Filed 7/31/14 P. v. Lawson CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D064376

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD245566)

NICHOLAS S. LAWSON,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Joan P.

Weber, Judge. Affirmed as modified.

         Beatrice C. Tillman, under appointment by the Court of Appeal, for Defendant and

Appellant.

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

General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Lise S.

Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.
       A jury convicted Nicholas S. Lawson of assault by means of force likely to

produce great bodily injury (Pen. Code,1 § 245, subd. (a)(4); count 1); misdemeanor

battery (§ 242; count 2); conspiracy to commit assault by means of force likely to

produce great bodily injury (§ 182, subd. (a)(1); count 3); and conspiracy to commit

battery (§ 182, subd. (a)(1); count 4). Lawson admitted he had suffered two prior strike

convictions (§ 667, subds. (b)-(i)) and one prior prison term conviction (§ 667.5,

subd. (b)).

       The court sentenced Lawson to prison for eight years four months, consisting of

six years for count 1, a concurrent term of three years for the conspiracy to commit the

felony assault in count 3, a consecutive term of one year four months for the conspiracy

to commit battery in count 4, and one year for the prison prior. The court awarded

Lawson credit for time served for count 2.

       Lawson appeals, contending: (1) his Sixth Amendment rights were violated

because the court admitted certain out-of-court statements of one of the alleged victims;

(2) the court erred in failing to sua sponte instruct the jury that it must determine whether

the multiple conspiracies charged in counts 3 and 4 were part of an all-inclusive plan with

a single objective; and (3) the concurrent sentence on count 3 should be stayed under

section 654. Only Lawson's challenge to the sentence for count 3 has merit.

Accordingly, we affirm the judgment as modified to stay Lawson's sentence under

count 3.



1      Statutory references are to the Penal Code unless otherwise specified.
                                              2
                                           FACTS

       The crimes in this case occurred in one of five two-story modules in the San Diego

County jail. The subject module has a common area or day room with tables and a

television on the first floor and two floors of inmate cells along part of the perimeter of

the day room. There is a deputy's station with windows on the first floor of the jail, in the

center of the five modules. The jail also has a video surveillance system on every housing

floor. Lawson's crimes were captured on the video surveillance system. At trial, the

prosecutor presented the video, which did not have an audio portion, and still shots from

the video.

       Around 10:00 a.m., Yorik Hancock, Michael Ottinger, and Joshua George were

eating lunch at a table in the day room while Lawson, dressed in all blue, stood by the

doorway of his cell. At one point, Hancock left the table, went to one cell and then went

to Luis Gautier's cell on the upper level. Hancock stayed in Gautier's cell for "just a little

bit." He then returned to the table where he joined Ottinger and Lawson.

       Lawson returned to his cell and later exited it with his cellmate, Arden Montalvo.

Lawson walked over to George and tapped him on the shoulder. Lawson and Montalvo

then returned to their cell with George while Hancock paced outside his nearby cell.

Shortly after this, Ottinger entered Lawson's cell and punched George on the right side of

head, knocking him to the ground. Lawson and Montalvo picked George up and moved

him outside their cell.

       Lawson then walked upstairs and entered Gautier's cell, followed by Montalvo and

Hancock. Although the surveillance camera view of Gautier's cell was obstructed in

                                              3
large part by a pillar, two men dressed in white shirts and one in blue are visible on the

video. The video shows movements and punching and kicking motions in the cell. After

about a minute, Lawson, Montalvo, and Hancock exited Gautier's cell and returned to

their own cells. Lawson then conversed with George in the day room where they were

joined at one point by Ottinger. Later, Gautier exited his cell, walked to the showers, and

showered. Gautier then gathered his mattress, sheets and bedding and, around

10:45 a.m., banged on the module door. Deputy Sheriff Pedro Lopez heard the banging,

looked at the door, and saw Gautier with his belongings rolled up in his mattress. Lopez

noticed bruises, swelling, and blood on Gautier's face and blood and cuts on his ears.

Lopez had seen Gautier earlier that morning and did not notice any injuries on his face.

