People v. Avalos CA5 ( 2020 )

Filed 12/10/20 P. v. Avalos CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F076301
Plaintiff and Respondent,
(Super. Ct. No. VCF325028B)
v.
EMANUEL AVALOS et al., OPINION
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of Tulare County. Joseph A.
Kalashian, Judge.
Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and
Appellant Emanuel Avalos.
Jennifer A. Mannix, under appointment by the Court of Appeal, for Defendant and
Appellant Cervando Avalos, Jr.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Brook A. Benningson and
Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
This prosecution was the culmination of a multi-agency law enforcement
operation. It occurred in 2015 and focused on the Norteño criminal street gang in Tulare
County. It involved wiretaps of about 34 telephones, and live surveillance of suspects.
Law enforcement was able to determine the hierarchy of the Norteño gang in and around
Tulare County.
The criminal complaint charged approximately 80 individuals with gang-related
crimes. Appellants Cervando Avalos, Jr. and Emanuel Avalos were part of the original
charges and they were tried together but bifurcated from the other defendants.1 The jury
found Cervando guilty of 14 felonies and it found true numerous enhancements. He
received an aggregate determinate sentence of eight years eight months, along with a
consecutive aggregate indeterminate sentence of 17 years to life.
Emanuel was convicted of 16 felonies and the jury found true numerous
enhancements. He received an aggregate determinate sentence of 10 years eight months,
along with a consecutive aggregate indeterminate sentence of 100 years to life.
Although we reject most of appellants’ arguments on appeal, some of their claims
have merit. Cervando’s conspiracy conviction in count 101 must be reversed for
insufficient evidence. In addition, Cervando’s firearm enhancements found true under
Penal Code section 12022.4, subdivision (a), in counts 19 and 163 must be reversed for
insufficient evidence.2 We vacate Cervando’s sentence and we remand his matter for
1 Because they share the same last name, we will refer to Cervando and Emanuel by
their first names. Collectively we will refer to them as appellants. We list later in this
opinion each of appellants’ respective charges, convictions and sentences. Because of the
number of defendants and charges in the original complaint, appellants’ counts were not
in sequential number when they went to trial.
2 All future statutory references are to the Penal Code unless otherwise noted. To
assist the parties at resentencing, we note that Cervando does not challenge the
sufficiency of the evidence regarding the other firearm enhancements (§ 12022,
subd. (a)(1)) found true in counts 19 and 163.
2.
resentencing. In addition, a clerical error exists in Cervando’s determinate abstract of
judgment, which we direct the court to correct. We remand for resentencing but
otherwise affirm Cervando’s judgment.
For Emanuel, the trial court imposed improper sentences in counts 18, 20, 35, 69,
72 and 73 when it ordered these sentences to run concurrently but also stayed them. In
addition, the court failed to articulate reasons in support of the upper-term sentence
enhancements it imposed in counts 19 and 29. We will vacate Emanuel’s sentence and
remand his matter for resentencing. When resentencing Emanuel, the court shall exercise
its discretion under Senate Bill No. 620 for the firearm enhancement (§ 12022.53,
subds. (c) & (e)(1)) found true in count 73. Further, clerical errors appear in Emanuel’s
determinate and indeterminate abstracts of judgment, which we direct the court to correct.
We remand for resentencing but otherwise affirm Emanuel’s judgment.
BACKGROUND
I. Appellants’ Respective Convictions And Sentences.
We summarize appellants’ respective charges, convictions and sentences.3
A. Cervando’s convictions and sentences.
Cervando received an aggregate determinate sentence of eight years eight months.
A consecutive indeterminate sentence of 17 years to life was imposed. The following is a
breakdown of his convictions and sentences.
Count Section(s) Offense and Verdict and Sentence(s)
enhancement(s) finding(s) (if any)
(if any)
19 182(a)(1); Conspiracy to Guilty Consecutive 15
212.5(a); commit home years to life with
213(a)(1)(A) invasion robbery possibility of
in concert parole
3 To conserve space, we omit “subdivision” in the citations for the various statutes.
The applicable subdivisions, however, are denoted for each statute by the respective
parentheses.
3.
186.22(b) Gang True No time imposed4
enhancement
12022.4(a) Firearm True Consecutive two
enhancement years
12022(a)(1) Firearm True No time imposed
enhancement
20 182.5; Gang conspiracy Guilty One-third
212.5(a); to commit home consecutive
213(a)(1)(A) invasion robbery midterm; stayed
in concert
84 182(a)(1); Conspiracy to Guilty Middle term of
487(a) commit grand two years
theft
186.22(b)(1)(A) Gang True Consecutive three
enhancement years
12022.4(a) Firearm True Consecutive two
enhancement years
12022(a)(1) Firearm True No time imposed
enhancement
85 664; Attempted grand Guilty One-third
487(a) theft of marijuana consecutive
midterm; stayed
186.22(b)(1)(A) Gang
enhancement True Consecutive one
year; stayed
12022.4(a) Firearm
enhancement True Consecutive eight
months; stayed
12022(a)(1) Firearm
enhancement True No time imposed
89 186.22(a) Street terrorism Guilty One-third
(on or about and consecutive
between midterm; stayed
September 19–20,
2015)
4 Cervando’s indeterminate term in count 19 was triggered because of section
186.22, subdivision (b)(4)(B), i.e., home invasion robbery with the gang enhancement.
4.
91 182(a)(1); Conspiracy to Guilty One-third
487(a) commit grand consecutive
theft midterm; stayed
186.22(b)(1)(A) Gang True Consecutive one
enhancement year; stayed
92 487(a) Grand theft Guilty One-third
(marijuana) consecutive
midterm of eight
months
186.22(b)(1)(A) Gang True Consecutive one
enhancement year
93 186.22(a) Street terrorism Guilty One-third
(on or about consecutive
September 22, midterm; stayed
2015)
101 182(a)(1); Conspiracy to Guilty One-third
Health and Safety possess for sale a consecutive
Code section controlled midterm; stayed
11351 substance
(cocaine)
186.22(b)(1)(A) Gang True Consecutive one
enhancement year; stayed
102 Health and Safety Possession for Guilty One-third
Code section sale of controlled consecutive
11351 substance midterm; stayed
(cocaine)
186.22(b)(1)(A) Gang True Consecutive one
enhancement year; stayed
103 182(a)(1); Conspiracy to sell Guilty One-third
Health and Safety or transport a consecutive
Code section controlled midterm; stayed
11352(a) substance for sale
(cocaine)
186.22(b)(1)(A) Gang True Consecutive one
enhancement year; stayed
104 Health and Safety Sale or Guilty One-third
Code section transportation for consecutive
11352(a) sale of a midterm
controlled
5.
substance
(cocaine)
186.22(b)(1)(A) Gang True Consecutive one
enhancement year
105 182.5; Gang conspiracy Guilty One-third
Health and Safety to possess a consecutive
Code section controlled midterm; stayed
11352(a) substance
(cocaine) for sale
and transportation
for sale
163 664(a); Attempted home Guilty Three years;
212.5(a); invasion robbery stayed
213(a)(1)(A) in concert
186.22(b)(1)(B) Gang True Consecutive five
enhancement years; stayed
12022.4(a) Firearm True Consecutive two
enhancement years; stayed
12022(a)(1) Firearm True No time imposed
enhancement
B. Emanuel’s convictions and sentences.
Emanuel received an aggregate determinate sentence of 10 years eight months. A
consecutive aggregate indeterminate sentence of 100 years to life was imposed. The
following is a breakdown of his convictions and sentences.
Count Section(s) Offense and Verdict and Sentence(s)
enhancement(s) finding(s)
(if any) (if any)
17 182(a)(1); Conspiracy to Guilty Consecutive 25
187(a) commit murder years to life with
possibility of
parole
186.22(b)(5) Gang enhancement True 15-year minimum
parole eligibility
6.
18 182.5; Gang conspiracy to Guilty 25 years to life
187(a) commit murder with possibility
of parole; stayed
19 182(a)(1); Conspiracy to Guilty Consecutive 15
212.5(a); commit home years to life with
213(a)(1)(A) invasion robbery in possibility of
concert parole
186.22(b) Gang enhancement True No time
imposed5
12022.4(a) Firearm True Consecutive three
enhancement years
12022(a)(1) Firearm True No time imposed
enhancement
20 182.5; Gang conspiracy to Guilty Consecutive 15
212.5(a); commit home years to life;
213(a)(1)(A) invasion robbery in stayed
concert
29 182(a)(1); Conspiracy to Guilty Middle term of
496d(a) purchase or receive a two years
stolen vehicle
186.22(b)(1)(A) Gang enhancement True Consecutive four
years
30 Vehicle Code Unlawful driving or Not guilty
section 10851(a) taking a vehicle
186.22(b) Gang enhancement Not true
35 182.5; Gang conspiracy to Guilty One-third
496d(a) purchase or receive a consecutive
stolen vehicle midterm; stayed
186.22(b) Gang enhancement True No time imposed
43 182(a)(1); Conspiracy to Guilty Consecutive
520 commit extortion seven years to
life
186.22(b) Gang enhancement True
5 Emanuel’s indeterminate term was triggered because of section 186.22,
subdivision (b)(4)(B), i.e., home invasion robbery with the gang enhancement.
7.
No time
imposed6
65 182(a)(1); Conspiracy to Guilty Consecutive 25
187(a) commit murder years to life with
possibility of
parole
186.22(b)(5) Gang enhancement True 15-year minimum
parole eligibility
67 182(a)(1); Conspiracy to Guilty One-third
496d(a) purchase or receive a consecutive
stolen vehicle midterm of eight
months
186.22(b)(1)(A) Gang enhancement True Consecutive 16
months
68 Vehicle Code Unlawful driving or Not guilty
section 10851(a) taking a vehicle
186.22(b) Gang enhancement Not true
69 182.5; Gang conspiracy to Guilty Consecutive 25
187(a) commit murder years to life;
stayed
71 182(a)(1) Conspiracy to Guilty Consecutive 25
187(a) commit murder years to life
186.22(b)(5) Gang enhancement True 15-years
minimum parole
eligibility
72 182.5; Gang conspiracy to Guilty Consecutive 25
187(a) commit murder years to life;
stayed
73 664(a); Attempted murder Guilty Consecutive 25
187(a) years to life;
stayed
664(a) Premeditation and True
deliberation
6 Emanuel’s indeterminate sentence of seven years to life was triggered under
section 186.22, subdivision (b)(4)(C), because of extortion along with the gang
enhancement.
