People v. Guzman CA6 ( 2016 )

Filed 4/28/16 P. v. Guzman CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H039532
(Santa Clara County
Plaintiff and Respondent, Super. Ct. Nos. 211398 & 211138)
v.
LORENZO GUZMAN,
Defendant and Appellant.
I. INTRODUCTION
After hearing 16 days of testimony and deliberating for a day and a half, a jury
convicted defendant Lorenzo Guzman of all seven charged crimes, including five
separate conspiracies. (Pen. Code, § 182, subd. (a).)1 The jury also found that he had
committed six of the seven crimes for the benefit of, at the direction of, or in association
with the Nuestra Familia (NF) criminal street and prison gang. (§ 186.22,
subd. (b)(1)(A).) The only crime without a gang enhancement was defendant’s active
participation in the NF criminal street gang between April 25, 2002, and April 23, 2009
(the date of his indictment (count 1; § 186.22, subd. (a)).
1
Unspecified section references are to the Penal Code.
Defendant’s trial strategy involved essentially conceding his guilt of the first four
counts, which included three conspiracies in addition to the active gang participation
alleged in count 1. Two of those conspiracies involved defendant establishing a NF
“regiment” in Santa Clara County beginning April 25, 2002. Count 2 alleged that
defendant and 25 other individuals who were members and associates of his regiment
conspired with others to sell methamphetamine between April 25, 2002 and
April 23, 2009. (Health & Saf. Code, § 11379, subd. (a).) Count 3 alleged that defendant
and 12 of those individuals conspired with others to sell phencyclidine (PCP) during the
same time period. (Health & Saf. Code, § 11379.5, subd. (a).) Count 1 alleged that
defendant, along with the 25 individuals named in count 2 and one other, had actively
participated in NF and willfully promoted, further, and assisted in felonious criminal
conduct by gang members.2 Count 4 alleged that defendant and seven other individuals,
five named in count 2, conspired with others to smuggle a controlled substance into a
penal institution between January 1 and June 1, 2007. (§ 4573.)
Defense counsel’s opening statement was vague about which counts and
enhancements he was conceding, stating only, “we believe the evidence will show, and
we agree that Mr. Guzman, my client, has been and is a [NF] gang member.” “The idea
that Mr. Guzman participated in the distribution of drugs for the benefit of the [NF,] in
terms of the exact time period, I’m not going to comment on that. But over a period of
time when he was out on the streets, he was just distributing drugs, primarily
methamphetamine. And he conspired to do that with other gang members. We’re not
contesting that issue. We won’t be contesting that issue. It’s not contestable. It’s a fact.”
2
According to the probation report, by May 29, 2012, the first day of testimony in
this case, 25 of defendant’s codefendants had been convicted of conspiracy.
2
Parts of defense counsel’s closing argument were more specific about the
uncontested charges. “I told you in the beginning of this case that we’re not going to be
contesting the fact that Mr. Guzman is a gang member, a gang leader, even a drug dealer.
We’re not contesting that.” “It’s clear, it’s clear that Mr. Guzman is guilty, and I would
expect you to find him guilty of conspiring with other gang members to distribute drugs.”
“So I would expect that you would find him guilty of those counts, and I would expect
that you probably would find the gang enhancement to be true because it was done in
association with and for the benefit of.” “So I’m conceding, essentially like I did in my
opening statement, there’s a conspiracy to distribute drugs, and this is another issue, and
I’m expecting that you will find Mr. Guzman guilty, at least as those two counts. And
that’s Count One, that’s being actively involved in a criminal street gang. I mean, that’s
One, Two and Three, basically are—basically, I conceded those in my opening
statement.”
Defense counsel was more equivocal about count 4, stating, “I haven’t paid a lot
of attention to the smuggling charge because, I mean, there’s inferences there and [the
prosecutor’s] point is that if [defendant] was involved in any way in that, that there was a
conspiracy to smuggle drugs into the jail. You can listen to the evidence on that, and
then you can decide.” Counsel stated that after telephone conversations conspiring to
obtain PCP, defendant’s brother Greg Guzman ended up in jail with methamphetamine.3
“So perhaps there was a conspiracy, but perhaps there wasn’t.” “It’s a little bit hard to
understand about the PCP . . . , but it’s clear that they were moving drugs. Whether the
drugs were brought into the jail for the sake of the gang or not or personal use, I don’t
3
As we will explain in part II.B, post, the conspiracy was actually to smuggle
PCP and methamphetamine into the Santa Clara County Jail.
3
know. But it says in association with, you might find if it’s been proved and the
subsequent crimes have been proved.”
The only serious challenge to the first four counts that defense counsel made in
closing argument was whether they involved multiple conspiracies or one overall
conspiracy.4 After disputing the remaining charges, defense counsel clarified that he was
asking the jury to “find my client not guilty of . . . Five, Six and Seven.”
Two of these three disputed counts involved conspiracies to assault two
individuals with deadly weapons. (§ 245, subd. (a)(1).) Count 7 alleged that defendant
and Frank Ruiz conspired with others between January 22 and October 27, 2008 to
assault Henry Leyvas, while count 6 alleged that defendant, Ruiz, and another individual
conspired with others between May 1, 2008 and April 23, 2009 to assault Daniel
Cervantes. Count 5 did not allege a conspiracy, but simply that defendant had threatened
his wife with great bodily injury or death between August 1 and 20, 2007. (§ 422.)
After the jury convicted defendant as charged and made a special finding that the
five charged conspiracies “were separate and distinct,” in bifurcated proceedings
defendant admitted allegations of three prior convictions, one for attempted murder and
two for possession of controlled substances. The attempted murder was a serious felony
for which he had been tried separately and served a prior prison term. (§§ 667, subd. (a),
subds. (b)-(i); 667.5, subd. (b); 1170.12.) Defendant had also served prior prison terms
for the possession offenses. (§ 667.5, subd. (b); Health & Saf. Code, § 11370.2,
subd. (c).)
4
Counsel argued, “And I would submit to you that you could—anything that you
can find him guilty of you could infer it was one[,] all one agreement to commit crimes
for the benefit of the NF. [¶] But I think clearly as to Counts Two and Three, which I
conceded, that it was one conspiracy, and it’s because the allegations and the overt acts
are an allegation that the [NF] established a street regiment to go down there and do
that.”
4
A separate indictment charged defendant with being a felon in possession of a
weapon (count 1; § 12021, subd. (a)(1)) and ammunition (count 2; § 12316, subd. (b)) on
January 8, 2007. After the jury verdict, he entered a no contest plea to the weapon
possession charge and admitted a strike allegation with the understanding that the
prosecutor would dismiss the other charge and various enhancements and that defendant
would receive a 16-month consecutive sentence for that offense.
After denying defendant’s motion for a new trial, the court sentenced defendant to
40 years, 4 months in prison. Components of that aggregate include the following
consecutive terms doubled due to defendant’s prior strike.
Count Term Enhancements Term Totals
3; conspiracy to 10 years § 186.22, subd. 4 years upper 14 years
sell doubled upper (b)(1)(A) term
methamphetamine term
6; conspiracy to 1/3 of doubled § 186.22, subd. 1/3 of 5 years 3 years, 8
assault Cervantes 3 year midterm (b)(1)(B) months
7; conspiracy to 1/3 of doubled § 186.22, subd. 1/3 of 5 years 3 years, 8
assault Leyvas 3 year midterm (b)(1)(B) months
2; conspiracy to 1/3 of doubled § 186.22, subd. 1/3 of 4 years 3 years, 4
sell PCP 3 year midterm (b)(1)(A) months
4; conspiracy to 1/3 of doubled § 186.22, subd. 1/3 of 4 years 3 years, 4
import drugs 3 year midterm (b)(1)(A) months
5; criminal threat 1/3 of doubled § 186.22, subd. 1/3 of 5 years 3 years
to wife 2 year midterm (b)(1)(B)
1; active gang 6 year upper
participation term stayed
1A; weapon 16 months 1 year, 4
possession months
§ 667, subd. (a) 5 years 5 years
H. & S. Code, § 3 years 3 years
11370.2, subd. (c)
§ 667.5, subd. (b) 2 years stricken
5
On count 3, the court selected the upper terms for the conspiracy and the gang
enhancement based on defendant’s leadership role, his criminal sophistication, and his
performance on parole.
On appeal defendant contends that the trial court erred in allowing the jury to
decide whether he was involved in five separate conspiracies as charged, or whether
some or all of the charged conspiracies amounted to one overall conspiracy. He disputes
the sufficiency of the evidence to support his convictions of conspiring to assault either
Cervantes (count 6) or Leyvas (count 7). Most of his arguments are directed at his
conviction of threatening his wife (count 5), namely that there was insufficient evidence
of a criminal threat, that the evidence established at most an attempted threat because she
was not frightened, and that the court should have defined causation sua sponte. Most of
defendant’s appellate arguments ask us to accept facts discounted by the trial court or the
jury. Appellate counsel for both sides make some factual arguments not presented to the
jury. For the reasons stated below, we will affirm the judgment.
II. TRIAL EVIDENCE
The contentions on appeal do not require a thorough review of all the evidence
presented in 16 days of testimony. We focus on the evidence relevant to the issues and
arguments on appeal.
A. CONSPIRACIES TO SELL METHAMPHETAMINE (COUNT 2) AND PCP
(COUNT 3)
Evidence that defendant conspired to sell methamphetamine (count 2) and PCP
(count 3) in association with the NF gang between April 25, 2002, and April 23, 2009
also proved his active participation in a criminal street gang (count 1). Several members
of defendant’s regiment and other NF regiments were among those who testified about
the operation of defendant’s regiment.
6
1. Debbie Guzman
Defendant’s ex-wife Debbie Guzman testified that she first met him at a juvenile
ranch when she was about 14 years old.5 He was a year or two younger. In 1992 and
1993 she was convicted and imprisoned for possession of PCP. Incarceration ended her
addiction to PCP.
Debbie lost contact with defendant after her release from the juvenile facility until
2005. Shortly after they met again he moved in with her. His nickname is Lencho. As
they lived together, she learned of his gang involvement. He always carried a lot of
money and he eventually admitted to her he was involved in selling drugs. He was on
parole when they met.
They married in October 2005. She enjoyed the status of being his wife. He was
treated as a minor celebrity in nightclubs. After they married, defendant told her he was
in Category II of the NF and ran the local streets. He once said a wife could not testify
against her husband.
Defendant sometimes brought her along when he picked up money and dropped
off drugs. She attended some of his meetings with leaders of other local NF regiments,
including Charlie “Brown” Campa, Sammy “Black” Ramirez, and Marco “Red” or
“Huero” Abundiz. When defendant met with other regiment leaders, Ramirez talked
about messages he had received from the NF leadership in Pelican Bay State Prison
saying defendant had not been communicating with them and “hasn’t paid his dues . . . .”
According to Debbie, defendant was supposed to be sending money orders to gang
leaders incarcerated in Pelican Bay and in Colorado, but was not doing it.
