P. v. Mora
Filed 1/29/07 P. v. Mora CA2/6
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court,
rule 977(a), prohibits courts and parties from citing or relying on opinions
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977(b). This opinion has not been certified for publication or ordered
published for purposes of rule 977.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SIX
THE PEOPLE,
Plaintiff and Respondent,
v.
UVALDO MORA et al.,
Defendant and Appellant.
| 2d (Super. (Los
|
Uvaldo Mora
appeals a judgment of conviction of
kidnapping to commit carjacking,
kidnapping to commit robbery, kidnapping, carjacking, second degree robbery,
false imprisonment by violence, making criminal threats, and possession of a
firearm by a felon, with findings of personal weapon use and the commission
of criminal acts for street gang purposes. (Pen. Code, §§ 209.5, subd.
(a), 209, subd. (b)(1), 207, subd. (a), 215, subd. (a), 211, 236, 422, 12021,
subd. (a)(1), 12022.53, subd. (b), 12022.5, subd. (a)(1), & 186.22, subd.
(b)(1)(A).)[1] We remand for
the calculation of Mora's sentence, presentence conduct and total custody credits, but
otherwise affirm.
Francisco
Villarruel appeals a judgment of conviction of kidnapping, false imprisonment
by violence, and possession of a firearm by a felon, with findings of personal
firearm use, commission of criminal acts for street gang purposes, and the
serving of a prior prison term within the meaning of section 667.5, subdivision
(b). (§§ 207, subd. (a), 236, 12021, subd. (a)(1), 12022.53, subd. (b),
12022.5, subd. (a)(1), & 186.22, subds. (b)(1)(A) & (b)(1)(C).) We
remand for resentencing, but otherwise affirm.
Victor
Manuel Ponce, Sr., appeals a judgment of conviction of kidnapping and false
imprisonment, with a finding of the commission of criminal acts for street
gang purposes. (§§ 207, subd. (a), 236, & 186.22, subds. (b)(1)(A)
& (b)(1)(C).) We affirm.
FACTS
AND PROCEDURAL HISTORY
During the
late afternoon of January 16, 2005, Santiago Rodriguez drove to the Valinda
residence of Edgar Padilla and spoke with him in the driveway. Rodriguez and
Padilla were members of the "Townsmen," a criminal street gang. As Rodriguez sat
in the driver's seat of his van, Uvaldo Mora approached him. Mora, a member of
the "Little Hill" criminal street gang, held a handgun. He ordered
Rodriguez to move to the passenger seat, and stated that he wanted "some
information about something that happened." As Mora drove from the
driveway, he shouted, "[T]his is how Little Hill does it."
Mora then
drove Rodriguez to Victor Ponce's residence and questioned him in the carport
"about one of [Rodriguez's] homies having shot one of [Mora's]
homies." Ponce "poke[d] or jab[bed]" Rodriguez in the stomach
"somewhat forceful[ly]" as he demanded Rodriguez's answers. Ponce
informed Rodriguez that he would be "shot" if he refused to answer.
Mora and Ponce questioned Rodriguez for approximately two hours, during which
time Mora seized Rodriguez's wallet, cash, cell phone, and van keys.
Mora then
drove Rodriguez at gunpoint to a residence on Shipman Avenue where Francisco
Villarruel soon arrived. There, Mora questioned Rodriguez in the backyard for
approximately two hours. Mora demanded that Rodriguez lead him to the Pomona
residence of Townsmen gang members. He threatened to shoot Rodriguez "if
[he] didn't take them there." Villarruel did not speak to Rodriguez
during the interrogation.
Sheriff's
deputies then appeared in the street in front of the Shipman Avenue residence.
Mora threatened to shoot Rodriguez if he did not jump the backyard fence with
him. Rodriguez did so, with Villarruel at gunpoint behind him. Villarruel had
revealed a rifle that was concealed by his clothing.
Rodriguez
fled with Mora and Villarruel, but soon stopped running. Officers discovered
Rodriguez and eventually Mora. Rodriguez identified Mora at the scene of his
arrest as the man who abducted him. He also identified Mora, Ponce, and
Villarruel in a photographic lineup. Officers later arrested Ponce and
Villarruel.