8.
186.22(b)(1)(A) Gang enhancement True No time imposed
12022.53(c) & Firearm True Consecutive 20
(e)(1) enhancement years; stayed
126 Health and Safety Possession for sale of Guilty One-third
Code section controlled substance consecutive
11378 (methamphetamine) midterm of eight
months
186.22(b)(1)(A) Gang enhancement True Consecutive 16
months
127 30605(a) Possession of assault Guilty One-third
weapon consecutive
midterm of eight
months
186.22(b) Gang enhancement Not true
163 664(a); Attempted home Guilty Three years six
212.5(a); invasion robbery in months; stayed
213(a)(1)(A) concert
186.22(b)(1)(B) Gang enhancement True Consecutive five
years; stayed
12022.4(a) Firearm True Consecutive three
enhancement years; stayed
12022(a)(1) Firearm True No time imposed
enhancement
II. Appellants Are Norteño Gang Members Who Exercised Control Over Other
Gang Members.
The prosecution established that appellants (individually and collectively) were
involved in criminal incidents from August 15, 2015, through and including September
28, 2015. Appellants do not dispute a majority of their convictions, or the jury’s true
findings. We summarize the material facts relevant to the issues raised on appeal, and we
provide additional facts later in this opinion.
In 2015, Pedro “Pistol Pete” Sanchez was the acting “regimental commander” of
Tulare County for the Norteño street gang. Sanchez would send out orders which were
filtered down to various subordinates. The Nuestra Familia, a prison gang, runs the
9.
Norteño street gang. Sanchez worked directly under a ranking Nuestra Familia member.
The gang divided Tulare County into three sections: north, central and south. Each
section had a Norteño gang leader who reported to Sanchez. Each city generally had a
Norteño “commander” who was in charge.
Appellants are brothers. The prosecution established that appellants are Norteño
gang members. When law enforcement began its investigation, Emanuel ran the south
section of Tulare County for the Norteño gang. On or about September 13, 2015,
however, Cervando took over that position from Emanuel. Appellants received orders
from Sanchez to commit crimes, and they gave orders to other gang members to commit
crimes.7 As south county leaders, appellants were responsible for all of the Norteño gang
activity within their area. During this investigation, law enforcement intercepted almost
daily communications showing appellants’ involvement in narcotic sales, assaults, violent
crimes and auto theft.
At trial, appellants repeatedly claimed that they were never gang members.
Instead, they asserted that they had only associated with Norteño gang members.
Emanuel disputed that he had any authority or power in the gang. He stated that
he was forced to work as Sanchez’s messenger. He claimed that he made drug deliveries
and collected money for Sanchez.8 He testified that Sanchez made him take possession
of a gang cell phone that was used to conduct gang business. According to Emanuel,
whenever he acted, he was simply following Sanchez’s orders, passing on Sanchez’s
7 On cross-examination, the prosecution’s gang expert admitted that he could not
state that all orders came from Sanchez, but he believed Sanchez knew about all of the
orders that appellants gave to other gang members because they were “reported back up”
to Sanchez.
8 During this investigation, appellants lived together. At one point, Sanchez moved
into appellants’ residence. Because Sanchez was with appellants, he may not have
communicated all orders through the telephone. According to Emanuel, Sanchez moved
in against appellants’ will but they felt that they could not refuse him. Cervando testified
that Sanchez “made his way into our home” and he “was living there” not by their choice.
10.
wishes, and he feared being murdered if he refused to do what Sanchez wanted. Emanuel
claimed that he was afraid of Sanchez because he knew Sanchez had caused people to be
killed.9 Emanuel believed he would be killed if he refused to act for Sanchez. He also
feared for his family, including his two minor sons.10
Cervando testified that he took control of the gang’s cell phone from Emanuel
because he knew Emanuel was in trouble. According to Cervando, Sanchez was upset
with Emanuel’s performance. Cervando said he had wanted to protect Emanuel.11
Cervando denied that he was a high-ranking Norteño gang member or that he had any
authority. He denied being able to issue fines on other gang members. Cervando
claimed that he feared Sanchez, and Cervando also feared for the safety of his minor
daughter. He knew that Sanchez had caused people to be killed. In addition, Cervando
told the jury that he had provided information to law enforcement regarding a particular
murder that Sanchez had caused, and Cervando was in fear that Sanchez might learn that
he had done so. Cervando felt like he could not say “no” when Sanchez told him to do
things. He testified that Sanchez could have had him killed. Cervando generally denied
9 At trial, the prosecution’s gang expert explained that Sanchez was believed to
have ordered three murders in Tulare County, but witnesses were afraid to come forward.
This wiretap operation was started in an effort to obtain more evidence against Sanchez.
10 To resolve a vandalism charge (§ 594, subd. (a)) when he was 18 years old,
Emanuel volunteered for service in the United States Army. His service began in August
2008. In 2010 he was deployed to Iraq for one year. He told the jury that he felt extreme
stress during his time in Iraq, and he came under fire. He was discharged from active
duty in January 2012. Emanuel claimed that, after his combat time in Iraq, he felt “very
anxious, very stressed out.” He thought someone was “after” him and he could not do
anything about it.
11 During closing argument, the prosecutor noted that Cervando was in charge only
for about two weeks before law enforcement concluded its investigation on October 1,
2015, and arrested appellants. According to the prosecutor, Emanuel had to step down as
the south county gang leader because all of his operations were a failure.
11.
having any criminal intent to commit the charged crimes. Instead, he was just keeping
Sanchez aware of events and/or following Sanchez’s instructions and orders.12
DISCUSSION
I. Cervando’s Conspiracy Conviction In Count 101 Must Be Reversed For
Insufficient Evidence; However, His Conspiracy Convictions In Counts 19,
20, 103 And 105 Are Proper.
In count 19, Cervando was convicted of conspiracy to commit a home invasion
robbery (§ 182, subd. (a)(1)). In count 20, he was convicted of gang conspiracy (§ 182.5)
to commit the same home invasion robbery.
In count 101, Cervando was convicted of conspiracy to possess cocaine for sale
(§ 182, subd. (a)(1)). In count 103, he was convicted of conspiracy to sell or transport the
same cocaine for sale (§ 182, subd. (a)(1)). Finally, in count 105, he was convicted of
gang conspiracy (§ 182.5) to sell or transport that same cocaine for sale.
Cervando contends that his conviction for gang conspiracy in count 20 must be
reversed because it was not a separate crime from his conviction for traditional
conspiracy in count 19 for the same home invasion robbery. Similarly, he argues that his
traditional conspiracy conviction in count 101 and his gang conspiracy in count 105 must
be reversed because they were part of the same crime for his conviction for traditional
conspiracy in count 103 to possess cocaine for sale, and to sell that cocaine and/or
transport it for sale.13
12 With CALCRIM No. 3402, the jurors were instructed, in part, that appellants were
“not guilty of all crimes charged if they acted under duress.” Appellants were
represented by the same defense counsel at trial. During closing argument, their counsel
asserted, in part, that appellants had acted under duress when all of the charges occurred.
According to counsel, appellants were reasonably in fear of Sanchez, and their counsel
asked the jury to find appellants not guilty of all charges.
13 As part of his series of arguments regarding these conspiracy convictions,
Cervando alternatively claims that, even if more than one conspiracy existed, the trial
court abused its discretion in failing to instruct the jury to decide whether a single
conspiracy or multiple conspiracies existed. If the court had no sua sponte duty to
12.
Cervando’s arguments are based primarily on the rule that, when a group of
conspirators agree to commit a number of different crimes incidental to a single criminal
objective, only one conspiracy exists and convictions for multiple conspiracies cannot be
sustained. (People v. Liu (1996) 46 Cal.App.4th 1119, 1133 (Liu).) In such a situation,
the issue is whether there was one overall agreement to perform various functions to
achieve the conspiracy’s objectives. (People v. Vargas (2001) 91 Cal.App.4th 506, 553–
554.)
We summarize the material trial evidence supporting these convictions.
A. Background facts.
1. Cervando’s convictions in counts 19 and 20.
Cervando acknowledges that facts support his convictions in counts 19 and 20. He
concedes that he entered into an agreement with other gang members to commit a
residential robbery, and some of them committed acts in furtherance of that agreement.
His arguments, however, pertain to an alleged improper overlapping of convictions for
the same conduct. Because Cervando concedes the underlying facts supporting these
convictions, we provide only a brief summary of the evidence.
From August 24 through August 25, 2015, law enforcement intercepted
communications involving Sanchez, appellants, and other Norteño gang members. Under
Sanchez’s orders, Norteño gang members were assembled and equipped to rob two
residences in Visalia.14
instruct in this regard, Cervando maintains that his defense counsel was ineffective in
failing to seek such an instruction. Emanuel raises a similar challenge to some of his
conspiracy convictions. We address the alleged instructional error in section III, below.
14 Sanchez informed a gang member that an “[o]ld lady” lived in one residence, and
a husband and wife were in the other. According to Sanchez, these people had “safes and
guns and gold.” Sanchez said the robberies would be “easy.” Emanuel told a gang
member that Sanchez wanted the residents “tied up” during the robberies.
13.
On August 25, 2015, numerous gang members left in two vehicles. Appellants
were in the second vehicle, which was following the first vehicle closely in an apparent
attempt to block law enforcement from coming behind it. Law enforcement determined
that the gang members were initiating the planned robberies, and they maneuvered
behind the first vehicle and ahead of appellants’ vehicle in order to initiate a traffic stop.
The first vehicle led law enforcement on a high-speed chase before the vehicle struck a
median and apparently became disabled. The five occupants, all Norteño gang members,
fled on foot, but law enforcement was able to eventually capture all of them. Five loaded
firearms, masks, and gloves were recovered.
At trial, the prosecution’s expert was presented with a hypothetical mirroring the
facts of these planned robberies. The expert opined that this operation was done with the
intent to benefit the Norteño criminal street gang.
