Filed 7/6/15 P. v. Davis CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F065980
         Plaintiff and Respondent,
                                                                           (Super. Ct. Nos. MCR039758 &
                   v.                                                              MCR039637B)

HAROLD DAVIS,
                                                                                         OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Madera County. Joseph A.
Soldani, Judge.
         Law Offices of Allen G. Weinberg, Allen G. Weinberg, under appointment by the
Court of Appeal, for Defendant and Appellant.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Julie A. Hokans and John A. Bachman, Deputy Attorneys General, for Plaintiff
and Respondent.
                                                        -ooOoo-
       Codefendants Harold Davis, Jeremy Seamon, and Lisa Seamon were charged by
information as follows: Harold1 was accused of possessing methamphetamine for sale
(Health & Saf. Code, § 11378, count 1) and opening or maintaining a place for
unlawfully selling, giving away, or using methamphetamine (Health & Saf. Code,
§ 11366, count 2); Harold, Jeremy, and Lisa were jointly accused of conspiring to sell
methamphetamine (Health & Saf. Code, § 11379 & Pen. Code,2 § 182, count 3); Jeremy
and Lisa were jointly accused of possessing methamphetamine (Health & Saf. Code,
§ 11377, subd. (a), count 4); and Harold and Lisa were jointly accused of conspiring to
prevent or dissuade a witness from attending or giving testimony at any trial, proceeding,
or inquiry authorized by law (§§ 136.1 & 182, count 5) and attempting to prevent or
dissuade a witness from attending or giving testimony at any trial, proceeding, or inquiry
authorized by law (§§ 136.1 & 664, count 6). The jury found Harold and Jeremy guilty
as charged and found Lisa guilty on counts 3 and 4 and not guilty on counts 5 and 6.
       On appeal,3 Harold argues that (1) Lisa’s acquittal on count 5 necessitated reversal
of his own conviction on the same count; (2) the evidence did not support his convictions
on counts 2 and 5; and (3) execution of punishment on count 2 should have been stayed
pursuant to section 654. We disagree with each contention and affirm the judgment.
                          FACTS AND PROCEDURAL HISTORY
Prosecution case-in-chief
       a.       Initial search of 1933 West 4th Street
       On November 4, 2009, Detective Brian Esteves and other law enforcement agents
executed a search warrant on a residence located at 1933 West 4th Street in Madera. In


       1To   avoid confusion and for consistency, we identify appellant and codefendants
by their first names. No disrespect is intended.
       2All   further statutory references are to the Penal Code unless otherwise indicated.
       3Neither   Jeremy nor Lisa is a party to this appeal.


                                               2.
the northeast bedroom, they came across Jeremy, Lisa, a bag of methamphetamine, traces
of methamphetamine on top of a mirror, and other drug paraphernalia. Jeremy and Lisa
admitted that this methamphetamine belonged to them and they had ingested the
substance the night before. In the southeast bedroom, agents encountered Mario Pettit,
Lisa’s father. At the back of the house, 16 color-coded bags of methamphetamine were
discovered inside a porch lamp. Bags marked with the color black weighed 0.5 grams.
Bags marked with the color red weighed 0.8 grams. Bags marked with the color green
weighed 1.9 grams.
       In the east bedroom, agents found Harold and a whiteboard displaying pay/owe
information—i.e., “different names with dollar amounts”—in black, red, and green ink.
Harold’s possessions included a black T-shirt bearing the slogan “Stop Snitching,” safe
keys, a wallet containing approximately $800 in cash, and a cell phone.4 Via text
message, Lisa advised that “people were coming by the house looking for Harold,” and
other individuals solicited “half a pizza”; requested meetings in gas stations, grocery
stores, and other public places; described “what vehicles they would be in when they
showed up”; and commented on the difficulty of keeping in touch due to frequent phone
number changes. In Harold’s truck, agents retrieved a blue notebook displaying more
pay/owe information.
       Art Zamora, a neighbor, informed agents that Jeremy and Lisa lived at 1933 West
4th Street for “maybe a couple of years,” whereas Harold arrived “a couple months”
before November 2009. Once Harold moved in, Zamora observed a “[l]arge number of
traffic coming in and out of the residence …, usually after 11 p.m., sometimes [until]
1:00, 2:00 a.m.,” approximately three or four days per week. These visitors appeared
only when Harold’s truck was at the house.



       4At   the residence, Esteves found a cell phone bill identifying Pettit as the payor.


                                               3.
       b.      Initial jail call and visits
       Harold called Lisa5 from jail on November 4, 2009. He instructed her to contact
and collect debts from various persons. In particular, Harold identified Wesley Snipes,6
who owed approximately $200 or $250. He then instructed Lisa to inform anybody
“com[ing] by looking for [him]” that “‘[h]e’s in jail,’” “[there’s] ‘[n]o stuff,’” and
“everything’s gone.”
       Jeremy visited Harold on multiple occasions. During one visit, Harold noted that
“any money [they] get from the car parts is for the attorney.” Jeremy remarked that Lisa
was “going to [Snipes’s]” to “divide” the “car parts and stuff.” Harold asked Jeremy to
“show up on Monday at [the former’s] court date,” “pull [the public defender] off to the
side,” and “say, look, whatever they found, … [Harold’s] off in space about it.” Jeremy
declared that he was “gonna do [his] best on that” and “not gonna let [Harold] do … the
time that they’re wanting [him] to do.” Harold apologized for the “inconvenience” and
assured that “better times [were] ahead” and “[e]verything’s gonna be taken care of.” In
addition, the following exchange occurred:

       “[Harold]:     … Hey, they didn’t—they didn’t …

       “[Jeremy]:     Yeah.

       “[Harold]:     Right?

       “[Jeremy]:     Yeah. No, no, no, no. There—there’s only the light.

       “[Harold]:     Yeah. Yeah. And—and—and—and …

       “[Jeremy]:     No, they didn’t…. [¶] … [¶]

       “[Harold]:     [S]o they didn’t get the places that were really fucking packed
                      full of shit and fucking shit everywhere, huh?