Mora, Ponce,
and Villarruel are Little Hill criminal street gang members. A deputy sheriff
with knowledge and experience regarding criminal street gangs testified that
Little Hill and the Townsmen are rival street gangs and that a Little Hill gang
member had been shot on January 16, 2005. He also testified that Little Hill
gang members were involved with murders, witness intimidation, narcotics sales,
robberies, and rapes, among other crimes.
Mora's
former girlfriend testified that he spent part of the evening of January 16, 2005, with her. She stated that she did not see him with a handgun.
Conviction
and Sentencing
The jury
convicted Mora of kidnapping to commit carjacking, kidnapping to commit
robbery, kidnapping, carjacking, second degree robbery, false imprisonment by
violence, making criminal threats, and possession of a firearm by a felon. It
also found that he personally used a firearm and committed criminal acts for
street gang purposes. (§§ 209.5, 209, subd. (b)(1), 207, subd. (a), 215,
subd. (a), 211, 236, 422, 12021, subd. (a)(1), 12022.53, subd. (b), 12022.5,
subd. (a)(1), & 186.22, subd. (b)(1)(A).) The jury convicted Villarruel of
kidnapping, false imprisonment by violence, and possession of a firearm by a
felon. (§§ 207, subd. (a), 236, & 12021, subd. (a)(1).) It also
found that he personally used a firearm and committed criminal acts for street
gang purposes; the trial court found that he served a prior prison term.
(§§ 12022.53, subd. (b), 12022.5, subd. (a)(1), 186.22, subds. (b)(1)(A)
& (b)(1)(C), & 667.5, subd. (b).) The jury convicted Ponce of
kidnapping and false imprisonment. (§§ 207, subd. (a) & 236.) It
also found that he committed criminal acts for street gang purposes.
(§ 186.22, subds. (b)(1)(A) & (b)(1)(C).)
The trial
court sentenced Mora to life imprisonment plus 38 years and 8 months, imposing
in part a five-year upper term for second degree robbery (count 5). It
sentenced Villarruel to 29 years' imprisonment, imposing in part an 8-year
upper term for kidnapping (count 3). The trial court sentenced Ponce to 15
years' imprisonment. In sentencing defendants, the trial court stayed sentence
on many counts pursuant to section 654. It stayed sentence on counts 2, 3, 4,
6, 7, and 10 regarding Mora; counts 7 and 11 regarding Villarruel; and count 6
regarding Ponce.
Mora
appeals and contends that: 1) the trial court erred by not granting his motion
for acquittal concerning kidnapping for robbery (count 2) (I); 2) he may not be
convicted of kidnapping to commit carjacking and carjacking (II); 3) he may not
be convicted of kidnapping to commit carjacking and kidnapping to commit
robbery as well as simple kidnapping and two counts of false imprisonment by
violence (III); 4) the trial court erred by imposing an upper term of
imprisonment in violation of Blakely v. Washington (2004) 542 U.S. 296
(IX); 5) section 654 requires that punishment be stayed for the making of
criminal threats (count 9) (X); 6) the trial court erred by not calculating his
presentence conduct credits (XI).
Villarruel
appeals and contends that 1) insufficient evidence exists that he aided and abetted
kidnapping (count 3) (VI); 2) the trial court erred by instructing that simple
kidnapping is a general intent crime (IV); 3) the trial court erred by denying
a mistrial motion and by refusing to impanel another jury (V); 4) the trial
court erred by refusing to modify CALJIC No. 12.44 to state that his prior
felony conviction was for "joyriding" (VII); 5) the trial court
abused its discretion by refusing to bifurcate trial of the criminal street
gang enhancement; 6) the trial court erred by imposing an upper term of
imprisonment in violation of Blakely v. Washington, supra, 542 U.S. 296
(IX).
Ponce
appeals and contends that: 1) the trial court abused its discretion by
refusing to bifurcate trial regarding the criminal street gang enhancement
(VIII) and 2) insufficient evidence exists that he aided and abetted a
kidnapping (VI).
Mora and Ponce
join the legal contentions made by each other, as applicable. (Cal. Rules of
Court, rule 8.200; People v. Castillo (1991) 233 Cal.App.3d 36, 51.)
DISCUSSION
I.