5
We will refer to her by her first name to avoid confusion over common
surnames, and not to show familiarity. For the same reason we will do the same for other
individuals, such as defendant’s brother Greg.
7
Jack Ochoa supplied defendant with “ice,” methamphetamine. Defendant taught
Debbie how to package methamphetamine and PCP for sale. Defendant kept drugs at
their house, but they packaged the drugs at his sister Stephanie’s house. His son Danny
and Stephanie helped. Stephanie used methamphetamine, while Debbie never did.
Debbie resumed using PCP with defendant in 2006. He received two ounces of
PCP from Mario Cisneros every seven to 10 days. Cisneros brought the PCP in a
Victoria’s Secret bag and defendant kept the PCP in a pink cloth bag that Debbie got
from Victoria’s Secret. “[P]ink” became a code for PCP. Defendant provided PCP to
Debbie, his brother Greg, and “Bear,” among others. At trial Debbie could not remember
“Bear’s” real name.6
Before defendant went into custody, he said to Debbie that if she ever talked to the
police, it would be the last time she talked.
According to Sergeant T. J. Lewis of the San Jose Police Department, defendant
was placed in custody at the Santa Clara County Jail on March 8, 2007.
According to jail inmate John “Boxer” Mendoza, at the same time defendant
arrived in jail, so did his codefendants Frank “Joker” Ruiz, a Nuestra Raza (NR) member,
and Marco “Huero” Abundiz, a NF member.
The court accepted Mendoza as an expert on NF, NR, Norteños, and Northerners,
both in prison and on the streets based on his gang history. Mendoza had spent his
teenage years in a Northern gang in San Francisco. He became a NR member in 1989
and a NF member in 1994. Mendoza was also the commander of a NF regiment in San
Jose in 2003 until his incarceration in June 2004. He became a Category III member
after his arrest. It is the highest category in the NF organization below the generals.
6
Daniel “Bear” Cervantes was the alleged victim of the assault conspiracy in
count 6. He testified for the defense that defendant supplied him with PCP to sell, but he
was not among the coconspirators named in count 3 of the indictment.
8
Mendoza was testifying pursuant to a use immunity agreement as well as a plea
agreement of September 9, 2008 resolving charges against him arising partly out of his
regiment selling drugs, including conspiracy to sell methamphetamine, active gang
participation, possession of heroin, and possession of marijuana for sale. Mendoza
observed that in the Northern gang hierarchy, the NF was the leadership with NR, the
“soldiers,” beneath them and unaffiliated Norteños beneath them.
According to Correctional Deputy James Kirkland of the Sheriff’s Office, all
telephone calls from the Santa Clara County Jail are recorded, except for calls going to
lawyers and the clergy. The inmates are notified in three different ways. During intake
they sign a form acknowledging that phone calls can be monitored. Above the phones is
a placard saying the same thing. And there is an oral warning at the beginning of every
phone call. The maximum time for a call until the jail changed systems in 2010 was
15 minutes. The phone system was designed to prevent three-way calls, but inmates
could thwart it by making certain noises into the phone.
The prosecution produced excerpts of 30 recorded telephone calls involving
defendant and Debbie between the dates of March 8 and December 14, 2007. The
defense produced excerpts of six other phone calls involving defendant and Debbie
between the dates of August 16 and December 22, 2007. One was a more inclusive
excerpt of a conversation on August 18. Not every recorded call was played for the jury
while Debbie was on the witness stand.
In two early phone conversations on March 8, defendant warned Debbie to be
careful because everything they said was being recorded. Debbie testified that in many
of their phone conversations defendant was either telling her to arrange to have Clayton
Clark available for the next telephone call or to contact different people and tell them she
was collecting money for defendant. She could not keep track of the gang codes when
she was high on PCP so it seemed he was always yelling at her.
9
The court accepted Sergeant Lewis as an expert in the areas of “Hispanic criminal
street gangs, prison gangs, interpretation of gang terminology, gang codes, and the area
of identification of possession for sale or sales of a controlled substance, and the area of
recognition of usable amount of controlled substances.” He testified that one of the NF
principles was that NF business should not be discussed with any outsider, wife, or
girlfriend, but the rule was not always followed. Mendoza testified that it was almost
inevitable that wives of NF members were exposed to gang business.
2. Clayton Clark
Clayton “Shorte” Clark testified pursuant to a use immunity agreement and a plea
agreement resolving charges against him in the current case and a murder case that is
described at the end of this section. As a teenager he was involved with Norteño street
gangs. When he was 17 he was involved in a Norteño gang called Westside Gardens.
Clark began to learn about NF and NR when he went to jail for an assault with a deadly
weapon. When he went to San Quentin Prison in 2000 after a domestic violence
conviction, he was invited to join NR. While he was in prison, he was involved in
removals, which usually involved one inmate slashing the face of a gang enemy, after
which “the bombers step in with two people who physically assault the individual so the
person that was slicing them can get away.” Removals were always at the direction of
gang superiors.
When Clark was in San Quentin Prison, as tier security and a block general for the
NF he reported in writing to defendant, who was the NF Authority in Charge of the
prison. They did not meet in person at the time. Clark did meet defendant’s brother Greg
“Joker” Guzman in San Quentin. Clark kept returning to prison after being released.
During his third stint in prison, he got involved in selling methamphetamine that he
obtained from visitors. Clark was paroled in October 2005.
10
Clark began associating with the San Jose Grande (SJG) Norteño gang and
arranged their merger with Westside Gardens. In May or June 2006, Greg approached
Clark about working in defendant’s regiment. In July 2006 Clark approached defendant
and proposed that the SJG gang would sell methamphetamine for him. Defendant gave
him a quarter pound initially. The amounts of weekly methamphetamine increased from
a quarter pound to a half pound up to four to five pounds a week. Frank “Manos”
Gutierrez, an SJG member, was one of the people who worked under Clark. Clark dealt
with four people, each of whom had a crew working for him.
Clark became second in command in defendant’s regiment, which meant that
Clark reported to him and took care of the drug sales. Clark was primarily responsible
for the day-to-day operations of the regiment. It was Clark’s responsibility to keep track
of who owed money for the drugs Clark had fronted to them. Clark did not collect
monthly dues from regiment members. Defendant and Clark obtained methamphetamine
from Jack Ochoa.
Before defendant was arrested in March 2007, the regiment was selling from two
to five pounds of methamphetamine a week. Once defendant was arrested, Clark was
primarily responsible for keeping the regiment functioning and collecting drug debts
owed the regiment.
Until defendant was incarcerated, he just provided Clark with methamphetamine,
not PCP. Clark was aware that defendant was selling PCP he received from Mario. At
defendant’s request after his arrest, Clark arranged that Sammy Ramirez would sell 1.5
ounces of PCP that defendant had left behind.
In evidence were eight recorded calls involving defendant and Clark between
March 16 and July 2, 2007. They sometimes spoke during a three-way call involving
Debbie.
A telephone conversation on April 3, 2007 beginning at 10:36 p.m. became a
three-way call. Defendant initially called Debbie. Debbie said that “Sheila” wanted to
11
get on the phone. Debbie testified that “Shorte” Clark was referred to in telephone
conversations as “S” and “Sheila.” After some conversation, Clark took the phone from
Debbie. Defendant asked Clark if he was done with the four “apartments.” Clark said
they were close to “finishing the house.” Clark testified that was a reference to selling
four pounds of methamphetamine. Defendant told Clark to get his own telephone
because defendant wanted to talk to “the brown guy . . . with that brown ride.” Clark said
“the black guy was just at my house.” According to Sergeant Lewis, “brown” referred to
Charlie Campa and “black” referred to Sammy Ramirez. Clark said “the black guy” was
always getting the “pink socks.” According to Lewis, that meant more people were
interested in buying PCP.
Clark’s assistance to defendant from outside jail was limited, as he was involved
in a shootout at his apartment on July 29, 2007, that led to his relocation to Mexico. A
Sureño gang member who was the ex-husband of Clark’s wife and an ally confronted
Clark at home that evening. When the ally produced a gun, Clark shot them both. The
shootings led to charges of murder involving personal discharge of a firearm and
attempted murder involving personal discharge of a firearm causing great bodily injury,
among the charges resolved by Clark’s plea agreement. That night, Clark got money
from Charlie Campa and drove to Mexico with his wife. Clark was arrested in Mexico
and taken into custody at the Santa Clara County Jail in July 2010. He was confirmed as
a NF member when he returned from Mexico.
3. Sammy Ramirez
Sammy Ramirez testified pursuant to an immunity agreement and a plea
agreement dated June 17, 2012 resolving charges arising from the criminal activities of
his regiment, including conspiring to sell methamphetamine and PCP, active gang
participation, assault involving a deadly weapon or force, and extortion. Ramirez became
a NR member in December 1995 and a NF member in September 1997. He became the
12
secretary of Skip Villanueva, a high-ranking NF member. Ramirez became a Category II
member in September 1998.
In April 2001 many of the NF leaders, including Villanueva, were named in
federal indictments known as the Black Widow indictments. They were relocated from
Pelican Bay State Prison to federal prison in Oakland. This led to a power struggle
between the federal prisoners and NF members who remained in Pelican Bay.
When due for release from prison in March 2005, guards caught Ramirez with a
kite that included a rewritten NF constitution and a message from Anthony “Chuco”
Guillen, one of the NF generals in Pelican Bay Prison, regarding the loss of authority of
the NF generals who had been relocated to federal prisons. According to Sergeant Lewis,
a kite is a communication between inmates in microwriting. Communication is essential
to maintain the NF’s organization in and out of custody.
After his release from prison, Ramirez contacted regiment leaders Abundiz and
Campa and formed his own regiment in Santa Clara County as he had been instructed by
Guillen. His regiment sold more methamphetamine than PCP. For a period of time,
Vince Tirri was Ramirez’s second-in-command.
The regiment leaders gave themselves nicknames for telephone use: Ramirez was
“Black,” Campa was “Brown,” Abundiz was “Red” or “Rojo,” and defendant was
“White.” According to Ramirez, the four regiment leaders only met twice in person and
Debbie was not in attendance. They called each other only about important matters like
the prices of dope. Defendant’s regiment was selling methamphetamine, PCP, and
sometimes marijuana. Ramirez had Abundiz supply him PCP that he obtained from
defendant. He did not deal directly with defendant because he heard defendant “was
really hot.”
Ramirez did not meet Clayton Clark until after defendant was arrested. After
defendant was incarcerated, Ramirez contacted defendant’s PCP supplier, Mario, and
obtained PCP from him. Mario said he would make the same arrangements with Ramirez
13
that he had with defendant, “L,” namely he would front him one, two, or three ounces at a
time and he could pay a day later. Ramirez was arrested on February 20, 2008.
4. Antonio “Chuco” Guillen
Antonio Guillen was not a witness, though he was described by several witnesses.
Sergeant Lewis, Sergeant Livingston, and Correctional Officer Valdez testified that, at
the time of trial, Antonio “Chuco” Guillen was the general in Pelican Bay State Prison in
charge of NF street regiments.
