Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County No. 07CM7421. James LaPorte, Judge.
Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Sarah J. Jacobs, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Cornell, Acting P.J., Gomes, J. and Dawson, J.
STATEMENT OF THE CASE
On January 20, 2009, appellant, Armando Marciel, was found guilty of conspiracy to furnish methamphetamine and/or marijuana by a person not in custody to a person in custody (Pen. Code, §§ 182, subd. (a)(1), 4573.9, count 1) and conspiracy to transport methamphetamine (§ 182, subd. (a)(1), Health & Saf. Code, § 11379, count 2). The jury acquitted appellant of two other conspiracy allegations in counts 4 and 6. In a bifurcated proceeding, the trial court found true allegations that appellant had six prior serious felony allegations within the meaning of the three strikes law.
Unless otherwise indicated, all statutory references are to the Penal Code.
Appellant’s codefendant, Violet Azlin, was also convicted of conspiracy in counts 1 and 2. Counts 3 and 5 were alleged as to Azlin only.
On March 6, 2009, the trial court denied appellant’s motion for a new trial and sentenced appellant to consecutive sentences of 25 years to life on counts 1 and 2 for a total prison term of 50 years to life. Appellant contends, and respondent concedes, that he committed only a single conspiracy. Only one count, therefore, can be sustained and the other conviction must be reversed.
FACTS
Appellant was incarcerated during 2007 in Corcoran State Prison (Corcoran). Correctional officers at Corcoran monitor, record, and track the telephone call history of inmates through a computer system. Officers are trained to listen for code words used for drug activity.
In May or June of 2007, Karen Mohler “hooked … up” with inmate Thurman Gaines. Mohler met Gaines through a friend whose husband was also an inmate. Mohler visited Gaines in prison, wrote him letters, and talked with him on the telephone. In May 2007, Gaines asked Mohler to take money that was arriving in the mail to Mohler’s home to his cellmate’s mother. Gaines told Mohler that the cellmate’s mother, Violet Azlin, needed the money for food and other expenses. Mohler received money from various people, deposited it into her bank account, and gave Azlin a money order.
Appellant called his niece, Marisol Ruiz, in May 2007 and asked her to take something to Azlin. A man Ruiz did not know called her from a private phone number to arrange a meeting. They met at a supermarket in Tujunga. The man told Ruiz he would be in a green truck. When Ruiz arrived at the parking lot of the supermarket, she saw a green truck already parked there. Ruiz approached the man and asked him if he knew appellant. The man replied that he did.
For her involvement in the conspiracy, Ruiz was granted felony probation in exchange for her testimony.
The man handed Ruiz sealed packaging in the shape of two round balls. The sealing looked like latex gloves that contained Ziploc bags. Ruiz did not know what was in the packaging but it was probably nothing good. At appellant’s direction, Ruiz contacted Azlin and arranged a meeting with her by the Grapevine outside of Bakersfield. Ruiz met Azlin and handed her the packaged material. Azlin told Ruiz her son was also an inmate at Corcoran. Ruiz called appellant after the meeting with Azlin and told him “the bird has landed.” Appellant offered Ruiz money and said it was arriving for her from Ohio. Appellant never told Ruiz that she was receiving methamphetamine.
Azlin’s son is Shawn Brian Dearing.
In a monitored telephone conversation on June 23, 2007, appellant called someone named Alex. A correctional officer thought appellant was trying to convey the message that Ruiz should call Azlin. Appellant referred to Azlin as the lady in Bakersfield.
Officer Janet Anders is assigned to the investigative services unit at Corcoran. On June 30, 2007, Anders had a search warrant for Azlin who was visiting the prison. Anders conducted an unclothed body search of Azlin and found two bindles wrapped in black electrical tape in Azlin’s underwear. The bindles contained methamphetamine in quantities of 11.74 grams, 10.65 grams, and 12.45 grams. A fourth bindle containing 6.25 grams of marijuana was also found. The methamphetamine had a value on the prison yard of between $9,000 and $11,000. The marijuana had a value of between $500 and $1,000.
Officer Ryan Couch questioned Azlin who waived her Miranda rights. Azlin told Couch that her son, Dearing, called her and asked her to bring narcotics to the prison. Azlin met with another inmate’s relative named Marie to pick up the narcotics at the Grapevine. Azlin knew the narcotics she received were methamphetamine. Azlin wrapped the bindles in electrical tape to better conceal them.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
Appellant was given, and waived, his Miranda rights. When appellant was asked if he was involved in the conspiracy, he nodded his head affirmatively. Appellant was told his niece had been arrested. When asked if he was involved in the conspiracy to bring drugs into the prison using his niece to pass drugs to Azlin, appellant replied, “Yes.” Appellant explained he was not the only one involved in the conspiracy and named other inmates. Shawn Dearing testified appellant was not involved in the conspiracy to bring drugs into Corcoran.
DISCUSSION
Appellant contends, and respondent agrees, that he cannot be convicted of multiple conspiracy counts where there is evidence of a single conspiracy. We agree and will reverse count 2.
When a single agreement to commit one or more substantive crimes is evidenced by an overt act as required by the conspiracy statute, the precise nature and extent of the conspiracy must be determined by reference to the agreement that defines its objects. Whether the object of a single agreement is to commit one or many crimes, it is, in either case, that agreement that constitutes the conspiracy which is punished by the statute. A single agreement cannot be taken to be several agreements and hence multiple conspiracies because the conspiracy 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 pp. 50-51.) 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, to manufacture methamphetamine, and to 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.)
Appellant was charged respectively in counts 1 and 2 with conspiracy to furnish methamphetamine and/or marijuana by a person not in custody to a person in custody and with conspiracy to transport methamphetamine. Although there are different statutes alleged, the conspiracy agreement itself is identical in both counts. Indeed, the 21 overt acts alleged in counts 1 and 2 are identical. Because there was a single conspiracy to bring illegal narcotics into prison, appellant could be convicted and sentenced on a single conspiracy.
The parties agree that count 2 has a shorter sentence than count 1 and should be the count that is dismissed.
DISPOSITION
The judgment is modified to reverse appellant’s conviction on count 2 to reflect a single conviction of conspiracy in count 1. The sentence on count 2 is vacated. The case is remanded for the trial court to prepare an amended abstract of judgment reflecting these changes and to forward it to the appropriate authorities. In all other respects, the judgment is affirmed.