Filed 9/10/13 P. v. Esparza CA2/6
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


THE PEOPLE,                                                                2d Crim. No. B237321
                                                                    (Super. Ct. No. MA050835-01 & 02)
     Plaintiff and Respondent,                                             (Los Angeles County)

v.

FRANCISCO VALDEZ ESPARZA et al.,

     Defendants and Appellants.


                   Francisco Valdez Esparza appeals a judgment following conviction of
conspiracy to commit murder, conspiracy to commit kidnapping for purposes of robbery,
conspiracy to possess heroin for sale, conspiracy to possess methamphetamine for sale,
kidnapping, and assault with a firearm, with findings that a principal discharged a firearm
and that the crimes were committed to benefit a criminal street gang. (Pen. Code, §§ 182,
subd. (a)(1), 187, subd. (a), 209, subd. (b)(1);1 Health & Saf. Code, §§ 11351, 11378;
§§ 207, subd. (a), 245, subd. (a)(2), 12022, subd. (a)(1), 12022.53, subds. (b), (c), (e),
186.22, subd. (b)(1)(C).) We modify the judgment to strike the criminal street gang
enhancements for count 1 and impose a minimum 15-year parole date as to that count;
reduce the conviction for count 2 to conspiracy to commit simple kidnapping and remand
for resentencing; modify the conviction for count 6 to attempted kidnapping; reverse and


1
 All statutory references are to the Penal Code unless stated otherwise. References to
sections 12021-12316 are to versions in effect prior to repeal effective January 1, 2012.
remand for resentencing regarding the gang enhancements for counts 3 and 4 and the
modified conviction for count 6; and otherwise affirm.
              Margarito Beltran Molina appeals a judgment following conviction of
conspiracy to commit murder, conspiracy to commit kidnapping for purposes of robbery,
conspiracy to possess heroin for sale, conspiracy to possess methamphetamine for sale,
attempted murder, kidnapping, assault with a firearm, false imprisonment by violence,
possession of methamphetamine for sale, possession of heroin for sale, making a criminal
threat, possession of a firearm by a felon (two counts), and unlawful possession of
ammunition, with findings that a principal discharged a firearm during commission of
certain counts, the crimes were committed to benefit a criminal street gang, and service of
two prior prison terms. (§§ 182, subd. (a)(1), 187, subd. (a), 209, subd. (b)(1); Health &
Saf. Code, §§ 11351, 11378; §§ 664, 187, subd. (a), 207, subd. (a), 245, subd. (a)(2),
236, 422, 12021, subd. (a)(1), 12316, subd. (b)(1), 12022, subd. (a)(1), 12022.53, subds.
(b), (c), (e), 186.22, subd. (b)(1)(C), 667.5, subd. (b).) We modify the judgment to strike
the criminal street gang enhancements for count 1 and impose a minimum 15-year parole
date as to that count; reduce the conviction for count 2 to conspiracy to commit simple
kidnapping and remand for resentencing; modify the conviction for count 6 to attempted
kidnapping; reverse and remand for resentencing regarding the gang enhancements for
counts 3, 4, and 8 and the modified conviction for count 6; and otherwise affirm.
                         FACTS AND PROCEDURAL HISTORY
              Russell Phillips, a self-described methamphetamine addict, obtained
methamphetamine from Molina through drug transactions conducted at Molina's Quartz
Hill apartment. In April 2010, Phillips was visiting Molina daily. In the Quartz Hill
apartment, Molina kept firearms as well as notebooks documenting drug sales. Molina's
bedroom also contained a monitor to receive video from a surveillance camera positioned
outside the apartment. Molina informed Phillips that the camera would warn of the
approach of law enforcement.



                                             2
              Esparza lived in a motor home parked in front of Molina's apartment.
Phillips referred to Esparza as "the doorman" because he answered Molina's door for
drug customers. If a customer arrived while Molina was busy with another customer,
Esparza would advise the second customer to wait. At times, Esparza stayed in the
second bedroom of Molina's apartment.
              Phillips testified that Molina obtained heroin and methamphetamine from
drug runners arriving from Mexico. Molina, Esparza, and the drug runners spoke in the
Spanish language. Phillips also heard Molina sing of the Sinaloa region, an area of
Mexico noted for the Sinaloa drug cartel.
              In August or September 2010, Phillips moved into Molina's apartment and
Molina began to "front" drugs to Phillips for resale. Phillips was soon "burned" when he
did not receive an $8,000 payment from a heroin buyer.
              Due to the $8,000 drug debt, Molina informed Phillips that he could not
leave the apartment because he must be "accounted for." At times when Phillips left the
apartment, Molina would search for Phillips and find him. Phillips worried that he was
"digging [himself] a bigger hole."
              On October 20, 2010, a man named "Luis" visited Molina, and they
conversed in the Spanish language. Phillips was present but did not understand the
conversation. When Molina left Luis alone with Phillips, Luis's demeanor suddenly
became serious. Luis then stated: "I'm here to make you pay. And you are going to
pay." Luis threatened to kill members of Phillips's family and stated: "The cartel are
killing people over 50 bucks. Now, what makes you think that nothing is going to
happen to you over [$]8,000?" Molina later joined the conversation and stated that it
would be "his ass" if he did not pay his drug suppliers.
              Phillips panicked and offered to drive to Northern California to retrieve
gold coins from his family's home. Molina provided money to rent an automobile for the
trip, and insisted that Esparza accompany Phillips. Phillips spent the money otherwise,
however, because he did not intend to retrieve the coins.


