P. v. Contreras

Filed 6/12/08 P. v. Contreras CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from judgments of the Superior Court of San Diego County, Bernard E. Revak, Judge. As to Torres and Gongora, judgments affirmed. As to Contreras, judgment affirmed as modified.

Arthur Torres, Julio Contreras, and Francisco Gongora were convicted of numerous offenses arising from their involvement in a methamphetamine distribution operation run by a gang known as the "Mexican Mafia." The prosecution's evidence showed that Torres was a crew leader for the Mexican Mafia operating a methamphetamine distribution operation in the community, and that Contreras and Gongora were part of his crew.

On appeal, defendants raise numerous challenges to some of their convictions. The convictions relevant to the issues on appeal are as follows. All three defendants were convicted of conspiracy to distribute methamphetamine (count 1).^[1] Contreras was convicted of possession of methamphetamine for sale (count 18). Torres and Contreras were convicted of conspiracy to extort Cesar Sanchez (count 6). Torres was convicted of kidnapping for robbery, assault, extortion, and robbery of Sanchez (counts 2 through 5). All three defendants were convicted of conspiracy to rob and residential robbery of Robert Bush (counts 8 and 9). Torres and Gongora were convicted of conspiracy to kidnap Richard Jauregui (count 15). Torres was convicted of conspiracy to furnish a firearm to a felon (count 14). The jury also found numerous alleged gang enhancements to be true.

In section I of this opinion we evaluate defendants' challenge to the jury panel selection. In sections II through VI, we evaluate defendants' contentions as they relate to the specific offenses of which the defendants were convicted. In sections VII through IX, we address issues pertaining to gang enhancement findings, closing arguments, and sentencing. We address the specific issues in the following order.

I. Defendants assert the prosecutor's peremptory challenges to jurors were motivated by group bias.

II. Defendants raise several contentions related to the convictions of conspiracy to distribute methamphetamine and possession of methamphetamine for sale. (A) Contreras challenges the sufficiency of the evidence to support his conviction of conspiracy to distribute methamphetamine and possession of methamphetamine for sale. (B) Contreras argues the trial court should have given a unanimity instruction for the conspiracy to distribute methamphetamine count as it related to him. (C) Gongora and Contreras assert their rights under Aranda-Bruton^[2]were violated based on the admission of Torres's statement that Contreras and Gongora were working with him. (D) Contreras asserts his conviction of possession of methamphetamine for sale should have been stayed under Penal Code^[3]section 654.

III. Contreras and Torres raise challenges related to the counts involving victim Sanchez (counts 2 through 6). (A) Contreras challenges the sufficiency of the evidence to support his participation in the conspiracy to extort Sanchez. (B) Torres contends the trial court erred because its cautionary instructions on accomplice testimony failed to fully identify the accomplices who participated in the offenses related to Sanchez.

IV. Gongora challenges the sufficiency of the evidence to support his participation in the conspiracy to rob and robbery of Bush.

V. Gongora and Torres raise challenges related to the conspiracy to kidnap Jauregui. (A) Gongora asserts the evidence does not show he conspired with Torres to kidnap Jauregui. (B) Torres asserts the trial court erred because its cautionary instructions on accomplice testimony did not identify Gongora as an accomplice for the offense against Jauregui.

VI. Torres challenges the sufficiency of the evidence to support his conviction of conspiring to furnish a firearm to an ex-felon.

VII. Gongora challenges the sufficiency of the evidence to support the gang enhancements findings as to him.

VIII. Defendants assert the prosecutor committed misconduct during closing arguments.

IX. Contreras raises several additional challenges to his sentence. He asserts the trial court erred in (A) imposing consecutive sentences in violation of his rights under the Apprendi rule (Apprendi v. New Jersey (2000) 530 U.S. 466); (B) imposing a one-year prior prison term enhancement on both his indeterminate and determinate terms; and (C) staying the sentences for the gang enhancements on counts 1 and 6 rather than striking these enhancements.

With one exception, we find no reversible error. The one item of reversible error is that the trial court should have stricken Contreras's gang enhancements on counts 1 and 6 rather than staying the punishment for these counts. We correct this error by modifying the judgment as to Contreras, and as so modified affirm his judgment. We affirm the judgments as to Gongora and Torres in their entirety.

FACTUAL AND PROCEDURAL BACKGROUND

In 2003, the authorities placed a wiretap on Torres's phone to obtain evidence about a methamphetamine distribution operation run by the Mexican Mafia. The Mexican Mafia is a Hispanic gang operating in California's prisons. The gang's methamphetamine distribution operation extends to the outside community. In the outside community, the gang designates crew leaders who manage the methamphetamine distribution operation. The crew leaders and crew members may belong to different gangs, and are not necessarily persons who have been accepted into the Mexican Mafia. The crew leaders are also charged with the responsibility of collecting debts owed to drug dealers who are under the Mexican Mafia umbrella and of "taxing" methamphetamine dealers who are allowed to operate in areas controlled by the Mexican Mafia. The taxation requires the dealers to provide the crew leader with money, which is then transmitted to Mexican Mafia members in prison and their family members.

Torres and Contreras are members of the Old Town National City gang, and Gongora is a member of the Del Sol gang. The prosecution presented evidence that Torres was a crew leader for the Mexican Mafia, running a methamphetamine distribution operation from June through December 2003. Torres worked under Mexican Mafia members Jose Marquez and Robert Marin, who he referred to as "the Seors." Contreras and Gongora were identified as crew members working for Torres.

