P. v. Garcia





Filed 4/28/11 P. v. Garcia CA2/2





NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, v. ARTHUR GARCIA et al., Defendants and Appellants.

B210960 (Los Angeles County Super. Ct. No. KA074827)

APPEALS from judgments of the Superior Court of Los Angeles County. Robert M. Martinez, Judge. Affirmed.
Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant and Appellant Arthur Garcia.
Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant Julio Ponce Felix, Jr.
Jonathan P. Milberg, under appointment by the Court of Appeal, for Defendant and Appellant Ricardo Polanco.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and G. Tracey Letteau, Deputy Attorneys General, for Plaintiff and Respondent.

Arthur Garcia (Garcia), Julio Ponce Felix, Jr. (Felix), and Ricardo Polanco (Polanco) (collectively “defendants” appeal from judgments entered upon their convictions of conspiracy to commit murder (Pen. Code, §§ 182, subd. (a)(1)/187, subd. (a).)[1] We affirm the judgments.
STATEMENT OF THE CASE
In an amended information filed by the District Attorney of Los Angeles County, Garcia, Felix and Polanco were charged with conspiracy to commit a crime (murder), consisting of allegations of 65 overt acts.[2] (§§ 182, subd. (a)(1)/187, subd. (a); count 1.)
It was alleged that Garcia had one prior strike conviction (§§ 667, subds. (b)-(i), 1170, subds. (a)-(d)) under the “Three Strikes” law, and one serious felony conviction (§667, subd. (a)(1)).
It was alleged that Felix had two prior strike convictions (§§ 667, subds. (b)-(i), 1170, subds. (a)-(d)), two serious felony convictions (§667, subd. (a)(1)), and had served a prior prison term (§ 667.5, subd. (b)).
It was alleged that Polanco had one prior strike conviction (§ 667, subds. (b)-(i), 1170, subds. (a)-(d)), and had served a prior prison term (§667.5, subd. (b)).
Defendants pleaded not guilty and denied the special allegations.
Following a jury trial, defendants were all found guilty of conspiracy to commit a murder (§§ 182, subd. (a)(1)/187, subd. (a); count 1).
Following a court trial on the priors allegations, it was found that Garcia had sustained a prior strike. He was sentenced to 55 years to life in prison. On September 12, 2008, Garcia filed a notice of appeal.
It was also found that Felix sustained two prior strike convictions and he was sentenced to 85 years to life in prison. On January 15, 2009, Felix filed a notice of appeal.
It was further found that Polanco sustained a prior strike conviction and he was sentenced to 50 years to life in prison. On September 22, 2008, Polanco filed a notice of appeal.
The matters were consolidated on appeal.
CONTENTIONS
Garcia asserts that there was insufficient evidence to support his conviction on count 1. Specifically, he argues that there was no substantial evidence to support a finding that he participated in the plot to kill Frankie Buelna (Buelna), the target of defendants’ murder conspiracy. Felix and Polanco also argue that there was insufficient evidence to support their convictions on count 1, due to a lack of substantial evidence on the element of intent.
Each defendant also argues that a prosecution witness’ reference to the murder of Buelna deprived him of a fair trial.
Garcia argues that the trial court abused its discretion in denying his motion to strike his single prior felony conviction for sentencing purposes.
STATEMENT OF FACTS
1. Prosecution’s case
A. Overview
The prosecution’s case was based primarily on 192 wiretaps of telephone conversations and police surveillance during a five month period from April 2005 through September 2005. Scott Barker (Agent Barker), a special agent with the California Department of Justice, served as lead investigator into the Pomona 12th Street Sharkies gang (Sharkies). His investigation began in 2004 and lasted almost two years. The investigation, known as operation Fishnet, commenced after a California Highway Patrol officer was shot and killed by an individual who was acting for the benefit of the Sharkies. Agent Barker’s role in the investigation was to listen to the wiretapped conversations and direct surveillance where he thought necessary.
B. Raid of Mike Lerma’s (Lerma) prison cell
During the course of the investigation, Agent Barker learned of the connection between the Sharkies and the Mexican Mafia (Eme).[3] He also learned that Felix, Polanco and Garcia were members of the Sharkies gang. The Sharkies are a feeder gang for the Eme.
Law enforcement learned that an Eme member named Lerma, who was incarcerated at Pelican Bay State Prison, was receiving “tax” money[4] from an individual named Teddy Trujillo (Trujillo). Lerma did not directly receive the money, but had control over it.
Officers involved in Fishnet participated in a search of Lerma’s prison cell in late 2004. Various items were recovered, including two letters, a phone book and a homemade calendar. Based upon the letters, Agent Barker concluded that there was a serious dispute between Lerma and another Eme member, Buelna. One letter indicated that Lerma’s family was being threatened by Buelna and Buelna’s close associate, Daniel Perendiz (Perendiz). Agent Barker believed that Lerma and Buelna were fighting for control of the taxes in the City of Pomona. Because Lerma was in prison, it was harder for him to send directions and orders down to the street. Buelna, being out of custody, could do it much more easily. Agent Barker’s understanding was that Buelna was trying to collect more taxes than Lerma thought appropriate.
In another letter collected from Lerma’s prison cell, Lerma expressed that his family should not worry about Buelna and Perendiz. The letter insinuated that Lerma planned to have Buelna and Perendiz killed.