                                             3
               Kyla Gorman, Phillips's girlfriend, drove Phillips and Esparza to an
automobile rental agency. Pursuant to a plan with Gorman, Phillips ran from Esparza and
called Gorman. Gorman then met Phillips and drove him to a friend's home to wait until
she and Phillips could leave town together.
               Phillips soon desired methamphetamine. He telephoned longtime friend
Jeremy Russell and asked for drugs. Russell informed him that Molina was looking for
him and offering a reward. Phillips and Russell arranged to meet for a methamphetamine
transaction.
               "Melissa" and "Liz," friends of Phillips's girlfriend, drove Phillips to meet
Russell. At the meeting place, Phillips entered Russell's truck and noticed that Russell
was nervously looking in his rearview mirror. Phillips looked outside and saw Luis
pointing a gun toward him. A white-colored automobile then drove in front of Russell's
truck, blocking its path. Luis opened the truck door and ordered Phillips to leave the
truck and enter the white-colored automobile. Luis asked if Phillips thought he could
"take off from us."
               Phillips began walking toward the white automobile, and saw Esparza
standing outside its rear door, ordering Phillips to "[g]et in." Phillips decided to flee; he
ran in front of and along Russell's truck and into the neighborhood. As he ran, Phillips
heard Luis fire the gun two or three times and sensed projectiles "zoom[] past" his head.
               Phillips ran into the open garage of a home owned by Brian Frable, a prison
correctional officer. Phillips informed Frable that men were trying to kill him. Frable
retrieved his service revolver and stood at the front door. A white automobile came to "a
screeching halt" and three Hispanic men left the automobile and ran toward Frable's front
door. When confronted with Frable and his weapon, two of the men returned to the
automobile. Esparza, the third man, stated that Phillips "had stolen his truck." When
Frable responded that he did not care, Esparza returned to the automobile. The men then
drove in a reverse direction at a high rate of speed.



                                              4
              Phillips and Gorman later spoke with Los Angeles County sheriff's
deputies. Phillips stated that Molina sold drugs from his apartment and that Esparza was
his doorman. Gorman stated that Molina sold drugs for his brother Abel Beltran
(Beltran), a drug runner for the Sinaloa drug cartel.
              Sheriff's Deputy Richard Leon later observed Molina's apartment and
Esparza's motor home, and saw Molina and Esparza. The physical descriptions given by
Phillips of the two men were accurate. Leon also observed many individuals visiting
Molina for short periods, activity consistent with narcotics sales. Leon noted a video
camera installed outside the apartment with a view of the parking lot.
              When Esparza drove away in the motor home, sheriff's deputies stopped
and arrested him. During a search incident to Esparza's arrest, deputies found .40 grams
of methamphetamine in his pocket. In a later interview, Esparza admitted knowing
Phillips and being present when Luis shot at him. Esparza also gave Molina's apartment
as his address. In a subsequent interview, Esparza admitted falsely informing Frable that
Phillips had stolen his truck. Esparza also admitted handling a revolver that deputies
later found in the laundry room of Molina's apartment building.
              Sheriff's deputies subsequently searched Molina's apartment and found
methamphetamine, heroin, drug paraphernalia, ammunition, and notebooks recording
drug transactions. Inside the apartment building laundry room, deputies found two
loaded firearms, a digital scale, and additional methamphetamine. Phillips and Russell
identified a revolver found in the laundry room as the weapon used by Luis.
              Los Angeles Sheriff's Deputy Tyrone Berry testified as an expert witness
regarding the Sinaloa drug cartel. He opined that it is a powerful criminal organization
that commits murder and kidnapping to further its narcotics trafficking. Berry stated that
buyers who fail to pay their drug debts are threatened and sometimes killed by cartel
members. He described criminal convictions obtained in Los Angeles County against
Sinaloa drug cartel members who committed crimes in pursuit of drug debts. Given a



