People v. Kopp ( 2019 )

Filed 7/31/19
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D072464
Plaintiff and Respondent,
v. (Super. Ct. No. SCN327213)
CHRISTI J. KOPP et al.,
Defendants and Appellants.
APPEALS from judgments of the Superior Court of San Diego County, Harry M.
Elias, Judge. Affirmed in part; reversed in part; remanded with directions.
Eric R. Larson, under appointment by the Court of Appeal, for Defendant and
Appellant Christi J. Kopp.
Rebecca P. Jones, under appointment by the Court of Appeal, for Defendant and
Appellant Jason Samuel Hernandez.
Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General,
A. Natasha Cortina, Melissa Mandel and Adrian R. Contreras, Deputy Attorneys General,
for Plaintiff and Respondent.
The jury convicted Jason Samuel Hernandez and Christi J. Kopp (Hernandez and
Kopp together Appellants) of conspiracy to commit murder (Pen. Code, 1 §§ 182,
subd. (a)(1), 187; count 3), conspiracy to dissuade a witness (§§ 136.1, 182, subd. (a)(1);
count 4), and furnishing a controlled substance (Health & Saf. Code, § 11379, subd. (a);
count 5). The jury also convicted Hernandez of assault with a deadly weapon (§ 245,
subd. (a)(1); count 1) and assault by means likely to produce great bodily injury (§ 245,
subd. (a)(4); count 2). As to counts 1 and 2, the jury found true Hernandez personally
inflicted great bodily injury within the meaning of section 12022.7, subdivision (a). In
addition, the jury found true allegations that Hernandez committed counts 1 through 3
and Kopp committed count 3 for the benefit of a criminal street gang within the meaning
of section 186.22, subdivision (b).
In a bifurcated proceeding, Hernandez admitted, and the trial court found true, he
was previously convicted of a violent and serious felony within the meaning of
sections 667.5, subdivisions (a)(1), 668, and 1192.7, subdivision (c) and a prison prior
within the meaning of section 667.5, subdivision (b).
The court ultimately sentenced Hernandez to prison for 81 years to life. 2 The
court sentenced Kopp to prison for four years plus 25 years to life.
Hernandez appeals, contending: (1) as a matter of law, he cannot be convicted
under both section 245, subdivision (a)(1) and subdivision (a)(4); (2) the trial court
1 Statutory references are to the Penal Code unless otherwise specified.
2 The court originally sentenced Hernandez to prison for 84 years to life. However,
it subsequently resentenced Hernandez to prison for 81 years to life.
2
committed prejudicial error in responding to the jury's question about the definition of a
deadly weapon; (3) there was insufficient evidence to prove the gang enhancement as to
count 3; (4) there was insufficient evidence to convict Hernandez of conspiracy to
commit murder; and (5) the trial court prejudicially erred when it ordered Hernandez to
be restrained at trial.
Kopp appeals, alleging the trial court prejudicially erred by failing to sua sponte
instruct the jury to determine whether there were one or two conspiracies. Hernandez
joins this argument.
Finally, Appellants claim various sentencing errors as well as errors in their
respective abstracts of judgment. Specifically, Kopp argues that the court should have
stayed her sentence under count 5.
We agree with Appellants that the trial court erred in failing to sua sponte instruct
the jury to determine whether there existed one or two conspiracies. As such, we reverse
Appellants' convictions under count 4 and vacate their respective sentences. We reject
Hernandez's other substantive arguments in his opening brief as well as Kopp's argument
that section 654 mandated the trial court to stay her sentence under count 5.
While this case was pending, Hernandez filed a motion for leave to file a
supplemental brief. We granted the motion, and Hernandez makes two arguments in his
supplemental brief. First, he asserts that Senate Bill No. 1393 amended sections 667,
subdivision (a) and 1385 to allow the trial court discretion to strike an enhancement under
section 667, subdivision (a). Hernandez maintains, and the People agree, this matter
must be remanded to allow the superior court to resentence Hernandez consistent with
3
this change in the law. Because we are vacating Hernandez's sentence as a result of
reversing his conviction under count 4, the trial court may exercise its discretion under
Senate Bill No. 1393 during resentencing.
Second, Hernandez argues, under People v. Dueñas (2019) 30 Cal.App.5th 1157(Dueñas) that we must remand this matter back to the superior court to allow the court to
determine his ability to pay any assessments and fines before imposing them. Kopp has
joined this issue. In their supplemental brief, the People agree with Appellants that this
matter should be remanded to the superior court for an ability to pay hearing as to certain
assessments. However, the People contend that the punitive fines levied against
Appellants are not subject to the ability to pay hearing set forth in Dueñas but, instead,
should be analyzed under the excessive fines clause of the Eighth Amendment. We agree
with the People's suggested approach. Thus, on remand, we will order the court to hold
an ability to pay hearing for both Appellants consistent with the dictates of this opinion.
Additionally, the court can consider Appellants' argument that the punitive fines violate
the excessive fines clause, if that issue is raised.
In summary, we reverse Appellants' respective convictions under count 4 and
vacate their sentences. The matter will be remanded for resentencing consistent with this
opinion. After resentencing Appellants, the trial court is to amend the abstracts of
judgment accordingly. In all other respects, the judgments are affirmed.
4
FACTUAL BACKGROUND
Prosecution
On December 22, 2013, U.P., an affiliate with the Mexican Mafia and a local gang
in Fallbrook called the Varrio Fallbrook Locos, met A.C. in a motel in Fallbrook to enlist
her to help sell methamphetamine. In the motel hallway, U.P. met Hernandez, a leader of
the Varrio Fallbrook Locos gang and the Mexican Mafia. Hernandez's gang moniker is
"Capone." He only had been recently released from prison. Hernandez introduced U.P.
to Kopp, who Hernandez described as a secretary. 3 U.P. and Hernandez discussed the
possibility of selling methamphetamine with U.P. being Hernandez's right-hand man.
The two men returned to U.P.'s and A.C.'s room. Hernandez told A.C. that she
owed money to the Mexican Mafia, and he had a "green light" to collect her debt, which
was code for approval to kill or assault A.C. A.C. denied owing any debt. Hernandez
followed A.C. out of the room to the hallway, called out to another female gang affiliate
named K.D., and told her to get A.C.
In the hallway, K.D. and Hernandez cut A.C. at different times and with different
knives. A.C. bled profusely from the head and had several cuts to her head and face.
Hernandez punched her in the head multiple times and kicked her in the face. After
being attacked, the next thing A.C. remembered was getting up and knocking on U.P.'s
door.
3 A secretary is someone who transmits information and money to and from
Mexican Mafia members who are in custody.
5
U.P. called 911 and reported that Capone from Fallbrook had a "hit" on A.C.
because she supposedly owed money. He claimed Hernandez had stabbed A.C. Both
U.P. and A.C. thought A.C. was dying. K.D. and Hernandez left the scene. A.C. went to
the hospital, and CT scans revealed multiple facial and nasal fractures.
Later that night, officers conducted a traffic stop of Kopp near the motel, and she
admitted staying in a room in the motel that night and claimed "hearing" an altercation in
the hallway between a bald, white male and a white female. U.P. later identified
Hernandez and K.D. as the two assailants, and A.C. identified Hernandez.
K.D. was affiliated with Varrio Fallbrook Locos. Officers searched K.D.'s
residence, found gang-related indicia, and arrested her for assaulting A.C. 4
On December 30, 2013, Appellants met with E.P., who was the member of a
different gang and previously a secretary for the Mexican Mafia. Appellants did not
know that E.P. was an informant and wore a wire. 5 Hernandez described the assault to
E.P., saying he told his "homegirl" to "blast" A.C. and he "kicked her in the face, boom"
and he had blood on his shoe.
After the meeting, Hernandez was arrested for assaulting A.C. Kopp was present
and her phone was seized by law enforcement but she remotely erased it. She called E.P.
with another phone to notify him that Hernandez had been arrested and that her contact
list was potentially compromised. Kopp, from that point forward, served as an
4 K.D. pled guilty to assault with a deadly weapon and admitted a gang allegation.
5 E.P. was a convicted killer, among other offenses, and he faced 20 years in a new
case that the North County Regional Task Force investigated.
6
intermediary between Hernandez and E.P. Appellants talked on the phone and met in
person several times over the following weeks.
Initially, Appellants told E.P. to "talk to" both A.C. and U.P. Hernandez asked
Kopp to reach out to U.P. and figure out how they could "resolve this." Kopp had
difficulty contacting U.P. Hernandez had Kopp contact other local gang members to find
U.P.
In gang nomenclature, "talk" could mean several things, so E.P. asked Kopp what
it was that she and Hernandez wanted done with A.C. and U.P. Kopp indicated she
would get direction from Hernandez. For several weeks, E.P. followed up to get
clarification from Kopp about what Hernandez wanted him to do to A.C. and U.P. but
received no response. E.P. floated the options of having them assaulted, talked to, killed,
or left alone. E.P. told Kopp he could hire a hit man if they wanted either witness killed.
Kopp said she would confer with Hernandez.
On February 9, 2014, during a jail visit, Hernandez told Kopp in coded language
that U.P. should be killed but A.C. should only be dissuaded from testifying.
Specifically, Hernandez said, "it's official. The dude? (UI) And the other one? Talk.
Very simple."
The next day, Kopp texted E.P. the information: (1) A.C.'s debts would be
forgiven if she agreed not to testify, and (2) U.P. should be killed:
"It's Christi. Okay. I saw Caps yesterday and this is what needs to
be done. As for [A.C.], she needs to be talked to and told the tios[6]
6 A "tio" is a Mexican Mafia member.
7
have her name, now she needs to just remain silent, walk away from
this case. The tios know all her debts and will wash them clean, but
she has to shut up and Capone hopefully comes home. [¶] As for
[U.P.], tios said done dada. He is off the case in cases,[7] to
permanently reside—resign with his vida being sent above. Now my
man questioning why you or us are needing to pay wages to your
guy, but he has four oz's to hand over. . . ." 8
Later, during a recorded conversation, Kopp asked E.P. if he understood her text.
When E.P. asked what Hernandez said, Kopp confirmed the order to kill U.P. and bribe
A.C., stating:
"Those were . . . just about his exact words that I typed . . . . [U.P.'s]
a goner and it's already been ordered . . . . And for her they um, for
you to work your magic and talk to her (giggles) and tell her, you
know, they also, they do know and umm, everything will be wiped
out, of course, you know, if she just, she keeps her fuckin' little fat
mouth shut."
On February 13, 2014, E.P. told Kopp that he spoke to A.C. personally,
compensated her, informed her that her debts had been forgiven, and she agreed not to
testify against Hernandez. Officers asked through E.P. that Kopp obtain discovery from
Hernandez that showed what U.P. had told officers.
7 To be "off the case in cases" means that a person is no longer eligible to do
business with anyone affiliated with the Mexican Mafia.
8 This text was referenced in multiple portions of the record. At least two different
times, the substance of the text was read into the record with slight differences. Neither
party has pointed us to the record where a copy of subject text exists. Our independent
search of the record has not uncovered the actual text. As such, we repeat here the
substance of the text as read in the record during trial when the individual purported to
read the entire text. No party objected that the reading of the text was incorrect. Further,
the differences between the various readings of the text appear to be minor, and no party
takes issue with them. For consistency and convenience, we quote from only one of the
readings of the subject text and disregard the minor discrepancies among the versions
introduced at trial.
8
On February 14, 2014, Kopp told E.P. that Hernandez's attorney showed him the
discovery regarding A.C.'s assault and learned U.P. was "running his mouth telling
everything giving every . . . name you can imagine." E.P. sought authorization to kill
U.P. by asking her, "so that's a go then?" Kopp confirmed the authorization by replying,
"That's a go!"
Continuing to direct E.P.'s interaction with Kopp, officers "negotiated" a payment
of two ounces of methamphetamine to a "hit man" known to E.P. to kill U.P. Kopp
obtained the methamphetamine and, on February 22, 2014, an undercover officer, posing
as the hit man and wearing a wire, met with her, showed her two photos of U.P. to
confirm he was "whacking" the correct person and accepted the methamphetamine. The
undercover officer told her he would kill U.P. within the week, and E.P. would call her
and tell her when U.P. was dead.
On February 26, 2014, in another recorded conversation, Kopp told E.P. to either
take A.C. to the district attorney's office to get the assault charges dropped or prevent her
from attending the preliminary hearing that was scheduled to occur the following month.
On February 28, 2014, E.P. told Kopp that U.P. was killed as instructed.
Using coded language, Kopp told Hernandez during a jail visit that U.P. was
killed, and he responded, "Okay."
Appellants continued their jail visits and phone calls through March 2014, when
Kopp was arrested following a jail visit with Hernandez. After Kopp was arrested,
officers searched her car and found several pages of the police report of the assault
investigation with U.P.'s statement to officers circled and two stars written next to it.
9
Defense
Based on A.C.'s blood draw from the hospital, a toxicologist opined that at the
time the police were called, A.C. had a blood alcohol content of about .14 percent. In
that state, A.C.'s ability to defend herself would have been impaired.
