Filed 6/5/13 P. v. Morones CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                        D061505

        Plaintiff and Respondent,

        v.                                                         (Super. Ct. No. SCS245331)

JUAN MORONES,

        Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Frank A.

Brown, Judge. Affirmed as modified.

         Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L Garland, Assistant Attorney General, Peter Quon, Jr., and Theodore M.

Cropley, Deputy Attorneys General, for Plaintiff and Respondent.
       A jury convicted Juan Morones of conspiracy to commit murder (Pen. Code,

§ 182/187, subd. (a))1 and found true the allegation the crime was committed for the

benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(1).

However, the jury acquitted Morones of the remaining counts charged in the information,

including a count charging him with solicitation of murder (§ 653f, subd. (b)). After the

court, in a bifurcated proceeding, found true the allegations that he had suffered

numerous prior strike convictions (§ 667, subds. (b)-(i)), it sentenced Morones to an

indeterminate term of 85 years to life plus a determinate term of 10 years.

       On appeal, Morones contends the evidence is insufficient to support the

conspiracy conviction because there was insufficient evidence he harbored the requisite

intent to kill the victim. He also contends the conspiracy conviction must be reversed

because his acquittal of the count charging him with solicitation of murder, one of the

overt acts charged in the conspiracy count, necessarily represents a not true finding on the

conspiracy count. Morones also asks this court to review de novo certain so-called

Pitchess2 materials and to determine whether the trial court's ruling on his Pitchess

motion was an abuse of discretion. Morones also contends the court erred when it

imposed a consecutive 10-year determinate term for the gang allegation as part of his

sentence. The People concede this was error and that term must be stricken.




1      All further statutory references are to the Penal Code unless otherwise specified.

2      Pitchess v. Superior Court (1974) 11 Cal.3d 531.
                                             2
                                              I

                               FACTUAL BACKGROUND

       On July 5, 2010, Victoriano Ortiz, an inmate at Donovan State Prison (Donovan),

was walking in a prison yard with two allies, Mr. Polina ("Blue") and Mr. Gonzalez

("Stomper"). Blue suddenly turned on Ortiz and attacked him. Numerous other inmates

quickly joined the assault on Ortiz, while other inmates attacked Stomper. The

prosecution's theory was that the attack was the denouement of a power struggle between

two rival factions of the Mexican Mafia then competing for control of Donovan, one of

which was led by Ortiz and his "mesa," and the other led by a "mesa" composed of

Mr. Garcia, Morones, and two others. The Mexican Mafia seeks to control prisons using

"mesas" as a command system, which is in effect a governing council. Ordinarily, the

chief of the mesa is a "shot-caller" or "key-holder," and he has two or three "helpers" to

help run various aspects or areas of the prison, and the shot-caller and his helpers

comprise the mesa. He derives his authority to run the prison from a "member" of the

Mexican Mafia.

       A. The Principal Participants

       Morones was an associate in the Mexican Mafia serving a life sentence at

Donovan. His eventual ally, Mr. Garcia, is also an active Mexican Mafia associate. Ortiz

testified about the structure of the Mexican Mafia. At the bottom of the pyramid are

"southsiders," all members of Hispanic street gangs in southern California. These gang

members must remit "taxes" (a portion of the proceeds of their illegal activity) to the

Mexican Mafia. The next higher level are "surenos" or "soldiers," gang members who

                                             3
have garnered authority and more respect than southsiders by working for the Mexican

Mafia, through collecting taxes or enforcing orders through violent attacks. There are

also "associates," who have worked their way up and are close to "members" of the

Mexican Mafia (also referred to as "carnals"). At the top of the pyramid are the carnals,

who can order someone killed or assaulted (also called "giving the green light") if the

target is not respecting the authority of the Mexican Mafia. Such an order must be

followed by all persons within the structure. Orders to attack someone, when issued by

the mesa operating under a carnal's authority to run a prison, must be treated with the

same obedience.

       Ortiz was an associate in the Mexican Mafia and was incarcerated at Donovan to

serve time for an assault he committed on its behalf. Ortiz believed his authority to run

Donovan derived from his association with and permission from Richard Buchanon.

