Filed 4/26/13 P. v. Reyes CA5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
>
THE PEOPLE, Plaintiff and Respondent, v. ALMA DELIA REYES, Defendant and Appellant. | F062305 (Super. Ct. No. VCF209407E) |
APPEAL from
a judgment of the Superior Court
of
County. Joseph A.
Kalashian, Judge.
Han N.
Tran, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and
John W. Powell, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
A jury convicted appellant Alma Delia Reyes of 14 various
felony and misdemeanor offenses, all pertaining to real estate transactions
where Reyes, a realtor, misrepresented clients’ income and other information in
loan applications and misrepresented information about the real property in
order to obtain loan financing and complete a sale. She challenges her conviction on one
misdemeanor count, false statement by a real estate agent, on the basis of
evidence. Reyes also raises multiple
challenges to her sentence on the basis of Penal Code section 654.
judgment contains errors and must be corrected.
The People essentially concede the issues raised by Reyes.
We will
reverse the count 24 conviction on the basis of instructional error and remand
for resentencing in conformance with this opinion and with directions that any
terms of imprisonment imposed on counts 2, 5, 8, 12, 21, 22, 23, and 26, as
well as the section 12022.6 enhancements appended to counts 5, 12, and 26
should be stayed pursuant to section 654.
FACTUAL AND PROCEDURAL SUMMARY
During 2004
and 2005, real estate prices were increasing dramatically. Many lenders and brokers were granting
“stated income loans†during this time.
For a stated income loan, the borrower was required to state his or her
occupation and income on the loan application; this information often was not
verified. A loan officer was supposed to
verify employment, but generally would not verify income against tax returns or
other financial documents.
Reyes acted
as the real estate agent for Clarita Rios and Leonel Sanchez (sometimes
referred to as the couple) in their purchase of five properties—Dickran Drive,
Spruce, Foster Drive, Tyson Avenue, and Terra Bella—and was their agent in the
subsequent sales of the Dickran Drive, Foster Drive, and Spruce properties. With Reyes as their realtor, Rios and Sanchez
would buy five properties in the span of about five or six years. When Rios and Sanchez obtained loans to buy
the properties, several times the loan applications had been completed by
someone else before they were asked to sign documents. On other occasions, the couple signed blank
loan application documents and the documents were filled in later by someone
else.
Reyes also
acted as real estate broker for Alejandra Ramirez and her husband Ricardo Velazquez
in a series of real estate deals.
Rios and
Sanchez were husband and wife. Rios had
a high school education; Sanchez spoke primarily Spanish and had not completed
school beyond the elementary grade levels.
Sanchez worked for Bosman Dairy and had never made more than $3,200 per
month. Rios was a homemaker.
Drive
In 2001 or 2002, Reyes helped Rios
and Sanchez purchase their first home on Dickran Drive. Sanchez’s brother had to cosign the loan
because the couple did not qualify based on Sanchez’s income alone. The monthly payment was $600 to $800 per
month. Rios and Sanchez rented out the Dickran
Drive property and continued living on the Bosman
dairy, where they were provided a home as part of Sanchez’s employment
benefits.
Sometime
after 2005, the Dickran Drive
property was sold. The couple netted
around $30,000 in profit from the sale.
Reyes was the agent in the sale and made a commission.
About two
years after they bought the Dickran property, Reyes told Rios and Sanchez about
property for sale on Spruce. The couple
decided to buy the property and move into the house. This property was larger than the Dickran
Drive property.
The Dickran Drive
property was refinanced and the cash from the refinance was used as the down
payment on the Spruce property. The
monthly mortgage payments on the Spruce property were between $1,300 and
$1,500.
The loan application for the Spruce
property incorrectly stated Sanchez’s income as $6,500 and overstated the
couple’s personal property. When Rios
pointed out to Reyes that a number of items on the loan application were
incorrect, Reyes told her that lying on the loan application was the only way
for them to own a home. Reyes assured
Rios the banks did not care about the values as long as the loan payments were
made.
At the suggestion of Reyes, Sanchez
was the sole purchaser on the documents and Rios signed a grant deed to convey
her interest in the property to Sanchez.
After renting out the Spruce property for several months, Rios and
Sanchez moved into the house in mid-2005.
Around this time, Sanchez quit his job and took a seven-month
vacation.
The Spruce property was sold not
long after, netting a profit of between $25,000 and $50,000. Again, Reyes was the agent on the sale and
made a commission.