DISCUSSION
I
HERNANDEZ'S CONVICTIONS FOR TWO COUNTS OF ASSAULT
The jury convicted Hernandez of two counts of assault: assault with a deadly
weapon (§ 245, subd. (a)(1); count 1) and assault by means likely to produce great bodily
injury (§ 245, subd. (a)(4); count 2). Relying on In re Jonathan R. (2016) 3 Cal.App.5th
963 (Jonathan R.), Hernandez contends that he could not be convicted of both counts of
assault based on the same assault. Jonathan R. involved a prosecution and true findings
for a minor violating section 245, subdivision (a)(1) and (4), where the minor stabbed
another minor during a brawl. The juvenile court found both violations as well as
enhancement allegations true. (Jonathan R., at p. 966.) The appellate court determined
that both subsections of subdivision (a) of section 245 were not separate offenses, but that
the subdivision (a)(4) allegation was a lesser included offense of the subdivision (a)(1)
allegation. (Jonathan R., at pp. 966-975, relying on People v. Gonzalez (2014) 60 Cal.4th
533, 539-540 [finding that where a defendant is convicted of committing oral copulation
on an unconscious victim under § 288a, subd. (f), as well as committing the same sex act
on an intoxicated victim under § 288a, subd. (i), the two subdivisions set forth different
circumstances under which a single act of oral copulation can be committed and are not
10
clearly divisible distinct acts].) The appellate court ordered the juvenile court to vacate
its findings on the lesser included offense to reduce the minor's maximum term of
confinement on the substantive offense and related enhancements. (Jonathan R., at
pp. 975-976.)
Recently, this court criticized Jonathan R. and declined to follow it. (See
People v. Brunton (2018) 23 Cal.App.5th 1097, 1106 (Brunton.) In Brunton, the
defendant was charged with violations of subdivision (a)(1) of section 245 and
subdivision (a)(4) of the same statute for a single act of choking a cellmate with a tightly
rolled towel. Based on the unique facts of the case before us, we concluded the
subdivisions were merely different statements of the same offense and the defendant
could not be convicted of violating both subdivisions. (Brunton, at pp. 1105-1107,
relying on People v. Vidana (2016) 1 Cal.5th 632, 647-651 [concluding larceny and
embezzlement were the same offense and § 954 does not authorize multiple convictions
for different statements of the same offense].)
In short, Jonathan R. and Brunton consider whether a single act can lead to a
conviction for violating subdivisions (a)(1) and (4) of section 245. Both cases conclude
that section 954 requires that a second conviction under the statute must be vacated, but
for different reasons. However, we do not need to resolve this disagreement because
neither case is instructive here. In each of the two cases, a single act was the basis for the
alleged violations of section 245, subdivision (a)(1) and (4). Here, that is not the case.
11
Thus, both Jonathan R. and Brunton are distinguishable. 9 Instead, of following either
case, we evaluate the issue before us under section 954.
Generally, a defendant can be convicted of multiple charged offenses. (§ 954.) 10
The California Supreme Court has " 'repeatedly held that the same act can support
multiple charges and multiple convictions. "Unless one offense is necessarily included in
the other [citation], multiple convictions can be based upon a single criminal act or an
indivisible course of criminal conduct (§ 954)." [Citation.]' " (People v. White (2017)
2 Cal.5th 349, 353-354.) In determining whether a defendant may be convicted of
multiple charged offenses, courts apply the statutory elements test. (People v. Reed
(2006) 38 Cal.4th 1224, 1231.) Under the elements test, if the statutory elements of one
offense include all the statutory elements of another offense, the latter is necessarily
included in the former. (Id. at p. 1227.)
Under section 954, a separate conviction is permissible for each completed
charged offense, even if the defendant had the same intent and objective in committing
multiple crimes and even if the defendant committed the crimes at or near the same time.
(People v. Johnson (2007) 150 Cal.App.4th 1467, 1474-1477.) For example, in Johnson,
9 Hernandez does not discuss Brunton, supra, 23 Cal.App.5th 1097 in any of his
briefs. The People argue Brunton was wrongly decided. Because we conclude Brunton
is not applicable here, we need not address the People's argument.
10 As relevant here, section 954 provides: "An accusatory pleading may charge two
or more different offenses connected together in their commission, or different statements
of the same offense or two or more different offenses of the same class of crimes or
offenses, under separate counts . . . . The prosecution is not required to elect between the
different offenses or counts set forth in the accusatory pleading, but the defendant may be
convicted of any number of the offenses charged . . . ."
12
the court held that a defendant could properly be charged with and convicted of multiple
counts of spousal abuse based on acts occurring during a single event where the victim
suffered multiple injuries caused by distinct applications of force, because the crime is
complete upon the willful and direct application of physical force upon the victim
resulting in injury. (Ibid.) Similarly, counts 1 and 2 in this case were based on different
acts committed during a single incident. During closing argument, the prosecutor
separated what was needed to establish Hernandez committed an assault with a deadly
weapon as opposed to assault by a means likely to produce great bodily injury. As to the
former, the prosecutor focused on the use of a knife to stab and/or slash the victim,
referring to a knife as a "deadly weapon other than a firearm[.]" He also emphasized that
the victim was "cut" and "needed some sort of liquid suturing . . . to close the injuries."
Further, there was evidence proffered at trial that the victim was stabbed multiple times.
Regarding count 2, the prosecutor pointed out that the victim suffered great bodily injury
as evidenced by her "[b]roken orbitals[,] [b]ilateral nasal fracture[, and] [c]rooked nose
two and a half years after the event." The evidence at trial showed that Hernandez
punched and kicked the victim in the head. Indeed, Hernandez told E.P. that he "kicked
[the victim] in the face" and had blood on his shoe. The jury instructions as well
informed the jury that to convict Hernandez on count 1, it must find that he used a deadly
weapon, but that to convict him on count 2, it must find only that he used force likely to
result in great bodily injury. Accordingly, the record before us presents two separate acts
for each count of assault. Count 1 is based on the use of a knife. Count 2 is based on
punches and kicks to the head. The fact that these separate acts occurred during the same
13
altercation does not bar the jury from convicting Hernandez under both counts. 11 (See
People v. White, supra, 2 Cal.5th at pp. 353-354; Johnson, at pp. 1474-1477.)
II
THE JURY'S QUESTIONS ABOUT THE DEFINITION OF DEADLY WEAPON
A. Hernandez's Contention
Hernandez argues the trial court erred in referring the jury to CALCRIM No. 875
in response to the jury's question regarding the definition of deadly weapon. He contends
he was prejudiced by the trial court's allegedly incorrect response.
B. Background
The trial court instructed the jury under CALCRIM No. 875 as follows:
"Defendant Jason Hernandez is charged in count one with assault
with a deadly weapon other than a firearm in violation of Penal Code
section 245(a)(1).
"Jason Hernandez is charged in count two with assault with force
likely to produce great bodily injury in violation of Penal Code
section 245(a)(4).
"To prove the defendant guilty of these crimes, the People must
prove that as to count one, element one, the defendant did an act
with a deadly weapon other than a firearm that by its nature would
directly and probably result in the application of force to a person.
"As to count two, element one, the defendant did an act that by its
nature would directly and probably result in the application of force
to a person; element two, the force used was likely to produce great
bodily injury; element three, the defendant did that act willfully;
element four, when the defendant acted he was aware of facts that
would lead a reasonable person to realize that his act by its nature
would directly and probably result in the application of force to
11 The court stayed Hernandez's sentence under count 2 pursuant to section 654.
14
someone; element five, when the defendant acted he had the present
ability to apply force likely to produce great bodily injury or with a
deadly weapon other than a firearm; and element six, the defendant
did not act in defense of someone else.
"Someone commits an act willfully when they do it willingly or on
purpose. It is not required that they intend to break the law, hurt
someone else or gain any advantage.
"The terms application of force and apply force mean to touch in a
harmful or offensive manner. The slightest touching can be enough
if done in a rude or angry way. Making contact with another person
including through their clothing is enough. The touching does not
have to cause pain or injury of any kind. The touching can be done
indirectly or by causing an object or someone else to touch the other
person.
"The People are not required to prove that the defendant actually
touched someone. The People are not required to prove the
defendant actually intended to use force against someone when he
acted. No one needs to actually have been injured by the act but, if
someone was injured, you may consider that fact, along with all of
the other evidence, in deciding whether the defendant committed the
assault and, if so, what kind of assault it was.
"Voluntary intoxication is not a defense to assault.
"Great bodily injury means a significant or substantial physical
injury. It is an injury that is greater than minor or moderate harm.
"A deadly weapon other than a firearm is any object, instrument or
weapon that is inherently deadly or one that is used in such a way
that it is capable of causing and likely to cause either death or great
bodily injury."
During jury deliberations, the jury submitted the following questions to the court:
"1) What constitutes a deadly weapon?
"2) Specifically does a fist or foot/shoe qualify?"
15
The court read the two questions to counsel. The prosecutor suggested that the
court refer the jury to CALCRIM No. 875. Counsel for both Hernandez and Kopp agreed
with the proposed response. The court then indicated that it was "going to write down
CALCRIM 875 defines a deadly weapon." Nobody objected.
The court subsequently responded to the jury's two questions in writing, stating
"CALCRIM 875 defines a deadly weapon." The next day, the jury returned its verdict.
C. Relevant Law
Section 1138 provides that when jurors "desire to be informed on any point of law
arising in the case" "the information required must be given." "Section 1138 . . . thereby
creates a ' "mandatory" duty to clear up any instructional confusion expressed by the
jury.' " (People v. Loza (2012) 207 Cal.App.4th 332, 355, quoting People v. Gonzalez
(1990) 51 Cal.3d 1179, 1212.) "This does not mean the court must always elaborate on
the standard instructions. Where the original instructions are themselves full and
complete, the court has discretion under section 1138 to determine what additional
explanations are sufficient to satisfy the jury's request for information. [Citation.]
Indeed, comments diverging from the standard are often risky. . . . But a court must do
more than figuratively throw up its hands and tell the jury it cannot help. It must at least
consider how it can best aid the jury. It should decide as to each jury question whether
further explanation is desirable, or whether it should merely reiterate the instructions
already given." (People v. Beardslee (1991) 53 Cal.3d 68, 97.) We review for an abuse
16
of discretion any error under section 1138. (People v. Eid (2010) 187 Cal.App.4th 859,
882.)
D. Analysis
As a threshold issue, the People argue Hernandez forfeited this issue on appeal
because his attorney did not object to the trial court's response to refer the jury to
CALCRIM No. 875. (See People v. Dykes (2009) 46 Cal.4th 731, 802; People v. Ross
(2007) 155 Cal.App.4th 1033, 1048-1049.) The People further note that Hernandez's trial
counsel expressly agreed with the court's response. As such, the People assert, based on
the invited error doctrine, Hernandez cannot complain the trial court erred in giving an
instruction that his counsel consented, invited, or tacitly approved to be given. (See Ross,
at p. 1048.) Finally, the People note that by expressly agreeing to the court's response to
the jury's questions, Hernandez waived any claim of error on appeal. (See People v.
Castaneda (2011) 51 Cal.4th 1292, 1352; People v. Harris (2008) 43 Cal.4th 1269, 1317;
People v. Roldan (2005) 35 Cal.4th 646, 729.)
In response, Hernandez relies on section 1259, which provides that an "appellate
court may . . . review any instruction given . . . even though no objection was made
thereto in the lower court, if the substantial rights of the defendant were affected
thereby." "[T]he failure to object to an instruction in the trial court waives any claim of
error unless the claimed error affected the substantial rights of the defendant, i.e., resulted
in a miscarriage of justice, making it reasonably probable the defendant would have
obtained a more favorable result in the absence of error. [Citations.]" (People v.
Andersen (1994) 26 Cal.App.4th 1241, 1249.) Here, Hernandez claims his substantial
17
rights were affected because CALCRIM No. 875 allowed the jury to convict him of
assault with a deadly weapon under a legally inadequate theory, namely striking the
victim with fists or feet. 12 We disagree.
We observe that Hernandez does not argue that any of the jury instructions
misstated the law or were otherwise incorrect. Further, we conclude he had no grounds
on which to claim the instructions misstated the law. Therefore, the specific jury
instruction at issue here (CALCRIM No. 875) correctly stated the law. (See People v.
Golde (2008) 163 Cal.App.4th 101, 123.) That jury instruction explicitly defined deadly
weapon as "any object, instrument, or weapon [other than a firearm] that is inherently
deadly or capable of causing and likely to cause either death or great bodily injury."
(CALCRIM No. 875.) In this sense, the jury instruction directly answers the jury's first
question regarding "[w]hat constitutes a deadly weapon." The trial court was well within
its discretion to refer the jury back to the very instruction that provided a specific answer
to the jury's question. No more information was needed or required.
The jury's second question was related to the first in that it focused on whether
specific items (fist or foot/shoe) could be deadly weapons. As with the first question, the
trial court's response was to point the jury to CALCRIM No. 875, which unambiguously
12 The People point out that none of the cases relied on by Hernandez concern a trial
court's response to a jury question under section 1138. As such, the People imply that the
law is unclear that section 1259 would apply to the issue presented here. Because
section 1259 directly addresses the issue of waiver of instructional error, it logically
follows that it would govern the waiver issue involving a trial court's response to a jury's
question implicating a jury instruction, triggering section 1138. (See People v. Hillhouse
(2002) 27 Cal.4th 469, 505-506.)
