People v. Hutchinson CA2/3 ( 2022 )

Filed 8/11/22 P. v. Hutchinson CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B306087
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA396233)
v.
JOSEPH HUTCHINSON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Larry P. Fidler, Judge. Reversed with
directions.
Richard Lennon and Tanya Dellaca, under appointment by
the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Steven E. Mercer, Deputy
Attorneys General, for Plaintiff and Respondent.
——————————
A jury convicted Joseph Hutchinson of three counts of
conspiracy for his participation in various schemes employed by
the Mexican Mafia within the Los Angeles County jail. On
appeal, Hutchinson argues that the trial court had a sua sponte
duty to instruct the jury on the issue of whether Hutchinson was
a member of multiple conspiracies or one overall conspiracy to
commit various crimes. We agree that the trial court erred in
failing to instruct on single versus multiple conspiracies and the
error was prejudicial.1 We therefore reverse and remand for
further proceedings.
BACKGROUND
I. The Mexican Mafia
The Mexican Mafia is a predominantly Hispanic prison
gang that exerts control over numerous street gangs whose
members are currently incarcerated in Southern California’s
prisons and jails. It follows a vertical organizational structure
with a hierarchy and chain of command. The top or “brain” of the
Mexican Mafia consists of about 140 individuals who are housed
in high security prisons around the country. The “body” of the
Mexican Mafia consists of gang members known as Sureños and
Southsiders who are from various Hispanic gangs in Southern
California that, once incarcerated, put aside any gang rivalries
1Given our conclusion in this case, we need not address
Hutchinson’s claim that his counsel rendered ineffective
assistance of counsel for failing to request the appropriate
conspiracy instruction, nor do we need to address his claim that
conspiracy to commit extortion is not an offense subject to the
alternate penalty provision of Penal Code section 186.22,
subdivision (b)(4), an issue which our Supreme Court recently
decided in People v. Lopez (2022) 12 Cal.5th 957.
2
and pledge loyalty to the Mexican Mafia. Southsiders engage in a
variety of tasks on the Mexican Mafia’s behalf, including
collecting drug money, distributing narcotics, and participating in
murders. Sureños are those Southsiders who are more dedicated
to the Mexican Mafia and are willing to commit violence to
enhance their reputation and to gain status within the hierarchy.
To insulate its members from law enforcement, the Mexican
Mafia employs women outside of the prisons and jails known as
“secretarias,” who relay information, launder money, and deliver
drugs.
The Mexican Mafia requires all Sureños, Southsiders,
Hispanic inmates, and Mexican nationals to follow a set of rules
during their incarceration. Some of the rules are mundane and
govern basic hygiene and self-care requirements. For example,
every Sureño and Southsider must shower daily and workout
several times per week. Some rules require a recognition that
the Mexican Mafia as the authority within the jail. For instance,
all Sureños and Southsiders must report any interracial conflict
before acting out against another race. As pertinent here, other
rules ensure inmates support the Mexican Mafia as a criminal
enterprise. One such rule requires Sureños and Southsiders to
report any illicit drugs that enter the jail to a Mexican Mafia
representative. Still other rules are discussed in more detail
below. Depending on the violation, breaking the rules is
punishable by monetary fines, forced bouts of physical exercise,
assault, and murder.
II. The Mexican Mafia’s money-making schemes
The Mexican Mafia uses various schemes to make money
for its ranking member within the Los Angeles County jail.
3
The Mexican Mafia requires all Southsiders to give the
Mexican Mafia one-third of all drugs that are smuggled into the
jail. Known as “the thirds,” Southsiders must give up one-third
of their drugs before they can sell the remaining two-thirds to
other inmates. A Mexican Mafia member will then either sell
that third to other inmates housed in high security areas or keep
it for personal use. Failure to contribute to the thirds is
tantamount to stealing from the Mexican Mafia and is
punishable by assault or murder.
The Mexican Mafia’s rules require inmates to participate
in the “kitty” whereby individuals contribute items purchased
from the commissary to a collection bag that a Mexican Mafia
member then resells at a discount. An inmate must contribute
one item to the kitty for every $15 spent at the commissary. To
verify inmates’ contributions to the kitty, the Mexican Mafia
collects commissary receipts and records the information on a
detailed ledger with the inmates’ names and other identifying
information.
To ensure inmates follow the rules and participate in the
thirds and the kitty, the Mexican Mafia maintains hit lists of
gangs and individuals who have been targeted for assault and
murder. These lists are known as “green light” and “hard candy”
lists. A green light list contains names of gangs and individuals
targeted for assault. A hard candy list contains names of
individuals targeted for murder. Once a gang or an individual
has been placed on a hit list, they must pay the Mexican Mafia to
be removed. Oftentimes, a Mexican Mafia member will place a
gang or individual on a green light list to exact money from them
regardless of compliance with the rules or contributions to the
4
kitty or the thirds. “[G]reen-lighting is a huge source of
revenue . . . for the organization.”
