Filed 3/11/14 P. v. Hernandez CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G049320

         v.                                                            (Super. Ct. No. FSB901919)

ULISES HERNANDEZ et al.,                                               OPINION

     Defendants and Appellants.



                   Appeal from a judgment of the Superior Court of San Bernardino County,
Bryan Foster, Judge. Affirmed in part, reversed in part, and remanded for resentencing.
                   Doris M. LeRoy, under appointment by the Court of Appeal, for Defendant
and Appellant Ulises Hernandez.
                   Edward J. Haggerty, under appointment by the Court of Appeal, for
Defendant and Appellant Frank Rodriguez.
                   Nancy L. Tetreault, under appointment by the Court of Appeal, for
Defendant and Appellant Eddie Florentino.
              Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina,
Melissa Mandel and Annie Fraser, Deputy Attorneys General, for Plaintiff and
Respondent.
                                  *           *           *
              A jury found defendants Ulises Hernandez, Frank Rodriguez, Eddie
Florentino and Carlos Almaraz guilty of, inter alia, kidnapping, raping, and attempting to
murder Rosa C. They contend their convictions must be reversed due to instructional
error, prosecutorial misconduct and insufficient evidence, but we disagree. Although the
matter must be remanded due to some undisputed sentencing errors, we affirm the
judgment in all other respects.
                                         FACTS
              On the night of May 6, 2009, Rosa and Almaraz were at a residence in
Highland with several other people. During the course of the evening, Almaraz got into
an argument with a woman named Tina over some drugs. He also introduced Rosa to
Hernandez. Hernandez told Rosa he had a machine that could make gift cards and credit
cards. Thinking she might be able to use the machine to commit identity theft, Rosa told
Hernandez she was interested in buying it from him. They agreed to meet the following
day so Hernandez could show her the machine.
              The next day, late in the afternoon, Rosa and Hernandez met in Highland as
planned. He told her the machine was just around the block, so she got into his car and
they drove to a house a short distance away. However, at that location, Hernandez did
not produce the machine. Instead, Rodriguez, Florentino and Almaraz entered
Hernandez’s car with Rosa. Noticing Rodriguez had a shotgun and Florentino had a
handgun, Rosa became very scared. Although Hernandez told her not to worry, Rosa
correctly intuited she was in grave danger.



                                              2
              As Hernandez began driving, Rosa’s fear intensified as defendants began
singing a song about a girl who was about to meet her doom. Their first stop was a
Valero gas station in Redlands. While Hernandez was fueling his car, Rosa went into the
restroom and tried to call her sister, but her cell phone died before she was able to secure
her assistance. To make matters worse, defendants were waiting for Rosa when she
stepped outside. She told them she didn’t want to get back in the car, but they
surrounded her, and Florentino flashed his gun, which was in his waistband. Upon seeing
the weapon, Rosa got in the car with defendants, and they left the gas station.
              As they were driving around, defendants accused Rosa of stealing drugs
from them. Although it was untrue, they implied she and Tina had somehow snookered
Almaraz in a drug deal. They wanted to know where Tina lived, but Rosa insisted she
didn’t know what they were talking about. During this time, defendants were passing
around the shotgun, racking it, and talking about killing Rosa. They also passed around a
handgun Hernandez had been carrying.
              Eventually, Hernandez pulled into an orange grove off Pioneer Avenue in
Redlands. He drove down a dirt road and stopped the car in a dark, secluded area.
Defendants exited the car and ordered Rosa out of the vehicle. Then Rodriguez began
loading the shotgun and said “let’s see how far she gets before I shoot her.” At that point,
Rosa started to run. She didn’t get far before she heard two shots and felt the sting of
buckshot in her head, back and legs. She tried to keep running, but her body went numb,
and she fell to the ground.
              Almaraz found her first, and in an apparent attempt to protect her from
further harm, he yelled out to the others that she had probably run to the freeway.
However, Almaraz eventually showed Hernandez where Rosa was. Indifferent to her
gunshot wounds, Hernandez told her to get up. Rosa said she was in too much pain to
stand, but Hernandez, who was holding a handgun, told her he was going to shoot her if
she didn’t stand up. Despite the pain, Rosa got to her feet, and Hernandez walked her