There was testimony about Guillen’s communication with leaders of other NF
regiments. Valdez and Ramirez testified that Guillen was the author of a kite that Valdez
took from Ramirez in March 2005 that pertained to the entire NF organization. Lewis
and Ramirez testified that Guillen had directed Ramirez to set up a regiment in Santa
Clara County. Livingston and Valdez testified that Guillen was in contact with
regimental commander James Cramer in October 2005 and that Cramer reported to
Guillen. Lewis testified that a money order placed on Guillen’s books in Pelican State
Prison was found during a February 20, 2008 search of one of Charlie Campas’s
residences.
Mendoza described what he considered to be an indirect communication by
Guillen to defendant. Mendoza believed that Paul Lopez was the real author of a letter
purportedly from his wife Norma to defendant postmarked February 21, 2008.
According to Mendoza, at the time Guillen was pulling Paul into the NF, so they were
communicating. In the letter were the statements: “ ‘Debbie’s sister was given the house
and kids when Debbie last moved out, so that should be respected. As far as he is
concerned, there should be no problems with Debbie and PJ helping out with some of the
chores around the house when necessary. The girls got to learn how to clean house and
learn to live and work together.’ ”
14
According to Mendoza, this was a coded message saying that defendant was the
regimental commander of the Santa Clara County Jail and that Paul Lopez (“PJ”) and
Rudy Miramontes (“Debbie” or “Dancing Bear”), a NF member, should work with him
in that capacity. The letter also referred to Ramirez as “on freeze” and Mendoza as “ ‘no
good.’ ” Mendoza understood the letter to be relaying Guillen’s instructions.7
5. NF Dues
Sergeant Lewis acknowledged that he had not encountered a regiment bank
containing large amounts of money. However, he testified that “it’s all about money.
That’s really what it all comes down to when you’re talking about [NF]. In the end it’s
all about money, and how they go about it. And then at the end they send money, in
theory, they send money to incarcerated members, and they carry out directives coming
from inside of the institution.” He explained that regiment members “[i]n theory” had to
pay the regiment monthly dues of $200. Lewis equivocated on cross-examination, saying
that some regiments charge a higher price for narcotics in lieu of collecting $200 monthly
dues. Sergeant Livingston testified that his investigation of the James Cramer regiment
produced a document listing regiment dues and also a money order sent to a high ranking
NF member in Pelican Bay.
Sammy Ramirez testified that every member in his regiment had to pay $200 a
month whether Ramirez provided them with drugs or not. He explained to them that it
was like an insurance policy, backing their collection of drug debts with NF’s reputation
for violence. Pursuant to a use immunity and a plea agreement described below (in
part II.D.1), Vince Tirri testified that when he served as second-in-command of
7
On appeal the Attorney General relies on this letter, written almost a year after
defendant’s incarceration, as Guillen’s authorization of defendant as the regimental
commander of the jail. There was no evidence of a reciprocal communication from
defendant to Guillen. The prosecutor did not mention this letter in closing argument.
15
Ramirez’s regiment, one of his duties was collecting monthly dues. Tirri testified that he
paid dues when he was a member of Charlie Campa’s regiment. Mendoza said the
purpose of his regiment in 2003 and 2004 was “making money for the NF” primarily by
selling methamphetamine. “[I]f we’re out there selling drugs, it’s supposed to be
25 percent of anything that we bring back, it goes back to the organization off the top.
You’re to pay $200. It’s commission monthlies, they call them monthlies on every
member of the regiment is to pay $200, and it goes back to the main bank plus the 25
percent.” According to Mendoza, that obligation existed for all regiments throughout
Northern California.
B. CONSPIRACY TO SMUGGLE DRUGS INTO JAIL (COUNT 4)
The evidence of a conspiracy to smuggle drugs into the Santa Clara County Jail
between January and June 1, 2007 was primarily seven recorded telephone calls, all on
April 26, 2007.
Shortly after 1:00 p.m., Cindy Mendoza was involved in two concurrent phone
calls on different telephones, one with defendant and the other with his brother Greg,
Cindy’s boyfriend. At the time, Greg was housed in an area of the jail known as the
snake pits, along with David “Pookie” Bermudez and Aldo “Droopy” Martinez.
Cindy told defendant that Greg was going to talk to Pookie. Defendant said to
“let . . . fat ass know . . . that . . . it’s for us.” Greg said Droopy was going to cover it.
Somebody’s wife was going to bring it to the guy who takes it in. Defendant said he was
putting something else in, “a little moon stuff.” Greg said he wanted some for himself.
According to Sergeant Lewis, “moon stuff” meant PCP. Greg called Cindy 15 minutes
later and said Droopy was going to call her shortly.
At 1:36 p.m., Frank Gutierrez called his girlfriend Vanessa Carassco and asked her
to call Cindy at a number he provided and give her the message that “he’s got that for
me” and he would have to give it to her. At the time, defendant and Gutierrez were
16
housed together in 2nd East Max. Gutierrez called Vanessa again around 3:15 p.m. to
finish delivering the message. “She” would direct her where to go and it had to be done
today. Lewis said it was common to have NR members like Gutierrez pass along
messages from NF members. Gutierrez called Vanessa a third time at 3:45 p.m. He had
another message from “Junior,” a nickname for defendant. “S” was going to be calling
her and bringing her the moon stuff.
Finally at 8:36 p.m. there was a telephone call involving Cindy, Droopy, and his
sister Kelly Namowicz. Droopy told Cindy that Kelly would be calling her the next day.
Debbie testified that she provided methamphetamine and PCP to Cindy at Cindy’s
request so that she could give them to Greg, who was in jail. Defendant later told Debbie
he was upset because he was supposed to receive the drugs, but Greg got caught with
them.
According to Sergeant Lewis, on May 26, 2007 Greg Guzman was found in jail in
possession of methamphetamine that was wrapped in a note saying “ ‘2nd Max ASAP.’ ”
Also according to Lewis, gang members would never bring drugs into jail just for
personal use. They would want to make money on it.
C. CRIMINALLY THREATENING DEFENDANT’S WIFE (COUNT 5)
Count 5 alleged that between August 1 and 20, 2007, defendant willfully
threatened a crime that would have resulted in death and great bodily injury to his wife
Debbie with the specific intent that the written statement was to be taken as a threat, even
if there was no intent to actually carry it out, which, on its face and under the
circumstances in which it was made was so unequivocal, unconditional, immediate, and
specific as to convey to Debbie a gravity of purpose and an immediate prospect of
execution of the threat and caused her reasonably to be in sustained fear for her own
safety.
17
Defendant once told Debbie about a situation in the 1990s when one of the wives
got killed for talking after several gang members got arrested for drug sales. However,
count 5 was not predicated on that conversation, but on a letter from defendant to Debbie
postmarked August 15, 2007 that included the following passage. “My one and only, my
sometimes difficult one and only, but, nevertheless, she’s mine and I love her to death
and I mean that literally. Because if my baby does me wrong, death going to part us.
You better ask somebody.” It ended, “Love you, always, your husband.”8
Debbie admitted at trial that when she received the letter, “at the time I didn’t take
it, like, real serious because I never thought that I was going to turn on him. I always
thought I was going to be with him, so I wasn’t really afraid at that time.”
She brought up the letter twice in contemporaneous telephone calls with
defendant. In a conversation on August 16, Debbie said, “I got your—your funny letter
today.” When he asked which one, she said, “I got that one where you’re so funny,
‘when death,’ well, ‘when death does us part,’ or something, and ‘you better ask
somebody.’ [Laughs] I started rolling. I said [‘]he’s hilarious huh?[’] Shut the hell up.
You know you ain’t gonna do shit.” Defendant laughed. Debbie said she would put him
out if he went out on her “[a]nd you’d better ask somebody.” Defendant said he did not
have to worry about that now and the conversation turned to her suspicions about him
writing letters to other women. She told him, “if you fucking write that ho back your
fucking dick will be up your ass.” While defendant laughed, she continued, “Ass
kicking, you can ask somebody.” He continued to laugh. She told defendant that her
young son had overheard her and complained about her language.
8
The letter (Exhibit 168) does not appear in the record on appeal. This passage
has received differing punctuation in various quotations in testimony and motions, so we
have settled on punctuation that makes sense to us.
18
During a conversation on August 18, Debbie said she wished she could feel
defendant. When he chuckled, she said “Yeah I do, literally, I mean that. Like you said
in your letter, I’m like whatever, I mean that.” She asked, “ ‘Cause I know you, babe,
would you really do that?” He asked what and she answered, “The [‘]literally[’] part.”
“What you wrote in that letter. You would not.” He again asked what she was talking
about, and she reminded him of the “literally” part of a letter. This dialog followed.
“[Defendant] [‘]Do us part.[’]
“[Debbie] Yeah[.]
“[Defendant] [Laugh]
“[Debbie] You would not.
“[Defendant] Shit.
“[Debbie] Not me?
“[Defendant] Yeah, you.
“[Debbie] Why me?
“[Defendant] Because you’re the only girl that I love . . . .”
She said she wouldn’t do that, and defendant asked if she was getting cold feet.
She stated, “I said I wouldn’t do that, you dork. Do you know what ‘wouldn’t’ means?”
Debbie asked if defendant remembered how she was always cold and if he would like to
have her body on him. The conversation turned to sex.
On December 17, 2007, the police conducted a search of Debbie’s residence while
she and her housemate, Leslie Frost, defendant’s cousin, were present. Sergeant Lewis
19
and Sergeant Dan Livingston of the Campbell Police were both involved with the search.9
Lewis told Debbie that she had been indicted and might lose her son if she went to prison
instead of cooperating with the police. She initially denied any involvement in
distributing drugs. Lewis said he did not believe her based on the recorded telephone
calls. Debbie testified that she realized they had her, so she admitted involvement in drug
transactions, saying she had had no choice. Debbie was concerned about giving
information to the police with Frost present, as Frost would have notified defendant.
On December 18, Debbie told defendant during a telephone call that the police
raided the house the day before and had torn the house apart and taken all their letters and
pictures and computers. She read him the search warrant.
That day Debbie went to the office of the investigators and agreed to cooperate.
Debbie agreed to record phone calls with a digital recorder. Lewis offered her witness
relocation and no charges for her cooperation.
While Debbie testified that she was not immediately concerned about the
August 15 letter, she did not forget about it either. When she agreed to cooperate with
the police after her residence was searched, she told Sergeants Lewis and Livingston that
she had a letter from her husband threatening to have her killed if she cooperated. At that
moment, the threat became very real. According to Lewis, Debbie kept bringing up a
threatening letter. It was seized during the search of her residence but not identified until
a day or two later.
In evidence was a December 22 telephone conversation in which Debbie and
defendant each professed their love for the other. Defendant encouraged her to be more
independent because he was not able to be there for her. She asked him not to leave her.
9
The court recognized Livingston as an expert in the area of Hispanic gangs,
including NF.
20
He said, “I’m not going to, that’s what I’m not gonna do. If anything, you’re gonna leave
me.”