III. Inmate trust accounts
Because cash is not permitted in jail, Mexican Mafia
members use the jail’s inmate trust account system, which allows
inmates to purchase commissary items and to send and receive
money from visitors. Money generated from drug sales, the kitty,
and the green light and hard candy lists is deposited into the
Mexican Mafia members’ inmate trust accounts. Inmates’
payments for drugs or the kitty are verified after corresponding
receipts are mailed to a designated address or post office box.
Inmates in the Los Angeles County jail can release funds
by giving a visitor a property release slip with their name,
booking number, and the amount to be released. Anyone can
deposit money into an inmate trust account, but only the inmate
can release money from their account by completing a property
release slip and orally confirming the withdrawal with jail
personnel.
IV. Hutchinson’s position in the Mexican Mafia
During the time period at issue in the trial, Hutchinson
was an “upper echelon” member of the Mexican Mafia and a
representative for Eulalio Martinez, the “chief executive officer of
the Mexican Mafia among 40,000 inmates in Los Angeles” and
the ranking member in the Los Angeles County jail.2 After
Hutchinson and Martinez were housed together in the jail in
2007, Hutchinson became Martinez’s right hand man. During
this time, there was a significant increase in the number of
deposits and withdrawals from Hutchinson’s inmate trust
2 Martinez ceased control in the jail when he died in 2013.
5
account, including money withdrawn from Hutchinson’s account
and deposited into Martinez’s inmate trust account, sometimes
by the same person on the same date. The spike in activity after
December 2007 placed Hutchinson’s inmate trust account in the
top .01 percent of all accounts for the quantity of deposits and
withdrawals.
V. Recorded conversations
At trial, several recordings of jailhouse conversations were
played to the jury and interpreted by the People’s experts.
In one recorded phone call, made on January 25, 2008,
secretaria Jennifer Barela directed a Mexican Mafia
representative to deposit money from the kitty into Hutchinson’s
inmate trust account.
Fourteen excerpts were played for the jury from a secretly
recorded conversation which occurred on January 29, 2009,
between Hutchinson, Martinez, and two other individuals in
which they discussed transporting and selling drugs in the jail,
collecting money, and putting individuals on hit lists. Martinez
asked Hutchinson about missing drugs in the jail. Hutchinson
said he would find the missing drugs and sell them, but Martinez
told Hutchinson to send the drugs directly to him. They
discussed a certain section of the jail and who had authority to
sell drugs there. They also discussed problems relaying messages
to secretarias during visitations and potential solutions to keep
their conversations secret. Hutchinson and Martinez also
discussed putting names on a hard candy list.
In another phone call, made on August 24, 2009, inmate
Gabriel Ronquillo, who had decisionmaking authority from
Martinez, called Lora Hernandez and Trinidad Gonzalez.
Hernandez is a secretaria and Gonzalez is a Sureño. They
6
discussed debits and credits collected from street gangs and
inmates. Gonzalez confirmed that he had documentation of
“what came in and what’s going out” and that he “kept it all
documented right here.” They also discussed how to get drugs
into the jail and how their code talk was disorganized.
VI. Additional evidence
On May 15, 2008, Brenda Zuniga visited Hutchinson and
held a small handwritten note up to the plexiglass partition.
Prison staff confiscated the note, which said, “What[’]s the status
on Victoria Park? Leave them as they are? Tell Chato to send
any writing codes.” The People’s expert explained that Victoria
Park is a street gang under the Mexican Mafia’s control and
Chato is Mexican Mafia member Alfred Ortega. The note asked
whether the Victoria Park gang was still on a green light list.
That same day, Zuniga withdrew $1,300 from Hutchinson’s
inmate trust account, and deposited $1,300 into Ortega’s inmate
trust account.
On June 19, 2008, Zuniga’s sister visited Hutchinson.
Hutchinson told her to read something, write down a number,
and give her name to someone. Hutchinson wrote her name
down to put on a “slip” and gave further instructions for what she
should do after she receives the “slip.” Later that day, she
withdrew $1,900 from Hutchinson’s inmate trust account.
Los Angeles County Sheriff’s detectives later executed a
search warrant for a post office box in Barela’s name. They
recovered receipts that corresponded with deposits to
Hutchinson’s inmate trust account. The receipts identified
inmates who paid for drugs and contributed to the kitty.
7
VII. Procedure
An amended grand jury indictment charged Hutchinson
with conspiracy to bring controlled substances into jail (Pen.