Mora
asserts that the trial court erred by denying his motion for acquittal
regarding count 2, kidnapping to commit robbery. (§ 1118.1.) He argues
that there is insufficient evidence that he possessed the intent to rob
Rodriguez at the time he first kidnapped him. (People v. Shelburne
(1980) 104 Cal.App.3d 737, 740-743 [no credible evidence that defendant
intended to rob victim at the time he kidnapped him]; In re Dennis
(1975) 46 Cal.App.3d 50, 55-56 [insufficient evidence that defendant intended
to rob victim at time he kidnapped her and later raped her].)
In ruling
upon a motion for acquittal, the trial court applies the same test as applied
by a reviewing court in assessing the sufficiency of evidence to support a
conviction. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 89.)
The court must determine whether sufficient evidence and all reasonable
inferences therefrom provide substantial evidence of each element of the
charged offense. (Ibid.)
The
criminal offense of kidnapping for robbery requires that the defendant commit
the kidnapping with the specific intent to rob. (People v. Jones (1997)
58 Cal.App.4th 693, 717.) This requirement derives from the statutory
definition of the offense as "kidnap[ping] or carr[ying] away . . . to
commit robbery." (§ 209, subd. (b).) A defendant could not kidnap
and carry away his victim to commit robbery if the intent to rob was not formed
until after the kidnapping occurs. (People v. Jones, supra, 58
Cal.App.4th 693, 717.)
Sufficient
evidence and reasonable inferences therefrom support Mora's conviction of
kidnapping to commit robbery. Mora, armed with a handgun, accosted Rodriguez
in the early evening. Kidnapping Rodriguez was unnecessary if Mora wanted only
information concerning the shooting of a Little Hill gang member. Indeed, Mora
robbed Rodriguez of his possessions although he had not obtained the
information he sought. Evidence at trial established that Little Hill gang
members committed robberies among other crimes to promote the gang and enhance
the status of its members. When Mora drove from the driveway, he shouted:
"[T]his is how Little Hill does it." Thus it is a reasonable
inference that Mora may have had multiple criminal intents at the time he
kidnapped Rodriguez. (People v. Jones, supra, 58 Cal.App.4th 693, 718
[defendant may have kidnapped victim with the specific intent to commit
multiple crimes – robbery and carjacking].)
II.
Mora argues
that he may not be convicted of kidnapping to commit carjacking and carjacking
because carjacking is a lesser included offense. (People v. Ortiz
(2002) 101 Cal.App.4th 410, 415 [court must dismiss carjacking conviction
because it is a lesser included offense of kidnapping to commit carjacking
conviction].)
Under the
circumstances, Mora's conviction of each offense is proper because he committed
a second carjacking when he took Rodriquez's van keys after he questioned
Rodriguez at Ponce's residence. At the time, Mora and Rodriquez were in the
carport in the presence of the van, and Rodriquez had regained possession of
his van keys. When Mora retook possession of Rodriquez's van by threatening
him, demanding his keys, and driving the van to the Shipman Avenue residence,
he committed a second carjacking. (People v. Hoard (2002) 103 Cal.App.4th
599, 609 [forced relinquishment of car keys may constitute carjacking].)
III.
Mora asserts that he may not be
convicted of kidnapping to commit carjacking and kidnapping to commit robbery
as well as the lesser included offenses of kidnapping (count 3) and two counts
of false imprisonment by violence (counts 6 & 7). He points out that a
kidnapping continues as long as the victim is detained. (People v. Thomas
(1994) 26 Cal.App.4th 1328, 1334-1335.) Mora asserts that he continuously
detained Rodriguez from the moment he seized him in Padilla's driveway, thereby
committing only one act of kidnapping.
Sufficient evidence supports Mora's
conviction of kidnapping (count 3) and two acts of false imprisonment by
violence (counts 6 & 7) because he committed separate acts of kidnapping
and false imprisonment by violence. Unlike People v. Thomas, supra, 26
Cal.App.4th 1328, Mora did not continuously confine Rodriguez. After driving
Rodriguez to Ponce's residence, Mora returned the van keys to
Rodriguez. Rodriguez sat in the carport while Ponce's
family members were inside the residence. Mora did not hold a gun to Rodriguez
during questioning, and Ponce's son testified that Mora and
Rodriguez spoke in normal tones. After several hours of questioning, Mora seized
the van keys and Rodriguez's wallet, cash, and cell phone. He then drove him
to a second residence where they eventually met Villarruel. At the second
residence, Rodriguez sat in the backyard and Mora left at times to speak on a
cell phone. When Villarruel arrived, Mora questioned Rodriguez and the second
crime of false imprisonment by violence occurred. Unlike People v. Thomas,
supra, 26 Cal.App.4th 1328, there was not a single abduction followed by a
continuous period of detention.
