Filed 7/18/16 P. v. Campos CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 SEVEN


THE PEOPLE,                                                          B259896

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA361087)
         v.

SAUL CAMPOS, et al.,

         Defendants and Appellants.



         APPEAL from a judgment of the Superior Court of Los Angeles County, Larry P.
Fidler, Judge. Affirmed as modified.
         Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant
and Appellant Saul Campos.
         Rodger P. Curnow, under appointment by the Court of Appeal, for Defendant and
Appellant Pasqual Campos.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Paul M. Roadarmel, Jr.
and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.


                                      ____________________________
       Twin brothers Saul and Pasqual Campos1 were convicted of numerous felonies
committed when they were 15 years old. Each was sentenced to 25 years to life in state
prison. The Camposes challenge their convictions and sentences on multiple grounds.
We modify the judgment to correct the presentence custody credits but otherwise affirm.

                 FACTUAL AND PROCEDURAL BACKGROUND

       In 2006 and 2007, the Los Angeles Sheriff’s Department conducted a wiretap
investigation involving the Varrio Locos Trece gang, commonly called “Trece.” The
investigation resulted in the indictment of 10 Trece members and associates, including
the Camposes. Trece members Felix Silva, Saul, and Pasqual were tried together. The
charges pertained to four separate events in late 2006 and early 2007.

       A. Lucio Amparo Incident, December 16, 2006 (Charges Against Saul and
          Pasqual)

       In a December 13, 2006 telephone call monitored by the Los Angeles County
Sheriff’s Department, Pasqual spoke with fellow Trece member Antonio Roman, Jr.
Pasqual asked Roman where “the thing” was, because he had spotted a “Leva” (a
member of the rival Largo gang) near his school. Roman said he had it with him, and
Pasqual instructed him to bring it to him quickly because “we got a new fool too.” Based
on this call, law enforcement believed that the speakers were about to transfer or
transport a weapon, and additional officers traveled to the area. When Pasqual and
Roman spoke again a few minutes later, Roman explained that he was still at home
because the police were in the area. Pasqual expressed frustration because the Leva was
“set up in target,” and told Roman to contact him when he was leaving.
       On December 15, 2006, at 9:35 p.m., Roman told an unidentified speaker that he
was with “the twins.” Roman advised the other person to call if he saw suspicious cars.
At 10:04 p.m., Pasqual told Roman that he had spotted a “Leva,” and said, “if you all
don’t mind slugging on a hina.” “Slugging” was a common term for shooting, and “hina”

1     Because Saul and Pasqual share the same surname, they will be referred to by first
name for clarity.

                                             2
referred to a woman. One minute later, Pasqual gave Roman the location, and said, “if
you all don’t mind shooting a hina, she’s with him.” Only a few seconds later, Pasqual,
Roman, and Saul spoke. Roman and Saul were having difficulties, and Pasqual gave
directions where to go to find their target, “the slipping fool with his h[i]na just posted in
front”; that is, the rival gang member not paying attention with a woman standing out in
front.
         At 10:07 p.m., Silva gave Saul directions to the target, who was “right there
outside with a hina.” Silva told Saul to tell him “if you guys are going” so that he could
“get behind” them, at which point Saul responded that Silva should “come back fool, you
explain better[,] nigga.” Silva said, “You ain’t gonna do it, huh[?] [All ]right, fuck it[,]
don’t do it then[,] man, fuck it then.” Saul answered, “Just come over here[,] fool[,] so
we can do [it].” At 10:46 p.m., Roman told a man known only as Padilla that he was
with “the little twin,” Pasqual. Padilla cautioned Roman to be careful.
         Lucio Amparo was affiliated with a gang known as Tortilla Flats. He and Roman
were neighbors and enemies. They had been in multiple fistfights, and Amparo believed
Roman had shot at him in the past. At approximately 11:15 p.m. on December 15, 2006,
Amparo was walking outside when he saw a white Ford F-150 behind him. Amparo
recognized Roman in the passenger seat but could not see the driver clearly. As the truck
passed alongside Amparo, Roman said, “Fuck you,” and shot five times. Amparo was
struck by one bullet.
         In a telephone conversation shortly after the shooting, Roman spoke with Trece
associate Carlos Arellano, who told Roman that police were in the area looking for him.
Arellano said that he had heard that Roman went to do a “mission” (gang business), and
asked if there had been a shooting. Roman asked if Arellano had seen an ambulance;
Arellano responded that he had seen a lot of police. The following day, Silva asked
Roman, “Who was that dude yesterday?” Roman told Silva that he was from Tortilla
Flats, and that he (Roman) had had “serious problems” with him.




                                               3
       Based on this incident, Saul and Pasqual were convicted of conspiracy to commit
murder (Pen. Code,2 §§ 182, subd. (a)(1), 187) (count 1), with the special allegation
found true that the crime was committed to benefit a criminal street gang (§ 186.22, subd.
(b)); and active participation in a criminal street gang (§ 186.22, subd. (a)) (count 3).

       B. Lucien Street Incident, December 17, 2006 (Charges Against Pasqual)
       At 9:41 p.m. on December 17, 2006, Pasqual asked Roman to get a nine-
millimeter gun and go outside. Roman agreed to wait outside his house for the gun to be
picked up. A few minutes later, Pasqual warned Roman that police were in the area;
Pasqual instructed Roman to wait out front and said he would tell the others to go to
Roman’s house.
       Approximately 15 minutes later, Pasqual asked Arellano for “the thing” because
they needed it “right now.” They discussed where the item was and how to access it. At
10:10 p.m., Pasqual told Roman to go outside because “the homies” were out in front. At
10:12 p.m., Pasqual checked with Roman that the men had come and gone and asked,
“They took it, right?”
       At 10:15 p.m., deputy sheriffs on patrol in the area saw a dark blue Ford Excursion
with a driver and a passenger who appeared to be gang members. When they began to
follow the Excursion, the driver sped off, then slowed enough for the passenger, later
determined to be Trece member Jesus Garcia, to exit the car with a gun. The officers
apprehended Garcia and recovered a .40-caliber semi-automatic firearm with 10 rounds
in its magazine. Other officers stopped the Excursion on Lucien Street and detained its
driver, Trece member and shot caller Ivan Lozano.
       The next morning, Lozano said they had been “on” the night before but that they
were unable to shoot anyone. Lozano had meant to “dump on them nigga right there.”
“Dumping” was a gang term for shooting. Lozano said he had planned to “tag” (shoot)
the people and to “go around . . . then hit the niggas” but then the police appeared.


2      Unless otherwise indicated, all further statutory references are to the Penal Code.

                                              4
Garcia jumped from the car and Lozano told him to get rid of his weapon. The police
caught Garcia with a “Whoadie,” a .40-caliber gun. Lozano said he had been able to
escape initially but was apprehended when he returned to try to find Garcia.
       On December 18, Lozano and Trece member Anthony Rivera discussed the need
to “close shop” and postpone gun-related activities due to the presence of federal agents
in the area. Lozano told Rivera they had lost the Whoadie and remarked, “We are
bringing heat to the hood like a mother fucker.” At the close of the conversation, Lozano
instructed Rivera to tell “the homies” that the neighborhood was “super hot,” meaning
that the police were around.
       A firearms expert determined that the gun recovered in this incident matched
expended bullet casings that had been recovered after Amparo was shot.
       Based on this incident, Pasqual was charged with conspiracy to commit murder
(count 5), with a gang enhancement under section 186.22, subd. (b)(1)(C); and active
participation in a criminal street gang (count 7). Pasqual was convicted on count 5 of the
lesser offense of conspiracy to commit assault with a semi-automatic firearm (§§ 182,
subd. (a)(1), 245, subd. (b)), with the gang enhancement found true; and he was
convicted as charged on count 7. Saul was not charged with respect to this incident.