                                              3
over to his car at gunpoint. Rosa made a desperate attempt to take Hernandez’s gun, but
he retained the weapon and hit her in the head with it.
              The next thing Rosa remembers is hearing the voices of two men in the
distance. The men lived in a trailer in the orange grove, and upon hearing the gunshots,
set out to see what was going on. Before they got to Rosa’s group, Hernandez remarked
he might have to shoot them. Thus, when the men approached and asked Rosa if she was
okay, she lied and told them yes, so they would not get hurt. As she hoped, the men took
her answer at face value and walked away.
              Defendants then put Rosa in the car and drove back to Highland. Although
Rosa was bleeding and pleading for medical help, they told her she didn’t need any.
Hernandez parked in an alley and told Rosa he was going to kill her if she didn’t take off
her pants. Fearing for her life, Rosa did as told. Hernandez then ordered her to sit on
Almaraz, meaning have sex with him. After Almaraz unzipped his pants, Rosa sat on his
lap, and he penetrated her vagina with his penis. Then Hernandez ordered her to sit on
Florentino’s lap, which she did, and he raped her as well.
              Hoping to end the ordeal, Rosa lied and said she saw a police car drive by.
Hernandez said it didn’t matter, because they were probably going to kill her anyway.
He started driving again, and they ended up in front of his house on Cunningham
Avenue. However, seeing his neighbor was outside, he drove to an abandoned house in
the area. After pulling into the driveway, he ordered Rosa out of the car, and everyone
else exited the vehicle, as well. Rosa asked for her pants back, but Hernandez told her
she wasn’t going to need them. Near a shed in the back of the house, he ordered her to
orally copulate Florentino. While she was doing so, Hernandez sodomized her from
behind.
              During these sex acts, Rosa began vomiting. At that point, Hernandez told
her to go inside the shed, but she made a run for it instead. Despite being naked and



                                             4
wounded, she managed to escape from defendants by running to a nearby house. A man
at the house told her to go around back, and she hid there until the police arrived.
              Forensic testing revealed the presence of sperm in Rosa’s vagina and
rectum. The DNA from the vaginal sperm matched Florentino and Almaraz’s DNA, but
there was insufficient material to conduct DNA testing on the rectal sperm. Testing also
revealed Rosa had methamphetamine in her system at the time of the alleged offenses.
She testified she hadn’t used drugs for at least a couple of months.
              Hernandez and Rodriguez were arrested the night of the offenses. When
the police initially approached them and ordered them to stop, they were on foot near
Hernandez’s home. Before complying with the command, Hernandez tossed something
into his car, and Rodriguez placed a bloody shirt on a nearby fence. Inside Hernandez’s
blood-stained car, investigators found a shotgun and a “speed loader” for a .44 caliber
handgun. When Almaraz was arrested a few days later, he discarded a loaded .44 near a
dumpster shortly before he was taken into custody.
              Following a jury trial, defendants were convicted of attempted murder and
four sex crimes while acting in concert: oral copulation, sodomy and two rapes. As to the
attempted murder, the jury found Hernandez, Rodriguez and Florentino acted with
premeditation and personally used a firearm, and Rodriguez personally discharged a
firearm. The jury also found Hernandez personally used a firearm during each of the sex
crimes.
              In addition to the foregoing offenses, Hernandez, Rodriguez and Florentino
were convicted of conspiracy to commit murder. Hernandez was also convicted of
kidnapping to commit rape while personally using a firearm, and Rodriguez, Florentino
and Almaraz were convicted of simple kidnapping.
              The trial court sentenced Hernandez, Rodriguez and Florentino to
indeterminate life terms, plus determinate terms. It sentenced Almaraz to 19 years and 8
months in prison. Although all four defendants appealed, Almaraz abandoned his appeal.

                                              5
The remaining three defendants have joined each others’ arguments to the extent they are
applicable to them.
                                              I
              Defendants contend the jury instructions at their trial were flawed in a
variety of respects. Although they did not object to any of the jury instructions they
challenge on appeal, we will entertain their claims nonetheless, because the instructions
arguably infringed their right to a fair trial and because they claim their attorneys were
ineffective for failing to preserve the instructional issues for appeal. (See People v.
Foster (2010) 50 Cal.4th 1301, 1359, fn. 24; People v. Crittenden (1994) 9 Cal.4th 83,
146.)
              However, in reviewing defendants’ claim, we must keep in mind that jury
instructions “‘should be interpreted, if possible, so as to support the judgment rather than
defeat it if they are reasonably susceptible to such interpretation.’ [Citation.]” (People v.
Martin (2000) 78 Cal.App.4th 1107, 1111-1112.) We “‘“assume that the jurors are
intelligent persons and capable of understanding and correlating all jury instructions
which are given. [Citation.]”’ [Citation.]” (Id. at p. 1111.) Unless there is a reasonable
likelihood the jury misunderstood the challenged instruction in a manner that violated
defendant’s rights, we must uphold the court’s charge to the jury. (People v. Cain (1995)
10 Cal.4th 1, 36-37.)
              Defendants’ initial instructional argument is that the trial court’s
instructions on rape in concert allowed the jury to convict them of that offense based on
an invalid theory. We disagree.
              Defendants were charged with committing both forcible rape and rape
while acting in concert. The crime of forcible rape occurs when sexual intercourse is
“accomplished against a person’s will by means of force, violence, duress, menace, or
fear of immediate and unlawful bodily injury on the person or another.” (Pen. Code, §



