Filed 11/26/13 P. v. Baez CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.


               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,
         Plaintiff and Respondent,                                   A134974

v.                                                                   (Alameda County
GUMARO BAEZ,                                                         Super. Ct. No. 165542)
         Defendant and Appellant.

         In this case, defendant was convicted of two murders and attempted murder of two
additional victims. He raises several issues on appeal, primarily a claim of Massiah1
error based on police contacts with a witness. He also challenges the sufficiency of the
evidence on a conviction for attempting to dissuade a witness, and the appropriateness of
a fine under former section 1202.45 of the Penal Code. On these issues, we reject his
claims and affirm the convictions. We do agree to modify the commitment to reflect the
trial court’s sentence.
                                       STATEMENT OF THE CASE
         The District Attorney of Alameda County charged defendant in an information
filed on March 7, 2011, with several serious felonies. Counts one, two and three each
alleged a charge of murder (count one, the murder of Terrance Brown on Feb. 2, 2008;
count two, the murder of Melissa Jackson on Feb. 3, 2008; and count three, the murder of
Dominique Hooper on Feb. 3, 2008; Pen. Code,2 § 187, subd. (a)); count four alleged the

         1
             Massiah v. United States (1964) 377 U.S. 201 (Massiah).
         2
             All statutory references are to the Penal Code unless otherwise indicated.
attempted premeditated murder of Isaac Johnson (§§ 187, subd. (a); 664); count five the
attempted premeditated murder of Devonne Hayward (§§ 187, subd. (a), 664); and count
six, attempting to dissuade a witness (§ 136.1, subd. (a)(2)). The information alleged as
to count one, defendant was armed with a firearm (§ 12022, subd. (a)(1)) and as to counts
two through five, personal use and discharge of a firearm causing great bodily injury
(§§ 12022.5, subd. (a), 12022.7, subd. (a), 12022.53, subds. (b)–(d) & (g)). The
information also alleged special circumstances as to counts two and three in murdering a
witness to a crime (§ 190.2, subd. (a)(10)), murder by lying in wait (§ 190.2,
subd. (a)(15)), and committing multiple murders (§ 190.2, subd. (a)(3)).
       On November 8, 2011, the jury found defendant not guilty of count one, and guilty
of the remaining five counts. They found true the allegations charged in the information.
       On February 27, 2012, the trial court at sentencing declared the evidence
“overwhelming” and the murders especially “heartless.” The court sentenced defendant
to two consecutive life terms without the possibility of parole on counts two and three as
well as a consecutive term of 100 years to life for the firearm enhancements in counts two
through five. Additionally, the court imposed an aggregate term for the remaining
counts, to run concurrent with the sentence imposed on count two.
       Defendant filed his notice of appeal on March 1, 2012, in timely fashion.
                               STATEMENT OF FACTS
       On February 3, 2008, Isaac “Ike” Johnson and a friend Devonne “Von” Hayward
were watching the Super Bowl at the home of Hayward’s brother, Rudy. They smoked
marijuana cigarettes during the game. After the game, Hayward and Johnson drove
Hayward’s Chevrolet van around East Oakland. During this time Hayward saw
defendant, a friend, along with Devashawn “DVD” Walker. DVD is Black and defendant
Hispanic. Hayward gave the two men a ride in the van.
       This date was the one-year anniversary of the death of defendant’s brother, Adiel
“Dilio” Meza, who had been shot by a police officer. Hayward and Johnson were friends
of Dilio and each had a tattoo stating “rest in peace, Dilio.” However, Hayward learned
that defendant suspected he was responsible for the death of Dilio.

                                             2
       Upon entering the van, defendant sat directly behind Hayward, the driver, and
Walker was behind passenger Johnson. The group drove to San Leandro to pick up
teenagers Melissa Jackson and Dominique Hooper. The girls, who were cousins, sat on
the rear bench of the vehicle. The plan was to drop the girls off at a music studio in
Oakland.
       Eventually, Hayward stopped the van on Havenscourt, near East 14th Street in
Oakland. As he prepared to drive away, shots were fired from inside the van. Johnson
indicated nothing really took place before the shooting. There had been no angry words.
Johnson was hit first by bullets. Johnson believed the bullets came diagonally from the
left rear of his position. This was the location of defendant in the van. Johnson believed
defendant was the shooter because of the angle at which he was hit, and because he was
not shot in the back of the head directly. Johnson was hit in the left side of his neck and
left shoulder at the top of his arm. In an effort to escape, Johnson jumped out of the
moving van, sustaining a broken arm in the process. Once outside the vehicle, Johnson
heard more shots in the van.
       It seems defendant fired at Hayward next. Hayward was hit in the back of the
neck, on the left side. Once hit, Hayward was unable to move his arms or legs. He was
subsequently put on basic life support by medics at the scene. Defendant then shot
Dominique Hooper in the chest and Melissa Jackson numerous times. In fact, she
sustained 15 separate wounds. One entered her ear and exited her upper lip. While
defendant did the shooting, Walker took control of the van and headed toward the area
where defendant and Walker lived. The van crashed into a parked car at Outlook Avenue
and 65th Avenue.
       A witness, Jonathan Clancy-Tone, heard the crash. Clancy-Tone saw an Hispanic
male, later identified as defendant, standing by the van, close to a streetlight. The witness
heard defendant yelling at Walker, “You crashed the car.” Clancy-Tone asked Walker if
he needed assistance as the latter was standing outside the driver’s side of the van. Both
defendant and Walker ran from the scene toward Seminary, near each man’s home.