18
answered the jury's second question. The instruction limits a "deadly weapon" to an
"object, instrument or weapon." A fist or foot does not fit that provided definition. The
"object, instrument or weapon" in the statute is an item "extrinsic to the human body."
(People v. Aguilar (1997) 16 Cal.4th 1023, 1034 (Aguilar).) Put another way,
CALCRIM No. 875 did not instruct the jury that it could convict Hernandez of assault
with a deadly weapon merely because he or K.D. struck the victim with their fists or feet.
Moreover, we assume the jury understood and followed the instructions. (See People v.
Mickey (1991) 54 Cal.3d 612, 689, fn. 17.)
Nevertheless, relying on Aguilar, supra, 16 Cal.4th 1023, Hernandez insists the
trial court was obligated to do more than just refer the jury to CALCRIM No. 875. We
do not share Hernandez's expansive reading of Aguilar. In that case, the prosecutor
asserted, during closing argument, that hands and feet may be deadly weapons under
section 245, subdivision (a)(1). (Aguilar, at p. 1029.) Our high court determined that
hands and feet cannot constitute deadly weapons under the statute. (Id. at p. 1034.) The
court explained that "[r]eading the statute as a whole in a commonsense manner that
avoids rendering any part superfluous [citation] and considering its history, we conclude
a 'deadly weapon' within the meaning of section 245 must be an object extrinsic to the
human body. Bare hands or feet, therefore, cannot be deadly weapons[.]" (Aguilar, at
p. 1034.)
The court did not address CALCRIM No. 875 or otherwise hold that CALCRIM
No. 875 was an incorrect statement of law. However, CALCRIM No. 875 contains the
same definition of deadly weapon that is found in section 245, subdivision (a)(1).
19
Because the court found that the definition of deadly weapon in the statute clearly
required an "object intrinsic to the body," it logically follows that the analogous language
found in CALCRIM No. 875 required the same. "Review of the adequacy of instructions
is based on whether the trial court 'fully and fairly instructed on the applicable law.'
[Citation.]" (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) In determining
whether error has been committed in giving jury instructions, we consider the instructions
as a whole and assume jurors are intelligent persons, capable of understanding and
correlating all jury instructions which are given. (Ibid.) " 'Instructions should be
interpreted, if possible, so as to support the judgment rather than defeat it if they are
reasonably susceptible to such interpretation.' [Citation.]" (Ibid.) "The crucial
assumption underlying our constitutional system of trial by jury is that jurors generally
understand and faithfully follow instructions." (People v. Mickey, supra, 54 Cal.3d at
p. 689, fn. 17.)
Here, CALCRIM No. 875 was a correct statement of the law. It did not instruct
the jury that hands or feet could be deadly weapons. Thus, the trial court referring the
jury back to that instruction in response to the jury's questions about what constitutes a
deadly weapon was not an abuse of discretion and did not adversely impact Hernandez's
substantial rights. Thus, we conclude that Hernandez forfeited this claim on appeal. 13
(See People v. Andersen, supra, 26 Cal.App.4th at p. 1249.)
13 To avoid forfeiture, Hernandez argues his trial counsel was constitutionally
ineffective for failing to object to the trial court's response to the jury's questions.
However, in analyzing forfeiture here, we evaluated whether Hernandez's substantial
20
Additionally, even if we did not find forfeiture, Hernandez has not shown that he
was prejudiced by the trial court's response to the jury's questions. Here, the prosecutor
did not argue hands or feet could be a deadly weapon. Instead, the prosecutor focused on
the evidence that Hernandez and/or K.D. used a knife to cut the victim. And the evidence
proffered at trial supports the theory that the use of a knife as a deadly weapon. A.C.
testified that right before K.D. attacked her, Hernandez followed A.C. out of the motel
room to the hallway and told K.D. to get her. K.D. and Hernandez cut A.C. at different
times with different knives. A.C. bled profusely from the head, where she was cut.
Against this backdrop, Hernandez has not shown that he was prejudiced by the trial
court's response to the jury's questions about what constitutes a deadly weapon. 14
rights were adversely affected. In doing so, we looked at the merits of Hernandez's
claims. As such, we need not reach Hernandez's claim of ineffective assistance of
counsel. Moreover, as we explain later, Hernandez has not shown he was prejudiced by
the trial court's response. Thus, his ineffective assistance of counsel claim would fail for
this reason as well. (See Strickland v. Washington (1984) 466 U.S. 668, 694; People v.
Ledesma (1987) 43 Cal.3d 171, 217-218.)
14 We observe that the jury asked if a shoe can be considered a deadly weapon.
Certain shoes can be. (See Aguilar, supra, 16 Cal.4th at p. 1035 ["There can be no doubt
that some footwear, such as hobnailed or steel-toed boots, is capable of being wielded in
a way likely to produce death or serious injury, and as such may constitute weapons
within the meaning of section 245, subdivision (a)(1)."].) There is evidence in the record
that Hernandez kicked the victim with his shoe and had blood on his shoe. There is scant
evidence regarding the type of footwear worn by Hernandez during the assault. Further,
the prosecutor did not mention the use of a shoe as a deadly weapon during closing
argument, and Hernandez does not address the jury's reference to a shoe in its second
question. We therefore do not address that issue here.
21
III
SUBSTANTIAL EVIDENCE OF GANG ENHANCEMENT AS TO COUNT 3
A. Hernandez's Contention
The jury found true that Hernandez committed count 3 (conspiracy to commit
murder) for the benefit of a criminal street gang within the meaning of section 186.22,
subdivision (b). 15 Hernandez contends substantial evidence does not support this
finding.
B. Standard of Review and Relevant Law
The standard of appellate review for determining the sufficiency of the evidence
supporting an enhancement is the same as that applied to a conviction. (People v. Wilson
(2008) 44 Cal.4th 758, 806; People v. Mejia (2012) 211 Cal.App.4th 586, 614.) When
considering a defendant's challenge to the sufficiency of the evidence, we review the
entire record most favorably to the judgment to determine whether the record contains
substantial evidence from which a rational trier of fact could find the essential elements
of the crime beyond a reasonable doubt. We do not reweigh evidence or reassess a
witness's credibility, and we presume the existence of every fact the trier of fact could
reasonably deduce from the evidence. (People v. Lindberg (2008) 45 Cal.4th 1, 27.) We
ask whether, after viewing the evidence in the light most favorable to the judgment, any
rational trier of fact could have found the allegations to be true beyond a reasonable
15 The jury found this allegation true as to counts 1 and 2, but Hernandez does not
challenge those findings.
22
doubt. (See Jackson v. Virginia (1979) 443 U.S. 307, 319.) If the circumstances
reasonably justify the jury's findings, reversal is not warranted merely because the
circumstances might also be reasonably reconciled with a contrary finding. (People v.
Nelson (2011) 51 Cal.4th 198, 210.)
Section 186.22, subdivision (b)(1) provides a sentencing enhancement for felonies
"committed for the benefit of, at the direction of, or in association with any criminal
street gang, with the specific intent to promote, further, or assist in any criminal conduct
by gang members." The prosecution has the burden of proof (People v. Weddington
(2016) 246 Cal.App.4th 468, 484 (Weddington)), and must establish both prongs of the
gang enhancement. "First, the prosecution is required to prove that the underlying
felonies were 'committed for the benefit of, at the direction of, or in association with any
criminal street gang.' (§ 186.22 [subd.] (b)(1).) Second, there must be evidence that the
crimes were committed 'with the specific intent to promote, further, or assist in any
criminal conduct by gang members.' (§ 186.22 [subd.] (b)(1); [Citation.])" (People v.
Rios (2013) 222 Cal.App.4th 542, 561.)
The prosecution may rely on expert testimony regarding criminal street gangs to
establish a gang enhancement under section 186.22, subdivision (b)(1). (People v. Vang
(2011) 52 Cal.4th 1038, 1048.) However, the expert's testimony must be grounded in
admissible evidence to impose a gang enhancement. "[P]urely conclusory and factually
unsupported opinions" that the charged crimes are for the benefit of the gang because
committing crimes enhances the gang's reputation are insufficient to support a gang
enhancement. (People v. Ramirez (2016) 244 Cal.App.4th 800, 819-820.)
23
C. Analysis
Here, Hernandez contends substantial evidence does not support a true finding as
to both prongs of the gang enhancement. Regarding the first, he asserts that there was no
evidence proffered at trial showing he committed count 3 for the benefit of a criminal
street gang. In addition, although he concedes he is a Mexican Mafia member,
Hernandez maintains that Kopp, his coconspirator, was never a member of that gang.
Hernandez's arguments, however, gloss over certain evidence presented at trial.
The first prong under section 186.22, subdivision (b)(1) can be satisfied in any of
three ways: "The offense may be committed (1) for the benefit of the gang; (2) at the
direction of a gang; or (3) in association with a gang." (Weddington, supra, 246
Cal.App.4th at p. 484.) Although substantial evidence only must support a finding as to
one of these means, on the record before us, substantial evidence supports all three.
For example, there is substantial evidence that Hernandez's conspiracy was
committed for the benefit of the Mexican Mafia. A gang expert testified that a gang
member's cooperation with law enforcement is a serious violation of gang rules and the
consequence for such cooperation often is murder. Such murders would lead to several
benefits for the Mexican Mafia. It would punish the person who cooperated; deter other
people from also cooperating with law enforcement; and maintain the gang's reputation
for toughness. Thus, Hernandez's conspiracy would similarly have benefited the
Mexican Mafia.
There also was substantial evidence that Hernandez's conspiracy was committed at
the direction of the Mexican Mafia. A criminal street gang expert witness may opine
24
based on hypothetical questions that track the evidence, whether the offense, if it in fact
occurred, would have been for gang purposes. (People v. Vang, supra, 52 Cal.4th at
p. 1048.) At trial, there was no dispute that Hernandez was a member of the Mexican
Mafia. The gang expert testified that a "member" was at the very top of the Mexican
Mafia hierarchy and considered to be a "shot caller" who was in charge and could order
executions and taxings. Hernandez, a high-level Mexican Mafia enforcer, told Kopp in
coded language ("it's official") to tell E.P. to have U.P. murdered.
Finally, substantial evidence supports a finding that Hernandez committed count 3
in association with a gang. Proof of association with a gang may be established with
substantial evidence that two or more gang members committed the crime together,
unless there is evidence that they were on a frolic and detour unrelated to the gang.
(Weddington, supra, 246 Cal.App.4th at p. 484.) In the instant matter, the evidence
established that Appellants, the coconspirators to murder U.P., both were actively
involved and/or associated with the Mexican Mafia. Hernandez was a high-ranking
member, and Kopp was a secretary. The text message Kopp sent E.P. stated U.P. was
also "off the case in cases," meaning U.P. was no longer eligible to do business with the
Mexican Mafia. This evidence further connected the conspiracy to the Mexican Mafia.
Although he claims that there was no evidence of Kopp having a connection with
the Mexican Mafia, Hernandez, himself, told U.P. that Kopp was a secretary. The gang
expert explained:
"A secretary is almost what it sounds like. But she's working on
behalf of a Mexican Mafia member. So she may—a lot of times
they're not on probation or parole, where they can go into the prisons
25
or county jails and visit the member and get orders from the member
himself. Or they're allowed to collect cash and disburse the cash out
to where it's supposed to go."
Consistent with the expert's testimony, while Hernandez was in custody, Kopp acted as a
messenger between him and E.P. to help him execute his orders to kill U.P. As such,
substantial evidence establishes the first prong of the gang enhancement, and we are not
persuaded otherwise by the line of cases on which Hernandez relies to argue the evidence
was insufficient. (See People v. Ochoa (2009) 179 Cal.App.4th 650, 653, 662 [defendant
gang member acted alone in committing a carjacking with a shotgun, the offense did not
occur within gang's territory, and defendant "did not call out a gang name, display gang
signs, wear gang clothing, or engage in gang graffiti while committing" the offense];
People v. Martinez (2004) 116 Cal.App.4th 753, 761-762 [evidence of defendant's prior
offenses and history of participation in gang activities was not sufficient by itself to
establish that the subject crime was committed for the benefit of, at the direction of, or in
association with a criminal street gang]; People v. Albarran (2007) 149 Cal.App.4th 214,
230-232 [the gang evidence admitted had "no legitimate purpose" at trial, violating
defendant's federal due process rights].) 16
16 Comparisons with cases in which the evidence was insufficient is rarely helpful in
a substantial evidence review, as every case necessarily depends on its own facts.
(People v. Rundle (2008) 43 Cal.4th 76, 137-138; People v. Thomas (1992) 2 Cal.4th
489, 516.)
26
Hernandez also insists substantial evidence does not support a finding as to the
second prong of the gang enhancement, that he committed count 3 with the specific intent
to promote, further, or assist criminal conduct by gang members. We disagree.