                                              6
261, subd. (a)(2).)1
              The statute respecting sex crimes committed in concert is not limited to the
crime of rape. It provides, “[I]n any case in which the defendant, voluntarily acting in
concert with another person, by force or violence and against the will of the victim,
committed an act described in Section 261 [rape], 262 [spousal rape] or 289 [sexual
penetration], either personally or by aiding and abetting the other person, . . . the
defendant shall [be imprisoned] for five, seven, or nine years.” (§ 264.1.)
              Under this statutory framework, force or violence is required for the crime
of rape in concert, but it is not required for the crime of forcible rape. If the defendant,
acting in partnership with another, accomplishes sexual intercourse against the victim’s
will by duress, menace, or fear of immediate bodily injury, he is guilty of forcible rape,
but he is not guilty of rape in concert, absent the use of force or violence.
              Defendants contend that, contrary to these principles, the trial court’s
instructions allowed the jury to convict them of rape in concert even if it found they did
not use force or violence in raping Rosa. Here is what the jury was told:
              Pursuant to CALCRIM No. 1001, the court instructed, “The defendants are
charged with committing rape by acting in concert. [¶] To prove that a defendant is
guilty of this crime, the People must prove . . . [t]he defendant personally committed
forcible rape and . . . voluntarily acted with someone else who aided and abetted its
commission [or] voluntarily aided and abetted someone else who personally committed
forcible rape. [¶] To decide whether the defendants committed rape, refer to the separate
instructions that I have given you on that crime. . . . You must apply [this separate]
instruction[] when you decide whether the People have proved rape in concert.” (See
CALCRIM No. 1001.)




       1      All further statutory references are to the Penal Code.


                                                      7
              The separate instruction on rape, CALCRIM No. 1000, explained, “The
defendants are charged with rape by force. [¶] To prove that the defendant is guilty of
this crime, the People must prove that: [¶] The defendant had sexual intercourse with a
woman; [¶] That he . . . and the woman were not married to each other at the time of the
intercourse; [¶] The woman did not consent to the intercourse; [¶] And the defendant
accomplished the intercourse by force, violence, duress, menace, or fear of immediate
and unlawful bodily injury to the woman or to someone else.” (See CALCRIM No.
1000.)
              Defendants assert, “By introducing the more extensive means of
committing the offense of rape through incorporation of the CALCRIM No. 1000 rape
definition, the CALCRIM No. 1001 rape in concert instruction risks, and virtually invites,
the jurors to erroneously find that rape in concert has been committed whenever a
defendant commits rape within the meaning of section 261 and does so in conjunction
with another. This is erroneous because rape under section 261 may be committed by
means of duress, menace or fear of immediate bodily injury, whereas actual force or
violence is required for the commission of rape in concert.” At bottom, defendants fear
the jury may have understood these instructions to mean force or violence is not required
for the crime of rape in concert. However, we do not believe it is reasonably likely the
jury construed the instructions in that manner.
              CALCRIM No. 1001 informed the jurors that, in assessing whether
defendants were guilty of rape in concert, they had to determine whether defendants
committed “forcible rape.” The instruction also told the jurors to look to CALCRIM No.
1000 for the definition of “rape.” In so doing, CALCRIM No. 1001 signaled to the jury
that the terms “forcible” and “rape” represented separate and distinct elements for
purposes of rape in concert, even though force is one of the means by which rape may be
committed. Indeed, CALCRIM No. 1000 defined rape as sexual intercourse that was
accomplished by force, violence, duress, menace or threat of harm.

                                             8
              Nonetheless, by modifying the word “rape” with the word “forcible,”
CALCRIM No. 1001 made it apparent that the rape, no matter how it might be
accomplished per the definition set forth in CALCRIM No. 1000, had to be “forcible” to
constitute rape in concert. So even if the jury believed defendants were guilty of rape for
overcoming Rosa’s will by duress, menace or threat of harm, it could only have convicted
defendants of rape in concert if it believed they used force in carrying out the rape.
Given that the court’s instructions made force a necessary condition for rape in concert, it
is not reasonably likely the jury convicted defendants of that offense based on their use of
duress, menace or threat alone.
                                             II
              In instructing on the crime of rape in concert, the court also told the jury
“the People do not have to prove a prearranged plan or scheme to commit rape.”
Defendants contend that by telling the jury what was not required for rape in concert, this
instruction was impermissibly argumentative and violated their right to due process and a
fair trial. However, for purposes of explaining legal concepts to the jury, it is sometimes
helpful to phrase things in negative terms. For example, the standard jury instruction on
reasonable doubt states that the prosecution “need not eliminate all possible doubt” in
order to meet its burden of proof at trial. (CALCRIM No. 220.)
              In this case, the challenged instruction was legally correct. (People v.
Calimee (1975) 49 Cal.App.3d 337, 341-342.) The fact it alerted the jury to something
the prosecution was not required to prove is not grounds for reversal. (Cf. People v.
Gammage (1992) 2 Cal.4th 693, 700-702 [upholding instruction that explains the state is
not required to corroborate the victim’s testimony in sex crimes cases].) The instruction
did not lower the prosecution’s burden of proof or violate defendants’ rights in any
fashion. (Ibid.)