After the tower deputy opened the module door, Lopez asked Gautier what happened.

Gautier responded that he needed to leave the module and could not be there. Gautier

also said that he had been attacked by five men in his cell, he could not identify the men

because he covered his face during the attack, and even if he did know who had attacked

him, he would not tell Lopez.

          After Lopez reviewed the surveillance videotape, he contacted Lawson, Hancock,

and Montalvo. None of them had any visible injuries. The parties stipulated that 16 days

before this incident, Gautier sustained an orbital fracture, nasal fracture, and bruising

when, according to Gautier, he was struck multiple times by several inmates in the face,

back, and ribs. The parties further stipulated that Gautier had sustained a conviction in

2010 for assault with a deadly weapon or by means of force likely to produce great bodily

injury.

                                              4
       Deputy Sheriff John Barrios, a 22-year veteran who has spent his entire career

working in jail or correctional settings, testified that there is a specific culture and code of

conduct in jail. Barrios explained that inmates separate themselves according to race and

will only room, eat, and socialize with members of their own race. If an inmate violates

the jail code, the inmate will suffer consequences. Victims and witnesses to crimes in the

jail setting are reluctant to cooperate with investigations and to testify because they will

be attacked by members of their own race if they do so. Informants or "snitches"

typically end up in protective custody. Barrios acknowledged that jail fights are common

and may result from reasons unrelated to race, like disputes over food, water, the

condition of the showers, and issues outside of jail.

                                        DISCUSSION

                                               I

                    THE ADMISSION OF GAUTIER'S STATEMENTS

       Lawson contends the trial court prejudicially erred and violated his Sixth

Amendment right to confrontation by admitting Gautier's statement to Lopez after the

assault. We disagree.

       The prosecution filed a motion in limine to admit certain statements Gautier made

to Lopez after Gautier was assaulted. According to the motion:

           "Gautier, showered after his attack, then rolled up his mattress and
           belongings and went to the deputy's station to report the attack.
           Gautier told Deputy Pedro Lopez that . . . while housed at George
           Bailey Detention Facility, the 'shotcaller' of Gautier's module
           requested to see Gautier's court paperwork. Gautier told the
           'shotcaller' that he did not have paperwork. The following day . . .
           Gautier along with another inmate were transferred from the module

                                               5
             in George Bailey, to the fifth floor module B of the San Diego
             Central Jail. The inmate who was transferred along with Gautier
             asked Gautier to see his court paperwork once again . . . . Gautier
             would only identify this inmate as 'one of the white guys.' Gautier
             said that he was in his cell by himself a little while later when
             approximately five guys entered his cell and started to beat him.
             Gautier refused to identify any of his attackers and said, 'I don't care
             who did it, I don't want to prosecute or testify against anyone.' "

          The prosecution argued each of Gautier's statements to Lopez was admissible as a

spontaneous utterance or contemporaneous statement.

          At the hearing on the motion in limine, the court indicated that the statements did

not qualify as spontaneous utterances because Gautier had showered in between the

attack and the statements and was not seriously injured in the attack. The prosecution

stated it was only seeking to introduce "the fact that Gautier did come and report that he

had been attacked and that he did say, 'I don't care who did it. I don't want to testify or

prosecute against anyone.' " The prosecution argued these last two statements showed

Gautier's state of mind and fear associated with the attack. The prosecution also

contended the statements were not testimonial within the meaning of Crawford v.

Washington (2004) 541 U.S. 36 (Crawford) because they were analogous to a 911 call

requesting help.

          Lawson's counsel disagreed, arguing Gautier did more than request help in his

statements. The court ruled the statements were nontestimonial and admissible as fresh

complaints. The court further ruled that Lawson's counsel could introduce the reason

why Gautier could not identify his attackers, i.e., Gautier was covering his face during the

attack.


                                                6
At trial, Lopez testified about Gautier's statements to him after the assault:

   "Q:    What happened after you had the deputy roll the door for
          inmate Gautier?