As to the second prong, " ' "[i]ntent is rarely susceptible of direct proof and usually
must be inferred from the facts and circumstances surrounding the offense." ' "
(People v. Franklin (2016) 248 Cal.App.4th 938, 949; accord, People v. Rios, supra,
222 Cal.App.4th at pp. 567-568.) "For this reason, 'we routinely draw inferences about
intent from the predictable results of action.' " (People v. Miranda (2011) 192
Cal.App.4th 398, 411 (Miranda).) "While a gang expert is prohibited from opining on a
defendant's specific intent when committing a crime, the prosecution can ask hypothetical
questions based on the evidence presented to the jury . . . whether the hypothetical
perpetrator harbored the requisite specific intent." (People v. Perez (2017) 18
Cal.App.5th 598, 607.) 17
As the California Supreme Court concluded in People v. Albillar (2010)
51 Cal.4th 47, "if substantial evidence establishes that the defendant intended to and did
commit the charged felony with known members of a gang, the jury may fairly infer that
the defendant had the specific intent to promote, further, or assist criminal conduct by
17 We are aware that our high court has stated that "in some circumstances, expert
testimony regarding specific defendants might be proper." (People v. Vang, supra,52 Cal.4th at p. 1048, fn. 4.) However, neither party argues here that the subject expert
testified directly about Hernandez's intent. As such, we need not determine whether the
facts of this case present a scenario under which an expert can directly opine about a
defendant's specific intent.
27
those gang members." (Id. at p. 68; accord, People v. Franklin, supra, 248 Cal.App.4th
at p. 949 [noting "scienter requirement may be satisfied with proof 'that the defendant
intended to and did commit the charged felony with known members of a gang,' " but
concluding intent requirement not met where defendant committed crimes with members
of a different gang]; Miranda, supra, 192 Cal.App.4th at p. 412 [substantial evidence
supported finding of specific intent to benefit gang where defendant gang member
committed crimes with two other members or associates of the gang in gang territory].)
Here, Hernandez, a member of the Mexican Mafia, conspired with Kopp, a secretary for
the Mexican Mafia, to commit count 3. The gang expert explained, in the structure of the
Mexican Mafia, that a secretary has "power by virtue of being an associate with the
Mexican Mafia[.]" Thus, Hernandez conspired with a known associate of the Mexican
Mafia (indeed, he introduced her as a secretary) to commit murder. As such, the jury's
finding that Hernandez intended to promote, further, or assist criminal conduct by gang
members is supported by substantial evidence. (See Albillar, at p. 68; Miranda, at p. 412;
People v. Villalobos (2006) 145 Cal.App.4th 310, 322.)
IV
CONSPIRACY TO COMMIT MURDER
Hernandez also contends that substantial evidence does not support his conviction
for conspiracy to commit murder (count 3). He insists, at most, the evidence showed that
he and Kopp were trying to figure out how to silence U.P. and perhaps punish him.
28
Further, he claims the evidence falls far short of proving that they agreed to have U.P.
murdered. We disagree.
The elements of a criminal conspiracy are: (1) an agreement between two or more
persons; (2) with the specific intent to agree to commit a public offense; (3) with the
further specific intent to commit that offense; and (4) an overt act committed by one or
more of the parties for the purpose of accomplishing the object of the agreement or
conspiracy. (§ 182; People v. Liu (1996) 46 Cal.App.4th 1119, 1128 (Liu).) The crime
of conspiracy to commit murder includes the elements to conspire and intent to kill.
(People v. Cortez (1998) 18 Cal.4th 1223, 1229.)
Here, Hernandez argues that "[n]o substantial evidence proves [he] ever agreed to
commit murder." To this end, he emphasizes that he repeatedly told Kopp that he only
wanted someone to talk to U.P. to convince him to stop cooperating with the police. He
also notes that it was E.P. who first suggested the possibility of killing U.P. Accordingly,
Hernandez maintains that the jury would have to speculate based on the evidence to
convict him of conspiracy to commit murder, and speculation cannot support a
conviction. (See People v. Marshall (1997) 15 Cal.4th 1, 35.) We are not persuaded.
Although Hernandez purports to set forth all the evidence that could support his
conviction for count 3, essentially, he asks this court to consider the evidence and make a
different inference than the one made by the jury. This we cannot do. (See People v.
Brown (1984) 150 Cal.App.3d 968, 970 ["When a jury's verdict is attacked on the ground
that there is no substantial evidence to sustain it, the power of an appellate court begins
and ends with the determination as to whether, on the entire record, there is any
29
substantial evidence, contradicted or uncontradicted, which will support it, and when two
or more inferences can reasonably be deduced from the facts, a reviewing court is
without power to substitute its deductions for those of the jury. It is of no consequence
that the jury believing other evidence, or drawing different inferences, might have
reached a contrary conclusion."].) Moreover, based on the record before us, we are
satisfied that substantial evidence supports Hernandez's conviction for conspiracy to
commit murder.
During a jail visit, Kopp notified Hernandez that E.P. asked if they wanted U.P.
murdered because "he doesn't do it on his own." In response, Hernandez told Kopp in
coded language 18 that U.P. should be killed but A.C. should only be dissuaded from
testifying. Specifically, Hernandez said, "it's official. The dude? . . . And the other one
[A.C.]? Talk. Very simple." "[T]ell him to fuckin' make it happen." Hernandez's
response to Kopp during the jail visit established that Appellants expected E.P. to bring a
fourth person into their conspiracy specifically to carry out their agreement to kill U.P.
Afterwards, Kopp texted E.P. that she spoke with Hernandez and he wanted U.P. killed:
"It's Christi. Okay. I saw Caps yesterday and this is what needs to
be done. . . . .[¶] As for [U.P.], tios said done dada. He is off the
case in cases, to permanently reside—resign with his vida being sent
above. Now my man questioning why you or us are needing to pay
wages to your guy, but he has four oz's to hand over. . . ."
Later, Kopp confirmed the agreement to kill U.P. when she told E.P., "[U.P.'s] a
goner and it's already been ordered."
18 There was testimony at trial establishing that people connected with the Mexican
Mafia often talked to each other in code to avoid detection by others.
30
Kopp told E.P. that Hernandez's attorney showed him the discovery regarding the
A.C. assault and learned U.P. was "running his mouth telling everything giving
every . . . name you can imagine." E.P. sought clarification to kill U.P. by asking her, "so
that's a go then?" Kopp confirmed the authorization to kill U.P. by replying, "[t]hat's a
go!"
Subsequently, Kopp identified U.P. with the undercover officer, who posed as
E.P.'s hired "hit man," to confirm he was "whacking" the correct person, and accepted the
methamphetamine. The undercover officer told Kopp he would kill U.P. within the week
and E.P. would call her and tell her when U.P. was dead. There would have been no
reason for Kopp to talk to a hit man and confirm he was "whacking" U.P. if she and
Hernandez merely intended for U.P. to be dissuaded from testifying like A.C. or
assaulted. Instead, it further established Hernandez's plan was to kill U.P.
Also, there was a subsequent jail meeting where Kopp told Hernandez in coded
language that the planned murder was successful by saying, "Part B is completed . . . .
[¶] Completely completed . . . . [¶] [T]hat second phase of . . . the construction site?
[¶] . . . [I]t's capish. It's done." Hernandez was not surprised and, consistent with the
murder being according to their plan, said, "Okay."
Appellants' plan to kill U.P. was further corroborated by the presence of
Hernandez's discovery in Kopp's vehicle. When Kopp was arrested, officers searched her
car and found several pages of the police report of the assault investigation with U.P.'s
statement to officers circled and two stars written next to it. Thus, both Hernandez and
31
Kopp had paperwork substantiating their suspicion that U.P. violated the Mexican
Mafia's rules of cooperating with law enforcement, and they wanted U.P. punished for it.
Moreover, the jury could consider the evidence of the organizational structure of
the Mexican Mafia as described by the expert witness. Kopp, as a secretary, did not have
the authority to order a person to be killed. Hernandez, as a member of the Mexican
Mafia, did. Therefore, as Kopp informed E.P. and the undercover officer that U.P. was to
be killed, the jury could infer, based on the conversations between Appellants and
buttressed by the evidence of the organizational structure of the Mexican Mafia, that
Hernandez conspired with Kopp to commit murder.
V
RESTRAINT OF HERNANDEZ
A. Hernandez's Contentions
Hernandez contends the trial court erred in ordering that he be physically
restrained during trial.
B. Background
At the beginning of jury voir dire, Hernandez was restrained in his chair. His trial
attorney objected to the restraint, arguing it can "present a[n] impediment to a fair trial"
and emphasized that "[t]he Fifth Amendment Due Process Clause prohibits the use of the
physical restraints visible to the jury during a guilt phase or penalty phase." However,
counsel noted "the restraint is not visible[,]" and he did not "think the jury would see the
restraint."
32
The court commented:
"[For] [t]he purpose of the record the chair looks like a regular office
chair. It has a [seat belt] embedded into the chair similar to a [seat
belt] that would be in an airplane. The [seat belt] has a locking
mechanism that is either locked or unlocked with what would be I
would describe as a handcuff key, and it's completely below the
level of the arms."
Hernandez's trial counsel argued that the use of the restraints required a
determination by the court "that they are justified by an essential state interest such as
state court security specific to the defendant on trial." Counsel continued to explain:
"Furthermore, Penal Code section 688 gives further protection in
California prosecution in providing that no defendant may be
subjected before conviction to anymore restraint than is necessary
for his or her detention to answer the charge. [¶] Since 1871
California courts have held that this statute and its predecessor
require a showing of a manifest need in the particular case before a
defendant maybe subject to physical restraints of any kind in the
courtroom while in the jury's presence at either the guilty or penalty
phase of a trial. That's People versus Cox 53 Cal.3d 618 at 651, 652.
Manifest need arises only on a showing of unruliness, announced
intention to escape or evidence of any nonconforming conduct or
planned nonconforming conduct that disrupts or would disrupt the
judicial process if unrestrained, and that's People versus Cox 1991,
53 Cal.3rd 618, 651. [(Italics added.)] [¶] In this case, your honor,
I do not see a manifest need. And you're not required to hold a
hearing. I appreciate you giving us the opportunity to state these
points and authorities in support of our request to not have Mr.
Hernandez restrained. It's been my experience that—well, I did
earlier compliment your staff and Deputy Hart, outstanding deputy,
he's taking care of the belt that is not shown, but it's my experience
that sometimes completely unintentionally, inadvertent that the best
laid plans go awry and sometimes a juror would see either defendant
in the hallway or somehow see maybe Mr. Hernandez tries to stand
up inadvertently and the [seat belt] holds him down. I'm very
concerned about that risk and the effect on his fair trial rights and
other constitutional rights. So I'd ask that we wait until there's a
manifest necessity for restraint."
33
The court then asked the prosecutor if he was aware of any "particular
information" that would support Hernandez being restrained. The prosecutor responded,
"Nothing beyond what the court, I believe, has already informed with regards to
Mr. Hernandez's record. He has a violent criminal history. He is a relatively senior level
associate of a violent criminal street gang Mexican Mafia." Further, the prosecutor
admitted that he knew of "[n]o particular indications of attempt to escape [or] to harm
others[.]"
The bailiff also offered his explanation to support the use of restraints:
"Through our department and the investigation that we have done
based off other deputies involved in the case, and Mr. Hernandez's
status with the Mexican Mafia and his association with that it is in
our belief there will be potential for harm against witnesses of the
case; therefore, we are requesting the restraint chair be used to detain
him during that case."
The bailiff also stated that Hernandez's status in the Mexican Mafia would be
improved if he assaulted witnesses at trial.
The court found manifest need for the restraints, explaining:
"All right. So I heard enough to believe I think there's a manifest
need that would justify the type of restraint we're using. [¶] I'll be
clear on the record. Mr. Hernandez has been nothing but polite,
professional, very dignified while he's here. I have no reason
personally to assume that might change. However, the issue of
security in the courtroom I leave to other professionals that's the
sheriff's department. And they've received intelligence as I
understand it, and if I understand further they're bringing or someone
from law enforcement is supposed to be bringing in [the prosecutor],
I presume it would have happened by now, but apparently not since
he's unaware of anything, I'm not going to run the risk of something
happening that puts other people in jeopardy, yourself or anyone else
sitting at the table including Mr. Hernandez in jeopardy based on the
law enforcement response. [¶] I think it's the least—the type of
34
restraint we're using is the least offensive possible in that I believe
it's close to invisible, clearly not completely I recognize that, but
close to invisible as it relates to either members of the public for the
jury. The chair goes up beyond Mr. Hernandez's shoulders from the
back so people from the audience shouldn't be able to see anything.
The arms of the chair on each side will be high enough so people
from the side can't see anything. And any jurors number one, seven
perhaps, two and eight who have an angle the tables we have a
barrier that sort of blocks that. It's less restrictive. . . . I'm actually
the person responsible for getting this chair up here to try to avoid
using other forms of restraint, so I'll note the objection. I think
sufficient reference has been made to allow it the restraint chair to be
used."
C. Relevant Law
"A trial court has broad power to maintain courtroom security and orderly
proceedings, and its decisions on these matters are reviewed for abuse of discretion.
[Citation.] That discretion, however, must yield to principles of due process. [Citation.]"