       5Both   Jeremy and Lisa had been released on bail by this point.
       6In
        connection with this case, Snipes was convicted of possessing
methamphetamine for sale and conspiring to distribute methamphetamine.


                                              4.
       “[Jeremy]:    No .…”
       During another visit, Harold disclosed that he recruited an 18-year-old male
named Josh to “take … under [his] wing.” Josh would “kick back in [Harold’s] room
until [Harold came] home” and function as “a follower” rather than “a leader.” Next,
Harold inquired about “the big nuts and bolts and stuff,” “the toolbox with the little nuts
and bolts,” and the “sets of tires.” The following dialogue ensued:

       “[Jeremy]:    [Pettit] got rid of that shit.

       “[Harold]:    Why?

       “[Jeremy]:    I don’t know. He think—‘cause, uh, I guess he thought it
                     was—and they had no—no reason for it. He—well he spent
                     more of it—I guess he thought it was rusted nuts and bolts so
                     he, uh—lawn mower. Or, no, I mean, um, the hose. The
                     whole fucking thing they [half]. But not the … big nuts and
                     bolts, you know. He kept those. And that’s what went out to,
                     um …

       “[Harold]:    So you’re telling me that … there’s no coming back from
                     that?

       “[Jeremy]:    No. ‘Cause he got rid of that whole fucking thing.

       “[Harold]:    Oh. Right. What the fuck is wrong with him, bro? [¶] … [¶]

       “[Jeremy]:    He flipped. [¶] … [¶]

       “[Harold]:    I need to know—I need …

       “[Jeremy]:    I’d say it was about a half of, uh—that motherfucker, you
                     know. I been trying to …

       “[Harold]:    He got rid of all them sets of tires back there? Half of those
                     sets of tires I had?

       “[Jeremy]:    Yeah. Except for the big ones.

       “[Harold]:    Goddamn. Oh, except for those all-terrain ones?

       “[Jeremy]:    Yeah.



                                               5.
       “[Harold]:      Okay. [¶] … [¶] Because, dude, I had like so many sets of
                       tires, bro .…”
       c.       Subsequent search of 1933 West 4th Street
       Esteves authored a subsequent search warrant and conducted another search at
1933 West 4th Street. He found a November 5, 2009, letter from Harold addressed to
Jeremy and Lisa. In the letter, Harold mentioned that Josh was “‘going to be working for
[him]’” and “’going to do all the running[7] for [him.]’”
       Lisa, who was present during the search, admitted to Esteves that agents missed
additional methamphetamine “outside the house” during their initial search. Half of the
substance was flushed down the toilet by Pettit while the other half—i.e., “two or three
[eight] balls”8—were given to Snipes. Lisa acknowledged that she obtained the debts
“she was supposed to collect” and “put [the money] on Harold’s books ….”9
       d.       Investigation of Snipes
       On December 23, 2009, Esteves—posing as an acquaintance of Harold’s who had
been released from jail—phoned Snipes. The two spoke about the aftermath of the
November 4, 2009, search:

       “[Esteves]:     ‘The other thing is uh, I guess uh [Pettit] was trippin’ after uh
                       the cops left and the stuff they didn’t found apparently Lisa
                       an[d] Jeremy are saying [Pettit] tripped out an[d] like threw
                       1/2 of it away. [¶] So [Harold]’s not real sure on his
                       inventory, like what, you know what I’m saying? [¶] … [¶]
                       So he was wanting me to get like an inventory to see, you
                       know what exactly he was setting at. [¶] You know what did
                       Lisa and Jeremy bring over or were they bullshitting, saying
                       that [Pettit] threw 1/2 of it away, you know.’

       7According   to Esteves, “doing all the running means they’re going to be making
the deliveries, actually meeting up with … the customers and completing the
transactions.”
       8Per   Esteves, an “eight ball” referred to “one eighth of an ounce” of a drug.
       9Again   per Esteves, “books” referred to “money someone has on their inmate
account at jail.”


                                               6.
      “[Snipes]:     ‘Yeah, they brought me like 3/4’s. [¶] … [¶] 3/4’s of an “O.”
                     [¶] … [¶] I mean I think they gave me, they had a little bit
                     left, they still behind, they gave me a 1/16 or eight ball,
                     something like that, something like that.’”
      Thereafter, Esteves searched Snipes’s residence and found 3.8 grams—i.e., about
one-eighth of an ounce—of methamphetamine in a bag, a digital scale with
methamphetamine residue, and a cell phone. In a text message, someone named Chuck
Trollinger asked for $20 worth of methamphetamine. Esteves—pretending to be
Snipes—replied back and arranged a meeting to complete the transaction. Trollinger
appeared at the designated location with $20.
      On December 3, 2010, the prosecutor identified Snipes as a potential witness.
      e.       Subsequent jail calls
      In December 2010, Harold made jail calls to Lisa and his ex-wife, Kodie10 Davis.
In a December 3, 2010, call, Lisa apprised him of Kodie’s attendance at court that day.
The following exchange occurred:

      “Harold:       ‘I need to … speak with [Kodie]. [¶] … [¶] You know
                     why?’

      “Lisa:         ‘Why?’

      “Harold:       ‘Because she … has to go talk to bonehead right away.’

      “Lisa:         ‘Okay.’ [¶] … [¶]

      “Harold:       ‘Did you tell her [a]bout what happen[ed] today?’ [¶] … [¶]

      “Lisa:         ‘[A]bout what happen[ed] in court you mean?’

      “Harold:       ‘Yeah.’

      “Lisa:         ‘No, I haven’t talked to her.’

      “Harold:       ‘Well she’s gotta talk to bonehead right away.’


      10The  record alternates between the spellings “Kodie” and “Cody.” For
consistency, we solely use the former.


                                             7.
“Lisa:       ‘I will, I will get a hold of her.’

“Harold:     ‘And I mean, I mean, she’s gotta go today. You know what I
             mean?’

“Lisa:       ‘Yeah.’

“Harold:     ‘And, you know, I mean I really don’t care but the only thing
             is, I mean you know. I mean, she needs to go tell bonehead
             umm everything that’s coming or whatever.’