   "A:    Well, right -- right away I noticed he had bruising and he was
          bleeding from his face. And I asked him what happened, and
          he just told me he needed to get out of that module because he
          couldn't be in there. And I informed him that he was going to
          be taken to the third floor to be seen by medical.

   "Q:    Okay. Did Mr. Gautier report to you that he had been
          attacked?

   "A:    He told me that he was attacked inside of his cell.

   "Q:    Was inmate Gautier able to identify who attacked him?

   "A:     I asked him if he would, and he told me no.

   "Q:    And when you say he told you no, did he tell you he could not
          identify who attacked him or he didn't want to?

   "A:    He said -- he told me that he didn't want -- he couldn't identify
          who did it and that, if he did know who it was, he wasn't
          going to tell me.

   "Q:    Was inmate Gautier cooperative with your attempts to
          investigate this?

   "A:    Yeah, he was cooperative.

   "Q:    Was he cooperative with your attempts to identify who his
          attackers were?

   "A:    He – he wouldn't – he wouldn't tell me. All he told me was: I
          don't want to -- I don't want to tell them who did it. [¶]
          That's it.

   "Q:    Did he tell you whether he wanted charges pressed?

   "A:    He told me he didn't want any charges pressed."


                                       7
       On cross-examination, Lopez admitted that Gautier told him he had been attacked

by five inmates. Also, Lopez testified that Gautier told him that he could not identify his

attackers because he was covering his face during the attack.

       Here, Lawson contends Gautier's statements to Lopez were hearsay, not subject to

any exception to the hearsay rule. And, he further asserts the admission of those

statements into evidence violated the confrontation clause of the United States

Constitution because they were testimonial in nature and Lawson was not able to cross-

examine Gautier, who did not appear at trial as a witness. (See California v. Green

(1970) 399 U.S. 149, 158.)

       In response, the People do not address Lawson's arguments about the admissibility

of the statements, but instead, maintain Lawson suffered no prejudice.

       The Sixth Amendment of the federal Constitution provides that a defendant has

the right to confront the witnesses against him. In Crawford, the United States Supreme

Court held that admission of a "testimonial" hearsay statement by a declarant who does

not appear for cross-examination at trial violates the confrontation clause unless the

witness is unavailable to testify at trial and the defendant had a prior opportunity to cross-

examine the witness. (Crawford, supra, 541 U.S. at pp. 59, 68.) This rule applies even if

the statement is otherwise admissible under a hearsay exception. (Id. at pp. 50-51, 56 &

fn. 7.) However, the confrontation clause does not bar admission of hearsay statements

that are not testimonial. (Davis v. Washington (2006) 547 U.S. 813, 823-826 (Davis).)

       Relevant to the parameters of testimonial statements to which the confrontation

clause applies, the court in Crawford, supra, 541 U.S. 36 explained: "[T]he

                                              8
Confrontation Clause . . . applies to 'witnesses' against the accused--in other words, those

who 'bear testimony.' [Citation.] 'Testimony,' in turn, is typically '[a] solemn declaration

or affirmation made for the purpose of establishing or proving some fact.' [Citation.] An

accuser who makes a formal statement to government officers bears testimony in a sense

that a person who makes a casual remark to an acquaintance does not." (Id. at p. 51.)

       However, not all statements to government officers are testimonial. In Davis, the

court formulated the following test to distinguish nontestimonial from testimonial

statements made to law enforcement officials: "Statements are nontestimonial when

made in the course of police interrogation under circumstances objectively indicating that

the primary purpose of the interrogation is to enable police assistance to meet an ongoing

emergency. They are testimonial when the circumstances objectively indicate that there

is no such ongoing emergency, and that the primary purpose of the interrogation is to

establish or prove past events potentially relevant to later criminal prosecution." (Davis,

supra, 547 U.S. at p. 822.)