Drive
In January 2005, Reyes told Rios
and Sanchez about the Foster Drive
property and the couple purchased it less than two months after purchasing the
Spruce property. The Foster
Drive property had three houses on it. The loan application used to purchase the Foster
Drive property stated that Rios had an income of
$8,500 per month. Rios and Sanchez
rented out the houses on the Foster Drive
property. At some point, some of their
tenants failed to pay rent and were forced to move out.
At this
time, Rios and Sanchez owned three properties, Dickran
Drive, Spruce, and Foster
Drive. The
total combined mortgage payment for all three properties was approximately
$4,000 per month. They were collecting
rent of about $1,900 from the Foster Drive and Dickran properties. Sanchez again began working at the dairy and
was earning a salary of around $1,500 to $1,600 per month.
Five months after purchasing the
Foster Drive property, Rios and Sanchez wanted to sell it. Rios told Reyes she wanted to sell it for
$499,000. It ended up selling for
approximately $449,000 and made a profit of approximately $85,000 for Rios and
Sanchez.
Avenue
In September 2005, Reyes contacted
Rios about property on Tyson Avenue for sale.
Reyes described the property as a “fixer-upper†available for a low
price. The couple purchased the Tyson
Avenue property for $120,000. The loan
application for the Tyson Avenue property stated too high a figure for
Sanchez’s income, overstated the value of the couple’s personal property
assets, and incorrectly stated Sanchez’s job at the dairy as a breeder.
Bella
In 2006 Reyes contacted Rios and
told her of property in Terra Bella that was large and where animals could be
kept. In September 2006, Rios and
Sanchez purchased the property. Reyes
told the couple the Terra Bella property needed to be purchased in Rios’s name
alone. Reyes instructed Sanchez to sign
a deed conveying any interest he had in the property to Rios.
The loan application for the Terra
Bella property contained numerous inaccuracies, including a false work history
and employment income for Rios. The
application stated Rios had a base income of $7,250 and a monthly income of
$9,730, with cash in the bank of $22,000.
Rios told Reyes all this information was false, but Reyes told her not
to worry as long as the payments on the loan were made. The mortgage payments on the Terra Bella loan
were about $3,000 per month.
Events
Despite selling the Dickran Drive,
Spruce, and Foster Drive properties, Rios and Sanchez were unable to keep up
with the remaining mortgage payments and the Tyson Avenue and Terra Bella
properties went into foreclosure. Rios
and Sanchez ended up owing over $16,000 in back taxes and having no
assets. When police began investigating
the transactions, Reyes told the couple not to speak to the police.
B.
Ramirez and
Velazquez Transactions
Ramirez and Velazquez lived in
Stockton and spoke very little English.
They owned a three-bedroom home in a working class neighborhood. Ramirez made $9.00 per hour as a nurse’s
assistant; Velazquez made about $1,500 a month as a janitor.
Ramirez met Reyes at the home of a
family member. Ramirez told Reyes she
was considering moving to Tulare to attend school and was interested in a
rental; Reyes told her to buy instead.
Oak
In July 2005, with Reyes as her
agent, Ramirez purchased property on River Oak in Porterville. Reyes told Ramirez she should purchase the
property in her name alone. Reyes gave
Ramirez a stack of papers to sign and a brief summary of the documents she was
signing.
People were living on the property
when Ramirez purchased it and Reyes told Ramirez they would be paying
rent. After two or three months, Ramirez
told Reyes she wanted the tenants to move out so she could move onto the
property.
Drive
Shortly after purchasing the River
Oak property, Reyes contacted Ramirez and told her of another property for sale
on Foster Drive. This was the same
property Reyes had sold to Rios and Sanchez that was now for sale again. Reyes told Ramirez there were three houses on
the property -- one for Ramirez to live in and two that Reyes could rent out
for her. Reyes did not tell Ramirez that
the two rental houses lacked proper permits and legally could not be
rented. Reyes did tell Ramirez that all
the houses currently were rented, generating $600, $800, and $1,200 per month
in rental income between all three houses.
Based upon this information, Ramirez expected to collect around $2,000
per month in rent.
Reyes told Ramirez that Velazquez
was qualified to purchase the Foster Drive property and that they could sell or
rent out the River Oak property in order to afford the Foster Drive
property. Reyes told Ramirez and
Velazquez their monthly payment for the Foster Drive property mortgage would be
around $2,800 per month.