2. Cervando’s convictions in counts 101, 103, and 105.
Similar to the convictions above, Cervando concedes that he was involved in a
conspiracy to possess cocaine for sale, and to transport that cocaine for sale. 15 As such,
we only provide a general overview of the material trial evidence supporting the
convictions in counts 101, 103 and 105.
On September 28, 2015, Cervando provided cocaine to Miguel Reyes, who is a
Norteño gang member and drug dealer. That same day, Reyes arranged to sell the
cocaine to certain unidentified suspects. After Reyes met with Cervando, law
enforcement conducted a traffic stop and detained Reyes. Reyes was in possession of
over 18 grams of cocaine.16
15 During closing argument, Cervando’s counsel conceded to the jury that Cervando
was guilty in counts 101, 103, and 105.
16 At trial the parties stipulated that Reyes had possessed cocaine.
14.
At trial, the prosecution’s gang and drug expert was presented with a hypothetical
that mirrored the facts surrounding Cervando meeting with Reyes, Reyes communicating
with potential buyers, and Reyes being stopped a short time later with cocaine in his
possession. The expert opined that the amount of drugs recovered would be for sales,
and the drugs were intended to be sold to benefit the gang.
At trial, Cervando admitted that he had received cocaine from Sanchez.
According to Cervando, Sanchez had directed him to give the cocaine to Reyes, and
Cervando did so. Cervando denied that he ever had an agreement with Reyes that the
two of them would possess cocaine for sale. He denied ever having an agreement with
Reyes that the two of them would sell or transport cocaine. Finally, he denied having a
specific intent to promote, further or assist a gang member when he gave the cocaine to
Reyes. Instead, he claimed that he was simply following Sanchez’s orders.
B. Standard of review.
When considering a challenge to the sufficiency of the evidence to support a
conviction, we review the record in the light most favorable to the judgment and decide
whether it contains substantial evidence from which a reasonable finder of fact could
make the necessary finding beyond a reasonable doubt. The evidence must be
reasonable, credible and of solid value. We presume every inference in support of the
judgment that the finder of fact could reasonably have made. We do not reweigh the
evidence or reevaluate witness credibility. We cannot reverse the judgment merely
because the evidence could be reconciled with a contrary finding. (People v. D’Arcy
(2010) 48 Cal.4th 257, 293.)
C. Analysis.
Cervando argues that only a single conspiracy existed as a matter of law for the
planned home invasion robberies on August 24–25, 2015. He likewise contends only a
single conspiracy existed as a matter of law for the cocaine that he possessed (and which
15.
Reyes transported) on September 28, 2015. He claims alternatively that multiple
prosecutions for the same offense violated principles of double jeopardy.17
As we explain below in greater detail, we reject Cervando’s first argument related
to the home invasion robberies. The convictions in count 19 (traditional conspiracy) and
count 20 (gang conspiracy) were based on different criminal agreements, and sufficient
evidence supports them. Nevertheless, Cervando’s second argument regarding the
cocaine has merit. The conviction in count 101 (traditional conspiracy to possess cocaine
for sale) must be reversed because that conspiracy agreement was part of the same
conspiracy agreement in count 103 (conspiracy to sell or transport cocaine for sale).
However, sufficient evidence otherwise supports the convictions in counts 103 and 105
(gang conspiracy). We summarize the distinctions between traditional conspiracy and
gang conspiracy before addressing Cervando’s arguments.
1. The traditional form of conspiracy (§ 182).
Under section 182, subdivision (a)(1), a conspiracy exists when two or more
persons conspire to commit any crime. (People v. Morante (1999) 20 Cal.4th 403, 416.)
The prosecution must establish that the defendant and another person had the specific
intent to agree to commit an offense, as well as the specific intent to commit the elements
of that offense. In addition, one or more of the conspirators must commit an overt act in
furtherance of the conspiracy. (Ibid.)
“The crime of conspiracy can be committed whether the conspirators fully
comprehended its scope, whether they acted together or in separate groups, or whether
they used the same or different means known or unknown to them.” (People v. Cooks
17 “The double jeopardy clauses of the Fifth Amendment to the United States
Constitution and article I, section 15, of the California Constitution provide that a person
may not be twice placed ‘in jeopardy’ for the ‘same offense.’ ‘The double jeopardy bar
protects against a second prosecution for the same offense following an acquittal or
conviction, and also protects against multiple punishment for the same offense.
[Citations.]’ [Citation.]” (People v. Anderson (2009) 47 Cal.4th 92, 103–104.)
16.
(1983) 141 Cal.App.3d 224, 312.) “A single conspiracy may exist even if some
conspirators are unaware of the identity or existence of other coconspirators.” (People v.
Ochoa (2016) 248 Cal.App.4th 15, 30.)
2. Gang conspiracy (§ 182.5).
Under section 182.5, any 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, assists, or benefits from any
felonious criminal conduct by members of that gang, is guilty of conspiracy to commit
that felony. Our Supreme Court makes it clear that traditional conspiracy under
section 182 and gang conspiracy under section 182.5 cover different kinds of conduct.18
(People v. Johnson (2013) 57 Cal.4th 250, 263 (Johnson).)
Our Supreme Court states that, once gang defendants agree to commit a specific
crime, for example, shooting a rival in retaliation, the agreement constitutes a conspiracy
to commit murder and assault. (Johnson, supra, 57 Cal.4th at p. 267.) However, such an
agreement could also constitute gang conspiracy. “Thus, just as a single agreement to kill
someone with a firearm would encompass a conspiracy to commit both murder and
assault with a firearm, a single agreement among active gang participants to commit a
shooting with other gang members would additionally encompass a conspiracy to commit
the gang participation offense. The conspiracy was completed once one of them
committed an overt act toward the shooting.” (Ibid.)
3. Reversal is not warranted for the conviction in count 20.
Cervando raises numerous arguments in support of his assertion that his
conviction in count 20 (gang conspiracy associated with the home invasion robbery)
should be reversed. He contends that the charges in counts 19 and 20 overlapped for
18 Section 182.5 was enacted by voter initiative (Proposition 21) in 2000. (People v.
Lopez (2020) 46 Cal.App.5th 505, 520, review granted July 15, 2020, S261747.)
17.
several reasons: (1) the jury was instructed, in part, to use the same 10 overt acts to find
him guilty;19 (2) these counts involved the same group of people; and (3) these charges
occurred on the same day. According to Cervando, these crimes were based on the same
motive to commit “a residential robbery with the intent to support and benefit the gang at
the order of a higher ranking gang member.” He asserts that “charging conspiracy in two
separate counts does not create two separate conspiracies from a single, general, and
overriding agreement to commit a residential robbery.” He also argues that “whether a
single conspiracy or multiple conspiracies exist cannot be decided based on the target
crimes committed in pursuit of the underlying charged conspiracies.”
We reject Cervando’s various arguments regarding the conspiracy convictions
stemming from the planned home invasion robberies. He is incorrect that his convictions
in counts 19 and 20 involved the same crime or that double jeopardy was violated.
Cervando fails to discuss Johnson. He never addresses how our Supreme Court
holds that traditional conspiracy and gang conspiracy involve “different kinds of
conduct.” (Johnson, supra, 57 Cal.4th at p. 263.) He never acknowledges that a
prosecutor may charge both traditional conspiracy under section 182 and a gang
conspiracy under section 182.5. (See Johnson, supra, at p. 267.)
Moreover, Cervando relies upon four opinions which were issued prior to the
creation of section 182.5.20 Cervando’s cited opinions had no occasion to analyze the
19 For count 19, the jury was instructed with CALCRIM No. 415 regarding the
elements necessary to establish a traditional conspiracy. Those instructions involved 10
alleged overt acts. For count 20, the jury was instructed with CALCRIM No. 1400 and
provided with the elements necessary to find active participation in a gang. For count 20,
the jury was also directed to refer back to CALCRIM No. 415 for the general conspiracy
requirements. As such, Cervando asserts that the overt acts necessary to establish the
charged conspiracies in counts 19 and 20 “overlapped.”
20 Cervando generally relied upon (1) Braverman v. United States (1942) 317 U.S.
49; (2) People v. Lopez (1994) 21 Cal.App.4th 1551 (Lopez); (3) People v. Patrick (1981)
126 Cal.App.3d 952; and (4) In re Application of Nichols (1927) 82 Cal.App. 73.
18.
distinctions between traditional conspiracy and gang conspiracy. Cases are not authority
for propositions not considered or decided. (Loeffler v. Target Corp. (2014) 58 Cal.4th
1081, 1134.)
Further, Cervando contends that the prosecutor’s closing argument established a
“theory of the case” for only one conspiracy. We disagree with Cervando’s interpretation
of the record.
The prosecutor never informed the jury, or even implied, that the charge alleged in
count 20 was duplicative of the charge in count 19. To the contrary, without specifically
mentioning the counts, the prosecutor went through the facts establishing that the gang
planned these home invasion robberies. The prosecutor recounted all of the preparation
that was involved, and how law enforcement was able to stop the planned robberies after
the gang members began driving towards the intended targets. The jury was instructed
on the different elements required for the convictions in these counts. The verdict forms
for these counts followed the charges alleged in the first amended information, and these
charges represented different crimes based on the alleged violation of different statutes.
Thus, we reject Cervando’s claims that the trial evidence and the prosecution’s argument
demonstrated a single crime.
Finally, substantial evidence supports Cervando’s convictions in counts 19 and 20.
The prosecution established that, for count 19, Cervando and at least one other individual
had the specific intent to agree or conspire to commit a home invasion robbery, as well as
the specific intent to commit the elements of that offense. In addition, at least one
member of the agreement committed an overt act in furtherance of that agreement.
For count 20, the prosecution proved that Cervando actively participated in a
criminal street gang. When Cervando did so, he knew that members of the gang engage
in or have engaged in a pattern of criminal gang activity. Cervando willfully assisted,
furthered, or promoted felonious criminal conduct (the planned home invasion robberies)
by members of the gang. The required elements for these convictions are different. For
19.
instance, Cervando violated section 182.5 as an active and knowing gang participant
when he acted with the required intent to promote, further, or assist in the commission of
a felony by other gang members. That act of assistance or promotion replaced the
required prior agreement to commit a crime that is ordinarily at the heart of a traditional
conspiracy. (Johnson, supra, 57 Cal.4th at p. 262.) Traditional conspiracy liability
attaches once an overt act is committed. In contrast, a gang conspiracy “requires the
actual commission of felonious criminal conduct as either an attempt or a completed
crime.” (Ibid.)