       The court in Davis reasoned that statements to government officials that are

"solely directed at establishing the facts of a past crime, in order to identify (or provide

evidence to convict) the perpetrator" satisfy the definition of a testimonial statement

because they are a solemn declaration or affirmation made for the purpose of establishing

or proving some fact. (Davis, supra, 547 U.S. at p. 826.) Further, a witness's description

of past events to an investigating officer may be testimonial regardless of whether the

statements were reduced to a writing signed by the declarant or merely embedded in the

memory or notes of the officer. (Ibid.) The court in Davis acknowledged that "formality

                                              9
is indeed essential to testimonial utterance" (id. at p. 830, fn. 5), but stated the requisite

formality and solemnity exist when a witness describes past events to an officer, because

deliberate falsehoods to officers constitute a criminal offense. (Id. at pp. 826-827.) The

court also observed that statements are not automatically nontestimonial even when they

were made without any detailed interrogation (i.e., volunteered statements or answers to

open-ended questions). (Id. at p. 822, fn. 1.)

       Under these principles, statements made to a 911 operator describing events as

they are actually happening are not testimonial if their purpose was to provide the police

with information necessary to resolve a present emergency and they were made in an

environment that was not tranquil or safe. (Davis, supra, 547 U.S. at p. 827.) In this

circumstance, the 911 caller's statements are not " 'a weaker substitute for live testimony'

at trial" because "[n]o 'witness' goes into court to proclaim an emergency and seek help."

(Id. at p. 828; see People v. Cage (2007) 40 Cal.4th 965, 984 (Cage) [testimonial

statements are statements that are "out-of-court analogs, in purpose and form, of the

testimony given by witnesses at trial"].)

       Similarly, statements in response to police inquiries at the crime scene are not

testimonial if the inquiries were designed to ascertain whether there was an ongoing

threat to the safety of the victim, the officers, or the public. (See Davis, supra, 547 U.S.

at pp. 829, 831-832; People v. Romero (2008) 44 Cal.4th 386, 422 (Romero).) For

example, questioning a victim to identify a perpetrator for purposes of immediate

apprehension of the perpetrator for safety reasons does not yield a testimonial statement.

(Ibid. [statements "are nontestimonial if the primary purpose is to deal with a

                                               10
contemporaneous emergency such as assessing the situation, dealing with threats, or

apprehending a perpetrator"].)

       In Romero, supra, 44 Cal.4th 386 the court concluded a victim's statements to the

police at the crime scene were nontestimonial under circumstances where the agitated

victim described an assault that had just occurred, and a few minutes later identified the

perpetrators whom the police found hiding nearby. (Id. at pp. 421-422.) The court

reasoned the "statements provided the police with information necessary for them to

assess and deal with the situation, including taking steps to evaluate potential threats to

others by the perpetrators, and to apprehend the perpetrators. . . . The primary purpose of

the police in asking [the victim] to identify whether the detained individuals were the

perpetrators, an identification made within five minutes of the arrival of the police, was to

determine whether the perpetrators had been apprehended and the emergency situation

had ended or whether the perpetrators were still at large so as to pose an immediate

threat." (Id. at p. 422.)

       In contrast, statements that are initially nontestimonial may evolve into testimonial

statements if the immediate danger has ended and the questioning continues to elicit

details about what happened. (See Davis, supra, 547 U.S. at pp. 817, 828-829 [following

initial nontestimonial statements, 911 caller's statements may have become testimonial

once the caller reported that the assailant (her former boyfriend) had driven away and the

operator "proceeded to pose a battery of questions"].) Likewise, statements are

testimonial if they are in response to police interrogation that occurs after the emergency



                                             11
has been resolved and where there is no immediate need to identify or apprehend a

perpetrator. (See Davis, supra, 547 U.S. at pp. 829-830.)

       For example, the court in Davis found statements made to an officer responding to

a report of a domestic disturbance were testimonial because there were no signs of a

current disturbance; the wife stated she was fine; the wife made statements incriminating

her husband only during a second conversation when she was interviewed in a room

separate from her husband and sometime after the events she described were over; and

the officer had the wife write out an affidavit to establish what had occurred previously.