                                             3
          Looking inside the van, Clancy-Tone saw three people. Hayward was on the
floorboard between the driver’s and front passenger’s seats, feet tangled in the pedals of
the van. The body of Melissa was on top of Hayward’s left arm. Dominique Hooper
appeared alive at the time, but she died at the scene.
          Oakland homicide investigators spoke with victim Johnson at Highland Hospital.
At first, Johnson stated he did not know the persons picked up by Hayward in the van. At
the preliminary hearing, Johnson did not identify defendant as the shooter in the van.
          Later, however, Johnson did state defendant was the man behind Hayward and that
Walker was the person who sat behind Johnson. During these meetings, Johnson
expressed the fear he had about disclosing the identity of defendant and possible
retaliation he might suffer. Sobbing, he indicated a fear his life would be on the line for
talking. At the trial, Johnson indicated the talk on the street was that “something might
happen to me, something might happen to my family.” Even at the preliminary hearing,
Johnson indicated this fear prevented him from initially telling the entire truth to the
police.
          At first, homicide personnel could not speak with Hayward because of his medical
condition. He had tubes down his throat and was hospitalized for three or four weeks
before being released to a rehabilitation center. When released, he needed a wheelchair
and then a walker to move about. Eventually police obtained a statement from Hayward.
At the trial, Hayward still had not recovered fully from his wounds. His left leg and arm
were limited because of his wounds. He had to wear a brace and was not able to work.
Hayward testified at trial he did not know who shot him, recalling nothing about the
incident in the van. However, the prosecutor then played audiotapes of Hayward’s
conversations with police inspectors for the jury. Information provided by Hayward
during these taped police interviews was his personal recall. In the tapes, Hayward stated
that Johnson was the first person shot by defendant. After that, defendant, directly
behind Hayward, shot him. The angle of his injuries supported his opinion, since the
bullet entered the left side of his neck.


                                              4
       The van itself was the home of considerable ballistic evidence, including cartridge
cases, fired bullets and jacket pieces. Firearms expert Mark Bennett concluded the
bullets and casings were each fired by the same nine-millimeter Luger weapon. He also
concluded the same weapon was used to kill Terrance Brown approximately 48 hours
before the shooting in the van.
       Defendant was arrested by police on February 6, 2008. While conducting a search
of his home, police found several items of ammunition, including the type used in the
shooting incidents, namely Remington and Winchester nine-millimeter Luger
ammunition. At the Terrance Brown homicide scene, “RIP Dillio” and “6400” were
written in the condensation on the hood of a vehicle. A group that dealt narcotics and
committed other crimes on the 6400 block of MacArthur in Oakland was known as
“6400.” Terrance Brown was the half-brother of a lieutenant in the Oakland Police
Department.
       A beanie was found at the scene of the Brown homicide. DNA analysis linked the
beanie to Walker. The probability of a random DNA match between the beanie DNA and
Walker was one in quadrillions.
       Danny McNary was arrested on May 25, 2009. He was 22 at the time and arrested
for robbery. He was booked into Santa Rita Jail. Importantly, he had known defendant
since he was six years old and the two were close friends. McNary also knew Dilio and
another brother of defendant, Javier (Javi), who was also in custody at this time. While
in custody, McNary received a jailhouse letter, also known as a “kite,” from defendant.
Defendant wanted to know if McNary wanted some food. Passing of kites among
inmates is done by other inmates, acting as custodians.
       At trial, McNary identified People’s exhibit No. 53B as the initial kite he got from
defendant. He did not recall if he advised police about this letter.
       McNary did recall providing Sergeant Cruz with a second kite in an envelope. At
trial, the witness admitted he wrote this kite himself, and not defendant. McNary testified
Sergeant Cruz told him what facts to put in this second transmittal. At the preliminary
hearing, McNary testified defendant sent this kite labeled exhibit No. 4. Of course,