                                              9
                                             III
              Next, defendants claim the jury instructions on attempted murder were so
confusing the jury may have improperly convicted them of that offense based on the
theory of implied malice. The claim is not well taken.
              In instructing on attempted murder, the court stated the People must prove
the defendants took a direct but ineffective step toward killing another person and they
“intended to kill that person.” Although this instruction conveyed the proper intent
requirement for attempted murder, i.e., express malice, defendants submit that
requirement was obscured by the court’s instructions on conspiracy to commit murder.
              Under those instructions, the prosecution had to prove, inter alia, “The
defendant intended to agree and did agree with one or more of the other defendants to
intentionally and unlawfully kill,” and “[a]t the time of the agreement, the defendant and
one or more of the other alleged members of the conspiracy intended that one or more of
them would intentionally and unlawfully kill[.]” This language, too, properly conveyed
the concept of express malice.
              However, the court also told the jury, “The People must prove that the
members of the alleged conspiracy had an agreement and an intent to commit murder.”
“To decide whether a defendant and one or more of the alleged members of the
conspiracy intended to commit murder, please refer to the instructions which define that
crime.” The murder instructions explained, “Murder is a type of homicide. [¶] The
defendants are charged with conspiracy to commit murder. To prove that a defendant is
guilty of murder, the People must prove that: [¶] The defendant committed an act that
caused the death of another person; [¶] And, when the defendant acted, he had a state of
mind called malice aforethought.
              “There are two kinds of malice aforethought: Express malice and implied
malice. [¶] Proof of either is sufficient to establish the state of mind required for murder.
The defendant acted with expressed malice if: [¶] He unlawfully intended to kill. [¶] The

                                             10
defendant acted with implied malice if he committed an act; [¶] The natural and probable
consequences of the act were dangerous to human life; [¶] At the time he acted, he knew
his act was dangerous to human life; [¶] And, he deliberately acted with conscious
disregard for human life.”
              As our Supreme Court has explained, “It is now well established that a
specific intent to kill is a requisite element of attempted murder, and that mere implied
malice is an insufficient basis on which to sustain such a charge. Accordingly, implied
malice instructions should never be given in relation to an attempted murder charge.
[Citations.]” (People v. Lee (1987) 43 Cal.3d 666, 670.)
              Here, however, the implied malice instructions were not given in relation to
the attempted murder charge. Rather, the court gave them long after the attempted
murder instructions, while it was instructing on the conspiracy charge. And in so doing,
the court made it a point to tell the jury that those instructions were applicable to the
“charge of conspiracy to commit murder[.]” At no point was the jury ever told that it
could convict appellants of attempted murder based on the theory of implied malice.
Under these circumstances, it is not reasonably likely the jury applied the implied malice
instructions in deciding whether defendants were guilty of attempted murder. (Compare
People v. Beck (2005) 126 Cal.App.4th 518 [instructions on implied malice deemed to be
error since they were given in connection with the attempted murder instructions and the
prosecutor expressly relied on them in closing argument].)
              In any event, by finding true the allegation defendants acted with
premeditation and deliberation in attempting to kill Rosa, the jury necessarily determined
they harbored the intent to kill. Therefore, any error in instructing on implied malice was
surely harmless. (See People v. Flood (1998) 18 Cal.4th 470, 483, 506 [instructional
error is generally not prejudicial if the jury necessarily resolved the underlying factual
question against the defendant through other properly given instructions].)