(Davis, supra, 547 U.S. at pp. 829-832.) The court reasoned that during the second

conversation the officer was not seeking information about " 'what is happening' " but

rather about " 'what happened' "; the victim was not making a "cry for help" and was not

providing information to enable the officers "immediately to end a threatening situation";

and the sole purpose of the interrogation was to investigate a possible crime. (Id. at

pp. 830-832.) The court concluded the statements are "an obvious substitute for live

testimony, because they do precisely what a witness does on direct examination . . . ."

(Id. at p. 830; italics omitted.)

       Similarly, in Cage, supra, 40 Cal.4th 965, the California Supreme Court

concluded a victim's statement to an officer at a hospital waiting room was testimonial

under circumstances where the officer had earlier been to the scene of the crime and

observed evidence that could suggest the defendant (the victim's mother) had committed

an assault; the victim had been transported to the hospital and was awaiting treatment in

the emergency room; and the officer asked the victim to describe what had happened

                                            12
between the victim and the defendant. (Id. at pp. 984-985.) The court reasoned that by

the time the officer spoke with the victim the incident had been over for more than an

hour; the assailant and the victim were geographically separated; and the victim was "in

no danger of further violence as to which contemporaneous police intervention might be

required." (Id. at p. 985.)

       The court concluded the officer's "clear purpose in coming to speak to [the victim]

at this juncture was not to deal with a present emergency, but to obtain a fresh account of

past events involving defendant as part of an inquiry into possible criminal activity."

(Cage, supra, 40 Cal.4th at p. 985; italics omitted.) Rejecting an argument that the

officer was determining whether further immediate police action might be necessary to

apprehend a perpetrator, the court noted the officer did not try to obtain emergency

information from the victim when he saw him near the crime scene even though the

victim was coherent; at the hospital the officer questioned the victim in a manner that

assumed the defendant was the suspect; and there was no indication the officer followed

up with what the victim told him by initiating emergency action. (Id. at pp. 985-986,

fn. 15.)

       On appeal, we independently review whether a statement was testimonial so as to

implicate the constitutional right of confrontation. (People v. Johnson (2007) 150

Cal.App.4th 1467, 1478.) We evaluate the primary purpose for which the statement was

given and taken under an objective standard, "considering all the circumstances that

might reasonably bear on the intent of the participants in the conversation." (Cage,

supra, 40 Cal.4th at p. 984.)

                                             13
       Here, Gautier's initial statements to Lopez that he needed out of the module

because he had been attacked are nontestimonial. In making these statements, Gautier

was clearly making a cry for help. (See Romero, supra, 44 Cal.4th at p. 422.) He was

asking to be removed from a location (the module) because he was not safe (he was

attacked). Further, the length of time between the attack and Gautier's statements to

Lopez (15 minutes) does not necessarily undermine the conclusion that Gautier's initial

statements were nontestimonial. Although Gautier cleaned himself up after the assault

and gathered his possessions before asking to leave the module, the fact that he asked to

leave the module made clear that he did not feel safe and was concerned that he could be

in danger. Lopez's willingness to remove Gautier from the module also indicated that he

believed Gautier was in danger if he remained in the module. The trial court did not err

in admitting these statements.

       However, Gautier's statements following his initial two statements cross the line

from nontestimonial to testimonial. These statements consist of Gautier telling Lopez

that he could not identify his attackers; even if he could identify his attackers, he would

not do so; and he did not want to prosecute his attackers. None of these statements were

necessary to allow Lopez to ascertain whether there was an ongoing threat to Gautier's

safety. (See Davis, supra, 547 U.S. at pp. 829, 831-832; Romero, supra, 44 Cal.4th at

p. 422.) These statements were more akin to a victim responding to a police officer's

questions to allow that officer to obtain a "fresh account of past events . . . as part of an

inquiry into possible criminal activity." (Cage, supra, 40 Cal.4th at p. 985; italics

omitted.) As such, we conclude the trial court erred in admitting these statements.

                                              14
       Having concluded that error occurred, we must evaluate whether the error was

prejudicial under the harmless beyond a reasonable doubt standard set forth in Chapman

v. California (1967) 386 U.S. 18 (Chapman).