(People v. Simon (2016) 1 Cal.5th 98, 115 (Simon).) Under principles of due process, a
defendant may be physically restrained at trial only if there is a "manifest need for such
restraints." Such a "manifest need" arises only upon a showing of unruliness, a
demonstrated intention to escape, or "[e]vidence of any nonconforming conduct or
planned nonconforming conduct which disrupts or would disrupt the judicial process if
unrestrained . . . ." (People v. Duran (1976) 16 Cal.3d 282, 291, 292-293, fn. 11.)
Although the trial court's decision to restrain a defendant must be based on more than
rumor or innuendo, a formal evidentiary hearing is not required. (People v. Lewis and
Oliver (2006) 39 Cal.4th 970, 1032.) "A shackling decision will be upheld absent a
manifest abuse of discretion." (Ibid.) The court abuses its discretion when it uses
35
physical restraints absent a "record showing of violence, a threat of violence, or other
nonconforming conduct." (Simon, at p. 115.)
Both federal and state Supreme Courts have recognized that visible physical
restraints are inherently prejudicial and erode the "presumption of innocence" because
they suggest to the jury that the defendant is a dangerous person who must be separated
from the rest of the community. (Deck v. Missouri (2005) 544 U.S. 622, 630; see
People v. Duran, supra, 16 Cal.3d at p. 290.) Also, if a defendant is "accused of a violent
crime, his appearance before the jury in shackles is likely to lead the jurors to infer that
he is a violent person disposed to commit crimes of the type alleged." (Ibid.) Thus,
"even when the record establishes a manifest need for restraints, the restraint imposed
must be the least obtrusive or restrictive one that would be effective under the
circumstances. [Citations.]" (Simon, supra, 1 Cal.5th at p. 115.)
D. Analysis
Hernandez maintains the court abused its discretion in ordering him restrained by
a seat belt in his chair because there was no showing that the restraints were warranted.
To this end, Hernandez points out that the trial court specifically noted that he was
respectful during court, and the prosecutor did not identify any specific behavior
indicating a need for restraints. Hernandez also asserts that his affiliation with the
Mexican Mafia alone could not justify the use of restraints. Moreover, he claims the trial
court improperly deferred its discretion to the bailiff and simply accepted the bailiff's
conclusion that restraints were necessary.
36
The People counter that the record supports the trial court's finding of a manifest
need to restrain Hernandez during trial. Specifically, the People emphasize that the court
was aware that Hernandez had an "extremely violent history that included participating in
a prison riot." Indeed, Hernandez's two previous manslaughter convictions arose out of
Hernandez's involvement in that prison riot. Additionally, the People observe that
Hernandez is associated with the Mexican Mafia, which is designated as a Security
Threat Group by the Department of Corrections and Rehabilitations. 19 The People also
maintain that the court did not defer its discretion to the bailiff, but merely asked for the
bailiff's input on whether Hernandez should be restrained.
However, we do not need to resolve this dispute because, even if we assume the
court abused its discretion in ordering Hernandez to be restrained during trial, on the
record before us, we do not conclude that Hernandez was prejudiced. Relying on
People v. McDaniel (2008) 159 Cal.App.4th 736, Hernandez urges us to apply the
harmless beyond a reasonable doubt standard found in Chapman v. California (1967)
386 U.S. 18, 24. In asking us to apply this standard, Hernandez glosses over the fact that
the defendant in McDaniel claimed his due process rights were denied because he was
visibly shackled at trial. (See McDaniel, at p. 741.) That is not the case here. Hernandez
does not argue the jury could see that he was restrained during trial, and his trial counsel
admitted that the restraints were not visible to the jury.
19 The term "Security Threat Group" is defined as groups of three or more people
whose members engage in misconduct or unlawful acts. (Cal. Code Regs, tit. 15,
§ 3000.)
37
When the record does not indicate that the jury saw the restraints, even if the court
abused its discretion in ordering the defendant restrained, there is no constitutional error
and we apply the harmless error test found in People v. Watson (1956) 46 Cal.2d 818,
836. (See People v. Jackson (1993) 14 Cal.App.4th 1818, 1829.) Further, as our high
court has noted, "courts typically find unjustified shackling of a defendant to be harmless
where the restraints were not visible to the jurors." (People v. Ervine (2009) 47 Cal.4th
745, 773; People v. Cleveland (2004) 32 Cal.4th 704, 740; People v. Anderson (2001)
25 Cal.4th 543, 596.) Hernandez does not address these California Supreme Court cases
whatsoever, but asks us to conclude that the restraints were an "affront to the presumption
of innocence," interfered "with [his] right to participate in his own defense, and [were an]
affront to the dignity and decorum of the court[]" regardless of whether the restraints
were seen by the jury. Yet, Hernandez does not explain how the restraints, which were
not seen by the jury, prohibited his ability to participate in his defense or otherwise
rendered his trial unfair. In the absence of any indication in the record to support
Hernandez's bald assertion of prejudice, we must determine any error in restraining
Hernandez at trial to be harmless. (See Ervine, at p. 773; Cleveland, at p. 740; Anderson,
at p. 596.)
38
VI
FAILURE OF THE TRIAL COURT TO SUA SPONTE INSTRUCT THE JURY ON
SINGLE VERSUS MULTIPLE CONSPIRACIES
A. Appellants' Contentions
Appellants contend the trial court erred by not instructing the jury sua sponte to
determine whether they were involved in a single or multiple conspiracies. The People
counter that the trial court did not have a sua sponte duty to instruct on the number of
conspiracies and Appellants did not request the instruction, thus forfeiting this
contention.
B. Background
The trial court instructed the jury for conspiracy to commit murder with
CALCRIM Nos. 520 and 563, which stated the prosecution had to prove "[t]he defendant
intended to agree and did agree with the other defendant or other persons unknown, to
intentionally and unlawfully kill." In addition, the instructions set forth:
"[O]ne or both of the defendants or other persons unknown, or all of
them committed at least one of the following overt acts alleged to
accomplish the killing:
"Overt act no. 1, on or about February 10, 2014, Christi Kopp
contacted an FBI informant by text message and telephone. During
those contacts Christi Kopp passed along instructions from Jason
Hernandez to arrange the murder of [U.P.], a witness to an attack on
[A.C.].
"Overt act no. 2, on or about February 14th, Christi Kopp contacted
a[n] FBI informant by telephone advising the informant of
statements made by [U.P.] to the police and authorized the informant
to have [U.P.] murdered saying, quote, that's a go, end quote.
39
"Overt act no. 3, on or about February 14th, 2014, Christi Kopp
contacted Pam for the purpose of acquiring methamphetamine to be
used as payment for murdering [U.P.].
"Overt act no. 4, on or about and between February 14th, and
February 20th of 2014, Christi Kopp acquired methamphetamine as
payment for murdering [U.P.].
"Overt act no. 5, on or about February 20, 2014, Christi Kopp told
the FBI informant that she inquired of the methamphetamine that
would be used as payment for murdering [U.P.].
"On or about February 22nd, 2014, Christi Kopp spoke with an
undercover police officer posing as an assassin for purposes of
arranging the murder of [U.P.].
"Overt act no. 7, on or about February 22nd[,] 2014, Christi Kopp
met with the undercover police officer for the purpose of providing
payment in the form of methamphetamine for the murder of [U.P.].
"Overt act no. 8, on or about February 22nd, 2014, Christi Kopp
handed the undercover police officer methamphetamine for the
murder of [U.P.].
"Overt act no. 9, on or about February 22nd, 2014, Christi Kopp
identified the murder target [U.P.] in a photograph shown to her by
the undercover officer.
"Overt act no. 10, on or about and between February 14th, 2014, and
February 25th, 2014, while in custody, Jason Hernandez arranged to
have police reports from his criminal cases[,] which were in his
possession[,] sent out of the San Diego County Jail.
"Overt act no. 11, on or about and between February 26th, 2014, and
March 1, 2014, Christi Kopp acquired the police reports from Jason
Hernandez's criminal case."
The trial court also instructed the jury for conspiracy to dissuade a witness (count
4) with CALCRIM No. 415, which stated the prosecution had to prove "[t]hat defendant
intended to agree and did agree with the other defendant, or one or more of the other
40
unknown persons, in the conspiracy [to commit the crime of intimidating a witness]."
Regarding count 4, the court additionally instructed the jury as follows:
"One of the defendants or one of the other unknown persons
committed at least one of the following alleged overt acts to
accomplish the crime of intimidating a witness.
"Overt act no. 1, on or about February 10th, 2014, Christi Kopp
contacted an FBI informant by text message and telephone. During
those contacts, Christi Kopp passed along instructions from Jason
Hernandez to dissuade [A.C.] from attending or testifying in a
criminal case in which [A.C.] was the victim.
"Overt act no. 2, on or about February 14th, 2014, Christi Kopp
contacted Pam for the purpose of acquiring methamphetamine to be
used as payment to dissuade [A.C.] from attending or testifying in
the criminal case in which she was the victim.
"Overt act no. 3, on or about and between February 14th, 2014, and
February 20th, 2014, Christi Kopp acquired methamphetamine to be
used as payment to dissuade [A.C.] from attending or testifying in
the criminal case in which she was a victim.
"Overt act no. 4, on or about February 20, 2014, Christi Kopp told
the FBI informant that she acquired the methamphetamine that
would be used as payment for dissuading [A.C.] from attending or
testifying in the criminal case in which she was the victim.
"Overt act no. 5, on or about February 22, 2014, Christi Kopp spoke
with an undercover police officer for the purposes of arranging a
meeting to transfer methamphetamine that would be used for
payment for dissuading [A.C.] from attending or testifying in the
criminal case in which she was a victim.
"On or about February 22, 2014, Christi Kopp met with the
undercover police officer for the purposes of providing payment in
the form of methamphetamine for dissuading [A.C.] from attending
or testifying in the criminal case in which she was a victim.
"Overt act no. 7, on or before February 22, 2014, Christi Kopp
handed the undercover police officer methamphetamine for purpose
41
of paying [A.C.] to dissuade her from attending or testifying in the
criminal case in which she was a victim.
"Overt act no. 8, on or about February 26th, Christi Kopp called the
FBI informant and passed along instructions from Jason Hernandez
that [A.C.]. was to be escorted to the district attorney's office for the
purpose of having her drop charges against Hernandez or,
alternatively, was to be prevented from attending the preliminary
hearing.
"On or about February 28th, Christi Kopp called the FBI informant
and again passed along instructions from Jason Hernandez that
[A.C.] was either to be escorted to the district attorney's office to
drop charges against Hernandez or to be prevented from attending
the preliminary hearing."
The trial court also instructed the jury with CALCRIM No. 203, which stated it
had to "decide each charge for each defendant separately," and it was given separate
verdict forms for each appellant.
During closing argument, the prosecutor discussed the Appellants' "agreement" to
"interfer[e] with the ordinary administration of justice." The prosecutor then began to
discuss conspiracy:
"So if you think for the purposes of sort of this primer on conspiracy
law of a bigger conspiracy to interfere with the ordinary
administration of justice, that's not the charge. That's not—the
conspiracy—the conspiracies that are charged are conspiracy to
commit murder, conspiracy to intimidate a witness. I'll get to those
specifically in a moment. But thinking in terms of ordinary
administration of justice, the original plan is they are going to—they
are conspiring to interfere with that. They don't want Mr. Hernandez
to go down for breaking [A.C.'s] face. That's what they don't want.
So that's what the agreement is and that's what these overt acts are in
furtherance of."
The prosecutor emphasized that Appellants wanted to "interfere in that process
[Hernandez's trial]. That was the overall, that was the overarching conspiracy." The
42
prosecutor repeated that Appellants "conspired to keep the ordinary administration of
justice from happening."
Later, after discussing the evidence of assault, the prosecutor returned to his
theme, "the entire case is about a conspiracy to interfere with the ordinary administration
of justice." When the prosecutor began to address the two counts of conspiracy, he
started by alluding to a conspiracy to prevent a third person from testifying. He noted
that this conspiracy was uncharged, but the prosecutor pointed out that this was part of "a
conspiracy . . . to interfere with the orderly administration of justice." He discussed the
two counts of conspiracy together, playing audio clips of conversations between
Appellants and explaining how they evidenced the two conspiracies. Further, in
discussing an overt act in support of the two conspiracies, the prosecutor focused on a
single text in which Kopp tells E.P. Hernandez wants [A.C.] "talked to and told[ she]
needs to be silent, walk away from this case." In that same text, using coded language,
Kopp tells E.P. to have U.P. killed. The prosecutor discussed other overt acts that also
evidenced the conspiracies, but again, he discussed the two conspiracies together,
consistent with his theme that Appellants were trying to interfere with the administration
of justice.
C. Conspiracy Law
A conspiracy exists where two or more people agree to commit a crime, they
specifically intend both to agree and to commit the crime, and one of them performs an
overt act in furtherance of their agreement. (§§ 182, subd. (a)(1), 184.) "Conspiracy is
an inchoate crime. [Citation.] It does not require the commission of the substantive
43
offense that is the object of the conspiracy. [Citation.] 'As an inchoate crime, conspiracy
fixes the point of legal intervention at [the time of] agreement to commit a crime.' "
(People v. Swain (1996) 12 Cal.4th 593, 599-600.) A "conspiracy may be proved
through circumstantial evidence inferred from the conduct, relationship, interests, and
activities of the alleged conspirators before and during the alleged conspiracy."
