Filed 2/14/14 P. v. Miramontes CA6
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                 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                         H036887
                                                                   (Santa Clara County
         Plaintiff and Respondent,                                  Super. Ct. No. 211361)

            v.

RUDOLFO MIRAMONTES et al.,

         Defendants and Appellants.



                                           STATEMENT OF THE CASE
         After an investigation regarding the activities of the Nuestra Familia gang in Santa
Clara County, the Santa Clara County District Attorney filed a 43-count indictment
charging 20 defendants with conspiracy to sell methamphetamine, active gang
participation, and other gang-related crimes. Of the 20 defendants charged in the
indictment, only defendant Rudolfo Miramontes and defendant Michael Ortiz proceeded
to trial.
         The indictment charged Miramontes with active gang participation (Pen. Code,
§ 186.22, subd. (a)), conspiracy to sell methamphetamine (Pen. Code, §182, subd. (a)(1) ;
Health & Saf. Code, § 11379, subd. (a)), assault with a deadly weapon (Pen. Code, § 245,
subd. (a)(1)), and extortion (Pen. Code, §§ 518-520). The indictment alleged that the
conspiracy, the assault, and the extortion were committed for the benefit of, at the
direction of, and in association with a criminal street gang (Pen. Code, § 186.22,
subds. (b)(1)(A), (b)(1)(B), (b)(4)(C)). The indictment also alleged that Miramontes had
three prior strike convictions (Pen. Code, §§ 667, subds. (b)-(i), 1170.12), served three
prior prison commitments (Pen. Code, § 667.5, subd. (b)), and had two prior serious
felony convictions (Pen. Code, § 667, subd. (a)).
       The indictment charged Ortiz with active gang participation (Pen. Code, § 186.22,
subd. (a)) and conspiracy to sell methamphetamine (Pen. Code, § 182, subd. (a)(1);
Health & Saf. Code, § 11379, subd. (a)). The indictment alleged that Ortiz participated in
the conspiracy for the benefit of, at the direction of, and in association with a criminal
street gang (Pen. Code, § 186.22, subd. (b)(1)(A)). The indictment also alleged that Ortiz
had a prior strike conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12) and a prior
serious felony conviction (Pen. Code, § 667, subd. (a)).
       Miramontes and Ortiz were jointly tried by the same jury. The jury convicted on
all counts and found all of the gang allegations to be true. The trial court found all of the
prior strike allegations, prior prison commitment allegations, and prior serious felony
allegations to be true.
       The court sentenced Miramontes to a prison term of 149 years to life, as follows:
35 years to life for the active gang participation conviction, 39 years to life for the
conspiracy conviction, 40 years to life for the assault with a deadly weapon conviction,
and 35 years to life for the extortion conviction. The court sentenced Ortiz to a prison
term of 14 years, as follows: six years for the conspiracy conviction, three years for the
gang enhancement, five years for the prior serious felony conviction, and a concurrent
six-year term for the active gang participation conviction.
       On appeal, Miramontes makes the following arguments: 1) his trial counsel
rendered ineffective assistance in failing to object to irrelevant, prejudicial, and
cumulative evidence; 2) the prosecution presented insufficient evidence to support his
conspiracy conviction; 3) the prosecution presented insufficient evidence to corroborate
the hearsay statements of coconspirators; 4) the trial court erred in failing to sua sponte
                                               2
instruct the jury that hearsay statements of coconspirators required corroboration; 5) the
trial court erred in failing to sua sponte instruct on an uncharged conspiracy; 6) the trial
court erred in admitting recorded jail phone calls pursuant to Evidence Code section
1223; 7) the trial court erred in failing to exclude portions of the jail phone calls pursuant
to Evidence Code section 352; and 8) cumulative error warrants reversal.
       Ortiz makes the following arguments on appeal: 1) the trial court erred in refusing
to sever his case from Miramontes’s case, and the resulting joint trial violated his right to
due process; 2) the trial court erred in admitting a letter that was inadmissible hearsay;
3) the trial court erred in failing to grant immunity to two prosecution witnesses and in
failing to compel the prosecutor to grant immunity to those witnesses; 4) cumulative error
warrants reversal; 5) the sentence on the active gang participation conviction must be
stayed pursuant to Penal Code section 654; and 6) his restitution fine and corresponding
parole revocation restitution fine must be reduced because the trial court misapplied
Penal Code section 1202.4, subdivision (b)(2). Miramontes joins Ortiz’s arguments
regarding immunity and staying pursuant to Penal Code section 654.
       As set forth below, we conclude that the trial court erred in failing to stay the
sentences on the active gang participation convictions pursuant to Penal Code section
654. We also conclude that the trial court erred in considering Ortiz’s active gang
participation conviction in calculating Ortiz’s restitution fine under Penal Code
section 1202.4, subdivision (b)(2). We accordingly will stay the sentence on
Miramontes’s active gang participation conviction, stay the sentence on Ortiz’s active
gang participation conviction, and reduce Ortiz’s restitution fine and corresponding
parole revocation restitution fine. Finding no further errors, we will affirm the judgment
in all other respects.1

       1
          Miramontes has also filed two petitions for writ of habeas corpus, which this
court ordered considered with the appeal. By separate orders of this date, we deny the
petitions for writ of habeas corpus.
                                              3
                                 STATEMENT OF THE F ACTS
The Structure of the Nuestra Familia
       From August 2000 to January 2009, Campbell Police Sergeant Dan Livingston, a
member of the Santa Clara County Specialized Enforcement Team (SCCSET),
investigated Nuestra Familia (NF) activities in Santa Clara County. Sergeant Livingston
testified as a gang expert and as a narcotics expert. John Mendoza, who was an NF
member from 1994 to September 2007, also testified as a gang expert.
       Sergeant Livingston explained that the NF is a Hispanic gang that formed inside
the California prison system during the 1960’s. NF members are from Northern
California, and they identify with the color red and the number 14. Sergeant Livingston
opined that the primary activities of the NF are drug sales, extortions, robberies, assaults
with deadly weapons, murders, and kidnappings. The NF carries out crimes in prison and
on the streets.
       NF members make a lifetime commitment to the organization. Sergeant
Livingston explained that NF members are “willing to go to prison for the rest of their
life for the organization.” NF members who fail to fulfill their duties may be killed at the
direction of the organization.
       Sergeant Livingston testified that the NF has a “very detailed constitution” and a
hierarchical structure that is similar to the structure of the military. At the top of the NF
hierarchy are three generals, who are imprisoned at Pelican Bay State Prison.2 One of
those generals, Antonio Guillen, oversees the NF’s street activities and activities in the
county jails. Category three NF members, who are equivalent to captains in the military,
rank just below the generals. Ten years of membership in the NF is required to be a



       2
         In the late 1990’s, the then-current NF generals were moved to a federal prison,
and an internal struggle regarding control of the NF ensued. Sergeant Livingston
explained that currently there are new generals that reside at Pelican Bay State Prison.
                                              4
category three member. Below the category three members are category two members,
experienced NF members with a rank equivalent to lieutenants in the military. Category
one NF members rank just below the category two members.
       The Nuestra Raza (NR) is a subsidiary of the NF, and NF members have authority
over NR members. NR members are required to follow the “Fourteen Bonds,” a set of
rules created by the NF. In order to join the NR, a potential NR member must be
sponsored by an NF member. This procedure ensures that the NF maintains control over
the NR. Although NR members make a lifetime to commitment to follow NF directives
while they are incarcerated, their participation in NF street activities is optional.
       Mendoza explained that “Northerners” are subordinate to NF members and NR
members. Northerners are incarcerated people or Hispanic street gang members who
choose to follow NF directives. Northerners participate in NF street activities and NF
activities inside jails and prisons. Sergeant Livingston testified that Northerners “look up
to” NF members and NR members.
       Sergeant Livingston explained that the NF uses coded communications in order to
hide its criminal activities from the police. NF and NR members write to each other in
the Nahuatl language, an Aztec dialect that is difficult to understand and decode. Male
NF and NR members refer to each other by female names in order to confuse the police.
The NF also utilizes “three-way” phone calls. In a three-way call, an incarcerated NF or
NR member calls a recipient who connects the call to a third party, thereby preventing the
police from ascertaining the identity and phone number of the third party.
       Individuals who have been deemed no good by the NF or who have “crossed the
organization” are placed on the NF’s “bad news list,” known as the “BNL.” The BNL is
a hit list. Sergeant Livingston explained that individuals on the BNL may be stabbed,
shot, sliced, or killed at the direction of the NF. Mendoza testified that incarcerated
individuals who are on the BNL are subject to “removal.” A removal is an NF-
sanctioned process by which one person stabs or slices the targeted individual with a
                                               5
knife, two other people beat the targeted individual, and the stabber then disposes of the
knife.
The NF Conspiracy to Sell Methamphetamine
         Sergeant Livingston testified that the “primary concern” of the NF is to send
money into the prisons, where the majority of the NF membership is incarcerated. He
explained that the “NF makes most of its money from drug sales.” NF “street regiments”
facilitate NF drug sales. Sergeant Livingston testified that the sale of methamphetamine
is a primary activity of every NF street regiment. Mendoza confirmed that all NF street
regiments are involved in methamphetamine sales.
         Sergeant Livingston explained that every street regiment has “a regiment
commander who is in charge of the regiment.” A “second in command” distributes drugs
to regiment members and associates, who sell the drugs. Mendoza explained that
regiment members are “usually” NF or NR members. He further explained that it is
common for Northerners to be associates of NF street regiments and to sell NF-supplied
drugs.
         Sergeant Livingston testified that it is “very common” for the NF to “front” drugs
to those who sell NF drugs. The term “fronting drugs” means that the seller takes the
drugs and pays for them at a later time. Mendoza explained that a regiment commander
will front drugs to his sellers because it eliminates the possibility that the police will
catch the regiment commander with a large supply of drugs. Mendoza testified that
sellers who have been fronted drugs are required to pay back the regiment commander.
The obligation to pay back the regiment commander exists even when the seller has been
arrested and the drugs have been confiscated by the police. Sellers who fail to pay for
drugs are placed on the BNL.
         Mendoza testified that it is the practice of the NF to inform Northerners who sell
NF drugs that the NF is supplying the drugs. He explained that this procedure is part of
the process of informing Northerners that they must pay the NF for drugs.
                                               6
       Street regiment members and associates who sell NF drugs are required to pay
their regimental commander dues of $200 per month. Mendoza explained that the dues
are sent to NF members in prison.
       Between 2002 and 2008, NF members Lorenzo Guzman, Charlie Campa, James
Cramer, Sammy Ramirez, and Mendoza commanded street regiments in Santa Clara
County. Police officers searched homes belonging to these regiment commanders and
numerous homes belonging to regiment members. The searches uncovered many items
related to NF methamphetamine sales, including methamphetamine, digital scales, plastic
baggies, pay/owe sheets, cash, firearms, and Aztec translation sheets. At trial, Sergeant
Livingston testified at length regarding the evidence seized during the searches.
       Mendoza explained that his regiment sold up to 30 pounds of methamphetamine
per month. He collected $1,500 profit for each pound sold. He was required to give
25 percent of the profits to the NF.
Ortiz’s Participation in the NF Methamphetamine Conspiracy
       Sergeant Livingston testified that Ortiz is a member of the Varrio 12th Street gang.
Ortiz’s moniker is “Raton.”
       Vince Tirri, an NR member from 2001 to 2010, testified that he sold
methamphetamine for Campa’s NF regiment in 2002 and 2003. In 2003, Tirri gave Ortiz
NF methamphetamine to sell. Tirri informed Ortiz that the methamphetamine was
supplied by the NF. Tirri testified that Ortiz sold methamphetamine for the Campa
regiment for “a couple months.” Tirri explained that Ortiz assisted the Campa regiment’s
sale of drugs in additional ways, including storing drugs, dropping off drugs, and serving
as a driver.
       In 2004, Tirri worked for Mendoza’s NF regiment. NR member Isaac Marquez
also worked for Mendoza’s regiment at that time. Marquez told Tirri that he had supplied
Ortiz with NF methamphetamine to sell.