       B. The Power Struggle Over Donovan

       Ortiz arrived at Donovan in March 2010 and almost immediately sent out word,

through "kites" and word of mouth, that he was now in charge of Donovan and whoever

was in charge needed to step down or risk being assaulted. "Kites" are small handwritten

notes by which messages can surreptitiously be passed to other inmates within the prison

(either between cells within a cell block or even between cell blocks) or to persons

outside the prison. Ortiz also formed his mesa, which included Stomper (Ortiz's right-

hand man), an inmate named "Pino," and Morones. At one point, Morones asked Ortiz

for paperwork containing Ortiz's authority, but Buchanon had verbally authorized Ortiz

to run Donovan.

                                             4
       Another group apparently disagreed with Ortiz's attempt to exert control, and Ortiz

believed this group was trying to challenge his authority. The group included Morones,

who had been in a dispute with Stomper, and Mr. Franco (Casper). That group began

sending kites asserting its authority to run Donovan, which those in the group believed

was derived from another carnal, and included messages to Ortiz that Ortiz "had

something coming." When Ortiz noticed southsiders were beginning to follow Morones's

group, he tried to reassert his authority because there can only be one mesa running a

prison. Ortiz's efforts to regain control included writing a kite to Morones asking to

resolve the power struggle (an offer that did not bear fruit), and challenging Casper to a

fight, which Casper declined. Ortiz interpreted Casper's response as acquiescing to

Ortiz's authority, and he sent a kite to Casper indicating they were both now working

under Buchanon's authority. Ortiz formed a new mesa, including Stomper, Blue and Mr.

Ballesteros (Lazy). For the next month, everything appeared calm with Ortiz in control.

       However, in late June or early July, problems over control reemerged after a

carnal (Rudy Esputo) was temporarily incarcerated at Donovan. Esputo gave authority

over Donovan to Morones, Morons' cellmate (Garcia) and two other inmates (Casper and

an inmate with the moniker "Oso"). Almost immediately, Garcia began yelling on the

tier of their cell block that he had "authority" and threatened that Ortiz and Stomper had

"something coming," which Ortiz understood to mean he was targeted for attack. Ortiz

also saw kites written by Garcia and Morones ordering Ortiz be "whacked" with "no

exceptions."



                                             5
       Authorities had placed Garcia in a cell that was surreptitiously "wired" and, during

this period, numerous recordings were made of conversations between Morones and

Garcia, as well as conversations they had with other inmates. In some of the recordings

from July 2, 2010 (three days before the attack on Ortiz and Stomper), Morones had

already begun writing a kite to Lazy when Garcia began contributing to the kite. Garcia

told Morones to ensure that the kite declare Esparto's direct orders had established the

new mesa, and the new mesa was ordering both Lazy and Blue (members of Ortiz's inner

circle) to "[whack] [Ortiz and Stomper] on this next yard no exceptions," and later

discussing that the kite had been delivered.

       When Ortiz went to walk in the prison yard on July 5, 2010, he knew he was

risking his safety because there was a chance he would be assaulted. However, he

believed he still had authorization to run Donovan, and could not show fear, so he

nevertheless went into the yard. As Ortiz was walking with two of his allies (Blue and

Stomper), Blue suddenly turned on Ortiz and began punching and cutting at him. Other

inmates joined in the attack on Ortiz while yet another group of inmates attacked

Stomper. Although correctional officers responded by ordering the inmates to get down,

and thereafter by firing some shots when the inmates ignored the command, the attackers

did not immediately cease but instead continued stabbing Ortiz and banging his head

against a wall. Ortiz suffered head and other injuries from the attack.




                                               6
                                               II

                                         ANALYSIS

       A. Sufficiency of the Evidence

       Morones contends the evidence was insufficient to support the conspiracy

conviction. He does not contend the evidence was insufficient to show there was a

conspiracy directed at trying to kill Ortiz; instead, he asserts the evidence was insufficient

to show he was among those who agreed to the object of the conspiracy or that he

intended that Ortiz be killed. Although Morones concedes the evidence showed Garcia

and others agreed to (and did) try to kill Ortiz, Morones argues the only evidence against

him was that he knew of Garcia's plan and acted as a mere scrivener for him, and asserts

that no reasonable trier of fact could conclude he agreed to the object of the conspiracy or

intended Ortiz be killed.