                                              5
hypothetical question with factual circumstances similar to the present case, Berry opined
that the crimes were committed for the benefit of the Sinaloa drug cartel.
              The jury convicted Esparza of conspiracy to commit murder, conspiracy to
commit kidnapping for purposes of robbery, conspiracy to possess heroin for sale,
conspiracy to possess methamphetamine for sale, kidnapping, and assault with a firearm.
(§§ 182, subd. (a)(1), 187, subd. (a), 209, subd. (b)(1); Health & Saf. Code, §§ 11351,
11378; §§ 207, subd. (a), 245, subd. (a)(2).) It also found that a principal discharged a
firearm during commission of certain counts, and the crimes were committed to benefit a
criminal street gang. (§§ 12022, subd. (a)(1), 12022.53, subds. (b), (c), (e), 186.22, subd.
(b)(1)(C).)
              The trial court sentenced Esparza to a prison term of 50 years to life,
imposed various fines and fees, and awarded him 774 days of presentence custody credit.
The court dismissed counts alleging attempted murder, false imprisonment, possession of
methamphetamine for sale, and possession of heroin for sale, based upon the jury's failure
to reach a verdict regarding each of those counts.
              The jury convicted Molina of conspiracy to commit murder, conspiracy to
commit kidnapping for purposes of robbery, conspiracy to possess heroin for sale,
conspiracy to possess methamphetamine for sale, attempted murder, kidnapping, assault
with a firearm, false imprisonment by violence, possession of methamphetamine for sale,
possession of heroin for sale, making a criminal threat, possession of a firearm by a felon
(two counts), and unlawful possession of ammunition. (§§ 182, subd. (a)(1), 187, subd.
(a), 209, subd. (b)(1); Health & Saf. Code, §§ 11351, 11378; §§ 664, 187, subd. (a), 207,
subd. (a), 245, subd. (a)(2), 236, 422, 12021, subd. (a)(1), 12316, subd. (b)(1).) It also
found that a principal discharged a firearm during commission of certain counts and the
crimes were committed to benefit a criminal street gang. (§§ 12022, subd. (a)(1),
12022.53, subds. (b), (c), (e), 186.22, subd. (b)(1)(C).) In a separate proceeding, Molina
admitted suffering a prior felony conviction and serving two prior prison terms within the
meaning of section 667.5, subdivision (b).


                                              6
              The trial court sentenced Molina to a prison term of 62 years to life,
imposed various fines and fees, and awarded him 774 days of presentence custody credit.
              Esparza appeals and contends that: 1) the trial court erred by denying his
motion to suppress evidence (§ 1538.5); 2) insufficient evidence supports his conviction
for conspiracy to commit murder and the criminal street gang enhancement; and 3) the
trial court erred in calculating sentence regarding the enhancements.
              Molina appeals and contends that: 1) insufficient evidence supports his
conviction; 2) the prosecutor failed to disclose exculpatory evidence; 3) the prosecutor
committed misconduct by arguing facts not in evidence and by disparaging defense
counsel; 4) the prosecutor violated the Aranda/Bruton rule2; 5) the trial court erred by
permitting Sheriff's Deputy Chris Bergo to opine that potential witnesses feared attending
trial; 6) the trial court erred by permitting the prosecutor to impeach witness Gorman with
prior inconsistent statements; 7) the trial court erred by permitting irrelevant evidence
regarding his brother Beltran; 8) the jury instructions regarding conspiracy were
inadequate; 9) the trial court erred by not instructing sua sponte concerning the number of
conspiracies; 10) the trial court erred by not instructing regarding aggravated kidnapping
(count 2); and 11) the trial court erred in calculating sentence regarding the
enhancements.
              Esparza and Molina each join the contentions raised by the other to the
extent applicable. (Cal. Rules of Court, rule 8.200(a)(5).) Esparza and Molina also raise
each of their arguments pursuant to the California and federal Constitutions.
                                       DISCUSSION
                                             I.
              Esparza argues that the trial court erred by denying his motion to suppress
evidence arising from the traffic stop of the motor home, i.e., the methamphetamine
found in his pocket, his interview statements to sheriff's deputies, and evidence


2
 People v. Aranda (1965) 63 Cal.2d 518 and Bruton v. United States (1968) 391 U.S.
123.
                                              7
discovered in Molina's apartment pursuant to a search warrant. He claims that the traffic
stop was unlawful and without probable cause to arrest because Phillips's description of
the suspects was too general to justify suspicion of any particular individual.
              Prior to trial, Esparza moved to suppress the evidence found following his
warrantless arrest. At an evidentiary hearing, Deputy Leon testified that he read a police
report concerning the Phillips shooting and learned that the suspect was a chubby
Hispanic man, five feet eight inches tall, and 45 to 50 years old. Phillips stated that the
man, known as "Pancho," lived in a motor home parked in front of an apartment building
near Avenue L10 and 50th Street in Quartz Hill. Phillips described Pancho as "the
doorman" for Molina, who sold drugs from the Quartz Hill apartment. Leon drove to the
only location in Quartz Hill that fit that description. He observed a man leave the motor
home and enter an apartment. The man matched the physical description of Pancho
given by Phillips. Leon also observed many people enter and leave the apartment within
a few minutes, consistent with drug trafficking according to his law enforcement training
and experience. (Leon had been a deputy sheriff for 13 years.) When Pancho drove
away in the motor home, Leon instructed other deputies to conduct a traffic stop.
              In ruling upon a motion to suppress, the trial court determines the facts,
selects the rule of law, and applies the rule to determine whether the law has been
violated. (People v. Brendlin (2008) 45 Cal.4th 262, 268.) We review the court's factual
findings pursuant to a substantial evidence standard. (People v. Tully (2012) 54 Cal.4th
952, 979 [in a suppression hearing, trial court determines credibility of witnesses, weighs
the evidence, and draws reasonable inferences therefrom].) We independently determine
the legality of a search or arrest upon the established facts. (Ibid.)
              Probable cause to arrest exists when the facts known to the arresting officer
would persuade someone of reasonable caution that the person to be arrested has
committed a crime. (People v. Scott (2011) 52 Cal.4th 452, 474.) Probable cause is a
fluid concept involving an assessment of probabilities in particular circumstances. (Ibid.)