       C. Ladybug Incident, January 19, 2007 (Charges Against Pasqual)
       On January 19, 2007, at 7:11 p.m., Roman spoke with Trece member Jose
Rodriguez. Roman told Rodriguez that Ladybugs—members of a rival gang—were
around. Ten minutes later, Saul and Roman discussed getting a car and a “thing.” At
7:51 p.m. Rivera and his brother, also a Trece member, discussed the need to have an
item picked up for an unidentified third person who said that rival gang members are
passing through the area and who wanted to “take them fools.” They talked about
arrangements to pick up something so that “the little homies” can “[h]andle what they
gotta handle.”
       A flurry of calls followed. Rivera talked to an unknown man at 7:55 p.m. about
meeting plans to pick “it” up; Rivera advised the other speaker that the “homie’s gonna


                                            5
need that right now.” At 8:32 p.m., another unidentified speaker told Rivera that Trece
member Raul Soltero had the item but that it needed shells, meaning casings or bullets.
Rivera said that he had advised “them” that they needed to get shells. The unknown man
asked, “They gonna burn it up or what?” Rivera responded, “They’re gonna do
something.” Seconds after that call ended, Rivera told Soltero that he would try to send
either Silva or the Camposes to pick up the item so that Soltero would not have to travel
with it. At 8:35 p.m. Rivera sent Silva to pick it up from Soltero. In an 8:40 p.m. call,
Rivera told Soltero they were driving an older white truck, and Rivera and Soltero stayed
on the phone until Soltero confirmed that he saw the truck. Meanwhile, Trece members
continued to search for ammunition: Saul asked Roman for shells for a “nino,” a nine-
millimeter handgun, and Roman said he would attempt to locate some. Rivera asked
Soltero for ammunition but Soltero had none.
       These conversations prompted law enforcement to send officers toward Soltero’s
street to intercept the white truck and disrupt the plan for Pasqual and Silva to pick up the
gun from Soltero. The police spotted Silva driving his white Ford F-150 pickup truck
and Pasqual in the passenger seat. When the police pulled Silva over, Pasqual jumped
out of the truck and fled, throwing a blue steel handgun with an extended magazine over
a fence as he ran. The police pursued Pasqual, took him into custody, and recovered the
blue steel handgun.
       At 9:05 p.m., Silva told Rodriguez that the police “just chased the ‘Twin’ right
now” and probably were looking for him (Silva) too. Silva believed that they had caught
Pasqual. Silva thought that the police would conduct a raid and that Rodriguez should
tell everyone to leave the neighborhood. Later that night, Silva explained to Rivera that
they had picked up the gun as planned but then encountered the police, and Pasqual ran.
Rivera asked if the police found the weapon. Silva believed they were still searching for
it.
       The following morning, January 20, 2007, Pasqual spoke to several other Trece
members. Pasqual told Rodriguez that he had been released and that he would search for
the gun that day. Pasqual said he lost the nine-millimeter handgun that he had obtained

                                              6
from Soltero. Pasqual said that he had been “about to go plug,” meaning about to commit
a shooting. They had intended to get ammunition but Silva became paranoid and
panicked when the police appeared. Pasqual said Silva made him jump from the vehicle,
and Rodriguez responded that it was because Pasqual had the gun. Pasqual told
Rodriguez that he did not think that the police had found the gun that he tossed away.
       Pasqual also reported to Roman that he had lost the gun. Pasqual explained that
the police pulled them over right after he had asked Roman for the ammunition. Roman
said that the police had been “hot yesterday,” which meant they had a heavy presence in
the area.
       Later that morning, Pasqual and Rodriguez were together and spoke with Silva.
Pasqual said that he knew where the gun was and that the police had not found it: “I
remember w[h]ere I threw it at[,] fool[,] because it was, once the cops started chasing me
I threw it and shit. I know where[,] fool. And they are stupid[,] fool. It landed right in
front of their face and they didn’t even see it.” Pasqual cautioned Silva to stay away and
to hide his truck. Silva said the police did not take down his license plate number, but
Pasqual thought they might have, and Silva opined that if the police did not find the gun
they would have no case against him.
       Pasqual was convicted of active participation in a criminal street gang (count 13)
and conspiracy to commit murder (count 11), with count 11’s gang enhancement under
section 186.22, subdivision (b) found true. Saul was not charged in conjunction with this
incident.

       D. Baby Shower Incident, February 3, 2007 (Charges Against Saul)
       On February 2, 2007, at 5:16 p.m., Pasqual told Arellano that a person wearing a
blue hat in a white car had shot at him and Roman. Roman then described the shooter
and the car, a Honda, to Arellano. At 5:32, Pasqual described the shooting and the
shooter to Saul. When they spoke again a few minutes later, Saul said that he was not
going to call the police but would “handle this myself.”




                                             7
       A series of phone calls followed concerning arrangements for guns and
ammunition. By 5:45 p.m., Silva and an associate spoke about the shooting and
discussed having “something over there” that belonged to Garcia by the next day. At
7:20 p.m., Lozano and another person discussed the shooting attempt and where the
“mini,” a mini assault rifle, was. At 7:53 p.m., Pasqual described the details of the
shooting to Lozano, and Lozano said that he was trying to get Pasqual a weapon
immediately. Pasqual said he had already borrowed one, but Lozano said that he would
try to get one for him so that he did not have to borrow one. Pasqual reported that he was
standing guard in the neighborhood looking for a white Honda.
       Shortly before 8:00 p.m., Lozano told Rodriguez that he had all the “banana ones,”
meaning a long magazine called a banana clip. They discussed that Carlos Montelongo, a
friendly member of the Florencia gang, had the mini-K, the mini assault rifle. Soon
afterwards, Rodriguez asked Lozano if the banana clips were loaded. Lozano confirmed
that they were, and told Rodriguez to see a person called Mono to get them. Lozano
instructed Rodriguez to retaliate: “[T]ag them mother fuckers, fool. Don’t let them
niggas go on y[a’ll’s] block and bust on y[’all].”
       At 8:13 p.m., Rodriguez asked Lozano to call Mono so that Rodriguez and
Montelongo could go pick up a “banana” from him. Lozano then instructed Roman to
call Mono and “tell him to take out the two clips he has there for the ‘mini[]’. The
homies are going to pick it up right now.” At 8:22 p.m., Roman said Mono would have
the clips ready, and Lozano and Roman discussed sending the twins or Rodriguez to pick
them up from Mono.
       At 8:56, Saul told Montelongo, “Let’s go cause some damage[,] fool.” To “cause
damage” meant to perform a gang-related shooting. Montelongo told Saul that he felt
like causing some damage, and that Saul could use the nine-millimeter handgun while he
would use the mini assault rifle. Montelongo said he wanted to “serve those fools,”
meaning to shoot them. Montelongo said he needed a stolen car, and Saul told
Montelongo to “hit him up” once he had one.



                                             8
       Later that evening, Lozano checked in with Rodriguez. Rodriguez said he was
standing guard but nothing was happening. Rodriguez mentioned that Montelongo had
the mini-K. Lozano told Rodriguez that if he needed anything, or if it got “hot” where he
was, he could come over.
       The following evening, February 3, 2007, at 6:04 p.m., Saul told Rodriguez that
Montelongo wanted a stolen vehicle, and that he and others were going to pick up
Rodriguez. A minute later Saul told Rodriguez they were about to leave, and Rodriguez
told them to call when they had reached a certain location. By 7:06 p.m. Saul and
Rodriguez were in one vehicle, while Montelongo was in another. Saul asked
Montelongo where he wanted them to “roll out,” and Montelongo said that they should
park on Cherry Street and wait for him because he had “the heat.” At 7:12 p.m.,
Montelongo told Saul to leave for Cherry Street, and that he was going to “just make sure
[they’re] out there[,] fool[,] and we’re going to roll right now.” At 6:18 p.m.,
Montelongo told Saul where to park. At 6:19 p.m., Montelongo told either Saul or
Rodriguez to come out so that they could “plan this shit out right quick.”
       At 8:05 p.m., Rodriguez asked Roman for the mini assault rifle, and a minute later
asked a person known as “Shanky” to hold it. Rodriguez told Shanky he was with one of
the twins and Montelongo.
       At 8:20 p.m., Saul and Pasqual spoke. Pasqual asked Saul if he had the AK-47
assault rifle with him, and he advised Saul that if he were to get caught he should make
sure that Rodriguez took the blame. At 8:39 p.m., Montelongo told Saul that if he saw
“those niggers,” he should shoot them, but that he should make sure no one else was
around.
       Later that evening, Montelongo and his girlfriend Laura Marquez picked up Saul
and Rodriguez in Montelongo’s van. They dropped off Saul and Rodriguez, who then
stole a red car and followed Montelongo. Montelongo pointed at a house on East Bliss
Street and told Marquez it was the house they were going to shoot. Marquez heard two
shots. Saul and Rodriguez ran back to the van. Saul had been shot in the buttocks.
Montelongo began to drive to the hospital, but he was stopped by police who were on the