                                              5
McNary testified he told police and the prosecutor he feared for his safety after turning
over the kites.
       McNary related he was in custody on the day of the van shooting. He did not see
any police reports on the shooting incident regarding defendant’s case or Dilio’s
shooting. He did not know the identity of the officer who shot Dilio. Audiotapes of his
interview with the police were played to the jury as exhibits Nos. 47A, 48A, and 49A.
Transcripts were provided but not admitted.
       The tapes along with the testimony of Sergeant Cruz contradicted the testimony of
McNary at trial. This evidence showed that on May 26, 2009, the witness contacted
homicide officers and suggested he had information concerning defendant’s case.
Sergeants Cruz and Van Sloten visited McNary on May 26, 27, and June 2, 2009. Cruz
testified he has a policy when interviewing witnesses such as McNary not to disclose any
details of a case, and he specifically refrained from such disclosures with this witness.
       During the interview of May 27, McNary told Cruz he spoke with others and
learned defendant committed the murders in the van as revenge for the death of his
brother Dilio. Defendant believed Hayward was responsible for the death because he did
not give Dilio a ride home the night he died. McNary said he learned defendant shot
Hayward, Johnson, and the two girls. The two girls were killed to avoid having
witnesses. McNary also stated that Derek “Little D” Powell told him that defendant was
in “D pod” next to Powell. At the time, McNary was in “C pod” and eventually got
moved to “A pod” when he received his first kite from defendant.
       The first kite McNary got from defendant stated: “D-Ray. What’s up Bra? I just
found out you in A pod. I’m gonna send you some food. Write me back right now Bra
and tell me what cell you in so I can tell the pod worker to send it to you. Bra Bra. Shit,
You know (Rudy) over here. That nigga hella scary. When he seen me it was like seein’
a ghost. I woulda got him, but I’m gonna use him to get to Von. Feel me? I’m trying to
get out. Pumpin’ fear in these niggas’ hearts. This nigga know I shot his partner and
scared fuck. This nigga scared fuck. Fuck this nigga though. What you in here for Bra


                                              6
Bra? Try to get over here with Lil D and me. Shit. Hopefully, Lil D go home tomorrow.
Love you Bra Bra.”
        McNary indicated that Hayward is referred to as “Von” on the street, and that
Lil D is Derek Powell.    Mc Nary also stated that Rudy is Hayward’s brother. Saying
Rudy is “scary” means that Rudy is afraid of defendant.
        Cruz then asked McNary if defendant expected him to respond when he told
McNary to write him back. McNary believed defendant did want a reply by the witness.
Cruz then advised McNary that if he responded, he should not ask any questions
regarding this case. “[D]o whatever normal activity . . . that you would normally do.” If
McNary learned of any further retaliation to those outside, he needed to alert Cruz.
        Based on the disclosures by McNary concerning retaliation, Cruz obtained a
search warrant for the cells of Derek Powell and defendant, which were served on June 2,
2009.
        While executing the warrants at the jail, an officer alerted Cruz that McNary had
received another kite from defendant. In a tape presented at trial, McNary told Cruz
about the contents of the second kite: “Bra what’s good? Yeah, though you could see it
all in Tube’s eyes, I ain’t gonna get nothin’ out of it if I get down with him. All I can do
is have him get to Von or somethin’ but shit, Bra, cuzzo had that comin’ to him that
night. . . . DVD, Mac and me walkin’ to the store right? We see cuzzo in the van. Mac
like, ‘Let me see the thing.’ So I hand him the thing. Mac gonna shoot in the air. Bra so
I got hella mad so later, I see cuzzo. It’s me and DVD. I wave him down. I play it cool
like. ‘Bra, what’s up? Let’s get a bottle.’ So we bounced in so I’m like, my first chance,
I’m on him. This nigga bounced on the way way. Next thing I know, two bitches bounce
in so I’m like, ‘Fuck.’ So he ridein’ and this nigga parked on Havenscourt just out of the
blue so then I say, ‘Bra, why big Bra didn’t get home that night?’ This exactly what he
told me. ‘I don’t know. The nigga was high.’ He ain’t give a fuck so Ike started
laughing at that. So then I look at DVD, right? I give him that look and the next thing
you know, Von catch one through the neck. God was with him. Like as soon as the
trigger was getting squeezed he jerked up to—at that moment to cut on the van and soon

                                              7
as I thought he was dead, everybody had to go. Bra, Ike catch one to the side of his neck.
Like soon as the bullet hit him, he fell out the van. He knew that shit was comin’. After
that, mother fuckers had to make sure the bitches was gone. By the time they stop
screamin’, the bullets ran out. The whole time DVD was driving. That nigga was
nervous. He drivin’ hella dumb so these niggas slap on 65th so we bounce out and cut. I
thought Von was dead. As soon as he got shot, his body was lifeless but if—if the broads
were still alive, it would’ve really been over. Everybody know you can’t leave witnesses
so the outcome was Von and Ike stayed alive. Now both of them niggas givin’
statements on me. They left hella shit out but they say I did it. Bra if them niggas get on
the stand, its ugly. I don’t think I’m ever gettin’ out. Shit, they talkin’ about the death
penalty.”
       McNary disclosed to Cruz the above kite came in a sealed envelope. He gave
Cruz this item along with the kite. Subsequent DNA analysis of the saliva on the
envelope matched defendant’s DNA, with a probability ratio of one in one sextillion.
       The defense played a tape of an interview of McNary with its investigator made on
September 20, 2011, wherein McNary acknowledged he made up a lot of information in
the kites to help him receive a better deal from the district attorney. He acknowledged he
wrote the second kite and not defendant; the second kite was passed to Cruz on June 2,
2009. McNary met with the defense investigator to clean up what he did.
       During the trial, the prosecution confronted McNary regarding his statements to
the defense investigator indicating he was the author of the June 2 kite. The district
attorney played a tape made by Inspector Harry Hu and McNary after McNary
acknowledged at his October 13, 2011 hearing that he, not defendant, created the second
kite. McNary did not know his conversation with Hu was being recorded. In it, McNary
indicated he was making the retractions for the good of his family, especially his son. He
was concerned that someone would confront him or his child on the streets and told Hu,
“I don’t know where it’s gonna to come from. . . . I’m looking out for my son.” McNary
described the brother of defendant, Javi, as “the type of person where if I got into it with
his brother [(defendant)], and he can’t get me, he’s gonna get my family.” Inspector Hu