                                               8
              The trial court properly denied the motion to suppress evidence because
Phillips's statements provided probable cause to arrest Esparza and search him incident to
that arrest. Phillips provided a detailed description of Esparza (known to him as Pancho),
Molina, and the Quartz Hill apartment building. He also stated that a motor home was
parked in front of the apartment building. (Humphrey v. Appellate Division (2002) 29
Cal.4th 569, 575-576 [information given by crime victim presumptively reliable because
information not secretly provided for pecuniary or other gain].) Phillips also stated that
Esparza was the doorman for Molina who sold drugs from the apartment. Phillips
described Molina as a 35-year-old balding Hispanic man and Leon confirmed that
description. Leon also observed foot traffic in the apartment consistent with drug sales.
Considered together, the factual circumstances establish probable cause to arrest.
(People v. Scott, supra, 52 Cal.4th 452, 474 [rule of probable cause].)
                                              II.
              Esparza contends that insufficient evidence supports his conviction of
conspiracy to commit murder (count 1), as well as the criminal street gang enhancement.
(§§ 182, subd. (a), 186.22, subd. (b)(1).) He asserts that insufficient evidence exists of
his specific intent to conspire or his specific intent to kill Phillips. (People v. Swain
(1996) 12 Cal.4th 593, 607 [conspiracy to commit murder requires a finding of specific
intent to kill].) To support his contention, Esparza points out that the jury could not agree
upon the count of attempted murder. He also asserts that the evidence is insufficient to
establish that he committed any crime to benefit the Sinaloa drug cartel or that he had the
specific intent to "promote, further, or assist" cartel members in any criminal conduct.
(§ 186.22, subd. (b)(1).)
              In reviewing the sufficiency of evidence to support a conviction, we
examine the entire record and draw all reasonable inferences therefrom in favor of the
judgment to determine whether there is reasonable and credible evidence from which a
reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.
(People v. Streeter (2012) 54 Cal.4th 205, 241.) Our review is the same in a prosecution


                                               9
primarily resting upon circumstantial evidence. (People v. Watkins (2012) 55 Cal.4th
999, 1020.) We do not reweigh the evidence or reassess the credibility of witnesses.
(People v. Albillar (2010) 51 Cal.4th 47, 60.) We accept the logical inferences that the
jury might have drawn from the evidence although we would have concluded otherwise.
(Streeter, at p. 241.) "If the circumstances reasonably justify the trier of fact's findings,
reversal of the judgment is not warranted simply because the circumstances might also
reasonably be reconciled with a contrary finding." (Albillar, at p. 60.)
               Conspiracy requires two or more persons agreeing to commit a crime, along
with the commission of an overt act by one person in furtherance of the conspiracy.
(People v. Homick (2012) 55 Cal.4th 816, 870.) Conspiracy requires the intent to agree,
and the intent to commit the underlying substantive offense. (Ibid.) An agreement
among alleged conspirators is often established by circumstantial evidence. (Ibid.) Thus,
the existence of a conspiracy may be inferred from the conduct, relationship, interests,
and activities of the alleged conspirators before and during the alleged conspiracy. (Ibid.)
               Sufficient evidence supports a conspiracy to commit murder. Esparza was
the doorman for the drug transactions conducted in Molina's apartment. At times Esparza
stayed in the apartment and he also used drugs there. Molina ordered Esparza to
accompany Phillips to Northern California to collect on Phillips's drug debt. After
Phillips fled from Esparza at the automobile rental agency, Molina offered "a $10,000
bounty or a hit or murder for hire" on Phillips. Luis then persuaded Russell to lure
Phillips out of hiding. When Phillips met Russell to obtain methamphetamine, Luis and
Esparza surprised him. At gunpoint, Luis ordered Phillips to enter the automobile and
Esparza held the door open and stated, "Get in." As Phillips ran into the neighborhood,
Luis fired several gunshots that passed by Phillips's head. During their neighborhood
pursuit of Phillips, Esparza ran to Frable's front door and falsely informed him that
Phillips had stolen his truck. This evidence and all reasonable inferences therefrom
establish that Esparza had the specific intent to conspire to commit murder and that he
had the specific intent to kill Phillips.


                                              10
                Although the jury could not agree upon the count of attempted murder, our
review of the conspiracy to commit murder conviction is independent of the attempted
murder count. (People v. Lewis (2001) 25 Cal.4th 610, 656 [well-settled rule that
inherently inconsistent verdicts are allowed to stand].) Moreover, an inconsistent verdict
"may show no more than jury lenity, compromise, or mistake, none of which undermines
the validity of a verdict." (Ibid.)
                Sufficient evidence and reasonable inferences therefrom also support the
criminal street gang allegation based upon the testimony of stipulated expert Deputy
Berry. Other evidence established that Phillips owed money to Molina for drugs supplied
by the Sinaloa drug cartel; Luis warned Phillips that he owed a debt to the cartel and
Phillips believed it was the Sinaloa drug cartel that fronted his drugs. Berry opined that
committing violent crimes against persons owing narcotics debts benefits the Sinaloa
drug cartel because it "sends a message to future buyers" regarding payment. Berry
testified: "This is how this organization operates. This is how they sell their narcotics,
through fear and intimidation. . . . They commit murders to enhance their drug trade [and]
increase their territory." The gang allegation thus is supported by sufficient evidence.
(People v. Albillar, supra, 51 Cal.4th 47, 63 ["Expert opinion that particular criminal
conduct benefited a gang by enhancing its reputation for viciousness can be sufficient to
raise the inference that the conduct was 'committed for the benefit of . . . a[] criminal
street gang' within the meaning of section 186.22 (b)(1)"].)
                                              III.
                Molina contends insufficient evidence supports his conviction of
conspiracy to commit murder, conspiracy to commit kidnapping for purposes of
robbery,3 attempted murder, kidnapping, assault with a firearm, false imprisonment,
making a criminal threat, and the criminal street gang allegation.
                Among other things, Molina specifically argues there is insufficient
evidence of: his participation in the agreement to lure Phillips out of hiding so that he