Code,3 §§ 182, subd. (a)(1), 4573, subd. (a); count 1), conspiracy to
commit extortion by threats (§§ 182, subd. (a)(1), 519, 520;
count 2); conspiracy to commit money laundering (§§ 182,
subd. (a)(1), 186.10, subd. (a); count 4); and five counts of
conspiracy to commit murder (§§ 182, subd. (a)(1), 187, subd. (a);
counts 11–15). It was further alleged that Hutchinson committed
the crimes for the benefit of, at the direction of, or in association
with a criminal street gang (§ 186.22, subds. (b)(1)(A) & (C)), and
that he had a suffered a conviction for a serious or violent felony,
pursuant to the “Three Strikes” law (§§ 667, subds. (b)–(i),
1170.12, subds. (a)–(d)).
A jury found Hutchinson guilty of counts 1, 2, and 4 and
found the gang allegations to be true. The jury was unable to
reach a verdict on counts 11 through 15, and the trial court
declared a mistrial as to those counts. Hutchinson admitted the
prior strike allegation and the trial court sentenced him on
count 2 to an indeterminate term of 19 years to life. On counts 1
and 4, the trial court sentenced him to a determinate term of
12 years four months.4
Hutchinson timely appealed.
3 All
further undesignated statutory references are to the
Penal Code.
4 Hutchinson’s sentence was to run consecutively and be
subordinate to his sentence of 21 years for manslaughter in a
separate case.
8
DISCUSSION
Hutchinson contends that the trial court had a duty to
instruct the jury with CALJIC No. 17.05 or a similar instruction
to determine whether he was part of multiple conspiracies or
whether he was part of one conspiracy to commit multiple
crimes.5 The People counter that the trial court did not have a
sua sponte duty to instruct on the number of conspiracies and
5 CALJIC No. 17.05 reads in relevant part: “If you have
found the defendant[s] guilty of more than one count of
conspiracy, you must then determine whether there was one
overall conspiracy to commit [multiple] [two] crimes, or whether
there were separate conspiracies. You should consider all of the
applicable evidence and determine this issue. [¶] When a single
agreement to commit one or more crimes is evidenced by an overt
act, the precise nature and extent of the conspiracy must be
determined by reference to the agreement which embraces and
defines its objectives. Whether the object of a single agreement is
to commit one or many crimes, it is in either case the agreement
which constitutes the crime. One agreement cannot be taken to
be several agreements and hence several conspiracies simply
because it envisions committing more than one crime. [¶]
However if you find beyond a reasonable doubt that there was not
one overall agreement, but separate agreements, each
accompanied by an overt act, then separate conspiracies have
been established. [¶] If you find the defendant[s] guilty of more
than one count of conspiracy, you will then include a finding as to
whether there is one overall conspiracy or separate and distinct
conspiracies.”
9
that Hutchinson forfeited this contention by not requesting the
instruction.
I. Additional background
The trial court separately instructed the jury for each
conspiracy count.
For count 1, the trial court instructed the jury in relevant
part with CALCRIM No. 415, as follows: “The defendant may be
guilty of a crime if he either commits the crime, or he may also be
guilty if he is a member of a conspiracy. [¶] The defendant is
charged in [c]ount 1 with conspiracy to commit the crime of
[b]ringing [c]ontrolled [s]ubstances into a [j]ail . . . , in violation
of . . . section 182. [¶] To prove that a 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 other
defendants or other unidentified co-conspirators to commit the
crime of bringing controlled substances into a jail; [¶] 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 the crime of bringing controlled
substances into a jail; [¶] 3. One of the members of the
conspiracy, or any or all of them, committed at least one of the
following alleged overt acts to accomplish bringing controlled
substances into a jail: [¶] a. On or about December 14, 2007,
Eulalio Martinez assumed control of a highly organized criminal
enterprise that controls the collection of proceeds of illegal
activity within the Los Angeles County [j]ail system. This
organization is commonly referred to as the Southside and is
controlled by the Mexican Mafia, a violent prison gang. [¶]
b. Between December 14, 2007, and November 5, 2009, Eulalio
Martinez, Joseph Hutchinson, and other unidentified co-
10
conspirators devised a plan to facilitate the ongoing smuggling of
controlled substances into the Los Angeles County [j]ail system to
benefit Eulalio Martinez through the collection of a third of all
quantities of controlled substances smuggled. [¶] c. On
August 24, 2009, Gabriel Ronquillo discussed methods of bringing
drugs into the Los Angeles County [j]ail with Trinidad Gonzalez;
[¶] AND [¶] 4. At least one of these overt acts was committed
in California. [¶] To decide whether a defendant committed
these overt acts, consider all of the evidence presented about the
acts. [¶] To decide whether the defendant and one or more of the
other alleged members of the conspiracy intended to commit the
crime of bringing controlled substances into a jail, please refer to
the separate instructions that I will give you on that crime. [¶]
The People must prove that the members of the alleged
conspiracy had an agreement and intent to commit bringing
controlled substances into a jail. The People do not have to prove
that any of the members of the alleged conspiracy actually met or
came to a detailed or formal agreement to commit that crime. 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.”