                                             7
       Tirri worked for Ramirez’s NF regiment in 2005 and 2006. Marquez worked for
Ramirez’s regiment at that time, and Marquez supplied Ortiz with NF drugs to sell. In
2006, Ortiz became a “functioning member” of the Ramirez regiment. As a member of
the regiment, Ortiz paid monthly dues.
       Patrick Martinez, who was an NR member from 2003 to 2007, also worked for the
Ramirez regiment in 2005. Martinez testified that Marquez fronted Ortiz NF
methamphetamine to sell. At one point, Ortiz was late in paying for methamphetamine.
Martinez went to Ortiz’s house to collect the money, and Ortiz stated that he was unable
to sell the methamphetamine he had been fronted. Martinez asked Ortiz, “You know
where that money’s going?” Ortiz responded, “Yes.” Ortiz looked scared, and he
promised to pay the debt in a couple of days.
       Ramirez testified regarding the operation of his regiment. He explained that Tirri
recruited people to sell NF drugs, and that Marquez fronted NF drugs to sellers. When he
was running his regiment, Ramirez did not know Ortiz, and he was unaware that Ortiz
was selling drugs for his regiment. Ramirez explained that he did not know all of the
people who were functioning in his regiment, and that he isolated himself from his
regiment members in order to avoid detection by law enforcement.
       On July 19, 2006, SCCSET Agent Edward Whitfield conducted surveillance
outside a house on Bird Avenue in San Jose. Officer Whitfield saw two different cars
approach the house and stop for a short period of time. Ortiz approached the passenger
side of each car, and Officer Whitfield saw Ortiz “do an exchange” through the open
passenger window of each car. Officer Whitfield believed the exchanges were narcotics
transactions. Officer Whitfield later searched the house, and he found 11 grams of
methamphetamine, two digital scales, and mail bearing Ortiz’s name.
       Police officers searched Marquez’s home on June 20, 2007. They found
methamphetamine, scales, and a list of nicknames and phone numbers. Sergeant
Livingston testified that some of the people included on the list were associated with the
                                             8
NF, and he explained that the list’s reference to “Rat” was a reference to Ortiz. In the
search of Marquez’s house, police also found a letter postmarked January 19, 2005 and
bearing Marquez’s return address in jail. In the letter, Marquez directed his wife to put
“pressure” on “Raton.” The letter also stated, “Don’t be happy with a little payment.”
Sergeant Livingston opined that Marquez was using the letter to instruct his wife on
collecting a drug debt from Ortiz.
       On May 29, 2008, San Jose Police Officer Anthony Vizzusi conducted
surveillance outside a house on Singleton drive. He saw three different cars drive into the
house’s driveway. Each time a car pulled up, Ortiz exited the house, approached the car,
and had a short interaction with the driver. During Ortiz’s interaction with the third car,
Officer Vizzusi saw that Ortiz and the driver “exchanged something.” Officers later
searched the house, and they seized several letters and a cell phone. Sergeant Livingston
opined that text messages on the cell phone showed that Ortiz sold narcotics. Sergeant
Livingston also opined that the letters seized in the search showed Ortiz’s involvement
with gang activity and narcotics sales. One of the letters, which was postmarked
April 18, 2007, and bore Ortiz’s return address in jail, instructed Ortiz’s girlfriend on the
prices various individuals would pay for methamphetamine. In another letter, which was
signed by “Raton,” the author described his “jail program” and his “responsibility” inside
jail. Sergeant Livingston opined that this letter showed that Ortiz was functioning under
the NF in jail.
       Sergeant Livingston opined that Ortiz was an associate of the NF. His opinion
was based on the fact that several NR members identified Ortiz as an associate of the NF,
Ortiz’s classification as a Northerner in the county jail, and a tattoo on Ortiz’s knee.
Sergeant Livingston also opined that, assuming the prosecution proved Ortiz’s
involvement in a conspiracy to sell methamphetamine, Ortiz’s participation in the
conspiracy was done for the benefit of, at the direction of, and in association with the NF.
He explained that proceeds of the conspiracy supported NF members in prison, that NF
                                              9
members directed the methamphetamine sales, and that NF members and associates
worked together to sell the methamphetamine.
Miramontes’s Participation in the NF Methamphetamine Conspiracy
       Sergeant Livingston and Mendoza explained that Miramontes is a category one
NF member. NF and NR members refer to Miramontes as “Dancing Bear” or “DB.”
       In 2006, Mendoza and Miramontes were in custody at the Santa Clara County Jail.
Mendoza explained that Miramontes was the NF’s “regimental commander” of the jail,
and that Miramontes “took control of the jail.” Miramontes ordered that
methamphetamine smuggled into the jail by anyone associated with the NF was to be
given to NF leadership at the jail.
       Cramer was also in custody at the Santa Clara County Jail in 2006. Mendoza
heard Cramer ask Miramontes questions regarding the management of the Cramer
regiment. Cramer asked Miramontes “how to manage his manpower, how to manage the
money, how to establish a bank.” Miramontes told Mendoza that “Cramer was messing
up out there,” and Miramontes stated his intention “to take control of Cramer’s
regiment.” Mendoza testified that Miramontes “basically asserted control over
[Cramer’s] regiment.” Miramontes told Mendoza that he was involved in collecting
money owed to the Cramer regiment.
       Sergeant Livingston opined that Miramontes took over Cramer’s regiment. He
also testified that NF general Guillen directed Miramontes to “get the county in order.”
       Mendoza confirmed that he was “aware” that Miramontes ran an NF street
regiment while in custody at the Santa Clara County Jail, and that Miramontes continued
to run the regiment when released from jail in 2007. He also testified that Guillen had
given Miramontes authority over all the street regiments in Santa Clara County.
       Sergeant Livingston searched Miramontes’s home on September 13, 2007.
Sergeant Livingston found an Aztec-English translation sheet, and he explained that it


                                            10
was the code NF members use to communicate. He also found contact information for an
incarcerated NF member.
       Sergeant Livingston opined that, assuming the prosecution proved Miramontes’s
involvement in a conspiracy to sell methamphetamine, Miramontes’s participation in the
conspiracy was done for the benefit of, at the direction of, and in association with the NF.
He explained that the proceeds of the conspiracy supported NF members in prison, that
NF members directed the methamphetamine sales, and that NF members and associates
worked together to sell the methamphetamine.
The Extortion of Eric Burns
       NR member Eric Burns was in custody at the Santa Clara County Jail in early
2007. Miramontes and Mendoza were still incarcerated at the jail at that time.
Miramontes told Mendoza that Burns owed Cramer money. Miramontes stated that he
had assumed collection of the debt, and that he had given Burns a timeframe to pay the
debt. Miramontes further stated that Burns would be “hit” if he failed to pay within the
timeframe.
       Frank Gutierrez, an NR member from 2004 to early 2010, was also in custody at
the jail in early 2007. Gutierrez testified regarding a conversation he had with Burns.
Burns stated that he was “getting pressed” to pay a drug debt he owed to Cramer. Burns
said that he was given a deadline to pay the debt, and that he “needed to get that money
fast.” Burns appeared to be “upset” and “concerned.” Gutierrez explained that there was
talk that Burns could be placed on the BNL if he failed to pay, and that Burns could be
assaulted or killed if placed on the BNL.
       Cramer was still in custody at the jail in early 2007. Gutierrez testified regarding a
conversation he had with Cramer. Cramer told Gutierrez that money had to be collected
from Burns in order to pay off a debt owed by Paul Rios, a member of Cramer’s NF
regiment. Cramer explained that Rios owed the NF money because he had disrespected
Miramontes. Cramer left the jail at some point in February 2007, and he directed
                                             11
Gutierrez to ensure that Rios’s debt was paid through money orders. Gutierrez testified
that he discussed the debt with Alysia Silva, an NF associate who assisted the Cramer
regiment. Gutierrez explained that Silva was supposed to send out three money orders
totaling $800, and that Silva was supposed to send copies of the money orders to
Miramontes. Miramontes later informed Gutierrez that he had received the copies of the
money orders.
      Three money orders were entered into evidence. One of the money orders was
worth $200, was payable to Guillen, and was deposited in Guillen’s prison account on
February 8, 2007. The second money order was worth $240, was payable to category 3
NF member Victor Esquibel, and was deposited in Esquibel’s prison account on
February 26, 2007. The third money order was payable to Miramontes and was
processed on February 5, 2007. The money order payable to Guillen listed the
purchaser’s name as Alysia Silva and listed her address as 343 Angel Avenue in
Sunnyvale. The two other money orders listed the purchaser’s address as 343 Angel
Avenue in Sunnyvale.
      In addition to the foregoing evidence regarding the extortion, the prosecution
introduced 35 recorded jail phone calls. In a January 27, 2007 call from Burns to his
mother, Burns stated that he owed a $750 drug debt, and he told his mother to pay $450
to Silva. In a January 30, 2007 call, Cramer told NR member Ronald Wreath and NF
associate Shelby Thornhill that their “sister” Rios had an $800 debt. Cramer stated that
he would “take care of” Rios’s debt by collecting $750 from Burns and contributing $50
of his own money. Burns called his mother again on February 3, 2007, and he stated that
Silva had received $450 sent by Burns’s mother. Burns instructed his mother to call
Silva and say that she was sending an additional $300. On February 9, 2007, Gutierrez
called Silva and discussed the distribution of the $800 Rios debt, which was being paid to
three people through money orders. In a February 17, 2007 call, Gutierrez told Clayton