C. Evidence of the conspiracy
Court approval for wiretaps of members of the Sharkies was obtained. During the course of the investigation, the cellular telephones of Trujillo, Garcia, Felix, Polanco, and Castrejon were all wiretapped. The calls were monitored and transcribed.
On April 9, 2005, Felix called Polanco at approximately 2:00 p.m. As interpreted by Agent Barker, Felix communicated to Polanco that one of Lerma’s fellow Eme members was going to call Polanco with a task for Polanco to accomplish. A few days later, on April 13, 2005, Polanco received a phone call from Garcia. Garcia asked Polanco if he was ready to carry out his assigned mission that day. Apparently, Polanco thought the mission was to collect tax money from drug dealers, and Garcia indicated that he would have “homeboy” call him.
Within the course of the next two hours, Polanco and Felix exchanged three phone calls during which they discussed, among other things, that Polanco should be ready to act, that he would be informed about his task directly from those giving the orders, that he would be supported in whatever he did and that his family would be taken care of if he was either killed or incarcerated while carrying out his task.
The next day, April 14, 2005, Garcia and Polanco spoke at approximately 7:05 p.m. Garcia told Polanco that he was “gonna try to do that right now.” Surveillance was initiated at Felix’s apartment complex. At approximately 8:45 p.m., Felix and Polanco were seen walking out of the complex to Felix’s black Camaro. Felix got in the driver’s side and Polanco got in the passenger side. They drove to a Home Depot in Pomona. Felix and Polanco entered the Home Depot and remained there for about 15 minutes. Meanwhile, a white Ford Focus with “paper plates” arrived and parked adjacent to the Camaro. Felix and Polanco returned to the parking lot and met up with the driver of the white car. The driver of the white car and Polanco entered the white car. Felix returned to the Camaro.
Law enforcement followed the white car, which drove to the area where Buelna lived. Polanco left the vehicle and began walking towards Buelna’s residence. Polanco was talking on the phone. A wiretap revealed that he was talking with Felix and inquiring about Buelna’s residence. Specifically, Polanco expressed some confusion about where he was supposed to go. Polanco explained that he had been unable to carry out his assignment because he had been confused about precisely where Buelna lived. He did not want to enter the wrong house and “stir shit up.” Polanco stated that he had his gun with him. Felix told him to hide the gun in the bushes and retrieve it later. Polanco complained that his driver abandoned him. The surveillance team lost sight of Polanco, but followed the white car to a residence in Rialto owned by Castrejon.
Agent Barker directed that Buelna be contacted and notified that his life was in danger. On April 16, 2005, a Pomona Police Department sergeant went to Buelna’s residence and related information regarding the threat on Buelna’s life.
During a wiretapped phone conversation between Garcia and Polanco on April 15, 2005 at 9:20 p.m., the two discussed the failed attempt on Buelna’s life the previous evening. Garcia explained that the attempt did not happen the way it was supposed to, and noted that they would be disciplined for failing to carry out the attack.
On April 17, 2005, during the course of an intercepted phone call between Felix and Polanco, Felix asked Polanco if he wanted to come down tonight. Polanco responded by asking if it was with the same guy and if he could do it tomorrow. Felix responded that it was not with the same guy and tomorrow was alright.
Law enforcement conducted surveillance on April 18, 2005. Polanco was observed going to an apartment complex in Chino, then leaving with a male Hispanic in the same white car that had been observed four days earlier. The white car was followed to a gas station across the street from Buelna’s residence. Polanco and the driver were observed getting out of the car and looking at Buelna’s residence. During this time, calls were intercepted in which Polanco said he could “do a smoke” or kill someone. There was also a conversation about whether a stolen car should be used to commit the murder. However, no attempt was made on Buelna’s life that day.
On April 19, 2005, Polanco and Felix discussed the possibility of getting a rental car to carry out the mission.
On April 29, 2005, at 7:10 p.m., Felix and Polanco had another conversation during which Felix told Polanco that Garcia had seen Buelna pull into his driveway. Both Felix and Polanco expressed that they were tired of waiting. Polanco said that he had thought of taking care of the matter on his own. However, in another intercepted telephone conversation several hours later, Polanco stated that he could not do it that night because he was drunk.
On April 30, 2005, Polanco telephoned Felix and stated that he was going to “swoop” in and do it himself. Felix asked Polanco if he needed a Beretta handgun, Polanco replied that he did. Polanco said that he would pick up the gun. Polanco and Felix engaged in another conversation a short while later, at 6:18 p.m., during which they discussed murdering Buelna and how Polanco would obtain the Beretta. Felix advised Polanco not to use a stolen vehicle and warned Polanco not to do a “kamikaze.” Felix advised Polanco to be careful. Polanco promised that he would not get crazy, but that he would move in and finish the job at the first opportunity.
Between May 2 and May 16, 2005, in four intercepted phone calls, three of which were between Polanco and Felix, Polanco stated that he had gone by Buelna’s residence twice. Once the garage was open but he had not seen anyone. There were also discussions about the continued waiting and the fact that there was a heavy police presence.
On May 26, 2005, Felix, followed by surveillance officers, drove to a Chuck E. Cheese Restaurant in Chino, where he met with Garcia. During the meeting, Polanco called Felix and asked about the mission. Felix indicated that he was “with him right now” and that they were waiting for “homeboy.” Felix and Polanco discussed Lerma, how long it had been, how they could not rush it and how they could not trust anyone on their side. Problems related to the collection of taxes were also discussed.