       Legal Principles

       When the sufficiency of the evidence is challenged, the court is not required to

" ' "ask itself whether it believes that the evidence at the trial established guilt beyond a

reasonable doubt." [Citation omitted.] Instead the relevant question is 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.' "

(People v. Johnson (1980) 26 Cal.3d 557, 576.) "In determining whether a reasonable

trier of fact could have found defendant guilty beyond a reasonable doubt, the appellate

court 'must . . . presume in support of the judgment the existence of every fact the trier

could reasonably deduce from the evidence.' [Citations.] The court does not, however,

                                               7
limit its review to the evidence favorable to the respondent. . . . '[O]ur task . . . is

twofold. First, we must resolve the issue in the light of the whole record--i.e., the entire

picture of the defendant put before the jury--and may not limit our appraisal to isolated

bits of evidence selected by the respondent. Second, we must judge whether the evidence

of each of the essential elements . . . is substantial; it is not enough for the respondent

simply to point to "some" evidence supporting the finding, for "[n]ot every surface

conflict of evidence remains substantial in the light of other facts." ' " (Id. at pp. 576-

577.)

        "The standard of review is the same in cases such as this where the [prosecution

relies] primarily on circumstantial evidence. [Citation.] 'Although it is the duty of the

jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two

interpretations, one of which suggests guilt and the other innocence, it is the jury, not the

appellate court[,] which must be convinced of the defendant's guilt beyond a reasonable

doubt. If the circumstances reasonably justify the trier of fact's findings, the opinion of

the reviewing court that the circumstances might also be reasonably reconciled with a

contrary finding does not warrant a reversal of the judgment.' " (People v. Perez (1992) 2

Cal.4th 1117, 1124.)

        "A conspiracy is an agreement between two or more people to commit a public

offense. [Citation.] A conviction for such requires proof of: (1) an agreement; (2) the

specific intent to conspire; (3) the specific intent to commit the offense; and (4) an overt

act towards achievement of that goal. [Citation.] These elements are sufficiently met by

circumstantial evidence. . . . [¶] The overt acts charged as part of the conspiracy can be

                                                8
circumstantial evidence of its existence. ' "Such acts may establish the purpose and intent

of the conspiracy and relate back to the agreement whose purpose may be otherwise

enshrouded in the hush-hush admonitions of the conspirators." ' " (People v. Herrera

(1999) 70 Cal.App.4th 1456, 1464, disapproved on other grounds by People v. Mesa

(2012) 54 Cal.4th 191, 199.) A defendant may be convicted of a criminal conspiracy if

there is evidence the defendant and one or more persons had the specific intent to agree to

commit an offense and to commit the elements of the offense, and one of the conspirators

committed some overt act in furtherance of the conspiracy. (People v. Morante (1999) 20

Cal.4th 403, 416.) The overt act need not be a criminal offense, nor must it be committed

by the defendant. (Id. at p. 417; People v. Fenenbock (1996) 46 Cal.App.4th 1688,

1708.)

         Evidence is sufficient to prove criminal conspiracy " 'if it supports an inference

that the 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.]' " (People v. Rodrigues (1994) 8 Cal.4th 1060, 1135.) Intent to

agree to commit a crime is usually established through circumstantial evidence, and proof

of an express or formal agreement is not required. (People v. Austin (1994) 23

Cal.App.4th 1596, 1606, disapproved on other grounds by People v. Palmer (2001) 24

Cal.4th 856, 861, 867.)

         Although mere association does not prove a criminal conspiracy (People v.

Manson (1976) 61 Cal.App.3d 102, 126), "common gang membership may be part of

                                               9
circumstantial evidence supporting the inference of a conspiracy. [Citation.] The

circumstances from which a conspiratorial agreement may be inferred include 'the

conduct of defendants in mutually carrying out a common illegal purpose, the nature of

the act done, the relationship of the parties [and] the interests of the alleged

conspirators . . . .' " (People v. Superior Court (Quinteros) (1993) 13 Cal.App.4th 12, 20-

21; compare U.S. v. Garcia (9th Cir. 1998) 151 F.3d 1243, 1244 [gang membership by

itself is insufficient to prove a gang member's agreement to commit a crime].) Similarly,

although evidence a defendant performed some act that furthered another person's illegal

purpose is not by itself sufficient to prove the defendant was a member of a conspiracy to

accomplish that illegal purpose, a rational trier of fact may infer the requisite agreement

when there is evidence the defendant performed an act that furthered the other person's

illegal purpose while knowing of that person's illegal purpose. (Cf. People v. Austin,

supra, 23 Cal.App.4th at p. 1607.)