                                              8
then asks McNary, “So what you’re doing is just protecting yourself. . . . Protecting your
son and your family.” And McNary replies, “Yeah.”
       The jury was allowed to compare the handwriting of defendant and McNary along
with the two kites received in evidence. Sergeant Cruz was allowed to state the
handwriting in the two kites were similar and each kite contained similar details and
phrases.
       Besides the two kites described above, the prosecution introduced papers found
during a search of Derek Powell’s cell. A birthday card was found containing a sheet of
paper with “BGL-747 Gumaro Baez” (defendant’s jail number) and two other letters.
One of the letters was addressed to “Randa.” Miranda Smith was the girlfriend of
defendant. In the first letter, defendant wrote: “Randa this the get down. They charged
DVD with the shit I’m charged with, and another murder. They found his hat at that
other murder scene. The reason they linked the murders is because ballistic tests show
the same gun was use at both the scenes. Feel me. The only reason I’m still in here is
because Von & Ike statements, and I’m not positive DVD gave a statement on me. I
thought he was the confidential informant. It really don’t matter if he saying I did it cuz
if he is, it’s go look like he trying to save his self. Baby if Von & Ike don’t come to court
I’m go be home soon. . . . Without their testimony they ain’t got shit on me.” He goes on
to point out it all depends on Von and Ike not taking the stand.
       A second letter in the card indicated that Miranda should help create a false alibi
for defendant during the weekend Brown was killed and the van shootings took place. In
the first part of this letter, defendant advises “Baby” about the alibi. “Baby this just in
case OK. My lawyer said you ain’t gone have to because the case is weak if the
witnesses don’t show up, witch they not. (Ike & Von). But it’s always good to stay
prepared. If they still try to ask my whereabouts this matches the timing with you,
Jonique, me & Bitch ass. . . . Tell Jonique that too blood. Like I said I don’t think ya
gone have to but we got to stay two steps ahead of these crackers.”
       Defendant then proceeded to dictate the alibi for the weekend crimes. “I was with
my Husband all Friday, Saturday, Sunday. I came over Friday after school. Only time

                                              9
he’ll drop me off to get dress. He dropped me off Saturday morning, and Sunday
morning, and soon as I finish getting dressed he’ll come pick me up. I recall Sunday we
was drinking (me, Jonique and his friends . . . DVD, Kyn, Derek, Mac, Rob). My sister
came and picked me & Jonique up at around 11–11:30 because I had school in the
morning. She told me she was go come get me at 11 no matter what. So she did. So
when I got home I thought if I asked my husband to come spend the night. I text message
his phone a couple times. He said he texted me back but I never receive his message.
But I remember like around 1 or something he knocked on my door. And he spent the
night. I don’t remember who dropped him off. I didn’t ask I was with him all Monday,
Tuesday, and Wednesday . . . . [¶] PS Babe try to remember the best you can what you
told the police and don’t try switching it up. Member they recorded you. Study it. It like
a test. Matter of fact harder. Just in case OK Randa. Love you. Memorize that time 11–
11:30.”
      The prosecution introduced phone records between Miranda Smith and defendant
showing that she repeatedly called defendant 20 minutes before the van murders. Her
unanswered calls to defendant were made from her home in Alameda.
      The defense presented no witnesses. Instead, counsel contended Walker shot all
the victims in the two crime scenes, and defendant had no responsibility for any
shootings. Defendant was the “victim” of growing up on Oakland streets. He argued
McNary authored both of the kites he provided police.3
I. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN RECEIVING
   THE TWO JAILHOUSE LETTERS DESCRIBED IN THE TESTIMONY OF
   McNARY
      The thrust of defendant’s case hinges on his claim the court committed reversible
error when it allowed two jailhouse letters in evidence. He argues the police inspectors


      3
        On July 27, 2010, Devashawn Walker pleaded no contest to one count of
voluntary manslaughter, a lesser included offense to the murder of Melissa Jackson
(count two). On October 15, 2010, Walker was sentenced to a term of 11 years in state
prison. The district attorney did not allege Walker personally and intentionally
discharged a firearm in the various murders and attempted murders.