While waiting for the sale to be
completed, Ramirez was admitted to nursing school in Stockton and no longer
wanted to purchase the Foster Drive property.
Ramirez repeatedly tried to contact Reyes. When she finally reached her, Reyes told
Ramirez she would lose her $5,000 deposit if she failed to follow through on
the purchase.
Reyes began pressuring Ramirez to
follow through on the purchase and told Ramirez the seller was in the hospital
and dying. At some point, a letter was
sent to the mortgage office by someone claiming to be Velazquez; the letter was
in perfect English. Velazquez never sent
or signed the letter.
One Sunday afternoon, Reyes called
and asked Ramirez for her home address because she was on her way with
documents for her to sign. She told
Ramirez to have $3,000 cash ready for her when she arrived. Reyes arrived around 8:00 or 9:00 p.m., along
with her assistant/notary Nelda Garcia.
As soon as they arrived, Ramirez
was asked to take Reyes to a copy store to make copies; Garcia stayed with
Velazquez. Garcia told Velazquez to sign
the stack of documents she had brought with her and that the documents would be
explained to him when Reyes and Ramirez returned. Velazquez signed.
Ramirez and Reyes returned without
Reyes having made any copies. Garcia was
waiting outside and told Ramirez she and Reyes had to leave. Ramirez exited the vehicle immediately. Garcia told Ramirez that Velazquez had signed
all the documents. Ramirez asked for
copies and asked if all the repairs to the property had been made as
promised. Reyes assured Ramirez it was
“already in writing.â€
When Ramirez and Velazquez arrived
at the title company to sign paperwork for the purchase, they discovered the
purchase price was $50,000 more than they had agreed. Ramirez instructed Velazquez not to sign and
the title company called Reyes. Reyes
called back and told Ramirez the buyer would lower the price and that the
houses would be fixed up and move-in ready as soon as the tenants vacated. Ramirez had been told she could not see the
inside of the houses because the tenants were still living there.
The loan application for the Foster
Drive property contained numerous false statements. The application stated Ramirez and Velazquez
owned a business, made $9,800 per month, had $30,000 in their bank account, and
had $25,000 in personal property assets (furniture). Ramirez and Velazquez never provided any of
this false information to Reyes.
After the sale of the Foster Drive
property closed, Reyes told Ramirez she still could not inspect the property
because the tenants still were in the residence. Eventually, Reyes made an appointment to meet
Ramirez and Velazquez at the Foster Drive property at 9:00 p.m. and hand over
the keys; Reyes handed over the keys and left immediately.
Ramirez and Velazquez went inside
the houses for the first time. One house
was occupied by tenants. When they went
inside the second home, there were no lights and it had a horrible smell. They obtained a flashlight and discovered
both unoccupied houses were uninhabitable:
water leaked from a broken sink, the windows were broken, electrical
wires were exposed, and the carpets were littered with cat or dog feces. Ramirez and Velazquez immediately called
Reyes but were unable to reach her; they tried calling 10 times. The next day they went to Reyes’s home. Although Reyes’s car was in the driveway,
they were told she was not at home.
Ramirez and Velazquez tried to make
payments on the Foster Drive property for the next year but fell behind and
lost the property to foreclosure. They
also were making payments on the River Oak property, where rental income
covered about one-half the monthly mortgage payment. After about three years, Velazquez lost his
job and Ramirez’s work hours were reduced.
They lost this property to foreclosure.
C. Investigation and Trial
In September 2006, Lori Cant, a
friend of Velazquez’s, called the Tulare County District Attorney’s Office and
spoke to Investigator Dwayne Johnson.
Cant reported that she believed Velazquez had been given a fraudulent
loan. Johnson began an investigation of
some of Reyes’s real estate transactions, eventually focusing on the Spruce,
Foster Drive, Tyson Avenue, Dickran Drive, and Terra Bella properties.
Johnson spoke to Reyes about the
Foster Drive property transactions.
Reyes claimed she thought Ramirez and Velazquez could make the mortgage
payments from the rental income, admitted she knew their income was not as
stated in the loan documents, and then retracted that statement, and verified
she had not done any walk-through of the Foster Drive property with Ramirez
and/or Velazquez.