3
    We need not resolve this contention in view of our discussion at XIII., post.
                                               11
could be killed; his aiding and abetting a kidnapping; movement of Phillips the requisite
distance to establish kidnapping; express or implied force concerning false imprisonment;
his aiding and abetting Luis in making a criminal threat; and his involvement with the
Sinaloa drug cartel.
              Except for the kidnapping conviction (count 6), sufficient evidence and all
reasonable inferences therefrom support Molina's convictions and the criminal street
gang allegation. (People v. Streeter, supra, 54 Cal.4th 205, 241 [standard of review];
People v. Albillar, supra, 51 Cal.4th 47, 60 [same].)
              Molina used Luis to threaten Phillips, and Esparza to supervise Phillips to
prevent him from leaving town without paying his drug debt. Luis used Molina's firearm
to shoot at Phillips and Molina recovered possession of the firearm thereafter. Molina
also offered "a $10,000 bounty or a hit or murder for hire" on Phillips. This evidence and
reasonable inferences therefrom establish that Molina was part of an agreement to kidnap
and kill Phillips although he was not personally present during execution of the plan.
              Sufficient evidence also supports Molina's conviction of attempted murder
and assault with a firearm. Luis fired his firearm several times at Phillips who sensed the
bullets passing by his head, believing in error that he had been wounded. The attempted
murder was a reasonable and probable consequence of the conspiracy to commit murder.
As a conspirator to kidnap and kill Phillips, Molina also was criminally responsible for
assault with a firearm although he did not personally use the weapon. (People v. McCoy
(2001) 25 Cal.4th 1111, 1116-1118.)
              There is also sufficient evidence of implied force to support the false
imprisonment conviction. Molina informed Phillips that he was to be "accounted for,"
and that he could not leave the apartment. When he did leave the apartment, Molina
searched for Phillips and found him. Molina also instructed Esparza to accompany
Phillips to the automobile rental agency and to Northern California to retrieve the gold
coins.



                                            12
              There is sufficient evidence that Molina aided and abetted Luis's criminal
threat. After conversing with Luis in the Spanish language, Molina left Luis with Phillips
in the bedroom of Molina's apartment. Luis was aware of the amount of Phillips's drug
debt when he spoke to him. Following the threat, Molina returned to the bedroom and
stated that it would be "his ass" if he did not pay his drug suppliers.
              We have discussed the sufficiency of evidence regarding the criminal street
gang allegation. (II., ante.) The evidence was received without objection and is
sufficient to support the allegation. Molina also argues that he did not receive the
effective assistance of counsel because his attorney failed to object to evidence regarding
the Sinaloa cartel. Evidence of the cartel was relevant to the criminal street gang
allegation. Phillips testified that drug runners from Mexico delivered drugs to Molina;
when Luis threatened Phillips, Luis mentioned the cartel; and Gorman informed Sheriff's
Deputy Teresa Steen that Molina and his brother were drug runners for the Sinaloa drug
cartel.
              There is insufficient evidence, however, to support the jury's conclusion
that Phillips was moved "a substantial distance" for kidnapping (count 6). (CALCRIM
No. 1215.) Although Luis forced Phillips at gunpoint to leave the relative safety of a
truck and walk toward an automobile in which Esparza and another man waited, Phillips
walked only five feet before he broke away from Luis. The totality of circumstances does
not support the inference that the distance Phillips was moved was "substantial in
character." (People v. Castaneda (2011) 51 Cal.4th 1292, 1319; People v. Martinez
(1999) 20 Cal.4th 225, 237 ["[C]ontextual factors, whether singly or in combination, will
not suffice to establish asportation if the movement is only a very short distance"] .)
Accordingly, we reduce the kidnapping conviction to the lesser included offense of
attempted kidnapping. (Martinez, at p. 241; People v. Howard (2002) 100 Cal.App.4th
94, 99 ["[A]n appellate court may reduce a conviction to a lesser included offense if the
evidence supports the lesser included offense but not the charged offense"].)