“Lisa:       ‘Yeah.’ [¶] … [¶]

“Harold:     ‘And I would rather it get done tonight, or you know, I’d
             rather it try to be done tonight. [¶] Um, if, if Kodie go and,
             and take care of that, or whatever, you know what I mean?’

“Lisa:       ‘Yeah, the only thing I do is tell her, you know.’ [¶] … [¶]

“Harold:     ‘[I]f you have to, if you have to, give her a ride you know
             what I’m saying.’

“Lisa:       ‘Yeah.’

“Harold:     ‘Um, and, and, and you know I mean, make sure …’

“Lisa:       ‘She has a car.’

“Harold:     ‘Yeah, I know but make sure, I mean .… [¶] I know, but if
             you have to, to make sure, you know she can get done, or
             whatever. You know what I mean?’

“Lisa:       ‘Yeah.’

“Harold:     ‘You know, and since, you know, I mean since you’d have to
             drive all the way across town ta do it .… [¶] You know what
             I mean?’

“Harold and Lisa:   (laughs)

“Harold:     ‘No, um, but I just think it needs to be … aware, you know of
             what’s, um, you know transpiring.’

“Lisa:       ‘Yeah.’”




                                       8.
      In a December 7, 2010, call, Harold and Lisa talked about Kodie’s failure to
contact someone named “Janet”:

      “Harold:      ‘Um, Kodie told me that … she went and tried to talk to,
                    uh .… [¶] I don’t know if you explained the situation to her,
                    but she went off to go … talk to Janet in the apartment.
                    [¶] … [¶] … I don’t know … what kind of message you gave
                    her, but she said she tried to go, she went over to Janet’s and
                    knocked on the door and nobody answered.’

      “Lisa:        ‘Hmm, I know that. [¶] … [¶] It is not my fault.’

      “Harold:      ‘Are you aware that she went to the wrong place.’ [¶] … [¶]

      “Lisa:        ‘Oh yeah, ‘cause … Kodie called me today. Well, she
                    probably already tell you.’ [¶] … [¶]

      “Harold:      ‘But um, ok now, do you … understand who … I was talking
                    ‘bout when I said Janet in the apartments right?’

      “Lisa:        ‘Yeah.’ [¶] … [¶]

      “Harold:      ‘Okay, um. Okay, let’s see if this rings a bell: I could usually
                    throw up … like a little hand thing and you’ll know who I’m
                    talking about.’

      “Lisa:        ‘Yeah. [¶] … [¶] I know who you’re talking about. Yes.’”
      Harold and Lisa’s conversation on December 8, 2010, indicated that Kodie still
did not touch base with Janet:

      “Harold:      ‘The reality of the situation here … is … we’re sitting here
                    for Kodie to go talk to Jan in the apartments .… [¶] [Y]ou
                    know if … this ain’t gonna be done by her anytime soon, or
                    anybody else, … maybe it’d be good if … you know you,
                    uh .…’

      “Lisa:        ‘I take it into my own hands, I got it.’

      “Harold:      ‘You know, tomorrow or something, you go talk to “Make it
                    Happen Captain,” you know?’

      “Lisa:        (Sighs) ‘Yes.’



                                            9.
“Harold:   ‘Explain the situation and … explain to her that you know,
           when uh .… [¶] Obviously when somebody’s gonna be
           coming around, sticking their nose around soon, and uh you
           know .… [¶] She just needs ta shut tha fuck up.’

“Lisa:     ‘Yeah.’

“Harold:   ‘I mean, that would really be very wise.’ (laughs)

“Lisa:     ‘Yeah.’ [¶] … [¶]

“Harold:   ‘I’m already hoping [you’re] on the same … level, … maybe,
           you know you can talk to her and make sure she’s gonna be
           on the same uh, with uh, you know.’

“Lisa:     ‘I gotcha.’

“Harold:   ‘You know, that way you know, if she does happen to … get
           up on the throne … um you know what I mean .…
           [¶] … [¶] … You know maybe um, if she can be the cause or
           uh, all eyes can look on .…’ (Laughs)

“Lisa:     ‘Yeah.’

“Harold:   ‘Anywhere but at me. (Laughs) [¶] I’m just saying.’

“Lisa:     (Laughs) ‘Yeah.’ [¶] … [¶]

“Harold:   ‘[W]hat I would do is … make sure that first off you uh, you
           uh come in a good way, you know what I mean?’

“Lisa:     ‘I know, I know.’

“Harold:   ‘Come in a good way so nobody um feels ah, awkward or, or
           anything like that.’ (Inaudible.)

“Lisa:     ‘Yeah.’ [¶] … [¶]

“Harold:   ‘So tomorrow .… [¶] …[¶] [F]irst thing when you get home,
           I don’t know if you’re gonna take your dog for a walk, but
           you know .… [¶] … [¶] … I’m just saying that’s a long way
           to walk, all the way over to the apartments across town.’

“Lisa:     ‘I know.’ [¶] … [¶]

“Harold:   ‘Yeah and if you have to, go take the ex-wife with you.’


                                 10.
“Lisa:       ‘Okay.’”
Harold spoke to Kodie directly on December 9, 2010:

“Harold:     ‘Hey, uh, why don’t you do me a favor?’

“Kodie:      ‘What’s that?’

“Harold:     ‘Why don’t you go pick up … your friend down the street,
             right.’

“Kodie:      ‘Um, um down the street from where I’m at?’

“Harold:     ‘Yeah. [¶] … [¶] [G]o pick up “L,” okay.’ [¶] … [¶]

“Kodie:      ‘Go pick up “Carol?”’

“Harold:     ‘NO, go pick up “L,” and you guys .…’

“Kodie:      ‘“Gail?”’

“Harold:     ‘L. L.’

“Kodie:      ‘Oh, okay.’

“Harold:     ‘And then (clears throat), why don’t you guys go and uh go
             over by where your cousin used to live, you know over by
             420.’

“Kodie:      ‘Yeah.’ [¶] … [¶]

“Harold:     ‘Why don’t you guys go over there and um, see how that
             works out.’