(People v. Prevost (1998) 60 Cal.App.4th 1382, 1399.)
"[T]he essence of the crime of conspiracy is the agreement, and thus it is the
number of the agreements (not the number of the victims or number of statutes violated)
that determine the number of the conspiracies." (People v. Meneses (2008)
165 Cal.App.4th 1648, 1669 (Meneses).) In other words, when multiple crimes are
committed, there may be one overall agreement to commit all of them, or multiple
separate agreements. " 'One agreement gives rise to only a single offense, despite any
multiplicity of objects.' " (People v. Lopez (1994) 21 Cal.App.4th 1551, 1557.) " 'Where
two or more persons agree to commit a number of criminal acts, the test of whether a
single conspiracy has been formed is whether the acts "were tied together as stages in the
formation of a larger all-inclusive combination, all directed to achieving a single
unlawful end or result." ' [Citation.] 'Relevant factors to consider in determining this
issue include whether the crimes involved the same motives, were to occur in the same
time and place and by the same means,' and targeted a single or multiple victims."
(Meneses, at p. 1672.) " 'The test is whether there was one overall agreement among the
various parties to perform various functions in order to carry out the objectives of the
conspiracy. If so, there is but a single conspiracy.' [Citation.]" (Lopez, at p. 1558.)
44
" 'Performance of separate crimes or separate acts in furtherance of a conspiracy is not
inconsistent with a "single overall agreement." [Citation.] The general test also
comprehends the existence of subgroups or subagreements.' " (People v. Vargas (2001)
91 Cal.App.4th 506, 553-554).)
D. Duty to Instruct
"[A] trial court in a criminal case is required—with or without a request—to give
correct jury instructions on the general principles of law relevant to issues raised by the
evidence." (People v. Mutuma (2006) 144 Cal.App.4th 635, 640.)
California courts are divided on whether a trial court has a sua sponte duty to
instruct the jury to determine how many conspiracies were committed. (Meneses, supra,
165 Cal.App.4th at pp. 1668-1669.) Most decisions, including the most recent cases,
have held that the trial court has a duty to instruct the jury to determine the number of
conspiracies committed where there is evidence to support alternative findings. (Id. at
pp. 1668, 1671; People v. Jasso (2006) 142 Cal.App.4th 1213, 1220 (Jasso); People v.
Vargas, supra, 91 Cal.App.4th at p. 554.)
To support their position that the trial court did not have a sua sponte duty to
instruct, the People rely on two older decisions, Liu, supra, 46 Cal.App.4th 1119, and
People v. McLead (1990) 225 Cal.App.3d 906 (McLead). These held that the number of
conspiracies is not a factual question to be decided by the jury. (Liu, at p. 1133; McLead,
at pp. 920-921.) However, Liu and McLead are distinguishable. Both involved
conspiracies to murder multiple individuals. As the court discussed thoroughly in
Meneses, supra, 165 Cal.App.4th at pages 1668, 1670-1671, the reasoning in Liu and
45
McLead with respect to the duty to instruct on the number of conspiracies is questionable,
in that both decisions relied on People v. Davis (1989) 211 Cal.App.3d 317, a solicitation
to murder case holding that the number of solicitations shown by the evidence was not a
question of fact, but was instead equal to the number of potential victims. (Davis, at
pp. 322-323.) As the court stated in Meneses, "Davis is thus the ultimate source for this
line of authority. Davis provides a weak foundation for the proposition that the question
of single versus multiple conspiracies is not a question of fact because Davis is not a
conspiracy case, but a case concerning solicitation of murder." (Meneses, at p. 1670.)
"The problem with reflexively extending Davis [citation] to all conspiracies is that the
number of victims is not a firm basis or indicator for determining the number of
conspiracies. It is the agreement, not the overt acts, that defines the crime." (Ibid.) We
note that even with respect to solicitation of murder cases, there is contrary authority to
the effect that the jury must be instructed to determine the number of solicitations.
(People v. Morocco (1987) 191 Cal.App.3d 1449, 1453-1454.) In reaching its decision,
the court in Morocco analogized to the "well-settled law that 'the question whether one or
multiple conspiracies are present is a question of fact, to be resolved by a properly
instructed jury' [citation], . . . ." (Id. at p. 1453.)
We conclude that the better reasoned decisions are those concluding that the
number of conspiracies is a question of fact and imposing a duty upon the trial court to
instruct the jury, sua sponte, to determine the number of conspiracies "where the evidence
supports alternative findings." (Meneses, supra, 165 Cal.App.4th at p. 1668.)
46
E. Analysis
The People argue that even if we find the trial court had a sua sponte duty to
instruct the jury to determine the number of conspiracies, the court did not err in failing
to so instruct the jury because the evidence did not support an alternative finding of a
single conspiracy. To this end, they assert Meneses, supra, 165 Cal.App.4th 1648 is
instructive. It is not.
In Meneses, the defendant was convicted of nine counts of conspiracy resulting
from an extensive scheme to defraud insurance companies. (Meneses, supra,
165 Cal.App.4th at pp. 1651, 1659.) The defendant would buy stolen police reports and
contact victims of accidents. Billing himself as a "lawyer referral service," he would
refer the victims to various lawyers and chiropractors and encourage the victims to
procure services. (Id. at pp. 1652-1653.) The defendant bought police reports from a
connection in the police department whom he never met. The defendant was paid by the
doctors, lawyers, and chiropractors for each referral made, usually in cash. (Ibid.) To
determine whether a single conspiracy had been formed, the court looked to "whether the
acts 'were tied together as stages in the formation of a larger all-inclusive combination, all
directed to achieving a single unlawful end or result.' " (Id. at p. 1672, quoting People v.
Morocco, supra, 191 Cal.App.3d at p. 1453.) It also considered " 'whether the crimes
involved the same motives [and] were to occur in the same time and place and by the
same means,' and targeted a single or multiple victims." (Meneses, at p. 1672, citing
McLead, supra, 225 Cal.App.3d at p. 920.)
47
Applying those factors, the court ruled that the "evidence does not support a
finding of a single enterprise with a common purpose." (Meneses, supra, 165
Cal.App.4th at p. 1671.) The conspiracies were "distinct and disconnected," involving
different combinations of conspirators and different time periods. (Id. at p. 1672.) The
court explained: "The only common element in each conspiracy was defendant himself,
who formed separate confederations with various parties at different times for different
transactions. The evidence does not support a finding of a single enterprise with a
common purpose." (Id. at 1671.)
In contrast to Meneses, the two alleged conspiracies here involved the same two
coconspirators (Hernandez and Kopp). Hernandez would convey what needed to be done
to prevent two key witnesses from testifying against him, and Kopp would communicate
Hernandez's instructions to E.P. Unlike the defendant in Menses, this is not the case
where a defendant "formed separate confederations with various parties at different times
for different transactions." (See Meneses, supra, 165 Cal.App.4th at p. 1671.)
Further, the prosecution's theory of the case supports the conclusion that
Appellants entered into a single conspiracy. During closing argument, the prosecutor
repeatedly told the jury that this case was about Appellants attempting to interfere with
the administration of justice. The prosecutor further discussed the evidence supporting
the two conspiracies, interchangeably, noting that the same audio recording and texts
showed the two conspiracies. Even when first discussing the two alleged conspiracies
during his closing argument, the prosecutor asked the jury to think of "a bigger
conspiracy to interfere with the ordinary administration of justice," and he referred to "the
48
original plan" to "conspir[e] to interfere with [the administration of justice]" as well as
"the agreement" and "what the[] overt acts [were] in furtherance of." Thus, it is not
surprising that the overt acts the prosecutor claimed supported a conspiracy to commit
murder were virtually identical to the overt acts he claimed supported the conspiracy to
dissuade a witness from testifying.
Not daunted by the record, the People insist the evidence could not have supported
a finding of a single conspiracy because the evidence established a separate motive for
each conspiracy. As such, the People point out that the prosecution's expert testified that
when a person connected with the Mexican Mafia cooperates with law enforcement, it is
considered a serious violation of the gang's rules that could result in death to the offender.
Although they concede murdering U.P. would serve the purpose of making it more
difficult to prosecute Hernandez, the People further maintain that conspiring to murder
U.P. before trial did not extinguish the separate goal to punish U.P. for violating Mexican
Mafia rules. However, the possibility of two motives or goals regarding the decision to
kill U.P. does not undermine the existence of a single conspiracy. Indeed, a single
conspiracy can have diverse objects and involve committing multiple crimes.
(See Meneses, supra, 165 Cal.App.4th at pp. 1669-1670; Jasso, supra, 142 Cal.App.4th
at p. 1222.)
Instead of concluding that Meneses is instructive here, we believe the instant
matter is more analogous to Jasso, supra, 142 Cal.App.4th 1213. In that case, a prison
inmate was convicted of three counts of conspiracy to import drugs into the prison based
on numerous phone calls to one contact, who coordinated with the wives of several
49
different inmates who planned to visit their husbands in prison. The contact would obtain
the drugs, package them, and give them to the visitor, who would conceal the drugs on
her body. On three different days within a two-month period, three separate women
visiting their husbands in prison were searched and found to be carrying drugs. (Id. at
pp. 1216-1219.) The jury was not instructed to determine the number of conspiracies.
The appellate court reversed all three conspiracy convictions after concluding that a
properly instructed jury could have found a single conspiracy because all three charged
"conspiracies occurred during the same narrow time frame and involved the same modus
operandi," notwithstanding the existence of multiple attempts on different days to
smuggle the drugs into prison using different women as couriers. (Id. at pp. 1221-1223.)
Here, the evidence of a single conspiracy was much stronger than the evidence in
Jasso, supra, 142 Cal.App.4th 1213. In the instant matter, as consistently argued by the
prosecutor during closing, the evidence showed that the overall goal of the conspiracy
between Appellants was to ensure that the two key witnesses against Hernandez did not
testify at his trial. The audio recordings and texts on which the prosecutor relied to prove
the existence of the conspiracies were the same. The same overt acts were offered for
both conspiracies. The conspirators were the same for both alleged conspiracies. In fact,
this is not a case, as urged by the People, wherein the evidence precludes a finding of a
single conspiracy. In fact, the opposite appears true. Considering the record before us,
especially considering the prosecutor's closing argument, the evidence of the
conspiracies, and the alleged overt acts, this seems to be one of those unique cases
wherein it is apparent that only one conspiracy existed. Thus, a properly instructed jury
50
would have only found the existence of a single conspiracy. The error here therefore was
not harmless under People v. Watson, supra, 46 Cal.2d at page 836. Accordingly, the
second count of conspiracy (count 4) cannot stand as to either appellant.
VII
SENTENCING ISSUES
A. Hernandez's Contentions
Hernandez alleges several errors relating to his sentence. First, he argues that the
trial court should have stayed his sentence for count 4 under section 654 because the
conduct in count 4 "was part of the same process" as the conduct for count 5. Second, he
claims the abstract of judgment is incorrect because it states that the sentence on count 4
is both consecutive and concurrent. Third, he maintains the trial court improperly
imposed enhancements on counts 1 and 2, under both sections 186.22 and 12022.7.
Both of Hernandez's first two contentions are moot. Because we are reversing
Hernandez's conviction under count 4, his argument that the court should stay his
sentence for that count is no longer of the moment. Likewise, regarding his claim that the
abstract of judgment is incorrect, on remand, the trial court will resentence Hernandez
consistent with this opinion and amend the abstract of judgment accordingly.
Hernandez's third argument remains. He contends that the trial court violated
section 1170.1, subdivision (g). 20 Specifically, he asserts the court improperly imposed
20 Section 1170.1, subdivision (g) provides: "When two or more enhancements may
be imposed for the infliction of great bodily injury on the same victim in the commission
of a single offense, only the greatest of those enhancements shall be imposed for that
51
enhancements on counts 1 and 2 under both sections 186.22, subdivision (b)(1)(C) and
12022.7, subdivision (a) because the court double counted these enhancements, which are
based on a finding of great bodily injury. (See People v. Gonzalez (2009) 178
Cal.App.4th 1325, 1327-1328, 1331-1332 [concluding imposition of both a great bodily
injury enhancement (§ 12022.7, subd. (a)) and a 10-year gang enhancement based on the
great bodily injury finding (§ 186.22, subd. (b)(1)(C)) violated § 1170.1, subd. (g)].)