                                             9
scene because they anticipated a drive-by shooting based on the wiretapped
communications. Montelongo, Marquez, Rodriguez, and Saul were in the van when it
was stopped. A loaded mini-14 rifle and .223-caliber ammunition were found in the van,
and there were bloodstains on the back bench seat.
       Marquez told the police that the people in the van had just been involved in a
drive-by shooting. She directed them to the house at 2227 East Bliss Street. Marquez
told the police that Saul said that he wanted to shoot someone at that house. She said that
she saw Saul, who was the passenger in the red car, shoot once at the Bliss Street
residence. Marquez identified an abandoned red Honda to the police as the car that Saul
and Rodriguez had used.3 The owner of the East Bliss Street house told police that
people in the red car had fired upon him and that he had fired back.
       In conjunction with these events, Saul was charged with conspiracy to commit
murder (count 14), active participation in a criminal street gang (count 15), and two
counts of attempted murder (counts 21 and 22). Pasqual was not charged in connection
with this incident.
       In his opening statement, the prosecutor played recordings of six of the telephone
calls intercepted by the wiretap on February 2 and 3, 2007, and he also asserted that Saul
fired at least one shot and was found with gunshot residue on his hands. Later in the trial,
before the presentation of evidence concerning these counts, the prosecutor advised the
court that he had learned that Alfredo Vargas, the owner of the East Bliss Street home,
now admitted that he had lied to the police and in prior testimony. Vargas now reported
that no one had shot at his family on February 3, 2007, and that his neighbor was the one
who had fired on the red car.



3      At trial, Marquez stated that she had not seen Saul shoot at anyone and that she
had lied to the police. She also testified that she had lied when she told the police that
Saul said he wanted to shoot someone at the East Bliss house. She stated that she had
lied when she testified before the grand jury that she had seen a gun come out from the
red Honda just before the shooting started. Marquez identified several other statements
she had made to the police as false.

                                            10
       The prosecutor advised the court that the prosecuting attorneys believed Vargas’s
recantation, that it was consistent with ballistic evidence, and that it appeared that two
relatives of Vargas who were potential witnesses also appeared to have lied, although
they had not admitted it. The prosecutor explained that the People no longer believed
that there had been any attempted murder in the Baby Shower incident and requested that
the two attempted murder charges be dismissed in the interest of justice, but also declared
his intent to continue to proceed on the conspiracy to commit murder charge, count 14.
       Saul’s counsel moved for a mistrial on the ground that the prosecutor’s opening
statement and the playing of the six telephone calls during the opening statement
irrevocably prejudiced him. Silva and Pasqual joined in the motion. The trial court
denied the motion but invited Saul to submit a special instruction advising the jury that
although the conspiracy count remained active, any evidence of the defendants shooting
would “go out because the witnesses have recanted, and the evidence supports their
recantation.” Saul’s attorney told the court he would prepare such an instruction, but it
does not appear from this record that he did so. Vargas ultimately testified that he had
lied when he said that the occupants of the red car fired on him and he fired back. He
claimed to have lied to protect his family from other gang members.
       Saul testified in his own defense. He testified that he was not a gang member, but
that Pasqual was, and that he and his twin did not get along. Saul said that Pasqual called
him on February 2, 2007, in the recorded call that had been played by the prosecution,
and said that someone had shot at him at their house. Saul was upset because his family
lives there. He did not call the police because he did not trust them. Instead, he accepted
a nine-millimeter handgun from Montelongo so that he could protect his family if the
shooters returned. Saul did not know how to handle guns and had never fired one before.
He returned the gun to the backyard of Montelongo’s house the following day because “I
was scared. I was afraid. I didn’t want to hold the gun.” He never intended to kill
anyone.
       Saul testified that on the evening of February 3, 2007, he stole a red Honda with
Rodriguez for a joyride. He had been told that two cars were in the neighborhood, one of

                                             11
which looked like the car from which the shots had been fired at the Campos residence
the day before. Saul and Rodriguez looked for the two vehicles. Saul was looking for
these cars because “I felt like my life was being threatened. They kept passing by my
house. They kept passing all through there, you know, like they want to do something.”
He thought they would “probably shoot at [his] house again,” and he wanted to scare
them off by jumping out and possibly fighting them. He had no idea that Montelongo
was looking for a gun that night. As they drove down East Bliss Street, Saul was shot.
He panicked and ran away. After running some distance and hiding in a house, he waved
down Montelongo’s van. Rodriguez was already in the van.
       Saul was convicted of conspiracy to commit murder (count 14), with the gang
enhancement allegation under section 186.22, subdivision (b) found true; and two counts
of active participation in a criminal street gang (counts 15 and 16).

       E. Sentencing
       The Camposes were sentenced together. At the sentencing hearing, held in August
2014, Pasqual presented the live statement of a teacher who had worked with him after
his arrest. She spoke about the need to treat juvenile offenders differently than adult
offenders; endorsed then-pending legislation concerning juvenile sentencing; requested
that Pasqual be given a second chance; and emphasized his youth and immaturity at the
time of the offenses.
       Counsel for both brothers urged the court to impose the two 25-year-to-life
sentences concurrently rather than consecutively. Counsel for Saul argued that
consecutive 25-year-to-life sentences would be the functional equivalent of sentences of
life in prison without parole. Pasqual’s attorney reminded the court of the boys’ ages at
the time of the crimes, noted that new laws about parole for juveniles contemplated
differentiating children of the boys’ age from other defendants, and argued that the court
could and should impose concurrent sentences on the two conspiracy to commit murder
counts. In Pasqual’s case, counsel noted, there would also be an additional sentence for




                                             12
his conviction on count 5, and he asked the court to impose a total sentence of 28 years, 4
months to life in state prison for Pasqual.
       The court asked the prosecutor to address the issue of the defendants’ age. The
prosecutor acknowledged that the defendants’ age was a factor militating in favor of
concurrent sentencing, but argued that all other factors supported the imposition of
consecutive sentences. One of the major factors in determining whether to impose
concurrent or consecutive sentences, the prosecutor observed, was whether the crimes
were independent in nature. Here, there were four separate crimes over a span of some
months, each with distinct victims and separate mechanisms for the crimes’ execution.
The threat of bodily harm was great in each incident, as both Saul and Pasqual were
personally armed with firearms. They also intended to carry out drive-by shootings,
crimes which leave victims particularly vulnerable.
       The prosecutor argued that both Pasqual and Saul had been active participants who
showed substantial planning to coordinate the intended attacks and to identify specific
targets. Pasqual provided the firearm in one conspiracy, a weapon he obtained by
inducing Roman to participate. In the other conspiracy, Saul had induced Montelongo to
participate by suggesting they “cause some damage,” and then Saul encouraged him to
steal a car for their drive-by shooting. The prosecutor concluded that despite their youth,
both Pasqual and Saul had shown “great sophistication and independent instances with
preparation and an enormous threat of harm.” Pasqual, moreover, had attempted to
capitalize on his juvenile status in the course of the crimes: knowing that he was a
juvenile, he took the gun and ran from an adult gang member to insulate the adult gang
member from criminal liability. The prosecutor argued that these aggravating factors
outweighed the Camposes’ age. “They show a lot more poise, planning, and
sophistication and potential for danger than other boys their age. They acted like
dangerous men in these cases, not like boys.”
       The court asked whether consecutive sentencing would result in sentences
functionally equivalent to life without parole. The prosecutor responded that the only
difference between consecutive sentences in the case and a life sentence was “a 60-year-