Victims Sanchez and Bush were also methamphetamine dealers. The extortion-related conduct committed by Torres and Contreras against Sanchez occurred because Sanchez owed money to another methamphetamine dealer who Torres was protecting. The robbery-related offenses committed by defendants against victim Bush occurred as part of taxation activity directed at Bush. The conspiracy to kidnap Jauregui committed by Torres and Gongora arose because Torres believed Jauregui had arranged for Torres to be killed.

Much of the evidence against defendants was derived from the wiretaps on Torres's phone, as well as from the testimony of several methamphetamine dealers who agreed to testify on behalf of the prosecution. We will present more facts concerning the offenses in our discussion of the various issues raised by the defendants.

DISCUSSION

I. Batson-Wheeler Objections

to Prosecutor'sPeremptory Strikes of Jurors

Defendants contend the trial court erred in denying their Batson-Wheeler^[4]objections claiming discrimination in the prosecutor's peremptory strikes of five minority jurors.

Background

During what turned out to be the initial round of peremptory challenges, the prosecutor excused six jurors, including an African-American woman (juror number 16) and a Hispanic man (juror number 43). When the prosecutor excused the Hispanic man, defense counsel^[5]made a Batson-Wheeler objection, contending the prosecutor had excused the only African-American woman and the only Hispanic man in the jury box. Defense counsel asserted the prosecutor was deliberately attempting to eliminate minorities, and the excusal of Hispanics was of particular concern because the defendants were Hispanic. In response, the trial court referred to a lengthy questionnaire the Hispanic man (and all prospective jurors) had completed and noted that he had stated on his questionnaire that his brother had been charged with various crimes and he believed the prosecution had treated his brother improperly. Based on this, the trial court denied the Batson-Wheeler motion.

The peremptory challenges continued, and the prosecutor excused one additional juror. The parties were then satisfied with the jury and the jurors were sworn. Thereafter, juror number 38 (the only African-American male then on the jury) advised the court that he did not think he could stay focused on the case because of its magnitude and he was generally not comfortable with the case. The trial court excused juror number 38 and reopened the peremptory challenges.

The prosecutor excused 11 more jurors, including an African-American/Filipino woman (juror number 80) and an African-American male (juror number 85). Defense counsel made a second Batson-Wheeler objection. Defense counsel noted the prosecutor

had excused two more African-American jurors, and argued this demonstrated a pattern of discrimination and an attempt to exclude minorities. Defense counsel argued that although juror number 85's questionnaire stated that he believed there was racial profiling, this was not a sufficient basis to excuse him.

The prosecutor argued there was no prima facie case of discrimination against African-Americans, stating his notes indicated juror number 80 was Filipino, and the prosecution had earlier allowed an African-American male to remain on the jury (juror number 38, subsequently excused by the court at the juror's request). Further, the prosecutor stated there was no showing of discrimination against minorities in general, noting there were three Hispanic males currently on the jury.

The trial court denied the second Batson-Wheeler challenge, stating the prosecutor had passed on African-American juror number 38, and in the court's recollection juror number 80 had not indicated she was African-American on her questionnaire, and thus "this is really the first one."

Peremptory challenges continued, and the prosecutor excused seven more jurors, including an African-American woman (juror number 113). Defense counsel objected on Batson-Wheeler grounds for a third time. Defense counsel asserted the prosecution was excusing all African-Americans, there were very few minorities on the jury, and there was no valid reason to excuse juror number 113. The prosecutor responded there was no prima facie case of discrimination, noting there was an African-American male on the jury, the prosecutor had earlier passed on African-American juror number 38, and there were minorities on the jury. At this time, six of the 12 jurors in the jury box were minorities, including one African-American male, one Native American male, three Hispanic males, and one Filipino/Irish male. The trial court denied the third Batson-Wheeler motion, stating there were minority (including African-American) jurors on the panel.

Thereafter, there was one additional peremptory challenge exercised by the defense (replacing a Caucasian juror with a Filipino juror), and the 12 jurors were sworn. The final jury consisted of seven minority jurors (an African-American male, a Native American male, three Hispanic males, a Filipino/Irish male, and a Filipino male). The five remaining jurors were Caucasian, consisting of one male and four females.

Analysis

On appeal, defendants contend the trial court's rulings on the Batson-Wheeler motions were procedurally flawed and erroneous on their merits. They assert the record shows the prosecutor's excusal of four African-American jurors, including three female African-Americans, was based on group bias.

Peremptory challenges to strike prospective jurors need not be supported by cause; the challenges may be based on even trivial reasons or hunches, including body language and the manner of answering questions. (People v. Reynoso (2003) 31 Cal.4th 903, 917; People v. Cornwell (2005) 37 Cal.4th 50, 70; Snyder v. Louisiana (2008) ___U.S.___ [128 S.Ct. 1203, 1208](Snyder) [juror's demeanor can support peremptory challenge].) However, under both the federal and state Constitutions, peremptory challenges may not be based on group bias. (Batson v. Kentucky, supra, 476 U.S. at p. 88; People v. Wheeler, supra, 22 Cal.3d at pp. 276-277; People v. Bell (2007) 40 Cal.4th 582, 596.)

The trial court's evaluation of a defendant's Batson-Wheeler motion occurs in three stages. First, the defendant must make a prima facie showing that the totality of relevant facts gives rise to an inference of discriminatory purpose. Second, if there is a prima facie showing, the burden shifts to the prosecutor to offer nondiscriminatory justifications for the strikes. Third, if nondiscriminatory explanations are presented, the trial court must then decide whether the defendant has proved purposeful discrimination. (People v. Bell, supra, 40 Cal.4th at p. 596.)