                                            10
violated the principles developed in Massiah, supra, 377 U.S. 201, when they involved
McNary as an informant.4
       Unfortunately for defendant, he acknowledges Sergeant Cruz gave several
admonishments and cautions to McNary regarding contact with defendant. In his
opening brief, he indicates Cruz told McNary not to correspond with defendant
concerning the case. Cruz told McNary not to ask any questions about the case. He also
notes McNary was cooperating because he had an implied promise from Cruz the officer
would help him in his robbery case by contacting the district attorney and asking for
consideration for his assistance.
       In no way can defendant’s Massiah challenge preclude the jury’s consideration of
the letters found in the search of Derek Powell’s cell and the incriminating statements
made by defendant. The seizure and admissibility of the materials is not challenged by
defendant in this appeal.
       Regarding the McNary papers, defendant contends McNary was acting as a police
informant violating defendant’s Sixth Amendment right to counsel. Counsel argues Cruz
“encouraged” McNary to obtain further messages from defendant. The defense maintains
reversal is necessary because defendant’s incriminating remarks in the letters dealing
with his responsibility for the homicides was a central feature of the prosecution’s case.
Defendant contends it cannot be shown beyond a reasonable doubt the error did not
contribute to the verdict.
       We find the contention without merit. There is substantial evidence to support the
trial court’s determination there was no Massiah violation.
       Massiah holds that once adversarial criminal proceedings have been started
against the accused, his Sixth Amendment right to counsel is violated if a state agent
deliberately elicits incriminating statements without counsel present. (Massiah, supra,

       4
          It should be noted that at the preliminary hearing, defense counsel believed the
May 26, 2009 statements by McNary to Cruz were “volunteered.” The defense indicated
he was not maintaining McNary was acting as a government agent when he received the
first kite from defendant.

                                            11
377 U.S. 201, 206–207; In re Neely (1993) 6 Cal.4th 901, 915.) However, defendant
must establish the informant was acting as a government agent and the informant
deliberately elicited incriminating statements. (Kuhlmann v. Wilson (1986) 477 U.S. 436,
459; United States v. Henry (1980) 447 U.S. 264, 270.) A person acts as a government
“agent” when he or she is “ ‘under the direction of the government pursuant to a
preexisting arrangement, with the expectation of some resulting benefit or advantage.’ ”
(People v. Fairbank (1997) 16 Cal.4th 1223, 1246–1249 (Fairbank), italics added; In re
Neely, at p. 915.) However, when the informant “ ‘acts on his own initiative,’ ” even if
he personally questions the accused, “ ‘the government may not be said to have
deliberately elicited the statements.’ ” (Fairbank, at p. 1247; see also In re Neely, at
p. 915; People v. Gonzalez (1990) 51 Cal.3d 1179, 1240.)
       Evidence of a preexisting arrangement with the government does not have to be
explicit or formal in nature. It can be inferred from the evidence where the parties
behave in a manner demonstrating there is a compact between them, following a
particular course of behavior, over a period of time. (In re Neely, supra, 6 Cal.4th at
p. 915.) Prior evidence of a relationship can support this fact by implication. However,
more than a cooperative relationship is needed to make an informant a government agent
with regard to a particular defendant. (United States v. Whitten (2d Cir. 2010) 610 F.3d
168, 193–194.) An officer’s interest in a meeting between a defendant and another
inmate alone does not amount to a directive adequate to label an inmate as an agent of the
government. (Ibid.)
       After the defendant establishes a preexisting arrangement, he or she must then
demonstrate the police and the informant engaged in some conduct, beyond simply
reading or listening to the defendant’s voluntary comments. They had to have engaged in
behavior deliberately designed to elicit incriminating remarks. (Kuhlmann v. Wilson,
supra, 436 U.S. at p. 459; Fairbank, supra, 16 Cal.4th at pp. 1246–1249.) Yet, actual
interrogation on the part of the informant is not required to satisfy this prong of the
Massiah analysis. The defendant’s right under the Sixth Amendment in the Massiah
analysis is transgressed if the government informant stimulates or actively engages in

                                             12
conversation with the defendant concerning the offense charged. (In re Neely, supra,
6 Cal.4th at pp. 915–916.) Decisions invoking Massiah prohibit clandestine interrogation
by techniques that are the legal equivalent of direct police questioning. (Kuhlmann, at
pp. 456–461.) Therefore the permissive and valid use of a jail informant’s testimony at
trial becomes a factual question which is reviewed on appeal by a deferential standard.
(Fairbank, at pp. 1247–1249; People v. Memro (1995) 11 Cal.4th 786, 828.) If
substantial evidence supports the trial court’s ruling here, we will not reverse it.
       The trial court conducted the Massiah hearing on October 12, 2011. McNary
testified he was arrested for robbery on May 25, 2009, and housed in Santa Rita Jail. He
learned from inmates that defendant and Derek Powell, the brother of McNary’s
girlfriend, were housed at the facility. Within a day of his incarceration at Santa Rita,
McNary got a kite from defendant. McNary knew it was from defendant because he was
familiar with the handwriting. He responded to defendant’s kite by telling him he wanted
some food.
       During the hearing, McNary refuted the tape recording prepared by the police by
stating, for the first time, he wrote the second kite, not defendant. The witness
acknowledged he had testified inconsistently at the preliminary hearing, that this was
different from what he had regularly told Sergeant Cruz, and that his current testimony
was contrary to remarks he gave the prosecution shortly before the Massiah hearing
started.
       During the examination of McNary, the prosecutor asked about particular detailed
facts in the second kite which McNary claimed he had authored. McNary was not able to
provide particular details described in the kite such as the officer who shot defendant’s
brother, specifics on the victims, and the actual occurrence of the van shooting. These
matters were detailed in the second kite. McNary did affirm his first contact with
Sergeant Cruz was when the officer saw him on May 26, 2009, around 8:15 p.m. in the
jail. Mc Nary indicated Cruz advised him to try to continue contact with defendant, but
also indicated the officer had concern for McNary’s safety in the jail. The prosecutor was
concerned regarding the witness’s safety and moved him to a neighboring county jail for