For count 2, the trial court instructed the jury in part:
“The defendant is charged in Count 2 with conspiracy to commit
the crime of [e]xtortion by [t]hreats . . . , in violation of . . . section
182. [¶] To prove that a 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 other defendants or other
unidentified co-conspirators to commit [e]xtortion by [t]hreats;
[¶] 2. At the time of the agreement, the defendant and one or
more of the other alleged members of the conspiracy intended
11
that one or more of them would commit [e]xtortion by [t]hreats;
[¶] 3. One of the members of the conspiracy, or any or all of
them, committed at least one of the following alleged overt acts to
accomplish [e]xtortion by [t]hreats: [¶] a. On or about December
14, 2007, Eulalio Martinez assumed control of a highly organized
criminal enterprise that controls the collection of proceeds of
illegal activity within the Los Angeles County [j]ail system. This
organization is commonly referred to as the Southside and is
controlled by the Mexican Mafia, a violent prison gang. [¶]
b. Between December 14, 2007, and November 5, 2009, Eulalio
Martinez and co-conspirators devised a scheme to extort a
percentage of all purchases from the jail store made by the
Hispanic inmates within the Los Angeles County [j]ail [s]ystem,
and to direct the proceeds to Eulalio Martinez. [¶] c. Between
December 14, 2007, and November 9, 2009, numerous
unidentified co-conspirators enforced the collection of items
purchased from the Los Angeles County [j]ail [s]tore by Hispanic
inmates in order to be placed in the [k]itty and sold for the
benefit of Eulalio Martinez. The contribution of purchased items
was enforced with violence and the threat of violence. [¶] d.
Between August 11, 2007, and March 2008, Jennifer Barela
maintained a post office box to accept the receipt of proof of
payments made by Los Angeles County [j]ail inmates purchasing
the [k]itty. [¶] e. Between August 11, 2007, and March 27,
2008, Jennifer Barela received proof of payments in her post
office box. [¶] f. From January 2008, to June 2009, Joseph
Hutchinson allowed his inmate trust account to be used to
deposit money procured from the [k]itty. [¶] g. From August 14,
2008, to May 21, 2009, Brook Deras withdrew money procured
from the [k]itty scheme from Joseph Hutchinson’s inmate trust
12
account to transfer to the benefit of Eulalio Martinez. [¶]
h. From April 30, 2009, to May 21, 2009, Brook Deras deposited
money procured from the [k]itty scheme into Eulalio Martinez’s
inmate trust account. [¶] i. Between December 14, 2007, and
October 8, 2009, Trinidad Gonzalez accepted money procured
from the [k]itty scheme. [¶] j. Between December 14, 2007, and
May 28, 2009, Trinidad Gonzalez deposited money procured from
the [k]itty scheme into Eulalio Martinez’s inmate trust account.
[¶] k. On August 24, 2009, Trinidad Gonzalez gave Gabriel
Ronquillo an accounting of proceeds gained from the [k]itty
scheme; [¶] AND [¶] 4. At least one of these overt acts was
committed in California.”
For count 4, the trial court instructed the jury in part:
“The defendant is charged in Count 4 with conspiracy to commit
the crime of [m]oney [l]aundering . . . , in violation of . . . section
182. [¶] To prove that a 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 other defendants or other
unidentified co-conspirators to commit [m]oney [l]aundering; [¶]
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 [m]oney [l]aundering; [¶] 3. One
of the members of the conspiracy, or any or all of them,
committed at least one of the following alleged overt acts to
accomplish [m]oney [l]aundering: [¶] a. On or about December
14, 2007, Eulalio Martinez assumed control of a highly organized
criminal enterprise that controls the collection of proceeds of
illegal activity within the Los Angeles County [j]ail system. This
organization is commonly referred to as the Southside and is
controlled by the Mexican Mafia, a violent prison gang. [¶]
13
b. Between December 14, 2007, and November 5, 2009, Eulalio
Martinez and co-conspirators devised a scheme to extort a
percentage of all purchases from the jail store made by the
Hispanic inmates within the Los Angeles County [j]ail [s]ystem,
and to direct the proceeds to Eulalio Martinez. [¶] c. Between
December 14, 2007, and November 9, 2009, numerous
unidentified co-conspirators enforced the collection of items
purchased from the Los Angeles County [j]ail [s]tore by Hispanic
inmates in order to be placed in the [k]itty and sold for the
benefit of Eulalio Martinez. The contribution of purchased items
was enforced with violence and the threat of violence. [¶]
d. Between August 11, 2007, and March 2008, Jennifer Barela
maintained a post office box to accept the receipt of proof of
payments made by Los Angeles County [j]ail inmates purchasing
the [k]itty. [¶] e. Between August 11, 2007, and March 27,
2008, Jennifer Barela received proof of payments in her post
office box. [¶] f. From January 2008, to June 2009, Joseph
Hutchinson allowed his inmate trust account to be used to
deposit money procured from the [k]itty. [¶] g. From August 14,
2008, to May 21, 2009, Brook Deras withdrew money procured
from the [k]itty scheme from Joseph Hutchinson’s inmate trust
account to transfer to the benefit of Eulalio Martinez. [¶]
h. From April 30, 2009, to May 21, 2009, Brook Deras deposited
money procured from the [k]itty scheme into Eulalio Martinez’s
inmate trust account. [¶] i. Between December 14, 2007, and
October 8, 2009, Trinidad Gonzalez accepted money procured
from the [k]itty scheme. [¶] j. Between December 14, 2007, and
May 28, 2009, Trinidad Gonzalez deposited money procured from
the [k]itty scheme into Eulalio Martinez’s inmate trust account.
