Filed 3/3/16 P. v. Almanza CA2/6

               NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified
for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.


             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                  SECOND APPELLATE DISTRICT

                                                DIVISION SIX


THE PEOPLE,                                                                    2d Crim. No. B258565
                                                                              (Super. Ct. No. 1434130)
     Plaintiff and Respondent,                                                 (Santa Barbara County)

v.

LUIS ALFREDO ALMANZA,

     Defendant and Appellant.




                   A jury convicted appellant of kidnapping for extortion (Pen. Code,
§ 209, subd. (a))1 and torture (§ 206) and found true weapons use and criminal
street gang allegations (§§ 186.22, subd. (b)(4), 12022, subd. (b)(1), 12022.53,
subds. (b), (e)). The trial court sentenced him to life without the possibility of
parole plus a consecutive 11 years for the weapons use and gang enhancements.
Appellant contends that evidence taken from his cell phone without a warrant
should have been excluded and that the jury was improperly instructed that
conspiracy is a basis for his criminal liability. We affirm.




         1
             All statutory references are to the Penal Code.
                                       FACTS
              Appellant, a Sureño gang associate, worked for codefendant Raymond
Macias, the Sureño “crew chief” in Santa Barbara County, and Juan Zavala,
Macias’s “right-hand man.” He was an “enforcer” in Lompoc who helped collect
“taxes,” i.e., a percentage of drug profits paid by Sureño-affiliated gangs in
exchange for the ability to operate within their territory and, should members be
arrested, protection in prison.
              Victim Stephen Mendibles was in charge of collecting taxes in
Lompoc for the Sureños. Because “a lot of [his] homeboys were getting arrested”
and becoming enemies, “it was hard for [him] to come up with the money.”
Eventually, he “couldn’t do it anymore” and “just [lay] low.” Zavala told appellant
to find Mendibles and “put him on a payment plan.”
              Appellant told Mendibles’ cousin Philip Lopez that Macias “wanted
[Mendibles] bad . . . because he owed money.” He asked Lopez to find Mendibles
and bring him to Ivan Rodriguez’s house, where appellant was staying. Lopez
assumed they were going to “check” Mendibles, i.e., punish him for breaching the
rules using physical discipline ranging from an assault to a stabbing.
              Mendibles called Lopez and told him to come over to talk about the
situation. When Lopez hung up, he told appellant he was going to get Mendibles.
Appellant told Gabriel Luna, a member of Macias’s and Zavala’s gang, to go with
him. He asked if Luna had “that thing,” to which Luna responded by displaying a
gun. Appellant told Lopez to “come to the back when you get here.”
              When Lopez found Mendibles, he told him, “Get ready, let’s go,
we’re going to see [Macias]. We’re going to talk about this.” Mendibles did not
think he could refuse because Lopez and Luna “came for a reason” and probably
would have fought him. He thought if he went with them he would “probably just
get beat up real quick and that was it.” He went with them to Rodriguez’s house.
They brought him to the garage.


                                           2
              Appellant, who was standing in the middle of the garage holding a
knife, told Mendibles, “Get in the fuckin’ middle.” Mendibles walked towards
appellant, who swung his fist at him. Mendibles “dodged [the] punch, grabbed
[appellant] by his torso, and . . . threw him on the floor.” At that point, Lopez, his
brother, and Luna “rushed” Mendibles and started punching him in the back of his
head and upper body.
              Mendibles then felt “bad pain” on his elbow. Appellant, who was
holding a hatchet or “axe hammer,” had hit him with the flat side of the blade.
Appellant raised the weapon again. Mendibles tried to block it with his arm. The
sharp end of the blade struck him under his armpit and stuck there. When appellant
pulled it away, blood started “gushing out.” Lopez and his brother looked scared
and told appellant to stop.
              Appellant had Lopez, his brother, and Luna hold Mendibles against a
wall and search him. They took his shoes, wallet, watch, necklace, cell phone,
iPod, hat, and jacket. Appellant told him, “You’re fucking done. We’re going to
make your ass squeal like a fuckin’ pig.” Mendibles was forced to sit on a milk
crate. Appellant had the others bind his ankles, tie his hands behind his back, and
place duct tape over his mouth. Luna was pacing back and forth with the gun in his
hand, saying, “You fucked up, motherfucker. We’ve been looking for you.” Lopez
and Rodriguez put down plastic sheeting underneath the crate and all over the
garage “[s]o they wouldn’t get . . . blood anywhere.”
              For the next few hours, men came in and out of the garage while
Mendibles remained bound and gagged. Mendibles heard appellant say, “We’re
waiting for [Macias].” He thought he was going to be killed.
              Macias and Zavala entered the garage. Macias said, “Damn, dog . . . .
I hate to see you like this . . . . Look at you. But you know what happens. You
know what happens when you play with my money. These fools ain’t playing.”
Macias told Mendibles he owed $800 for back pay on taxes and $300 for “dope.”
Mendibles did not believe he owed Macias $800 “for something that [he] didn’t