According to Sergeant Lewis, when Debbie began cooperating, she spoke with
two intermediaries of Clayton Clark, one named Anthony Solis and his cousin Moses
Rodriguez. Solis is a member or associate of the SJG criminal street gang in which Clark
was involved. Solis called Debbie on January 8, 2008 and met with her the next day.
She recorded their conversation. Solis had a written message for defendant from Clark.
Solis said he was going to be making payments to her.
On January 18, Debbie called Rodriguez. He said he would be paying her money
for defendant. He asked why she had not disclosed that the police had searched her
house. After that conversation, she called Lewis and said she was afraid of being
exposed as cooperating with law enforcement. Lewis told her to stay in a hotel
overnight. The next day, Lewis told her to act like the wife of a NF member. Debbie
called Rodriguez and challenged the way he had questioned her. Rodriguez backed off a
little, according to Lewis, who had listened to a recording of the call. When they met
later that day, Rodriguez paid her $100. In later phone calls Debbie asked Rodriguez to
put her in contact with Clark, who was in Mexico.
Clark called Debbie on February 5, 2008. She asked if “those kids” had given
Clark her messages and he answered yes. She said defendant thought Clark was ignoring
them. She told him that Rodriguez had called her drunk one day. “[H]e was acting smart
and he was acting rude and he was like saying how come you didn’t tell us your house
got raided . . . .” She said she told Rodriguez she had to report to defendant, not to him.
Clark said he had asked Rodriguez to ask her what happened. Debbie said defendant was
mad about how Rodriguez had confronted her. Clark said he was interested in hearing
from Jack Ochoa and wanted him to call one of his “kids.”
Debbie had another telephone conversation with Clark on February 16. Clark said
his boy had not heard from Ochoa yet. Debbie said she would tell Ochoa to call.
21
Sergeant Lewis and Debbie had differing recollections about why he decided to
relocate her on February 18, 2008. According to Lewis, while they were meeting, he
noticed a car circling them and looking intently at them. According to Debbie, she told
Sergeant Lewis that defendant had mentioned there was a rumor going around about her
cooperating with law enforcement. She had told him that he could believe what he
wanted, but it wasn’t true. During her next meeting with Sergeant Lewis, he told that that
she had to relocate that night.
On February 19 Debbie had a recorded telephone conversation with Jack Ochoa.
They reminisced about how Ochoa used to sell a cut pound of methamphetamine to
defendant for $6,500, but he said no one wanted cut stuff anymore and a pure pound cost
$20,000.
Soon after that conversation, Lewis put Debbie and her son into a witness
protection program. Debbie acknowledged that the program had helped her with
expenses for relocation, rent, meals, utilities, and emergency medical care. She
transitioned out of the program in September 2010 and stopped receiving financial
assistance.
Debbie testified that she knows what defendant is capable of. Every time she
returns to Santa Clara County she fears for her life. Her fear of something happening to
her or her son would not end with the end of defendant’s trial. “It’s never going to end.
I’m going to have to stay gone. It will never end.”
D. CONSPIRACIES TO ASSAULT DANIEL CERVANTES (COUNT 6) AND HENRY
LEYVAS (COUNT 7)
The indictment charged that defendant conspired to assault Leyvas between
January 22 and October 7, 2008 and Cervantes between May 1, 2008 and April 23, 2009
(the date of the indictment).
22
1. Daniel Cervantes
Cervantes testified for the defense that he was a Northerner who had known
defendant for over 25 years. Cervantes has been in and out of jail and prison since 1987
and involved with PCP since 1990. Before his incarceration in 2007, he sold
methamphetamine and PCP. Defendant occasionally fronted him drugs, though
Cervantes was not functioning as part of a regiment.
Cervantes acknowledged that defendant had once fronted him a quarter pound of
methamphetamine that Cervantes was unable to sell. Someone retrieved the
methamphetamine from Cervantes on defendant’s behalf. Defendant told Cervantes he
owed him $400 because the returned methamphetamine was short.
During a recorded call on December 14, 2007, before Debbie agreed to cooperate
with law enforcement, she asked defendant if he remembered his friend “Bear,” for
whom he had done tattoos. She told him his cousin Leslie had said she had encountered
Bear the night before and he admitted owing for a tattoo. Defendant said, “Yeah, like
four.” Leslie had said she would collect it for him.
Debbie testified she had accompanied defendant when he tried unsuccessfully to
collect the debt. She had also tried unsuccessfully to collect the debt from “Bear” at
defendant’s request. Defendant had also sent Carlos Roman to collect on the debt.
After agreeing to cooperate with law enforcement, on January 16, 2008, Debbie
recorded a telephone call she made to Leslie. Debbie said defendant was wondering if
she ever got the money. Leslie said that Bear told her he had moved to Modesto and
would call her back and, when she called him two days later, his phone was disconnected.
Cervantes said he should have handed “it” directly to defendant instead of to Roman,
because defendant said it was short. Debbie pointed that that both Bear and Roman were
users. Cervantes still acknowledged it was his fault. Debbie commented, “all that drama
23
just over $400.” Debbie said that defendant was eager to get the money. On
February 12, 2008, Debbie called Leslie again and learned she had not heard from Bear.
According to jail records, Cervantes was taken into custody on May 1, 2008. On
May 14, he was sent to a jail unit in Elmwood. He spent time in two other units in
Elmwood before being released from custody on September 21, 2008.
The key documentary evidence of two conspiracies was a single kite (Exhibit 412)
that was dated October 21, 2008 and signed by “C/R Calpolli.” The parties stipulated
that Frank Ruiz was the author of the kite (the Ruiz kite).
The Ruiz kite, addressed to the Elmwood facility, was intercepted and brought to
the attention of Dennis Gillotte, a Correctional Deputy for the Santa Clara County
Sheriff’s Office. Based on Gillotte’s employment in jail classification and jail
intelligence the court accepted him “as an expert in the area of prison street gangs
operating in Santa Clara County Jail.”
Gillotte testified that the kite identified its origin as from the “AIC” of “SCCJ
MJN 4-B,” which stood for Santa Clara County Jail, Main Jail North Unit 4-B. Ruiz was
the NF’s authority in charge at the time. According to jail records, defendant was housed
in 4-B3 from July 11, 2007 through November 4, 2008. Frank Ruiz was housed in 4-B3
from July 11, 2007 through July 22, 2009.
Ruiz testified for the defense that after he was incarcerated in 2007 in the Santa
Clara County Jail, he learned that defendant was the overall jail authority. In 2008, Ruiz
became the authority in charge of the jail for the NF and “Calpolli” was his “Cana” code.
“Cana codes” were gang codes used to confuse prison staff. He worked under defendant
when they were both in 4-B3.
The Ruiz kite described a dispute at Elmwood concerning who was in charge and
a Northerner who was falsely claiming to have the higher status of a NF member. Based
on disarray in Elmood, the kite directed recipients to file reports of rosters and incidents
24
as soon as possible at 4-B, where Ruiz and defendant were housed. The kite complained
that reports “using only Cana codes” did not identify the authors.
The kite also stated, “ ‘Also concerning Bear Cervantes. He’s been deemed no
good. Thus his removal was just.’ ” “ ‘There’s also a registered sex offender in M-8. I
believe his name is Henry Leyva. He’s to be dealt with ASAP.’ ”
According to Sergeant Lewis, a NF member who is “deemed no good” by a gang
member is subject to violent assault by other NF members. Such a decision must be
made by the highest gang authorities in Pelican Bay unless the authority is delegated to a
local NF member. It means you are in bad standing with the organization. In contrast,
being put “on freeze” means the gang was looking into your gang credentials. A member
on freeze is still active, but should not be informed about current gang business.
John Mendoza testified that a “bad news list” is a list of everyone who has been
deemed no good. They are all considered enemies of the gang. Any NF member can put
someone on the bad news list. So long as a NF member was present in jail, a NR
member could not put someone on the bad news list. Within a prison or county jail, the
regimental commander has the authority to deem someone no good. It would be against
protocol to delegate that authority. It is the commander’s responsibility to conduct an
investigation before deeming a person no good. A NR member who was the second in
command would not have the authority to deem someone no good. “So he’s just relaying
information that has been related to him. He’s not authorized to make those kinds of
decisions himself.” If a person was deemed no good, a gang member would be obligated
to remove that person with a weapon at the first opportunity.
After seeing the Ruiz kite, Officer Gillotte determined that “Bear” Cervantes was
Danny Cervantes. Gillotte attempted to locate Cervantes, but he was not in custody.
Cervantes was returned to jail on January 30, 2009. He was housed in Main Jail North 4-
B1 and then 4-B3, a single cell, until February 27, 2009. In some cases inmates with a
25
problem with NF are placed in 4-B3 to determine their status with the NF. On
February 27, Cervantes was placed in protective custody.
Vince Tirri, a member over time of the Campa, Mendoza, and Ramirez regiments,
testified pursuant to a use immunity and a plea agreement resolving charges of active
gang participation, conspiracy to sell methamphetamine, and two counts of forcible
assault with a gang enhancement. Tirri became a NR member in April 2001.
Tirri was arrested in October 2006. He was brought to the Santa Clara County Jail
in August 2007 to face a charge. Tirri learned that defendant was the regimental
commander of the jail. Tirri was housed on 2nd East Max. As defendant was housed on
the fourth floor, when Tirri met defendant at medical, they discussed the status of
everyone in 2nd East Max.
In 2009, Tirri and defendant were housed together in administrative segregation.
There were four cells. In the other two were Frank Ruiz and Marco Abundiz. Defendant
told Tirri all about Cervantes. Defendant had fronted a quarter-pound, four ounces of
methamphetamine to Cervantes. Carlos Roman brought the drugs to Cervantes and went
to retrieve them when Cervantes failed to act. When the drugs were returned to
defendant, an ounce was missing. When defendant questioned Cervantes, Cervantes said
he had received it that way and had not weighed it. Roman said he had not touched it.
Defendant did not believe Cervantes and believed Cervantes was hiding from people
trying to collect on defendant’s behalf. Defendant said he had deemed Cervantes no
good. According to Tirri, if a gang member did not remove someone who had been
deemed no good, the gang member could potentially be removed.
According to Tirri, Ruiz told Tirri that Cervantes had been removed.
Gillotte was not aware that Cervantes actually had been removed by an assault.
Cervantes testified that he was never assaulted while in jail before he bailed out in
September 2007 or when he returned. Four hundred dollars was a small amount of money
and it would not have created a problem between defendant and him. When he returned
26
to custody in January 2008, he was told he needed to get to the fourth floor and he was
housed in 4-B, where he met Frank Ruiz. Cervantes explained to Ruiz he had not gone
into protective custody. Ruiz told him not to worry about his debt to defendant, just to
pay it when he got out. Ruiz said he would be on freeze, but not deemed no good.
Cervantes admitted that he would not testify against defendant due to fear of retaliation
and that he had received defendant’s written permission to testify.
Testifying for the defense, Ruiz corroborated Cervantes’s version of their
conversation in 4-B. Ruiz testified that he wrote the kite on his own initiative.