                                              13
old can parole.” The court said it believed that consecutive sentences for the Camposes
would constitute a functional equivalent of life without parole: “I don’t have any choice
in the matter. It’s not that I want to, it’s that I believe that’s what the law is.”
       The court then sentenced Saul to two concurrent sentences of 25 years to life in
state prison (counts 1 and 14). The court stayed the 10-year gang enhancement on count
1 and three high terms on counts 3, 15, and 16. The court sentenced Pasqual to two
concurrent sentences of 25 years to life in state prison (counts 1 and 11), with the 10-year
gang enhancement on count 1 stayed. The court imposed a concurrent high term
sentence on count 5, with a mid-term sentence on the gang enhancement on that count;
and imposed but stayed high term sentences on counts 3, 7, 13, and 16. The court
identified six aggravating factors and one mitigating factor, the defendants’ age, in
selecting the high term sentences. The court awarded custody credits and imposed
various fines and fees for each defendant. Both Saul and Pasqual appeal.

                                        DISCUSSION
       I.      Denial of Saul’s Mistrial Motion

       During the prosecutor’s opening statement, while discussing the Baby Shower
incident, the prosecutor played recordings of six telephone calls intercepted by the
wiretap on February 2 and 3, 2007, and stated that Saul fired at least one shot while
traveling past the Vargas residence on February 3, 2007. During the trial, before the
presentation of evidence concerning the incident, the prosecutor advised the court that
Vargas had recanted and now stated that no one had fired from the car. Vargas now
claimed that his neighbor had fired on the red car. The prosecutor requested that the two
attempted murder charges be dismissed in the interest of justice, but intended to proceed
on count 14, the charge of conspiracy to commit murder.4
       Saul moved for a mistrial on the ground that the prosecutor’s assertion that he had
fired a shot and the playing of the telephone calls during the opening statement


4      Count 15, active participation in a criminal street gang, also survived, although the
parties do not discuss it on appeal.

                                               14
irrevocably prejudiced him. Defense counsel argued that because the jury had been told
that a shooting occurred and that Saul fired at least one round, and because the calls were
played for the jury, “[t]hat evidence has been placed in front of the jury,” and there was
no way an instruction could cure the prejudice from the erroneous assertion that a shot
was fired from the red car. Counsel argued that the jurors “are going to go back into the
jury room at the end of this trial wondering what the hell happened, why this has been
dismissed but remembering that the evidence is that he committed the crime.” The
prosecutor argued that an opening statement is not evidence and no evidence had been
placed before the jury; and advised the court that the recorded telephone calls that had
been played remained relevant to the charge of conspiracy to commit murder. Co-
defendants Pasqual and Silva joined in the mistrial motion.
       The trial court denied the motion for a mistrial but said it would be “happy to”
instruct the jury with an instruction prepared by counsel stating that although the
conspiracy count remained active, evidence that the defendants fired a gun would “go out
because the witnesses have recanted, and the evidence supports their recantation.” Saul’s
attorney said he would prepare a special instruction but apparently did not do so.
       Saul argues that the trial court abused its discretion and denied him a fair trial
when it denied his motion for a mistrial, and that his conviction on count 14 for
conspiracy to commit murder therefore should be reversed. He contends that the
recorded telephone calls that were played to the jury were irrelevant because Vargas
recanted and counts 21 and 22 were dismissed. Saul also argues that a mistrial was
required because of the prosecutor’s statement that Saul fired a gun at the Vargas house.
He argues that the “false impression” that Saul shot at the Vargas home, when combined
with evidence presented at trial that gunshot residue was found on his hands, foreclosed
the jury’s consideration of Saul’s defense that he had no intent to kill anyone.
       The trial court did not abuse its discretion. A trial court should grant a motion for
mistrial if the defendant’s chances of receiving a fair trial have been irreparably damaged
and the error is incurable through admonition or instruction. (People v. Wallace (2008)
44 Cal.4th 1032, 1084.) When the prosecutor gave his opening statement, his assertion

                                             15
that the evidence would show that Saul shot at the Vargas house was properly presented,
as it pertained to counts 14, 15, 21, and 22. Later in the trial, before the evidence relating
to the Baby Shower incident was presented to the jury, the prosecution learned that
Vargas had recanted and, on the understanding that Saul had not in fact shot at the Vargas
home, promptly requested the dismissal of the two attempted murder counts that
pertained to the Baby Shower incident. Although the attempted murder charges relating
to the Baby Shower incident were then dismissed, a charge of conspiracy to commit
murder relating to that incident remained viable, and its viability did not depend on
whether there was an actual shooting or attempted murder. The recorded telephone calls
remained relevant to the surviving charge of conspiracy to commit murder in count 14.
       To the extent that any prejudice resulted from the ultimately inaccurate statement
in the opening statement that Saul had fired at least one shot, the trial court’s invitation to
Saul to prepare a special instruction indicates the court’s implicit determination that any
such prejudice could have been cured by such an instruction. Because a special
instruction would have cured any potential harm from the inaccuracy in the opening
statement by informing the jury that the witnesses had recanted their account that a shot
was fired and that the evidence supported their recantation, Saul forfeited his claim by
failing to submit a curative instruction when invited to do so. (People v. Bennett (2009)
45 Cal.4th 577, 611-612.)
       Saul argues that if his trial counsel forfeited this issue by failing to draft a special
instruction, that failure constituted ineffective assistance of counsel within the meaning of
Strickland v. Washington (1984) 466 U.S. 668. To establish ineffective assistance of
counsel, Saul must demonstrate that “(1) counsel’s representation was deficient in falling
below an objective standard of reasonableness under prevailing professional norms, and
(2) counsel’s deficient representation subjected the petitioner to prejudice, i.e., there is a
reasonable probability that, but for counsel’s failings, the result would have been more
favorable to the petitioner.” (In re Neely (1993) 6 Cal.4th 901, 908.) We need not
consider whether counsel’s performance was unreasonably deficient because Saul has
not established that he was prejudiced by the failure to draft a special instruction.

                                              16
(See People v. Carrasco (2014) 59 Cal.4th 924, 982.) The jury was instructed with
CALCRIM Nos. 203 and 205, which identified the specific surviving charges against
Saul and informed the jury that the attempted murders charged in counts 21 and 22 no
longer needed to be decided. Saul has not shown that those instructions were insufficient
to dispel any prejudice that arose from the representation in opening argument that Saul
had fired a weapon on February 3, 2007.
       Saul also contends that no admonition or instruction could have cured the
prejudice arising from the opening statement because by the time the jury was required to
consider count 14, the jurors had already been “tainted” by hearing in the opening
statement that Saul had fired at least one shot from the vehicle. He argues that the
prejudice arising from the representation in the opening statement that he had fired a
weapon was compounded by the evidence presented at trial: the prosecution “further
muddied the water” by presenting gunshot residue evidence at the trial that demonstrated
that Saul “‘could have fired a gun’ on the night in question.” The expert witness who
performed the gunshot residue testing, however, testified that the residue could have been
deposited on Saul’s hands in multiple ways, such as firing a gun, handling a gun, being in
close proximity to someone who fired a gun, touching a surface with gunshot residue on
it, or some combination of these actions. Whether Saul actually fired a gun was not
important to the prosecution’s theory with respect to count 14, as the prosecutor made
clear at closing: “And the fact that they didn’t get to shoot because they were shot at
doesn’t negate why they went there, what they went there with, how much surveillance
they did of this location, and that there was a specific target identified at a specific
location, and that’s where they were going, and that’s where they went.”
       Saul claims that the “jury was left with the impression appellant was a dangerous
person who should be convicted regardless of the facts,” but he does not explain how that
was so when the existence of a conspiracy to commit murder did not depend on whether
Saul fired a weapon on February 3, 2007. Although Saul asserts that CALCRIM Nos.
203 and 205 were insufficient to dispel the prejudice, he has not demonstrated that these



                                              17
instructions were inadequate to cure any prejudice arising from the opening statement in
light of Vargas’s mid-trial recantation.