Based on this record, a reasonable jury could have found Cervando guilty in
counts 19 and 20 beyond any reasonable doubt. The evidence in support of these
convictions was reasonable, credible and of solid value. Thus, substantial evidence
supports these convictions. Moreover, these crimes were based on different elements.
Consequently, reversal is not warranted for one of these convictions, and this claim fails.
4. Reversal is required for Cervando’s conviction in count 101.
Cervando’s next argument has merit. On September 28, 2015, he only entered
into one traditional conspiracy to possess cocaine for sale, and to transport that same
cocaine for sale.
On September 28, 2015, Sanchez provided cocaine to Cervando, who then
provided it to Reyes. Reyes secured potential buyers. Reyes was in the process of
transporting that cocaine when law enforcement stopped him. This evidence, along with
the reasonable inferences drawn from it, overwhelmingly establish that Cervando had an
agreement to both possess the cocaine for sale, and to transport that cocaine for sale.
Respondent argues that Cervando had two separate conspiracy agreements: one
with Sanchez to possess the cocaine and a separate agreement with Reyes to transport
that cocaine. We disagree with respondent’s position because it is contrary to the
prosecution’s theory below.
20.
During closing argument, the prosecutor asserted that Cervando’s conspiracies to
sell and transport this cocaine was “simple” because Cervando spoke with Reyes
regarding the drugs, and Cervando supplied drugs to Reyes to be sold to benefit the gang.
The prosecutor’s closing argument shows that counts 101 and 103 were based on
Cervando’s agreement with Reyes. Moreover, during Cervando’s closing argument, his
counsel conceded that Cervando gave Reyes drugs, and his counsel conceded that
Cervando was guilty in counts 101, 103 and 105.
This record overwhelmingly establishes that, when Cervando took possession of
the cocaine from Sanchez, Cervando was to possess it for sale, and to provide it to Reyes
for transportation for sales. Thus, we agree with Cervando that the evidence only
establishes one controlling conspiracy agreement under section 182, subdivision (a)(1).
Consequently, his overlapping traditional conspiracy conviction cannot stand. (See Liu,
supra, 46 Cal.App.4th at p. 1133.) Contrary to Cervando’s arguments, however, his
conviction in count 105 is proper because, even though it involved an agreement to
possess, sell and transport the same cocaine, that conviction was based on gang
conspiracy. Therefore, reversal of the conviction in count 105 is not warranted. (See
Johnson, supra, 57 Cal.4th at p. 267.)
Between counts 101 and 103, the issue is which conviction must be reversed.
Cervando’s conviction in count 103 for conspiring to violate Health and Safety Code
section 11352 provides a greater sentencing triad (three, four, or five years) than his
conviction in count 101 for conspiring to violate Health and Safety Code section 11351
(two, three, or four years). Thus, it is appropriate to reverse the conviction in count 101
so that his criminal liability is commensurate with his conduct. (See People v. Rojas
(2015) 237 Cal.App.4th 1298, 1308–1309 [when a defendant is convicted of alternative
offenses, he should be left standing convicted of the alternative offenses that are most
commensurate with his culpability]; People v. Torres (2002) 102 Cal.App.4th 1053, 1059
[same].)
21.
We reverse Cervando’s conviction in count 101 for insufficient evidence. Double
jeopardy bars a retrial on the same charge. (See Lockhart v. Nelson (1988) 488 U.S. 33,
39.) Accordingly, we vacate Cervando’s sentence, and we remand his matter for
resentencing.21
II. Reversal Is Not Warranted For Emanuel’s Conviction In Count 67.
Similar to Cervando’s assertions above, Emanuel argues that his conviction in
count 67 (conspiracy to receive a stolen vehicle) must be reversed. He contends that this
crime was part of the conspiracies in count 65 (conspiracy to commit murder) and in
count 69 (gang conspiracy to commit murder). He asserts that double jeopardy prohibits
the multiple convictions.22
A. Background facts for Emanuel’s convictions in counts 65, 67, and 69.
On August 29 and 30, 2015, and then again on September 2 and 3, 2015, law
enforcement intercepted communications between Emanuel and various Norteño gang
members. Emanuel gave instructions for either a dropout or a Sureño to be shot. The
gang eventually focused on a particular target. Emanuel made it clear that Sanchez
wanted this done. Based on the intercepted communications, law enforcement believed
the Norteños were targeting a Sureño residence.
On September 3, 2015, Emanuel spoke with Eddie Mena, a Norteño gang member.
Mena asked Emanuel where he should drop off a stolen vehicle that Emanuel wanted.
They agreed the drop-off would occur at a cemetery, and Emanuel would send some gang
members (“homies”) to pick it up. Mena asked if he was going to get the vehicle back.
21 A full resentencing is appropriate when part of a sentence is stricken on review.
This permits the trial court to exercise its sentencing discretion in light of the changed
circumstances. (People v. Buycks (2018) 5 Cal.5th 857, 893.)
22 Alternatively, Emanuel maintains that the trial court abused its discretion in failing
to instruct the jury to decide whether a single conspiracy or multiple conspiracies existed.
Cervando raised a similar argument. We address the alleged instructional error in
section III, below.
22.
Emanuel advised, “I don’t think you’ll want it back after what they’re going to use it for.”
Mena laughed and said they would “just get another one.”
On September 3, 2015, law enforcement intercepted messages from gang members
who discussed hitting the target. That same day, law enforcement intercepted a
conversation between Emanuel and a Norteño gang member in which they discussed the
targeted Sureño residence. The other gang member expressed concern that children
would be at the intended target. Emanuel responded that “you can tell the difference
between a kid and a grown person.” He said, “You don’t want to go in there and start
shooting blind.”
On September 3, 2015, law enforcement observed the stolen vehicle being
delivered at the agreed upon cemetery. Some unidentified males were waiting at the
cemetery. The stolen vehicle was driven away, and a second vehicle was also driven in
tandem with the stolen vehicle. Law enforcement followed the vehicles. After driving
around for a while, the gang members eventually went to a house. Later, the second
vehicle drove around the area of the intended target before returning to that house. Later
that day, law enforcement observed three males leave the house and drive away in the
stolen vehicle. It was believed that the Norteños had commenced their plan to shoot at
the Sureño residence. Law enforcement attempted to initiate a traffic stop, and a high-
speed chase occurred. The three occupants abandoned the stolen vehicle and they fled on
foot. Two of the three suspects, both juveniles, were apprehended, while the third
suspect got away. The two juveniles were low-ranking Norteño gang members. One of
them had a loaded handgun.
At trial, the prosecution’s gang expert was presented with a hypothetical that
mirrored these facts. The expert opined that the planned operation to shoot at the Sureño
gang member was done to benefit the Norteño gang. The expert found it significant that
the gang members had obtained a stolen vehicle from outside the area before starting this
operation.
23.
At trial, Emanuel admitted that he had communicated with Mena to have a stolen
vehicle brought to the cemetery. He also admitted passing on orders from Sanchez for
gang members to “get a squad” on the intended target. However, he asserted that he did
not want this done on his behalf, and he denied ever intending to kill anyone.
B. Analysis.
Emanuel argues that his conspiracy in count 67 to take possession of the stolen
vehicle was incidental to the conspiracies to commit murder in counts 65 and 69. He
contends that his conviction in count 67 must be reversed. His argument is based on the
principle that multiple conspiracies cannot be sustained if conspirators agreed to commit
a number of different crimes incidental to a single objective. (Liu, supra, 46 Cal.App.4th
at p. 1133.)
We reject Emanuel’s assertions and we agree with respondent that Emanuel’s
conviction in count 67 is supported by sufficient evidence. Five opinions support our
conclusion that Emanuel’s agreement with Mena was a separate conspiracy from
Emanuel’s agreement with other gang members to commit the planned murder.
1. Kotteakos.
In Kotteakos v. United States (1946) 328 U.S. 750 (Kotteakos) the defendant acted
as a broker and assisted individuals in filing false loan applications. (Id. at pp. 752–753.)
Finding no connection between the borrowers, the United States Supreme Court observed
that the case presented several conspiracies patterned like a wheel with separate spokes
meeting at a common center (the defendant) without a rim enclosing the spokes. (Id. at
pp. 754–755.) While the loan applications were all linked to the defendant and had a
similar purpose, the defendant and the borrowers were not “in a common adventure.”
(Id. at pp. 768–769.) The court warned against confusing “the common purpose of a
single enterprise with the several, though similar, purposes of numerous separate
adventures of like character.” (Id. at p. 769.)
24.
2. Lopez.
In Lopez, supra, 21 Cal.App.4th 1551, an opinion which Emanuel cites from this
court,23 the same group of conspirators agreed to commit a number of different crimes
incidental to a single objective of creating methamphetamine. (Id. at pp. 1553–1554.)
The defendant was convicted of conspiracy to manufacture methamphetamine,
conspiracy to illegally dispose of hazardous substances, and conspiracy to possess
methamphetamine for sale. (Id. at p. 1554.) 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.)
3. Meneses.
In People v. Meneses (2008) 165 Cal.App.4th 1648 (Meneses), the defendant was
convicted of multiple crimes, including conspiring to steal public records and to commit
insurance fraud. (Id. at p. 1651.) The defendant had purchased police reports improperly
taken from a police department. (Id. at p. 1652.) He used information from those reports
to contact accident victims, whom he referred to attorneys and chiropractors in exchange
for fees. (Id. at p. 1653.) The defendant encouraged many of the victims to inflate their
insurance claims by receiving unnecessary medical care. (Id. at pp. 1654–1658.) The
Meneses court affirmed the defendant’s nine convictions for conspiracy. (Id. at pp. 1667,
1673.)