                                            12
Clark, a member of Guzman’s NF regiment, that the receipt for the third and final money
order had been received.
       Sergeant Livingston opined that, assuming the prosecution proved an extortion of
Burns, the extortion was done for the benefit of, at the direction of, and in association
with the NF. He explained, “Burns himself is an NR member selling drugs on behalf of
the organization. It’s done at the direction of NF members to collect the drug
proceeds. . . . [¶] . . . [¶] It benefits the organization as that money in particular was sent
back into the prisons to Rudy Miramontes, Antonio Guillen, and also Victor Esquibel.”
The Assault on Joel Madrigal
       In early 2007, while Gutierrez and Miramontes were in custody at the Santa Clara
County Jail, Gutierrez learned that Joel Madrigal, a San Jose Grande gang member who
was also in custody at the jail, had provided information to the police. Gutierrez
informed Miramontes that Madrigal was a police informant who “had to go.” Gutierrez
received a communication from Miramontes authorizing the removal of Madrigal.
Gutierrez explained that only Miramontes, who was the NF regimental commander at the
jail, could sanction the removal of Madrigal.
       On February 24, 2007, Robert Talvera, an NR member and jail inmate, “sliced”
Madrigal’s face. Madrigal suffered a laceration that extended from his ear down to this
mouth. A gang expert, Correctional Officer Dennis Gillote, testified that a cut from the
mouth to the ear is known as a “puto mark” and is a common method the NF employs for
removals. Officer Gillote saw Madrigals’s injury, and he opined that the injury was
consistent with a “puto mark.”
       After Madrigal’s removal, Miramontes told Mendoza that he had authorized the
removal. Mendoza explained that NF procedures required Madrigal’s removal to be
authorized by Miramontes, and that the removal could not have occurred without
Miramontes’s approval.


                                              13
       Sergeant Livingston opined that, assuming the prosecution proved an assault on
Madrigal, the assault was done for the benefit of, at the direction of, and in association
with the NF. He explained that the assault bolstered the NF’s reputation, Miramontes
sanctioned the assault, and a member of the organization carried out the assault.
Defense Evidence
       Debbie Maria Wade testified for Miramontes. Wade is the best friend of
Miramontes’s wife. Wade testified that Miramontes never told her that he was in a gang.
       Ortiz did not present any evidence.
                                        DISCUSSION
I. Ineffective Assistance of Counsel
       Miramontes contends that the judgment against him must be reversed because his
trial counsel rendered ineffective assistance in failing to object to the admission of
evidence regarding the Mendoza street regiment and the Guzman street regiment.
Miramontes does not point to individual items of evidence to which counsel should have
objected. Rather, Miramontes broadly argues, “Counsel should have objected to the
evidence pertaining to the Guzman and Mendoza regiments: to all the items that were
seized in the various searches related to these regiments; and to all the communications
by and among the members of those regiments in regard to selling methamphetamine or
committing other crimes on behalf of the NF. . . . This evidence was irrelevant and
inadmissible under [Evidence Code] section 352.” As explained below, we conclude that
Miramontes has failed to show that counsel’s performance was deficient.
       The defendant bears the burden of proving ineffective assistance of counsel.
(People v. Carter (2003) 30 Cal.4th 1166, 1211 (Carter).) To obtain reversal due to
ineffective assistance, a defendant must first show “that defense counsel’s performance
fell below an objective standard of reasonableness, i.e., that counsel’s performance did
not meet the standard to be expected of a reasonably competent attorney.” (People v.
Cunningham (2001) 25 Cal.4th 926, 1003 (Cunningham); Strickland v. Washington
                                             14
(1984) 466 U.S. 668, 688.) Second, the defendant must show that there is “a reasonable
probability that defendant would have obtained a more favorable result absent counsel’s
shortcomings.” (Cunningham, supra, 25 Cal.4th at p. 1003.)
       “A reviewing court will indulge in a presumption that counsel’s performance fell
within the wide range of professional competence and that counsel’s actions and
inactions can be explained as a matter of sound trial strategy.” (Carter, supra, 30 Cal.4th
1166, 1211; see also People v. Witcraft (2011) 201 Cal.App.4th 659, 664.) Where the
record on appeal “does not show the reason for counsel’s challenged actions or
omissions, the conviction must be affirmed unless there could be no satisfactory
explanation.” (People v. Anderson (2001) 25 Cal.4th 543, 569.)
       In the instant case, the record does not show the reason for counsel’s failure to
object to the evidence regarding the Guzman and Mendoza regiments. Because we
believe that a satisfactory explanation exists, we cannot find deficient performance.
       Contrary to Miramontes’s assertion, the evidence regarding the Mendoza and
Guzman regiments was not irrelevant. The evidence was relevant to prove the conspiracy
to sell methamphetamine. The indictment alleged that there were five overt acts in the
conspiracy. The first overt act was that “the Nuestra Familia Organization on and
between January 1, 2002 and December 4, 2008, established active street regiments for
the purpose of carrying out criminal activities for the gang.” The fifth overt act was that
“the Nuestra Familia Organization on and between January 1, 2002 and
December 4, 2008, would send directives to the street regiments on how to conduct
criminal activities on behalf of the organization.” Evidence regarding the Mendoza and
Guzman regiments’ methamphetamine sales, criminal activities, and communications
was relevant to prove the first and fifth overt acts of the conspiracy. (See generally Evid.
Code, § 210 [evidence is relevant if it has “any tendency in reason to prove or disprove
any disputed fact that is of consequence to the determination of the action”].) Thus,
counsel was not deficient in failing to object to the evidence as irrelevant. (See People v.
                                             15
Morales (1979) 88 Cal.App.3d 259, 266 [“Failure to object to relevant evidence . . . is not
the mark of inadequate representation nor incompetent counsel.”].)
       We also conclude that counsel was not deficient in failing to object to the evidence
pursuant to Evidence Code section 352. Evidence Code section 352 states, “The court in
its discretion may exclude evidence if its probative value is substantially outweighed by
the probability that its admission will (a) necessitate undue consumption of time or
(b) create substantial danger of undue prejudice, of confusing the issues, or of misleading
the jury.” We are not persuaded by Miramontes’s claim that the Guzman and Mendoza
regiment evidence was unduly prejudicial, unduly time consuming, and cumulative.
Citing the inflammatory nature of gang evidence in general, Miramontes asserts that the
Guzman and Mendoza regiment evidence was necessarily unduly prejudicial.
Miramontes’s argument ignores the fact that the indictment alleged an NF-wide
conspiracy to sell methamphetamine, and that the indictment alleged that the conspiracy
was committed for the benefit of the NF gang. “[G]iven the breadth and centrality of the
gang issues in this matter, it is doubtful that many Evidence Code section 352 objections
would have been sustained. Failure to make meritless objections cannot be the basis of
an ineffective assistance of counsel claim.” (People v. Samaniego (2009) 172
Cal.App.4th 1148, 1170.) Moreover, we do not believe that the Guzman and Mendoza
regiment evidence was unduly time consuming; this case involved a complex, far-
reaching conspiracy, and the evidence regarding the Guzman and Mendoza regiments
played a small part in the prosecution’s establishment of the conspiracy. Finally, we are
unconvinced by Miramontes’s claim that the evidence “was clearly cumulative.” Given
Miramontes’s failure to identify specific items of evidence and failure to explain how
those items of evidence were cumulative to other pieces of evidence that established the
NF methamphetamine conspiracy, we cannot conclude that the Guzman and Mendoza
regiment evidence was cumulative and thus objectionable under Evidence Code section
352. (See U.S. v. Cronic (1984) 466 U.S. 648, 666 [a defendant “can . . . make out a
                                            16
claim of ineffective assistance only by pointing to specific errors”].) We thus conclude
that counsel was not deficient in failing to object to the Mendoza and Guzman regiment
evidence pursuant to Evidence Code section 352.
       Accordingly, we conclude that counsel’s conduct fell within the wide range of
professional competence. We therefore hold that counsel did not render ineffective
assistance. (See generally People v. Castaneda (2011) 51 Cal.4th 1292, 1335 [the
“decision whether to object to the admission of evidence is ‘inherently tactical,’ and a
failure to object will rarely reflect deficient performance by counsel”].)
II. Sufficiency of the Evidence Supporting Miramontes’s Conspiracy Conviction
       Miramontes contends that there was insufficient evidence to support his conviction
for conspiracy to sell methamphetamine. He does not dispute the existence of an NF
conspiracy to sell methamphetamine, and he instead argues that his conspiracy conviction
“must be reversed for insufficient evidence that he intended to agree and actually did
agree with the co-conspirators to sell meth.” As set forth below, we conclude that the
prosecution presented substantial evidence in support of the conspiracy conviction.
       A. Standard of Review
       “When considering a challenge to the sufficiency of the evidence to support a
criminal conviction, we review the whole record in the light most favorable to the
judgment below to determine whether it discloses substantial evidence—that is, evidence
which is reasonable, credible, and of solid value—such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.” (People v. Cortes (1999) 71
Cal.App.4th 62, 71.) “In making this determination, we do not reweigh the evidence,
resolve conflicts in the evidence, or reevaluate the credibility of witnesses.” (Ibid.)
       B. There Was Sufficient Evidence of Agreement and Intent to Agree
       Penal Code section 182 prohibits a conspiracy by two or more people to “commit
any crime.” (Pen. Code, § 182, subd. (a)(1).) “A conviction for conspiracy requires proof
of four elements: (1) an agreement between two or more people, (2) who have the
                                             17
specific intent to agree or conspire to commit an offense, (3) the specific intent to commit
that offense, and (4) an overt act committed by one or more of the parties to the
agreement for the purpose of carrying out the object of the conspiracy.” (People v. Vu
(2006) 143 Cal.App.4th 1009, 1024 (Vu).)
       “In proving a conspiracy . . . it is not necessary to demonstrate that the parties met
and actually agreed to undertake the unlawful act or that they had previously arranged a
detailed plan. The evidence is sufficient if it supports an inference that the parties
positively or tacitly came to a mutual understanding to commit a crime. Therefore,
conspiracy may be proved through circumstantial evidence inferred from the conduct,
relationship, interests, and activities of the alleged conspirators before and during the
alleged conspiracy.” (People v. Prevost (1998) 60 Cal.App.4th 1382, 1399.)
       Here, there was substantial evidence that Miramontes intended to agree and did in
fact agree to engage in methamphetamine sales with other NF members. The evidence
established that Miramontes asserted control over the Cramer regiment, an NF regiment
engaged in methamphetamine sales, while Miramontes was in custody at the Santa Clara
County Jail: Miramontes stated his intention to take over the Cramer regiment,
Miramontes told Mendoza that he was collecting money owed to the Cramer regiment,
and Mendoza testified that Miramontes “basically asserted control over” the Cramer
regiment while in custody at the jail. The evidence also showed that Miramontes was
involved in NF methamphetamine sales beyond the Cramer regiment. When he was the
NF regimental commander at the jail, Miramontes ordered that methamphetamine
smuggled into the jail was to be given to NF leadership at the jail. Mendoza testified that
Miramontes ran an NF street regiment upon release from jail in 2007. Mendoza also
testified that NF general Guillen directed Miramontes to assume authority over all NF
street regiments in Santa Clara County—regiments that both Mendoza and Sergeant
Livingston testified were involved in methamphetamine sales. The foregoing evidence,
although circumstantial in nature, strongly suggested that Miramontes intended to agree
                                              18
and actually agreed to engage in methamphetamine sales with other NF members. We
therefore conclude that Miramontes’s conspiracy conviction was supported by substantial
evidence of agreement and intent to agree. (See generally Vu, supra, 143 Cal.App.4th at
p. 1024 [circumstantial evidence may be sufficient to prove guilt beyond a reasonable
doubt].)
          Miramontes contends that the indictment charged a conspiracy only among the
members of the Campa and Ramirez regiments, and that his conspiracy conviction must
be reversed because there was no evidence that he agreed to sell methamphetamine for
those particular regiments. Miramontes’s argument is unavailing because the indictment
alleged an NF-wide conspiracy to sell methamphetamine, not just a conspiracy among the
members of the Campa and Ramirez regiments. As discussed in section I, ante, the
indictment alleged overt acts pertaining to all NF regiments. Although the indictment
alleged three overt acts pertaining to the Campa and Ramirez regiments, those allegations
did not transform the charged NF-wide conspiracy into a conspiracy among only the
members of the Campa and Ramirez regiments. Thus, the prosecution was not required
to prove that Miramontes agreed to sell methamphetamine for the Campa and Ramirez
regiments. (See generally People v. Russo (2001) 25 Cal.4th 1124, 1135 [to convict a
defendant of conspiracy, a jury has to find only one overt among several possible overt
acts].)
          Moreover, although there was no direct evidence that Miramontes entered into an
agreement with members of the Campa and Ramirez regiments, the evidence suggested
that Miramontes tacitly agreed to sell methamphetamine in conjunction with those
individuals. The evidence established that all NF regiments in Santa Clara Co unty sold
methamphetamine for the organization, and that all NF regiments sold methamphetamine
in order to send money to incarcerated NF members. The existence of this common
scheme and goal suggests that Miramontes and members of all the NF regiments,
including members of the Campa and Ramirez regiments, tacitly agreed to jointly engage
                                             19
in methamphetamine sales on behalf of the NF. We therefore are not persuaded by
Miramontes’s argument, and we must conclude that sufficient evidence supported his
conspiracy conviction.
III. Corroboration of Coconspirator Hearsay Statements
       The prosecution relied on the jail calls to prove the extortion of Burns. The jail
calls were admitted under Evidence Code section 1223, the coconspirator statement
exception to the hearsay rule.3 Miramontes contends that his extortion conviction must
be reversed because insufficient evidence corroborated the coconspirator statements in
the jail calls. He further contends that his extortion conviction must be reversed because
the trial court failed to sua sponte instruct the jury that the coconspirator statements in the
jail calls required corroboration and were to be viewed with distrust. His arguments are
premised on the assumption that the coconspirator hearsay statements in the jail calls
were accomplice testimony that required corroboration under Penal Code section 1111.
       Penal Code section 1111 states that a “conviction can not be had upon the
testimony of an accomplice unless it be corroborated by such other evidence as shall tend
to connect the defendant with the commission of the offense.” (Pen. Code, § 1111, italics
added.) Miramontes correctly points out that coconspirators are accomplices for
purposes of Penal Code section 1111. (See People v. Stankewitz (1990) 51 Cal.3d 72,
90.) Miramontes fails, however, to articulate how the coconspirator hearsay statements
in the jail calls constituted testimony within the meaning of Penal Code section 1111.