“Kodie:      ‘Okay, I can do that.’ [¶] … [¶]

“Harold:     ‘[C]an you make sure you do it today?’

“Kodie:      ‘Mm hmm.’

“Harold:     ‘I, I figure like this, I figure .…’

“Kodie:      ‘But.’

“Harold:     ‘If “L” goes.’




                                      11.
      “Kodie:       ‘Um, I heard that um, he’s in Bakersfield. [¶] … [¶] In some
                    kind of program down there.’

      “Harold:      ‘I heard he was too, but I heard that, um, that .…’
                    [¶] … [¶] … Okay, I know, I know well I heard, I heard that,
                    that person just resurfaced so.’

      “Kodie:       ‘Okay.’ [¶] … [¶]

      “Harold:      ‘Okay, and you know why don’t you call, why don’t you call
                    her and make sure she’s up and around and dressed, so she’ll
                    be ready when you stop by to pick her up.’

      “Kodie:       ‘Alright.’ [¶] … [¶]

      “Harold:      ‘So, um, will you do that call her and make sure, um, awake
                    and dressed and all that, or she’s gonna be dressed and then
                    um, when you go over to these apartments to speak with this
                    lady that you have her wait in the car until you find out
                    what’s up.’

      “Kodie:       ‘Alright.’

      “Harold:      ‘And then you know, … if she’s there, and she comes out
                    maybe you can call her outta the car, you know what I mean.
                    [¶] … [¶] … She, you know, she understands that … she’s on
                    the certain level already and … she’s just gonna help make
                    sure that, I guess she is too. Or whatever, you wanna call it,
                    whatever.’

      “Kodie:       ‘Alright.’”
      Harold and Lisa’s final conversation on December 10, 2010, revealed that Lisa
and Kodie had not yet visited Janet:

      “Harold:      ‘Hey, um did you uh, has Kodie called you?’ [¶] … [¶]

      “Lisa:        ‘Well I talked to her yesterday and told her that I’d be down
                    at seven if she was gonna be home. She said that she was,
                    and it was, I don’t know, probably about 10:15 when I got
                    home and everything, and I text her and told her if she was
                    gonna be home ‘cause I was gonna come down there right
                    then and she never text me back.’ [¶] … [¶]

      “Harold:      ‘Um, she was supposed to come pick you up.’


                                           12.
“Lisa:     ‘Was she? That never happened.’

“Harold:   ‘Yeah well that’s what was supposed to happen. [¶] I been
           um, telling her how important this is but you know, I mean,
           you know like obviously you know, nobody, why would
           anybody else, uh you know. [¶] … [¶] And she was gonna
           take you to go talk to … Janet over in the apartments.’

“Lisa:     ‘Yeah.’

“Harold:   ‘You know “Make it Happen Captain.”’

“Lisa:     ‘Mmhmm.’ [¶] … [¶]

“Harold:   ‘She told me, well, I went and knocked on her apartment .…
           [¶] And I was like, you went to the apartment door and you
           knocked on the apartment door? I was like [you’re] fucking
           retarded! You know what I’m saying. [¶] … [¶] [A]nyways,
           um she was basically gonna come pick you up and uh you
           know, and … she was like, well, well if I’m gonna go an[d]
           uh, you know do this and go up to the door and knock and
           this and that, what good is that gonna do? [¶] I was like well
           the good that’s gonna do is uh, [you’re] familiar with the
           family.’

“Lisa:     ‘Yeah.’

“Harold:   ‘So you know, if you go you know talk with the family an[d]
           say, you know, hey is Jan there and when Janet comes outside
           to talk to you, you know then you could be like, hey, you
           know, call her in the car and be like come here for a sec, you
           know what I mean?’

“Lisa:     ‘Yeah.’

“Harold:   ‘And I’ll be, like that way um, you know you can initiate
           the … communication and then that way you know, you
           know you can call her out of the car. That way [you,] her and
           Janet can get on the same level.’

“Lisa:     ‘Yeah.’ [¶] … [¶]

“Harold:   ‘Do it in a way you don’t have to be a rocket scientist, to you
           know, um, um figure all that out. I mean there should be …
           that should be, um fucking elementary, it should be easy.’


                                  13.
“Lisa:     ‘Yeah.’ [¶] … [¶]

“Harold:   ‘[A]nyways, so that was supposed to happen but that never
           happened right?’

“Lisa:     ‘No.’ [¶] … [¶]

“Harold:   ‘So if you can try to work something out with her, um like the
           sooner the better, you know.’

“Lisa:     ‘Okay.’

“Harold:   ‘Um, so, um, you know, so you can basically let Janet know
           you know what’s, what’s coming, you know?’

“Lisa:     ‘Yeah.’

“Harold:   ‘And all that so, um the faster you guys take care of that the
           better off um .…’

“Lisa:     ‘You’ll feel.’ [¶] … [¶]

“Harold:   ‘So you know when you guys get some time you know, she
           gets um, go over there you know, (inaudible) make it
           happen.’

“Lisa:     ‘Well I can make time, you know?’

“Harold:   ‘That’s what I’m talking ‘bout. And then maybe if you call,
           if you’re calling Kodie to say, hey you know we need to, you
           know we need to take a ride over to Janet’s and go you know
           talk to her.’

“Lisa:     ‘Yeah.’

“Harold:   ‘Then, hey maybe that’ll help her be like oh, that’s right, you
           know, let’s let’s go, you know ‘cause um, it’d really be um, it
           would really um, be a helpful kind of thing, hopefully.’

“Lisa:     ‘Yeah.’

“Harold:   ‘Even, even if it’s not oh well, I mean, I mean it can’t get any,
           I guess, you know. I would say it can’t get any worse.
           (Laughs.) You know what I mean?’

“Lisa:     ‘Yeah.’


                                  14.
      “Harold:       ‘But um, you know if you can you now just kinda get Janet
                     on the same, same page that [you’re] on and, um this n’
                     that .…’

      “Lisa:         ‘I will do what I can.’