       II.     Instructional Issues
               A. Denial of Self-Defense Instructions on Count 14

       Defense counsel requested self-defense instructions as to count 14, the charge that
Saul conspired to commit murder in the Baby Shower incident on February 3, 2007.
Counsel argued that Saul intended to protect his family and his neighborhood from rival
gang members by driving around the neighborhood to locate and drive out rival gang
members who were there to find someone to shoot. Saul’s counsel argued that Saul was
“a 15-year-old kid who was trying to do what he could do to protect himself and his
loved ones.”
       The prosecutor argued that the principles of self-defense did not encompass the
situation in which a person drives around his neighborhood searching for someone to
shoot; that would be “essentially a ‘get out of jail free’ card because I am in some
amorphous self-defense area protecting my family; therefore, I can shoot anybody I
want.” The prosecutor pointed out that such a construction of self-defense would be a
“really, really bad policy.” The prosecutor reiterated that there was no “global self-
defense as a gang member that exonerates you from future crimes and preemptive strikes
against your rivals,” and argued that because the two attempted murder charges in counts
21 and 22 were dismissed, self-defense instructions were not appropriate. The trial court
agreed that self-defense instructions were not warranted: “To allow gang members who
are engaged in a constant warfare with their rifles because of any incident to say they can
then arm themselves and plan to shoot[] to remove that threat is not a self-defense
argument.”
       Defense counsel asked the court whether the court was “talking about a policy,”
and the court responded that it was. Counsel acknowledged the court’s concern about the
message being communicated by the availability of the instruction but argued that jury
instructions warranted by the evidence should not be denied as a matter of policy. The

                                             18
trial court clarified that even in the context of “continuing warfare between gang
members,” self-defense could be available on appropriate facts: “Now, had somebody
actually shot and may have returned fire that day because they have a fear, and you had
the evidence to support it based on testimony or in this case wiretaps, I am not saying you
couldn’t apply self-defense to an actual shooting event. But to try to apply it to a
conspiracy just doesn’t wash” because it would be tantamount to giving a “get out of jail
free card.” “Gangs are in constant warfare with each other,” the trial court noted. “[Y]ou
can’t create the situation to make self-defense applicable. And if you want to take it to its
logic[al] conclusion, that’s what gang warfare is. It’s creating the thing. We’re always
going to be at war; we’re always going to be doing acts against each other. Therefore,
you don’t get to use self-defense.”
       Saul argues that the trial court committed reversible instructional error with
respect to count 14 when it declined to give instructions on self-defense and imperfect
self-defense. The trial court “must instruct on general principles of law relevant to the
issues raised by the evidence and necessary for the jury’s understanding of the case.”
(People v. Martinez (2010) 47 Cal.4th 911, 953 (Martinez).) That duty extends to
instructions on the defendant’s theory of the case, “including instructions ‘as to defenses
“‘that the defendant is relying on . . . , or if there is substantial evidence supportive of
such a defense and the defense is not inconsistent with the defendant’s theory of the
case.’”’” (People v. Abilez (2007) 41 Cal.4th 472, 517.) On appeal of the denial of a jury
instruction, we review the record de novo to determine whether it contains substantial
evidence to warrant the rejected instruction. (People v. Manriquez (2005) 37 Cal.4th
547, 581, 584.)
       Homicide is justified when it is committed in self-defense, that is, when the
defendant actually and reasonably believes in the need to defend against imminent bodily
injury or death. (People v. Elmore (2014) 59 Cal.4th 121, 133-134; §§ 197, 198.)
Imperfect self-defense arises when a defendant has an actual but unreasonable belief in
the necessity to defend against the imminent danger of suffering great bodily injury or
being killed. (Elmore, at p. 134.) Imperfect self-defense negates the element of malice.

                                               19
(Ibid.) Because a conspiracy requires express malice, both perfect and imperfect self-
defense appear to be a complete defense to a charge of conspiracy to commit murder.
(See People v. Cortez (1998) 18 Cal.4th 1223, 1237; People v. Battle (2011) 198
Cal.App.4th 50, 75 [“a conspiracy to commit murder is always a conspiracy to commit
first degree murder and provocation cannot reduce it to a conspiracy to commit second
degree murder”].)
       There was no substantial evidence to support self-defense instructions on count 14.
Specifically, there was no evidence showing that at the time Saul conspired with his
associates he reasonably and/or actually believed that he was, or that third parties were, in
imminent danger of suffering great bodily injury or being killed and that he had to
immediately use deadly force to defend against the danger. The evidence showed that
Saul conspired to kill rival gang members on February 2 after his brother was fired upon,
but that he did not go looking for rivals until the following night. He chose not to call the
police after some rival gang members fired shots outside his home, saying that he would
handle the situation himself instead. He handled the situation by agreeing over the phone
to murder rival gang members. There was no evidence that at the time he did so Saul was
in imminent danger of being shot or had any cause to believe he had an immediate need
to use deadly force. He and other gang members began planning to retaliate, arranging
for weapons, ammunition, and a stolen car, all of which they had acquired by the
following night when they went out looking for rivals to confront or kill. This evidence
is inconsistent with self-defense. “Fear of future harm—no matter how great the fear and
no matter how great the likelihood of the harm—will not suffice. The defendant’s fear
must be of imminent danger to life or great bodily injury. ‘“[T]he peril must appear to the
defendant as immediate and present and not prospective or even in the near future. An
imminent peril is one that, from appearances, must be instantly dealt with.” . . . [¶] This
definition of imminence reflects the great value our society places on human life.’
[Citation.] Put simply, the trier of fact must find an actual fear of an imminent harm.”
(In re Christian S. (1994) 7 Cal.4th 768, 783, italics original.) Although Saul describes
himself as riding around on February 3, 2007, looking for suspicious cars, focusing

                                             20
purely on protection, and believing that rival gang members would “probably” shoot at
his house again in the future, he does not identify any evidence that he acted under the
fear of imminent danger to life or great bodily injury when he entered into the conspiracy.
       Saul argues that there is “no authority for denying a defendant self-defense or
imperfect self-defense instruction because he is (a) a gang member and/or (b) he is a gang
member caught in warfare with rival gangs.” While the court did discuss the policy
implications of permitting gang members to assert self-defense with respect to a
conspiracy to commit murder within the context of ongoing inter-gang violence, our
review is confined to the correctness of the trial court’s ruling, not its reasoning. (People
v. Chism (2014) 58 Cal.4th 1266, 1295, fn. 12.) Here, because there was no substantial
evidence that Saul conspired to commit murder as charged in count 14 under the belief
that he was in imminent danger of suffering great bodily injury or being killed and that he
had to immediately use deadly force to defend against the danger, the trial court properly
declined to give self-defense instructions.