The Office of Real Estate
Appraisers received a complaint from Velazquez alleging that an appraiser,
Richard Gutierrez, had overvalued the Foster Drive property. That office investigated and concluded that
Gutierrez had (1) overestimated both the size of the lot and of the home on the
property; (2) erroneously listed garage footage as living space; (3) failed to
take into account the proximity of the property to an arterial street, which
lowered its value; (4) failed to use comparable real sales of properties
located nearby to help establish value, instead using properties nine or 10
miles away; and (5) fixed a value that was identical to the sales price of
$445,000 when comparable property adjacent to the Foster Drive property had
sold for $261,000 a few days before the sale to Ramirez and Velazquez. The Office of Real Estate Appraisers
concluded that Gutierrez had manipulated the appraisal to facilitate a sale for
$445,000; a subsequent appraisal fixed a value of $263,500 for the Foster Drive
property.
The Tulare County District Attorney
filed criminal charges against Reyes, alleging 18 separate offenses involving
the real estate transactions, including obtaining money, labor, or property
commit the crime of making false financial statements, conspiracy to fraudulently
obtain money or property by false pretenses, filing a false or forged
instrument, false statement by a commissioned real estate agent, and money
laundering. As to multiple counts, it
was alleged that each offense resulted in a loss exceeding $50,000 and that the
aggregate loss exceeded $500,000.
At the close of the People’s
case-in-chief, Reyes moved to dismiss pursuant to section 1118.1. The People dismissed two grand theft counts
and the trial court granted Reyes’s motion to dismiss a residential burglary
count. The motion was denied as to all
other counts.
On August 24, 2010, the jury
convicted Reyes of 14 counts and acquitted on the money laundering charge. As to eight of the counts, the jury found
true that the property loss exceeded $50,000.
No finding was made by the jury as to the aggregate amount of the loss
because no verdict form for this was submitted to the jury.
The trial court pronounced sentence
on February 17, 2011. Probation was
denied and Reyes was sentenced to an aggregate term of three years in prison.
DISCUSSION
Reyes
argues the count 24 conviction for violating section 536, misdemeanor false
statement by a commissioned sales agent, should be reversed for instructional
error and insufficiency of the evidence.
Reyes also contends that because there were only five mortgage
transactions, she can be punished only for five counts and the punishment for
the remaining counts must be stayed pursuant to section 654. Finally, Reyes claims the abstract of
judgment contains multiple clerical errors that should be corrected.
The People
essentially concede that Reyes’s contentions are correct.
I. Count 24 Offense
Count 24 charged Reyes with
violating section 536, misdemeanor false statement by a commissioned
agent. As the People concede, the jury
was not instructed on any of the elements of the offense.
A
trial court has a sua sponte duty to instruct on all of the elements of a
charged offense. (People v. Cummings (1993) 4 Cal.4th 1233, 1311.) A failure to instruct on all of the elements
of an offense is not reversible per se, but is subject to harmless error
analysis under Chapman v. California
(1967) 386 U.S. 18, 24, meaning that the conviction is upheld if it appears
beyond a reasonable doubt that the error did not contribute to the
verdict. (People v. Magee (2003) 107 Cal.App.4th 188, 194.)
A
complete absence of instruction on all elements of an offense will be found
harmless only in unusual circumstances.
(People v. Mil (2012) 53
Cal.4th 400, 414.) Here, there are no
unusual circumstances that would allow us to conclude the complete absence of
instruction on the elements of the offense was harmless. Accordingly, we will reverse the count 24
conviction for instructional error. In
light of the reversal for instructional error, we need not address Reyes’s
other contentions regarding this count.
II. Section 654
Reyes contends that section 654
prohibits imposition of punishment on more than one count for each of the five
real estate transactions because each transaction had one common
objective. Here, the People concede that
the concurrent sentences imposed on counts 2, 5, 8, 12, 21, 22, 23, and 26
should be stayed. After review of the
record, we agree.