       Application

       We are convinced there was substantial evidence from which a reasonable trier of

fact could have concluded Morones agreed to the object of the conspiracy and

specifically intended the target crime would be committed. There was evidence of

motive: Morones was part of the mesa authorized by carnal Esputo to run Donovan,

Ortiz's claim of a competing authorization (which Morones had asked Ortiz to prove) was

undocumented, and a trier of fact could infer that Morones viewed Ortiz as a usurper.

Moreover, in the recordings taken from his cell shortly before the assault, played for the

jury during trial, he was overheard discussing with Casper whether he (Morones) should

                                              10
tell other inmates (Blue and Lazy) that they would be exempted from the coming

retribution, and telling Casper he tried to warn others that Ortiz was a usurper and they

should not follow him but should instead "follow my lead [and] step back" because "shit

is going to fall in the place it is supposed to fall." This evidence permitted a reasonable

trier of fact to infer Morones already knew of the impending attack, and agreed to it

because that was how "it is supposed to fall," and intended the attack to be successful

because he tried to explain to potential allies of Ortiz why they should not come to Ortiz's

assistance. In another recording, made about two to three hours later, Garcia asked

Morones to whom he was writing and, when Morones told him the kite was for Lazy, he

told Morones to include in his missive that the new mesa was on direct orders from carnal

Esputo, and Ortiz and Stomper were to be "[whacked] on this next yard[,] no exceptions."

A reasonable jury could infer that Morons' willingness to include Garcia's instructions in

his kite was because he agreed to the attack and intended it to succeed.

       The following day, Morones is overheard questioning why Ortiz "doesn't come

out," and Garcia reassured Morones that Ortiz was "on group crew, but that's a good

thing . . . that way we can blast the fuck out of him." A reasonable jury could infer that

Morones asked about the mechanics of the attack because he was supportive of its goals.

Finally, in the morning on the day of the attack, Morones is overheard expressing doubts

whether others will follow the commands: he explained to Garcia that he "just went

through it" and, while Garcia "make[s] it seem so easy," it's not easy because "you're

waiting for the alarm, you're waiting for the alarm . . . . You look like an idiot," and a

minute later Morones bemoans that "when we had the chance to, we fucken blew it,"

                                             11
which forced him to try "to get bed moves." A few minutes later, Garcia reassures

Morones that "some people fail, some people don't . . . and 'cause some people don't

succeed doesn't make them . . . bad," and Morones responds, "I know." A reasonable

jury could infer that Morones, having agreed to help organize the attack with the intent it

succeed, was sharing his anxiety with Garcia that their common goal might not be

achieved because Morones had personal experience with a previous aborted effort, but

nevertheless tells Garcia, "I will like to see how this comes down."

       Morones contends on appeal that this evidence is capable of a different and more

benign interpretation: that he was merely engaged in a charade and acting as though he

agreed to the plan and was following the orders of Garcia to issue the kite ordering the

attack out of an understandable desire for self-preservation. However, this argument at

bottom asserts that, even though Morones's words and deeds made it appear to observers

as though he agreed to the goals of the conspiracy and intended its object to succeed, no

reasonable trier of fact could have found that his outward appearances were reflective of

his true subjective intentions. This argument was presented to the trier of fact, and the

jury rejected that interpretation of the evidence. Because the subjective intentions of a

defendant are peculiarly within the province of the trier of fact to determine (see, e.g.,

Begnal v. Canfield & Associates, Inc. (2000) 78 Cal.App.4th 66, 77 [" ' "[D]eterminations

regarding motivation and intent depend on complicated inferences from the evidence and

are therefore peculiarly within the province of the factfinder." ' "]), we may not reverse its

verdict merely because the jury, rejecting Morones's arguments, found his subjective

intentions accorded with outward appearances.