Here, Hernandez's infliction of great bodily injury on the victim had two
consequences as it pertained to sentence enhancements. First, it qualified him for a three-
year enhancement under section 12022.7, subdivision (a). Second, it turned the two
underlying assaults into violent felonies under section 667.5, subdivision (c), which
qualified him for the 10-year gang enhancement under section 186.22,
subdivision (b)(1)(C). Thus, imposing and executing both the 10-year gang enhancement
and the great bodily injury enhancement under section 12022.7, subdivision (a) would
violate section 1170.1, subdivision (g). (People v. Gonzalez, supra, 178 Cal.App.4th
at pp. 1327-1328, 1331-1332.) Yet, unlike that case, in which the trial court imposed and
executed both enhancements, the trial court here imposed and stayed the section 12022.7
enhancements under section 654. The court therefore did not err. The trial court
properly imposed and stayed the section 12022.7 enhancement. (Cf. People v. Gonzalez
(2008) 43 Cal.4th 1118, 1127; People v. Le (2015) 61 Cal.4th 416, 429.)
offense. This subdivision shall not limit the imposition of any other enhancements
applicable to that offense, including an enhancement for being armed with or using a
dangerous or deadly weapon or firearm."
52
B. Kopp's Contentions
Kopp contends the court erred when it did not stay her sentence for count 5
(furnishing methamphetamine) under section 654. We disagree.
At the sentencing hearing, Kopp's trial counsel argued that the sentences for
counts 3 (conspiracy to commit murder) and 5 should run concurrently. Counsel also
argued that section 654 should be applied. The trial court disagreed, finding the
sentences for counts 4 and 5 would run concurrently to one another but the crimes were
"sufficiently separate that they should be consecutive" to count 3. Therefore, the court
sentenced Kopp to prison for a term of 25 years to life for count 3 (conspiracy to commit
murder), a concurrent term of three years for count 4 (conspiracy to dissuade a witness),
and a consecutive term of four years for count 5. Kopp argues the trial court erred
because the overt acts underlying the conspiracy to commit murder in count 3
encompassed the furnishing methamphetamine charge in count 5; thus, the sentence for
count 5 had to be stayed under section 654.
Section 654 prohibits punishment for two crimes arising from a single, indivisible
course of conduct. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) This is "to ensure
that a defendant's punishment will be commensurate with his culpability." (People v.
Correa (2012) 54 Cal.4th 331, 341.) In determining the applicability of section 654,
"[w]e first consider if the different crimes were completed by a 'single physical act.'
[Citation.] If so, the defendant may not be punished more than once for that act. Only if
we conclude that the case involves more than a single act—i.e., a course of conduct—do
we then consider whether that course of conduct reflects a single ' "intent and objective" '
53
or multiple intents and objectives." (People v. Corpening (2016) 2 Cal.5th 307, 311
(Corpening).) If a defendant has independent criminal objectives, he may be punished
for each crime committed pursuing an independent objective, even if the crimes share
common acts or are otherwise part of an indivisible course of conduct. (People v. Perry
(2007) 154 Cal.App.4th 1521, 1525.) However, "[i]f all the offenses are incidental to one
objective, the defendant may be punished for any one of them, but not for more than
one." (People v. DeVaughn (2014) 227 Cal.App.4th 1092, 1112 (DeVaughn), citing
People v. Centers (1999) 73 Cal.App.4th 84, 98.)
Yet, if the "defendant harbored 'multiple criminal objectives,' which were
independent of and not merely incidental to each other, he [or she] may be punished for
each statutory violation committed in pursuit of each objective, 'even though the
violations shared common acts or were parts of an otherwise indivisible course of
conduct.' [Citation.]" (People v. Harrison (1989) 48 Cal.3d 321, 335.)
But even if a course of conduct is " 'directed to one objective,' " it may " 'give rise
to multiple violations and punishment' " if it is " 'divisible in time.' " (People v. Deegan
(2016) 247 Cal.App.4th 532, 542, quoting People v. Beamon (1973) 8 Cal.3d 625, 639,
fn. 11.) "This is particularly so where the offenses are temporally separated in such a
way as to afford the defendant opportunity to reflect and renew his or her intent before
committing the next one, thereby aggravating the violation of public security or policy
already undertaken." (People v. Gaio (2000) 81 Cal.App.4th 919, 935 (Gaio); see
People v. Felix (2001) 92 Cal.App.4th 905, 915 ["multiple crimes are not one transaction
54
where the defendant had a chance to reflect between offenses and each offense created a
new risk of harm"].)
"The question of whether section 654 is factually applicable to a given series of
offenses is for the trial court, and the law gives the trial court broad latitude in making
this determination." (DeVaughn, supra, 227 Cal.App.4th at p. 1113.) A court's
expressed or implied findings on this point must be upheld if supported by substantial
evidence. (People v. Brents (2012) 53 Cal.4th 599, 618.) This requires us to view the
evidence in the light most favorable to the sentencing order and presume the existence of
facts a trier of fact could reasonably deduce from the evidence. (DeVaughn, at p. 1113.)
However, Kopp contends the facts are not in dispute, and as such, we should review this
issue de novo. (See Corpening, supra, 2 Cal.5th at p. 312.) But Kopp's claim that the
facts are not in dispute is based upon an assumption that each juror relied on the same
overt act to find Kopp guilty of conspiracy. As we explain below, the record does not
mandate this conclusion. Accordingly, we employ the deferential substantial evidence
standard of review.
Kopp maintains counts 3 and 5 were accomplished by the same physical act
because count 5 was one of the overt acts the jury could have found to support Kopp's
conviction of count 3. (See Corpening, supra, 2 Cal.5th at p. 311.) A single physical act
occurs when "the same physical action . . . completed the actus reus of each charged
crime[.]" (Id. at p. 313.) The actus reus is " '[t]he wrongful deed that comprises the
physical components of a crime.' " (Id. at p. 312, quoting Black's Law Dict. (10th ed.
2014) p. 44, col. 1.) " 'Conspiracy to commit murder requires an agreement to commit
55
murder and an overt act by one or more of the conspirators.' [Citation.]" (People v.
Penunuri (2018) 5 Cal.5th 126, 144.) Although Kopp is correct that count 5, consisting
of furnishing methamphetamine, was the same act as one of the overt acts presented to
the jury to establish a conspiracy to commit murder, there were 10 other overt acts the
prosecutor proffered to prove that conspiracy. Further, the court instructed the jurors that
they "must all agree that at least one alleged overt act was committed in California by at
least one alleged member of the conspiracy, but [they] d[id] not have to all agree on
which specific overt acts were committed and who committed the overt act or acts."
Thus, there is nothing in the record that leads us to the conclusion that each juror
determined that furnishing the methamphetamine was the overt act to support the verdict
that Kopp committed conspiracy to commit murder in count 3. Therefore, we disagree
with Kopp that the record establishes that counts 3 and 5 were accomplished by the same
physical act. Consequently, we move on to consider the second test under Corpening.
After finding that a single physical act was not the actus reus for each count, a
court must next evaluate whether the several acts, establishing the commission of the
subject offenses, were pursued with a single objective. If so, then section 654 prohibits
multiple punishments. (Corpening, supra, 2 Cal.5th at p. 311.) Here, Kopp has a better
argument that the furnishing of methamphetamine was pursued as part of the single
objective to conspire to prevent two witnesses from testifying against Hernandez.
Indeed, Kopp obtains and furnishes the methamphetamine as payment to murder one
witness and dissuade the other from testifying. Nevertheless, as the People point out,
multiple punishments are permitted based on a course of conduct divisible in time, even
56
if directed at one objective. (See Gaio, supra, 81 Cal.App.4th at p. 935.) Here, the
11 overt acts, each one which could support the jury's verdict on count 3, occurred over a
period of several days. For example, the furnishing of methamphetamine was labeled as
Overt Act No. 8 and occurred on February 22. The first overt act occurred on February
10 and the last on February 26 or March 1. Kopp does not argue that substantial evidence
does not support the determination that all 11 of the overt acts occurred. Further, the
gaps in time between the various alleged overt acts provided Kopp with time to reflect on
her next steps, making her actions divisible and multiple punishments appropriate. (See
People v. Felix, supra, 92 Cal.App.4th at p. 915; Gaio, supra, 81 Cal.App.4th at p. 935.)
As such, the trial court could reasonably find multiple punishments warranted and
substantial evidence supported such a finding. The trial court did not err in failing to stay
Kopp's sentence under count 5 pursuant to section 654. 21
Finally, Kopp argues that the abstract of judgment must be corrected to accurately
indicate her sentence for counts 4 and 5. The People do not disagree. Because we are
reversing her conviction for count 4 and have determined that section 654 did not require
the trial court to stay her sentence under count 5, on remand, we order the trial court to
amend the abstract of judgment in accordance with this opinion after resentencing Kopp.
21 Hernandez does not explicitly adopt Kopp's argument regarding sections 654 and
counts 3 and 5. To the extent he contends he implicitly made that argument in his brief,
his argument fails for the same reasons as does Kopp's.
57
VIII
SENATE BILL NO. 1393
On September 30, 2018, the Governor signed Senate Bill No. 1393 which,
effective January 1, 2019, amends sections 667, subdivision (a) and 1385, subdivision (b)
to allow a court to exercise its discretion to strike or dismiss a prior serious felony
conviction for sentencing purposes. (Stats. 2018, ch. 1013, §§ 1-2.) Under the former
versions of these statutes, the court was required to impose a five-year consecutive term
for "any person convicted of a serious felony who previously has been convicted of a
serious felony" (§ 667(a)), and the court has no discretion "to strike any prior conviction
of a serious felony for purposes of enhancement of a sentence under Section 667."
(§ 1385, subd. (b).)
In his supplemental brief, Hernandez maintains that Senate Bill No. 1393 applies
retroactively, and therefore, we must remand this matter for resentencing under the bill.
The People concede that Senate Bill No. 1393 is retroactive and agree that we should
remand the matter for resentencing on that issue. Recently, our colleagues in Division
Two of the Fourth Appellate District concluded Senate Bill No. 1393 applies
retroactively. (People v. Garcia (2018) 28 Cal.App.5th 961, 973.) We adopt the
reasoning of Division Two here. (See id. at pp. 971-973.) Accordingly, we conclude that
Senate Bill No. 1393 applies retroactively, and this matter must be remanded to the
superior court for resentencing under that bill.
58
IX
ASSESSMENTS AND FINES
A. Appellants' Contentions
Citing Dueñas, supra, 30 Cal.App.5th 1157, Hernandez contends in his
supplemental brief that the trial court erred in imposing certain fees and fines without
first determining his ability to pay these charges. Kopp filed a joinder as to Hernandez's
argument.
B. Background
At Appellants' sentencing hearing, Hernandez's trial attorney asked for a
"minimum of $200" for "the restitution fine." He also requested that the court stay "the
additional fines for Mr. Hernandez due to his inability to pay." Finally, he asked the
court to "find the requisite extraordinary circumstances that require a stay." After the
prosecutor objected to Hernandez's requests, the court rejected defense counsel's
argument, noting: "My general understanding is the determination of inability to pay
occurs not necessarily on the date of sentencing but at a later date when the fine is or may
be imposed. There is a possibility that the defendant may be able to earn funds while he
is incarcerated, so I'm going to decline to make that finding at this time."
The court then imposed the following assessments and fines on Appellants: a
restitution fine of $10,000 under Penal Code section 1202.4, subdivision (b); a court
security fee of $120 under Penal Code section 1465.8; an immediate critical needs
account fee of $90 under Government Code section 70373; a criminal justice
administrative fee of $154 under Government Code section 29550.1; a drug program fee
59
of $615 under Health and Safety Code section 11372.5; and a lab analysis fee of $205
under Health and Safety Code section 11372.5. The court also ordered but stayed a
parole revocation restitution fee of $10,000 under Penal Code section 1202.45. 22
Kopp's trial counsel did not object or otherwise address any of the fees or fines
levied on Kopp. 23
C. Analysis
Appellants maintain that we should remand this matter so the trial court can
conduct an ability to pay hearing as to all the imposed fees and fines per Dueñas, supra,
30 Cal.App.5th 1157. They admit that the Dueñas court did not address all the fines that
are at issue here, but contend that Dueñas "established a constitutional principle" that a
trial court can only impose certain fees and fines if it first determines that they can pay
them. Although we do not reject Dueñas outright, we urge caution in following that case
and announcing a significant constitutional rule without regard to the extreme facts
Dueñas presented.
In Dueñas, the defendant was an indigent, homeless mother of two, who subsisted
on public aid while suffering from cerebral palsy. (Dueñas, supra, 30 Cal.App.5th at
22 The court ordered victim restitution under section 1202.4, subdivision (f) in an
amount to be determined. Because victim restitution is a civil remedy, we do not address
that restitution here. (See People v. Harvest (2000) 84 Cal.App.4th 641, 647, 649-650.)
23 Although Kopp's trial counsel did not object to any of the imposed fees or fines,
because the issue was raised by Hernandez and addressed by the court, we do not find
that she forfeited this issue on appeal. The record makes clear that had counsel objected
on the same grounds as Hernandez's counsel, the court would have rejected that objection
as well. Put differently, any objection by Kopp's counsel would have been futile, and the
issue has been preserved for appeal. (See People v. Hill (1998) 17 Cal.4th 800, 821.)
60
pp. 1160-1161.) As a teenager, the defendant's license was suspended when she could
not pay some citations. (Id. at p. 1161.) She then was convicted of a series of
misdemeanor offenses for driving with a suspended license, and in each case, she was
given the Hobson's choice to pay mandatory fees and fines, which she lacked the means
to do, or go to jail. (Id. at p. 1161.) She served jail time in the first three of these cases,
but still faced outstanding debt, which increased with each conviction. (Ibid.)