[¶] k. On March 5, 2009, David Nunez withdrew $5,000 from the
14
inmate trust account of Eulalio Martinez. [¶] l. On August 24,
2009, Trinidad Gonzalez gave Gabriel Ronquillo an accounting of
proceeds gained from the [k]itty scheme; [¶] AND [¶] 4. At
least one of these overt acts was committed in California.
The trial court separately instructed the jury with CALJIC
No. 7.34.06 [bringing controlled substances into jail], CALCRIM
No. 1830 [extortion by threats], CALCRIM No. 2997 [money
laundering] as to the elements of the target crime for each
conspiracy.
The trial court also gave an unanimity instruction
regarding overt acts. The instruction read: “As to [c]ount 1,
[c]onspiracy to [b]ring [c]ontrolled [s]ubstances into a [j]ail, you
may not find the defendant guilty of this count unless the jury
makes a unanimous finding of the following overt act: On
August 24, 2009, Gabriel Ronquillo discussed methods of bringing
drugs into the Los Angeles County [j]ail with Trinidad Gonzalez.
[¶] As to [c]ount 2, [c]onspiracy to [c]ommit [e]xtortion by
[t]hreats, if you find the defendant guilty you will be asked to
make a finding as to whether the following overt act is true: On
August 24, 2009, Trinidad Gonzalez gave Gabriel Ronquillo an
accounting of proceeds gained from the [k]itty scheme. [¶] To
make such a finding, the jury must be unanimous. Please refer
to CALCRIM 415, generally, for what is required to prove this
count. [¶] As to [c]ount 4, [c]onspiracy to [c]ommit [m]oney
[l]aundering, you may not find the defendant guilty of this count
unless the jury makes a unanimous finding of the following overt
act: On August 24, 2009, Trinidad Gonzalez gave Gabriel
Ronquillo an accounting of proceeds gained from the [k]itty
scheme.”
15
II. Applicable law
A. Conspiracy
“A conspiracy exists where two or more people agree to
commit a crime, they specifically intend both to agree and to
commit the crime, and one of them performs an overt act in
furtherance of their agreement.” (People v. Kopp (2019)
38 Cal.App.5th 47, 83; §§ 182, subd. (a)(1), 184.) “Conspiracy is
an inchoate crime. [Citation.] It does not require the commission
of the substantive offense that is the object of the conspiracy.
[Citation.] ‘As an inchoate crime, conspiracy fixes the point of
legal intervention at [the time of] agreement to commit a crime.’ ”
(People v. Swain (1996) 12 Cal.4th 593, 599–600.)
The crime of conspiracy is the agreement itself, not the
number of victims or the number of statutes violated, i.e., the
number of agreements determines the number of conspiracies.
(People v. Meneses (2008) 165 Cal.App.4th 1648, 1669 (Meneses);
People v. Lopez (1994) 21 Cal.App.4th 1551, 1557.) Commission
of separate crimes or separate acts in furtherance of a conspiracy
is not inconsistent with a single overall agreement, which may
include subgroups or subagreements. (People v. Vargas (2001)
91 Cal.App.4th 506, 553–554.) “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.” (People v.
Skelton (1980) 109 Cal.App.3d 691, 718, disapproved on another
ground in People v. Figueroa (1986) 41 Cal.3d 714, 731.)
Relevant factors include whether the crimes involved the same
motives, were to occur at the same time and place and by the
same means, and targeted a single or multiple victims. (Meneses,
at p. 1672.)
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B. Duty to instruct
The trial court must instruct the jury, sua sponte, on the
general principles of law relevant to issues raised by the
evidence. (People v. Michaels (2002) 28 Cal.4th 486, 529–530.)
The parties acknowledge a split in authority as to whether
the determination of the number of conspiracies is a jury question
and whether a trial court has a sua sponte duty to instruct on
that issue. (People v. Williams (2015) 61 Cal.4th 1244; Meneses,
supra, 165 Cal.App.4th at pp. 1668–1669.) Hutchinson asks us to
follow the more recent line of cases that hold that the trial court
must instruct the jury to determine whether one or multiple
conspiracies existed when the evidence supports alternative
findings. (Meneses, at pp. 1668, 1671; People v. Jasso (2006)
142 Cal.App.4th 1213, 1220 (Jasso); People v. Vargas, supra,
91 Cal.App.4th at p. 554.) The People ask us to follow People v.
Liu (1996) 46 Cal.App.4th 1119, 1133 and People v. McLead
(1990) 225 Cal.App.3d 906, 920–921, two older decisions that hold
otherwise.