       3
          Evidence Code section 1223 states: “Evidence of a statement offered against a
party is not made inadmissible by the hearsay rule if: [¶] (a) The statement was made by
the declarant while participating in a conspiracy to commit a crime or civil wrong and in
furtherance of the objective of that conspiracy; [¶] (b) The statement was made prior to or
during the time that the party was participating in that conspiracy; and [¶] (c) The
evidence is offered either after admission of evidence sufficient to sustain a finding of the
facts specified in subdivisions (a) and (b) or, in the court's discretion as to the order of
proof, subject to the admission of such evidence.”
                                              20
Without any analysis, he simply asserts that the out-of-court statements in the jail calls
were testimony falling within the ambit of Penal Code section 1111.
       Testimony within the meaning of Penal Code section 1111 “includes all oral
statements made by an accomplice or coconspirator under oath in a court proceeding and
all out-of-court statements of accomplices and coconspirators used as substantive
evidence of guilt which are made under suspect circumstances.” (People v. Jeffery
(1995) 37 Cal.App.4th 209, 218, italics omitted.) In People v. Williams (1997) 16
Cal.4th 635 (Williams), our Supreme Court held that coconspirator hearsay statements
admitted pursuant to Evidence Code section 1223 were not testimony that required
corroboration under Penal Code section 1111. (Id. at p. 682.) Williams employed the
following reasoning: “ ‘The usual problem with accomplice testimony—that it is
consciously self-interested and calculated—is not present in an out-of-court statement
that is itself sufficiently reliable to be allowed into evidence.’ [Citation.] Here,
statements made in the course of and in furtherance of the conspiracy were not made
under suspect circumstances and therefore were sufficiently reliable to require no
corroboration.” (Ibid., italics in original.)
       Williams compels us to conclude that the jail calls were not testimony within the
meaning of Penal Code section 1111. Like Williams, the jail calls were admitted under
the coconspirator statement exception to the hearsay rule. Williams implied that such
coconspirator hearsay statements are inherently reliable and not self-interested. (See
Williams, supra, 16 Cal.4th at p. 682; see also Evid. Code, § 1223 [coconspirator hearsay
statements are admissible only if made in “furtherance of the objective of that
conspiracy”].) Also like Williams, the jail calls were not made under suspect
circumstances. The statements in the calls pertained to the ongoing collection of an NF
methamphetamine debt—the statements therefore cannot be considered unreliable
statements aimed at “shifting blame” to Miramontes. (People v. Cook (2006) 39 Cal.4th
566, 601 [accomplice testimony requires corroboration because of the “accomplice’s self-
                                                21
interest in shifting blame to the defendant”].) Indeed, Miramontes fails to point to any
evidence that suggests that the jail calls were made under suspect circumstances.
Williams thus impels us to conclude that the prosecution was not required to present
evidence to corroborate the jail calls, and that the trial court was not required to instruct
the jury that the jail calls required corroboration and were to be viewed with distrust.
IV. Uncharged Conspiracy Instructions
       Miramontes asserts that his extortion conviction must be reversed because the trial
court failed to sua sponte instruct the jury regarding “an uncharged conspiracy theory.”
His argument is premised on the assumption that the jail calls were admitted under
Evidence Code section 1223 as coconspirator hearsay statements made during an
uncharged conspiracy to extort money from Burns. As explained below, the record belies
Miramontes’s claim.
       Where the prosecutor does not charge conspiracy as an offense, but introduces
evidence of a conspiracy to prove liability, the trial court has a “sua sponte duty to give
uncharged conspiracy instructions.” (People v. Williams (2008) 161 Cal.App.4th 705,
709.) Thus, where hearsay statements made as part of an uncharged conspiracy are
admitted pursuant to Evidence Code section 1223, the trial court has a “sua sponte duty to
instruct the jury on the definition of an uncharged conspiracy.” (People v. Sully (1991)
53 Cal.3d 1195, 1231; see also People v. Earnest (1975) 53 Cal.App.3d 734, 744-745
[where statements made during an uncharged conspiracy are admitted under Evidence
Code section 1223, the trial court has a sua sponte duty to define the uncharged
conspiracy].)
       Here, contrary to Miramontes’s assertion, the jail calls were not admitted as
hearsay statements made during an uncharged conspiracy to commit extortion. When the
prosecutor originally made arguments to the court regarding the admissibility of the jail
calls, he argued the hearsay statements in the calls were “statements of the coconspirators
in the conspiracy of selling methamphetamine as well as . . . statements made in the
                                              22
commission of a [conspiracy] to commit an extortion of Mr. Burns.” In a later argument
to the court, however, the prosecutor abandoned the uncharged conspiracy theory and
argued the jail calls were admissible solely on the theory that they were coconspirator
hearsay statements made during the charged methamphetamine conspiracy. The
prosecutor then provided a lengthy explanation regarding the relationship between the jail
calls and the charged methamphetamine conspiracy. In response to the prosecutor’s
argument, Miramontes’s counsel noted that “the People have conceded the point” that the
jail calls were not offered as part of a “conspiracy of extortion against Mr. Burns.”
Shortly thereafter, the court ruled that it was admitting the jail calls under Evidence Code
section 1223 “based on the People’s offer of proof.” Thus, although the prosecutor
originally suggested that the jail calls could be admitted as coconspirator hearsay
statements made during an uncharged extortion conspiracy, the record shows that the jail
calls were actually admitted as coconspirator hearsay statements made during the charged
methamphetamine conspiracy.
       The prosecutor’s closing argument confirmed that the jail calls were admitted as
coconspirator hearsay statements made during the charged methamphetamine conspiracy.
During his closing argument, the prosecutor explained that the jury could consider the jail
calls as evidence against Miramontes only if the hearsay statements in the calls were
made as part of “a conspiracy to sell methamphetamine on behalf of the Nuestra
Familia.” The prosecutor’s closing argument in no way suggested that the jail calls were
part of an uncharged conspiracy to commit extortion.
       The record therefore demonstrates that the jail calls were not admitted as
coconspirator hearsay statements made during an uncharged extortion conspiracy. Thus,
because the prosecution did not rely on an uncharged conspiracy to establish liability, the
trial court did not have a sua sponte duty to give uncharged conspiracy instructions.