      “Harold:       ‘That’s my girl. Thank you.’”
      f.       Testimony of Esteves
      At trial, Esteves opined that the phrases “half a pizza,” “car parts,” “nuts and
bolts,” and “sets of tires” were code words for methamphetamine:

      “During my career I’ve investigated several cases where people will use
      code to refer to narcotics. I’ve heard food, tools, women .… [¶] … [¶]

      “ … The half a pizza, I believed they were talking about half a gram of
      methamphetamine, and I find this consistent with what was found in the
      house with 11 of the bags weighing a half a gram. And also the fact that
      it’s not a reasonable request to call someone and ask for half a piece a
      pizza. [¶] … [¶]

      “[T]he call we just listened to …, the jail visit in its entirety between
      Harold and Jeremy, the portion where they’re talking about nuts and bolts
      and flushing and rusty nuts and bolts. It’s apparent there to me that
      they’re … using a code to talk about methamphetamine.…”

      “When they’re talking about the nuts and bolts, you’ll notice Jeremy lowers
      his voice and he’s whispering … and then subsequently later in the call …
      when they’re still talking about the nuts and bolts, [Harold] switches the
      code to [all terrain] tires. They’re talking about the big nuts and bolts, and
      then, ‘Oh, you mean those big [all terrain] tires? All my [all terrain] tires?’
      So they’re not staying consistent with the code. They’re whispering and
      trying to cover up the phone and being choppy when they’re talking about
      something that’s legal. I mean, car parts and engines and nuts and bolts are
      legal items. There would be no need to disguise what they’re talking about
      there.”
      Esteves also determined that “Janet” referred to Snipes:

      “[Janet]’s a female by the name of Janet Sobel and she lives at 1205 East
      Cleveland .… [¶] … [¶] It’s on the other side of town, [Jeremy and Lisa]
      live on the west side of town and Janet lives on the east side. [¶] … [¶]




                                               15.
       “From listening to the context of all the calls … it’s apparent that when
       they’re referring to … Janet and the apartments, they’re actually talking
       about … Snipes who lives just a few blocks away. Again, it’s another code
       to try to hide what they’re, in fact, doing. [¶] … [¶]

       “[Snipes] lives in a house. [¶] … [¶]

       “ … If you listen on the calls, they’ll be referring to Janet in an apartment,
       and then they switch to he, so they’re switching to he/she … which
       indicated to me they’re not actually talking about Janet. And if you’ll listen
       to the call, I sense … some heavy sarcasm when we’re referring to since
       you have to go all the way across town. Also, [Harold] says, ‘If you’re
       going to walk your dog later, I mean, I know you’d have to walk all the
       way across town,’ these are things that raise my suspicion that they were
       probably talking about [Snipes].… [¶] … [¶]

       “I also believe they’re talking about [Snipes] as opposed to Janet when
       [Kodie] tells him that he’s in a program down in Bakersfield .…”

       “When I served [Snipes] with the subpoena on the original proceedings, I
       drove to his inpatient program. [¶] … [¶] In a town called Shafter, which
       is close to Bakersfield.”

       “Also, the fact where … during the call, Harold’s telling Lisa that [Kodie]
       went over and tried to actually talk to Janet in the apartments. And
       Harold’s saying, ‘Do you know that she really went and knocked on Janet’s
       door?’ And—and Lisa’s—you could tell Lisa doesn’t understand the code,
       and Harold’s trying to let her know, ‘Hey, we’re talking about the wrong
       person.’”
       Based on the items seized and the recorded jail calls, Esteves concluded that
Harold possessed the methamphetamine at the West 4th Street residence for the purpose
of sale:

       “First the amount of the drug. They’re broken down into 16 separate bags.
       All of them weighed out to specific weights they’re commonly sold in the
       street. The fact that they’re not odd number of weights. They’re all
       identical, color-coded; that is something that is done so that during a hand-
       to-hand transaction, it can be quickly looked at and know how much is in
       that bag when a request is made. The text messages located on the phone
       that [Harold] possessed. The people wanting to meet up with him in public
       places describing their vehicles. The text message which I believe was
       referring to methamphetamine code asking for a half a pizza, which is


                                            16.
consistent with the half a gram weights that … were found at the residence.
Also the presence of the safe keys on [Harold’s] key ring. [¶] … [¶]

“Based on my training and experience, I’ve encountered individuals who
will … keep personal small fire type safes at off site locations. In the
narcotics’ community these are called stash pads. Commonly a dealer will
only keep a small amount which is needed to complete transactions
throughout the day. And they will have friends of theirs keep safes at their
location. And that way if law enforcement does serve a search warrant on
the residence, an entire stash is not taken, only a small amount is lost.
[¶] … [¶]

“The presence of the pay/owe sheet on the dry-erase board, which some of
the initials corresponds with the names on the pay/owe sheet found in
[Harold’s] truck with the dollar amounts written next to them. [¶] Much
like a legitimate business, drug dealers will keep a record of drugs sold and
money that is owed to them. Drug dealers will commonly do what’s called
fronting drugs; it’s basically giving it to them on credit and they can pay
later when they have the money. And it’s for that reason it’s necessary for
the dealer to write down the amount that is owed back to them. [¶] … [¶]

       “Another factor is the presence of a large amount of cash, when
[Harold] explained to me that his only source of employment was doing his
aunt’s yard, which he stated did not make a lot of money.

       “Also the fact that the cell phone that [Harold] was utilizing was in
the name of … Pettit. This is done by drug dealers to try to prevent law
enforcement from finding which phone they’re utilizing and prevent them
from monitoring it. Also the text messages on the phone of the female
saying it’s hard to get ahold of you because you change your number so
much. Based on my training and experience, I know that the drug dealers,
again, frequently change their number often to make it tough for law
enforcement to monitor conversations.