Jasso, supra, 142 Cal.App.4th 1213, involved several drug
smuggling attempts into a prison. The defendant made
numerous phone calls to his contact, giving the contact the names
and phone numbers of several inmates’ wives, who planned to
visit their husbands in prison. The contact then procured the
drugs, packaged them according to the defendant’s instructions,
and gave the packages to the wives for them to conceal inside
their bodies for delivery at their next visit. On three different
days over the span of three consecutive months, three women
visiting their husbands were searched and found to be carrying
drugs. (Id. at pp. 1216–1219.) The defendant was convicted of
three counts of conspiracy to transport a controlled substance
17
into prison. (Id. at p. 1215.) The Jasso court rejected the
Attorney General’s attempt to portray each attempt as
necessarily being separate conspiracies, stating, “The Attorney
General sees many trees but not the forest.” (Id. at p. 1222.) The
court concluded the jury could have found that there was one
single agreement, and the trial court erred in failing to instruct
on single versus multiple conspiracies. (Id. at p. 1223.)
We do not find Liu and McLead persuasive in light of Jasso
and the more recent case law. Liu and McLead involved multiple
conspiracies to murder different individuals. Meneses, supra,
165 Cal.App.4th at pages 1670 and 1671, explained why relying
on Liu and McLead is problematic in cases that involve the issue
of single versus multiple conspiracies as each case relied on
People v. Davis (1989) 211 Cal.App.3d 317, which concerned
solicitation of murder, not conspiracy. Meneses, at page 1670,
recognized that the problem with extending reasoning applicable
to solicitation of murder to the issue of multiple conspiracies “is
that the number of victims is not a firm basis or indicator for
determining the number of conspiracies. It is the agreement, not
the overt acts that defines the crime.” While solicitation to
murder is also not defined by the number of victims, but by the
number of solicitations, it is unlike conspiracy because “a
multiplicity of victims in solicitation to murder cases often
reveals a multiplicity of objectives.” (Id. at p. 1671.) However, a
coconspirator set “to commit separate criminal acts is not
necessarily engaged in multiple conspiracies; a single conspiracy
may have as its object one or many crimes.” (Ibid.)
Meneses, supra, 165 Cal.App.4th at page 1671, expressly
followed Jasso, supra, 142 Cal.App.4th 1213, in holding that a
trial court is required to instruct the jury to determine whether a
18
single conspiracy or multiple conspiracies exist when there is
evidence to support alternative findings. We find Meneses’s
discussion of Liu and McLead persuasive, and thus follow the
more recent line of authority that requires the trial court to
instruct the jury to determine whether a single conspiracy or
multiple conspiracies existed when there is evidence to support
alternative findings. (Meneses, at p. 1668; accord Jasso, at
p. 1220; People v. Kopp, supra, 38 Cal.App.5th at pp. 84–85.)
III. The trial court failed to instruct the jury to
determine whether there was one overall conspiracy
to commit multiple crimes as an alternative to
finding multiple separate conspiracies.
Here, as in Jasso, the evidence supports an alternative
finding that Hutchinson was involved in a single conspiracy to
commit multiple crimes. The evidence shows that the Mexican
Mafia is a highly organized criminal enterprise, whose primary
objectives are to make money and to establish its authority
within the jail by enforcing its rules through violence. Each of
the Mexican Mafia’s schemes had overlapping motives, means,
and involved similar dates and individuals. The drug sales, the
kitty, and the green light and hard candy lists were a means to
generate revenue under threat of violence. The green light and
hard candy lists provided the means of enforcement to ensure
inmates made the required payments. The money laundering,
which occurred in the same manner regardless of the source of
the money, allowed the Mexican Mafia to access its ill-gotten
gains generated from each scheme. Thus, each conspiracy could
be viewed as overlapping and supporting the other. Further, the
jury instructions show that each conspiracy was based on the
same acts by the same individuals. The overt act that tied each
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of the conspiracy counts together was the August 24, 2009
conversation between members of the Mexican Mafia’s hierarchy
where they discussed bringing drugs into the jail and an
accounting of monies received from street gangs and inmates. As
the prosecutor acknowledged during his closing argument, the
separate conspiracies went “hand in hand” and were
“intertwined.” “It’s kind of hard to separate them from one
another. [¶] So you can’t really extort inmates of their property
without having a way to bring the money in. And the way to
bring it into the jails is through the inmate trust accounts. And
so all of these conspiracies to extort money, to take a third of the
drugs, to launder the money, they all kind of go together.”
People v. Vargas, supra, 91 Cal.App.4th 506 and People v.