On the afternoon of June 16, 2005, Felix, followed by surveillance officers, drove from his house in Chino and met up with Polanco on a street corner. The two became involved in what appeared to be an argument. Felix subsequently left Polanco and drove to an Arco gas station near Buelna’s residence, where he met with an unidentified male.
Two days later, on June 18, 2005, a phone call was intercepted between Eme member Rudy Partida (Partida) and Felix. Partida asked Felix if Polanco was still around and available. Felix telephoned Polanco. Polanco stated that he could not handle it that week because it was Father’s Day and there were too many cops around. Felix was followed to a Mexican restaurant in Montclair, where he met up with Garcia and a third individual. Afterwards, Felix and Garcia went to Characters Bar in Pomona, a location that Buelna was known to frequent.
On June 20, 2005, during the course of an intercepted phone call between Garcia and Felix, the two discussed that Garcia had found out nothing and that they had not heard from “him” since yesterday. Felix stated that Polanco was in the city if “they” wanted to touch base with him. Garcia indicated that he would try to find out what was going on and otherwise they would have to wait until a third individual called.
On June 22, 2005, law enforcement intercepted a telephone call between Eme member Daniel Barela, who was then a federal prisoner, and another Eme member, Kenny Vega. As interpreted by Eme expert Leo Duarte, they spoke in part about the need to murder Buelna. Vega referred to Castrejon as being ultimately responsible for the murder, and they complained that it had been two months without the deed being accomplished. However, Castrejon intended to carry through with the murder, and had rejected Vega’s offer of assistance.
On June 23, 2005, Garcia called Felix and they agreed to meet. Subsequently, observed by surveillance officers, they met at a car wash where they talked for about twenty minutes. Garcia then got back in his truck and was followed to an industrial area, where police conducted a traffic stop. Garcia’s truck was then followed to the Ontario airport. During this time, Garcia and Felix discussed their suspicions of police activity in a telephone conversation. Garcia stated that he was going to get rid of his phone. Garcia’s voice ceased to be heard discussing the mission with Felix and Polanco around this time.
In a telephone conversation between Polanco and Felix on July 1, 2005, Polanco described Buelna, noting that he had seen Buelna in front of his residence.
On July 5, 2005, a surveillance of Garcia’s home in Rancho Cucamonga was in place when Garcia left in his truck. Surveillance officers followed Garcia for a time when he circled back and flipped them the finger. Realizing they had been discovered, the surveillance officers terminated their surveillance of Garcia.
D. Polanco-- police pursuit and loss of his cell phone and gun
On July 6, 2005, between 7:30 and 8:00 p.m., Polanco was observed leaving an apartment complex in Pomona, holding a white baggie against his body. Polanco walked up to a Honda Accord parked across the street, and put the white baggie in the trunk. He then entered the vehicle and drove away. At that time, Pomona Police Department Officer Timothy McCrary observed the Honda, and noticed that it had an expired registration.[5] Officer McCrary initiated a traffic stop. The Honda pulled over and Officer McCrary left his vehicle and began to approach the Honda. When Officer McCrary reached the rear of the Honda, it sped away. Officer McCrary hurried back into his vehicle and initiated a pursuit. Officer McCrary lost sight of the vehicle but was hailed by a citizen who pointed to a .380-calibur semi-automatic handgun that was in the gutter. The Honda was later found abandoned, with a cellular telephone inside.
At approximately 8:54 p.m., Polanco called Felix and related the details of the incident.
On July 7, 2005, Polanco and Felix spoke again. They discussed what they should do in light of the fact that the police had recovered Polanco’s cellular phone and had possibly retrieved the gun. Felix reminded Polanco that his mission was “something you can’t just be passing on to other people,” and that he was expected to complete the task.
E. Further evidence of the conspiracy
On July 16, 2005, Felix told Polanco, in an intercepted phone call, that Buelna had been at Characters Bar. Polanco promised that he would “get it going and change and try to shoot over there.” During another phone call, about a half an hour later, Felix told Polanco that he had arranged a ride for him. However, during a third telephone call, Polanco indicated that his phone was not working, his girlfriend wanted to throw him out, and that he was going to have to take the bus. Felix’s girlfriend, Olga Ramirez (Ramirez), got on the phone and urged Polanco to come to Characters Bar if he possibly could. However, as Felix told Eme member Hector Munoz (Munoz) later that night, Polanco arrived too late. Felix and Munoz agreed that they would try again the following day.
On July 17, 2005, surveillance officers followed Felix and Munoz to a house on Orange Grove Avenue in Pomona where Maria Lopez (Lopez), the mistress of both Buelna and Munoz, lived. During a conversation between Felix and Munoz, Munoz told Felix about Buelna’s routine, and indicated that Buelna was going to Characters Bar that evening. The following day, at approximately 5:57 p.m., Munoz told Felix that there was going to be a birthday party for Buelna’s nephew that evening, suggesting that it might be a good opportunity to murder Buelna.
On July 22, 2005, Lopez told Munoz that Buelna would be at Characters Bar that night. A short while later, at 6:06 p.m., Felix and Munoz spoke. They discussed the fact that Castrejon went to Mexico. Felix was to contact Garcia to “see what he can do” so the matter could get handled “ASAP.” Munoz also told Felix that Buelna would be at Characters Bar until at least 12:00 or 1:00 a.m. In another phone call at 7:21 p.m., Felix and Munoz discussed Buelna’s presence at Characters Bar. Felix also told Munoz that Polanco was with him. At approximately 7:36 p.m., Felix described the location of Lopez’s residence, indicating that Buelna would be dropped off there. Polanco also said that he wanted the “nine” millimeter handgun. At approximately 9:14 p.m., Felix and Munoz spoke to confirm what time Buelna would be going to Lopez’s residence. At approximately 9:44 p.m., Felix gave Polanco the phone number for Jose Solo Martinez, so that Polanco could coordinate getting a gun from Martinez’s mother’s house.