                                             23
V. Admission of the Jail Phone Calls
       Miramontes contends that his extortion conviction must be reversed because the
trial court prejudicially erred in admitting the jail calls. He first asserts that the jail calls
were inadmissible under Evidence Code section 1223. He additionally asserts that the
trial court erred in refusing to exclude portions of the jail calls pursuant to Evidence Code
section 352. As explained below, Miramontes’s arguments are unpersuasive.
       A. Standard of Review
       “We review the trial court’s rulings on the admission of evidence for abuse of
discretion.” (People v. Cowan (2010) 50 Cal.4th 401, 462.) We therefore review
Miramontes’s claims regarding Evidence Code sections 1223 and 352 for abuse of
discretion.
       B. Evidence Code Section 1223
       As previously noted, the trial court admitted the jail calls under Evidence Code
section 1223, on the theory that the hearsay statements in the calls were part of the
charged conspiracy to sell methamphetamine. Miramontes contends that the trial court
erred in admitting the jail calls under Evidence Code section 1223 because the hearsay
statements in the calls were not made to further the objective of the methamphetamine
conspiracy. He also contends that the jail calls were erroneously admitted pursuant to
Evidence Code section 1223 because none of the declarants in the jail calls were
members of Campa’s NF regiment or Ramirez’s NF regiment.4




       4
          Miramontes also makes several arguments that are premised on the assumption
that the jail calls were admitted as coconspirator hearsay statements made during “an
uncharged conspiracy to extort money from Burns.” Because the jail calls were admitted
as coconspirator hearsay statements made during the charged methamphetamine
conspiracy, we will not address any of Miramontes’s arguments pertaining to the
improper admission of the jail calls as coconspirator hearsay statements made during an
uncharged extortion conspiracy.
                                                24
       Hearsay statements by coconspirators are admissible under Evidence Code section
1223 “if, at the threshold, the offering party presents ‘independent evidence to establish
prima facie the existence of . . . [a] conspiracy.’ ” (People v. Hardy (1992) 2 Cal.4th 86,
139 (Hardy).) “Once independent proof of a conspiracy has been shown, three
preliminary facts must be established: ‘(1) that the declarant was participating in a
conspiracy at the time of the declaration; (2) that the declaration was in furtherance of the
objective of that conspiracy; and (3) that at the time of the declaration the party against
whom the evidence is offered was participating or would later participate in the
conspiracy.’ ” (Ibid.)
       Miramontes’s claim that the jail calls did not further the objective of the
methamphetamine conspiracy is vague and very brief; in a one-sentence argument he
asserts that the trial court erred in admitting the jail calls “because statements pertaining
to the extortion were not made to further the conspiracy to sell methamphetamine.”
Miramontes appears to be arguing that because the statements in the jail calls showed an
effort to extort money from Burns, the statements could not also have been made to
further the objective of the NF conspiracy to sell methamphetamine. Such an argument is
unpersuasive. Collection of money is the goal of the sale of methamphetamine. (See
People v. Lazenby (1992) 6 Cal.App.4th 1842, 1845 [a sale of narcotics is a transfer of
narcotics for cash].) Thus, the statements in the jail calls, which showed a coercive effort
to collect the proceeds of NF methamphetamine sales from Burns, can be viewed as
statements made to further the objective of the conspiracy to sell methamphetamine.
Moreover, Miramontes’s argument ignores the principle that “whether statements made
are in furtherance of a conspiracy depends on an analysis of the totality of the facts and
circumstances in the case.” (Hardy, supra, 2 Cal.4th at p. 146.) The evidence here
established that the NF fronted methamphetamine to its sellers, that sellers were obligated
to pay the NF for the drugs, that sellers who failed to pay the NF were placed on the BNL
and were subject to assault, and that Burns was a seller who had failed to pay the NF.
                                              25
The totality of the facts and circumstances therefore shows that the jail calls —calls
directed at collecting drug money Burns owed to the NF—were made in furtherance of
the charged NF conspiracy to sell methamphetamine. We therefore find no merit in
Miramontes’s claim that the jail calls were not made to further the objective of the
methamphetamine conspiracy.
       We are also unconvinced by Miramontes’s claim that Evidence Code section 1223
required the declarants in the jail calls to be members of the Campa regiment or the
Ramirez regiment. Miramontes does correctly assert that Evidence Code section 1223
applies only to declarants who are “participating in a conspiracy.” (Evid. Code, § 1223.)
His argument fails, however, because it is premised on the erroneous assumption that the
indictment charged a methamphetamine conspiracy only among the members of the
Campa and Ramirez regiments. As we have previously explained, the indictment alleged
an NF-wide conspiracy to sell methamphetamine, not a conspiracy confined to the
Campa and Ramirez regiments. The evidence at trial confirmed that the conspiracy to
sell methamphetamine was far-reaching and not limited to members of the Campa and
Ramirez regiments. Consequently, the circumstance that the declarants were not
members of the Campa regiment or the Ramirez regiment in no way precluded the
admission of the jail calls under Evidence Code section 1223.
       Miramontes has thus failed to identify any error in the admission of the jail calls
pursuant to Evidence Code section 1223. We therefore find no abuse of discretion in the
trial court’s admission of the calls pursuant to that section.




       C. Evidence Code Section 352
       Before the jail calls were played for the jury, Miramontes’s trial counsel objected
to the admission of the calls under Evidence Code section 352. The asserted grounds for
the objection were “relevance,” “prejudicial value,” and “confusion.” The trial court
                                              26
overruled the objection. Miramontes’s counsel noted that he “would like the record to
reflect that from this point forward there would be a standing objection to the submission
of any of those phone calls.”
       In a brief and conclusory argument, Miramontes now contends that the trial court
erred in refusing to exclude “portions” of the jail calls pursuant to Evidence Code section
352. He asserts that “several of the calls, or portions of calls had nothing to do with the
extortion of Burns.” He further asserts that the “calls, or portions of calls . . . that had
nothing to do with the extortion of Burns were irrelevant, more prejudicial than
probative, and their admission consumed an undue amount of time.” Miramontes fails to
identify the specific statements that “had nothing to do with the extortion of Burns” and
were thus subject to exclusion under Evidence Code section 352.
       “To demonstrate error, [an] appellant must present . . . facts in the record that
support the claim of error.” (In re S.C. (2006) 138 Cal.App.4th 396, 408.) “The
reviewing court is not required to make an independent, unassisted study of the record in
search of error . . . . It is entitled to the assistance of counsel.” (9 Witkin, Cal. Procedure
(5th ed. 2008) Appeal, § 701, p. 769.) An appellate court is “not required to search the
record to ascertain whether it contains support for [the appellant’s] contentions.”
(Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545.)
       Here, the trial court admitted 35 jail calls into evidence, and the calls were played
for the jury over the course of two days. Miramontes fails to identify particular
statements within those 35 calls that should have been excluded under Evidence Code
section 352. We have no duty to review the large volume of calls and search for
statements that were potentially subject to exclusion under Evidence Code section 352.
Thus, Miramontes has failed to show that the trial court abused its discretion in issuing its
Evidence Code section 352 ruling.