23 Emanuel also cites Liu, supra, 46 Cal.App.4th 1119, but Liu is not instructive in
this situation. The Liu court rejected the defendant’s argument that he had suffered
duplicative conspiracy convictions when he agreed to murder a husband and wife. (Id. at
pp. 1132–1133.) The Liu court held that the separately planned murders were separate
conspiracies. (Id. at p. 1133.) The Liu court also determined that the defendant had
separate motives in planning to kill the husband and wife, which was sufficient to uphold
the separate convictions. (Ibid.)
25.
The Meneses court rejected an argument that “one overall insurance fraud
conspiracy” had existed. (Meneses, supra, 165 Cal.App.4th at p. 1671.) Instead, the
defendant had independently obtained the stolen police reports, used them to contact
injured insureds, referred those insureds to a number of different lawyers and
chiropractors, and then encouraged the insureds to file false insurance claims with
various insurers. According to the Meneses court, the only common element is each
conspiracy was the defendant himself, who formed separate confederations with various
parties at different times for different transactions. (Ibid.) The Meneses court concluded
that the defendant’s nine convictions for the conspiracies were proper. (Id. at p. 1672.)
4. Jasso.
In People v. Jasso (2006) 142 Cal.App.4th 1213 (Jasso), a prison inmate was
convicted of three counts of conspiracy to import drugs into the prison based on
numerous phone calls to one contact, who coordinated with the wives of several different
inmates who planned to visit their husbands in prison. The contact would obtain the
drugs, package them, and give them to the visitor, who would conceal the drugs on her
body. On three different days within a two-month period, three separate women visiting
the prison were searched and found to be carrying drugs. (Id. at pp. 1216–1219.) The
jury was not instructed to determine the number of conspiracies. The Jasso court
reversed all three conspiracy convictions after concluding that a properly instructed jury
could have found a single conspiracy because all three charged “conspiracies occurred
during the same narrow time frame and involved the same modus operandi,”
notwithstanding the existence of multiple attempts on different days to smuggle the drugs
into prison using different women as couriers. (Id. at pp. 1221–1223.)
5. Kopp.
In a supplemental letter, Emanuel asked us to review People v. Kopp (2019) 38
Cal.App.5th 47 (Kopp), review granted November 13, 2019, S257844. In Kopp, two
26.
defendants were convicted of conspiracy to commit murder and conspiracy to dissuade a
witness, among other crimes. (Id. at p. 55.) On appeal, it was determined that
instructional error had occurred because the trial court had not asked the jury to
determine whether one or two conspiracies existed. (Id. at p. 56.) The Kopp court
concluded that, in contrast to Meneses, supra, 165 Cal.App.4th 1648, the same two
coconspirators (the defendants) were involved in the two alleged conspiracies. One
defendant would convey what needed to be done to prevent two key witnesses from
testifying against him, and the other defendant would communicate those instructions to
another person. (Kopp, supra, 38 Cal.App.5th at p. 86, review granted Nov. 13, 2019,
S257844.) The same evidence and overt acts where used to prove the existence of the
conspiracies. The Kopp court held this was “one of those unique cases wherein it is
apparent that only one conspiracy existed.” (Id. at pp. 87–88.) The convictions for
conspiracy to dissuade a witness were reversed because the instructional error was
prejudicial. (Id. at p. 88.)
6. The present matter.
The flaw in Emanuel’s argument is that no evidence demonstrates that Mena (who
agreed to supply the stolen vehicle) was part of Emanuel’s conspiracy to commit murder.
To the contrary, the evidence strongly suggests that Mena neither knew about the planned
murder nor was part of the conspiracies for that murder. When Emanuel spoke with
Mena, Mena asked if he was going to get the vehicle back. Emanuel advised, “I don’t
think you’ll want it back after what they’re going to use it for.” Mena laughed and said
they would just get another stolen vehicle.24
Further, Emanuel’s agreement with Mena involved a different criminal motive
than Emanuel’s agreement with other gang members to commit murder. The agreements
24 We also note that, when Mena’s name was first mentioned at trial in connection
with supplying the stolen vehicle, the prosecutor commented that Mena’s name was new
to the jury.
27.
to commit these crimes occurred at slightly different times and at different places. These
crimes targeted different victims. Thus, the relevant factors strongly suggest that
Emanuel’s agreement with Mena was a separate conspiracy. (See Meneses, supra, 165
Cal.App.4th at p. 1672 [listing factors a court should consider when determining if
multiple conspiracies overlap].)
Unlike in Lopez and Kopp, Emanuel did not commit these conspiracies with the
same group of conspirators. Unlike in Jasso, Emanuel’s crimes did not involve the same
modus operandi. Instead, this situation is more similar to Meneses and Kotteakos.
Emanuel agreed with different conspirators to complete different crimes. Although
Emanuel intended for other gang members to use the stolen vehicle when committing
murder, his criminal agreement with Mena was not part of a single criminal enterprise.
Therefore, we reject Emanuel’s assertion that “Mena’s knowledge is irrelevant to this
issue.”
Based on this record, substantial evidence supports Emanuel’s conviction in
count 67. We agree with respondent that Emanuel entered into a conspiracy with Mena
to purchase or receive a stolen vehicle (count 67), and that agreement was separate from
Emanuel’s agreement with other gang members to commit murder (count 65). Likewise,
Emanuel’s traditional conspiracy in count 65 was a separate crime from his gang
conspiracy in count 69 to commit the same murder. Thus, Emanuel’s conspiracies in
counts 65, 67 and 69 were based on different facts and elements.25 Consequently,
reversal of the conviction in count 67 is not warranted, and this claim fails.
III. Any Presumed Instructional Error Was Harmless Regarding The Disputed
Conspiracy Charges.
Appellants claim that the trial court abused its discretion in failing to instruct the
jury to decide whether a single or multiple conspiracies existed. Cervando also
25 For this reason, we likewise reject Emanuel’s assertion that his double jeopardy
rights were violated. He was neither convicted of nor punished for the same offenses.
28.
alternatively asserts that his defense counsel was ineffective in failing to request such an
instruction.
California appellate courts are currently divided on whether a trial court has a duty
to instruct a jury on single versus multiple conspiracies. (People v. Williams (2015) 61
Cal.4th 1244, 1270; Meneses, supra, 165 Cal.App.4th at p. 1668.) Two older cases hold
that no such duty exists to instruct because the issue is not a question of fact for a jury.
(See Liu, supra, 46 Cal.App.4th at p. 1133; People v. McLead (1990) 225 Cal.App.3d
906, 921.) On the other hand, more recent opinions impose a duty on a court to instruct
the jury to determine whether a single or multiple conspiracies exist. However, that duty
only arises “ ‘when there is evidence to support alternative findings.’ ” (Jasso, supra,
142 Cal.App.4th at p. 1220, quoting People v. Vargas, supra, 91 Cal.App.4th at p. 554.)
“Specifically, an instruction is warranted where the evidence could support a finding that
there was one overall agreement among the various parties to perform various functions
in order to carry out the objectives of the conspiracy.” (Jasso, supra, 142 Cal.App.4th at
p. 1220.)
Here, the parties dispute several points. They disagree whether this court should
adopt the holdings from the older versus the more recent opinions. They also disagree
whether the evidence warranted the court to instruct the jury to determine if more than
one conspiracy existed.26
We need not resolve the parties’ various disputes. Even if we presume that the
court had an obligation to instruct the jury to decide whether one conspiracy or multiple
conspiracies existed for any particular criminal incident, it is beyond any reasonable
doubt that appellants did not suffer prejudice. As such, we proceed directly to the issue
of harmless error.
26 Cervando argues that the trial court should have read the jury CALJIC No. 17.05
or a similar instruction, telling the jury to decide the factual question whether there was
one, or more than one, conspiracy.
29.
We have already determined that Cervando’s conviction in count 101 must be
reversed for insufficient evidence. That conspiracy was part of the same conspiracy in
count 103 regarding the same cocaine. However, Cervando’s remaining disputed
conspiracy convictions in counts 19, 20, 103 and 105 were different crimes, and they
were based on different facts or elements. Likewise, Emanuel’s disputed conspiracy
convictions in counts 65, 67 and 69 were different crimes, and they were based on
different facts or elements.
Based on this record, it is beyond any reasonable doubt that the presumed
instructional error was harmless. (See Chapman v. California (1967) 386 U.S. 18, 24.)
Apart from Cervando’s conviction in count 101, appellants’ remaining disputed
conspiracy convictions were proper. Thus, we can declare that the other guilty verdicts
rendered in this trial were surely unattributable to the presumed instructional error.
(Sullivan v. Louisiana (1993) 508 U.S. 275, 279.) Accordingly, the alleged instructional
error did not cause prejudice, and reversal is not warranted for appellants’ remaining
disputed conspiracy convictions.27
IV. The Jury’s True Findings Must Be Reversed For Cervando’s Firearm
Enhancements Under Section 12022.4 In Counts 19 And 163.
Cervando asserts that insufficient evidence supports the jury’s true findings
regarding the firearm enhancements found true under section 12022.4, subdivision (a), in
count 19 (conspiracy to commit home invasion robbery) and count 163 (attempted home
invasion robbery). He contends that these true findings must be reversed.
27 For the same reason, even though Cervando’s trial counsel did not request any jury
instruction regarding possible multiple conspiracies, Cervando does not demonstrate
ineffective assistance of counsel because he does not establish prejudice. (See Strickland
v. Washington (1984) 466 U.S. 668, 687–688; People v. Lucas (1995) 12 Cal.4th 415,
436 [a defendant bears the burden to establish prejudice when raising a claim of
ineffective assistance of counsel].)
30.
A. Standard of review.
We have already set forth the standard of review for a challenge to the sufficiency
of the evidence. We look for substantial evidence to support these true findings, and that
evidence must be reasonable, credible and of solid value. We presume every inference in
support of the judgment that the finder of fact could reasonably have made. We do not
reweigh the evidence or reevaluate witness credibility. We cannot reverse the judgment
merely because the evidence could be reconciled with a contrary finding. (See People v.
D’Arcy, supra, 48 Cal.4th at p. 293.)
B. Background facts.
We have already provided some of the material facts about the crimes charged in
count 19 (conspiracy to commit home invasion robbery) and count 163 (attempted home
invasion robbery). From August 24 through August 25, 2015, law enforcement
intercepted numerous communications involving Sanchez, appellants and other Norteño
gang members. They assembled and equipped gang members to rob two residences in
Visalia.