                                              13
              Molina was connected to the crime of attempted kidnapping by his
conspiratorial association with Luis and Esparza, his motive to collect a drug debt, and
Luis's use of Molina's firearm. Sufficient evidence and all reasonable inferences
therefrom support this lesser included offense.
                                            IV.
              Molina asserts that the prosecution did not disclose exculpatory evidence
and did not correct misleading testimony regarding the discovery of passport photographs
in the possession of Beltran. (Brady v. Maryland (1963) 373 U.S. 83.)
              At trial, the prosecutor presented evidence of passport photographs of
Angel Martinez found inside Beltran's residence. Prior to trial, Phillips and Russell
identified the photographs as resembling Luis, the man who threatened and shot at
Phillips. At trial, the prosecutor and defense counsel learned that Martinez was
imprisoned at the time of the Phillips shooting. During summation, the prosecutor then
stated that Martinez was not "Luis," the man who threatened and shot at Phillips.
              The prosecutor did not commit Brady error because at trial he provided
Molina with information that Angel Martinez may have been imprisoned at the time of
the crimes committed against Phillips. (People v. Verdugo (2010) 50 Cal.4th 263, 281.)
Moreover, the prosecutor did not knowingly present false testimony or misleading
evidence because initial records were unclear whether Martinez was on parole at the time
of the present crimes. In any event, any error is harmless beyond a reasonable doubt
because evidence at trial established that Martinez was imprisoned at the time of the
shooting. The prosecutor stated during summation that the prosecution theory did not
involve Martinez. Moreover, the defense benefitted from evidence that Phillips and
Russell incorrectly identified Martinez in a photographic lineup as resembling the
shooter.
                                            V.
              Molina contends that the prosecutor committed misconduct during
summation by asserting that Gorman's trial testimony changed after she saw Molina on a


                                            14
jail bus and after Molina's attorney spoke with Gorman during Gorman's jail confinement
on drug charges. The prosecutor stated: "What do you think has been going on on that
bus ride by the defendants in talking range? She has been threatened. Then all of a
sudden [Molina's] defense attorney talks with her in private, which is not a good idea, and
then she comes into court and [changes her testimony]. . . . [T]he defense's only witness
[testified] after they were prepped by the defense attorney and after they were on the bus
ride with [Molina]. . . . It's just a smoke screen." Molina asserts that this summation
argued facts not in evidence (that Molina threatened Gorman on the bus) and disparaged
defense counsel by implying that he fabricated a defense.
                 The standards of review of prosecutorial misconduct are well settled.
(People v. Williams (2013) 56 Cal.4th 630, 671.) A prosecutor who uses deceptive or
reprehensible methods to persuade commits misconduct. (Ibid.) If the prosecutor's
actions infect the trial with such unfairness as to deny due process, the federal
Constitution demands reversal. (Ibid.) Under California law, a prosecutor who uses such
methods commits misconduct even if his actions do not result in a fundamentally unfair
trial. (Ibid.)
                 To preserve a claim of misconduct, a defendant must make a timely
objection and request an admonition. (People v. Williams, supra, 56 Cal.4th 630, 671.)
Defendant's claim is preserved, however, if an admonition would not have cured the
harm. (Ibid.) When a misconduct claim challenges comments made by the prosecutor,
the pertinent inquiry is whether there is a reasonable likelihood the jury construed or
applied the remarks in an objectionable manner. (Ibid.)
                 Molina has forfeited his claim by failing to object and request an
admonition. (People v. Williams, supra, 56 Cal.4th 630, 671.) Moreover, he has not
shown that an objection would have been futile. (Id. at p. 672 [defendant's claims
forfeited because he did not establish "how objecting would have been futile under the
circumstances"].) The challenged remarks were brief and the prosecutor reminded the
jury that it could not consider "what [counsel] say" and that "[it is] supposed to consider


                                               15
the evidence." In closing argument, Molina's attorney explained his jailhouse
conversation with Gorman and stated that he did not coach her. Given the lengthy
presentation of evidence at trial and the whole of the prosecutor's summation, there is no
reasonable likelihood the jury applied the challenged remarks in an improper manner.
                                            VI.
              Molina argues that his constitutional rights pursuant to People v. Aranda,
supra, 63 Cal.2d 518 and Bruton v. United States, supra, 391 U.S. 123 were violated
when Deputy Bergo testified that Esparza admitted in his post-arrest interview that "they
were going to take [Phillips] back to Molina to pay the debt." (Ibid. [a nontestifying
codefendant's extrajudicial statement that incriminates himself and another defendant is
inadmissible].)
              Prior to trial, the prosecutor informed the court that he had agreed with
defense counsel that the prosecution would not present evidence of Esparza's interview
statements that implicated Molina. The prosecutor added that he had so instructed his
law enforcement witnesses regarding their trial testimony. During cross-examination by
Esparza, Deputy Bergo testified that Esparza informed him that the gunman was "going
to bring [Phillips] back to the apartment." After a few questions regarding "the
apartment," Bergo testified that Esparza stated that "they were going to take [Phillips]
back to Molina to pay the debt." Molina did not object nor did he request that the court
strike Bergo's answer. (People v. Richardson (2008) 43 Cal.4th 959, 1007 [forfeiture of
asserted Aranda/Bruton error by failure to object].)
              Forfeiture aside, Bergo's testimony regarding Esparza's statement did not
violate the Aranda/Bruton rule because its incriminatory effect depended upon other
evidence, i.e., that Phillips owed a debt to Molina who demanded that Phillips pay or
suffer physical harm. (People v. Homick, supra, 55 Cal.4th 816, 874-875
[Aranda/Bruton rule applies only to facially incriminating statements; rule does not apply
if incriminatory effect depends upon link to other evidence].)