IV.
Villarruel and Ponce
contend that the trial court prejudicially erred by instructing that simple
kidnapping is a general intent crime, given that their criminal liability
rested upon aiding and abetting. They rely upon People v. Mendoza
(1998) 18 Cal.4th 1114, concerning aiding and abetting, specific intent, and
voluntary intoxication.
The trial court did not err. Simple
kidnapping is a general intent crime. (People v. Davis (1995) 10
Cal.4th 463, 519; People v. Moya (1992) 4 Cal.App.4th 912, 916.)
The trial court correctly instructed
with CALJIC No. 3.02, defining aiding and abetting as requiring knowledge of
the unlawful purpose of the perpetrator and an "intent or purpose of
committing or encouraging or facilitating the commission of the crime." (People
v. Mendoza, supra, 18
Cal.4th 1114, 1123 [trier of fact must find the intent to encourage and bring
about criminal conduct, not the specific intent that is an element of the
target offense].) Aiding and abetting a general intent crime does not require
a specific intent nor an instruction to that effect. (People v. Torres
(1990) 224 Cal.App.3d 763, 770.)
People v. Mendoza,
supra, 18 Cal.4th 1114, 1131, does not assist defendants. There
our Supreme Court held that the mental state for aider and abettor liability,
which has intent and knowledge components, is a "required specific
intent" for purposes of voluntary
intoxication. (People v. Atkins (2001) 25 Cal.4th 76, 92.) Mendoza set
forth a "very narrow" holding limited to evidence of intoxication on
aider and abettor liability. (People v. Mendoza, supra, 18 Cal.4th
1114, 1133.) Neither Villarruel nor Ponce raised
a voluntary intoxication defense here and Mendoza is
inapplicable.
V.
Defendants
contend that the trial court erred by commenting during voir dire that "a
preliminary hearing [occurred] that set this matter for trial." In
response, Villarruel moved for a mistrial or for selection of another jury
panel. The trial court denied the motions. Defendants claim that the trial
court abused its discretion by denying the motions because its comment implied
that "an impartial fact finder had found a strong suspicion of
[defendants'] guilt." They argue that the error denied them due process
of law and impaired their right
to a jury trial, and is reversible per se. (Cf. People v. Brown
(1993) 6 Cal.4th 322, 332 [trial by court that is not impartial is structural
defect and reversible per se].)
The trial court
should grant a mistrial motion only when a party's chance of receiving a fair
trial has been irreparably damaged. (People v. Avila (2006)
38 Cal.4th 491, 573.) "'Whether a particular incident is incurably
prejudicial is by its nature a speculative matter, and the trial court is
vested with considerable discretion in ruling on mistrial motions.'" (Ibid.)
The trial
court did not abuse its discretion. During jury selection, it discussed the
presumption of innocence, reasonable doubt, and the burden of proof. It read
CALJIC No. 2.90 regarding reasonable doubt and contrasted it with the burden of
proof in a civil case. The court then
stated: "At the end of this trial, after you've heard all of the evidence,
you may have a suspicion or maybe even a strong suspicion of guilt by one or
all of the defendants . . . but that's not enough under the burden the People
carry in this case. Their burden is not suspicion or strong suspicion because
that's simply brought us to this trial, is what an officer used in terms of why
he made an arrest, why we have a preliminary hearing that set this matter for
trial. But now the standard of proof is beyond a reasonable doubt. Nothing
less will apply and nothing less is acceptable."
The trial
court's comment did not cause irreparable damage to defendants. The comment
contrasted the People's evidentiary burden at trial with other, inapplicable
standards. It did not invite the jury to decide guilt based upon a finding
made at the preliminary hearing. Moreover, the trial court reinstructed with
CALJIC No. 2.90 at the close of evidence. We presume the jury followed the
court's instructions. (People v. Avila, supra, 38
Cal.4th 491, 574.)
VI.