                                             12
       B. The Inconsistent Verdict Claim

       Morones alternatively contends the conspiracy conviction must be reversed

because it was based on the same overt act (writing the so-called "murder kite") that

underlay another count charging him with solicitation of murder under section 653f,

subdivision (b), on which he was acquitted. Morones acknowledges the law generally

accepts inconsistent verdicts but asserts that, under the limited judicial exception

applicable in conspiracy cases, the acquittal of the solicitation count is a not true finding

on the overt act required for conspiracy, and therefore he should be deemed acquitted of

the conspiracy count.

       Legal Principles

       "Prior to 1927, appellate courts of this state . . . held that inconsistent verdicts

'would not support a judgment of conviction.' [Citations.] In apparent response to these

decisions, the Legislature amended section 954 in 1927, adding the last sentence of the

section, which now provides: 'An acquittal of one or more counts shall not be deemed an

acquittal of any other count.' [Citations.] . . . [¶] Since 1927 our courts have followed

the general rule and viewed an inconsistent acquittal as the product of confusion or an act

of mercy on the part of the jury, of which an appellant is not permitted to take further

advantage." (People v. Pahl (1991) 226 Cal.App.3d 1651, 1656-1657 (Pahl); see People

v. Santamaria (1994) 8 Cal.4th 903, 911 ["It is . . . settled that an inherently inconsistent

verdict is allowed to stand; if an acquittal of one count is factually irreconcilable with a

conviction on another, or if a not true finding of an enhancement allegation is

inconsistent with a conviction of the substantive offense, effect is given to both."].) As

                                              13
Pahl explained, "The question of the validity of inconsistent verdicts usually arises when

a jury renders two verdicts on two different counts which are contradictory. [Citation.]

Understandably, in such cases defendants . . . take the position that the acquittal is the

legally correct verdict while the conviction is not. This argument has been universally

rejected because inconsistent verdicts are probably the result of compromise in the jury

room or of an extension of leniency or mercy to the defendant. [Citation.] In other

words, if the conviction is supported by substantial evidence, it is valid because the

defendant 'had the benefit of the jury's compassion, rather than suffering a burden

because of its passion . . . .' " (Pahl, at p. 1656.)

       However, relying on the limited judicial exception to this rule established by our

Supreme Court in In re Johnston (1935) 3 Cal.2d 32, 34-36, applicable in conspiracy

cases, Morones argues he falls within the Johnston exception. We conclude that, even

assuming the Johnston rule remains available to defendants,3 Morones does not fall



3       Although it is unnecessary in this case definitively to determine whether the
Johnston exception remains available, we note the United States Supreme Court ruled in
U.S. v. Powell (1984) 469 U.S. 57 that allegedly inconsistent verdicts in conspiracy cases
were permissible. Subsequent to Powell, our Supreme Court in People v. Palmer, supra,
24 Cal.4th 856 again considered the requirement for consistency in conspiracy cases.
Relying heavily on the analysis in Powell (see Palmer, at pp. 863-864), our Supreme
Court concluded the limited judicial exception of Johnston "is a vestige of the past with
no continuing validity. Many reasons may explain apparently inconsistent verdicts:
lenience, compromise, differing evidence as to different defendants, or, possibly, that two
juries simply viewed similar evidence differently. If substantial evidence supports a jury
verdict as to one defendant, that verdict may stand despite an apparently inconsistent
verdict as to another defendant." (Palmer, at p. 858; accord, People v. Abilez (2007) 41
Cal.4th 472, 512-513 [" ' "It is . . . settled that an inherently inconsistent verdict is
allowed to stand; if an acquittal of one count is factually irreconcilable with a conviction
on another, or if a not true finding of an enhancement allegation is inconsistent with a
                                                14
within its parameters. "The conspiracy exception is limited, applying only where, as in

Johnston, an overt act alleged in a conspiracy charge is identical to another charged

offense of which defendant is acquitted. The Supreme Court decreed that under those

unique circumstances, section 954 should not be construed to support a judgment of

conviction for conspiracy, because the defendant has been acquitted of every charged

overt act." (Pahl, supra, 226 Cal.App.3d at p. 1658, italics added.)