F. Polanco is arrested
At approximately 10:30 p.m. on the evening of July 22, 2005, a Pomona police detective initiated a traffic stop of Polanco’s vehicle. Polanco was searched, and a small plastic baggie containing an off-white crystalline substance resembling methamphetamine was found in his left shoe. Polanco was arrested for a narcotics violation. The vehicle was later searched and a handgun was recovered from the trunk. However, Polanco was not informed that the gun had been recovered, due to the ongoing investigation.
The next day, at 8:57 a.m., Polanco called Felix from jail and told Felix of Polanco’s arrest. Polanco stated that he believed the gun was still in the car. At approximately 9:35 a.m., Felix told his girlfriend, Ramirez, about Polanco’s arrest. Ramirez told Felix that he had some “sorry ass people trying to do that job” and that she would “fucking just shoot the person myself for you.”
G. The conspiracy continues
On July 25, 2005, at approximately 8:30 a.m., Munoz told Castrejon that he had given Felix details on Buelna’s whereabouts. Castrejon told Munoz to “stay on him.” Later that day, Felix told Munoz about Polanco’s arrest, and Munoz observed that there was heavy police presence around Buelna which Polanco would have “ran right into.”
At approximately 10:01 p.m., Polanco telephoned Felix and they discussed trying to find the gun in the rental car. Polanco described where he had hidden the gun in the trunk.
On July 26, 2005, at 1:04 p.m., Munoz spoke with an unidentified male and explained that Polanco had lost the “gat” or gun. He also stated that he had to explain the loss of the gun to Castrejon. On July 28, 2005 at 4:58 p.m., Munoz spoke with a male named “Benny” and told him that “they” had lost the gun and that “they” did not want to tell Castrejon. Benny responded that “someone is gonna get disciplined.”
The following day, at 4:28 p.m., Munoz spoke with Felix and asked if Castrejon knew about Polanco’s arrest and the loss of the gun. Munoz stated that he would tell Castrejon that Polanco “got violated on the job” and that Felix still had the gun with the silencer. Munoz called Castrejon and told him that Polanco was “caught.”
On July 30, 2005, at 6:56 p.m., Munoz spoke to Castrejon. They talked about how Felix had not done “what he was going to do” and Munoz stated that Felix’s mother had died. Castrejon responded, “excuses are like asses; everybody has one.” Munoz told Castrejon that he had told Felix to leave “the thing” in case they “get someone else to do this job.” Agent Barker interpreted this conversation as Munoz making excuses for Felix to Castrejon as to why things did not work out. Munoz was also telling Castrejon that he had instructed Felix to make sure that the gun with the silencer was still available to complete the conspiracy.
H. Felix is arrested
On August 11, 2005, Munoz told Castrejon about a heavy law enforcement presence around the home of Lopez.[6] Castrejon asked whether Felix had dropped off the gun.
Later that day, Felix’s residence in Montclair was searched pursuant to a search warrant. Three to four bindles of a tacky black substance believed to be tar heroin were found, along with a sandwich bag containing a substance believed to be methamphetamine. A large semi-automatic nine-millimeter Beretta, and a .22-caliber Beretta pistol with a silencer were also found. Law enforcement also observed correspondence and Sharkies paraphernalia. Felix was arrested.
I. Garcia is arrested
On August 13, 2005, at 5:28 p.m., during a telephone conversation, Garcia informed Castrejon that Felix had been arrested and that there was heavy law enforcement presence. Garcia added that he planned to talk to Partida about further details and would meet with Castrejon sometime soon.
On April 21, 2006, Garcia, Buelna and a number of other individuals were arrested as part of the fishnet operation. Many were charged with various charges such as drug trafficking.
J. Buelna’s murder
Buelna was killed in November of 2007. There is no evidence connecting defendants to that killing.
2. Defense case
Felix rested on the state of the evidence.
Polanco did not present any affirmative defense by way of evidence. However, defense counsel argued to the jury that Polanco’s repeated excuses indicated that he never intended to kill Buelna.
Garcia called Jeffrey Roberts and Clay Partida. On June 18, 2005, Roberts, Clay Partida, Garcia and others attended a car event at a shopping center and a subsequent meeting of car enthusiasts at a park from 6:30 p.m. until 10:30 p.m. Earlier in the day, from 1:00 p.m. until they left for the car event, Garcia was with Clay Partida, helping him with an errand.
Defendants did not testify in their defense.
DISCUSSION
I. Sufficiency of the evidence
Each defendant argues that the evidence was insufficient to prove beyond a reasonable doubt that he was guilty of conspiracy to commit murder. We address each defendant’s argument separately, and conclude that sufficient evidence existed to support the convictions.