To make a prima facie showing, the defendant need only produce evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred. (People v. Cornwell, supra, 37 Cal.4th at p. 67.) The defendant may cite evidence showing the prosecutor has struck most or all of the members of the identified group; the prosecutor has used a disproportionate number of peremptory challenges against the group; the excused jurors share only their membership in the group in common but are otherwise heterogeneous; the prosecutor engaged the excused jurors in merely cursory, or no, voir dire; the defendant is a member of the excluded group; and the victim is a member of the same group as the majority of the remaining jurors. (People v. Bell, supra, 40 Cal.4th at p. 597.) In deciding whether the defendant has presented a prima facie case, the trial court should consider all relevant circumstances. (Ibid.) On appeal, we review the trial court's ruling on this issue for substantial evidence. (People v. Huggins (2006) 38 Cal.4th 175, 228, fn. 13.)

Here, although the trial court did not expressly rule that the defense had not made a prima facie showing of discrimination, it is apparent from the record this was the basis for the court's denial of the Batson-Wheeler motions. After the first objection, the trial court did not ask the prosecutor to state his reasons for the excusals. Rather, the court simply denied the motion based on its evaluation of the excused Hispanic juror's questionnaire. After the second and third objections, the trial court asked the prosecutor for a response and the prosecutor argued no prima facie case had been made. Again, the trial court did not ask the prosecutor to state his reasons, but merely denied the motions after the prosecutor argued there was no prima facie case. Accordingly, we consider whether the record supports the trial court's implied findings that there was no prima facie showing of discriminatory purpose. (See People v. Bonilla (2007) 41 Cal.4th 313, 345; People v. Howard (2008) 42 Cal.4th 1016, 1018.)

At the time of the first motion, the prosecutor had excused six jurors, including an African-American female (juror no. 16) and a Hispanic male (juror no. 43). Defense counsel asserted the prosecutor was eliminating minorities, and that the elimination of Hispanics was of particular concern. Based on a review of the Hispanic juror's questionnaire, the trial court ascertained that this juror had expressed a belief that the prosecution had treated his brother unfairly. This was an obvious race-neutral justification for the prosecutor's exclusion of this juror. The trial court reasonably denied the first Batson-Wheeler motion because the Hispanic juror's bias against the prosecution belied any inference of discriminatory motive.

Contrary to defendants' assertion on appeal, the trial court's reliance on juror number 43's questionnaire was not improper speculation into the prosecutor's reasons for the excusal. Once a prima facie showing is made by the defendant, the trial court should not speculate about the prosecutor's reasons but should require the prosecutor to provide an explanation. (People v. Cornwell, supra, 37 Cal.4th at pp. 73-74.) However, the trial court must first make the threshold inquiry as to whether the record can support an inference of discriminatory purpose. (Ibid.) If the information available to the court shows any prosecutor would excuse the juror for nondiscriminatory reasons, this defeats a prima facie showing. (See id. at pp. 69-70, 73-74.) Because juror number 43's clear statement of bias against the prosecution in the questionnaire would cause any prosecutor to excuse him, the trial court properly relied on this information to deny the motion without further inquiry as to the prosecutor's actual reasons.

Defendants assert the trial court's ruling was erroneous because the court failed to evaluate their Batson-Wheeler challenge as to juror number 16. When defendants made the first Batson-Wheeler challenge, juror number 16 was the only African-American that had been excused by the prosecutor. The premise of the motion was that the prosecutor was discriminating against minorities (i.e., an African-American and a Hispanic). In effect, the evidence of discriminatory purpose as to juror number 16 was based on the combined effect of excusing both juror numbers 16 and 43. Once the court ascertained an obvious nondiscriminatory purpose for excusing juror number 43, there was no need for the court to further address the challenge to juror number 16. Absent some other indication of discriminatory motive, the removal of one member of an identified group from the jury is normally insufficient to support an inference of discriminatory bias. (See People v. Bell, supra, 40 Cal.4th at p. 598 and fn. 3 [the exclusion of one or two jurors of a particular group can rarely suggest discriminatory purpose].)

The second Batson-Wheeler challenge was made after the prosecutor excused an African-American/Filipino woman (juror no. 80) and an African-American man (juror no. 85). Defense counsel noted the excusal of two more African-Americans, and argued the prosecutor was attempting to exclude minorities. By this time, there were three Hispanic jurors on the jury. Further, the prosecutor had earlier passed on an African-American juror, and that juror had been removed for cause at the juror's, not the prosecutor's, request. The trial court reasonably concluded that there was no prima facie showing of discriminatory purpose given that the prosecutor had accepted three Hispanic jurors and had earlier accepted an African-American juror. Notably, the second Batson-Wheeler objection was directed at the exclusion of two African-Americans, whereas the defendants are Hispanic. Although a defendant need not be a member of the excluded group to raise a discrimination claim, the absence of this factor is relevant to the determination of whether the defendant has made a prima facie case. (People v. Bell, supra, 40 Cal.4th at pp. 597, 599-600.)

We note, as emphasized by defendants on appeal, the trial court did err when it stated its recollection that the African-American/Filipino woman (juror no. 80) was not African-American. This juror's questionnaire identifies herself as African-American/Filipino. However, this factual error does not require reversal. Exercising our independent reviewand for the reasons just statedwe likewise conclude the record does not show a prima facie case of discrimination arising from the dismissal of juror numbers 80 and 85. (See People v. Bell, supra, 40 Cal.4th at p. 597 [appellate court may independently review whether record supports inference of discrimination].)