       Lawson argues he was prejudiced by the admission of the statements because the

statements bolstered the prosecution's "spin" of what occurred in the video to support the

conspiracy charges by providing circumstantial evidence of Lawson's intent. More

specifically, he contends Gautier's statements supported the prosecution's story that

Gautier would not testify at trial because he was a "snitch," who had just been attacked by

members of his own race and was fearful of reprisals if he were to testify. We disagree.

       At trial, the prosecution offered the testimony of Barrios, a jail culture expert, who

explained that when someone is a victim of crime in jail, there is a reluctance to

cooperate with investigations or to testify because "the inmates fear each other more than

they -- and the consequences as a result of their actions more than they fear the deputies

or the law or anything like that, because they have to live in that environment. They have

no escape from it." However, Barrios also testified that inmates may attack each other

for a variety of reasons, including a lunch related dispute, the condition in which a

shower was left, or some issue connected to what was occurring outside the jail. In

addition, Barrios admitted that he had no information that Gautier was refusing to testify

in this case.

       Also, during closing argument, the prosecution argued it did not have to prove

Lawson's motive and emphasized that motive was not established in the case. As such,

the prosecution did not argue to the jury that Gautier did not testify at trial because he

                                             15
was worried that he would be labeled a snitch and would be subject to reprisals by

Lawson and/or other inmates. Further, Lawson's counsel effectively cross-examined

Lopez, getting him to admit that Gautier could not identify his attackers because he had

covered his face during the attack.

       In light of this record, we conclude that the admission of Gautier's later statements

that he could not identify his attackers, would not identify his attackers, and did not want

to press charges against his attackers were harmless beyond a reasonable doubt under

Chapman, supra, 386 U.S. 18. Instead of prejudicing Lawson, these statements

highlighted the weakness in the prosecution's case: one of the victims could not identify

his attackers.

                                             II

                          CONSPIRACY JURY INSTRUCTIONS

       Lawson was convicted of conspiracy to commit an assault on Gautier (count 3)

and conspiracy to commit a battery on George (count 4). Here, the court instructed the

jury that it needed to find separate agreements for both of the conspiracy charges.

Specifically, the jurors were instructed that to find a conspiracy to commit felony assault,

they had to find, among other elements, that "[t]he defendant intended to agree and did

agree with Yorik Hancock, and/or Arden Montalvo, to commit Assault with Force Likely

to Cause Great Bodily Injury." The jury was separately asked to determine for the

conspiracy to commit battery whether "[t]he defendant intended to agree and did agree

with Arden Montalvo, and/or Michael Ottinger to commit Battery." And the court

instructed the jury to decide each count separately.

                                             16
       Lawson claims the court erred in giving these instructions because the court had a

duty to sua sponte instruct the jury that it must determine whether both conspiracies

constituted a single, all-inclusive conspiracy. We review a claim of instructional error de

novo. (People v. Posey (2004) 32 Cal.4th 193, 218.) "Review of the adequacy of

instructions is based on whether the trial court 'fully and fairly instructed on the

applicable law.' [Citation.]" (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) In

determining whether error has been committed in giving jury instructions, we consider

the instructions as a whole and assume jurors are intelligent persons, capable of

understanding and correlating all jury instructions which are given. (Ibid.) " 'Instructions

should be interpreted, if possible, so as to support the judgment rather than defeat it if

they are reasonably susceptible to such interpretation.' [Citation.]" (Ibid.)

       As a threshold issue, we note that Lawson did not request an instruction regarding

whether a single conspiracy existed. By failing to request a specific jury instruction at

trial, Lawson forfeited this claim on appeal, unless the claimed error affected Lawson's

substantial rights. (See § 1259; People v. Flood (1998) 18 Cal.4th 470, 482, fn. 7.)

Nevertheless, Lawson attempts to avoid forfeiture of this issue by maintaining the trial

court had a sua sponte duty to give the additional single conspiracy instruction.

       Lawson acknowledges that there is no California Supreme Court case on point.

Moreover, he admits that the District Courts of Appeal are split regarding whether a trial

court has a sua sponte duty to instruct the jury on single versus multiple conspiracies.