                                           3
even have control of.” He agreed to pay the $1,100 Macias demanded, half in three
days and the rest in two weeks, because he “thought that was [his] only way out.”
              Macias told appellant to let Mendibles go. As appellant untied
Mendibles, he flicked ashes from his cigarette on top of Mendibles’ head and said,
“You’re lucky, you bitch.” Mendibles’ clothes and wallet were returned to him.
His captors kept his watch, necklace, iPod, and the money from his wallet,
approximately $40. Luna broke his phone. Macias told Mendibles that he could
have three days for his arm to heal but then “was going to get poked”—meaning he
would be stabbed, not lethally—by Lopez.
              When Mendibles was released, he “[lay] low” again. He did not pay
Macias. After three days, Lopez looked for Mendibles but could not find him.
                                    DISCUSSION
                   Warrantless Collection of Cell Phone Evidence
              When appellant was arrested, his cell phone was seized from him. At
trial, text messages obtained from his phone were read to the jury and admitted into
evidence. Appellant contends that the warrantless search of his cell phone’s
contents incident to his arrest violated the Fourth Amendment and that he is entitled
to be retried without the use of this illegally obtained evidence.2
              More than two years before appellant’s cell phone was seized, the
California Supreme Court held that “the Fourth Amendment . . . permits law
enforcement officers . . . to conduct a warrantless search of the text message folder
of a cell phone they take from his person after the arrest.” (People v. Diaz (2011)
51 Cal.4th 84, 88 (Diaz).) Five days after appellant was found guilty, the United
States Supreme Court abrogated Diaz, holding that “a warrant is generally required
before [searching the information on a cell phone], even when [the] cell phone is
seized incident to arrest.” (Riley v. California (2014) __ U.S. __, [134 S.Ct. 2473,
2493] (Riley).)

       2
        Although the record is silent, we assume for the sake of argument that the
cell phone search was conducted without a warrant.
                                           4
              That a warrantless search of appellant’s cell phone violated his Fourth
Amendment rights does not mean, as appellant contends, that the text messages
should have been excluded from his trial. When, as here, “the police conduct a
search in objectively reasonable reliance on binding appellate precedent, the
exclusionary rule does not apply.” (Davis v. United States (2011) 564 U.S. 229
[131 S.Ct. 2419, 2434] (Davis).)
              Relying on Justice Sotomayor’s concurring opinion, appellant argues
that Davis has no application “when the law governing the constitutionality of a
particular search is unsettled.” (Davis, supra, 131 S.Ct. at p. 2435 [Sotomayor, J.,
concurring].) Justice Sotomayor’s concurrence, which represents her views alone,
is not binding on any court. More importantly, the law governing the
constitutionality of the search here was settled in California—the relevant
jurisdiction. It is inconsequential that courts in other jurisdictions cited by appellant
had reached different conclusions.
              In searching the contents of appellant’s cell phone pursuant to his
arrest, the police relied on the California Supreme Court’s binding precedent in
Riley. Because their reliance was objectively reasonable, exclusion of the evidence
they obtained was not required.
                                Conspiracy Instruction
              The trial court instructed the jury that it could find appellant guilty of
the offenses on any of several theories of criminal liability: (1) directly perpetrating
the crime; (2) aiding and abetting the perpetrator; (3) natural and probable
consequence liability; and, at issue here, (4) conspiring to commit the crimes.
Appellant, who was not charged with conspiracy, contends that an uncharged
conspiracy is not a valid basis for criminal liability in California because the Penal
Code defines conspiracy only as a substantive offense.
              To the contrary, the California Supreme Court has “‘long and firmly
established that an uncharged conspiracy may properly be used to prove criminal
liability for acts of a coconspirator. [Citations.] “Failure to charge conspiracy as a

                                           5
separate offense does not preclude the People from proving that those substantive
offenses which are charged were committed in furtherance of a criminal conspiracy
[citation]; nor, it follows, does it preclude the giving of jury instructions based on a
conspiracy theory [citations].” [Citation.]’ [Citations.]” (People v. Valdez (2012)
55 Cal.4th 82, 150; see also People v. Hajek (2014) 58 Cal.4th 1144, 1200-1201.)
We, as an intermediate appellate court, are bound by the California Supreme
Court’s decisions. (E.g., People v. Kennedy (2011) 194 Cal.App.4th 1484, 1492.)
                                    DISPOSITION
              The judgment is affirmed.
              NOT TO BE PUBLISHED.




                                           PERREN, J.


We concur:



              GILBERT, P. J.



              YEGAN, J.




                                            6
                                Patricia L. Kelly, Judge

                        Superior Court County of Santa Barbara
                         ______________________________


             Sharon M. Jones, under appointment by the Court of Appeal, for Defendant
and Appellant.
             Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, and Steven E.
Mercer and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