Villarruel
and Ponce contend there is insufficient evidence that they aided and abetted a
kidnapping (count 3). Villarruel argues that asportation was complete and he
merely stood watch over Rodriguez. Ponce asserts that he merely was present
during Rodriguez's interrogation by Mora and had no knowledge that Rodriguez
had been kidnapped.
An aider
and abettor must act with knowledge of the perpetrator's criminal purpose and
with an intent or purpose either of committing, encouraging, or facilitating
commission of the offense. (People v. Mendoza, supra, 18 Cal.4th 1114,
1123.) Generally, a kidnapping continues as long as the victim remains under
the kidnapper's control. (People v. Cummins (2005) 127 Cal.App.4th 667,
679.) It is a factual question when a kidnapping ends. (Ibid.)
Sufficient
evidence supports the aiding and abetting convictions. Ponce questioned
Rodriguez, hit him in the stomach, and warned that he would be shot if he did
not answer Mora's questions. Mora drove to Ponce's residence in Rodriguez's
van and the questioning occurred in the carport of the residence.
Thereafter,
Mora drove Rodriguez to another residence where Villarruel, a fellow gang
member, soon appeared. Although Villarruel did not speak with Rodriguez, he
was present when Mora interrogated Rodriguez and demanded that he take them
(including Villarruel) to a Townsmen gang members residence. Mora threatened
to shoot Rodriguez if he did not take them to the Pomona residence.
Rodriguez's kidnapping continued until he was freed from Mora's restraint. (People
v. Platz (2006) 136 Cal.App.4th 1091, 1107.)
VII.
Villarruel
argues that the trial court erred by not accepting his admission that a prior
unlawful taking of a vehicle ("joyriding") conviction established his
felon status regarding the count of possession of a firearm by a felon (count
11). Specifically, he asserts that the trial court erred by not modifying
CALJIC No. 12.44 ["Firearm – Possession By Person Convicted of a Felony –
Status Stipulated"] to set forth the nature of his prior felony
conviction. Villarruel asserts the unmodified instruction permitted the jury
to speculate that he has suffered a violent felony conviction.
Alternatively,
he contends that the trial court erred by permitting the jury to learn that he
is a felon, rather than allowing the jury to determine only the issue whether
he possessed a firearm. Villarruel asserts that the errors denied him due
process of law and impaired his right to trial by jury. He argues the error is
prejudicial under any standard of review.
CALJIC No. 12.44 provides in part:
"Every person who having previously been convicted of a felony owns,
purchases, receives, or has in his custody or control any pistol, revolver, or
other firearm is guilty of section 12021, subdivision (a)(1) of the Penal Code,
a crime. In this case the previous felony conviction has already been
established by stipulation so that no further proof of that fact is required.
You must accept as true the existence of this previous felony conviction. . .
." Here the prosecutor alleged that Mora suffered two prior felony
convictions--joyriding and possession of a firearm.
The trial
court did not err. In People v. Valentine (1986) 42 Cal.3d 170, 173,
our Supreme Court held that if a defendant stipulates to his felony status, the
trial court must exclude evidence of the nature of defendant's prior felony
convictions. The court stated, however, that "the jury must be advised
that defendant is an ex-felon where that is an element of a current
charge." (Ibid.) People v. Sapp (2003) 31 Cal.4th 240,
261, summarizes the alternatives where defendant's prior felony conviction is
an element of the charged crime: 1) the prosecution can prove the conviction,
including its nature; or 2) defendant can stipulate to having a felony conviction
and thereby exclude its nature from the jury. Defendant has no constitutional
right to select a prior felony conviction where more than one is alleged, and
present the nature of that conviction to the jury.
Moreover,
any claim of prejudice is speculative. (People v. Sapp, supra, 31
Cal.4th 240, 262 ["[N]othing in the record supports this conjecture by
defendant."].) Mora has not met his burden of establishing prejudice.
VIII.
Defendants contend that the trial
court abused its discretion by declining to bifurcate trial of the criminal
street gang enhancement. (§ 186.22, subd. (b); People v. Hernandez
(2004) 33 Cal.4th 1040, 1049-1051 [trial court has broad discretion to
bifurcate criminal street gang enhancement].) They point out that a deputy sheriff
testified that the Little Hill criminal street gang was involved in murders,
witness intimidation, narcotics sales, robberies, and rapes, among other
crimes. Defendants claim admission of the enhancement-related evidence denied
them a fair trial, due process of law, and the right to jury trial because the
evidence was cumulative and unduly prejudicial. They assert the error is not
harmless beyond a reasonable doubt.