Section 654 provides in pertinent
part, “An act or omission that is punishable in different ways by different
provisions of [the Penal Code] shall be punished under the provision that
provides for the longest potential term of imprisonment, but in no case shall
the act or omission be punished under more than one provision.…†The case of Neal v. State of California (1960) 55 Cal.2d 11, 19 stands for the
proposition that, “Whether a course of criminal conduct is divisible and
therefore gives rise to more than one act within the meaning of section 654
depends on the intent and objective of the actor. If all of the offenses were incident to one
objective, the defendant may be punished for any one of such offenses, but not
for more than one.â€
If,
however, a defendant harbors multiple criminal objectives, he or she may be
punished for the independent violations committed in pursuit of each objective
even though they are part of an indivisible course of conduct. (People
v. McGuire (1993) 14 Cal.App.4th 687, 698 (McGuire).) Furthermore, when
a substantive offense is stayed pursuant to section 654, any accompanying
enhancement to that offense also must be stayed. (People
v. Bracamonte (2003) 106 Cal.App.4th 704, 709 (Bracamonte).) In addition,
imposition of a concurrent sentence violates section 654’s prohibition against
multiple punishments. (
592 (Deloza).)
Finally, when both the conspiracy and
the substantive offense are part of an indivisible course of conduct and the
conspiracy has no objective other than the substantive offense, section 654
precludes the imposition of punishment on both counts. (In re
Cruz (1966) 64 Cal.2d 178, 180-181 (Cruz);
People v. Cavanaugh (1983) 147
Cal.App.3d 1178, 1181-1183.)
1 and 2
Counts 1
and 2 were based on the Spruce property transaction. In count 1, Reyes was convicted of obtaining
money, labor, or property by false
pretenses; in count 2, Reyes was convicted of conspiracy to commit the
misdemeanor of making false financial statements. Both offenses pertained to Reyes’s role in
obtaining loan funds through the use of fraudulent loan documents. The evidence established that Reyes had
participated in preparing loan application documents that significantly
overstated income and personal property assets.
In closing argument, the prosecutor argued for conviction on these
counts based on Reyes’s role in assisting Rios and Sanchez in submitting
fraudulent loan application documents in order to obtain the Spruce property
loan.
Both the
count 1 and 2 offenses shared the same criminal objective of obtaining the loan
funds. The count 2 conspiracy to make
false financial statements was incidental to the submission of those false
financial statements to obtain the loan (count 1). Section 654 precludes the imposition of
punishment on both counts 1 and 2. (
180-181.) Further, since a concurrent
sentence violates section 654’s prohibition against multiple punishments (
will order the term imposed on count 2 be stayed.
4 and 5
Counts 4
and 5 were based on the Tyson Avenue property transaction. The loan application documents for the Tyson
Avenue property incorrectly stated income, assets, and Sanchez’s job. The count 4 conviction was for obtaining
money, labor, or property by false
pretenses; count 5 was a conviction for conspiracy to commit the misdemeanor of
making false financial statements. In
urging the jury to convict Reyes on the count 4 and 5 offenses in closing
argument, the prosecutor argued that the fraudulent representations on the loan
documents and the conspiracy were “the same theory.†Here, again, both offenses shared a common
criminal objective to obtain the loan funds.
The object of the conspiracy among Reyes, Rios, and Sanchez in crafting
false financial statements was to obtain funds by false pretenses. Consequently, the count 5 conspiracy count
was incidental to the count 4 offense.
The
punishment imposed for the count 5 offense should be stayed. Likewise, the sentence imposed for the section
12022.6 enhancement appended to count 5 also should be stayed. (Bracamonte,
supra, 106 Cal.App.4th at p. 709.)
7 and 8
The count 7
and 8 convictions were for Reyes’s involvement in the first Foster Drive
transaction of the sale of the property to Rios and Sanchez. The evidence established that Reyes had
helped prepare loan application documents falsely representing that Rios had a
monthly income of $8,500. At trial and
in closing argument, the prosecutor indicated that counts 7 and 8 were based
upon Reyes’s actions in helping Rios and Sanchez prepare and file fraudulent
loan applications in order to obtain the loan to purchase the Foster Drive
property.
Count 7 was
obtaining money, labor, or property by
false pretenses; count 8 was conspiracy to commit the misdemeanor of making
false financial statements. Once again,
the obtaining of loan funds by false pretenses was the direct result of the
object of the conspiracy, which was to make false financial statements. The evidence did not support a conclusion
that there were multiple, independent criminal objectives. (McGuire,
supra, 14 Cal.App.4th at p. 698.)
Imposition of punishment on count 8 should be stayed pursuant to section
654.
25 and 26
Counts 25
and 26 were based on the Terra Bella property transaction. Count 25 was a conviction for obtaining
money, labor, or property by false
pretenses; count 26 was a conviction for conspiracy to commit the misdemeanor
of making false financial statements.