The trial court's statement after the excusal of African-American juror numbers 80 and 85 that "this is really the first one" suggests that it may also have forgotten about the earlier excusal of African-American juror number 16. Assuming this is so, and exercising our independent judgment, we find no inference of discriminatory motive at this point arising simply from the excusal of three African-American jurors. As stated, the prosecutor had accepted an African-American juror and three Hispanic jurors, and the defendants are Hispanic, not African-American.

Defense counsel made the third Batson-Wheeler motion based on the exclusion of another African-American woman (juror no. 113), arguing discrimination against African-Americans and minorities. Defendants argue the excusal of a total of four African-American jurors shows a discriminatory purpose against this racial group. At the time the fourth African-American juror was excused, the jurors accepted by the prosecution and seated in the jury box included an African-American male, three Hispanic males, a Native American male, and a Filipino/Irish male. Thus, there were three seated jurors who were the same ethnicity as the defendants; there was a seated African-American juror; and the prosecutor had earlier accepted another African-American juror. Given the minority jurors accepted by the prosecutor (including African-Americans and jurors of the same ethnicity as the defendants), the trial court could reasonably infer the prosecutor did not have a discriminatory purpose to eliminate African-Americans or any other minority group.

To support their claim of discrimination, defendants note that the prosecutor excused all three African-American females that were called to the jury box. When making their Batson-Wheeler objections before the trial court, defendants asserted the prosecutor was attempting to exclude minorities (in particular Hispanics and African-Americans). Defendants did not contend the prosecutor was singling out African-American females; thus this claim is forfeited on appeal. (People v. Cornwell, supra, 37 Cal.4th at pp. 70-71, fn. 4.) In any event, exercising our independent review, the fact that there were no African-American females left on the jury does not alone support an inference of discriminatory purpose in this case. An African-American male and four Caucasian women were on the jury. The defendants are not African-American females. There is nothing about the facts of the case which would suggest that African-American females might favor the defense. Under these circumstances, the record does not suggest a discriminatory purpose based merely on the prosecutor's excusal of the three African-American woman. (See People v. Bonilla, supra, 41 Cal.4th at pp. 344-345.)

Defendants assert that an inference of discriminatory purpose against African-Americans was shown because during voir dire questioning, the prosecutor did not engage in meaningful voir dire of two of the excluded African-American females, i.e., he did not ask juror number 16 any questions and he asked juror number 80 only one short question. First, the weight of this factor is of less significance in a case where, as here, the jurors filled out questionnaires which gave the prosecutor information about their background and attitudes. (See People v. Bell, supra, 40 Cal.4th at pp. 598-599, fn. 5.) Second, as recognized by defendants, the prosecutor questioned the third excused African-American female juror (juror no. 113) at length, and also engaged in lengthy questioning of the excused African-American male juror (juror no. 85). The record does not show that the manner in which the prosecutor handled voir dire questioning of African-American jurors supported an inference of discriminatory purpose against African-Americans.^[6]

Defendants also contend the trial court erred in its rulings because they were not required to show a pattern of discrimination; rather, the dismissal of even one juror for a discriminatory reason is unconstitutional. (People v. Bell, supra, 40 Cal.3d at p. 598, fn. 3.) However, there must still be some threshold evidence in the record supporting an inference that the prosecutor had a discriminatory motive when excusing one or more jurors. As set forth above, the trial court reasonably concluded there was no such evidence here. In a similar vein, defendants argue that reversal is required because the prosecutor failed to point to anything in the record showing a legitimate reason for excusing the four African-American jurors. The contention is unavailing because absent a prima facie showing of discriminatory motive, the prosecutor had no obligation to explain why he exercised a peremptory challenge to remove a particular juror.

Finally, defendants request, for the first time on appeal, that we engage in a comparative analysis between the excluded jurors and the retained jurors. Comparative analysis is used to ascertain whether a prosecutor's proffered reason for striking a juror is pretextual; for example, by showing that a proffered reason applies equally to a retained juror who is not a member of the identified group. (See People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1017 (Lewis); Snyder, supra, 128 S.Ct. at pp. 1211-1212.) As illustrated in Lewis, " 'If a prosecutor's proffered reason for striking a [B]lack panelist applies just as well to an otherwise-similar non[-B]lack who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson's third step.' " (Lewis, supra, at p. 1017; see also People v. Cornwell, supra, 37 Cal.4th at p. 71.)

However, although a comparative analysis for the first time on appeal may be appropriate in some cases (see Lewis, supra, 39 Cal.4th at p. 1017; Snyder, supra, 128 S.Ct. at p. 1211), it is not appropriate in a case involving only first-stage Batson-Wheeler analysis where the prosecutor was not required to, and did not, present reasons for the strikes. (People v. Bell, supra, 40 Cal.4th at p. 601.) As explained in Bell, "In the circumstances of this first-stage Wheeler-Batson case, comparative juror analysis would make little sense. In determining whether defendant has made a prima facie case, the trial court did not ask the prosecutor to give reasons for his challenges, the prosecutor did not volunteer any, and the court did not hypothesize any. Nor, obviously, did the trial court compare the challenged and accepted jurors to determine the plausibility of any asserted or hypothesized reasons. Where, as here, no reasons for the prosecutor's challenges were accepted or posited by either the trial court or this court, there is no fit subject for comparison. Comparative juror analysis would be formless and unbounded." (People v. Bell, supra, 40 Cal.4th at p. 601.)