       “The presence of the shirt that said ‘Stop Snitching’ .… ‘[S]nitch’ is
a derogatory term for someone who provides information to law
enforcement and assists law enforcement in finding and apprehending drug
dealers. These type of items are worn or displayed to intimidate someone
from providing information to law enforcement or cooperating with us,
which in turn makes it tougher to convict them and hold them accountable
for their actions. [¶] … [¶]

      “Also, a few of the things we heard in the calls where subsequent to
[Harold]’s arrest, he’s giving Lisa detailed instructions on what to do if


                                     17.
       people come by, tell them everything is all gone. He says if his boss comes
       by, you know, just tell him everything is all gone. Also, in the call when
       he’s telling her to collect all the money, he says either have the money or
       there’s one statement where he specifically refers to a tab, ‘have all the cash
       on that tab.’ Again, going like the pay/owe sheet, drug dealers will front
       drugs on credit, often working like a tab. And, therefore, he’s saying either
       have the money or have the money that’s owed on the tab….”
Defense case-in-chief
       Ann Ruz, a criminal defense investigator, interviewed Jeremy at 1933 West 4th
Street on December 1, 2009. He confessed that the methamphetamine belonged to him
instead of Harold. At some point, Lisa and Pettit admonished Jeremy for speaking to
Ruz.
       Pamela Mitchell, Harold’s aunt, testified that Harold performed automotive repairs
for her small business.
                                           DISCUSSION

I.     As a matter of law, Lisa’s acquittal on count 5 did not necessitate reversal of
       Harold’s conviction on the same count
       Harold claims that his conviction on count 5 must be overturned because Lisa, an
alleged coconspirator, was acquitted on the same count. However, he concedes that this
“rule of consistency” was rejected by our Supreme Court in People v. Palmer (2001) 24
Cal.4th 856. The Palmer court found that “[t]he general rationale behind the rule has been
‘that one may not conspire with himself.’ [Citation.] It does take at least two to conspire. But to

go ‘[f]rom this irrefutable proposition’ to a rule requiring reversal of the inconsistent verdict is a

‘precipitous leap.’ [Citation.] We find the federal decisions persuasive and, like the high court,

conclude that we may accept inconsistent verdicts. We agree with the conclusion of the Eleventh

Circuit Court of Appeals: ‘Consistent verdicts are unrequired in joint trials for conspiracy:

where all but one of the charged conspirators are acquitted, the verdict against the one can stand.’

[Citation.]” (Id. at pp. 864-865.)




                                                 18.
       We are bound by the doctrine of stare decisis to follow this decision. (Auto Equity
Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
II.    Substantial evidence supported Harold’s convictions on counts 2 and 5
       A.     Standard of review
       “When an appellant challenges the sufficiency of the evidence, the reviewing court
must review the whole record in the light most favorable to the judgment to determine
whether it contains substantial evidence from which a reasonable trier of fact could have
found the defendant guilty beyond a reasonable doubt.” (People v. Aispuro (2007) 157
Cal.App.4th 1509, 1511 (Aispuro); see People v. Tripp (2007) 151 Cal.App.4th 951, 955
[“We must draw all reasonable inferences in support of the judgment.”].) “For evidence
to be ‘substantial’ it must be of ponderable legal significance, reasonable in nature,
credible and of solid value.” (Aispuro, supra, at p. 1511.)
       “Before the judgment of the trial court can be set aside for insufficiency of the
evidence to support the verdict of the jury, it must clearly appear that upon no hypothesis
whatever is there sufficient substantial evidence to support it.” (People v. Redmond
(1969) 71 Cal.2d 745, 755.) “‘Conflicts and even testimony which is subject to
justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive
province of the trial judge or jury to determine the credibility of a witness and the truth or
falsity of the facts upon which a determination depends. [Citation.] We resolve neither
credibility issues nor evidentiary conflicts; we look for substantial evidence.’ [Citation.]”
(People v. Lee (2011) 51 Cal.4th 620, 632.) “If the circumstances reasonably justify the
jury’s finding, the reviewing court may not reverse the judgment merely because it
believes that the circumstances might also support a contrary finding.” (Aispuro, supra,
157 Cal.App.4th at p. 1511.)
       B.     Analysis of count 2
       “Every person who opens or maintains any place for the purpose of unlawfully
selling, giving away, or using [methamphetamine] … shall be punished .…” (Health &

                                              19.
Saf. Code, § 11366, citing, among other things, id., § 11055, subd. (d)(2); see, e.g.,
People v. Moseley (2008) 164 Cal.App.4th 1598; People v. Ferrando (2004) 115
Cal.App.4th 917.) “‘The proscribed “purpose” is one that contemplates a continuity of
such unlawful usage; a single or isolate instance of the forbidden conduct does not
suffice.’ [Citations.]” (People v. Franco (2009) 180 Cal.App.4th 713, 718.) Hence,
“[t]he elements of the opening-or-maintaining offense are that the defendant (a) opened
or maintained a place (b) with a purpose of continuously or repeatedly using it for selling,
giving away, or using a controlled substance.” (People v. Hawkins (2004) 124
Cal.App.4th 675, 680.)
       We find that substantial evidence supported Harold’s conviction on count 2. The
record—viewed in the light most favorable to the verdict—shows that Harold moved into
1933 West 4th Street a couple of months before November 2009. Thereafter, Zamora, a
neighbor, noticed numerous visitors coming to the house between 11:00 p.m. and 2:00
a.m. at least three times each week and only when Harold’s truck was in the vicinity.
This nocturnal influx did not exist prior to Harold’s arrival. During the November 4,
2009, search, agents retrieved 16 color-coded bags of premeasured methamphetamine
from the inside of a back porch lamp; a whiteboard displaying color-coded pay/owe
information, a T-shirt bearing the slogan “Stop Snitching,” safe keys, and a wallet
containing a significant amount of cash from Harold’s bedroom; and a blue notebook
displaying more pay/owe information from Harold’s truck. Text messages to Harold
revealed that (1) “people were coming by the house looking for [him],” and
(2) individuals specifically sought methamphetamine—e.g., “half a pizza”—from him.
Following his arrest and while in jail, Harold (1) ordered Jeremy, his housemate, to claim
ownership of the seized methamphetamine; (2) confirmed that the “car parts,” “nuts and
bolts,” and “sets of tires”—all of which were code words for methamphetamine—that
were not taken during the November 4, 2009, search were either mistakenly discarded or
transferred to Snipes’s residence; (3) instructed Lisa, another housemate, to collect