The evidence presented at trial showed that Reyes assisted in preparing
and submitting loan application documents showing a false income, employment,
and bank account balance. In closing
argument, the prosecutor noted that these two counts were based upon Reyes
assisting Rios and Sanchez in filing false loan application documents. The conspiracy was the means through which
the documents were prepared and the loan obtained; both offenses had a single
objective of obtaining the loan. Under
the facts of this case, section 654 precludes imposition of punishment on both
counts. The punishment imposed on the
enhancement appended to count 26 also must be stayed.
10, 12, 21, 22 and 23
These five
Foster transaction -- the sale of the property to Ramirez and Velazquez. The documents submitted in order to obtain
the loan for this transaction included numerous false statements about
Ramirez’s and Velazquez’s income and assets.
Count 10 charged conspiracy to commit the crime of fraudulently
obtaining money, labor, or property by
false pretenses; count 12 was conspiracy to commit the misdemeanor of making
false financial statements; and counts 21, 22, and 23 were for filing false or
forged instruments.
The prosecutor’s closing argument
relates all the conduct surrounding counts 10, 12, 21, 22, and 23 to a single
objective -- the conspiracy to commit the crime of fraudulently obtaining
money, labor, or property by false
pretenses (count 10). The conspiracy to
make misdemeanor false statements and the three counts of filing false or
forged documents were all in furtherance of the count 10 offense.
Therefore, section 654 precludes
imposition of punishment on all five counts.
The punishment imposed on counts 12, 21, 22, and 23 must be stayed, as
well as the punishment for the section 12022.6 enhancement appended to count
12.
Conclusion
The concurrent sentences imposed on
counts 2, 5, 8, 12, 21, 22, 23, and 26 should be stayed pursuant to section
654. (Deloza, supra, 18 Cal.4th at p. 592.) In addition, the punishment imposed for the
section 12022.6 enhancements appended to counts 5, 12, and 26 also must be
stayed. (Bracamonte, supra, 106 Cal.App.4th at p. 709.)
III. Abstract of Judgment
Reyes contends the abstract of
judgment must be corrected as it contains errors: (1) the count 24 offense was listed
erroneously as a felony and as including an enhancement, and (2) section
12022.6 enhancements were listed erroneously as appended to counts 2 and 8. The People concede these errors and also note
that the abstract of judgment erroneously omits the section 12022.6 enhancement
appended to count 5 and lists incorrect dates of the offenses.
Additional modifications to the
abstract of judgment are required in light of our opinion. As we are remanding for resentencing, a new
abstract of judgment will be prepared after resentencing. We note the following corrections:
1.
The section 12022.6 enhancements appended to counts 2 and 8 were found
not true by the jury;
2.
The section 12022.6 enhancement appended to count 5 was found true;
3.
Counts 4, 5, 7, 8, 10, 12, 21, 22, 23 and 24 were committed in 2005;
4.
Counts 25 and 26 were committed in 2006;
5.
The concurrent terms of imprisonment imposed on counts 2, 5, 8, 12, 21,
22, 23, and 26 should be stayed pursuant to section 654;
6.
Terms imposed on the section 12022.6 enhancements appended to counts 5,
12, and 26 should be stayed pursuant to section 654;
7.
The definition of the crime for count 10 should be “Conspiracy Obtaining
Money, False Pretenseâ€;
8. The definition of the crime for count 25
should be “Obtain Money, False Pretenseâ€; and,
9. The time imposed for the count 1 enhancement
should indicate one (1) year.
As we are reversing count 24 for
instructional error, no conviction on that count should be reflected in the
abstract.
DISPOSITION
The count
24 conviction is reversed on the grounds of instructional error. The sentence is vacated and the matter
remanded for resentencing in conformance with this opinion. At resentencing, any terms of imprisonment
imposed on counts 2, 5, 8, 12, 21, 22, 23, and 26, as well as the section
12022.6 enhancements appended to counts 5, 12, and 26, should be stayed
pursuant to section 654.
_____________________
CORNELL, Acting P.J.
WE CONCUR:
_____________________
KANE, J.
_____________________
FRANSON, J.
further statutory references are to the Penal Code unless otherwise stated.
parties disagree on the sufficiency of the evidence to support the conviction
on the count 24 offense. Reyes did make
a section 1118.1 motion in the trial court with respect to count 24, which was
denied. Because a properly instructed
jury has not considered this offense, we decline to rule on the evidentiary
issue.