                                              13
protection. After McNary testified at the preliminary hearing, he was confronted by
associates of defendant and told he was a “snitch.”
       On cross-examination, McNary indicated when he initially spoke with Cruz and
his partner, the officers only asked if he could provide information on any matter, not the
specific case involving defendant. McNary testified he was advised he could have a deal
that would get him out of custody before his son was born if he cooperated. Based on the
suggestion of release, McNary decided to personally draft the second kite and place it in
an envelope he obtained from defendant.
       Inspector Hu met with McNary along with the prosecutor on several instances
before the hearing on October 12, 2011. Hu found McNary was nervous and very
worried about personal safety. On the morning of the hearing, McNary told Hu and the
district attorney he did not write either kite. He also indicated he was told not to seek
more information from defendant.
       Sergeant Cruz testified he began investigation of the van shootings on February 3,
2008. On May 26, 2009, he was advised that Hayward police believed McNary would
have some information on defendant’s involvement in the case. Based on this tip, Cruz
and his partner visited McNary at the jail. Cruz’s interview with McNary on May 26 and
the following day were taped. Each was played during the trial. Additionally, the
interview between McNary and the defense investigator was also played to the jury.
       At the initial meeting on May 26, 2009, Cruz obtained the kite from McNary.
McNary advised Cruz he received it from defendant. Based on the note, Cruz became
worried about the witness’s safety. He obtained search warrants for the cells of
defendant and Derek Powell. Cruz testified he did not ask McNary to obtain more
information regarding defendant and his role in the crimes. He did not promise McNary
any leniency for his assistance. He did advise McNary he would tell the prosecutor in the
pending robbery case that McNary had been cooperative and should receive
consideration. He never had or suggested McNary be wired and meet defendant or be
placed in a cell closer to the accused. Essentially, Cruz advised the witness to accept any


                                             14
kites transmitted by defendant but not to send notes himself to defendant so as to trigger
additional kites.
       Cruz also testified he had no contact with McNary before May 2009, nor had any
other officer on the force had dealings with him. After May 27, the next meeting
between Cruz and McNary took place on June 2, 2009. This visit was triggered after
Officer Gutierrez told Cruz McNary wished to meet. At this meeting, McNary provided
the second kite, four pages in length. This second kite contained details of the shooting
that were not publicized in the media. Included in the kite were such facts as the hat with
DNA found at the Terrance Brown scene, how Hayward was wounded, and the name of
the officer who shot defendant’s brother on February 3, 2007.
       At the conclusion of testimony, the trial court found it “simply was not the case”
that “Danny McNary . . . ‘was induced by law enforcement officers to attempt to obtain
incriminating statements . . . from the defendant,’ ” or that “ ‘McNary was acting as an
agent of law enforcement.’ ” McNary initiated the contact with police. “Sergeant Cruz
never in any way instructed or provided Mr. McNary with any direction about additional
ways or means by which to solicit additional incriminating information from Mr. Baez
about the pending case.” Also, the trial court found the claim that McNary wrote the
second kite was not credible. Indeed, while Cruz did advise McNary not to avoid
defendant since they were in the same jail facility, the officer did not involve himself in
moving McNary to a location more accessible to defendant nor did he provide any
instruction to McNary on how to elicit further incriminating responses from defendant.
On the authorship of the second and detailed kite, the court observed: “Simply put, to
think that Mr. McNary would be able to put together a letter with that much detail from
information that he gleaned piecemeal from the neighborhood is simply unbelievable. [¶]
. . . [¶] . . . So, the claim that [McNary] wrote that letter is simply unbelievable in the
court’s eyes.”
       The court observed that McNary “hoped” to receive some consideration from Cruz
for providing the kites. But that aspiration on the part of McNary did not mean Cruz
promised a deal for more information. “[H]ope is not synonymous with an overt promise

                                              15
or an overt expectation that some benefit will be derived by passing on any additional
information, particularly in the context of the information that Sergeant Cruz was looking
for. . . . [¶] . . . [T]he fact that McNary thought that some benefit could be derived does
not necessarily mean that there was an overt promise made that would make this Court
find there was an overt incentive. It seems to the Court that the ball at that point was
squarely in Mr. McNary’s court at that time, and that he did nothing to intentionally or
deliberately elicit additional information from the defendant.”
         In the Massiah hearing defendant had to demonstrate the prisoner McNary was
acting at the instigation of police. He needed to show factually either this conduct was
generated by a police promise to assist in McNary’s robbery case or that Cruz actively
promoted and encouraged contact with defendant. However, the record here shows no
preexisting relationship between police and McNary. Before the day Cruz met McNary
and received the first kite, the officer had never met or interviewed him. To Cruz,
McNary had never been an informant for any law enforcement person. Cruz testified he
never made a promise of leniency for additional information against defendant. He
simply advised McNary he would contact the prosecutor in the robbery case and advise
that person what McNary had done.
         The hope of receiving consideration by an informant does not create an agency
relationship. A Massiah finding needs more because it is understood that informants
hope for a benefit in exchange for providing information to police. (Fairbank, supra,
16 Cal.4th at p. 1248.) Even the receipt of favorable treatment does not alone create an
agency relationship. (People v. Williams (1997) 16 Cal.4th 153, 204.) The appreciation
by an informant that there is a market for information does not make a participant in that
process a government agent. (United States v. York (7th Cir. 1991) 933 F.2d 1343,
1357.)
         It should be noted the defense at trial presented evidence McNary, not defendant,
was the author of the second kite and arguably created the both kites. The defense
presented McNary’s admission he wrote the kite and lied at the preliminary hearing and
during taped interviews with police. Defendant also presented the defense investigator