                                              11
                                              IV
              In a somewhat related argument, defendants contend the court’s
instructions on conspiracy to commit murder were defective because they allowed the
jury to convict them of that offense based on the theory of implied malice. While the
conspiracy instructions were flawed in that regard, we do not believe defendants were
prejudiced by them.
              In People v. Swain (1996) 12 Cal.4th 593, the California Supreme Court
held the crime of conspiracy to commit murder requires express malice, i.e., the intent to
kill, “and cannot be based on a theory of implied malice.” (Id. at p. 607.) Here, however,
as we explained in the preceding section, the trial court directed the jury to utilize its
instructions on murder in deciding whether defendants were guilty of conspiracy to
commit murder. Because the murder instructions stated murder can be based on either
express or implied malice, the court’s instructions erroneously allowed the jury to convict
defendants of conspiracy to commit murder based on the theory of implied malice.
              Nevertheless, the error was harmless beyond a reasonable doubt under the
circumstances presented in this case. There are several reasons why we believe the
instructions on implied malice did not contribute to the jury’s verdict on the conspiracy
count.
              First, although the conspiracy instructions were flawed for incorporating
the instructions on implied malice murder, they also required the jury to find defendants
intended to “intentionally and unlawfully kill.” As the trial court explained, the intent to
kill is the equivalent of express malice.
              Second, at no point did the prosecutor argue that implied malice was a
proper basis to support a conviction for conspiracy to commit murder. Rather, his theory
of the case, as expressed throughout his closing argument, was that defendants
specifically intended to kill Rosa. (Compare People v. Swain, supra, 12 Cal.4th at p. 607



                                              12
[reversing conviction for conspiracy to commit murder where prosecutor improperly
relied on implied malice theory].)
              Third, the evidence of express malice was very strong. Defendants were
armed with multiple weapons when they kidnapped Rosa and sexually assaulted her.
They repeatedly talked about killing her and expressly threatened to take her life. And
they drove her to a remote location and shot her in the head, back and legs. Although
Rosa survived and was eventually able to make it to safety, defendants’ words and
actions demonstrate they possessed the intent to kill.
              And fourth, the jury found defendants acted with premeditation and
deliberation in attempting to kill Rosa. This finding is fundamentally inconsistent with
the concept of implied malice, which assumes the defendant did not intend for his actions
to result in death. (See People v. Swain, supra, 12 Cal.4th at pp. 602-603.)
              For all of these reasons, we find the inclusion of instructions on implied
malice to be harmless. The instructions do not warrant a reversal of defendants’
convictions for conspiracy to commit murder.
                                             V
              Defendants’ attack on the court’s jury instructions is not limited to the
instructions that were given. They also assert the court committed a prejudicial error of
omission by failing to instruct the jury to consider their out-of-court statements with
caution. (See CALCRIM No. 358.) This claim also fails.
              During her testimony, Rosa described various statements defendants made
to her during the course of the alleged crimes. For instance, she said Hernandez
threatened to kill her and ordered her to have sex with the others, and Rodriguez
wondered aloud how far she could run before he shot her. The Attorney General agrees a
cautionary instruction was warranted in this situation. Indeed, “[i]t is well established
that the trial court must instruct the jury on its own motion that evidence of a defendant’s
unrecorded, out-of-court oral admissions should be viewed with caution.” (People v.

                                             13
McKinnon (2011) 52 Cal.4th 610, 679.) The question thus becomes whether the failure
to do so was prejudicial.
              “Since the cautionary instruction is intended to help the jury to determine
whether the statement attributed to the defendant was in fact made, courts examining the
prejudice in failing to give the instruction examine the record to see if there was any
conflict in the evidence about the exact words used, their meaning, or whether the
admissions were repeated accurately. [Citations.]” (People v. Pensinger (1991) 52
Cal.3d 1210, 1268.) Here, there was no conflicting evidence about the statements
attributed to defendants. There was evidence Rosa had methamphetamine in her system
at the time of the alleged offenses, which may have affected her ability to remember what
defendants said, but the jury was instructed on the factors affecting witness credibility,
including whether the witness has engaged in conduct that reflects on her believability.
Therefore, it is unlikely the jury failed to subject Rosa’s testimony to scrutiny. (People v.
Wilson (2008) 43 Cal.4th 1, 20.)
              The truth is, though, Rosa’s testimony was amply corroborated by other
evidence in the case. Surveillance cameras captured Rosa and the defendants pulling into
the Valero station in Redlands. One of the men who lived in the orange grove described
hearing gunshots and seeing Rosa with defendants. Rosa’s injuries and the DNA
evidence supported her version of events, and no one contradicted her version of the
statements. All told, it is not reasonably likely defendants would have obtained a more
favorable result had the court instructed the jury to view their out-of-court statements
with caution. Therefore, its failure to do is not cause for reversal. (People v. Clark
(2011) 52 Cal.4th 856, 957.)
                                             VI
              Defendants’ final instructional argument is that CALRIM No. 371, which
allowed the jury to infer consciousness of guilt from the suppression of evidence,