A. Legal requirements for conspiracy
A conspiracy requires: (1) an agreement between two or more people; (2) who have the specific intent to agree to conspire to commit an offense; (3) with 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. Morante (1999) 20 Cal.4th 403, 416.) The unlawful agreement which is at the core of the conspiracy charge need not be explicit or expressed in words but may consist of a tacit mutual understanding to commit a crime. (People v. Vu (2006) 143 Cal.App.4th 1009, 1025.) Thus, the existence of an unlawful agreement may be inferred from conduct, relationships, interests and activities of the alleged coconspirators before and during the alleged conspiracy. (People v. Gonzalez (2004) 116 Cal.App.4th 1405, 1417.) The agreement may be established by circumstantial evidence, and the overt acts charged as part of the conspiracy may be circumstantial evidence of its existence. (People v. Herrera (1999) 70 Cal.App.4th 1456, 1464.)
One need not be a member of a conspiracy from its inception but may join after it is formed. One who joins a conspiracy after it is formed, and actively participates in it, adopts the previous acts and declarations of his fellow conspirators. (People v. Aday (1964) 226 Cal.App.2d 520, 534.) It is not necessary that all the conspirators fully comprehend the scope of the conspiracy. (People v. Cooks (1983) 141 Cal.App.3d 224, 312.) However, the defendant must harbor the express intent to kill the victim. (People v. Petznick (2003) 114 Cal.App.4th 663, 681 (Petznick).)
B. Standard of review
We review defendants’ sufficiency of the evidence claims to determine whether any rational trier of fact could have found proof of guilt beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 318.) This inquiry “does not require a court to ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ [Citation.]” (Id. at p. 319.) “Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.]” (Ibid.)
We must view the evidence in light of the whole record. (People v. Johnson (1980) 26 Cal.3d 557, 577.) We may not limit our appraisal to isolated bits of evidence selected by the respondent. We must determine whether the evidence supporting each of the elements of the crime is substantial. (Ibid.) To be substantial, evidence must be of ponderable legal significance, reasonable in nature, credible and of solid value. (People v. Raley (1992) 2 Cal.4th 870, 891.)
“‘[I]f the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder. [Citations.]’ [Citation.]” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
C. Garcia
Garcia argues that there is insufficient evidence to support a finding that he entered into an agreement with the other participants to murder Buelna. Garcia emphasizes that one who merely associates with members of a conspiracy, but who does not intend to commit the crime, is not a member of the conspiracy. Citing CALCRIM No. 563, Garcia argues that evidence that a person did an act or made a statement that helped accomplish the goal of the conspiracy is not enough, in and of itself, to prove that the person was a member of the conspiracy.
Garcia explains that the prosecution’s theory was that Garcia, as an Eme member and associate of Castrejon, was at certain times directing the plot to kill Buelna. However, Garcia points out, the fishnet surveillance uncovered many layers of criminal activity, mostly related to drugs or the taxation of drug dealers. In addition, the wiretapped conversations were often in code or in terms so vague that they could have many meanings related to many different activities. Finally, he argues, Garcia was heard in only a few conversations between April 13, 2005 and June 24, 2005. He was not heard again until a few conversations with Castrejon on August 13 and 14, 2005. These conversations were only to report to Castrejon regarding the various arrests, including that of Felix. Garcia argues that while others were actively attempting to murder Buelna, Garcia was not, and had not for some time, been in communication with them. In sum, Garcia argues that any evidence to support his involvement in the conspiracy to kill Buelna was merely speculative.
We find Garcia’s arguments unpersuasive. The jury was presented with evidence of numerous wiretapped conversations involving Garcia, including a call with Polanco which took place on April 13, 2005, in which Garcia indicated “we’re gonna try to -- uh, handle that shit today and shit.” Another call occurred on April 14, 2005, during which Garcia told Polanco: “I’ll get somebody pick you up ‘cause we’re gonna try to do that right now.” Following this phone call, Polanco met up with an unidentified coconspirator who drove Polanco to the area of Buelna’s residence. The murder did not take place on that date, apparently because Polanco was confused about the precise location of Buelna’s residence. However, the following day, April 15, 2005, Garcia called Polanco to apologize about the miscommunication from the previous night. Garcia was observed on other occasions in May and June 2005, meeting with Felix. Observation of Garcia ended in late June 2005 after he realized that he was under surveillance.
Garcia points out that the wiretapped conversations he participated in were coded and vague. However, Agent Barker specifically opined as to the meaning of these coded conversations, based on his extensive experience working with gang related crimes. The jury was entitled to give weight to these interpretations. While none of Garcia’s communications with Polanco specifically articulated the plot to murder Buelna, the jury had a basis to infer that these communications revealed Garcia’s participation in the conspiracy to murder Buelna. (See People v. Vu, supra, 143 Cal.App.4th at p. 1025 [“To prove an agreement, it is not necessary to establish the parties met and expressly agreed.” A tacit mutual understanding is sufficient].) The information presented to the jury was far from speculative. It was based on actual conversations and activities carried out by Garcia, as interpreted by a specialist.
Garcia’s disappearance from the surveillance activity of his coconspirators in late June 2005 does not exonerate him. As set forth in People v. Sconce (1991) 228 Cal.App.3d 693, even if Garcia had withdrawn from the conspiracy in June 2005, he remains criminally responsible for the original conspiracy. “[O]nce an overt act has been committed in furtherance of the conspiracy the crime of conspiracy has been completed and no subsequent action by the coconspirator can change that.” (Id. at pp. 701-702.)
Sufficient evidence existed to support the jury’s conclusion that Garcia participated in the conspiracy to kill Buelna.