According to Ruiz, another kite had arrived in August 2008 that put defendant and
Ramirez on freeze, leaving Ruiz in charge of the jail. Ruiz destroyed that kite. Ruiz said
that he was in charge of the jail though there were other active NF members in jail who
were not on freeze. Ruiz wrote that Cervantes’ removal “was just” based on a false
impression from incident reports from Elmwood that Cervantes had already been
removed. It was not based on the debt owed defendant. Defendant had never discussed
Cervantes with him.
Ruiz heard in January 2009 that defendant was no longer on freeze. Ruiz
conceded that it would violate gang rules to testify against a fellow gang member like
defendant.
2. Henry Leyvas
As to Henry Leyvas, Ruiz testified that he put his name in the kite after hearing
that Leyvas had tried to rape someone’s sister.
According to Sergeant Lewis, a sex offender living in a gang member’s area in jail
could be assaulted without anyone’s prior approval.
According to gang expert Valdez, when an inmate comes to an institution, the
prison gang will ask for the inmate’s paperwork. They want to determine their gang
credentials and keep out inmates charged with sex crimes. The NF gang will assault an
27
inmate on a yard who is a sexual registrant or has sex crimes to remove them from the
yard. Sureño and white gangs also assault sex offenders.
According to Mendoza, sex offenders are not automatic gang targets. Their
paperwork should be reviewed. There has to be an incident report explaining any assault.
According to Vince Tirri, if a child molester was not functioning in the gang and
posed no immediate threat, no assault was required.
According to Frank Ruiz, there is no protocol to removing sex offenders. No one
has to approve it even if the offender is a NR member. He did not investigate the claim
that Leyvas had tried to rape someone’s sister. Ruiz acknowledged that judgment was
involved, for example, if the crime was statutory rape.
Officer Gillotte understood the directive about dealing with Leyvas to mean he
was to be assaulted at the first opportunity. Most sexual offenders are placed in
protective custody on a case-by-case basis. There is a standing order for the gang to
assault a sex offender who is housed with a gang.
Gillotte spoke with Leyvas about going into protective custody. He did not want
to go at first but he was placed in protective custody.
Ruiz testified that he pleaded guilty to conspiring to assault Leyvas with a deadly
weapon because he wrote the kite and ordered it. He asked for the allegation against
defendant to be deleted because defendant was not involved.
III. ANALYSIS
A. NUMBER OF CONSPIRACIES
On appeal defendant contends “the trial court should not have instructed the jury
to determine whether there existed multiple conspiracies or one single conspiracy, but
should simply have consolidated the conspiracy counts into one single count” as the
defense had requested. “[T]he evidence in this case shows only one conspiracy, not the
six separate conspiracies charged by the indictment.” We assume that defendant is
28
referring to the five conspiracies described in his summary of counts 2, 3, 4, 6, and 7 of
the indictment. His implicit premise is that the trial evidence as a matter of law proved
the existence of one overall conspiracy that involved the commission of the five separate
crimes. Before deciding this issue, we will review its procedural history.
1. Procedural History
Before trial, in a motion to set aside the indictment defendant contended that
“Counts 2, 3, 4, 6 and 7 should either be set aside or consolidated into one single
conspiracy count” instead of being pursued as separate conspiracies. Defendant asserted
the incongruity of the prosecution alleging multiple conspiracies while also arguing that
many hearsay statements by different individuals were admissible as statements of
coconspirators in support of a single conspiracy. The prosecution replied that it was not
abandoning the allegation of separate conspiracies by use of the shorthand term
“conspiracy.” The section 995 motion was denied on July 9, 2010.
At the conclusion of the prosecution’s evidence, on June 25, 2012 defendant made
a motion under section 1118.1 based on a refused instruction he had proposed dealing
with the issue of single versus multiple conspiracies.10 He asked for the court, in advance
of submitting the case to the jury, to either dismiss counts 2 and 3 or consolidate them
into a single count. Defendant asserted that every single witness had testified that there
was one conspiracy to sell methamphetamine and PCP. “[T]he only possible inference
[is ]that there was one conspiracy to establish a street regiment to distribute drugs, PCP
10
The instruction purportedly requested by defendant and refused by the court
does not appear in the record on appeal. Defense counsel paraphrased it as saying, when
a single agreement contemplates the violation of several Penal Code statutes like
distribution of methamphetamine, distribution of PCP or other things through
subagreements or subconspiracies to accomplish the objective of the agreement, it counts
as a single conspiracy.
29
and methamphetamine.” The prosecution responded that some former codefendants just
sold methamphetamine, while others just sold PCP, and yet others sold both, so there was
evidence of different conspiracies and separate and distinct violations of different
statutes.
The court denied defendant’s motion, explaining: “What is clear, however, is that
this Court has a sua sponte duty to instruct in this area when there was sufficient evidence
to support either finding either a single or multiple conspiracies, and I believe that the
record is replete with evidence to suggest either theory. So based on that, I am going to
give the instruction, but the Meneses[11] case clearly states that the issue is an issue of fact
and not an issue of law. It’s not an issue of law. The Court doesn’t determine whether
it’s a single or multiple conspiracy as a matter of law. That’s a fact that ought to be
decided by the jury.”
Accordingly, the court instructed the jury in terms of CALJIC No. 17.05 as
follows: “The Defendant is accused of committing the crimes of conspiracy in Counts 2,
3, 4, 6 and 7. [¶] After determining all of your verdicts according to my instructions[,]
you should sign all verdict forms on which you unanimously agree. If you have found
the Defendant guilty of more than one coun[t] of conspiracy, you must then determine
whether there was one overall conspiracy to commit multiple crimes, or whether there
were separate conspiracies. You should consider all of the applicable evidence and
determine this issue. [¶] When a single agreement to commit one or more crimes is
evidenced by an overt act, the precise nature and extent of the conspiracy must be
determined by reference to the agreement which embraces and defines its objectives.
Whether the object of a single agreement is to commit one or many crimes, it is in either
case the agreement which constitutes the crime. One agreement cannot b[e] taken to be
11
People v. Meneses (2008) 165 Cal. App. 4th 1648.
30
several agreements and hence several conspiracies simply because it envisions
committing more than one crime. [¶] However, if you find beyond a reasonable doubt
that there was not one overall agreement, but separate agreements, each accompanied by
an overt act, then separate conspiracies have been established. [¶] If you find the
Defendant guilty of more than one count of conspiracy, you will then include [a] finding
as to whether there is one overall conspiracy or separate and distinct conspiracies.”
Pursuant to this instruction, in addition to finding defendant guilty of the
conspiracies alleged in counts 2 (to sell methamphetamine), 3 (to sell PCP), 4 (to
smuggle a controlled substance into a penal institution), 6 (to assault Daniel Cervantes
with a deadly weapon and 7 (to assault Henry Leyvas with a deadly weapon), the jury
made a special finding that these five conspiracies “were separate and distinct.”
After the jury’s verdict, in a sentencing memo and a motion for new trial
defendant asked the trial court, among other things, to set aside the jury’s separate
conspiracies finding and to find “that counts 2, 3 and 4 were one single conspiracy to sell
and distribute drugs for the organization.” He also asserted, “the evidence suggests that
the acts alleged in counts 2, 3, 4, 6, and 7 were all part of one big conspiracy to benefit,
promote, and make money for the Nuestra Familia organization, and enforce gang rules
and discipline.” The prosecution opposed this request. At a hearing on March 15, 2013,
defendant argued that if all the conspiracies were not part of one overall conspiracy, at
least the drug sales were. The trial court denied defendant’s new trial motion, explaining:
“[T]his Court heard a number of arguments from Counsel regarding the single versus
multiple conspiracy. The issues were brought before the jury. There is a replete record
from which there is a sufficient basis in which a jury did make their findings, so the
request to grant a new trial or modify the verdict is denied at this time.”
31
2. Existence of One Overall Conspiracy
Defendant asserts, “the entire thrust of the prosecution’s evidence in this case was
that all of the drug sales shown, both inside and outside the jail, as well as the planned
assaults on Cervantes and Leyvas, were conceived and controlled by the [NF] and its
members and agents, and all had the common purpose of furthering the success of the
[NF] by generating revenue and disciplining [NF] members, Nuestra Raza members and
Nortenos so as to assure that the [NF] rules were followed.” Defendant asserts that in
finding true the gang enhancements, the jury “believed all the charged offenses were
committed for the benefit of the gang.”
A conspiracy is usually regarded as continuing until the target offense is
committed unless it is frustrated or abandoned. (People v. Hardy (1992) 2 Cal. 4th 86,
143.) It is a question for the fact-finder to determine when a charged conspiracy has
ended, “considering the unique circumstances and the nature and purpose of the
conspiracy of each case.” (People v. Saling (1972) 7 Cal. 3d 844, 852.) As this court has
said before, “a conspiracy can have multiple criminal objectives.” (People v. Jasso
(2006) 142 Cal. App. 4th 1213, 1222 (Jasso); cf. People v. Johnson (2013) 57 Cal. 4th 250,
266.) It is up to the conspirators to establish the primary goal or goals of the conspiracy.
An agreement to commit a series of crimes incidental to a single objective may amount to
but one conspiracy. (People v. Vargas (2001) 91 Cal. App. 4th 506, 555 (Vargas).)
Defendant has relied heavily on this court’s Vargas opinion to support his
conclusion that only one conspiracy has been proved.12 In that case, the defendant was
charged with one conspiracy to commit multiple crimes, a conspiracy that alleged 96
12
Defendant has also cited other opinions discussing what might be called
umbrella conspiracies involving the commission of several crimes. As they do not
involve criminal street gangs in general or the NF in particular, we see no need to
distinguish each factually, as the Attorney General has done.
32
overt acts. (Vargas, supra, 91 Cal. App. 4th 506, 517-518.) There was evidence at that
trial that “[t]he Nuestra Familia (NF) is a prison gang that was founded in September
1968 by inmates at the California State Prison San Quentin (San Quentin). NF is a ‘cold-
hearted gang’ that commits murders, burglaries, extortion, and other crimes, including
selling drugs to raise money for its members.” (Id. at p. 518.) One objective of the NF is
“ ‘to build the organization on the outside, become self-supporting, work with those in
alliance, any and all illegal ventures to build the funds that can be utilized to take care of
members behind the walls or drug deals on the streets.’ ” (Id. at p. 519.) NF members on
the street were expected to contribute money to the NF “ ‘bank,’ ” which was the NF
fund held for the benefit of the NF members. The contributions from individual members
were to be made from dealing drugs or getting “ ‘contributions’ ” from drug dealers. The
NF members on the “ ‘street’ ” were under the control of the Regional Security
Department (RSD) to whom they were to report. (Ibid.)
On appeal Vargas argued that the trial court deprived him “of his state and federal
constitutional rights to a trial by jury and due process by failing to instruct the jury to
determine the essential factual question whether one or multiple conspiracies existed.”