Here, based on the trial court's rulings of no prima facie case, the prosecutor was not required to, and did not, state his reasons for excusing the jurors. Accordingly, a comparative analysis to determine whether the prosecutor's reasons were pretextual is not warranted.^[7]

Defendants have not cited any evidence that defeats the trial court's rulings that there was no showing of a prima facie case of discrimination. Accordingly, the court did not err in denying the Batson-Wheeler motions.

II. Conspiracy to Distribute Methamphetamine

and Possession of Methamphetamine for Sale

A. Substantial Evidence of Contreras's Culpability for Conspiracy to Distribute Methamphetamine and Possession of Methamphetamine for Sale

Contreras asserts there is insufficient evidence to support the jury verdicts that he participated in the conspiracy to distribute methamphetamine and possessed methamphetamine for sale.

In evaluating a challenge to the sufficiency of the evidence, we review the whole record in the light most favorable to the judgment to determine whether there is substantial evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Thomas (1992) 2 Cal.4th 489, 514.) If the circumstances reasonably justify the trier of fact's findings, reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. (Ibid.)

Factual Background

Between June and November 2003, the police wiretap recorded a voluminous number of conversations on Torres's phone. Of particular relevance to the methamphetamine distribution operation, there were frequent conversations between Torres and two brothers, Richard Ortega (Richard) and Hector Ortega (Hector), in which they specifically discussed methamphetamine distribution. Contreras was ultimately tied to these conversations.

During Torres's numerous conversations with Richard, the two men discussed various transactions involving their methamphetamine dealing. Hector was mentioned or was involved in some of these conversations. For example, during a conversation on November 7, Richard told Torres that Hector was on his way over to deliver money to Torres, apparently to be used by Torres to pay for a delivery of methamphetamine. During a conversation on November 16, Hector told Torres that he needed an "ounce" (referring to methamphetamine) right away and that he needed to deliver it to someone's house.

On November 21, 2003, Torres received a phone call from an individual named Jorge Munoz. Munoz asked Torres who was working with him. In response, Torres identified Hector, Richard, Contreras, Gongora, and Jaime Lopez (Jaime).^[8]

The police wiretap also recorded conversations in which Contreras was involved. In several conversations during June 2003, Contreras asked Torres if he had any drugs, apparently for Contreras's personal use. Contreras primarily requested heroin; Torres told Contreras he did not deal in heroin. In a June 9 conversation, Contreras also asked for methamphetamine; Torres told him he did not have any.

In a June 20 conversation, Contreras and Torres discussed an anticipated job in Temecula, Contreras's need for drugs, and their mutual interest in obtaining drugs. First, Contreras told Torres that a certain person (who was not identified during the call) had already left their "pad" but that Contreras would try to find him. Torres told Contreras that "we . . . got another job that's coming up right now" in Temecula, involving "[s]ome good . . . . you know?" Torres told Contreras to let the individual know as soon as he comes over and then let Torres know. Contreras then asked if Torres had "[a]nything" now because he was "doing bad." Torres told Contreras that right now he was "broke," but that Contreras should keep checking with him. Torres and Contreras agreed that they needed to get "something going here" because everyone was "doing bad." (Italics added.)^[9] Contreras complained, "All of a sudden the [unintelligible] ain't got no mother fucking cri-cri coming." Torres told Contreras that he would see "what [he could] get" to help Contreras out, and that Contreras should call him back.

The police wiretap also revealed several conversations between Contreras and Torres in October, November, and December 2003, where it appears Contreras was asking Torres to procure drugs for Contreras's personal use.

On December 15, 2003, the police wiretap revealed a tie-in between Contreras and Torres's methamphetamine operations with Hector. In a recorded phone conversation on December 15, 2003, at 12:22 p.m., Torres called Contreras and gave Contreras instructions to meet with Hector. Torres gave Contreras a phone number, and told him to immediately call Hector and find out where Hector wanted to meet Contreras. Torres instructed Contreras to identify himself as "Mosco" and stated that Hector "knows." Contreras stated he would call Hector right now, and Torres told him to "hurry up."

That same day (December 15), the police set up surveillance near Torres's residence. At about 12:50 p.m., the police saw Jaime (a member of Torres's crew) go to Torres's residence, and then go across the street to an apartment complex. They also saw Contreras at this apartment complex. At about 2:29 p.m., the police saw Jaime, Contreras, and Hector run to Torres's apartment. Shortly thereafter, Jaime, Contreras, and Hector ran out of the apartment and left the area in a black Ford Ranger truck.

The police officers had been briefed that there was probable cause to arrest the truck occupants; accordingly, they followed the truck and pulled it over. Contreras and Jaime exited the truck, climbed a four-foot fence, and ran into a nearby trailer park. Hector, who did not flee, was taken into custody. The police caught Jaime and Contreras in the trailer park and arrested them. The police found a pouch containing approximately $4,000 on the ground between trailers in the area where they arrested Jaime and Contreras. They found methamphetamine in a baggie by the fence that Jaime and Contreras had climbed, and methamphetamine scattered inside and outside the Ford Ranger truck. The methamphetamine in the baggie weighed approximately 9.92 grams and the scattered methamphetamine (including soil and debris) weighed about 137.85 grams. Based on the large amount of methamphetamine and cash, the police ascertained the methamphetamine was possessed for sale.