D. Felix
Felix argues that there was no evidence that he specifically intended to kill Buelna. Felix characterizes his involvement as that of an “intermediary” and as such, it was his role to make sure Polanco did as he had been instructed. However, Felix points out that instead of insuring that Polanco did as he had been instructed, Felix instead listened to excuse after excuse from Polanco. Felix lists numerous examples of interactions with the coconspirators which could have been interpreted as Felix’s acceptance of excuses and neglect of his obligation to ensure that the murder of Buelna was carried out.
Felix focuses on the events of July 16, 2005, as “the most telling” of the evidence. On that date, Munoz came into the picture. Felix had Polanco with him and asked Munoz whether Polanco had “someone to roll with.”[7] Munoz replied that he thought Felix was going to accompany Polanco. However, Felix made it very clear that he had no intention of “rolling with” Polanco and that they needed to meet and get on the same page. Felix argues that if he had the specific intent to kill Buelna, he would have “rolled with” Polanco that night. Instead, Felix argues, he hid behind Polanco’s excuses for months.
While Felix’s argument sets forth a plausible interpretation of the events, it is not the only interpretation. As Felix points out, his trial attorneys asked the jury to interpret the facts presented by the prosecution as a series of excuses designed to avoid carrying out the task of murdering Buelna. The prosecution, on the other hand, asked the jury to interpret the evidence as demonstrating Felix’s intent to actually carry out that murder, despite the various setbacks that the coconspirators encountered. The jury was entitled to believe, as the prosecution argued, that the conspiracy was ineffective due to the presence and actions of law enforcement -- not due to purposeful avoidance on the part of the coconspirators. Ultimately, the jury concluded that the overwhelming evidence of Felix’s involvement in the plot supported the conclusion that Felix intended to kill Buelna, beyond a reasonable doubt.
Felix’s citation to Petznick does not persuade us that reversal of the jury’s verdict is warranted. Petznick involved four defendants, tried and convicted for conspiracy to commit murder. There was some evidence that Petznick did not have the requisite intent to kill. On appeal, Petznick argued, among other things, that the trial court’s response to a jury question erroneously allowed the jury to find him guilty of conspiring to commit murder without finding that he entered the conspiracy with the specific intent to kill. (Petznick, supra, 114 Cal.App.4th at p. 678.) The Court of Appeal agreed.
Felix argues that although Petznick did not involve a sufficiency of the evidence claim, the court nonetheless reversed based on the equivocal evidence of Petznick’s intent to kill. The court speculated, “[t]he jury could have construed [the] evidence as showing that defendant’s previous talk about shooting or killing [the victim] was more posturing than serious and that the realization that his companions were actually capable of murder made him reluctant to be involved at all.” (Petznick, supra, 114 Cal.App.4th at p. 682.)
Here, in contrast, the jury was given proper instructions and was specifically asked to construe the evidence as exhibiting a reluctance to kill. In weighing the overwhelming evidence of Felix’s participation in the plot to kill Buelna, the jury determined that he did, in fact, have the specific intent to kill. Sufficient evidence supported this decision.
E. Polanco
Like Felix, Polanco argues that the evidence that he specifically intended to kill Buelna is legally insufficient. While admitting that he accepted the mission that the Eme ordered him to carry out, Polanco argues that he did so because he did not dare refuse. Thereafter, Polanco argues, what he did over and over again, was to pretend to be willing to carry out the crime. Instead of ever actually killing Buelna, he offered excuse after excuse, never getting the job done.
Polanco lists the events which he insists show a lack of the requisite intent. First, he pretended to misunderstand the mission. Then, he stated that he did not have a car. Next, he indicated that he did not have gas money, and when given a ride, he pretended to be confused about exactly where Buelna lived. On other occasions, he informed Felix that he was too drunk, it was Father’s Day, or that there were too many law enforcement officers around. Polanco even gave up what he characterizes as “golden opportunities” to kill Buelna for various reasons. In sum, Polanco argues, the evidence of these repeated excuses establishes that he never intended to kill Buelna.
Again, what Polanco presents is only one possible interpretation of Polanco’s actions. The jury was entitled to infer from the evidence that Polanco in fact intended to kill Buelna, and that his excuses were real. Polanco went so far as to obtain a weapon and scope out Buelna’s residence on more than one occasion. The jury simply did not believe that he was only pretending, and sufficient evidence, set forth in detail above, supported the jury’s conclusion that Polanco did in fact intend to kill Buelna.
II. The reference to Buelna’s murder
Buelna, the target of defendants’ conspiracy, was murdered one year and seven months after the last of the defendants, Garcia, was arrested and jailed. Buelna’s murder remains unsolved. All three defendants argue that Agent Barker’s reference to Buelna’s murder in his testimony deprived them of the right to a fair trial.
A. The motion for mistrial
Following voir dire, and out of the presence of the jury, Garcia’s trial attorney asked that Buelna’s death “not be mentioned to the jury.” Garcia’s attorney explained that such information “could be used by the jury to unfairly infer that these gentlemen had something to do with that even though they’re in custody.” The prosecutor disagreed, arguing that the jury should be informed that Buelna was “unavailable to testify and will not be testifying at trial” due to his death. The prosecutor was concerned that “there might be inquiries as to where he is and why isn’t he a part of this trial.” Polanco’s trial attorney responded that he believed that Buelna’s death was relevant and that the jury should be made aware that Polanco was in custody at the time of Buelna’s death. Felix’s attorney expressed similar sentiments. The court deferred ruling on the matter, ordering that there be “[no] reference to [Buelna’s] whereabouts” and that the issue would be revisited “when the People are about to rest.”