We provide some additional facts regarding the firearms used in this operation.
Emanuel informed Sanchez that the men would have black handguns for this operation.
During the planning stage, Cervando contacted Emanuel, and he told Emanuel that the
men had failed to bring bullets for “their” guns. Emanuel then reported to Sanchez that
the men did not have bullets for the firearms “that they brought.” Later, another gang
member asked Emanuel to supply a firearm (an “AK”). This gang member told Emanuel
that other gang members came with two firearms, a .40-caliber and a .22-caliber, but the
.40-caliber did not have any ammunition. Via a text message, Emanuel indicated he
would send his “AK” to use in this operation.
Cervando spoke with Sanchez, and they discussed various topics related to the
planned robberies. Cervando told Sanchez that the men brought one gun but no
ammunition, “so they went to go get ammo for it right now . . . .” Cervando and Emanuel
31.
later discussed the planned robberies. Emanuel asked if it was true that none of “their”
firearms had bullets. Cervando indicated that everyone had bullets. Another gang
member joined the call and he told Emanuel that everyone had weapons and they were all
loaded.
Finally, Emanuel spoke with a gang member and asked the gang member to get
his (Emanuel’s) firearm (“strap”). The other gang member asked Emanuel why he
needed a firearm, noting the gang members were already armed and Emanuel was not
going to go on this operation. Emanuel said he was going to use his vehicle and he did
not want to be “strapless” if the victims came out. The other gang member said the
victims were “an old guy and an old lady.”
Law enforcement intervened as the gang members were driving towards the
intended target residences. Appellants had been in a second vehicle that was closely
following the first vehicle used in this operation. The first vehicle led law enforcement
on a high-speed chase. The five gang members inside the first vehicle were eventually
taken into custody, and five loaded firearms were eventually recovered.
At trial, Emanuel testified that the firearms used in this operation were not
provided by Cervando but were supplied by other gang members.
C. Analysis.
Cervando asserts that he did not obtain or furnish the firearms that were to be used
during the planned home invasion robberies on August 25, 2015. He contends the other
men brought their own guns. He maintains that the firearm enhancements found true
under section 12022.4 in counts 19 and 163 must be reversed.28 We agree.
28 As a reminder, Cervando received an additional and consecutive two years in
count 19 for the firearm enhancement found true under section 12022.4, subdivision (a).
He received the same enhancement in count 163, but that sentence was stayed. In these
two counts, the jury also found true firearm enhancements under section 12022,
subdivision (a)(1). Cervando does not challenge the sufficiency of the evidence
32.
Section 12022.4 imposes a sentencing enhancement when a person, “during the
commission or attempted commission of a felony, furnishes or offers to furnish a firearm
to another for the purpose of aiding, abetting, or enabling that person or any other person
to commit a felony . . . .” (§ 12022.4, subd. (a).)
In this matter, no evidence establishes or even reasonably suggests that Cervando
furnished or offered to furnish a firearm to another person for these attempted robberies.
Instead, the evidence strongly infers that the gang members obtained the firearms through
other means. For instance, Cervando told Emanuel that the men had failed to bring
bullets for “their” guns. Emanuel told Sanchez that the men did not have bullets for the
firearms “that they brought.” Another gang member asked Emanuel to supply a firearm
(an “AK”). This gang member told Emanuel that other gang members came with two
firearms, a .40-caliber and a .22-caliber, but the .40-caliber did not have any ammunition.
Cervando spoke with Sanchez, and they discussed various topics related to the
planned robberies. Cervando told Sanchez that the men brought one gun but no
ammunition, “so they went to go get ammo for it right now . . . .” Cervando and Emanuel
discussed the planned operation. Emanuel asked if it was true that “none of their guns
got bullets?” Cervando indicated that everyone then had bullets. Another gang member
joined the call and he told Emanuel that everyone had weapons and they were all loaded.
Respondent argues that “Cervando was actively involved in the planning of the
robberies and in preparing the men to commit those crimes.” Respondent notes that, like
Emanuel, Cervando was a “higher-ranking” member of the Norteño gang. Respondent
emphasizes that Cervando assisted Emanuel and Sanchez in organizing the men and the
items they needed to successfully rob the two targeted residences. Respondent notes that
the intent of section 12022.4 is to punish and deter an individual from knowingly
regarding those other firearm enhancements (§ 12022, subd. (a)(1)) which the jury found
true in these counts.
33.
furnishing a gun to be used in the commission of a felony, and respondent argues that
enhancement should apply to Cervando in this situation. Respondent urges us to deny
this claim. We reject respondent’s arguments.
Although Cervando was involved in the planning of these attempted robberies, the
evidence does not demonstrate that he furnished or offered to furnish a firearm to another
person for the purpose of aiding, abetting, or enabling that person (or any other person) to
commit the attempted robberies. (§ 12022.4, subd. (a).) While it is possible Cervando
provided (or offered to provide) a firearm to one of the gang members, a mere possibility
is nothing more than speculation, and speculation does not amount to substantial
evidence. (People v. Ramon (2009) 175 Cal.App.4th 843, 851.) An inference must not
be based on suspicion, imagination, surmise, conjecture, guesswork or supposition.
(People v. Davis (2013) 57 Cal.4th 353, 360.) Instead, a finding of fact must be an
inference drawn from evidence rather than mere speculation as to probabilities without
evidence. (People v. Ramon, supra, 175 Cal.App.4th at p. 851.) The inferences from this
record do not reasonably demonstrate that Cervando provided a firearm for these crimes.
The prosecution failed to prove beyond a reasonable doubt that Cervando
furnished or offered to furnish a firearm to another for the purpose of aiding, abetting, or
enabling that person (or any other person) to commit the felonies charged in counts 19
and 163. (§ 12022.4, subd. (a).) Substantial evidence does not support the jury’s true
findings in this regard. Accordingly, we will reverse these true findings, and retrial is
barred due to insufficiency of the evidence. (See Lockhart v. Nelson, supra, 488 U.S. at
p. 39.) We remand Cervando’s matter for resentencing.29
29 To assist the parties at resentencing, we note that Cervando does not challenge the
sufficiency of the evidence regarding the other firearm enhancements (§ 12022, subd.
(a)(1)) found true in counts 19 and 163.
34.
V. The Trial Court’s Pronouncement Of Sentence Against Emanuel Was
Improper In Counts 18, 20, 35, 69, 72 and 73 Because It Imposed Both
Consecutive And Stayed Sentences. Because Of These And Other Errors We
Vacate Emanuel’s Sentence And Remand His Matter For Resentencing.
The parties agree, as do we, that the trial court pronounced incorrect sentences in
counts 18, 20, 35, 69, 72 and 73. For those counts, the court imposed consecutive
sentences but it also stayed them.30 The abstracts of judgment reflect that consecutive
sentences were imposed for these counts, and that these sentences were also stayed.
It is improper to impose a consecutive sentence and then to simultaneously stay
such a sentence. (People v. Cantrell (2009) 175 Cal.App.4th 1161, 1164.) Instead, the
trial court should have imposed a sentence on these counts and then stayed execution of
those sentences as necessary to comply with section 654; that way, if the unstayed
sentences are ever reversed, valid sentences remain. (People v. Alford (2010) 180
Cal.App.4th 1463, 1469.)
Although respondent agrees that these sentencing errors occurred, respondent
asserts that we should correct these errors on appeal. Likewise, Emanuel contends that
this court should correct these sentencing errors and modify his abstracts of judgment.
We decline to correct these sentencing errors on appeal because other sentencing issues
exist.
As we explain below in section VI, it is appropriate for the court to exercise its
discretion under Senate Bill No. 620 regarding the firearm enhancement (§ 12022.53,
subds. (c) & (e)(1)) found true against Emanuel in count 73 (attempted murder). In
addition, we agree with the parties in section VII below, that the court failed to articulate
factors in aggravation in support of the upper-term sentencing enhancements it imposed
30 Respondent concedes that the trial court should have imposed full sentences in
these counts but then suspended the execution of those sentences “without making a
determination as to whether they should be served concurrently or consecutively.”
35.
against Emanuel in counts 19 and 29. Finally, as we explain in section VIII below, other
errors exist in Emanuel’s abstracts of judgment.
Because sentencing errors occurred in counts 18, 20, 35, 69, 72 and 73, and
because other sentencing errors and clerical mistakes exist, it is appropriate to vacate
Emanuel’s sentence and remand his matter for resentencing. (See § 1260 [an appellate
court may “remand the cause to the trial court for such further proceedings as may be just
under the circumstances.”].) At resentencing, the court is directed to impose sentences in
counts 18, 20, 35, 69, 72 and 73 in a manner that complies with section 654. If those
sentences are again stayed, it is improper to also impose consecutive or concurrent terms.
VI. When Emanuel Is Resentenced, The Court Shall Exercise Its Discretion
Under Senate Bill No. 620 Regarding The Firearm Enhancement Found True
In Count 73.
At the time of Emanuel’s 2017 sentencing in this matter, the trial court was
required to impose an additional prison sentence for the firearm enhancement
(§ 12022.53, subds. (c) & (e)(1)) found true in count 73 (attempted murder). Because of
this enhancement, the court imposed but stayed an additional and consecutive 20 years in
count 73.31
After Emanuel was sentenced, the Governor approved Senate Bill No. 620 (2017–
2018 Reg. Sess.) (Senate Bill 620), which amended, in part, section 12022.53. Under the
amendment, a trial court now has discretion to strike or dismiss the firearm enhancement
that was found true in count 73. (§ 12022.53, subd. (h).)
31 In addition to this firearm enhancement in count 73, the court also imposed
additional consecutive terms for other firearm enhancements found true in counts 19 and
163. For those other firearm enhancements, however, the court imposed (but stayed) the
maximum possible sentence of three years. In raising this claim, Emanuel does not
contend that remand is required for the court to exercise its sentencing discretion under
Senate Bill No. 620 for those other firearm enhancements found true in counts 19 and
163.
36.
Respondent agrees, as do we, that this amendment applies retroactively to
Emanuel because his case is not yet final on appeal. However, respondent contends that
a remand would serve no purpose. According to respondent, no reasonable court would
exercise its discretion to strike Emanuel’s firearm enhancement. (See People v. Gutierrez
(1996) 48 Cal.App.4th 1894, 1896 [finding it unnecessary to remand matter for trial court
to consider retroactive discretionary authority].)