                                             14
“embodies an irrational permissive inference” in violation of due process. We are not
persuaded.
              The evidence showed that, right before they were apprehended by the
police, Hernandez tossed something in his car, Rodriguez discarded a bloody shirt on a
fence, and Almaraz surreptitiously placed a handgun near a dumpster. In light of this
evidence, the trial court instructed the jury per CALCRIM No. 371, “If the defendant
tried to hide evidence, that conduct may show that he was aware of his guilt. If you
conclude that the defendant made such an attempt, it is up to you to decide its meaning
and importance. However, evidence of such an attempt cannot prove guilt by itself. [¶]
If you conclude that a defendant tried to hide evidence, you may consider that conduct
only against that defendant. You may not consider that conduct in deciding whether any
other defendant is guilty or not guilty.”
              Defendants object to the wording of the opening sentence of this
instruction, in that it allowed the jury to infer they were “aware of” their guilt if they tried
to hide evidence. Defendants acknowledge the predecessor to CALCRIM No. 371 —
CALJIC No. 2.06 — has been approved by our Supreme Court. (People v. Jackson
(1996) 13 Cal.4th 1164, 1224.) But they also note that CALJIC No. 2.06 used the phrase
consciousness of guilt rather than awareness of guilt. (Id. at p. 1223, fn. 13.) Defendants
argue “consciousness of guilt suggests a more generalized perception of guilt or
responsibility, such as having a guilty conscience, which is distinguishable from
[awareness of guilt, which connotes] an acknowledgment or acceptance of actual guilt for
a criminal offense.” In sum, they fear that, as worded, CALCRIM No. 371 left “no room
for [a] conclusion [they were] not guilty,” if the jury believed they tried to suppress
evidence.
              However, CALCRIM No. 371 empowers the jury to decide the “meaning
and importance” of any suppression efforts. It also cautions that any attempt to hide
evidence is not sufficient per se to prove guilt. This cautionary language benefited

                                              15
defendants by “admonishing the jury to circumspection regarding evidence that might
otherwise be considered decisively inculpatory. [Citations.]” (People v. Jackson, supra,
13 Cal.4th at p. 1224.)
              In any event, we disagree with the underlying premise of defendants’
argument that the phrase “awareness of guilt” is more incriminating than “consciousness
of guilt.” As the court in People v. Hernandez Rios (2007) 151 Cal.App.4th 1154 stated
in examining the standard flight instruction (CALCRIM No. 372), there is no material
difference between the phrases for constitutional purposes. (Id. at pp. 1158-1159.)
Consistent with the court’s ruling in Hernandez Rios, we reject defendants’ claim
CALCRIM No. 371 violated their right to a fair trial and due process of law.
                                           VII
              Turning their attention to the prosecutor’s behavior, defendants contend the
prosecutor committed prejudicial misconduct by referring to them as “animals” in his
closing argument. We do not believe the reference warrants a reversal.
              Toward the end of his closing argument, the prosecutor urged the jury to
hold defendants accountable for their actions on behalf of Rosa. He told the jurors, “she
just wants one thing from you. She wants the best thing you can give her, which is to
ensure that every single [defendant] — and they are animals — [is held accountable] for
what they did to her.” No objection was made to this remark. In fact, during their
closing arguments, the defense attorneys acknowledged Rosa had been subjected to
horrible treatment during the alleged offenses.
              Nevertheless, defendants now insist the prosecutor’s description of them as
animals crossed the line between legitimate advocacy and impermissible name calling.
However, by failing to raise this argument below, defendants have forfeited their right to
do so on appeal. (People v. Green (1980) 27 Cal.3d 1, 27.) Defendants claim it would
have been futile for them to object because it would have been impossible for the trial
court to cure the prejudice caused by the prosecutor’s remark. However, we believe the

                                            16
sting of the remark could have been alleviated by a simple reminder to the jurors that the
defendants were human beings, not animals, and that no matter what they were accused
of doing, or how the prosecutor described their actions, they were presumed innocent and
entitled to a fair trial based solely on the evidence adduced at trial.
                Even if the claim had not been forfeited, it would not carry the day. “[A]
prosecutor commits reversible misconduct [under California law] if he or she makes use
of ‘deceptive or reprehensible methods’ when attempting to persuade either the trial court
or the jury, and when it is reasonably probable that without such misconduct, an outcome
more favorable to the defendant would have resulted. [Citation.] Under the federal
Constitution, conduct by a prosecutor that does not result in the denial of the defendant’s
specific constitutional rights . . . but is otherwise worthy of condemnation, is not a
constitutional violation unless the challenged action ‘“so infected the trial with unfairness
as to make the resulting conviction a denial of due process.”’ [Citation.]” (People v.
Rundle (2008) 43 Cal.4th 76, 157, disapproved on other grounds in People v. Doolin
(2009) 45 Cal.4th 390.)
                Given the state of the record in this case and the overwhelming evidence
that defendants subjected Rosa to a series of horrifically violent and debasing acts, we do
not believe the prosecutor’s reference to defendants as animals rendered their trial unfair
in violation of due process, nor is it reasonably probable they would have obtained a
more favorable result had the remark not been made. Therefore, the remark is not cause
for reversal.
                                             VIII
                We now take up defendants’ sufficiency-of-the-evidence claims. They first
contend there is insufficient evidence to support the jury’s find that, in attempting to kill
Rosa, they acted with premeditation. The record shows otherwise.
                The standard of review for assessing the sufficiency of the evidence to
support a criminal conviction is “highly deferential.” (People v. Lochtefeld (2000) 77