During the cross-examination of Agent Barker by Polanco’s attorney, Agent Barker was asked how many bodyguards accompanied Buelna. When asked whether Buelna was ever seen with three body guards, Agent Barker responded, “The only thing I know is when Mr. Buelna ultimately was murdered, he had two people with him.” No objections were lodged by any party at that time, and cross-examination continued uninterrupted. The prosecution conducted redirect of Agent Barker, then a 10-minute recess was taken by the court.
During the recess, Felix’s attorney noted that “Officer Barker sort of gratuitously let it out that Frankie Buelna has been killed or murdered” and asked that the court declare a mistrial. Counsel for Garcia and Polanco joined the motion. The trial court denied the motion, indicating that the jury would be “instructed that the defendants were incarcerated” at the time of Buelna’s killing and that there was “no evidence to connect these defendants with that killing.” The prosecutor noted, “That’s fair,” and Felix’s attorney said “Yes.”
When the jury returned, the court made the following statement:
“Ladies and gentlemen, during the examination of . . . Mr. Barker by [counsel], there was testimony that indicated that Mr. Buelna was ultimately murdered. Ladies and gentlemen, we are involved in matters that occurred in early 2005. The defendants, the evidence will show, were arrested, one in July of 2005, and the other in August of 2005, and the last in April of 2006, and have been in custody since that time. Mr. Buelna was killed in November of 2007; and there is no evidence connecting these defendants with that killing. You are not to draw any inference from the fact that Mr. Buelna lost his life in November of 2007.”

B. Relevant legal standards
A motion for mistrial should only be granted where an error causes prejudice which is incurable by admonition or instruction. (People v. Haskett (1982) 30 Cal.3d 841, 854.) The trial court has considerable discretion in determining whether an incident is incurably prejudicial. Thus, its ruling is reviewed under the deferential abuse of discretion standard. (People v. Hines (1997) 15 Cal.4th 997, 1038.) An abuse of discretion occurs when the trial court makes a ruling that is arbitrary, capricious, or exceeds the bounds of reason. (People v. Carbajal (1995) 10 Cal.4th 1114, 1121.)
C. No abuse of discretion occurred
The purpose of the reference to Buelna’s murder, defendants argue, was to improperly suggest that defendants must have conspired to murder Buelna, since they ultimately succeeded. Furthermore, the entire case was based on an individual’s ability to have someone killed, even if incarcerated. The reference to Buelna’s murder, defendants argue, raised the inference that defendants still managed to have Buelna killed even though they were incarcerated.
Defendants argue that the evidence of Buelna’s death was inadmissible under Evidence Code section 1101, subdivision (a). Under that statute, introduction of other offenses or bad acts as character evidence, or to show a propensity to commit crimes in general, is prohibited. Defendants argue that Buelna’s murder could not possibly have been admissible under section 1101, since all three defendants were in custody at the time. Even if it were relevant under section 1101, Evidence Code section 352 required its exclusion because the probative value of the evidence was outweighed by its probable prejudicial impact upon the jury.
As set forth above, we are not reviewing an evidentiary ruling by the trial judge, but a motion for mistrial. It is undisputed that the trial court ordered that no reference be made to the murder of Buelna until the court had further considered the issue. The only remaining question is whether Agent Barker’s statement was incurably prejudicial.
Given the evidence in the case, we find that the trial court did not abuse its discretion in determining that the error was not incurably prejudicial. Polanco and Felix were arrested in July and August 2005, and Garcia was arrested in April 2006. None of the defendants points to any evidence suggesting that they attempted to perpetuate the conspiracy after they were all incarcerated. Nor was there any evidence connecting any of the defendants to Buelna’s murder in November 2007. In other words, the prosecution made no effort to prove that the conspiracy was successful. Under the circumstances, the jury had no reason to connect the conspiracy involving defendants to the death of Buelna, an active gang member himself.
Furthermore, the court specifically instructed the jury to draw no inferences from Agent Barker’s statement. “As a general matter it must be presumed that the jurors observed and applied the instructions given them. [Citations.]” (People v. Adcox (1988) 47 Cal.3d 207, 253.) Thus, not only did the prosecution fail to make a connection between the defendants and Buelna’s death, the jury was specifically instructed not to make such a connection. The jury had absolutely no reason to believe that the conspiracy was successful. In fact, the evidence of Buelna’s murder one year and seven months after the last defendant was incarcerated may have had a favorable effect, by showing that the defendants were not responsible for Buelna’s murder and that they were not integral to any conspiracy to carry out that murder.
Defendants point out that the effectiveness of jury instructions such as the one given by the court has been called into question. Defendants point to People v. Gibson (1976) 56 Cal.App.3d 119, where the court commented: “It is the essence of sophistry and lack of realism to think that an instruction or admonition to a jury to [ignore] highly prejudicial [other crimes] evidence . . . can have any realistic effect. . . . We live in a dream world if we believe jurors are capable of hearing such prejudicial evidence but not applying it in an improper manner.” (Id. at p. 130.) We are not persuaded by this argument on these facts. The murder of Buelna was not connected to any of the defendants. In fact, because they were all incarcerated at the time of the murder, it was highly unlikely that the jury would infer that any of them played a significant role in carrying out that crime. The mention of Buelna’s murder did not cause significant prejudice, and the court’s admonition to the jury was sufficient.
McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378, is distinguishable. The evidence at issue was “loosely . . . termed ‘other acts’ evidence.” (Id. at p. 1380.) There was evidence that McKinney, whose mother’s throat was slit with a knife, had possessed knives in the past. (Ibid.) The Ninth Circuit analyzed the evidence, and concluded that it did not tend to prove a fact of consequence. Instead, it only proved that the defendant was the “type of person who would own a knife.” (Id. at pp. 1382-1383.) In addition, evidence that McKinney at times in the past wore a knife when wearing camouflage, and that he scratched the words “Death is His” on the door to his dormitory room closet, was irrelevant to the question of whether he killed his mother. (Ibid.) The evidence of Buelna’s murder, over a year after the incarceration of all three defendants, is different. It does not tend to prove anything about defendants’ personalities or their propensity to commit crimes. There was no suggestion that they committed the murder, and it would have been impossible for any of them to have done so.
The trial court acted well within its discretion in determining that the statement was not incurable error, and by admonishing the jury to draw no inferences from it. The error was effectively cured and reversal is not warranted.
III. Garcia’s motion to strike his prior felony conviction
Garcia argues that the trial court abused its discretion in denying his motion to strike a prior felony conviction for the purposes of the Three Strikes law.[8] Garcia argues that the trial court exhibited an antipathy toward Garcia, and failed to consider defendant as an individual. Garcia argues that the evidence showed limited involvement in the conspiracy by Garcia. In addition, his prior strike occurred some 14 years before, and he had only one drug conviction subsequent to the prior strike. These factors, Garcia argues, place him outside of the spirit of the Three Strikes law.
A. Relevant legal standards
Section 1385 provides that a court may dismiss an action in the furtherance of justice. This section applies to striking prior felony convictions alleged as strikes (Romero, supra, 13 Cal.4th at pp. 529-530).
In People v. Williams (1998) 17 Cal.4th 148, 161, the California Supreme Court clarified the standard for striking a prior conviction under the Three Strikes law:
“The court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies. If it is striking or vacating an allegation or finding, it must set forth its reasons in an order entered on the minutes, and if it is reviewing the striking or vacating of such allegation or finding, it must pass on the reasons so set forth.”

In People v. Carmony (2004) 33 Cal.4th 367, the California Supreme Court made it clear that there is a “legislative presumption that a court acts properly whenever it sentences a defendant in accordance with the three strikes law. [Citation.]” (Id. at p. 376.) Extraordinary circumstances must exist before a career criminal can be deemed to fall outside of the spirit of the Three Strikes law. (Id. at p. 378.)
A reviewing court will reverse a trial court’s exercise of its discretion to strike a prior felony conviction only if an abuse of discretion is apparent. Such an abuse will be found only when the trial court makes a ruling that is arbitrary, capricious, or exceeds the bounds of reason. (People v. Carbajal, supra, 10 Cal.4th at p. 1121.) In the context of the Three Strikes law, we will reverse a trial court’s decision not to dismiss or strike a prior serious felony conviction only where no reasonable people could disagree that the criminal falls outside of the Three Strikes scheme. (People v. Carmony, supra, 33 Cal.4th at p. 378.) Only where the relevant factors set forth in People v. Williams, supra, 17 Cal.4th 148, manifestly support the striking of a prior conviction, and no reasonable minds could differ, would the failure to strike a prior constitute an abuse of discretion.
B. No abuse of discretion occurred
This case does not present the type of extraordinary circumstances required for a deviation from the Three Strikes law. The trial court acknowledged that the prior conviction had occurred many years before, and understood that it had “to be concerned about how long ago that strike prior occurred.” The court noted that within a matter of months after being paroled, Garcia was once again convicted and “committed to the Department of Corrections.” In addition, the court noted that while he was incarcerated, Garcia “formed alliances with certain individuals [and] became a part of an organized systematic group of individuals who have no purpose other than the promotion of their ideals and objectives which are far from being lawful endeavors.” Finally, the court noted that the crime for which Garcia had been convicted “involves the most serious of crimes and that is the assassination of a human being [and] the recruitment of multiple individuals to carry out that crime.”
Garcia cites People v. Bishop (1997) 56 Cal.App.4th 1245, as an example of the circumstances under which striking prior felony convictions is appropriate. The crime at issue was the theft of six video cassettes from a store. Prior to trial, the defendant asked the court to exercise its discretion to dismiss two of his prior strikes “in furtherance of justice” under section 1385, subdivision (a). He argued that he was deserving of leniency because his convictions involving violence were remote in time and his present offense was “petty.” Moreover, as a second strike defendant, he would still receive the very substantial state prison sentence of 12 years. (Bishop, at p. 1248.) The Court of Appeal affirmed the trial court’s decision to grant dismissal of two of the defendant’s strikes, noting that the trial court’s decision was based on “individualized consideration of Bishop’s background and present circumstances.” (Id. at p. 1250.) On the record before it, the Court of Appeal could not say that the trial court’s decision was an abuse of discretion. (Id. at p. 1251.)
Here, the trial court made a similar individualized consideration of Garcia’s background and concluded that there were “no factors mitigating” Garcia’s involvement in the crime.[9] Under the circumstances, the court’s decision was reasonable, therefore we affirm.
DISPOSITION
The judgments are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


____________________________, J.
CHAVEZ

We concur:



______________________________, P. J.
BOREN



______________________________, J.
ASHMANN-GERST


Publication Courtesy of California free legal resources.
Analysis and review provided by Spring Valley Property line attorney.
San Diego Case Information provided by www.fearnotlaw.com

---