To support its arguments, respondent notes that, at sentencing, Emanuel’s counsel
had argued that Emanuel should not be sentenced to 25 years to life for the three
conspiracy to commit murder counts (17, 65 and 71). His counsel had noted that,
because these were conspiracy convictions, the jury had not found that Emanuel had held
an intent to kill. The court, however, imposed 25 years to life on each of those
conspiracy convictions. Emanuel received an aggregate determinate sentence of 10 years
eight months. A consecutive aggregate indeterminate sentence of 100 years to life was
imposed. Based on the court’s sentencing choices, respondent argues that a remand is not
warranted for the court to exercise its discretion under Senate Bill 620. We disagree.
Prior to sentencing, the probation officer had recommended the maximum possible
sentence for Emanuel—an aggregate determinate sentence of 11 years eight months, and
a consecutive aggregate indeterminate term of 100 years. The probation officer had
stated that aggravated terms were recommended for both the primary determinate term
and for the special allegations that contained a sentencing triad.
The court, however, did not follow the probation officer’s recommendations.32 In
count 29 (conspiracy to purchase or receive a stolen vehicle), the court went against the
32 The probation officer had advised that “[a]ggravated terms have been chosen for
the single, primary, determinate term and for the special allegations that contain a triad
because Probation found no factors in mitigation apply to this case and numerous
aggravating factors do apply.”
37.
recommendation and imposed the middle term of two years. This count was the base
term for the determinate sentence.
Whether through oversight or a decision not to follow the recommendations from
probation, the court failed to impose the maximum possible sentence against Emanuel.
As such, nothing rules out the possibility, however slight, that the court might exercise its
discretion favorably for Emanuel to strike or dismiss the firearm enhancement
(§ 12022.53, subds. (c) & (e)(1)) found true in count 73 (attempted murder). (See People
v. McDaniels (2018) 22 Cal.App.5th 420, 427–428 [remand appropriate, in part, because
sentencing court expressed no intent to impose the maximum sentence].) Moreover, it is
also possible that the court could impose a lesser-included enhancement, such as a 10-
year term under section 12022.53, subdivision (b), in lieu of the 20-year sentence it
imposed for this firearm enhancement. (See People v. Morrison (2019) 34 Cal.App.5th
217, 222–223 [trial courts are not limited to simply imposing or striking an enhancement
under section 12022.53 but may impose an uncharged lesser-included enhancement under
that section].)
Because the court did not impose the maximum sentence against Emanuel and
because we are remanding his matter for resentencing based on other issues, it is
appropriate for the court to exercise its discretion under Senate Bill 620 for the firearm
enhancement found true in count 73. We express no opinion regarding how the court
should exercise that discretion when Emanuel is resentenced.
VII. The Trial Court Failed To Articulate Reasons In Support Of The Upper-
Term Sentence Enhancements It Imposed Against Emanuel In Counts 19
And 29. At Emanuel’s Resentencing, The Court Shall Clarify Its Sentencing
Choices In This Regard.
At Emanuel’s sentencing, the trial court imposed a consecutive upper-term
sentence of three years for the firearm enhancement (§ 12022.4, subd. (a)) found true in
count 19 (conspiracy to commit home invasion robbery). In count 29 (conspiracy to
38.
purchase or receive a stolen vehicle), the court imposed a consecutive upper-term
sentence of four years for the gang enhancement (§ 186.22, subd. (b)(1)(A)) found true.
The parties agree, as do we, that the court erred when it failed to state reasons to
justify these upper-term enhancements.33 (See § 1170, subd. (c); see also Cal. Rules of
Court, rules 4.406(b)(4) & 4.420(e).)34 Despite agreeing that error occurred, respondent
nevertheless argues that Emanuel has forfeited this issue on appeal due to a failure to
object at sentencing. To overcome forfeiture, Emanuel raises a claim of ineffective
assistance of counsel, which respondent disputes.
We need not resolve the parties’ disagreements regarding forfeiture and ineffective
assistance of counsel. We have already determined that resentencing is appropriate. We
express no opinion regarding how the court should resentence Emanuel. However, when
Emanuel is resentenced, the trial court is required to state its reasons in support of its
discretionary sentencing choices. (§ 1170, subd. (c); rules 4.406(b)(4) & 4.420(e).)
VIII. Appellants’ Abstracts Of Judgment Contain Other Clerical Errors Which
Must Be Corrected.
Emanuel raises claims involving various errors in his abstracts of judgment.
Cervando also raises a claim involving an error in his determinate abstract of judgment.
Respondent agrees, as do we, that the following must be corrected.
33 Emanuel notes that, while the probation report recommended the upper terms for
these sentencing enhancements in counts 19 and 29, the report provided no specific
rationale as to why those recommendations were made. As such, Emanuel argues it does
not appear that the trial court adopted the reasoning of the probation report.
34 All future references to rules are to the California Rules of Court unless otherwise
noted.
39.
A. Emanuel’s conviction in count 43 was erroneously entered in his
abstract of judgment.
A clerical error occurred on Emanuel’s verdict form for count 43 (conspiracy to
commit extortion). Because of that clerical error (which Emanuel does not contest), 35 an
incorrect conviction was entered on his indeterminate abstract of judgment. Following
Emanuel’s resentencing, his indeterminate abstract of judgment should reflect that he was
convicted of conspiracy to commit extortion and not for the crime of extortion.
B. Emanuel is entitled to two additional days of actual custody credits and
the court shall determine if this alters his total credits.
At Emanuel’s sentencing on September 7, 2017, he was awarded actual custody
credits of 708 days. He was also awarded 106 days of “local conduct” credit, which
represented 15 percent of his actual custody credits. (See § 2933.1, subd. (a).) These
were combined to award Emanuel 814 days of “total credits” for his presentence custody.
Emanuel, however, was entitled to two additional days of actual credit. On
September 1 and 2, 2015, Emanuel spent two days in jail serving time on the charge in
count 127 (possession of an assault weapon). In addition to those two days in custody,
Emanuel was in jail continuously from October 1, 2015, through his sentencing on
September 7, 2017. At Emanuel’s sentencing on September 7, 2017, his additional two
days of credit were not awarded due to an oversight.
We agree with the parties that, instead of 708 actual days of custody credits,
Emanuel is entitled to 710 days. (See People v. Bravo (1990) 219 Cal.App.3d 729, 735
[a sentencing court must award credits for all days in custody up to and including the day
of sentencing.].) Therefore, we direct the court to award Emanuel 710 days of actual
35 In raising this claim, Emanuel cites People v. Camacho (2009) 171 Cal.App.4th
1269, 1272–1273, and impliedly agrees that the error appearing in the verdict form for
count 43 may be disregarded as a technical defect. Because Emanuel agrees that the error
in his verdict form was a mere technical defect, we take no further action other than to
direct the trial court to ensure that Emanuel’s indeterminate abstract of judgment properly
lists the conviction in count 43.
40.
custody credits and to determine if his “total credits” should be increased above 814
days.36 (See § 2933.1, subd. (a).)
C. Appellants’ abstracts of judgment must reflect each imposed fee, fine
and assessment.
At appellants’ respective sentencings, the trial court imposed various fines and
assessments totaling $585. The court stated that these specific amounts were set forth in
the respective probation reports. The probation reports itemize the various fines and
assessments. However, while appellants’ respective determinate abstracts of judgment
state that the court imposed $585 in fines, the abstracts do not delineate the statutory
basis for each amount, or separate out the individual amounts.
An abstract of judgment must itemize any imposed fines and fees. (People v. High
(2004) 119 Cal.App.4th 1192, 1200; see also People v. Sharret (2011) 191 Cal.App.4th
859, 864 [trial court’s generic reference to “ ‘penalty assessments’ ” was acceptable when
those amounts were itemized in the abstract of judgment].) As such, following
appellants’ respective resentencings, the court shall ensure that their determinate abstracts
of judgment properly itemize each imposed fee, fine and assessment.
IX. Because We Are Remanding Appellants’ Matters For Resentencing We Need
Not Address Whether The Trial Court Abused Its Discretion When Imposing
Maximum Restitution Fines; In Any Event, Appellants’ Constitutional Rights
Were Not Violated.
Appellants were represented by the same attorney during the proceedings below.
During their respective sentencing hearings, appellants’ counsel objected to the $10,000
maximum restitution fine which probation had recommended. However, appellants
36 Emanuel claims that, because he is entitled to the two additional days of actual
custody credits, then his total credits should be likewise increased by two days to 816.
He is incorrect. His local conduct credits are limited to 15 percent, and no more than 15
percent, of his worktime credit. (§ 2933.1, subd. (a); People v. Ramos (1996) 50
Cal.App.4th 810, 816.) Upon remand, we will direct the court to recalculate Emanuel’s
“total” credits based on 710 days of actual custody.
41.
neither presented evidence nor made an offer of proof demonstrating their alleged
inability to pay this amount. Without commenting on appellants’ objections and without
determining their ability to pay, the court imposed maximum restitution fines against
appellants.
Cervando asserts that the trial court abused its discretion by failing to consider his
ability to pay. Emanuel joins this claim. They contend that remand is required for the
court to determine whether they have the ability to pay, and they argue that they are
financially unable to pay this amount.37
Respondent argues that the trial court did not abuse its discretion when imposing
the maximum restitution fines against appellants. According to respondent, appellants
failed to provide evidence establishing their inability to pay, and the court was not
required to make express findings. Moreover, respondent contends that, based on
information contained in the probation reports, appellants have the ability to pay.
Respondent asserts that remand is not required for the court to consider appellants’ ability
to pay the restitution fines.
In their reply briefs, appellants cite People v. Dueñas (2019) 30 Cal.App.5th 1157(Dueñas). They contend Dueñas provides additional support establishing that the trial
court abused its discretion in failing to determine if they had an ability to pay.
37 According to Cervando’s probation report, he worked fulltime and earned $10 an
hour unloading cargo at a distribution center. He had worked there about six months. He
supported himself and his minor daughter. Prior to that job he had worked in packing
houses, in warehouses, and as a farm laborer. He had no reported assets.