              B. Denial of Requested Special Instruction That Criminal Liability Cannot
                 be Based Solely on Membership in a Group

       Pasqual requested that the trial court instruct the jury that “[c]riminal liability
cannot be based solely on the membership [in] a group.” The court refused to give the
instruction because it was “liable to confuse the jury with how you prove membership in
a gang, for what purpose you prove it, what is allowable, what is not allowable.” The
court said that those matters were already covered clearly by the instructions and that the
proposed instruction was argumentative. Pasqual argues that the court erred when it
refused to give his proposed instruction and that his convictions for active participation in
a criminal street gang (counts 3, 7, 13, and 16) must be reversed as a result.5



5      Saul joins in Pasqual’s argument and asserts that his “rights were equally affected
by the trial court’s decision not to instruct the jury that criminal liability cannot be based
solely [on] group membership.” Although Saul does not specify which of his criminal
convictions he claims to have been affected by the denial of this instruction, we presume

                                              21
       While the trial court must instruct on general principles of law that are relevant to
the issues raised by the evidence and necessary for the jury’s understanding of the case
(Martinez, supra, 47 Cal.4th at p. 953), the court “may refuse a proffered instruction that
is incorrect, argumentative, or duplicative.” (People v. Boyce (2014) 59 Cal.4th 672,
706.) Pasqual’s proposed jury instruction was duplicative of CALCRIM No. 1400.
       Although the proposed instruction referred generally to membership in a “group,”
the only group relevant to a violation of section 186.22, subdivision (a) is a criminal
street gang. Both currently and at the time of the charged offenses section 186.22 has
provided that “[a]ny person who actively participates in any criminal street gang with
knowledge that its members engage in or have engaged in a pattern of criminal gang
activity, and who willfully promotes, furthers, or assists in any felonious criminal
conduct by members of that gang, shall be punished by imprisonment in a county jail for
a period not to exceed one year, or by imprisonment in the state prison for 16 months, or
two or three years.” (§ 186.22, subd. (a).)
       CALCRIM No. 1400 is the pattern jury instruction given when a defendant is
charged with violating section 186.22. As given in this case, CALCRIM No. 1400
provides that for a defendant to be guilty of the crime of active participation in a criminal
street gang, the People must prove: “1. The defendant actively participated in a criminal
street gang; [¶] 2. When the defendant participated in the gang, he knew that members
of the gang engage in or have engaged in a pattern of criminal gang activity; [¶] AND
[¶] 3. The defendant willfully assisted, furthered, or promoted felonious criminal
conduct by members of the gang either by: [¶] a. directly and actively committing a
felony offense; [¶] OR [¶] b. aiding and abetting a felony offense.” Among the many
definitions in the instruction is the explanation that “[a]ctive participation means
involvement with a criminal street gang in a way that is more than passive or in name
only.” Mere presence at the scene of a crime or the failure to prevent it, the instruction



that he also challenges his convictions for active participation in a criminal street gang
(counts 3, 15, and 16).

                                              22
notes, is insufficient on its own to make a person an aider or abettor for the purposes of
this offense.
       CALCRIM No. 1400 instructed jurors that for Saul or Pasqual to be convicted of
violating section 186.22, subdivision (a), not only did he have to actively participate in a
criminal street gang with the requisite knowledge of the gang’s pattern of criminal
activity, but also he had to willfully assist, further, or promote felonious criminal conduct
by members of the gang either by directly and actively committing a felony offense or by
aiding and abetting a felony offense. This instruction accurately and thoroughly
informed the jury of the legal requirements for a conviction of this offense, and it
precluded the jury from finding the defendants guilty of violating section 186.22,
subdivision (a) based solely on mere membership in or affiliation with a criminal street
gang. The trial court did not err in refusing the proposed jury instruction.


                C. CALCRIM No. 563

       Saul, joined by Pasqual, argues on appeal that as given here, the jury instruction
on conspiracy, CALCRIM No. 563, removed issues from the jury’s consideration and
deprived the jury of its fact-finding role by declaring that the defendants committed overt
acts with the intent to kill. Specifically, they argue that on count 1, one of the overt acts
alleged to have been undertaken in furtherance of the conspiracy was that Pasqual and
Silva searched for rival gang members “to shoot and kill,” and another listed overt act
alleged that Pasqual and Silva telephoned Saul and Roman and directed them to a
location where they could find a rival gang member “for the purposes of killing the rival
gang member.” Additionally, Saul challenges the inclusion in count 14 of the alleged
overt act that Saul, Rodriguez, and Montelongo drove into rival gang territory “to find
rival gang members to shoot and kill.” According to Saul, these passages in the jury
instruction improperly instructed “the jury that defendants undertook the acts with the
intent to kill.”
       We conclude that there is no reasonable likelihood that the jury understood
CALCRIM No. 563 in the manner asserted by the Camposes. (People v. Cole (2004) 33

                                              23
Cal.4th 1158, 1212.) CALCRIM No. 563 advised the jury that to prove that a defendant
was guilty of conspiracy to commit murder, the People were required to prove, among
other elements, that the defendant committed at least one of a list of alleged overt acts
pursuant to the agreement to kill. The passages of which appellants complain were all
alleged among the possible overt acts. CALCRIM No. 563 did not instruct the jury that a
defendant had taken any of the actions listed or that he had any specific intent; instead, it
advised the jury that for the People to prove that the charged defendant was guilty of
conspiracy to commit murder, the People were required to prove that a defendant
undertook one or more of those overt acts. Where, as in the examples set forth above, the
overt act alleged the actor’s intention, it is clear from a reading of the full jury instruction
that the jury was charged with determining whether the People had proven both that the
act was undertaken and that it was undertaken with the specified intent. There is no
reasonable likelihood that the jurors would have understood CALCRIM No. 563 as
instructing them what the actors’ intents were rather than placing before them the
question of whether the People had proven the acts and intents in question. Appellants
have not established any error in CALCRIM No. 563 as given with respect to counts 1
and 14.

       III.   Sufficiency of the Evidence
              A. Count 1, Conspiracy to Commit Murder

       Saul asserts that the evidence was insufficient to support his conviction on count 1
for conspiracy to commit murder in the Lucio Amparo incident. “‘When considering a
challenge to the sufficiency of the evidence to support a conviction, we review the entire
record in the light most favorable to the judgment to determine whether it contains
substantial evidence—that is, evidence that is reasonable, credible, and of solid value—
from which a reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt.’ [Citation.] We determine ‘whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.’ [Citation.] In so doing, a reviewing


                                               24
court ‘presumes in support of the judgment the existence of every fact the trier could
reasonably deduce from the evidence.’ [Citation.]” (People v. Edwards (2013) 57
Cal.4th 658, 715, italics omitted.)
       “One who conspires with others to commit a felony is guilty as a principal. (§ 31.)
‘“Each member of the conspiracy is liable for the acts of any of the others in carrying out
the common purpose, i.e., all acts within the reasonable and probable consequences of the
common unlawful design.” [Citations.]’ [Citation].” (In re Hardy (2007) 41 Cal.4th
977, 1025-1026.) A conspiracy conviction requires proof that the defendant and one or
more other persons 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, and proof of the
commission of an overt act by one or more of the parties to the agreement in furtherance
of the conspiracy. (People v. Smith (2014) 60 Cal.4th 603, 616.) The elements of
conspiracy may be proven with circumstantial evidence. (People v. Vu (2006) 143
Cal.App.4th 1009, 1024 (Vu).)
       Saul contends that there was no evidence that he had the intent to conspire or the
intent to commit murder. “Because there rarely is direct evidence of a defendant’s intent,
‘[s]uch intent must usually be derived from all the circumstances of the attempt,
including the defendant’s actions.’ [Citation.]” (Vu, supra, 143 Cal.App.4th at p. 1025.)
We conclude that the evidence was sufficient to support Saul’s conviction on count 1.
       The first evidence of the conspiracy was a telephone call on December 13, 2006,
in which Pasqual asked Roman where to find a gun because he had seen one or more
rival gang members near his school. When Roman said that he had the gun, Pasqual
directed him to bring it quickly to him at his home. In response to this intercepted call,
law enforcement officers traveled to the area, disrupting the planned transfer. Shortly
thereafter, Roman called Pasqual to say that he was still at home because the police were
nearby, frustrating Pasqual because a rival gang member was “set up in target.”
Although Saul was not a speaker during these calls, his later conduct and statements
permitted the jury reasonably to infer that at some point Pasqual or Roman apprised Saul
of the situation and that he was part of the plan.