Analysis

Contreras's Agreement to Join the Methamphetamine Distribution Conspiracy

A criminal conspiracy exists when there is an unlawful agreement between two or more people to commit a crime, and an overt act in furtherance of the agreement. (People v. Prevost (1998) 60 Cal.App.4th 1382, 1399.) The prosecution must show the defendant intended to agree and intended to commit the elements of the offense. (Ibid.; People v. Morante (1999) 20 Cal.4th 403, 416.) However, "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, supra, 60 Cal.App.4th at p. 1399.)

The evidence supports the jury verdict that Contreras agreed and intended to participate in Torres's methamphetamine distribution operation. When speaking with Munoz, Torres identified Contreras as one of the people who was working with him. Based on the contents of Torres's numerous phone conversations between June and November 2003, the jury could find that Torres's primary work was methamphetamine distribution, and thus that the people who worked for him were participating in the distribution operation. The jury could also find that the discussion between Torres and Contreras on June 20 regarding a job in Temecula which involved something "good" referred to methamphetamine, and that Contreras was helping Torres contact the people who would participate in the transaction. Further, the jury could infer from this same conversation that Torres's and Contreras's agreement that they need to get "something going" meant they agreed that they needed to obtain methamphetamine to distribute to people.

The reliability of the inference that Contreras had agreed to participate in Torres's methamphetamine distribution operation was confirmed by the December 15, 2003 conversation between Torres and Contreras, followed by the arrest of Contreras and the discovery of cash and methamphetamine in the possession of the truck occupants. On the day of Contreras's arrest, Torres instructed Contreras to meet with Hector, who was one of the other individuals involved with Torres in methamphetamine distribution. Contreras met with Hector at Torres's apartment; he left Torres's apartment in a truck with Hector and Jaime; and when he was stopped by the police he fled with Jaime from the truck. The police then found the discarded cash and the methamphetamine near the truck. Based on all the evidence, including the communications between Torres and Contreras, the jury could reasonably infer that Contreras was aware of the methamphetamine in the truck and had agreed to participate in the methamphetamine distribution operation.

To support his challenge to the methamphetamine distribution conspiracy, Contreras notes that he was not named in any of the alleged overt acts except the last one occurring on December 15 when he was arrested. This does not defeat the evidentiary support for his agreement to participate in the conspiracy. A conspirator need not personally participate in any of the overt acts as long as he or she conspired to commit the crime and an overt act is committed by a coconspirator. (People v. Morante, supra, 20 Cal.4th at p. 417; People v. Cooks (1983) 141 Cal.App.3d 224, 312.)

Contreras's Possession of Methamphetamine for Sale

A defendant may be found guilty of possession of drugs for sale based on actual or constructive possession of the drugs, knowledge of the presence of the drugs, and intent to sell. (People v. Newman (1971) 5 Cal.3d 48, 52, disapproved on other grounds in People v. Daniels (1975) 14 Cal.3d 857, 862.) Constructive possession exists when the defendant has control or the right to control the drugs. (People v. Newman, supra, 5 Cal.3d at p. 52.) Possession may be imputed when the drugs are found in a place immediately accessible to the defendant and subject to his or her exclusive or joint dominion and control. (Ibid.; People v. Harrington (1970) 2 Cal.3d 991, 998.)

Here, the evidence showing that Contreras had agreed to participate in the methamphetamine distribution operation likewise showed that he knew about the methamphetamine in the truck, he had control over the drugs, and he intended to sell them. Contrary to Contreras's assertion, this is not a case where the only evidence to support the jury's verdict was Contreras's mere presence in the truck. (See, e.g., In re Elisabeth H. (1971) 20 Cal.App.3d 323, 330.) In addition to Torres's presence in the truck, the jury's finding that Contreras knowingly possessed the methamphetamine for sale was supported by Torres's instruction to Contreras to meet with Hector on December 15 and by the discovery of the discarded methamphetamine and the large amount of cash near the areas where Contreras fled after being stopped by the police.

B. Failure to Give Unanimity Instruction for Methamphetamine

Distribution Conspiracy Count as it Related to Contreras

Contreras asserts that a unanimity instruction should have been given for the conspiracy to distribute methamphetamine count because the prosecutor presented two alternative theories that could prove his culpability: (1) he conspired with Torres to obtain methamphetamine to sell to others, or (2) he conspired with Torres to obtain methamphetamine for his personal use.

A defendant's constitutional right to a unanimous jury verdict requires that when the evidence shows more than one unlawful act that could support a single charged offense, the prosecution must either elect which act to rely upon or the trial court must sua sponte give a unanimity instruction telling the jurors they must unanimously agree which act constituted the crime. (People v. Melhado (1998) 60 Cal.App.4th 1529, 1534.) The unanimity instruction is designed to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agreed the defendant committed. (Ibid.)

However, no unanimity instruction is required when the prosecution presents multiple theories regarding one discrete criminal act or event. (People v. Russo (2001) 25 Cal.4th 1124, 1134-1135.) "[W]here the evidence shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed or what the defendant's precise role was, the jury need not unanimously agree on the basis or . . . the 'theory' whereby the defendant is guilty." (Id. at p. 1132.) Similarly, no unanimity instruction is required when the offense involves a continuous course of conduct; i.e., when the statute defining the crimes applies to an offense that may be continuous in nature. (People v. Funes (1994) 23 Cal.App.4th 1506, 1526-1527.)