                                             16
tape where McNary affirmed he made up the evidence. If such was believed, then there
would be no Massiah issue because it was McNary and not defendant creating the false
information.
       The facts here are similar to those in Fairbank, supra, 16 Cal.4th 1223. In that
case, a prisoner named Szymkiewicz contacted police regarding notes he received from
the defendant. Szymkiewicz was awaiting sentence and wanted to obtain favorable
treatment in this regard. In his meeting with the police, the detectives advised the inmate
they would speak with the prosecutor but made no promises. The police did not tell
Szymkiewicz to attempt to obtain additional information from the defendant. The
informant retained the original notes. (Id. at p. 1246.) While the prisoner remained in
custody, the police expected he would have contact with the defendant and might obtain
further information. Also, the prosecutor handling the defendant’s case arranged for the
sheriff not to move the defendant from the jail block where Szymkiewicz was housed,
expecting more information. (Id. at pp. 1246–1247.) In the end, Szymkiewicz provided
the police all notes and information he had obtained from the defendant, and received a
lesser sentence. (Id. at p. 1247.)
       In rejecting the Massiah claim, the Supreme Court determined Szymkiewicz was
acting independently and law enforcement did not induce the admissions by the
defendant. (Fairbank, supra, 16 Cal.4th at p. 1248.) While the informant did continue
contact with the defendant, obtaining more information, and these conversations took
place after meeting with police, the behavior did not make Szymkiewicz an agent of
police. Even the belief and expectation by police they would obtain some tangible
benefit from the jail meetings between Szymkiewicz and the defendant did not constitute
a violation of Massiah. “[T]he police made no promises to Szymkiewicz about a possible
deal, they did not direct him to obtain more information, and they did not suggest that
obtaining more information would benefit him.” (Ibid.) There is no unlawful
interference with the accused’s Sixth Amendment right to counsel when the jailed inmate
on his own initiative engages in contact with the defendant, but not at the behest of law


                                            17
enforcement. (United States v. Henry (1980) 447 U.S. 264, 270, fn. 10; People v. Whitt
(1984) 36 Cal.3d 724, 742–743.)
       It is also correct that even if the trial court erroneously admitted the second kite in
evidence, this is harmless error. Isaac Johnson and Devonne Hayward provided evidence
it was defendant who shot each man. The nature of the bullet wounds and their point of
entry corroborated their testimony and cancelled the liability of Walker as the actual
shooter. The same gun was used to kill Melissa Jackson and Dominique Hooper after
defendant had shot Johnson and Hayward, in rapid fashion. The witness Clancy-Tone
saw defendant chastise Walker for crashing the van after the shootings. There was no
defense claim the first kite was authored by McNary. That kite indicates defendant
wanted to go to Hayward and intimidate him about testifying. The kites found in the cell
of Powell, authored by defendant, indicate defendant could beat the case if Hayward and
Johnson did not testify against him: “they ain’t got shit on me.” Defendant detailed an
alibi for his girlfriend Miranda Smith and he expected Powell, about to be released from
custody, would be able to deliver it to Smith soon. This was more than enough evidence
to establish, if needed, harmless error beyond a reasonable doubt.
II. DEFENDANT’S CHALLENGE TO SUFFICIENCY OF THE EVIDENCE
    REGARDING DISSUADING A WITNESS IS REJECTED
       Defendant challenges the sufficiency of the evidence supporting his conviction of
section 136.1, subdivision (a)(2).5 In this case, the trial court denied defendant’s
Evidence Code section 1118 motion on sufficiency of evidence relating to this count
during the trial. There is no argument by defendant the jury was improperly instructed on
the charge. We are left with a sufficiency of the evidence review.



       5
         Section 136.1, subdivision (a)(2) states: “(a) Except as provided in subdivision
(c), any person who does any of the following is guilty of a public offense and shall be
punished by imprisonment in a county jail for not more than one year or in the state
prison: [¶] . . . [¶] (2) Knowingly and maliciously attempts to prevent or dissuade any
witness or victim from attending or giving testimony at any trial, proceeding, or inquiry
authorized by law.”