                                              17
Cal.App.4th 533, 538.) Our task is to “‘“examine the whole record in the light most
favorable to the judgment to determine whether it discloses substantial evidence[.]”’”
(People v. Alexander (2010) 49 Cal.4th 846, 917.) “Although we must ensure the
evidence is reasonable, credible, and of solid value,” we must keep in mind “it is the
exclusive province of the trial judge or jury to determine the credibility of a witness and
the truth or falsity of the facts on which that determination depends. [Citation.]” (People
v. Jones (1990) 51 Cal.3d 294, 314.) “The conviction shall stand ‘unless it appears “that
upon no hypothesis whatever is there sufficient substantial evidence to support [it].”’
[Citation.]” (People v. Cravens (2012) 53 Cal.4th 500, 508.)
              The three categories of evidence traditionally deemed relevant to the issue
of premeditation are: (1) planning activity, (2) facts concerning the defendant’s prior
conduct with the victim, i.e., motive evidence, and (3) the circumstances surrounding the
method of the killing or the attempted killing. (People v. Thomas (1992) 2 Cal.4th 489,
516-517, citing People v. Anderson (1968) 70 Cal.2d 15.) These categories are
descriptive, not normative or exhaustive, and are intended “to aid reviewing courts in
assessing whether the evidence is supportive of an inference that the killing [or attempted
killing] was the result of preexisting reflection and weighing of considerations rather than
mere unconsidered or rash impulse. [Citation.]” (People v. Perez (1992) 2 Cal.4th 1117,
1125; see also People v. Sanchez (1995) 12 Cal.4th 1, 32-33, overruled on other grounds
in People v. Doolin, supra, 45 Cal.4th 390, 421, fn. 22; People v. Edwards (1991) 54
Cal.3d 787, 813-814.) We must remember “premeditation can occur in a brief period of
time. ‘The true test is not the duration of time as much as it is the extent of the reflection.
Thoughts may follow each other with great rapidity and cold, calculated judgment may
be arrived at quickly . . . .’ [Citations.]” (People v. Perez, supra, 2 Cal.4th at p. 1127.)
              In this case, the defendants were armed with multiple weapons when they
kidnapped Rosa. After Rodriguez, Florentino and Almaraz entered the car with
Hernandez and Rosa, defendants began singing a song about a girl being killed.

                                              18
Suspecting Rosa had ripped them off in a drug deal, they also passed around the guns to
each other, racked the shotgun and talked about killing Rosa. Then they drove her to a
secluded orange grove, where Rodriguez prompted her to run and shot her in the head,
back and legs. Hernandez also threatened to shoot Rosa at that location. And he
threatened to kill her later on, while he was making his sexual demands. This evidence
shows the prospect of killing Rosa was on defendants’ minds throughout the ordeal. The
drug deal provided the motive for murder, the weapons supplied the means, and the act of
shooting Rosa shows defendants were serious about their threats.
              Defendants claim the fact they had ample opportunity to end Rosa’s life but
did not actually do so shows they lacked the premeditative intent to kill. But it’s not as
though defendants voluntarily let Rosa go after deciding to spare her life. Rather, after
the shooting in the orange grove, two men appeared and disrupted defendants’ plan there.
And after defendants sodomized Rosa later on, she had to make a daring escape in order
to avoid further victimization. Based on all the evidence presented, the jury could
reasonably conclude defendants harbored the premeditative intent to kill but were
ultimately thwarted from murdering Rosa due to circumstances beyond their control.
Their repeated murderous threats and their actions in shooting Rosa are highly indicative
of a premeditative mindset. We are convinced there is substantial evidence to support
their convictions for attempted premeditated murder.
                                             IX
              Defendants also challenge the sufficiency of the evidence to support their
convictions for conspiracy to commit murder. However, the record contains substantial
evidence of this offense, as well.
              “‘A conviction of conspiracy requires proof that the defendant and another
person had the specific intent to agree or conspire to commit an offense, as well as the
specific intent to commit the elements of that offense . . . .’ [Citations.]” (People v.
Jurado (2006) 38 Cal.4th 72, 120.) Thus, in the context of a conspiracy to commit