The evidence showed that Torres engaged in a methamphetamine distribution operation with the assistance of other individuals. Contreras's participation in the methamphetamine distribution operation was supported by the phone calls between him and Torres discussing the need to acquire drugs, for Contreras's personal use as well as for other people, and culminating in the discovery of a large amount of methamphetamine in Contreras's possession when he was arrested. Although the prosecution proffered multiple theories to support Contreras's culpability (i.e., his intent to secure methamphetamine for others or for himself), the evidence showed a discrete agreement to participate in Torres's methamphetamine distribution activity. Further, the conspiracy involved a continuous, unified course of conduct with the single overall goal of acquiring and distributing methamphetamine. The trial court was not required to give a unanimity instruction.

C. Aranda-Bruton Challenge Based onAdmission of Torres's Statement

that Contreras and Gongora Were Working with Him

Gongora and Contreras contend their rights to a fair trial under Aranda-Bruton principles were violated by the admission of Torres's statement to Munoz during the November 21, 2003 recorded phone conversation identifying Gongora and Contreras as persons working with him. They contend Torres's statement did not fall within the coconspirator hearsay exception, and hence it was inadmissible under Aranda-Bruton.

Prior to trial, defendants moved to sever their trials on Aranda-Bruton grounds. The prosecutor argued against severance, asserting that all codefendant statements that would be offered into evidence were made in furtherance of a conspiracy and thus not subject to the Aranda-Bruton rule. The trial court denied the severance motion, stating that it would only admit nontestifying codefendant statements that were made in furtherance of a conspiracy. After the jury was presented with the recorded phone conversation containing Torres's statement incriminating Gongora and Contreras as crew members, Gongora and Contreras moved for a mistrial on Aranda-Bruton grounds. The prosecutor opposed the motion, arguing Torres's statement was made in furtherance of the methamphetamine distribution conspiracy. The trial court denied the mistrial motion.^[10]

Under the Aranda-Bruton rule, the prosecution cannot introduce a nontestifying defendant's statements inculpating a nondeclarant defendant (which would not have been admissible against the nondeclarant defendant in a severed trial) even though at the joint trial the statements are admissible against the declarant defendant as a party admission. (People v. Fletcher (1996) 13 Cal.4th 451, 455; People v. Morales (1968) 263 Cal.App.2d 368, 374.) The rationale for this rule is that the jury might not be able to follow instructions to disregard the declarant defendant's statement in determining the guilt or innocence of the nondeclarant defendant. (People v. Fletcher, supra, 13 Cal.4th at p. 455; People v. Brawley (1969) 1 Cal.3d 277, 286.)

However, the Aranda-Bruton rule is inapplicable if the extrajudicial statements come within the coconspirators' exception to the hearsay rule. (People v. Roberts (1992) 2 Cal.4th 271, 304; People v. Brawley, supra, 1 Cal.3d at p. 286.) This exception to the Aranda-Bruton rule is premised on the fact that if the declarant defendant's statements were admissible at a severed trial under the coconspirator's hearsay exception, a separate trial would not afford the nondeclarant defendant any greater protection and thus there is

no reason to exclude the statements at a joint trial. (People v. Morales, supra, 263 Cal.App.2d at p. 374; see also Bourjaily v. United States (1987) 483 U.S. 171, 183-184.)

To admit a declarant defendant's statement under the coconspirator hearsay exception, there must be a preliminary showing, independent of the coconspirator's statement, that a conspiracy exists and that (1) the declarant was participating in the conspiracy at the time of the declaration, (2) the declaration was in furtherance of the objective of that conspiracy, and (3) at the time of the declaration the party against whom the evidence is offered was participating or would later participate in the conspiracy. (People v. Hardy (1992) 2 Cal.4th 86, 139; People v. Leach (1975) 15 Cal.3d 419, 430-431, fn. 10; Evid. Code,  1223.) The preliminary showing requirement is satisfied if the proponent of the evidence provides sufficient evidence for a reasonable trier of fact to conclude the preliminary fact is true by a preponderance of the evidence. (People v. Herrera (2000) 83 Cal.App.4th 46, 63.)^[11]

Gongora and Contreras do not dispute there was independent evidence showing a methamphetamine distribution conspiracy. However, they contend there was no evidence to satisfy the three additional requirements; i.e., that the declarant (Torres) was participating in the methamphetamine distribution conspiracy when he made the statement; that Torres made the statement to further the methamphetamine distribution conspiracy; and that Contreras and Gongora were participating in the methamphetamine distribution conspiracy at the time of the statement or thereafter. The record shows otherwise.

As to the first requirement, there was clear evidence that Torres was involved in a conspiracy to distribute methamphetamine during the November 2003 time period when he made the statement at issue. During this time, Torres had numerous phone conversations with the Ortega brothers specifically discussing methamphetamine distribution. Thus, the record supports that Torres was participating in the methamphetamine distribution conspiracy when he made the statement.

The second requirementthat Torres's statement was designed to further the conspiracyis supported when the lengthy phone conversation between Torres and Munoz is considered in its entirety. During the conversation, Munoz and Torres discussed two men (Danny Ray and Mark Kramer) who Torres and Munoz had heard were asking about them. Torres commented that Kramer "used to run some shit . . . in I-B." Munoz asked Torres why Kramer was asking about them. Torres responded that he did not know what Ray and Kramer wanted, but Ray and Kramer had "mentioned the Seor." Torres told Munoz that he wanted to know who Ray and Kramer were. Torres elaborated that he had been "hunting" and was getting closer, and he would "challenge [Ray and Kramer] and see what's up." Munoz agreed that Torres needed to find out who Ray and Kramer were. Further, Munoz told Torres that an individual (apparently referring to Munoz's uncle with whom Munoz had earlier discussed the matter) had said " 'find out who those motherfuckers are.' " Munoz told Torres that when Torres was "ready to roll," Munoz would "roll with [Torres]." Torres stated he would let Munoz know "whatever comes up." Following this exchange, Munoz asked Torres who was working with him, and Torres identified Gongora, Contreras, and the others. Munoz stated he was working with only one other individual, identified as "Ewok from East Side." Torres asked, "Just you guys?" Munoz responded, "Yup. So if anybody else is trying to say. . . . They're bull shitting. All right?"