                                              27
VI. Severance
       Ortiz contends that the trial court abused its discretion in denying his severance
motion. He asserts that the trial court was required to completely sever his case from
Miramontes’s case or, at the very least, sever the counts charging Miramontes with
assault and extortion from the counts jointly charging him and Miramontes with
conspiracy and active gang participation. He alternatively argues that joinder of his case
with Miramontes’s case resulted in a due process violation. As explained below, we find
no abuse of discretion in the denial of the severance motion, and we find no due process
violation.
       A. Background
       Before trial, Ortiz filed a severance motion. He argued that the counts charging
Miramontes with assault and extortion should be severed from the counts jointly charging
him and Miramontes with conspiracy and active gang participation. He also suggested
that his case should be completely severed from Miramontes’s case. He emphasized that
joinder was not authorized by Penal Code section 954, and that joinder would be
prejudicial because Miramontes was charged with violent offenses.
       The prosecutor argued that joinder was appropriate. He emphasized that the
crimes charged against Ortiz and Miramontes were “interrelated” because they were all
committed in association with the NF. He also emphasized that the same gang evidence
would be introduced if Ortiz and Miramontes were tried separately.
       The trial court ruled that joinder was appropriate, and it denied Ortiz’s severance
motion. The court noted that the jury would “be able to sort out the issues regarding the
various counts against Mr. Miramontes that are separate and distinct from the ones that
are jointly shared.”




                                             28
       B. Standard of Review
       A “trial court’s rulings on joinder are reviewed for abuse of discretion.” (People
v. Koontz (2002) 27 Cal.4th 1041, 1074.) “An appellate court reviews a trial court’s
ruling on a motion for separate trials for abuse of discretion.” (People v. Alvarez (1996)
14 Cal.4th 155, 189 (Alvarez).)
       C. The Trial Court Did Not Abuse its Discretion in Denying the Severance
       Motion
       In arguing that the trial court abused its discretion in denying his severance
motion, Ortiz first asserts that Penal Code section 954 did not authorize joinder of his
charges with Miramontes’s charges. He next asserts that the trial court abused its
discretion in denying the severance motion because the evidence pertaining to
Miramontes’s crimes was prejudicial, inflammatory, and not cross-admissible at a
separate trial.5
       Penal Code section 954 states that an “accusatory pleading may charge two or
more different offenses connected together in their commission.” If offenses are
connected together in their commission within the meaning of Penal Code section 954, “it
is permissible not only to join a number of counts against a single defendant but also a
number of counts against different defendants.” (4 Witkin, Cal. Crim. Law (4th ed.
2012) Pretrial Proceedings, § 237, p. 495.) Penal Code section 1098 states that “[w]hen
two or more defendants are jointly charged with any public offense, whether felony or
misdemeanor, they must be tried jointly, unless the court order separate trials .” “The