(Vargas, supra, 91 Cal.App.4th at p. 549.) This court recognized that “[a] trial court is
required to instruct the jury to determine whether a single or multiple conspiracies exist
only when there is evidence to support alternative findings.” (Id. at p. 554.) However,
this court rejected Vargas’s contention, stating, “Assuming that more conspiracy counts
could have been charged under the facts, the decision to charge defendant with only one
conspiracy count was a prosecutorial charging discretion that we do not review. The
exercise of that discretion involves questions of prosecutorial policies and judgment, not
questions of fact for the jury to determine.” (Id. at p. 553.) Moreover, this court did not
recognize any prejudice to defendant being charged with one conspiracy instead of
multiple conspiracies. (Ibid.)
33
Finally, in a passage quoted by defendant, this court stated: “In fact, the record
evidence points only to one conspiracy—the agreement to establish the NF as a criminal
gang to commit murder, robbery, burglary, extortion, and drug trafficking, among other
crimes. Within that umbrella conspiracy were subconspiracies to commit specific crimes.
However, the commission of the specific crimes, and the drawing up of plans required to
commit them, were all in pursuance of the overriding purpose of the NF, which was to
establish power through the use of crime, force, and fear, and to use that power to further
strengthen and perpetuate itself by killing its enemies, raising money for the gang, and
instilling obedience and discipline among its members by killing members who break its
rules. Thus, Rosas was killed because he had ‘snitched on Pablo Pena, Panther.’ The
decision to kill Rosas, being one in furtherance of the overriding purpose of the
conspiracy, was part of the overall conspiracy, and hence cannot be the basis for filing a
separate charge of conspiracy.” (Vargas, supra, 91 Cal.App.4th at p. 553.) Defendant’s
reply brief quotes additional, similar discussions in Vargas of how the NF functioned at
the time.
Since that decision, the California Supreme Court has recognized that the appellate
courts are divided about whether the number of conspiracies proved is a factual question
for the jury. (People v. Williams (2015) 61 Cal. 4th 1244, 1270 (Williams).) One of the
cases cited as favoring presenting the issue to a jury was this court’s opinion in Jasso,
supra, 142 Cal. App. 4th 1213. Williams determined that when separate conspiracies are
not alleged, though conspiracy is a theory of culpability, the jury need not be instructed to
agree on whether there was a single or multiple conspiracies. (Williams, supra, at
p. 1272.)
Jasso, which involved three conspiracy counts, relied on the Vargas dictum and
concluded “that the court erred in failing to instruct on single versus multiple
conspiracies.” (Jasso, supra, 142 Cal.App.4th at p. 1223.) The trial court in this case
relied on People v. Meneses, supra, 165 Cal. App. 4th 1648, which followed “Jasso in
34
holding that a trial court is required to instruct the jury to determine whether a single
conspiracy or multiple conspiracies exist when there is evidence to support alternative
findings” in a case involving nine conspiracy counts. (Id. at p. 1671.)
The Attorney General characterizes some of the statements in Vargas as dicta that
“should be considered in the light of the specific facts of the case.”13 Defendant disputes
this characterization.
We consider Vargas, supra, 91 Cal. App. 4th 506 to have been a unique case
factually where the prosecution’s evidence of one overall conspiracy was apparently so
compelling that no reasonable juror could have found the existence of more than one
conspiracy. In that case, tried in early 1997 (id. at pp. 539, 543), various NF members
testified about the organization and its criminal activities between approximately 1989
and 1993. (Id. at pp. 520-529.)
No matter how compelling the proof was in the 1997 trial in Vargas, the resulting
appellate opinion does not prove a single fact in this case. The evidence in that case
focused on NF activities between 1989 and 1993. The evidence in this case focused on
defendant’s conduct as a NF member between April 2002 and April 2009 and his conduct
on the street until his March 2007 arrest. Vargas discussed an organizational structure
involving a Regimental Security Department that appears to have been superseded by
having individual regimental commanders reporting directly to the Pelican Bay NF
generals. There was testimony in this case that the NF constitution was revised in about
2005.
13
The Attorney General also explains how federal decisions have differentiated
“ ‘vertical’ ” or “ ‘chain’ ” conspiracies from “ ‘hub and spoke’ ” conspiracies, while
acknowledging the distinction “is of only limited value in determining whether an illegal
drug distribution network is one or more conspiracies.”
35
A more significant factual difference is that Vargas described an organization in
which NF members on the street made regular contributions to the NF bank. As we have
summarized above (in part II.A.5), there was evidence in this case that some regiments
continued to operate that way, but not defendant’s.
The Attorney General asserts that the jury in this case could have reasonably
concluded: “the NF’s goal was simply to have money put in the NF bank and on the
books for members of the NF”; defendant’s “ methamphetamine and PCP conspiracies
were in his private interest, each involving separate, if sometimes overlapping groups,
and that while he paid dues to NF and was given street authority by Guillen, the
conspiracies alleged were not solely conspiracies with members of the NF solely to fund
the NF”; and defendant “did not have an agreement with the NF as such, but rather that
any agreement he had was with Guillen, the NF general in Pelican Bay who controlled
the street regiments.” We do not understand the distinction attempted in this last point.
The Attorney General provides no record citations for these statements.14 We do
not believe the jury could have reasonably reached these conclusions based on the
evidence. What the Attorney General asserts does not resemble the prosecution’s
arguments to the jury. The prosecutor did not argue that defendant was communicating
with Guillen, paying dues, or putting money in a NF bank, and for good reason.15
We have summarized above (in part II.A.5) the evidence that members of other
regiments were paying dues to incarcerated leaders of the NF, but there was no similar
14
In another context, the Attorney General’s brief cites the testimony of Sergeant
Lewis and Mendoza about the obligation of members of other regiments to pay $200
monthly dues, but no testimony about members of defendant’s regiment paying dues.
15
We observe that it is not unusual in this kind of multi-week, multi-count gang
case for the parties on appeal to lose track of the facts presented to the jury and the
arguments made by their trial attorneys.
36
evidence that defendant had paid any NF dues or put any money on Guillen’s books or in
a NF bank. Debbie testified that when defendant met with other regiment leaders,
Ramirez talked about messages he had received from Pelican Bay saying defendant had
not been communicating with them and “hasn’t paid his dues . . . .” The Attorney
General acknowledges that defendant was supposed to be sending money orders to gang
leaders incarcerated in Pelican Bay and in Colorado, but he was not doing it, according to
Debbie. Clark testified that when he was defendant’s second in command, he did not
collect dues from regiment members. Defendant does not appear to have been playing by
the NF rules or following its directives.
Other evidence that defendant had engaged in multiple drug sales conspiracies was
that defendant had at least two different individuals as sources of methamphetamine and
PCP, and he provided those drugs to different individuals. For example, while defendant
regularly supplied Clayton Clark, his second in command, with methamphetamine to sell,
defendant did not involve Clark in PCP distribution until after defendant was arrested.
Meanwhile, Ramirez was obtaining PCP from defendant indirectly through a third party,
Abundiz.
Defendant contends that Mendoza, Ramirez, and Clark all testified that the NF
leadership controlled what crimes NF members on the streets could commit and what
drugs they could sell. The record citations do not support this contention. Even if each
gang member had uniformly testified that the gang controlled all his thoughts and actions
and those of other NF members, the jury would not have been required to believe them.
The scope of each conspiracy presented questions of fact and credibility for the jury to
decide.
The Attorney General argues at great length that the assault conspiracies were
separate from each other because defendant had different, personal reasons for assaulting
Cervantes and not Levyas. Also, the drug sales and drug smuggling conspiracies in
counts 2, 3, and particularly count 4, smuggling, were independent of each other.
37
We need not closely examine or itemize the distinct details of each conspiracy to
determine whether a factual issue was presented regarding the number of conspiracies.
The premise of defendant’s assertion of one overarching conspiracy is that everything
defendant did was for the advancement and under the direction of the NF gang. While
there was no dispute that defendant was a NF member, there was evidence that defendant
disobeyed the gang’s directive to devote a portion of the proceeds of regiment drug sales
to the gang. We cannot say as a matter of law that there was no evidence to support
alternative findings about the number of conspiracies or their objectives. The court
properly submitted to the jury the question whether any of the five alleged conspiracies
was merely part of a larger conspiracy.
B. CRIMINALLY THREATENING DEBBIE GUZMAN
The jury was instructed in terms of CALCRIM No. 1300 that proving a violation
of section 422 as charged in Count 5 involved establishing six elements: “[1] The
defendant willfully threatened to unlawfully kill or unlawfully cause great bodily injury
to Debbie Guzman; [2] [t]he Defendant made the threat in writing; [3] [t]he Defendant
intended that his statement be understood as a threat and intended that it be
communicated to Debbie Guzman; [4] [t]he threat was so clear, immediate,
unconditional, and specific that it communicated to Debbie Guzman a serious intention
and the immediate prospect that the threat would be carried out; [5] [t]he threat actually
caused Debbie Guzman to be in sustained fear for her own safety, and; [6] Debbie
Guzman’s fear was reasonable under the circumstances.” “Sustained fear means fear for
a period to time that is more than momentary, fleeting, or transitory. [¶] There are
different degrees of unconditionality. A threat which may appear conditional on its face
can be unconditional under the circumstances. Conditional threats are true threats if their
context reasonably conveys to the victim that they are intended. [¶] The word
‘immediate’ means that degree of seriousness and imminence which is understood by the
38
victim to be attached to the future prospect of the threat being carried out, should the
conditions not be met. An immediate ability to carry out the threat is not required.”
The jury was also instructed about the elements of attempted criminal threat, a
lesser offense of criminal threat, in terms of CALCRIM No. 460.
1. Sufficiency of the Evidence
On appeal defendant contends there was insufficient evidence to establish two
elements of the crime of criminal threat, namely specific intent and cause.
Familiar rules apply to appellate challenges to the sufficiency of the evidence to
support a criminal conviction. “ ‘Claims challenging the sufficiency of the evidence to
uphold a judgment are generally reviewed under the substantial evidence standard.
Under that standard, “ ‘an appellate court reviews the entire record in the light most
favorable to the prosecution to determine whether it contains evidence that is reasonable,
credible, and of solid value, from which a rational trier of fact could find [the elements of
the crime] beyond a reasonable doubt.’ ” [Citations.] “ ‘ “If the circumstances
reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the
circumstances might also be reasonably reconciled with a contrary finding does not
warrant a reversal of the judgment.” ’ ” [Citations.]’ (In re George T. (2004) 33 Cal. 4th
620, 630-631.) Furthermore, ‘In deciding the sufficiency of the evidence, a reviewing
court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution
of conflicts and inconsistencies in the testimony is the exclusive province of the trier of
fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently
improbable, testimony of a single witness is sufficient to support a conviction.
[Citation.]’ (People v. Young (2005) 34 Cal. 4th 1149, 1181.)” (People v. Fierro (2010)
180 Cal. App. 4th 1342, 1347.)
39
a. Defendant’s Intent
Defendant asserts there was a lack of proof that he intended his wife to take his
letter as a threat. On appeal he asserts they had a contentious, roller-coaster relationship
“sometimes resulting in threatening statements from both parties” and he points to their
first phone conversation about the letter on August 16, 2007 to illustrate his intent. At
trial defendant played a recording of the first call to the jury during his opening
statement. At the close of evidence, defendant argued to the jury that the phone calls
containing no threats by him, such as their initial laughter-filled discussion of his letter
and his later phone conversations with Debbie in December 2007 about other topics such
as the search of their residence, were more emblematic of his feelings and intent.