Skelton, supra, 109 Cal.App.3d 691 are instructive. In Vargas, at
pages 517 to 518, the defendant was charged with and convicted
of one count of conspiracy to commit murder, robbery, assault
with a deadly weapon, arson, burglary, extortion, intimidation of
witnesses, terrorist threats, escape, possession of a concealable
firearm by a convicted felon, and distribution of drugs. The
defendant was a member of the Nuestra Familia. (Id. at p. 523;
see People v. Prunty (2015) 62 Cal.4th 59, 69.) The evidence
showed that the Nuestra Familia maintained a hit list, sold
drugs, extorted drug dealers, and that defendant had planned
and ordered the murders of individuals who had gone against the
gang. (Vargas, at pp. 520–529.) The defendant argued that the
trial court should have instructed the jury to determine if one or
multiple conspiracies existed. (Id. at p. 549.) The appellate court
affirmed, concluding that the evidence showed one overarching
conspiracy—an agreement to establish Nuestra Familia as a
criminal gang to commit murder, robbery, burglary, extortion,
20
and drug trafficking among other crimes. (Id. at p. 553.) “Within
that umbrella conspiracy were subconspiracies to commit specific
crimes. However, the commission of the specific crimes, and the
drawing up of plans . . . to commit them, were all in pursuance of
the overriding purpose of the [Nuestra Familia], which was 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.” (Ibid.)
In People v. Skelton, supra, 109 Cal.App.3d at pages 700
and 702, a jury convicted three defendants each of one count of
conspiracy for their participation in a pyramid investment
scheme that involved fraudulent programs broadly divisible into
dairy and land investment. The defendants argued that the trial
court should have instructed the jury on whether there were one
or two conspiracies based on the dairy and land programs. (Id. at
p. 717.) The appellate court affirmed, concluding that the
evidence showed only one overall scheme. (Id. at p. 718.) It
found that each investment program operated under the
umbrella of a parent company and that the money was disbursed
to and flowed through each program as needed. (Ibid.) Further,
while the coconspirators performed different functions, their
activities overlapped within the different investment programs,
thus the jury was properly instructed on a theory of one overall
conspiracy. (Ibid.)
Like Vargas and Skelton, there is sufficient evidence in the
present case that Hutchinson’s conduct fell under the umbrella of
one agreement to support the Mexican Mafia in its efforts to
exert control over the jail and to make money through extorting
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inmates. The People’s experts described the Mexican Mafia as a
business which has as its number one objective to make money
and that everything that it does flows from that objective. Each
scheme could be properly characterized as a step to achieve that
overarching goal. Moreover, there is no evidence to show that a
Mexican Mafia member, or anyone within its hierarchy could
selectively choose which scheme to participate in. Rather, the
evidence shows that there is a common agreement about the
rules requiring inmates to participate in the Mexican Mafia’s
drug and kitty schemes and enforcement of those rules via hit
lists. While there may have been multiple subagreements, a jury
could find that they each fit into a broader agreement to support
the Mexican Mafia as a criminal enterprise within the jail.
The People argue that Hutchinson’s characterization of one
overall conspiracy is overbroad and that the case is more akin to
Meneses, supra, 165 Cal.App.4th 1648. In Meneses, the
defendants were convicted of multiple counts of conspiracy based
on a scheme to defraud insurance companies by encouraging
accident victims to obtain legal and medical services even when
none were needed. (Id. at pp. 1651, 1659.) The defendant was a
“ ‘capper’ ” (one who solicits business for lawyers) and would
purchase stolen police reports to get the contact information of
accident victims. (Id. at 1654.) He then referred the victims to
different lawyers and chiropractors who paid the defendant a
referral fee. (Id. at pp. 1652–1653.)
After concluding that the trial court had a duty to instruct
the jury to determine whether there was one or multiple
conspiracies, the appellate court concluded that the evidence did
not support a finding of a single overarching conspiracy.
(Meneses, supra, 165 Cal.App.4th at p. 1671.) The court found
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that each conspiracy was distinct and disconnected because they
involved different conspirators at different times. (Id. at p. 1672.)
Although the defendant was the common denominator in each
scheme, each conspiracy involved other coconspirators. (Ibid.)
Even for those conspiracies that involved only the defendant and
the clerk who stole the police reports, the court found that they
did not have a “a single, uninterrupted agreement” because the
clerk would stop providing the reports at times and then start
providing them again. (Ibid.)
Unlike Meneses, here, there was evidence that Hutchinson
was part of an ongoing scheme to make money for a highly
organized criminal enterprise with a set of rules and a clear
hierarchy. Each scheme involved the same individuals fulfilling
their respective roles within that hierarchy and overarching
criminal conspiracy. There was no evidence that Hutchinson
acted independently. Further, a jury could find that there was no
evidence to show that the various schemes stopped and started
making each conspiracy distinct and disconnected.