The prosecution presented evidence showing that Torres was a crew leader for the Mexican Mafia, and that he called his Mexican Mafia boss "the Seor." During the conversation with Munoz, Torres stated the two men they were discussing (Ray and Kramer) had "mentioned the Seor." It is apparent from the conversation that Munoz understood what this reference meant. Munoz and Torres discussed plans to challenge the two men. The fact that Munoz understood who the Seor was and understood the implications arising from other people referring to the Seor creates a reasonable inference that Munoz was also connected to the Mexican Mafia methamphetamine distribution operation. Accordingly, the record supports a finding that when Munoz and Torres identified the individuals who were working with them, they were referring to crew members who worked on the methamphetamine distribution operation and they were furthering the organizational goals of that operation.

Finally, as to the third requirement, the record supports that Contreras and Gongora were participating in the methamphetamine distribution conspiracy at the time of Torres's November 21, 2003 statement. Contreras was arrested with methamphetamine in his possession on December 15, 2003; this supported an inference of his participation during the relevant time period.

Regarding Gongora's involvement in the conspiracy, the wiretap revealed several conversations between Torres and Gongora in June 2003 during which they discussed drug distribution. Further, methamphetamine dealer Pulido testified that Torres came to his residence in May 2003 to inform him that he had to pay a tax for his methamphetamine operations, and that Gongora accompanied Torres on this visit. Additionally, during various phone conversations from June through August 2003, Torres and Gongora discussed a variety of other matters, including weapons that Gongora was holding for Torres, the Sanchez kidnapping and extortion, the Bush robbery, and the Jauregui kidnapping plans. The Sanchez and Bush matters involved activities that assisted the methamphetamine distribution operationi.e., Sanchez was targeted because he owed money to methamphetamine dealer Sergio Pulido whom Torres was protecting, and Bush was targeted because he was dealing in methamphetamine without having paid a tax to Torres. This evidence supports that Gongora was participating in Torres's methamphetamine distribution operation and related activities during the relevant time period.

Gongora asserts there were no recorded conversations between Torres and Gongora after November 15, 2003, and thus there was no evidence he was still participating in the methamphetamine distribution operation when Torres identified him to Munoz on November 21, 2003.^[12] A defendant who has joined a conspiracy remains a

member until he affirmatively communicates his withdrawal. (People v. Sconce (1991) 228 Cal.App.3d 693, 701; People v. Cooks, supra, 141 Cal.App.3d at p. 316.) Gongora has cited no evidence indicating that he had communicated such an intent to withdraw. Moreover, it is apparent from the recorded conversations that Torres kept Gongora apprised of his activities related to methamphetamine distribution and other matters, and that Gongora viewed himself as available to assist Torres in his activities. Gongora's ongoing communications and involvement with Torres supported an inference that Gongora was still part of the methamphetamine distribution conspiracy when Torres spoke with Munoz on November 21, 2003.

The record supports that Torres's statement to Munoz fell within the coconspirator hearsay exception. Accordingly, the admission of the evidence did not violate the Aranda-Bruton rule, and the trial court did not err in denying the motion for mistrial.

D. Multiple Punishment of Contreras for Conspiracy to Distribute

Methamphetamine and Possession of Methamphetamine for Sale

The trial court imposed a three-year sentence on Contreras's conspiracy to distribute methamphetamine conviction and a consecutive eight-month sentence on his possession of methamphetamine for sale conviction. Contreras asserts the trial court should have stayed the sentence on his possession of methamphetamine for sale conviction under section 654 because the possession for sale count was based on the same act as his conspiracy to furnish methamphetamine conviction.

Section 654 prohibits multiple punishment for a single act or indivisible course of conduct. (People v. Deloza (1998) 18 Cal.4th 585, 591.) When a defendant is convicted of two offenses that are part of an indivisible course of conduct, the sentence for one of the offenses must be stayed. (Id. at pp. 591-592.) The purpose of section 654 is to ensure that a defendant's punishment is commensurate with his or her culpability. (People v. Latimer (1993) 5 Cal.4th 1203, 1211.) Whether a course of criminal conduct is divisible so as to allow multiple punishment depends on whether the defendant had a separate criminal objective for each offense. (Id. at pp. 1208-1209.)

A course of conduct that is divisible in time can support a finding of multiple criminal objectives even though the conduct shares a common overall objective. (See People v. Gopal (1985) 171 Cal.App.3d 524, 550.) On appeal we apply the substantial evidence test to review the court's finding on this issue. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)

In the context of conspiracy law, the general rule is that a defendant may not be punished for both a conspiracy to commit a substantive offense and that substantive offense, unless the evidence shows the conspiracy had another objective apart from the substantive offense for which the defendant is being punished. (In re Cruz (1966) 64 Cal.2d 178, 180-181; People v. Vargas (2001) 91 Cal.App.4th 506, 571.) However, when the conspiracy shows multiple instances of the same substantive offense, the defendant may properly be punished for one of the substantive offenses, as well as for the conspiracy to commit the other (identical) substantive offenses for which the defendant is not being punished. (See, e.g., People v.