According to Emanuel’s probation report, he had been unemployed for 10 months
prior to his arrest, and he was receiving financial assistance of $1,295 per month as a
disabled Army veteran, and $2,900 per month from the GI Bill. He told probation that he
suffers from posttraumatic stress disorder. Emanuel owned a 2008 BMW automobile,
which his mother was driving. He was unaware of its value or the debt against it. He
owed $4,000 in child support arrearages, which he was disputing because he claimed to
have had full custody of his children during the time these payments were due.
42.
As we discuss below, we need not resolve whether the trial court abused its
discretion when imposing the maximum restitution fines. Instead, we are remanding
appellants’ matters for resentencing. If the court again imposes restitution fines above
the statutory minimum, appellants bear the burden to prove an inability to pay.
(§ 1202.4, subd. (d).) In any event, we also conclude that Dueñas is inapplicable in this
matter, and it has no application when appellants are resentenced.
A. Because we are remanding for resentencing, we need not resolve
whether the trial court abused its discretion when imposing the
maximum restitution fines against appellants.
When appellants were sentenced in 2017, the minimum restitution fine was $300
and the maximum was $10,000. Section 1202.4 provides that a sentencing court “shall”
impose a restitution fine unless it finds “compelling and extraordinary reasons” for not
doing so and states those reasons on the record. (§ 1202.4, subd. (c).) A defendant’s
inability to pay may not be considered a compelling and extraordinary reason not to
impose a restitution fine, but an inability to pay may be considered when the restitution
fine is increased beyond the minimum amount. (Ibid.) When a restitution fine exceeds
the statutory minimum, the defendant bears the burden of proving an inability to pay. (Id.
at subd. (d).)
We are already remanding appellants’ respective matters for resentencing. As
such, we need not resolve whether or not the trial court abused its discretion when it
imposed maximum restitution fines against appellants. Instead, if the court again
imposes restitution fines above the statutory minimum, appellants bear the burden to
prove an inability to pay. (§ 1202.4, subd. (d).) “Express findings by the court as to the
factors bearing on the amount of the fine shall not be required. A separate hearing for the
fine shall not be required.” (Ibid.) We leave it to the court and the parties to resolve this
issue if it is again raised at resentencing. As we discuss below, however, Dueñas is
inapplicable in this matter and appellants’ constitutional rights were not violated.
43.
B. Dueñas is inapplicable and appellants’ constitutional rights were not
violated.
Cervando cites Dueñas, supra, 30 Cal.App.5th 1157, for the proposition that due
process is violated when a restitution fine is imposed on an indigent defendant without
first determining an ability to pay. Similarly, Emanuel asserts that Dueñas “is directly on
point” for the proposition that section 1202.4 impermissibly prohibits a court from
considering a defendant’s ability to pay.38 Emanuel asks this court to stay the execution
of a restitution fine until and unless the People demonstrate that he has the ability to pay.
He contends that the imposition of a maximum restitution fine will “limit his rights
because of his inability to pay.”39
We reject appellants’ various arguments based on Dueñas. Their respective
constitutional rights were not violated. Further, we will not stay execution of the
restitution fines against them, and Dueñas has no application when appellants are
resentenced.
Much has been written about Dueñas, both from this court and around the state.
(See People v. Lowery (2020) 43 Cal.App.5th 1046, 1052–1053 (Lowery); People v.
Aviles (2019) 39 Cal.App.5th 1055, 1063–1065.) The defendant in Dueñas lost her
driver’s license because she was too poor to pay juvenile citations. (Dueñas, supra, 30
Cal.App.5th at p. 1161.) She continued to offend because aggregating criminal
conviction assessments and fines prevented her from recovering her license. (Ibid.) The
Dueñas court described this as “cascading consequences” stemming from “a series of
criminal proceedings driven by, and contributing to, [the defendant’s] poverty.”
38 As Emanuel notes, elsewhere in the Penal Code it is declared that “[r]estitution
shall be consistent with a person’s ability to pay.” (§ 1203.2, subd. (a) [dealing with the
rearrest of a supervised person].)
39 In a footnote, Emanuel notes that his veteran’s benefits may be either greatly
reduced or completely terminated after 61 days of incarceration. (See
https://benefits.va.gov/persona/veteran-incarcerated.asp [as of December 7, 2020].)
44.
(Dueñas, supra, 30 Cal.App.5th at pp. 1163–1164.) The Dueñas court concluded the
defendant faced ongoing unintended punitive consequences because of the imposed
financial obligations. Dueñas determined those unintended consequences were
“fundamentally unfair” for an indigent defendant under principles of due process. (Id. at
p. 1168.)
The Dueñas court concluded that due process requires a trial court to conduct an
ability to pay hearing, and ascertain a defendant’s present ability to pay, before it imposes
certain assessments under section 1465.8 and Government Code section 70373. (Dueñas,
supra, 30 Cal.App.5th at p. 1164.) Dueñas also held that, although section 1202.4 bars
consideration of a defendant’s ability to pay unless the judge is considering increasing the
fee over the statutory minimum, the execution of any restitution fine imposed under this
statute must be stayed unless and until the trial court holds an ability to pay hearing and
concludes that the defendant has the present ability to pay the restitution fine. (Ibid.)
We decline to expand Dueñas’s holding beyond the unique facts found in Dueñas.
In Lowery, two defendants were convicted for a series of armed robberies, and various
fees, fines and assessments were imposed against them. (Lowery, supra, 43 Cal.App.5th
at pp. 1048–1049.) Based on Dueñas, the defendants in Lowery challenged the
imposition of some of those financial obligations. The Lowery court, however, rejected a
due process challenge based on Dueñas. The Lowery court noted the “unique concerns
addressed in Dueñas” were lacking. (Lowery, supra, at p. 1056.) Nothing established or
even reasonably suggested the two defendants in Lowery faced ongoing unintended
punitive consequences stemming from the imposition of fees, fines and assessments. The
defendants did not establish how they suffered a violation of a fundamental liberty
interest. To the contrary, the defendants had been incarcerated not because of their
alleged indigency but because they were convicted of intentional criminal acts. Because
unintended consequences were not present, the Lowery court held it was not
fundamentally unfair for the trial court to impose fees, fines and assessments against the
45.
defendants without first determining their ability to pay. (Lowery, supra, at pp. 1056–
1057.)
As in Lowery, the unique concerns addressed in Dueñas are lacking here.
Appellants do not establish the violation of a fundamental liberty interest. Their
incarcerations were not a consequence of prior criminal assessments and fines. They
were not deprived of liberty because of their alleged indigency. They were not caught in
a cycle of “cascading consequences” stemming from “a series of criminal proceedings
driven by, and contributing to, [their] poverty.” (Dueñas, supra, 30 Cal.App.5th at
pp. 1163–1164.) Appellants could have avoided the present convictions regardless of
their financial circumstances. Dueñas is distinguishable and it has no application in this
matter. (Lowery, supra, 43 Cal.App.5th at pp. 1054–1055.) In short, it was not
fundamentally unfair for the trial court to impose the restitution fine and the assessments
in this matter without first determining appellants’ respective ability to pay. Therefore,
we reject appellants’ constitutional challenges and the applicability of Dueñas in this
matter. (See Lowery, supra, 43 Cal.App.5th at pp. 1056–1057.) Accordingly, we will
not stay the execution of restitution fines against them, and Dueñas is inapplicable when
appellants are resentenced.
DISPOSITION
For Cervando
Cervando’s conviction in count 101 is reversed. The true findings in counts 19
and 163 regarding the firearm enhancements under section 12022.4, subdivision (a), are
reversed.40 Cervando’s sentence is vacated and his matter is remanded for resentencing.
Following resentencing, the court shall ensure that Cervando’s determinate abstract of
judgment properly itemizes each imposed fee, fine and assessment. The court shall
40 To assist the parties at resentencing, we note that Cervando does not challenge the
sufficiency of the evidence regarding the other firearm enhancements (§ 12022, subd.
(a)(1)), found true in counts 19 and 163.
46.
forward new abstracts of judgment to the appropriate authorities.41 In all other respects,
Cervando’s judgment is affirmed.
For Emanuel
Emanuel’s sentence is vacated and his matter is remanded for resentencing. The
court shall impose sentences in counts 18, 20, 35, 69, 72 and 73 in a manner that
complies with section 654. If these sentences are stayed, the court shall not also impose
consecutive or concurrent sentences.42 When resentencing Emanuel, the court shall
exercise its discretion under Senate Bill 620 for the firearm enhancement (§ 12022.53,
subds. (c) & (e)(1)) found true in count 73. In addition, if the court again imposes upper-
term sentence enhancements in counts 19 and 29, the court shall justify its sentencing
choices as required under section 1170, subdivision (c), and rules 4.406(b)(4) & 4.420(e).
The court shall award Emanuel 710 days of actual custody credits and determine if
Emanuel is entitled to any additional total credits beyond 814 days. The court shall
ensure that the indeterminate abstract of judgment properly reflects that Emanuel was
convicted in count 43 of conspiracy to commit extortion. Finally, the court shall ensure
that the determinate abstract of judgment properly itemizes each imposed fee, fine and
41 To assist the clerk at resentencing, we note that additional errors (not raised by the
parties) appear in Cervando’s determinate abstract of judgment: (1) The conviction in
count 20 erroneously lists section 185.5 instead of section 182.5; (2) The gang
enhancement in count 84 erroneously lists section 186.22, subdivision (b)(1)(B), instead
of section 186.22, subdivision (b)(1)(A); (3) The firearm and gang enhancements
imposed and stayed in count 85 are missing; (4) The gang enhancement imposed and
stayed in count 91 is missing; (5) The abstract fails to show that the sentence imposed in
count 101 was stayed; and (6) The abstract erroneously states that the sentence imposed
in count 104 was stayed.
42 Although Cervando did not raise a similar claim, the trial court should also
comply, if necessary, with the requirements of section 654 when resentencing Cervando.
47.
assessment. Following resentencing, the court shall forward new abstracts of judgment to
the appropriate authorities. In all other respects Emanuel’s judgment is affirmed.
LEVY, J.
WE CONCUR:
HILL, P.J.
FRANSON, J.
48.