                                             20.
outstanding debts from buyers and to inform those who “[came] by looking for [him]”
that the methamphetamine was unavailable; and (4) procured someone to temporarily
“kick back” in his room at 1933 West 4th Street and “do all the running for [him]” until
he returned. In view of these circumstances, a reasonable trier of fact could have
concluded that Harold, a drug dealer, moved into 1933 West 4th Street, continuously
used the residence as a place to conduct methamphetamine sales until his arrest, and
intended to maintain the operation via proxy while he remained in jail.
       C.     Analysis of count 5
       “A conviction of conspiracy requires proof that the defendant and another person
had the specific intent to agree or conspire to commit an offense, as well as the specific
intent to commit the elements of that offense, together with proof of the commission of
an overt act ‘by one or more of the parties to such agreement’ in furtherance of the
conspiracy.” (People v. Morante (1999) 20 Cal.4th 403, 416, quoting § 184.) “Criminal
conspiracy is an offense distinct from the actual commission of a criminal offense that is
the object of the conspiracy.” (Morante, supra, at p. 416.) “‘As an inchoate crime,
conspiracy fixes the point of legal intervention at [the time of] agreement to commit a
crime,’ and ‘thus reaches further back into preparatory conduct than attempt .…’
[Citation.]” (People v. Swain (1996) 12 Cal.4th 593, 600.) “The crime of conspiracy
punishes the agreement itself and ‘does not require the commission of the substantive
offense that is the object of the conspiracy.’” (People v. Johnson (2013) 57 Cal.4th 250,
258, quoting Swain, supra, at p. 599.)
       “It is settled that a conspiracy may be established by direct evidence or
circumstantial evidence, or a combination of both.” (People v. Calhoun (1958) 50 Cal.2d
137, 144 (Calhoun).) “It is likewise well recognized that the very crux of the conspiracy,
the evil or corrupt agreement [citations], may be shown also by circumstantial evidence.”
(People v. Lipinski (1976) 65 Cal.App.3d 566, 575.) “It need not be shown that the
parties entered into a definite agreement, but it is sufficient if they positively or tacitly

                                              21.
come to a mutual understanding to accomplish the act and unlawful design.” (Calhoun,
supra, at p. 144.) “The circumstances from which a conspirational 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 .…’ [Citation.]” (People v. Superior Court (Quinteros) (1993) 13
Cal.App.4th 12, 20-21.)
       “[A]n agreement to commit a crime, by itself, does not complete the crime of
conspiracy. The commission of an overt act in furtherance of the agreement is also
required.” (People v. Johnson, supra, 57 Cal.4th at p. 259.) “‘[A]n overt act is an
outward act done in pursuance of the crime and in manifestation of an intent or design,
looking toward the accomplishment of the crime.’ [Citations.]” (People v. Zamora
(1976) 18 Cal.3d 538, 549, fn. 8.) “The purpose of the overt act is simply to show that
the agreement has proceeded beyond the meeting of the minds stage to some direct or
physical act, however innocent in itself, tending toward the furtherance of the objective
of the conspiracy.” (People v. Saugstad (1962) 203 Cal.App.2d 536, 549-550.) “It is
sufficient if the overt act represents any step in furtherance of the conspiracy. It may be
an otherwise lawful act and it may be merely a part of the preliminary arrangement for
the commission of the ultimate offense.” (Id. at p. 549.) “[T]he jury need not agree on a
specific overt act as long as it unanimously finds beyond a reasonable doubt that some
conspirator committed an overt act in furtherance of the conspiracy.” (People v. Russo
(2001) 25 Cal.4th 1124, 1128.)
       Harold asserts that (1) “there was insufficient evidence presented at trial to prove
that [he] formed an agreement with Lisa to dissuade the testimony of Snipes,” and
(2) “there was … no substantial evidence of any overt act .…” We disagree. First, the
record—viewed in the light most favorable to the verdict—establishes that Harold and
Lisa formed an agreement. On December 3, 2010, the same day the prosecutor identified
Snipes as a potential witness, Harold and Lisa conversed on the phone. Harold

                                             22.
communicated that Kodie, who attended court that day, needed to “‘talk to bonehead
right away’” and “‘tell bonehead … everything that’s coming .…’” Lisa affirmed that
she would “‘get a hold of [Kodie]’” and relay Harold’s message. Already, a reasonable
trier of fact could have inferred from these circumstances that “bonehead” referred to
Snipes. Subsequent discussions in code between Harold and either Lisa or Kodie and
Esteves’s trial testimony confirmed that Snipes was indeed the subject and clarified
exactly what needed to be articulated to him. In a December 9, 2010, call to Kodie,
Harold specified that Kodie would pick up Lisa—i.e., “‘L’”—and “‘go over to the[]
apartments to speak with [a] lady’” who “‘just resurfaced’” from a “‘program down’”
“‘in Bakersfield.’” At trial, Esteves pointed out that Snipes had been attending an
inpatient program near Bakersfield at the time he was served with a subpoena. In a
December 10, 2010, call to Lisa, Harold further detailed that ‘“[Kodie] was gonna take
[Lisa] to go talk to … Janet over in the apartments,’” where “[Lisa] could … call [Janet]
in the car,’” and “[Lisa,] [Kodie,] and Janet can get on the same level.’” Moreover, in the
previous December 7 and 8, 2010 calls, Lisa indicated that she knew what Harold
actually meant by the expression “‘Janet in the apartments’” and would “‘take into [her]
own hands’” the job of convincing Janet to either “‘shut tha fuck up’” or “‘cause … all
eyes [to] look … [¶] … [¶] … [a]nywhere but at [Harold]’” from the “‘throne.’” Esteves
deduced from the entirety of Harold’s recorded calls that “Janet” referred to Snipes. A
reasonable trier of fact could have concluded that Harold and Lisa—as early as
December 3, 2010—“positively or tacitly c[a]me to a mutual understanding” (Calhoun,
supra, 50 Cal.2d at p. 144) to prevent or dissuade Snipes from attending or giving
testimony at trial.
       Second, the record—viewed in the light most favorable to the verdict—
demonstrates overt acts. As noted in a December 3, 2010 call, Lisa agreed to “‘get a hold
of [Kodie]’” and tell her to contact Snipes. In a December 7, 2010 call, Harold chastised
Lisa for sending Kodie to “‘the wrong place’” and questioned “‘what kind of message