       5
         Ortiz does not assert that that he and Miramontes had conflicting defenses, that
Miramontes would have given exonerating testimony at a separate trial, or that
Miramontes made an incriminating confession. (See People v. Cleveland (2004) 32
Cal.4th 704, 726 [separate trials may be necessary “if a codefendant has made an
incriminating confession, association with codefendants may be prejudicial, evidence on
multiple counts may cause confusion, there may be conflicting defenses, or a codefendant
may give exonerating testimony at a separate trial”].)
                                             29
Legislature has in this manner expressed a preference for joint trials.” (People v.
Boyde (1988) 46 Cal.3d 212, 231.) Thus, “a trial court must order a joint trial as the
‘rule’ and may order separate trials only as an ‘exception.’ ” (Alvarez, supra, 14 Cal.4th
at p. 190, italics in original.)
       We first determine whether the trial court erred in concluding that joinder of all
the charges was authorized by Penal Code section 954. Offenses are “connected together
in their commission” within the meaning of Penal Code section 954 if they are linked by
a “ ‘ “ ‘common element of substantial importance.’ ” ’ ” (People v. Mendoza (2000) 24
Cal.4th 130, 160 (Mendoza).) Here, Ortiz and Miramontes were both charged with active
participation in the NF, and they were both charged with conspiracy to sell
methamphetamine for the benefit of, at the direction of, and in association with the NF.
Likewise, Miramontes’s extortion and assault charges were both alleged to have been
committed for the benefit of, at the direction of, and in association with the NF. The
“intent or motivation with which different acts are committed can qualify as a ‘common
element of substantial importance’ . . . and establish that such crimes were ‘connected
together in their commission.’ ” (Alcala v. Superior Court (2008) 43 Cal.4th 1205,
1219.) Thus, the circumstance that all of the charges here were alleged to have been
committed on behalf of the NF was a common element of substantial importance that
linked the charged crimes. We therefore conclude that Penal Code section 954
authorized joinder of all the charges.
       Given our conclusion that joinder was authorized by Penal Code section 954, we
must next determine whether Ortiz has made a clear showing of prejudice: “When, as
here, the statutory requirements for joinder are met, a defendant must make a clear
showing of prejudice to establish that the trial court abused its discretion in denying the
defendant’s severance motion. [Citations.] In determining whether there was an abuse of
discretion, we examine the record before the trial court at the time of its ruling.
[Citation.] The factors to be considered are these: (1) the cross-admissibility of the
                                              30
evidence in separate trials; (2) whether some of the charges are likely to unusually
inflame the jury against the defendant; (3) whether a weak case has been joined with a
strong case or another weak case so that the total evidence may alter the outcome of some
or all of the charges; and (4) whether one of the charges is a capital offense, or the joinder
of the charges converts the matter into a capital case.” (Mendoza, supra, 24 Cal.4th at
pp. 160-161; see also People v. Keenan (1988) 46 Cal.3d 478, 500.) Cross-admissibility
“ordinarily dispels any inference of prejudice.” (Mendoza, supra, 24 Cal.4th at p. 161.)
       Here, the evidence would have been cross-admissible at separate trials. As
previously noted, Ortiz and Miramontes were jointly charged with active participation in
the NF and conspiring to sell methamphetamine for the NF. Thus, identical expert
testimony regarding the structure of the NF and identical evidence regarding the NF’s
methamphetamine sales could have been admitted at separate trials. Additionally,
although Ortiz was not involved in the extortion and assault charged against Miramontes,
evidence regarding the extortion and assault could have been admitted if Ortiz had been
tried separately. In order to prove Ortiz’s active gang participation charge and the gang
enhancement attached to Ortiz’s conspiracy charge, the prosecution had to prove that the
NF “engaged in a pattern of criminal gang activity.” (Pen. Code, § 186.22, subd. (a)
[prosecution must prove pattern of criminal activity for charge of active gang
participation]; People v. Rivas (2013) 214 Cal.App.4th 1410, 1436 [prosecution must
prove pattern of criminal activity for gang enhancement].) The prosecution could
introduce evidence of several predicate gang offenses to establish the pattern of criminal
gang activity. (People v. Rivas, supra, 214 Cal.App.4th at p. 1435-1436 [holding that
admission of evidence of six predicate offenses was proper].) Thus, evidence regarding
Miramontes’s assault and extortion could have been admitted at a separate trial in order
to prove the predicate offenses required for Ortiz’s active gang participation charge and
gang enhancement. (See Pen. Code, § 186.22, subd (e)(1) [assault with a deadly weapon
is a predicate offense]; Pen. Code, § 186.22, subd (e)(19) [felony extortion is a predicate
                                             31
offense].) The existence of this cross-admissibility suggests that the trial court did not
abuse its discretion in denying Ortiz’s severance motion. (See People v. Soper (2009) 45
Cal.4th 759, 775 [cross-admissibility “alone is normally sufficient to dispel any
suggestion of prejudice and to justify a trial court’s refusal to sever properly joined
charges”].)
       Other factors also show that the trial court did not abuse its discretion in denying
the severance motion. The evidence against Ortiz was strong. Methamphetamine and
digital scales were found inside Ortiz’s home, police officers witnessed Ortiz engage in
apparent narcotics transactions, NR members Tirri and Martinez explained that Ortiz sold
methamphetamine for the NF, and Tirri explicitly informed Ortiz that the
methamphetamine was supplied by the NF. This therefore is not a situation where a
weak case was joined with a strong case so as to alter the outcome of the offenses
charged against Ortiz. Nor do we believe that joinder of Ortiz’s case with Miramontes’s
case was unusually likely to inflame the jury against Ortiz. Although Miramontes’s
assault and extortion involved violence and threats of violence, so too did Ortiz’s
conspiracy charge involve violent conduct—it was undisputed that violence and threats
of violence against NF methamphetamine sellers were a part of the NF methamphetamine
conspiracy. Finally, Miramontes was not charged with any capital offenses, so joinder
did not convert the matter into a capital case. The foregoing factors, combined with the
cross-admissibility of the evidence, show that the trial court did not err in denying Ortiz’s
severance motion.
       Accordingly, we conclude that the trial court did not abuse its discretion in
refusing to completely sever Ortiz’s case from Miramontes’s case, and that the trial court
did not abuse its discretion in refusing to sever the counts charging Miramontes with
assault and extortion from the counts jointly charging Ortiz and Miramontes with active
gang participation and conspiracy. Next, we must determine whether the joint trial
resulted in a due process violation.
                                             32
       D. The Joint Trial Did not Result in a Due Process Violation
       “Even if a trial court’s severance or joinder ruling is correct at the time it was
made, a reviewing court must reverse the judgment if the “defendant shows that joinder
actually resulted in ‘gross unfairness’ amounting to a denial of due process.” (Mendoza,
supra, 24 Cal.4th at p. 162.) Here, Ortiz contends that he suffered a due process violation
because the joinder of his case with Miramontes’s case “resulted in the introduction of
huge amounts of evidence not admissible in a separate trial.” He emphasizes that much
of the evidence presented at the joint trial was gang evidence and thus “of a particularly
prejudicial nature.”
       We do not believe that joinder resulted in a due process violation. As we have
previously explained, evidence pertaining to Miramontes’s crimes could have been
admitted if Ortiz had been tried separately. Moreover, given that Ortiz was charged with
active participation in the NF and engaging in a far-reaching NF conspiracy to sell
methamphetamine, a significant amount of gang evidence would have been admissible at
a separate trial. We therefore cannot conclude that Ortiz suffered gross unfairness as a
result of the gang evidence presented at the joint trial. An analysis of the jury
instructions also suggests that there was no due process violation. The trial court
instructed the jury that gang evidence could be considered “only for the limited purpose”
of reaching a verdict on the active gang participation charge and the gang enhancements,
and it specifically instructed the jury that gang evidence could not be considered to prove
that Ortiz “is a person of bad character or that he has a disposition to commit crimes.”
The trial court also instructed the jury that Ortiz was “individually entitled to” a
determination of whether he was a member of the charged conspiracy. During the
presentation of evidence, the trial court informed the jury that evidence pertaining to the
assault on Madrigal could not be considered against Ortiz. The foregoing instructions
alleviated potential prejudice stemming from the joint trial. Accordingly, based on all of
the circumstances described above, we conclude that the joint trial did cause gross
                                              33
unfairness amounting to a denial of due process. (See generally People v. Valdez (2004)
32 Cal.4th 73, 120-121 [joinder did not result in a due process violation where evidence
was cross-admissible].)
VII. Admission of the “Toltec” Letter
       Ortiz contends that the trial court erred in admitting a letter referred to as the
“Toltec” letter. He asserts that the Toltec letter was inadmissible hearsay. He has failed,
however, to provide this court with a copy of the Toltec letter.
       A. Background
       When police officers searched Ortiz’s house in May 2007, they seized a letter
signed by “Mr. Toltec” and addressed to “Raton,” Ortiz’s gang moniker. This letter,
referred to as the Toltec letter at trial, was admitted into evidence as People’s exhibit 259.
Defense counsel objected to the admission of the Toltec letter, arguing that it was
inadmissible hearsay. The trial court overruled the objection.
       The prosecutor showed Mendoza the Toltec letter, and he asked Mendoza whether
he had an opinion as to whether the author and recipient were associated with the NF or
the NR. Mendoza opined that the author and the recipient were affiliated with the NF or
the NR. In explaining the basis of his opinion, Mendoza noted that the Toltec letter was
partially written in the Nahuatl language, the salutation and sign-off in the letter were
commonly used in NF communications, and the letter contained a star that many NR
members use. Mendoza also noted that a portion of the letter, which mentioned
“education,” was a reference to Norteno schooling.
       B. Ortiz Has Failed to Show that the Letter Was Improperly Admitted
       The appellant must provide this court with an adequate record demonstrating the
alleged error. Failure to provide an adequate record on an issue requires that the issue be
resolved against the appellant. (Maira P. v. Riles 43 Cal.3d 1281, 1295-1296.)
       Given that Ortiz has failed to provide this court with a copy of the Toltec letter, we
are unable to evaluate the letter and determine whether it was improperly admitted into
                                              34
evidence. Because Ortiz has failed to provide an adequate record, we must deem his
claim meritless.
       Moreover, based on the limited record before us, it does not appear that the letter
was even hearsay. Hearsay is defined as “evidence of a statement that was made other
than by a witness while testifying at the hearing and that is offered to prove the truth of
the matter stated.” (Evid. Code, § 1200, subd. (a).) Based on the record before us, it
does not appear that the Toltec letter was offered to prove the truth of the statements in
the letter. Rather, it appears that the letter was offered because it contained language and
symbolism associated with the NF, and Ortiz’s possession of such a document in turn
showed his affiliation with the NF.
       Finally, the claim also fails because Ortiz has not shown that he was prejudiced by
the admission of the Toltec letter. Ortiz asserts that he was prejudiced by the admission
of the Toltec letter because it was the only evidence that established his affiliation with
the NF. Contrary to Ortiz’s assertion, copious evidence established his affiliation with
the NF: Tirri and Martinez both testified that Ortiz sold methamphetamine for the NF,
Tirri testified that Ortiz was a member of Ramirez’s NF regiment, Tirri explained that
Ortiz paid dues to the NF, and Sergeant Livingston opined that Ortiz was an associate of
the NF. Given the very strong evidence establishing Ortiz’s affiliation with the NF, Ortiz
has failed to show the requisite reasonable probability of a more favorable verdict had the
Toltec letter been excluded. (See People v. Fuiava (2012) 53 Cal.4th 622, 671 [when
evidence is erroneously admitted, reversal is required only if there is a “reasonable
probability the jury would have reached a more favorable verdict” absent the error].)
VIII. Immunity
       Ortiz and Miramontes contend that the trial court was required to grant immunity
to prosecution witnesses Ramirez and Tirri for testimony regarding an incident referred to
as the “pruno incident.” They alternatively argue that the trial court should have
compelled the prosecutor to confer such immunity by “giving the prosecutor the choice
                                             35
between granting immunity or having the witnesses’ testimony stricken.” They assert
that immunity was necessary because testimony regarding the pruno incident would have
impeached Ramirez’s credibility and Tirri’s credibility. We find no merit in these claims.
       A. Background
       A few days before Tirri and Ramirez testified at trial, they allegedly participated in
an altercation at the jail, which was referred to as the pruno incident in the trial court. A
jail incident report described the pruno incident. The report stated the following: Tirri,
Ramirez, Mendoza, and at least six other inmates drank homemade alcohol called pruno,
those inmates engaged in a fight, Tirri and others suffered injuries during the fight, and
Tirri later denied being involved in the fight. A witness gave an investigating officer the
following explanation regarding the impetus for the fight: “Some of the inmates were
talking about the deals they had made for their reduced or modified sentences. This
discussion turned to the individual they were ‘giving up’ for their deals and one of them
said they didn’t care if anyone had a problem with what they were doing.”
       Ortiz and Miramontes sought to cross-examine Ramirez and Tirri regarding the
pruno incident, arguing that testimony pertaining to the incident would impeach
Ramirez’s and Tirri’s credibility. Tirri and Ramirez both invoked the Fifth Amendment
privilege against self-incrimination and refused to answer questions regarding the pruno
incident. The prosecutor declined to grant Ramirez and Tirri immunity for testimony
regarding the pruno incident. Ortiz and Miramontes requested that the trial court grant
Ramirez and Tirri immunity for testimony regarding the pruno incident. The trial court
refused to grant such immunity. The court noted that it did not “think the court has the
power to grant immunity to a witness.”
       At the conclusion of Ramirez’s and Tirri’s testimony, Ortiz suggested that the trial
court could give the prosecutor a “choice” between the striking of Tirri’s entire testimony
or a prosecutorial grant of immunity for Tirri’s testimony regarding the pruno incident.
The court refused to present the prosecutor with such a choice. The court also declined to
                                              36
strike Tirri’s and Ramirez’s testimony. The court noted that Ortiz and Miramontes were
not prejudiced by the inability to question Ramirez and Tirri regarding the pruno incident
because the “jury has heard considerable information about these witnesses’ past, their
gang activities, their numerous crimes committed.” The court explained that Ramirez
and Tirri had been subjected to thorough cross-examination, and that there was “plenty of
information for the jury to assess each witness’s credibility, reliability, and accuracy.”
       B. The Claims are Meritless
       Our Supreme Court has held: “[T]here is no authority in this state for the
proposition that a prosecutor must request or the trial court must grant immunity to a
witness on the ground that the witness’s testimony could be favorable to the defense.”
(People v. Cudjo (1993) 6 Cal.4th 585, 619 (Cudjo).) Indeed, the Supreme Court has
characterized as “doubtful” the “proposition that the trial court has inherent authority to
grant immunity.” (People v. Lucas (1995) 12 Cal.4th 415, 460.) Thus, because there is
no authority for the immunity proposed by Ortiz and Miramontes, their claims
necessarily fail.6
       Moreover, even if we assumed that the trial court had the power to grant immunity
or the power to compel the prosecutor to grant immunity, the claims would still fail. The
Supreme Court has stated that, supposing the trial court does possess the power to grant
immunity, “such immunity would be required only if the witness’s testimony was both



       6
          Ortiz contends that a Ninth Circuit case, United States v. Straub (9th Cir. 2008)
538 F.3d 1147 (Straub), required the trial court to grant immunity or compel the
prosecutor to grant immunity. His reliance on Straub is unavailing. “[D]ecisions by the
federal courts of appeal are not binding on us.” (People v. Williams (2013) 56 Cal.4th
630, 668.) In contrast, decisions of the California Supreme Court “ ‘are binding upon and
must be followed by all the state courts of California.’ ” (People v. Superior Court
(Moore) (1996) 50 Cal.App.4th 1202, 1211.) Thus, we are bound by the California
Supreme Court’s conclusion that there is no authority that requires a trial court or a
prosecutor to grant immunity, and we cannot conclude that Straub required the trial court
to grant immunity or compel the prosecutor to grant immunity.
                                             37
clearly exculpatory and essential to an effective defense, and if no strong governmental
interest weighed against the grant of immunity.” (Cudjo, supra, 6 Cal.4th at p. 619.) The
claims here fail because Ramirez’s and Tirri’s potential testimony regarding the pruno
incident was not clearly exculpatory. As the trial court noted, ample evidence impeached
Tirri’s credibility and Ramirez’s credibility. Thus, testimony regarding the pruno
incident was not essential to show that Tirri and Ramirez had impaired credibility.
Moreover, contrary to Ortiz’s assertion, there is no indication that Tirri and Ramirez
“discussed their testimony” and “coordinate[d] their stories” during the pruno incident.
Although a witness reported that individuals involved in the pruno incident discussed
their plea deals, this report in no way constituted a showing that Tirri’s and Ramirez’s
testimony was the product of collusion and thus unbelievable. Finally, we find no merit
in Miramontes’s contention that Tirri’s and Ramirez’s testimony regarding the pruno
incident was necessary to impeach Mendoza’s credibility; given that Mendoza was
subjected to extensive cross-examination and testified at length regarding his extensive
criminal history, Tirri’s and Ramirez’s testimony regarding the pruno incident was
unnecessary to impeach Mendoza’s credibility. Based on the foregoing circumstances,
we cannot conclude that the potential testimony regarding the pruno incident was clearly
exculpatory. Ortiz and Miramontes therefore have failed to demonstrate circumstances in
which immunity conceivably could have been required.
       Lastly, in a brief related argument, Ortiz and Miramontes contend that the trial
court should have stricken Ramirez’s testimony and Tirri’s testimony. This claim is also
unpersuasive. “Where a party cannot cross-examine a witness because the witness
refuses to answer, the trial court may strike the direct examination. [Citation.] The
decision whether to strike the direct examination is left to the discretion of the trial court,
and the refusal to answer only one or two questions need not lead to the striking of the
testimony.” (People v. Daggett (1990) 225 Cal.App.3d 751, 760.) Here, Ramirez and
Tirri refused to answer only the questions regarding the pruno incident, and they
                                              38
submitted to lengthy cross-examination on all other subjects. Given the circumstance
that Ramirez’s and Tirri’s refusal to answer questions was limited to a single subject,
combined with the circumstance that they were impeached through other cross-
examination questions, we cannot conclude that the trial court abused its discretion in
refusing to strike their testimony. (See generally ibid. [finding no abuse of discretion in
trial court’s failure to strike testimony where a witness refused to answer questions
regarding a single subject and the defendant received “the essence of what he needed for
impeachment purposes” from the witness’s answers to other questions].)
IX. Cumulative Error
       Ortiz and Miramontes both contend that cumulative error warrants reversal. In
assessing a claim of cumulative error, the critical question is “whether defendant received
due process and a fair trial.” (People v. Kronemyer (1987) 189 Cal.App.3d 314, 349.)
As discussed above, Ortiz and Miramontes have failed to show any errors in the trial
court proceedings. As there were no errors that could have impacted their due process
and fair trial rights, there was no cumulative error in this case.
X. Penal Code Section 654
       Ortiz and Miramontes contend that the trial court erred in refusing to stay their
active gang participation sentences pursuant to Penal Code section 654. In support of this
claim, they cite People v. Mesa (2012) 54 Cal.4th 191 (Mesa). As explained below,
Mesa compels us to stay their active gang participation sentences.
       Penal Code section 654 states, in relevant part: “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.” (Pen. Code, § 654,
subd. (a).) “Whether multiple convictions are based upon a single act is determined by
examining the facts of the case.” (Mesa, supra, 54 Cal.4th at p. 196.)