After her fourth conviction of driving with a suspended license, the defendant was
placed on probation and again ordered to pay mandatory fees and fines. (Dueñas, supra,
30 Cal.App.5th at pp. 1161-1162.) To try to stop the cycle of ever enhancing fees and
fines, the defendant brought a due process challenge to Penal Code section 1465.8,
Government Code section 70373, and Penal Code section 1202.4, the statutes under
which the fees and fines were imposed. (Dueñas, at p. 1164.) She argued that "[t]hese
statutes . . . are fundamentally unfair because they use the criminal law, which is centrally
concerned with identifying and punishing only blameworthy decisions, to punish the
blameless failure to pay by a person who cannot pay because of her poverty. The laws,
moreover, are irrational: They raise no money because people who cannot pay do not
pay." (Ibid.) The appellate court agreed, determining that due process "requires the trial
court to conduct an ability to pay hearing and ascertain a defendant's present ability to
pay before it imposes court facilities and court operations assessments under Penal Code
section 1465.8 and Government Code section 70373." (Dueñas, at p. 1164.) The court
also concluded that "although Penal Code section 1202.4 bars consideration of a
defendant's ability to pay unless the judge is considering increasing the fee over the
61
statutory minimum, the execution of any restitution fine imposed under this statute must
be stayed unless and until the trial court holds an ability to pay hearing and concludes that
the defendant has the present ability to pay the restitution fine." (Dueñas, at p. 1164.)
Here, there is no indication that either Hernandez or Kopp are anything like the
defendant in Dueñas. The record does not indicate that either appellant is indigent or a
parent living on public assistance, who is trapped in a cycle of debt originating in driving
citations and a suspended license and whose woeful financial situation is exacerbated by
misdemeanors and further fines. That said, we are mindful that neither appellant was
permitted to make any record in the trial court as to his or her financial condition.
Additionally, we agree, to some extent, with the court's conclusion in Dueñas that due
process requires the trial court to conduct an ability to pay hearing and ascertain a
defendant's ability to pay before it imposes court facilities and court operations
assessments under Penal Code section 1465.8 and Government Code section 70373, if the
defendant requests such a hearing. To this list of assessments, we would add the criminal
justice administration fee, imposed on Appellants here, under Government Code
section 29550.1. These assessments are not punitive in nature, and, we agree that
"imposing unpayable fines on indigent defendants is not only unfair, it serves no rational
purpose, fails to further the legislative intent, and may be counterproductive." (Dueñas,
supra, 30 Cal.App.5th at p. 1167.) Accordingly, it was error not to hold an ability to pay
hearing after Hernandez explicitly raised the issue below. Thus, an ability to pay hearing
for these assessments as to Appellants is warranted on remand.
62
Nevertheless, as we are not wholly endorsing Dueñas, supra, 30 Cal.App.5th
1157, we want to make clear that it is Appellants' burden to make a record below as to
their ability to pay these assessments. To the extent the Dueñas court implies that it is the
prosecution's burden to prove that a defendant can pay an assessment (see id. at p. 1172),
we disagree. It is the defendant who bears the burden of proving an inability to pay.
(Cf. People v. McMahan (1992) 3 Cal.App.4th 740, 749.) In addition, the Dueñas court
suggests that the trial court must evaluate a defendant's present ability to pay any fees or
fines. (See Dueñas, at p. 1164.) The court, however, does not define what is meant by
"present." To avoid confusion, we make clear that the trial court should not limit itself to
considering only whether Appellants have the ability to pay at the time of the sentencing
hearing. As both Appellants will be serving lengthy prison sentences, it is appropriate for
the court to consider the wages that both may earn in prison. (See People v. Hennessey
(1995) 37 Cal.App.4th 1830, 1837 [ability to pay includes a defendant's ability to obtain
prison wages]; § 2085.5 [outlining how a restitution fine balance may be collected from
prison wages].)
Additionally, we do not follow the court's approach to restitution fines in Dueñas.
There, the court acknowledged that the restitution fine under section 1202.4 is "additional
punishment for a crime." (See Dueñas, supra, 30 Cal.App.5th at p. 1169.) Yet, the court
still focused solely on a defendant's ability to pay in determining whether such a punitive
fine is constitutional. To this end, the court held:
"[A]lthough Penal Code section 1202.4 bars consideration of a
defendant's ability to pay unless the judge is considering increasing
the fee over the statutory minimum, the execution of any restitution
63
fine imposed under this statute must be stayed unless and until the
trial court holds an ability to pay hearing and concludes that the
defendant has the present ability to pay the restitution fine."
(Dueñas, supra, 30 Cal.App.5th at p. 1164.)
We disagree that this approach should apply to all punitive fines in the first instance. 24
Instead, because these fines are intended to punish defendants, we agree with the People
that a defendant should challenge such fines under the excessive fines clause of the
Eighth Amendment of the federal constitution and article I, section 17 of the California
Constitution. Put differently, there is no due process requirement that the court hold an
ability to pay hearing before imposing a punitive fine and only impose the fine if it
determines the defendant can afford to pay it.
The Eighth Amendment to the United States Constitution states: "Excessive bail
shall not be required, nor excessive fines imposed, nor cruel and unusual punishments
inflicted." "The Due Process Clause of the Fourteenth Amendment to the Federal
Constitution . . . makes the Eighth Amendment's prohibition against excessive fines and
cruel and unusual punishments applicable to the States. [Citation.] The Due Process
Clause of its own force also prohibits the States from imposing 'grossly excessive'
punishments . . . ." (Cooper Industries, Inc. v. Leatherman Tool Group, Inc. (2001)
532 U.S. 424, 433-434.)
24 Here, the punitive fines at issue are a restitution fine of $10,000 under Penal Code
section 1202.4, subdivision (b) (see Dueñas, supra, 30 Cal.App.5th at p. 1169); a drug
program fee of $615 under Health and Safety Code section 11372.5; and a lab analysis
fee of $205 under Health and Safety Code section 11372.5 (see People v. Ruiz (2018)
4 Cal.5th 1100, 1103-1104).
64
The California Constitution contains similar protections. Article I, section 17,
prohibits "cruel or unusual punishment" and "excessive fines"; article I, section 7,
prohibits the taking of property "without due process of law."
The seminal United States Supreme Court case on the Eighth Amendment's
prohibition of excessive fines is United States v. Bajakajian (1998) 524 U.S. 321,
(Bajakajian), which involved a federal statute (31 U.S.C. § 5316(a)) requiring any person
transporting more than $10,000 out of the United States to file a report with the United
States Customs Service. The defendant attempted to take $357,144 out of the country
without filing a report. The government claimed that the entire $357,144 was forfeited.
The high court pointed out that "[t]he touchstone of the constitutional inquiry under the
Excessive Fines Clause is the principle of proportionality." (Bajakajian, at p. 334.) It
then set out four considerations: (1) the defendant's culpability; (2) the relationship
between the harm and the penalty; (3) the penalties imposed in similar statutes; and
(4) the defendant's ability to pay. (Id. at pp. 337-338.) After reviewing those
considerations, the high court held that the forfeiture of the defendant's currency
constituted an "excessive fine" barred by the Eighth Amendment.
The California Supreme Court has adopted the same four factors to analyze
whether a fine is constitutionally disproportionate. (See People ex rel. Lockyer v. R.J.
Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728.) These are the same four factors the
superior court should apply if either appellant claims the punitive fines here are
excessive. And, as both the United States and California Supreme Courts have held, a
defendant's ability to pay is one factor to consider. (Ibid.; Bajakajian, supra, 524 U.S. at
65
p. 338; cf. § 1202.4, subd. (c) ["Inability to pay may be considered only in increasing the
amount of the restitution fine in excess of the minimum fine pursuant to paragraph (1) of
subdivision (b) (of section 1202.4)"].) However, it is not the only factor. 25
DISPOSITION
Appellants' respective convictions under count 4 are reversed. We remand this
matter to the superior court to hold an ability to pay hearing and resentence Appellants
consistent with this opinion and amend the abstracts of judgment accordingly. As part of
resentencing, Hernandez may move under Senate Bill No. 1393 to strike his prior serious
felony conviction. In addition, Appellants may challenge their punitive fines under the
California and federal constitutions as set forth in this opinion. We offer no opinion
25 We acknowledge that neither appellant argued below that their respective punitive
fines were excessive under the California or federal constitutions. However, because we
are remanding this matter to the superior court for resentencing and to hold ability to pay
hearings as to the assessments, and considering the recently issued Dueñas opinion, we
conclude Appellants may argue the punitive fines imposed are unconstitutionally
excessive on remand, if they believe such an argument is appropriate.
66
regarding how the superior court should rule on these matters. In all other respects, the
judgment is affirmed.
HUFFMAN, J.
I CONCUR:
GUERRERO, J.
67
BENKE, Acting P. J., concurring in part.
I agree with the majority that, despite defendant Christi J. Kopp's failure at
sentencing to object on the ground of inability to pay the various fines and assessments
imposed by the trial court, her claim of error has been preserved on appeal as a result of
the inability-to-pay objection made by codefendant Jason Samuel Hernandez. (See
People v. Hill (1998) 17 Cal.4th 800, 820 [noting a "defendant will be excused from the
necessity of either a timely objection and/or a request for admonition if either would be
futile"].)
However, I part company with the majority's disposition of this case. Unlike the
majority, I do not agree that remand for an inability-to-pay hearing should be based in
part on due process and equal protection grounds as stated in People v. Dueñas (2019)
30 Cal.App.5th 1157 (Dueñas), including for certain fines and/or assessments, but not
others. Although the majority urges "caution" in following Dueñas based on the
"extreme facts" of that case (maj. opn. ante, at p. 60), the majority in remanding this case
for such a hearing at the same time expressly agrees "to some extent" with Dueñas in
concluding that "due process requires the trial court to conduct an ability to pay hearing
and ascertain a defendant's ability to pay before it imposes" various assessments on a
defendant. (Maj. opn. ante, at p. 62.)
As I stated in my concurring opinion in People v. Gutierrez (2019) 35 Cal.App.5th
1027 (Gutierrez), I respectively believe Dueñas erroneously invoked a due process and
equal protection analysis, as the underpinning for its decision, by relying on authorities
that involved access to the courts and the judicial system. (Dueñas, supra, 30
Cal.App.5th at p. 1166, citing to Griffin v. Illinois (1956) 351 U.S. 12, 17 [concluding
that due process and equal protection guaranteed an indigent criminal defendant a free
transcript of trial proceedings in order to provide that defendant with access to the court
of appeal, where he would receive an adequate and effective review of his criminal
conviction].) 1 In my view, the issue of access to the courts and judicial system was not
an issue in Dueñas, nor is it an issue in the instant case.
To the extent a challenge is made in the trial court on the ground of inability to
pay any fines and assessments, 2 I believe that challenge should be analyzed under the
Eighth Amendment to the United States Constitution, 3 made applicable to the states
through the Fourteenth Amendment, as recently announced by the United Supreme Court
1 Likewise, Dueñas's citations to multiple provisions of the Government Code do
not support its conclusion that our "Legislature has recognized the deleterious impact of
increased court fees on indigent people." (Dueñas, at p. 1165.) Rather, these statutes
ensure that all people, without regard to economic status, have equal access to our justice
system.
2 Although not an issue in the instant case, if, at sentencing, a defendant fails to
object to the imposition of fines and assessments on the ground of inability to pay, that
claim of error in my view is forfeited on appeal. (See People v. Frandsen (2019)
33 Cal.App.5th 1126, 1155 [refusing to follow Dueñas in concluding it stands "by the
traditional and prudential virtue of requiring parties to raise an issue in the trial court if
they would like appellate review of that issue"].)
3 The Eighth Amendment to the United States Constitution states: "Excessive bail
shall not be required, nor excessive fines imposed, nor cruel and unusual punishments
inflicted."
2
in Timbs v. Indiana (2019) __ U.S. __, 139 S.Ct. 682; and under Article I, section 17, 4 of
our state Constitution. (See, e.g., Gutierrez, supra, 35 Cal.App.5th 1027 (conc. opn. of
Benke, J.).)
Here, because Hernandez's inability-to-pay objection benefited Kopp, I agree with
the majority that on remand she may challenge the fines and assessments imposed on
her. 5 I disagree, however, with the majority's decision to the extent it concludes that,
with respect to certain assessments, remand was required under Dueñas based on due
process and equal protection principles. Instead, remand is necessary to allow the trial
court to apply an Eighth Amendment analysis, which, in my view, allows for a consistent
and fair review of fines and fees imposed on individuals, with the appeal process
remaining available for further review.
BENKE, Acting P. J.
4 Article 1, section 17, of the California Constitution states: "Cruel or unusual
punishment may not be inflicted or excessive fines imposed."
5 I note from the record that in overruling the inability-to-pay objection of
Hernandez, it appears the court stopped just short of making a finding of ability to pay
when the court stated, "There is a possibility that the defendant may be able to earn funds
while he is incarcerated, so I'm going to decline to make [the inability-to-pay] finding at
this time."
3