On appeal as at trial defendant downplays his telephone conversation with Debbie
on August 18, 2007. In that conversation she again brought up whether he meant what he
had written, even though they had laughed about it during a conversation two days
earlier. While the second conversation was cryptic, probably due partly to their
awareness it was being recorded, she posited that he “would not” do that to her. He
answered, “Yeah, you” and asked if she was getting cold feet.
The prosecutor attached importance to this second post-letter conversation in
argument to the jury. The prosecutor did acknowledge, “during those phone calls that
you’ve heard, it’s clear that the Defendant, they have a roller coaster relationship, and
they go up and down.” Also, Debbie was not terrified when she first received the letter,
as evidenced by their first phone conversation. The prosecutor also argued that, despite
the joviality of the first call, defendant was concerned about the amount of information
Debbie had about him. That was “the genesis of that letter.” It was a specific threat to
have her killed. “It even says, ‘you better ask somebody.’ And she even gave him on
that phone call, an out; an opportunity to say, [‘]no[, t]hat was just a joke[, t]hat was just
40
a joke[’] because she specifically came back to it and asked him about it, and she said,
‘you wouldn’t really do that to me,’ and he said, ‘yeah, I would.’ ”
A person’s intent must often be inferred from circumstantial evidence. (People v.
Falck (1997) 52 Cal. App. 4th 287, 299.) As the prosecutor argued to the jury, that second
phone conversation amounts to substantial evidence that defendant intended his wife to
take his letter as a threat.
b. The Cause of Debbie’s Fear
Regarding the true cause of Debbie’s fear, on appeal defendant advances a factual
argument he did not make to the jury. He argues that Debbie’s fear was caused not by his
August 1997 letter, but by the NF’s reputation for dealing harshly with snitches.
Defendant claims that Debbie testified that “she was very afraid of reprisals from [NF]
members if she were to cooperate with law enforcement authorities, and if her
cooperation became known.”16 Defendant’s record citations do not support this
statement.
Defendant asserts, “When she chose to cooperate, she of course feared the [NF];
but that fear was no greater because of her husband’s letter than it would have been
16
We recognize that defendant made a similar argument in his motion for new
trial, which asserted: “It was not until December of 2007 after police contacted Debbie
Guzman and raided her home that Debbie Guzman became fearful for her safety.
Therefore, the evidence establishes that Debbie Guzman was placed in fear not by the
August 2007 letter, but rather the actions of the police in making Debbie wear a wire and
testify against gang members. Debbie Guzman was well aware of the possible
repercussions of wire tapping alleged drug dealing conversations and testifying against
the [NF] organization. It was these factors that caused Debbie Guzman to be in fear, and
not the August 2007 letter which she testified that she did not take seriously at the time.”
This was a theme defendant had sounded in his opening statement (“what she’s
really afraid of is going back to prison,” “she wasn’t afraid of him, and her real fear
happened after the police essentially gave her no choice”), but he did not elaborate on this
theme in closing argument, perhaps because it was unsupported by Debbie’s testimony.
41
without the letter.” This is mere argument on appeal. There was no such testimony.
When Debbie was on the witness stand, she was not asked if her fear of NF reprisal
would have been the same without defendant’s letter.
The statute imposes two requirements on the proof of a threat victim’s fear. First,
there is a subjective component, that the threat actually caused sustained fear. Second,
the actual sustained fear must be objectively reasonable, to the extent fear can be
described as “reasonable.” (In re Ricky T. (2001) 87 Cal. App. 4th 1132, 1139-1140.)
These are both factual questions for the jury to resolve. If substantial evidence supports
the jury’s implicit findings, an appellate court should “not substitute its evaluation of a
witness’s credibility for that of the fact-finder.” (People v. Mendoza (1997) 59
Cal. App. 4th 1333, 1339 (Mendoza).)
At trial the prosecutor argued to the jury: “A threat which may appear to be
conditional on its face is unconditional under its circumstances. Conditional threats are
true threats if their context reasonably conveys to the victim that they are intended. [‘]If
you leave me[,] I will kill you.[‘] ‘Death will part us.’ And, again, immediate—
obviously, the Defendant does not have someone right there at the time the letter is read
to carry out the threat, but that’s not what the law requires. Immediate means the degree
of seriousness and imminence which is understood by the victim to attach to the future
prospect of the threat being carried out should the condition not be met.” “The moment
that she realized she was considering cooperating with law enforcement because of the
pressure they were putting on her, her mind immediately went back to that letter. She
thought back to that threat, and that threat made her think, [‘]my husband is going to have
m[e] killed if I make this decision.[‘] So much so that she even told the officers, [‘]it’s in
the letter. You got to look.[’]”
As the jury was instructed, case law has established that some conditional threats
still qualify as “so” unconditional as to convey the serious intention of the utterer and a
42
future prospect of execution to the listener. (People v. Bolin (1998) 18 Cal. 4th 297, 340.)
The threat need not create an immediate fear.
Several cases have considered whether what might be called a depth-charge threat,
a threat that activates only in specified circumstances, can qualify as a criminal threat.
The prosecutor in our case acknowledged to the jury, “Obviously there was a delay
because when she became real fearful from that threat from August 15th, until she began
cooperating with law enforcement in December of 2007 . . . .”
The jury in People v. Solis (2001) 90 Cal. App. 4th 1002 (Solis) asked the very
questions at the heart of defendant’s arguments during deliberations about a criminal
threat charge. One jury question was “ ‘Does the threatening statement have to be the
sole cause of the fear for her safety?’ ” Another two questions posed whether a statement
not initially considered a threat may later be considered a threat under changed
circumstances. (Id. at p. 1012.) “Over defense counsel’s objection, the court told the
jury that the threatening statement does not have to be the sole cause of the victim’s fear
for her safety and that a statement the victim does not initially consider a threat can later
be considered a threat because of a subsequent action or event.” (Id. at pp. 1012-1013.)
The appellate court reasoned that the nature of a threat may be revealed by subsequent
conduct by the defendant and other relevant circumstances. (Id. at p. 1014.) It concluded
that the trial court “in response to the jury’s questions, properly informed the jury that the
threatening statement does not have to be the sole cause of the victim’s fear and that a
statement the victim does not initially consider a threat can later be seen that way based
upon a subsequent action taken by a defendant . . . .” (Ibid.)
Mendoza, supra, 59 Cal. App. 4th 1333 illustrates that actions by others can also
make a threat real after it is uttered. The victim in that case testified that “she did not
initially take appellant’s words as a threat because appellant was always joking around.
At trial she denied appellant’s words alone frightened her.” (Id. at p. 1338.) His words
were that “ ‘[h]e was going to talk to some guys from Happy Town,’ ” his criminal street
43
gang, because she had “ ‘fucked up his brother’s testimony . . . .’ ” (Id. at p. 1337.) The
appellate court acknowledged that these words by themselves “did not articulate a threat
to commit a specific crime resulting in death or great bodily injury.” (Id. at p. 1340.)
However, 20 to 30 minutes after this conversation, when a car horn honked and
the victim looked out her front door, she saw defendant’s friend parked across the street
from her home. A few minutes later, her sister came home and told her defendant’s
friend was looking for her. The witness then feared for her life and called the police.
(Mendoza, supra, 59 Cal.App.4th at p. 1338.) The appellate court found there was
substantial evidence that the defendant’s words had eventually placed the victim in a state
of sustained fear, if not when he uttered them, at least when she heard a fellow gang
member was looking for her and she saw him near her house. (Id. at p. 1342.)
On appeal defendant points to another potential source of Debbie’s fear. While
she was cooperating with the police, “it was Solis and Rodriguez, on behalf of Clayton
Clark, who made threatening phone calls to her, expressing suspicion that she was
cooperating with law enforcement . . . .” It is true that, after Rodriguez questioned
Debbie during a January 18, 2008 phone conversation about why she had not mentioned
the search of her house, she told Sergeant Lewis that she was afraid of being exposed as
an informant. However, no one until now has described this call as threatening. When
Debbie told Clark about the call on February 5, 2008, she said Rodriguez was drunk,
“acting smart” and “rude.” Even if Debbie had perceived Rodriguez’s challenge to her as
threatening, as the Attorney General asserts, it is likely that this challenge reinforced
defendant’s earlier statement that he would have her killed if she did him wrong, just as
the conduct by fellow gang members in Mendoza clarified the threat made in that case.
Without citing Solis, the Attorney General argues, “Section 422 does not state that
the fear from the threat must be the sole source of fear that a victim experiences after
receiving the threat. Evidence that Mrs. Guzman might have experienced fears from
another source does not mean that the threat did not cause sustained fear.” We agree that
44
the elements of a violation of section 422 do not include a requirement that defendant’s
letter have been the sole cause of Debbie’s sustained fear so long as it was a substantial
factor in actually causing her fear. Her testimony that she thought back to the letter with
fear once she was considering cooperating with law enforcement was substantial
evidence supporting the causation element of the offense.
2. Attempted Threat
On appeal, defendant contends that the prosecutor proved at most an attempted
criminal threat. “[E]ven if the evidence would support a finding that Mr. Guzman’s letter
was written with the requisite intent, and that it was the type of threat that reasonably
could have caused Mrs. Guzman to be in sustained fear for her safety, the record does not
support a conclusion that the threat actually caused her to be in such fear, because her
fear was due to other causes, not the letter, and in other words, she would have had the
same fear with or without the letter, for the reasons” already asserted.
This was not what defendant argued to the jury. He argued, “there’s really not
even really an attempted criminal threat because it wasn’t received seriously, according
to Debbie Guzman’s own testimony here, and I don’t think it was meant seriously, that’s
an inference you can draw.” In defendant’s new trial motion, however, he argued that the
court should reduce his criminal threat conviction to an attempted threat because the
element of sustained fear was lacking.
People v. Toledo (2001) 26 Cal. 4th 221 identified three situations that would
amount to an attempted, but not completed, criminal threat. Defendant asserts that the
third one is most comparable to his case. “[I]f a defendant, again acting with the requisite
intent, makes a sufficient threat that is received and understood by the threatened person,
but, for whatever reason, the threat does not actually cause the threatened person to be in
sustained fear for his or her safety even though, under the circumstances, that person
45
reasonably could have been placed in such fear, the defendant properly may be found to
have committed the offense of attempted criminal threat.” (Id. at p. 231.)
As we have rejected defendant’s factual argument regarding the actual cause of
Debbie’s fear (in part III.B.1, ante), it follows that we have no basis for reducing his
conviction to an attempted threat.
3. Causation
On appeal defendant contends that the phrase “actually caused” in CALCRIM
No. 1300 has a technical meaning peculiar to the law that requires definition. Defendant
does not elaborate on what that peculiar meaning is. We disagree. Actual cause is used
in its ordinary sense in that instruction.