                                              39
       Penal Code section 186.22, subdivision (a) states that any 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” is guilty of the
crime of active gang participation. Thus, an element of the crime of active gang
participation is “willful promotion, furtherance, or assistance in felonious conduct by
members of the gang.” (Mesa, supra, 54 Cal.4th at p. 200.)
       In Mesa, our Supreme Court held that when a defendant is convicted of active
gang participation and a second offense, and the record shows that the second offense
established the defendant’s willful promotion, furtherance, or assistance of felonious
conduct by members of the gang, Penal Code section 654 bars punishment on both
offenses. (Mesa, supra, 54 Cal.4th at pp. 193, 197-198.) Mesa reasoned that Penal Code
section 654 “applies where the ‘defendant stands convicted of both (1) a crime that
requires, as one of its elements, the intentional commission of an underlying offense, and
(2) the underlying offense itself.’ ” (Id. at p. 198.)
       Here, Ortiz was sentenced to concurrent prison terms for his active gang
participation conviction and his conspiracy conviction. Based on our review of the
record, we conclude that the sentence on the active gang participation conviction was
barred by Penal Code section 654.7 The trial court instructed the jury that it could
convict Ortiz of active gang participation only if it found that “he either directly or
actively committed or aided and abetted other members of that gang in committing the
crime of Conspiracy to Sell Methamphetamine.” During his closing argument, the


       7
           We note that Penal Code section 654’s bar on multiple punishment applies even
though the prison terms were concurrent. “ ‘It has long been established that the
imposition of concurrent sentences is precluded by [Penal Code] section 654 [citations]
because the defendant is deemed to be subjected to the term of both sentences although
they are served simultaneously.’ ” (People v. Jones (2012) 54 Cal.4th 350, 353, italics in
original.)
                                              40
prosecutor informed the jury that the active gang participation charge was based on
Ortiz’s involvement with the NF, and that it could convict Ortiz of active gang
participation only if it found that Ortiz conspired to sell NF methamphetamine. Our
review of the evidence confirms that Ortiz’s participation in the charged
methamphetamine conspiracy was the only evidence that established his willful
promotion, furtherance, or assistance of felonious conduct by members of the NF.
Accordingly, Mesa requires us to stay the sentence on Ortiz’s active gang participation
conviction.
       Miramontes was sentenced to consecutive prison terms for his active gang
participation conviction, his conspiracy conviction, his assault conviction, and his
extortion conviction. Again, based on our review of the record, we conclude that the
sentence on the active gang participation conviction was barred by Penal Code
section 654. The trial court instructed the jury that it could convict Miramontes of active
gang participation only if it found that “he either directly or actively committed or aided
and abetted other members of that gang in committing the crimes of Conspiracy to sell
Methamphetamine, . . . Assault with a Deadly Weapon . . . and Extortion.” During his
closing argument, the prosecutor informed the jury that the active gang participation
charge was based on Miramontes’s involvement with the NF, and that it could convict
Miramontes of active gang participation only if it found that he “either directly or
actively committed or aided and abetted other members of the gang in committing the
crimes of conspiracy to sell methamphetamine, assault with a deadly weapon or
extortion.” Our review of the evidence affirms that Miramontes’s participation in the
charged conspiracy, assault, and extortion was the only evidence that established his
willful promotion, furtherance, or assistance of felonious conduct by members of the NF.
Mesa therefore requires us to stay the sentence on Miramontes’s active gang participation
conviction.


                                             41
XI. Restitution Fine and Parole Revocation Restitution Fine
       Ortiz contends that because the sentence on his active gang participation
conviction should have been stayed pursuant to Penal Code section 654, the trial court
erred in considering the active gang participation conviction in calculating his restitution
fine. He accordingly requests that we reduce his restitution fine to $2,800 and reduce the
corresponding parole revocation restitution fine to $2,800. We conclude that the fines
must be reduced.
       The trial court ordered Ortiz to pay a restitution fine of $5,600. In setting the
amount of the fine, the court announced that it was “using the formula under Penal Code
section 1202.4, subsection (b).” Notes on the probation report show that the fine was
calculated as “2 x 200 x 14.” The court also imposed a corresponding parole revocation
restitution fine of $5,600, which it ordered suspended.
       Penal Code section 1202.4, subdivision (b) states that “where a person is convicted
of a crime, the court shall impose a . . . restitution fine.” The restitution fine “shall be set
at the discretion of the court.” (Pen. Code, § 1202.4, subd. (b)(1).) At the time the trial
court imposed Ortiz’s restitution fine, Penal Code section 1202.4, subdivision (b)(2)
provided the following formula that could be used to calculate the restitution fine: “In
setting a felony restitution fine, the court may determine the amount of the fine as the
product of two hundred dollars ($200) multiplied by the number of years of
imprisonment the defendant is ordered to serve, multiplied by the number of felony
counts of which the defendant is convicted.” (Former § 1202.4, subd. (b)(2), as adopted
by Stats. 2010, ch. 351, § 9.)
       “A restitution fine is punishment.” (People v. Kunitz (2004) 122 Cal.App.4th 652,
656.) We have therefore held that “the [Penal Code] section 654 ban on multiple
punishments is violated when the trial court considers a felony conviction for which the
sentence should have been stayed pursuant to [Penal Code] section 654 as part of the
court’s calculation of the restitution fine under the formula provided by [Penal Code]
                                               42
section 1202.4, subdivision (b)(2).” (People v. Le (2006) 136 Cal.App.4th 925, 934; see
also People v. Carlson (2011) 200 Cal.App.4th 695, 711 [a conviction for which the
sentence is stayed cannot serve as a multiplier in the Penal Code section 1202.4,
subdivision (b)(2) formula].)
       Here, the record shows that the trial court considered the active gang participation
conviction in calculating Ortiz’s restitution fine pursuant to Penal Code section 1202.4,
subdivision (b)(2). Because the sentence on the active gang participation conviction
should have been stayed pursuant to Penal Code section 654, the trial court erred in
considering that conviction in calculating the restitution fine. We will modify the
restitution fine utilizing a correct calculation under Penal Code section 1202.4,
subdivision (b)(2). (See People v. Le, supra, 136 Cal.App.4th at pp. 935-936 [reducing
the restitution fine, rather than remanding for recalculation of the fine, where the trial
court misapplied Penal Code section 1202.4, subdivision (b)(2)].) When the active gang
participation conviction is omitted from the calculation under Penal Code section 1202.4,
subdivision (b)(2), the calculation results in a restitution fine of $2,800 (the product of
$200 multiplied by the sentence of 14 years and then multiplied by one felony
conviction). We therefore reduce the restitution fine to $2,800.
       The reduction of the restitution fine necessitates reduction of the parole revocation
restitution fine. Penal Code section 1202.45 states that “the court shall, at the time of
imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, as sess an
additional parole revocation restitution fine in the same amount as that imposed pursuant
to subdivision (b) of Section 1202.4.” (Pen. Code, § 1202.45, subd. (a).) Under section
1202.45, a court “has no choice and must impose a parole revocation [restitution] fine
equal to the restitution fine.” (People v. Smith (2001) 24 Cal.4th 849, 853, italics in
original.) Thus, because we reduce the restitution fine to $2,800, we must also reduce the
parole revocation restitution fine to $2,800.


                                                43
                                       DISPOSITION
       The judgment is modified as follows: the sentence on Miramontes’s Penal Code
section 186.22, subdivision (a) conviction is stayed, the sentence on Ortiz’s Penal Code
section 186.22, subdivision (a) conviction is stayed, Ortiz’s restitution fine is reduced to
$2,800, and Ortiz’s parole revocation restitution fine is reduced to $2,800. As so
modified, the judgment is affirmed.




                                           ______________________________________
                                                      RUSHING, P.J.




WE CONCUR:




____________________________________
           PREMO, J.




____________________________________
           ELIA, J.




                                             44