                                            23.
[Lisa] gave [Kodie.]’” Lisa stated that Kodie notified her that day about the failed
attempt to contact Snipes but refused to accept blame for the mishap. A reasonable trier
of fact could have surmised that Lisa—in furtherance of the conspiracy—relayed
Harold’s “talk to bonehead” message to Kodie between December 3 and December 7,
2010, though Kodie did not successfully carry out the plan on her part. (See People v.
Von Villas (1992) 11 Cal.App.4th 175, 201-202, 242, fn. 12, 245 [promise to call
potential coconspirator and call itself “look toward the accomplishment of and manifest
an intent to commit the crime”].) Furthermore, in light of Kodie’s failure, Harold and
Lisa considered an arrangement to have Lisa (1) accompany Kodie to Snipes’s residence
and (2) persuade Snipes to either “‘shut tha fuck up’” or, if he “‘[got] up on the throne,’”
place criminal culpability on someone other than Harold. “If the conspirators partake,
among themselves, in arrangements, discussions, and preparation in regard to and for the
criminal act, then they have ventured beyond a mere criminal intention .…” (Id. at
p. 245.)11


       11Harold   also contends that “there was no independent evidence to show either an
agreement or an overt act in furtherance of the conspiracy outside of the recorded
telephone calls between [him] and Lisa,” violating the corpus delicti rule. “The corpus
delicti rule requires some evidence that a crime occurred, independent of the defendant’s
own statements.” (People v. Ledesma (2006) 39 Cal.4th 641, 721.) “This rule is
intended to ensure that one will not be falsely convicted, by his or her untested words
alone, of a crime that never happened.” (People v. Alvarez (2002) 27 Cal.4th 1161, 1169,
italics added.) Hence, the corpus delicti rule does not apply to a perpetrator’s
extrajudicial statements that are part of the crime itself, as was the case here. (See, e.g.,
People v. Carpenter (1997) 15 Cal.4th 312, 345, 393-394, superseded by statute on
another ground by Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106-1107
[defendant’s statement of intent to attempted rape and murder victim—i.e., “I want to
rape you”—was part of crime and did not have to be independently proved]; People v.
Chan (2005) 128 Cal.App.4th 408, 420-421 [defendant’s false written entries on
convicted sex offender registration forms constituted crime]; In re I.M. (2005) 125
Cal.App.4th 1195, 1203-1204 [defendant’s misleading statements to police about
shootings were part of conduct of crime of accessory after the fact and not subject to
corpus delicti rule].)


                                             24.
III.   Section 654 did not require the trial court to stay execution of punishment on
       count 2
       A.     Standard of review
       “The question whether section 654 is factually applicable to a given series of
offenses is for the trial court, and the law gives the trial court broad latitude in making
this determination. Its findings on this question must be upheld on appeal if there is any
substantial evidence to support them.” (People v. Hutchins (2001) 90 Cal.App.4th 1308,
1312; see People v. Blake (1998) 68 Cal.App.4th 509, 512 [“A trial court’s implied
finding that a defendant harbored a separate intent and objective for each offense will be
upheld on appeal if it is supported by substantial evidence.”].)
       B.     Analysis
       “An act or omission that is punishable in different ways by different provisions of
law shall be punished under the provision that provides for the longest potential term of
imprisonment, but in no case shall the act or omission be punished under more than one
provision.” (§ 654, subd. (a).) Moreover, “because [section 654] is intended to ensure
that defendant is punished ‘commensurate with his culpability’ [citation], its protection
has been extended to cases in which there are several offenses committed during ‘a
course of conduct deemed to be indivisible in time.’ [Citation.]” (People v. Harrison
(1989) 48 Cal.3d 321, 335.)
       “It is defendant’s intent and objective, not the temporal proximity of his offenses,
which determine whether the transaction is indivisible.” (People v. Harrison, supra, 48
Cal.3d at p. 335.) “[I]f all of the offenses were merely incidental to, or were the means of
accomplishing or facilitating one objective, defendant may be found to have harbored a
single intent and therefore may be punished only once.” (Ibid.) “If, on the other hand,
defendant harbored ‘multiple criminal objectives,’ which were independent of and not
merely incidental to each other, he may be punished for each statutory violation




                                             25.
committed in pursuit of each objective, ‘even though the violations shared common acts
or were parts of an otherwise indivisible course of conduct.’ [Citation.]” (Ibid.)
       The trial court imposed an aggregate 15-year sentence incorporating a four-year
term on count 3, an eight-month term on count 1, an eight-month term on count 2, and an
eight-month term on count 5. Harold asserts that he cannot be punished for both
possessing methamphetamine for sale (count 1) and opening or maintaining a place for
selling methamphetamine (count 2) because these offenses “were committed with the
same criminal intent and objective —to sell methamphetamine.” In an earlier case,
however, we identified and explained the separate objectives underlying these crimes:

       “[A defendant]’s possession of … bags of methamphetamine for the
       purpose of sale was comparable to a store owner’s possession of his or her
       current inventory. The owner’s objective in possessing it is to sell it. The
       owner’s objective in maintaining the store, however, is different from and
       independent of this intent. He or she intends to provide a place for selling
       his or her future inventory on an ongoing basis, regardless of whether the
       current inventory is ever sold or not.” (People v. Moseley, supra, 164
       Cal.App.4th at p. 1604.)
Harold does not dispute that substantial evidence supported his conviction on count 1.
As already discussed, substantial evidence showed that Harold maintained 1933 West 4th
Street as a site to sell methamphetamine on an ongoing basis.
       We therefore conclude that section 654 did not require the trial court to stay
execution of punishment on count 2.




                                            26.
                                DISPOSITION
    The judgment is affirmed.

                                              _____________________
                                                            Smith, J.

WE CONCUR:


_____________________
Kane, Acting P.J.


_____________________
Poochigian, J.




                                    27.