                                             19
murder, the participants must agree to commit that offense and possess the specific intent
to kill. (People v. Cortez (1998) 18 Cal.4th 1223, 1228.) Defendants contend there is
insufficient evidence they came to an understanding to murder Rosa, but that is not the
case.
               To prove a conspiracy, it is not necessary to establish the parties met and
expressly agreed to commit the target offense. (People v. Vu (2006) 143 Cal.App.4th
1009, 1025.) Instead, it will suffice if the evidence directly or circumstantially shows
“the parties positively or tacitly came to a mutual understanding to accomplish the act
and unlawful design.” (Ibid.) Factors bearing on this issue include “‘the conduct,
relationship, interests, and activities of the alleged conspirators before and during the
alleged conspiracy. [Citations.]’ [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th
1060, 1135.)
               Here, it is evident the defendants knew each other and were working
together when they tricked Rosa into getting in their car. They claim they only wanted to
kidnap Rosa for the purpose of committing sexual crimes, not murder, but they were
armed to the teeth, they talked about killing Rosa in the car, and the first thing they did
when they got to the orange grove was shoot her in the head, back and legs. The sex
crimes didn’t occur until later, and even those acts were accompanied by murderous
threats.
               Moreover, while it is apparent defendants’ actions were sexually motivated
to some degree, that does not rule out the possibility of a murder conspiracy. In fact, the
sex crimes arguably provided defendants with an even greater motive to kill Rosa,
because she was the only person — other than defendants themselves — to witness those
offenses. Viewing the evidence in favor of the judgment below, as we are required to do,
we believe there is substantial evidence to support the jury’s finding that defendants
conspired to commit murder.



                                             20
                                            X
             Defendants’ sentencing claims are all that remain. They contend their
sentences on some of the counts must be stayed pursuant to section 654. The Attorney
General agrees, as do we.
             “Section 654 precludes multiple punishment for a single act or omission, or
an indivisible course of conduct.” (People v. Deloza (1998) 18 Cal.4th 585, 591.)
Whether a course of conduct is divisible depends on the intent and objective of the
defendant. (People v. Harrison (1989) 48 Cal.3d 321, 335.) “[I]f all of the offenses were
merely incidental to, or were the means of accomplishing or facilitating one objective,
[the] defendant may be found to have harbored a single intent and therefore may be
punished only once.” (Ibid.)
             The trial court sentenced defendants to 25 years to life for conspiracy to
commit murder (count 2), plus a concurrent term of life with parole on the attempted
murder count (count 1). The parties agree that because murder was the objective of the
conspiracy, the concurrent sentences for attempted murder must be stayed under section
654. (People v. Hernandez (2003) 30 Cal.4th 835, 866, disapproved on another point in
People v. Riccardi (2012) 54 Cal.4th 758, 824, fn. 32; People v. Ramirez (1987) 189
Cal.App.3d 603, 615-616.) The parties additionally agree that because the sentences for
attempted murder were imposed concurrently, the enhancements attendant to that count
for personal use of a firearm must be imposed concurrently, as well. (People v. Bui
(2011) 192 Cal.App.4th 1002, 1016; People v. Mustafaa (1994) 22 Cal.App.4th 1305,
1311.)
             It is also undisputed that section 654 applies to Hernandez’s sentences for
rape in concert (counts 11 and 12) because those offenses were part and parcel of his
conviction for kidnapping to commit rape (count 3). (People v. Latimer (1993) 5 Cal.4th
1203, 1216-1217.) And that Rodriguez and Florentino’s sentences for kidnapping (count
4) must be stayed because they committed that offense for the purpose of committing the

                                            21
sex crimes and the attempted murder. (Ibid.) Because the trial court failed to take
account of section 654 in this regard, we will reverse defendants’ sentences and remand
the matter for resentencing.
                  Defendants ask that we simply modify their sentences without remand.
However, it is unclear how the trial court arrived at its sentencing decision on some of the
counts, and the abstract of judgment does not accurately reflect the trial court’s
sentencing decision on all of the counts.2 Considering, as well, defendants’ sentences
must be corrected to comport with section 654, we believe the proper remedy is to
remand the matter for resentencing. (People v. Austin (1981) 30 Cal.3d 155, 160-161;
People v. Delgado (2010) 181 Cal.App.4th 839, 855.)
                                                DISPOSITION
                  Defendants’ sentences are reversed and the matter is remanded for
resentencing. Following resentencing, the clerk of court shall prepare an amended
abstract of judgment and forward a certified copy to the Department of Corrections and
Rehabilitation. In all other respects, the judgment is affirmed.




                                                               BEDSWORTH, ACTING P. J.

WE CONCUR:



IKOLA, J.



THOMPSON, J.


        2         For example, the trial court sentenced Rodriguez to a determinate term of 19 years, but the abstract
of judgment lists his determinate sentence as 28 years and 8 months.


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