(See, e.g., People v. Meneses (2008) 165 Cal.App.4th 1648, 1668-1671 [duty to instruct];

People v. Jasso (2006) 142 Cal.App.4th 1213, 1220-1223 [duty to instruct]; People v. Liu

                                              17
(1996) 46 Cal.App.4th 1119, 1133 [no duty to instruct]; People v. McLead (1990) 225

Cal.App.3d 906, 921 [no duty to instruct].) Lawson urges us to follow Meneses and

Jasso, claiming "the evidence at trial established a single, ongoing, all-inclusive

conspiracy by a group of inmates to control other inmates in their ethnic group through

fear and force." Lawson, however, fails to cite to this evidence in the record. Instead, he

relies on pretrial arguments by the prosecution and Lawson's statement in his probation

report. Neither is evidence that was before the jury during Lawson's trial.

       Here, the battery and felony assault occurred close in time, by the same means in

different cells in the same module. But the evidence did not establish a motive for the

attacks. The prosecution's expert on jail culture testified that fights in jail are common

and can occur for a variety of reasons. During closing argument, the prosecutor

acknowledged the dearth of evidence regarding the motive for the battery and assault:

"Every fact in the case, every fact you've heard, doesn't need to be proven beyond a

reasonable doubt. There could be a dispute as to what they're eating as they're sitting at

the table. That's not a fact that's an element of the crimes here ladies and gentlemen.

That does not need to be proven. [¶] . . . [¶] People are not required to prove motive.

. . . [¶] Crimes happen for all kinds of reasons: attacks, robberies, beatings. These are

things that happen for all types of reasons. [¶] We don't need to prove why it happened;

just that it happened and this defendant intended for it to happen, took part in the

planning and actually participated." On rebuttal, the prosecutor similarly acknowledged

there was no evidence of a disagreement or argument between Lawson and either George

or Gautier. The prosecutor again reminded the jurors that he did not have to prove

                                             18
motive. Thus, the evidence did not establish what the motives for the battery and assault

were, let alone that they were committed with a common purpose.

       Additionally, the attacks involved different combinations of conspirators, namely

Lawson, Montalvo and Ottinger in the battery and Lawson, Montalvo and Hancock in the

felony assault. Finally, the attacks involved different victims, George and Gautier.

Therefore, the evidence did not support an alternative theory of a single conspiracy. The

prosecution attempted to prove that Lawson entered into two separate conspiracies, and

the court instructed the jury that it had to find these two separate conspiracies existed

beyond a reasonable doubt. The prosecution did not argue Lawson's acts were part of a

conspiracy to control other inmates. Nor did Lawson's counsel.

       On this record, we need not weigh in on the appellate court split regarding the trial

court's sua sponte duty to give a single versus multiple conspiracy jury instruction. The

court properly instructed the jury. The jury found beyond a reasonable doubt that two

conspiracies existed. No party requested a single conspiracy versus multiple conspiracies

jury instruction. No party argued a single conspiracy existed. There was no error.

                                             III

                                       SECTION 654

       Lawson maintains, and the People concede, the court should have stayed Lawson's

sentence of a concurrent term of three years for the conspiracy to commit assault by a

means of force likely to produce great bodily injury in count 3. "Section 654 prohibits

multiple punishment for both the conspiracy and the substantive offenses that were its

object." (People v. Briones (2008) 167 Cal.App.4th 524, 529.) Here, the assault in

                                             19
count 1 and the conspiracy in count 3 were part of an indivisible course of conduct

leading to a single objective: assault of Gautier. Therefore, the trial court should have

stayed the concurrent sentence for count 3 under section 654.

                                      DISPOSITION

       This case is remanded to the trial court with directions to correct the judgment to

stay Lawson's three-year prison sentence for count 3 (conspiracy to commit assault by

means of force likely to produce great bodily injury) per section 654. In all other

respects, the judgment is affirmed.




                                                                            HUFFMAN, J.

WE CONCUR:



              McCONNELL, P. J.


                       AARON, J.




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