                                            16
                                Asserted Evidentiary Errors
                                     VII. & VIII. & IX.
              We briefly consider asserted evidentiary errors raised by Esparza and
Molina. First, they argue that the trial court erred by permitting Deputy Bergo to testify
that three witnesses who did not testify at trial ("Liz," "Melissa," and "Sylvia Reyes," a
tenant in Molina's apartment building) were afraid to attend trial. "Regarding gang
cases," Bergo stated: "It is very difficult to find witnesses. A lot of them go into hiding
[and] don't want to appear in court . . . . Nobody wants to step forward and testify
because they are worried about retaliation." Molina has forfeited this argument because
he did not object in the trial court on the grounds of relevance or violation of due process.
(Evid. Code, § 353, subd. (a) [objection must be specific and timely]; People v. Houston
(2012) 54 Cal.4th 1186, 1213; People v. Boyette (2002) 29 Cal.4th 381, 424 ["Failure to
object rarely constitutes constitutionally ineffective legal representation"].) Forfeiture
aside, Bergo's statements were brief and defendants suffered little prejudice compared
with the totality of the evidence.
              Second, Esparza and Molina contend that the trial court erred by permitting
the prosecutor to ask Gorman whether she informed sheriff's deputies that Russell was
involved in narcotics sales with Molina, and that Molina and Beltran worked for the
Sinaloa drug cartel. The trial court did not err. At trial, Gorman testified and initially
denied knowing Molina and Esparza or making the statement concerning their
involvement with the drug cartel. Later, Deputy Steen testified that Gorman informed
her that Phillips worked for Molina selling drugs and that Molina and Beltran were drug
runners for the Sinaloa drug cartel. Gorman's statements to Steen are prior inconsistent
statements admissible pursuant to Evidence Code section 1235. (People v. Johnson
(1992) 3 Cal.4th 1183, 1219-1220 [test for admitting witness's prior statement is
inconsistency in effect].) Moreover, the prosecutor's question to Gorman could not have
prejudiced defendants because the court instructed with CALCRIM No. 222,
admonishing that questions posed by the attorneys are not evidence and to be considered


                                             17
only "to understand the witnesses' answers." In any event, Gorman's statement was
cumulative to the testimony of Phillips and Russell regarding Molina's connection to the
Sinaloa drug cartel.
              Third, Molina contends that the trial court abused its discretion pursuant to
Evidence Code section 352 by permitting irrelevant evidence regarding Beltran, i.e.,
Beltran possessed passports in the name of "Angel Martinez"; Beltran was arrested for
possession of methamphetamine for sale; and when arrested, he possessed a note with
Molina's jail booking number.
              It is not reasonably probable that Molina would have obtained a more
favorable result absent this evidence. Phillips, Gorman, and Russell testified that Molina
was involved in the sale of methamphetamine. In searching Molina's apartment, deputies
found methamphetamine, heroin, pay/owe sheets, and firearms. This evidence
established overwhelmingly that Molina possessed drugs for sale. Molina cannot be
prejudiced by evidence that his brother also possessed and sold drugs. (People v.
Pearson (2013) 56 Cal.4th 393, 446 [test of prejudicial error concerning erroneous
admission of evidence].)
                                             X.
              We reject defendants' arguments of cumulative error. Any asserted errors
were forfeited, lack merit, or are harmless under any standard of review. "[A] defendant
is entitled to a fair trial, not a perfect one." (People v. Anzalone (2013) 56 Cal.4th 545,
556.)
                                Asserted Instructional Error
                                             XI.
              Esparza and Molina argue that the jury instructions regarding conspiracy
allowed the jury to convict on four conspiracy charges (counts 1, 2, 3, and 4) based upon
proof of agreement to commit only one target offense. They point out that the trial court
instructed using the words "and/or," as opposed to instructing separately for each count of
conspiracy and respective target offense. Thus, the court instructed that the prosecution


                                             18
was required to prove that "[a] defendant intended to agree and did agree with one or
more of the other defendants or coparticipants to commit the crimes of Murder,
Kidnapping, Possession for Sale of Heroin, and/or Possession for Sale of
Methamphetamine." (Italics added.) Esparza and Molina contend that this instructional
error relieved the prosecution of proving every element of each count of conspiracy
beyond a reasonable doubt.
              We reject defendants' strained interpretation of the instructions. The trial
court instructed that Esparza and Molina were charged with four separate counts of
conspiracy. The jury received a separate verdict form for each conspiracy count and
specific target offense, and was instructed to "decide each charge for each defendant
separately." "We do not find it reasonably likely the jury interpreted the instructions in
the manner defendant imagines." (People v. Ervine (2009) 47 Cal.4th 745, 787 [rejecting
argument that instructions allowed conviction of three counts of attempted murder based
on finding of specific intent to kill only one victim].)
                                             XII.
              Esparza and Molina argue that the trial court erred by not instructing the
jury sua sponte to determine whether there were four separate conspiracies or two – one
conspiracy to kidnap and kill Phillips, and one conspiracy to sell drugs. They assert that
the error deprived them of their constitutional rights to have a jury determine every
element of each criminal offense beyond a reasonable doubt.
              Judicial decisions are divided whether a trial court has a sua sponte duty to
specifically instruct regarding a single all-encompassing conspiracy versus multiple
conspiracies. (People v. Meneses (2008) 165 Cal.App.4th 1648, 1668-1669 [duty to
instruct where evidence supports alternative findings]; CALJIC No. 17.05.) More recent
decisions reason that it is the agreement that the conspiracy statute punishes; one
agreement cannot be considered to be several agreements because it contemplates
commission of several target offenses. (People v. Jasso (2006) 142 Cal.App.4th 1213,
1220.) Older decisions conclude that whether a single conspiracy or multiple