       As the italicized language reveals, the Johnston exception to the rule against

attacking inconsistent verdicts exists in conspiracy cases only when the overt act alleged

in the conspiracy charge is identical to the other charged offense of which the defendant

is acquitted. (Pahl, supra, 226 Cal.App.3d 1651.) However, where the conspiracy count

alleges overt acts other than (or in addition to) the act constituting the substantive offense

charged in another count, there is no inconsistency in convicting the defendant of

conspiracy while acquitting him of the substantive offense. (People v. Eberhardt (1985)

169 Cal.App.3d 292, 297.) Alternatively, when the overt act forming the basis of the

conspiracy count is dissimilar to the other substantive offense upon which a defendant is


conviction of a substantive offense, effect is given to both." ' "].) Although Palmer
involved a different factual scenario than present here, because the defendant in Palmer
argued the acquittal of his coconspirator required reversal of his conviction for
conspiracy (Palmer, at p. 866), and Morones here contends the inconsistent verdict stems
not from the acquittal of a coconspirator but from his acquittal on a charge that assertedly
also formed the overt act for the conspiracy count, the decisions in Powell and Albilez
suggest this is a distinction without a difference. Indeed, the only recent authority cited
by Morones for the continuing vitality of the Johnston rule is Akhlaghi v. Superior Court
(2008) 161 Cal.App.4th 561. Although Akhlaghi was decided after Palmer and Labile,
the Akhlaghi decision makes no mention of Powell, Palmer or Albilez and is therefore of
questionable validity. We need not further address this issue because we are convinced
Johnston would have no application even if it survived Powell, Palmer and Albilez.
                                             15
acquitted, and the acquittal of the substantive offense could have been based on elements

not necessarily requiring a not true finding as to the overt act, the acquittal of the

substantive offense does not operate as an acquittal of the conspiracy count. (See, e.g.,

People v. Witt (1975) 53 Cal.App.3d 154, 168.) For example, in Witt, the defendant was

charged with forgery of a will and conspiracy to defraud an estate; the trial court

dismissed the forgery charge after the prosecution rested but the jury convicted defendant

of the conspiracy charge. (Id. at pp. 167-168.) The Witt court rejected the application of

Johnston because (1) the overt act proven was predicated on the defendant's going to a

store and causing the store owner to type the will (rather than on the act of forgery itself),

and (2) the defendants were not acquitted for lack of proof that they committed the crime

of forgery but instead because the prosecution failed to show the offense occurred in

Tulare County. (Witt, at pp. 167-168.)

       Applying these authorities here, the "limited judicial exception" under Johnston

does not apply. The count on which Morones was acquitted was solicitation of murder in

violation of section 653f, subdivision (b). That offense required proof that (1) Morones

requested or directed another person to commit the crime of murder, (2) he intended the

crime be committed, and (3) his communication containing the request or direction was

received by the other person. (See, e.g., People v. Saephanh (2000) 80 Cal.App.4th 451,

458-459.) In contrast, the overt act alleged in this case was that "[Garcia] told his

[cellmate, Morones], to write an inmate message ('Kite') to have [Ortiz and Stomper]

murdered immediately ('whacked'). GARCIA told MORONES to write the following:

'[Ortiz], Stomper . . . are to be whacked on the next yard ASAP. No exceptions. Direct

                                              16
orders from the Carnal.' " The overt act was not the alleged writing containing the

request, as required by the first element in the solicitation count; instead, the overt act

was Garcia's statement directing Morones to make the alleged writing. Moreover, even

assuming those distinct acts could be deemed co-extensive, a jury could have acquitted

Morones of the solicitation count if it concluded a distinct element of proof (e.g. the

communication containing the request or direction was received by the other person) had

not been shown beyond a reasonable doubt, even if it were convinced the overt act had

occurred. Under the analysis of People v. Witt, supra, 53 Cal.App.3d 154, either

potentiality precludes application of Johnston.