                                              18
       In making the review, we look to the entire record of the case. We must realize it
is the exclusive province of the trial judge or jury to determine the credibility of
witnesses and the truth or falsity of the facts upon which that determination was made.
“Thus, if the verdict is supported by substantial evidence, this court must accord due
deference to the trier of fact and not substitute its evaluation of a witness’s credibility for
that of the fact-finder.” (People v. Barnes (1986) 42 Cal.3d 284, 303–304.)
       Under section 136.1, subdivision (a)(2), the prosecution has the obligation to
prove the acts of the defendant were intended to “affect or influence a potential witness’s
or victim’s testimony or acts . . . .” (People v. McDaniel (1994) 22 Cal.App.4th 278,
284.) Evidence reflecting the decision to put a plan into action with the necessary intent
supports a conviction for criminal attempt, charged here. (People v. Toledo (2001)
26 Cal.4th 221, 230.) There is sufficient proof of the charge where the accused placed a
phone call asking a third person to deliver a message to a witness that the witness should
not testify against the defendant. This established sufficient proof of an attempt to
dissuade a witness even though the third party did not relate the defendant’s message to
the witness. By soliciting the third party to convey the defendant’s wishes to the victim,
defendant accomplished some part of the crime. (People v. Foster (2007)
155 Cal.App.4th 331, 333, 335–336.)
       Here, defendant wrote the first kite to McNary, and two other kites were found in
the cell of Powell, each indicating defendant could avoid conviction if Hayward and
Johnson did not testify against him. Powell was about to be released from custody with
this information. Hearing this message alone would be “Pumpin’ fear in these niggas’
hearts.” When defendant sent the first kite to McNary, he described his jailhouse
encounter with Hayward’s brother Rudy. Defendant tried to get Rudy to dissuade
Hayward from testifying. “This nigga know I shot his partner . . . . This nigga scared
fuck.” McNary noted that Rudy told him that Hayward would not come to court because
they would “rather handle somethin from the streets.” Johnson told the police he was
afraid to testify because he heard on the street that something would happen to him or his
family. Sergeant Cruz found the kites in Powell’s cell, one of which included

                                              19
defendant’s message to his girlfriend: “Baby if Von & Ike don’t come to court I’m go be
home soon. That’s all I need to get out . . . . Without they testimony they ain’t got shit on
me.” And defendant was in no rush to achieve this goal. “Baby the only reason I ain’t
rushing this is because I need to be positive. Von & Ike ain’t coming to court. . . . This
my life and I need to be prepared for whatever. Ten steps ahead of these
mothafuckas. . . . My lawyer said without Von & Ike they ain’t got no case . . . . I should
be home soon.” Other remarks support this theme in the kites.
       Under the sufficiency of the evidence review, the jury’s verdict of guilty on count
six (attempted intimidation of a witness), will not be disturbed.
III. THE COMMITMENT ORDER WILL BE CORRECTED
       The Attorney General agrees the trial court ordered the nine-year term for
attempted murder (count four), the two-year four-month term for attempted murder
(count five), and the eight-month term for dissuading a witness (count six), to be served
concurrently with count two. The abstract of judgment should be amended to reflect the
court’s oral pronouncement in this matter.
IV. THE IMPOSITION OF A PAROLE REVOCATION FINE UNDER SECTION
    1202.45 WAS PROPER IN THIS CASE
       Finally, defendant contends the $10,000 parole revocation fine imposed by the
trial court pursuant to former section 1202.45 should be stricken because he was
sentenced to life without the possibility of parole. Under the circumstances, the fine was
proper.
       When defendant was sentenced, section 1202.45 provided: “In every case where a
person is convicted of a crime and whose sentence includes a period of parole, the court
shall at the time of imposing the restitution fine pursuant to subdivision (b) of Section
1202.4, assess an additional parole revocation restitution fine in the same amount as that
imposed pursuant to subdivision (b) of Section 1202.4. This additional parole revocation
restitution fine . . . shall be suspended unless the person’s parole is revoked. Parole
revocation restitution fine moneys shall be deposited in the Restitution Fund in the State
Treasury.” (Former § 1202.45.)

                                             20
       While it is correct, as argued by defendant, that when the total sentence creates no
parole eligibility the fine is clearly not applicable; the fine is imposed when defendant
faces an aggregate determinate term along with the life without parole indeterminate
sentence. In a case involving the death penalty along with determinate terms, the
California Supreme Court concluded the fine was required. (People v. Brasure (2008)
42 Cal.4th 1037, 1075–1076.) Section 1202.45 requires this fine in every case where a
person is convicted of a crime and whose sentence includes a period of parole. (Brasure,
at pp. 1075–1076.) This is the case because every determinate sentence has a parole
period and therefore a parole eligibility fine. (Ibid.) Also, defendant suffers no prejudice
here because the fine only arises if he is paroled and his parole is revoked.
       Since determinate sentences were imposed here, the fine was properly imposed.
                                      DISPOSITION
       The clerk of the superior court is directed to modify the abstract of judgment to
reflect oral declarations by the trial court at sentencing: the determinate sentences in
counts four, five and six be served concurrently with the sentence imposed in count two.
The clerk is to then forward a copy of the amended abstract of judgment to the California
Department of Corrections and Rehabilitation.
       Otherwise, the conviction is affirmed.

                                                __________________________________
                                                Dondero, J.
We concur:
__________________________________

Margulies, Acting P. J.

__________________________________
Sepulveda, J.*

* Retired Associate Justice of the Court of Appeal, First Appellate District, Division
Four, assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.


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