Defendant also contends that, in light of the factual controversy at trial about what
caused Debbie’s fear, the court should have given a sua sponte instruction in terms of
CALCRIM No. 240 as follows: “There may be more than one cause of [fear]. An act
causes [fear], only if it is a substantial factor in causing the [fear]. A substantial factor is
more than a trivial or remote factor. However, it does not have to be the only factor that
causes the [fear].” (Cf. CALCRIM No. 620 [when more than one cause of death].)
We accept the premise that when there is a factual dispute about whether a
criminal defendant’s conduct was among the causes of a victim’s fear, injury, or death,
the trial court sua sponte must give instructions about proximate causation and
intervening, superseding causes. (People v. Bernhardt (1963) 222 Cal. App. 2d 567, 590-
591; cf. People v. Bland (2002) 28 Cal. 4th 313, 334-335 [“proximate” cause must be
defined for jury when used in instruction]; People v. Fiu (2008) 165 Cal. App. 4th 360,
372 [jury was adequately instructed on concurrent, but not superseding, causes of death].)
However, that premise did not apply to this trial. Defendant did not argue to the
jury that the fear his letter caused Debbie was superseded by an intervening cause. As we
have explained above, defendant did not acknowledge to the jury that his letter caused
46
her any fear at all. Instead, what defense counsel argued was: “when she got up on that
witness stand and was asked about that letter, and she said, [‘]well, to tell you the truth,[’]
or words to that effect, [‘]I really [didn’t] take it seriously at the time.[’] That created a
moment of silence because my entire plan to impeach her was unnecessary. She got up
on the stand and said, [‘]I didn’t take it seriously. I never took it seriously.[’] ”
He continued, it was “not the law” that her fear upon cooperating with law
enforcement related back to the letter. It was for the jury “to decide, when she got this
letter, it was something that put her in sustained fear as opposed to something else that
happened later . . . .” “She gets on the stand and says, [‘]you know, I was never afraid,
but now all of [a] sudden I’m being asked to wear a wire and work for the police.[’]”
Defense counsel acknowledged that a threat could be conditional, but “we know when
she got [the] letter she said, ‘I know you ain’t gonna do shit,’ and they both laughed.”
There was no evidence of even an attempted criminal threat, “because it wasn’t received
seriously, according to Debbie Guzman’s own testimony here . . . .”
As the Attorney General states, “the defense theory was that the interactions
between appellant and his wife showed that the letter did not cause fear, not that it was
only a remote cause of the fear.” Had defense counsel asked for an instruction like
CALCRIM No. 240 saying the letter had to be only a substantial factor in causing
Debbie’s fear, it would have weakened his absolute position and made it easier for the
jury to convict defendant of the criminal threat charge. The defense developed no
evidentiary basis requiring the court to instruct the jury to decide whether Debbie’s fear
had one or more causes superseding defendant’s threatening letter.
In any event, we do not understand how defendant could have been prejudiced by
the omission of such an instruction. Defendant’s letter stated in part, “if my baby does
me wrong, death going to part us.” Her cooperation with law enforcement against
defendant and members of his regiment would amount to doing him wrong. Debbie
testified that she was not afraid when she received the letter in August 2007 because she
47
intended to stand by defendant, but she became afraid in December 2007 and January
2008 when conditions changed and she agreed to cooperate with law enforcement after
they searched her residence and confronted her with evidence of her guilt. Debbie did
not testify, contrary to defendant’s appellate arguments, that she would have been as
afraid of NF reprisals without his written threat.
Short of disbelieving Debbie’s testimony about her fear, the jury could not have
concluded that defendant’s letter was not at least a substantial factor in causing her fear.
Accordingly, we conclude it is not reasonably probable that the verdict would have been
more favorable to defendant had the court given such a clarifying instruction. (People v.
Catlin (2001) 26 Cal. 4th 81, 156 [“the evidence was overwhelming that paraquat
poisoning was at least a substantial factor in, if not the sole cause of, her death.”]; People
v. Burnett (2003) 110 Cal. App. 4th 868, 879 [“No reasonable jury could have found that
defendant’s actions were not a substantial factor in causing Leo’s death or that Leo’s
death was unforeseeable.”].)
C. EVIDENCE OF CONSPIRACIES TO ASSAULT
Defendant challenges the sufficiency of the evidence supporting his convictions of
conspiring to assault Daniel Cervantes (count 6) and Henry Leyvas (count 7).
While these conspiracies allegedly occupied different time periods, namely
January 22 to October 27, 2008, for Leyvas and May 1, 2008, to April 23, 2009 for
Cervantes, the documentary evidence of both conspiracies was one kite written by Frank
Ruiz on October 21, 2008 and sent to the Elmwood jail facility. The kite discussed
several reported problems in the facility and asked for reports to be filed with 4-B, where
Ruiz and defendant were housed in jail. It also stated, “ ‘Also concerning Bear
Cervantes. He’s been deemed no good. Thus his removal was just.’ ” “ ‘There’s also a
registered sex offender in M-8. I believe his name is Henry Leyva. He’s to be dealt with
ASAP.’ ”
48
1. Jury Argument
The prosecutor argued to the jury that the Ruiz kite consisted of a series of
“directives that are sent out by the leadership of this organization to active members in
Elmwood . . . .” At the time, “Frank Ruiz was the authority in charge, the second in
command to the Defendant, Lorenzo Guzman.” Defendant was “the overall authority in
the county jail as the regimental commander . . . .” According to Sergeant Lewis, Officer
Gillotte, John Mendoza, Sammy Ramirez, and Vince Tirri, “only the regimental
commander has the authority to order removals in the county jail, and they must conduct
an investigation before that order is given.” The Northerners in Elmwood were required
“to follow the directives to remove inmates once they were ordered, and once they were
determined and told to remove this person, or that this person was deemed ‘no good,’ that
it was incumbent upon them to remove them with a deadly weapon. And we know that
the Defendant actually told Vince Tirri whey they were housed together in the Super Max
that he told Vinni Tirri that the reason why he had Danny Cervantes removed and
deemed him ‒ well, not removed, but why he deemed him ‘no good’ was “because
Danny Cervantes owed him a $400 drug debt . . . .” “[A]t the time that that message
went out, we know that the only person that had the authority to be the authority behind
that kite deeming Bear Cervantes ‘no good’ was the Defendant. And we know that
everyone, you’ve heard from all of the experts, John Mendoza, Sammy Ramirez, even
sex offenders, every one of those individuals that are going to be removed by the
organization, there has to be an investigation done into it. They have to know exactly
what it is. Because removing someone from the organization is something that you can’t
go back on, and whoever makes the decision is responsible for that decision. And so if
you make a bad decision, if you remove someone for reasons that are unjust, that person
could be subject to discipline by the organization themselves. And that authority only
resides with the regimental commander, and that was the Defendant. He was the only
49
person that would have the ability to give the authority for Frank Ruiz to write it in that
kite.”
Defendant argued to the jury that sometimes removals were not ordered by the
highest authority. The gang’s rules were not always followed. “Frank Ruiz said, [‘] well,
I was running this as the overall authority.[’]” “I don’t even think a conspiracy has been
proved[] [i]f you give Frank Ruiz any credence whatsoever[. N]ow, I understand he has
motive to help[] the actual gang member. He has [a] motive . . . to help Mr. Guzman. He
wouldn’t be here if he wasn’t helping him . . . .”
Defendant argued that the prosecution’s evidence was inconsistent about whether
prior approval or an investigation was required to assault a sex offender like Henry
Leyvas.
Defense counsel asserted that Ruiz had testified “[‘]I got a kite about Henry
Leyvas that said that he had raped somebody’s sister. I’m the guy who’s in charge on
that, and I wrote the kite, and I did it. I didn’t discuss it with Lorenzo Guzman.[’]”
Mendoza testified that people break gang rules all the time.
Defense counsel continued that everybody agreed Ruiz “was running the day-to-
day functions of the jail.” The kite said Cervantes’ “removal was just” because Ruiz
testified that he thought “this whole thing with Cervantes was past tense” because he had
received misinformation that Cervantes had gone into protective custody. In fact, though
Tirri said that he heard Cervantes was assaulted, Cervantes testified that he was never
assaulted and that no one had tried to assault him.
“I don’t think they have proven their case. They haven’t proven their case as to
Henry Leyvas for sure because the conspiracy requires an actual agreement. I don’t think
they have proven an agreement. I think it’s at least—I don’t think you can reject Frank
Ruiz’s testimony. He did it on his own.” The prosecutor did not prove that defendant
“entered into an agreement with anybody to assault either Henry Leyvas or Danny
Cervantes.”
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2. Appellate Argument
On appeal, defendant essentially contends that the jury was required to believe the
testimony of defense witnesses Ruiz and Cervantes regarding the assault counts. “[B]oth
Ruiz and Cervantes testified at the trial, and in light of their testimony the prosecution’s
position was not tenable, because the information on which it was based was shown to be
incorrect.” Defendant’s opening brief reviews their testimony in great detail.
In other words, defendant is asking this court to believe the testimony of Ruiz,
apparently rejected by the jury, that when he wrote the kite in October 2008, defendant
had been temporarily stripped of authority and placed “on freeze” by a mysterious kite
that Ruiz destroyed after reading. According to defendant, “all the evidence is that he
was ‘on freeze’ at the time [the kite] was issued.” Ruiz’s kite was intended to calm
people in Elmwood down, on the false assumption that Cervantes had already been
removed. Ruiz did not discuss the kite with defendant before writing it. Ruiz and
Cervantes both testified that Cervantes talked to Ruiz in February 2009 about his $400
debt to defendant. Ruiz told him not to worry about it and just pay it off after his release.
We have reviewed the testimony of Cervantes and Ruiz above (in part II.D) and
need not summarize it in detail here. It was for the jury to determine their credibility. It
is not the role of an appellate court to redetermine questions of credibility. (People v.
Osslo (1958) 50 Cal. 2d 75, 84.) Suffice it to say that the jury had reason to disbelieve
each one of them.
Apart from Ruiz’s testimony that defendant was temporarily removed from his
position as the overcall NF jail authority when Ruiz wrote the kite, the prosecution’s
evidence established that defendant was the only NF authority in the Santa Clara County
Jail who could authorize removals and that he had a motive to deem Cervantes no good,
namely an unpaid drug debt. Defendant was similarly the authority for Ruiz’s kite
identifying Leyvas as a target for removal, even if NF policy allowed the removal of a
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sex offender without a regimental commander’s prior written approval, as defendant
suggests. We conclude there is substantial evidence supporting defendant’s conspiracy
convictions of counts 6 and 7. (Cf. People v. Lopez (2013) 56 Cal. 4th 1028, 1071.)
IV. DISPOSITION
The judgment is affirmed.
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______________________________________
RUSHING, P.J.
WE CONCUR:
____________________________________
PREMO, J.
____________________________________
MÁRQUEZ, J.
People v. Guzman
H039532
53