       Finally, even assuming the foregoing obstacles to application of Johnston could be

overcome, Morones's argument falters because there were four overt acts alleged by the

information, any one of which would suffice for the conspiracy conviction. As explained

in People v. Robinson (1954) 43 Cal.2d 132, 138:

           "It is only when the substantive offense charged is alleged to be the
           only overt act in furtherance of the conspiracy that an acquittal of the
           substantive offense operates as an acquittal of the conspiracy count
           based solely thereon. Thus, where the conspiracy count alleged as
           the only overt acts the specifically described crimes set forth in the
           other counts, and defendant was found not guilty of any of these
           specific crimes, there could be no conviction of the alleged
           conspiracy because no overt acts had been proved. [Citations.] But
           where there are overt acts alleged in the conspiracy count in addition
           to those constituting the substantive offense, there may be a
           conviction of conspiracy and an acquittal of the substantive offense.
           Such a conviction and acquittal have been held not to be
           inconsistent."

       The analysis in Robinson is controlling. In Robinson, count one of the information

charged the appellant and a Mr. Schaefer with conspiracy to engage in bookmaking; five

                                              17
overt acts in pursuance of the conspiracy were alleged, four of which were committed by

Schaefer alone (involving accepting bets and collecting money from a bettor), and the

fifth was that Schaefer turned the money over to the defendant on October 24, 1952.

Count two of the information charged the defendant with bookmaking because Schaefer

turned the funds over to the defendant on October 24, 1952. (People v. Robinson, supra,

43 Cal.2d at pp. 138-139.) The defendant, after being acquitted on count two but

convicted of the conspiracy, argued the acquittal on count two necessarily absolved him

under Johnston of the conspiracy count because he was acquitted of the only overt act

charged against him in the conspiracy count. The Robinson court, rejecting that

argument, explained:

          "The undisputed evidence of the four overt acts committed by
          Schaefer would be sufficient to sustain the conspiracy conviction
          against appellant, once the latter's alleged connection with the
          conspiracy was shown. . . . [Citations.] [It is not] necessary that the
          purpose of the conspiracy be fully accomplished [citations] or that
          each conspirator perform some overt act. It is sufficient if one
          conspirator commits an overt act in carrying out the purpose of the
          conspiracy, for all the members thereof 'are bound by all acts of all
          members done in furtherance of the agreed plot.' [Citations.] In
          view of the evidence that Schaefer committed the first four alleged
          overt acts pursuant to the conspiracy, which overt acts were
          additional to the acts alleged against appellant in count two, it cannot
          be said that the verdict of guilty on count one is inconsistent with the
          verdict of not guilty on count two." (Id. at pp. 139-140.)

      Robinson is directly analogous and controls this case. As in Robinson, Morones

was charged with participating in a conspiracy, and multiple overt acts (only one of

which directly involved Morones) were alleged. As in Robinson, Morones was charged

with, but acquitted of, an additional count that arguably encompassed an evidentiary


                                            18
overlap with the only overt act alleged against Morones as part of the conspiracy count.

We follow Robinson and conclude the evidence that other persons committed the other

alleged overt acts pursuant to the conspiracy, which overt acts were additional to the acts

alleged against appellant in count two, precludes us from concluding the guilty verdict on

the conspiracy count is irreconcilable with the verdict of not guilty on the solicitation

count.

         C. The Pitchess Motion

         Morones requests that this court review the trial court's denial of any discovery

pursuant to his Pitchess motion. In the trial court, Morones filed a Pitchess motion in

which he sought discovery of the personnel records for agent Epperson, including records

regarding the truthfulness of his reports. The Attorney General opposed the motion. The

trial court conducted an in camera review of the personnel records (see Warrick v.

Superior Court (2005) 35 Cal.4th 1011, 1019 ["[i]f the trial court finds good cause for the

discovery, it reviews the pertinent documents in chambers and discloses only that

information falling within the statutorily defined standards of relevance"]) and, after

reviewing the personnel records in camera, ruled there were no discoverable records in

the file.

         On appeal, this court is required to examine the materials in camera and determine

whether the trial court abused its discretion in refusing to disclose the contents of the

officers' personnel files. (People v. Hughes (2002) 27 Cal.4th 287, 330; People v. Mooc

(2001) 26 Cal.4th 1216, 1229.) We have examined the personnel records in camera and

conclude the trial court did not err in its ruling on Morones's Pitchess motion.

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                                     DISPOSITION

      The court on remand shall strike the 10-year determinate term for the gang

allegation appended to count one; as so modified, the judgment is affirmed.




                                                                        McDONALD, J.

WE CONCUR:


McCONNELL, P. J.


McINTYRE, J.




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