                                              19
conspiracies exist is not a factual question to be decided by the jury. (People v. Liu
(1996) 46 Cal.App.4th 1119, 1133 and decisions cited therein.)
              For several reasons, we reject defendants' contention. First, there is
insufficient evidence to support an alternative finding of two conspiracies. The evidence
does not support the conclusion that there were two general agreements to encompass all
the criminal acts committed. Virtually, any two criminal offenses committed by a person
or persons may be viewed in the abstract to be within a single stated objective when the
objective is stated broadly. In determining the number of agreements, we must consider
the time frame, the nature of the crimes, the motives, and location of the crimes. (People
v. Jasso, supra, 142 Cal.App.4th 1213, 1221.)
              Second, the principle conveyed by an instruction regarding a single
conspiracy or multiple conspiracies (CALJIC No. 17.05) was conveyed by the
instructions given and the verdict forms supplied. The trial court instructed that the
prosecution must prove that "[a] defendant intended to agree and did agree with one or
more of the other defendants and/or coparticipants to intentionally and unlawfully kill."
The jury was asked separately to determine an agreement on each of the remaining three
conspiracy charges. It then completed separate verdict forms for each of the four
conspiracy charges. The overt acts supporting the four conspiracies were factually
distinct. Moreover, the court instructed the jury to "decide each charge for each
defendant separately." Any error is harmless under any standard of review.
                                           XIII.
              Esparza and Molina point out that the trial court erred by instructing
regarding simple kidnapping and not aggravated kidnapping as charged in count 2,
conspiracy to commit kidnapping for purposes of robbery. The Attorney General
concedes. We note that the jury rejected the charge of aggravated kidnapping in count 6,
and convicted Esparza and Molina of the lesser offense of simple kidnapping. For that
reason and as requested by the Attorney General, we reduce the conviction on count 2 to
conspiracy to commit simple kidnapping. (People v. Edwards (1985) 39 Cal.3d 107, 118


                                             20
["Where the prejudicial error goes only to the degree of the offense for which the
defendant was convicted, the appellate court may reduce the conviction to a lesser degree
and affirm the judgment as modified, thereby obviating the necessity for a retrial"].)
                                  Sentencing Contentions
                                            XIV.
              Esparza and Molina raise several sentencing contentions regarding the
criminal street gang enhancements. The Attorney General concedes.
              First, Esparza and Molina correctly assert that the trial court may not
impose a term gang enhancement where the underlying felony already carries a life
sentence (count 1 [conspiracy to commit murder] and count 2 [conspiracy to commit
kidnapping]). When gang allegations are found true and the underlying felony already
carries a life sentence, "section 186.22, subdivision (b)(5) . . . applies and imposes a
minimum term of 15 years before the defendant may be considered for parole." (People
v. Lopez (2005) 34 Cal.4th 1002, 1004; id. at p. 1011.) We strike the terms imposed for
the gang enhancement for count 1 and order that a 15-year minimum parole date be
imposed.
              Second, Esparza and Molina point out that the trial court erred by imposing
a 20-month term (one-third the prescribed five-year term) as a gang enhancement for
count 3 (conspiracy to possess heroin for sale), count 4 (conspiracy to possess
methamphetamine for sale), and count 8 (false imprisonment - Molina only), because the
crimes are not serious felonies pursuant to section 1192.7, subdivision (c). The
applicable punishment is set forth in section 186.22, subdivision (b)(1)(A), which sets
forth punishment as two, three, or four years. We remand for resentencing regarding the
gang enhancements and counts 3, 4, and 8 (Molina only), pursuant to section 186.22,
subdivision (b)(1)(A).
              We modify the judgment for each defendant to strike the criminal street
gang enhancements for count 1 and impose a minimum 15-year parole date as to that
count; reduce the conviction for count 2 to conspiracy to commit simple kidnapping and


                                             21
remand for resentencing; modify the conviction for count 6 to attempted kidnapping;
reverse and remand for resentencing regarding the gang enhancements for counts 3, 4,
and 8 (Molina only) and the modified conviction for count 6; and otherwise affirm. The
trial court shall prepare an amended abstract of judgment that accurately reflects the oral
pronouncement of sentence and as modified herein and forward it to the Department of
Corrections and Rehabilitation.
              NOT TO BE PUBLISHED.




                                          GILBERT, P.J.


We concur:



              YEGAN, J.



              PERREN, J.




                                             22
                                    Carol Koppel, Judge

                            Superior Court County of Los Angeles

                            ______________________________


             Robert E. Boyce, under appointment by the Court of Appeal, for Defendant
and Appellant Margarito Beltran Molina.


             Cynthia L. Barnes, under appointment by the Court of Appeal, for
Defendant and Appellant Francisco Valdez Esparza.


             Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle,
Supervising Deputy Attorney General, Michael C. Keller, Deputy Attorney General, for
Plaintiff and Respondent.




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