                                             25
       On December 15, 2006, at 9:35 p.m., Roman said he was with Pasqual and Saul,
and told an unidentified person to call if he saw any suspicious cars. At 10:04 p.m.,
Pasqual told Roman he had spotted a rival gang member who was “slipping,” or not
paying attention to his surroundings, and that he was a potential target as long as Roman
did not mind shooting a woman too. The next minute, Pasqual directed Roman where to
find the target, again noting that he would need to “not mind shooting” a woman. Saul,
Pasqual, and Roman had difficulty putting their plan together. They discussed the exact
location of the targeted rival gang member on the specified street, with Pasqual
describing to an inquiring Saul and Roman where to find him. Saul asked whether the
target was in the middle of the block. Eventually, one of the three said to come back
because they were making things too complicated.
       At 10:07 p.m., Saul and Silva spoke, and Silva gave Saul directions similar to
those that Pasqual had previously given to the location of the rival gang member. Silva
told Saul that the target would be on the right-hand side of the street “two houses down[,]
he’s right there outside with a hyna[,] fool.” Silva assured Saul that “everything” was
“quiet,” and that they would not know what was coming. Silva told Saul that he was in
the area already and that Saul should tell him “if you guys are going . . . that way I [can]
get behind you guys.” Saul, apparently uncertain as to the directions, instructed Silva to
“come back” to “explain better.” Silva responded, “You ain’t gonna do it, huh[?] [All
]right, fuck it[,] don’t do it then[,] man, fuck it then.” Saul answered, “Just come over
here[,] fool[,] so we can do [it].” Within approximately one hour, Roman shot Amparo.
       These recorded conversations provided substantial evidence showing Saul had the
intent to agree or conspire, and the intent to carry out the murder of a rival gang member.
Although Saul did not participate in the initial discussions of guns and rivals, he actively
participated in the attempt to locate the targeted gang member on the night of the
shooting, and the jury could reasonably infer from Saul’s active involvement and his
relationship with the other participants that he had agreed with the others to conspire to
commit murder and that he had the specific intent to commit murder. “Evidence is
sufficient to prove a conspiracy to commit a crime ‘if it supports an inference that the

                                             26
parties positively or tacitly came to a mutual understanding to commit a crime.
[Citation.] The existence of a conspiracy may be inferred from the conduct, relationship,
interests, and activities of the alleged conspirators before and during the alleged
conspiracy. [Citations.]’ [Citation].” (People v. Rodrigues (1994) 8 Cal.4th 1060,
1135.) Saul argues that his conversation with Silva shows that he was not in agreement
with the plan to shoot the rival gang member and his female companion and that he
lacked the necessary intent to support a conspiracy conviction. This claim of
disagreement is belied by Saul’s final exhortation to Silva to come over “so we can do
[it].” Moreover, the jury could consider the completed shooting as evidence that Saul had
entered into a conspiracy to commit the crime. (See Vu, supra, 143 Cal.App.4th at
pp. 1024-1025.)


              B. Count 11, Conspiracy to Commit Murder

       Pasqual was convicted of conspiracy to commit murder in the Ladybug incident.
He argues that the People failed to prove that he had entered into an agreement to kill
anyone, and that the prosecution relied on the faulty assumption that because all the
actors were gang members, their attempt to transport a gun meant that they intended to
commit murder. Pasqual argues that inferences may not be based on suspicion and must
be grounded in evidence rather than speculation. (People v. Morris (1988) 46 Cal.3d 1,
21, disapproved on other grounds in In re Sassounian (1995) 9 Cal.4th 535, 543, fn. 5.)
He observes that mere association and suspicion of criminal conduct is not enough to
establish a conspiracy and that there must be some evidence that the association is also a
conspiracy. (People v. Tran (2013) 215 Cal.App.4th 1207, 1221.)
       The evidence was sufficient to permit a reasonable jury to conclude beyond a
reasonable doubt that Pasqual conspired to commit murder. On January 19, 2007, Saul,
Roman, Anthony and Rene Rivera, Soltero, and Silva extensively discussed acquiring
guns, ammunition, and a car to attack members of a rival gang. Silva and the Campos
brothers were identified as possible transporters of Soltero’s weapon. Anticipating that
Pasqual and Silva were going to transfer a firearm, the police intervened; Pasqual fled

                                             27
with a firearm. The next day, February 20, 2007, Pasqual said that the weapon he had
possessed was the nine-millimeter handgun he had obtained from Soltero, and he stated
that he had been about to get some ammunition and commit a shooting when the police
appeared. A jury could reasonably conclude from this evidence that Pasqual participated
in the conspiracy to commit murder.

       IV.    Sentencing Issues
              A.     Eighth Amendment

       Saul and Pasqual argue that their sentences of 25 years to life in state prison
constitute cruel and unusual punishment in violation of the Eighth Amendment to the
United States Constitution. The Eighth Amendment prohibits mandatory sentences of
life without parole for juvenile offenders. (Miller v. Alabama (2012) ___ U.S. ___, 132
S.Ct. 2455, 2469 (Miller).) In Miller, the Supreme Court explained that imposing
mandatory life sentences without parole on a juvenile offender “precludes consideration
of his chronological age and its hallmark features—among them, immaturity,
impetuosity, and failure to appreciate risks and consequences. It prevents taking into
account the family and home environment that surrounds him—and from which he
cannot usually extricate himself—no matter how brutal or dysfunctional. It neglects the
circumstances of the homicide offense, including the extent of his participation in the
conduct and the way familial and peer pressures may have affected him. Indeed, it
ignores that he might have been charged and convicted of a lesser offense if not for
incompetencies associated with youth—for example, his inability to deal with police
officers or prosecutors (including on a plea agreement) or his incapacity to assist his own
attorneys. [Citations.] And finally, this mandatory punishment disregards the possibility
of rehabilitation even when the circumstances most suggest it.” (Id. at p. 2468.)
       Based on Miller, supra, ___ U.S. ___, 132 S.Ct. 2455, the California Supreme
Court has held that the Eighth Amendment also prohibits states from sentencing a
juvenile convicted of a nonhomicide offense “to a term of years with a parole eligibility
date that falls outside the juvenile offender’s natural life expectancy” and thus is the


                                             28
functional equivalent of a life without parole sentence. (People v. Caballero (2012) 55
Cal.4th 262, 268 (Caballero.) More recently, the California Supreme Court decided in
People v. Franklin (May 26, 2016, S217699) 63 Cal.4th 261 (Franklin) that recent
California laws affording earlier parole hearings to youth offenders mooted claims that
their sentences violated Miller as functional equivalents of life sentences without parole.6
       Saul and Pasqual were each convicted of two counts of conspiracy to commit
murder, as well as other crimes. Although the sentencing statutes would have permitted
the trial court to sentence each defendant to two consecutive prison terms of 25 years to
life, because both Saul and Pasqual were juveniles the trial court elected to impose all
sentences concurrently so that each was sentenced to a total of 25 years to life in state
prison. The trial court selected concurrent sentencing because it believed that to impose a
sentence of 50 years to life without the possibility of parole on these juvenile offenders
would be the functional equivalent of imposing a life sentence without the possibility of
parole. As Saul and Pasqual were each sentenced to prison terms of 25 years to life, they
will be entitled to consideration for parole long before the end of their natural life
expectancy. (§§ 3046 [general parole eligibility provisions for inmates serving life
sentences], 3051, subd. (b)(3) [entitlement to youth offender parole hearing for offenders
who were under the age of 23 years at the time of the offense and who are serving life
terms of 25 or more years to life].) Their sentences therefore, do not violate Miller,
supra, ___ U.S. ___, 132 S.Ct. 2455 or Caballero, supra, 55 Cal.4th 262.
       Saul and Pasqual do not contend that they were sentenced to life imprisonment
without parole or its functional equivalent. They argue, however, that the court erred
when it sentenced them to concurrent 25-year-to-life sentences for the two counts of
conspiracy to commit murder because the court failed to consider the special
characteristics of juvenile offenders and to make an individualized assessment of the


6      The initial briefing in this case concluded prior to the issuance of the Franklin
decision. The parties submitted supplemental briefing on the impact of this decision on
Saul and Pasqual’s Eighth Amendment arguments.


