fleeing. Taken together, these facts and circumstances support a determination that there was only one conspiracy, not three. (See People v. McLead (1990) 225 Cal.App.3d 907, 920 [relevant factors in determining whether crimes indicate one or more conspiracies are whether crimes involved the same motives, were to occur at the same time and place and by the same means].) We find no authority for the Peoples suggestion that, under the particular circumstances of this case, the existence of three victims converted a single agreement to murder unspecified Nortenos into three separately planned murders for which defendant could be convicted and punished for three conspiracies.
We therefore conclude that defendant was erroneously convicted of two of three counts of conspiracy charged in the amended information. An appellate court may modify an erroneous judgment of conviction of multiple conspiracy counts in which the evidence supports a single conspiracy. (People v. Cossey (1950) 97 Cal.App.2d 101, 114.)
II. Claims involving the attempted murder counts
We find no merit to defendants other claims regarding the attempted murder counts. First, we reject defendants argument that the People also improperly "splintered" its prosecution of attempted murder and that he could not be convicted of and punished for multiple counts of attempted murder based on the same facts or course of conduct. As noted above, he relies heavily on the rule that "a charge of multiple counts of violating a statute is appropriate only where the actus reus prohibited by the statute — the gravamen of the offense — has been committed more than once." (Wilkoff, supra, 38 Cal.3d at p. 349.) Defendant argues the multiple-victim exception to this rule is not applicable here because the actus reus of attempted murder is not an act of violence. In support of this argument, defendant asserts "a defendant may be convicted of ... an attempted crime without actually performing any violent act." However, notwithstanding defendants assertions to the contrary, the actus reus of attempted murder is an act of violence. This is aptly demonstrated by the courts discussion of relevant legal principles in People v. Hall (2000) 83 Cal.App.4th 1084:
"Indeed, the California Supreme Court has stated that `a defendant may properly be convicted of multiple counts for multiple victims for a single criminal act only where the act prohibited by the statute is centrally an "act of violence against the person." (Wilkoff v. Superior Court (1985) 38 Cal.3d 345, 351, quoting Neal [v. State of California (1960)] 55 Cal.2d [11,] 20 [(Neal)] ....)
"Hence, in Neal, the state high court rejected a section 654 challenge to consecutive sentences for two attempted murders, where the defendant threw gasoline into a couples bedroom and ignited it, burning them. (Neal, supra, 55 Cal.2d at pp. 20-21.) By definition, the crime of attempted murder is an act of violence committed against a person since it requires a specific intent to kill. [Citation.] Therefore, where multiple victims are involved, it qualifies for the multiple-victim exception." (People v. Hall, supra, 83 Cal.App.4th at p. 1089, second italics added.)
We also reject defendants contention that section 654 precludes punishment for both the conspiracy and the attempted murders.
In his reply brief, defendant "concedes the sentences for attempted murder were stayed in accordance with PC 654" and apparently abandons his section 654 challenge to the sentences imposed for the attempted murder counts. This is incorrect. It appears from the record that the sentences for attempted murder were not stayed but ordered to run concurrently with the sentences imposed for the conspiracy counts. Thus, we do not accept defendants concession and address his original argument, which appears to have stemmed from his initial belief (also incorrect) that his sentences on the attempted murder counts were ordered to run consecutively to those for the conspiracy counts.
"Because of the prohibition against multiple punishment in section 654, a defendant may not be sentenced `for conspiracy to commit several crimes and for each of those crimes where the conspiracy had no objective apart from those crimes. If, however, a conspiracy had an objective apart from an offense for which the defendant is punished, he may properly be sentenced for the conspiracy as well as for that offense. [Citations.] Thus, punishment for both conspiracy and the underlying substantive offense has been held impermissible when the conspiracy contemplated only the act performed in the substantive offense [citations], or when the substantive offenses are the means by which the conspiracy is carried out [citation]. Punishment for both conspiracy and substantive offenses has been upheld when the conspiracy has broader or different objectives from the specific substantive offenses. [Citations.]" (People v. Ramirez (1987) 189 Cal.App.3d 603, 615-616, fn. omitted; accord, People v. Vargas (2001) 91 Cal.App.4th 506, 570-571 (Vargas).) The trial courts finding on this question must be upheld if supported by the evidence in the record. (People v. Nelson (1989) 211 Cal.App.3d 634, 638.)
In Vargas, the defendant was sentenced consecutively both for the offense of murder and the conspiracy to commit murder. (Vargas, supra, 91 Cal.App.4th at p. 570.) These consecutive sentences did not violate section 654 because there was strong evidence that the defendants gang "conspired to kill not only [the victim], but other persons as well, in addition to the gangs overriding conspiracy" (Id. at p. 571) to "establish power through the use of crime, force, and fear, and to use that power to further strengthen and perpetuate itself by killing its enemies, raising money for the gang, and instilling obedience and discipline among its members by killing members who break its rules." (Id. at p. 553.)
As in Vargas, the evidence here showed a conspiracy to kill other victims besides the particular victims of the substantive offenses. There was also evidence of a larger conspiracy with additional objectives beyond those contained in the three substantive crimes of which defendant was convicted. The conspiracy charged included the special allegation that the offense was committed for the benefit of a criminal gang. The gang experts testimony supports the inference that defendants gang not simply conspired to kill Nortenos in retaliation for the shooting at defendants house, but to enhance the prestige and notoriety of the Surenos gang and to intimidate members of the general public and prevent them from coming forward and being witnesses to future crimes that the gang committed. Because the record contains evidence supporting the trial courts decision to impose concurrent sentences for the attempted murder counts, we are required to uphold it.
Because we are striking two of his three conspiracy convictions, we do not address defendants alternative contention that his indeterminate sentence of 145 years to life stemming from the three conspiracy counts constituted cruel and unusual punishment.
DISPOSITION
The judgment is modified to strike the convictions on counts 2 and 3 to reflect a single conviction of conspiracy in count 1. The sentence is vacated and the case remanded for resentencing in accordance with the views expressed in this opinion. In all other respects, the judgment is affirmed.
We concur:
HARRIS, Acting P.J.
DAWSON, J.