Thus, we conclude the evidence supports an alternative
finding that Hutchinson was engaged in one conspiracy to
commit multiple crimes. Accordingly, the trial court had a sua
sponte duty to instruct on the issue of single versus multiple
conspiracies.6
6 Hutchinson notes that the prosecutor mentioned to the
trial court that, on instructions pertinent to the case, CALJIC
included topics that the CALCRIM do not. As we have previously
noted, the trial court used CALCRIM to instruct the jury on the
conspiracy counts. As noted above, CALJIC No. 17.05 addresses
the issue of whether one or several conspiracies exist. However,
there is no corresponding instruction in CALCRIM. We further
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IV. The error was prejudicial.
The People contend that even if the trial court’s failure to
instruct on a single overall conspiracy was error, the error was
harmless. We disagree.
We will not reverse a conviction for instructional error
unless “an examination of ‘the entire cause, including the
evidence,’ discloses that the error produced a ‘miscarriage of
justice.’ ” (People v. Breverman (1998) 19 Cal.4th 142, 149.) The
defendant must show that it is reasonably probable that he would
have achieved a more favorable result absent the error. (People
v. Watson (1956) 46 Cal.2d 818, 836.)
The People argue that any instructional error was harmless
because the principle of a single conspiracy versus multiple
conspiracies was conveyed by the given instructions. However,
nothing in the instructions told the jury that, if it found the
existence of multiple conspiracies, it must determine whether
there was one overall conspiracy to commit multiple crimes.
Without that instruction, if the jury believed that there was one
overall agreement, it could not find that only one conspiracy
existed. Given the evidence that the purpose of bringing drugs
into the jail and the movement of money from the kitty and drug
sales through inmate trust accounts were parts of a single,
overriding agreement to make money for the Mexican Mafia
through extortion, it is reasonably probable that a properly
note that the CALCRIM bench notes do not mention the sua
sponte duty to instruct on this issue, but the CALJIC use notes
do. The sua sponte duty is mentioned in section 2.37 of the 2022
CJER Mandatory Jury Instructions Handbook. The Advisory
Committee on Criminal Jury Instructions may wish to consider
adding an instruction on this issue to CALCRIM.
24
instructed jury would have convicted Hutchinson of a single
conspiracy rather than three.7 (Jasso, supra, 142 Cal.App.4th at
p. 1223.)
We requested supplemental briefing to clarify the proposed
disposition, in the event that this court were to find instructional
error. The People argue that a finding of instructional error
should result in a reversal of all counts. Hutchinson claims that
the evidence established there was only one conspiracy and
requests that we strike only the convictions in counts 1 and 4.8
Our conclusion, consistent with Jasso, is that “the jury should
have been directed to decide the factual issue that would have
been posed by the omitted instruction.” (Jasso, supra,
142 Cal.App.4th at p. 1223.)
Accordingly, we agree with the People, and we reverse the
convictions in counts 1, 2, and 4 and remand the matter with
directions. On remand the People shall have the opportunity to
either retry counts 1, 2 and 4, and the attached gang
enhancements in accordance with Assembly Bill No. 333, or
accept the jury’s conviction on one of the three substantive
7 Given our conclusion that the error was prejudicial under
California’s harmless error standard, we need not address
Hutchinson’s claim that the error violated his federal
constitutional rights to due process and a fair trial, which would
trigger the more stringent standard established in Chapman v.
California (1967) 386 U.S. 18.
8 In Hutchinson’s opening brief, he requested that we
reverse counts 1 and 4, but in his reply brief, he requested that
we reverse all three convictions. In supplemental briefing,
Hutchinson apologized for the confusion and clarified that his
request is that we reverse counts 1 and 4.
25
counts, after which the remaining counts and allegations shall be
dismissed.
As previously noted, the jury found the gang enhancements
to be true on counts 1, 2 and 4. However, Assembly Bill No. 333
(2021–2022 Reg. Sess.), which took effect on January 1, 2022,
made significant amendments to the gang statute, section 186.22.
The parties agree, as do we, that Hutchinson is entitled to the
ameliorative benefits of the amendments to section 186.22, and
that the amendments apply retroactively where, as here, the
defendant’s conviction was not final when the amendments took
effect. (See People v. Lopez (2021) 73 Cal.App.5th 327, 343–344.)
If the People elect to retry Hutchinson on the gang
enhancements, the People will have the opportunity to establish
the new elements in accordance with Assembly Bill No. 333.
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DISPOSITION
The judgment is reversed and remanded with directions to
the trial court to give the People the opportunity to retry
counts 1, 2 and 4 and the attached gang allegations. If the People
elect not to retry those counts and the gang allegations, then the
trial court shall resentence Joseph Hutchinson on one count,
after which the remaining counts shall be dismissed.
NOT TO BE PUBLISHED.
KIM, J.*
We concur:
EDMON, P. J.
LAVIN, J.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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