                                              29
appropriate punishment, taking into account their youth, immaturity, and impetuosity;
their failure to appreciate risks and consequences; their family and home environment;
the circumstances of the crime, including the extent of their participation and the way that
familiar and peer pressures may have influenced them; the possibility that the juvenile
could have been charged and convicted of lesser offenses if it were not for
incompetencies associated with their youth; and the possibility of rehabilitation. They
argue that sentencing them to 25 years to life in prison “without an exercise of the court’s
discretion through application of the Miller factors” violates the Eighth Amendment.
       Unlike the trial court that was mandated by law to impose consecutive sentences
in Franklin, supra, 63 Cal.4th at p. 272, here the court had some sentencing discretion.
Although the Camposes were subject to a sentence of 50 years to life or more, based on
the court’s understanding of Caballero, supra, 55 Cal.4th 262 and the parties’ arguments
about the facts related to the defendants’ youth, the court exercised its discretion to
impose significantly lesser, though still lengthy, sentences here. In fact, Pasqual was
sentenced to a shorter minimum term of imprisonment than his attorney had advocated:
his attorney argued that Pasqual should be sentenced to 28 years, 4 months to life in state
prison, but the court elected to sentence him to a total of 25 years to life. This record
demonstrates that the court did in fact consider the Camposes’ youth, and, implicitly, the
special characteristics of juvenile offenders, in making its individualized determinations
of the appropriate sentences for them.
       Finally, in their supplemental briefing, Saul and Pasqual request that this court
order further proceedings pursuant to Franklin, supra, 63 Cal.4th at pages 284-285. In
Franklin, the California Supreme Court remanded the case to the trial court because it
was not clear that the defendant had been afforded sufficient opportunity at sentencing to
place on the record the type of mitigating evidence that would be useful to the parole
board at his eventual youth offender hearing. (Ibid.) Pasqual asks that we remand the
case for resentencing to the trial court with directions to determine whether he was
afforded a sufficient opportunity to make a record of mitigating evidence tied to his youth



                                             30
which could be relevant to his eventual parole consideration.7 Saul asks for a remand so
that he may make a record of such mitigating evidence for his future youth offender
parole hearing.
       Appellants present the question of whether juvenile offenders who are sentenced
to a minimum term of imprisonment that falls substantially below their life expectancy
and thus have not received a sentence functionally equivalent to life in prison without
parole, but whose minimum terms are sufficiently lengthy that their parole hearings will
not occur for many years, should be afforded the opportunity to place on the record
evidence relevant to the parole board’s eventual consideration under Franklin, supra, 63
Cal.4th 261. We need not resolve that question here, however, because it is clear from
the record that the appellants, who were sentenced after the decisions in Miller, supra,
___ U.S. ___, 132 S.Ct. 2455 and Caballero, supra, 55 Cal.4th 262, were afforded the
opportunity to present mitigating evidence at the sentencing hearing. At the start of the
hearing, immediately after the defendants advised the court that there was no legal cause
why judgment should not be pronounced, counsel for Pasqual told the court that he would
like to present a statement to the court. The court responded, “Sure, absolutely,” and a
teacher who worked with incarcerated juveniles then described for the court her
experiences with Pasqual. The teacher told the court she had worked with Pasqual on a
weekly basis for seven years, and that he had transformed from a “cocky little boy hiding
behind some kind of bravado” to a person who “showed his heart.” She declared that she
did not believe Pasqual was a monster or a person to be feared, and she told the court that
he deserved a second chance. She talked about the trend toward re-evaluating juvenile
sentencing and the evolving sense that children should be held to a different standard than
adults, and she expressed a hope that changing sentencing laws would lead to Pasqual’s
release. She concluded, “Children are not adults. They are not to be held to the same


7      Pasqual also asks that we modify the judgment to specify that he will be entitled to
a parole hearing during his 25th year of incarceration, but this is unnecessary as section
3051 is in effect.


                                            31
standard. I spent his 15th, 16th, 17th, and 18th birthday with him in jail. He is a child,
not an adult[,] and should be held to a different standard.” Pasqual’s counsel did not seek
to present further evidence, and Saul’s attorney chose not to present mitigating evidence,
but both attorneys expressly and successfully argued to the court that it should consider
the defendants’ youth at sentencing in light of Caballero. As the record does not
demonstrate or suggest that the trial court placed limitations on the defendants’ ability to
present mitigating evidence, Saul and Pasqual have not established that they lacked the
opportunity to present this evidence such that a remand would be warranted under
Franklin.

              B.     Fines and Fees

       In his opening brief, Saul alleged that the trial court made several errors with
respect to the imposition of fines and fees at sentencing. In his reply brief, however, Saul
acknowledged that the abstract of judgment properly reflects the total fines and fees that
are authorized by law, and there appears to be no remaining dispute on this issue.

              C.     Custody Credit Calculations

       As noted by both Saul and the Attorney General, Saul’s presentence custody
credits were incorrectly calculated. First, Saul was awarded 2,571 days of actual credit,
although the records indicate that he served 2,604 days prior to sentencing.8 Also, he
received 385 days of conduct credits, but under section 2933.1, he was entitled to 390
days of conduct credits. We modify the judgment to reflect that Saul is awarded 2,994
days of presentence custody credits, of which 2,604 days reflect actual days served and
390 are conduct credits.
       Pasqual, who joins in Saul’s custody credits argument, also received an incorrect
number of presentence custody credits. Pasqual and the Attorney General agree, as do
we, that Pasqual should have been awarded 2,996 days of presentence custody credit, of

8      The parties calculate Saul’s actual days of credit at 2,603 days based on an arrest
date of September 9, 2007, but Saul’s probation report states that he was arrested on
September 8, 2007.

                                             32
which 2,606 are actual custody credits and 390 are conduct credits (§ 2933.1). We
modify the judgment accordingly.

       V.     Abstract of Judgment

       In our review of this matter, we observed a discrepancy between the oral record of
the sentencing hearing and Pasqual’s abstract of judgment with respect to count 5, assault
with a deadly weapon, and its associated sentencing enhancement pursuant to section
186.22. At the sentencing hearing the court sentenced Pasqual to the upper term sentence
of nine years for the offense, to be served concurrently with his 25-years-to-life sentence
on count 1; and the midterm of three years for the sentence enhancement. Pasqual’s
abstract of judgment, however, states that the sentence for count 5 and its associated
enhancement were stayed under section 654. Where there is a discrepancy between the
court’s oral pronouncement and the minute order or abstract of judgment, the oral
pronouncement controls. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) The superior
court is directed to prepare a corrected abstract of judgment for Pasqual reflecting the
correct sentence on count 5.

                                     DISPOSITION

       With respect to appellant Saul Campos, the judgment is modified to reflect 2,604
days of actual custody credits in addition to presentence credits in the amount of 390
days, for a total of 2,994 days of presentence custody credits. The superior court is
directed to prepare a corrected abstract of judgment for Saul Campos that reflects the
2,994 days of presentence custody credits, and to forward a certified copy of the abstract
of judgment to the Department of Corrections and Rehabilitation.
       With respect to appellant Pasqual Campos, the judgment is modified to reflect
2,606 days of actual custody credits in addition to presentence credits in the amount of
390 days, for a total of 2,996 days of presentence custody credits. The superior court is
directed to prepare a corrected abstract of judgment for Pasqual Campos reflecting that
(1) his sentence on count 5 was the upper term of 9 years, to be served concurrently, with
an associated sentence enhancement of 3 years, also concurrent; and (2) his presentence

                                             33
custody credits total 2,996 days; and to forward a certified copy of the abstract of
judgment to the Department of Corrections and Rehabilitation.
       In all other respects, the judgments are affirmed.




                                                  ZELON, J.




We concur:




       PERLUSS, P. J.




       BLUMENFELD, J.*




*
        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

                                             34