The trial court possesses a broad
discretion to bifurcate trial regarding a criminal street gang enhancement. (People
v. Hernandez, supra, 33 Cal.4th 1040, 1050.) "[T]he trial court's
discretion to deny bifurcation of a charged gang enhancement is . . . broader
than its discretion to admit gang evidence when the gang enhancement is not
charged." (Ibid.) A defendant must meet a burden "to clearly
establish that there is a substantial danger of prejudice requiring that the
charges be separately tried." (Id., at p. 1051.)
Here the trial court denied
defendants' request for bifurcation because the gang-related evidence was
relevant to motive and intent. The trial court did not abuse its discretion.
Much of the gang enhancement evidence was relevant to explain defendants'
seemingly inexplicable acts of kidnapping, interrogating, and falsely
imprisoning a stranger. Evidence of the criminal activities of the
Little Hill street gang was no more prejudicial or inflammatory than evidence
that Mora intended to use Rodriguez as a decoy to allow him to shoot Townsmen
gang members. Evidence of the predicate criminal offenses offered to establish
a pattern of criminal gang activities (robberies) also was not unduly
prejudicial. Thus the brief testimony regarding Little Hill's criminal acts
could not have "sway[ed] the jury to convict regardless of defendants'
actual guilt." (People v. Hernandez, supra, 33 Cal.4th
1040, 1051.)
Sentencing
Contentions
IX.
Mora and
Villarruel argue that Blakely v. Washington, supra,
542 U.S. 961, Apprendi v. New Jersey (2000) 530 U.S. 466, and federal
constitutional principles of due process of law and trial by jury require that
the jury determine beyond a reasonable doubt the factual findings used by the
trial court to impose an upper term of imprisonment. The United States Supreme Court has held that
a judge may not impose an upper term sentence because the aggravating
sentencing factors to support such a sentence must be tried by a jury. (Cunningham
v. California (2007) - - - S.Ct. - - -, 2007 WL 135687.)
X.
Mora contends that the trial court
erred by not staying punishment for count 9, the making of criminal threats,
because he had a single intent and objective – to abduct Rodriguez and use him
as a decoy to ambush Townsmen gang members. (§ 654.) He points out that the
trial court imposed a consecutive term of imprisonment of three years and eight
months for that count. Mora concedes that he did not object to the sentence
regarding count 9, but asserts that the sentence is unauthorized and may be
challenged on appeal. (People v. Hester (2000) 22 Cal.4th 290, 295
[section 654 claim generally not waived by failure to object during
sentencing].)
Section 654, subdivision (a),
provides that "[a]n act . . . that is punishable in different ways by
different provisions of law shall be punished under the provision that provides
for the longest potential term of imprisonment, but in no case shall the act .
. . be punished under more than one provision." Section 654 precludes
punishment for two offenses arising from the same act. (People v. Latimer
(1993) 5 Cal.4th 1203, 1208.) Section 654 applies not only where there is one
act, but also where a course of conduct violates more than one statute. (Ibid.)
Whether conduct is divisible depends upon the intent and objective of the
defendant. (Ibid.) If all the offenses are incident to one objective,
the defendant may be punished for any one offense, but not for more than one.
(People v. Norrell (1996) 13 Cal.4th 1, 6, disapproved on other grounds
as stated by People v. Kramer (2002) 29 Cal.4th 720, 722.) Whether the
defendant harbored a single intent and objective is a factual question for the
trial court. (People v. Harrison (1989) 48 Cal.3d 321, 335.)
The trial court properly punished
Mora for making criminal threats to Rodriguez. Sufficient evidence supports
the trial court's implied finding that Mora had a different intent and
objective when he threatened to shoot Rodriguez unless Rodriguez jumped the
backyard fence and ran from police officers. The trial court may have
impliedly found that Mora intended to preclude Rodriguez from complaining to
police officers. This intent and objective differed from that held by Mora
when he initially kidnapped Rodriguez to obtain information concerning a street
gang shooting. The trial court did not err.
XI.
Mora
asserts that the trial court erred by not calculating his presentence conduct
credits and entering them in the abstract of judgment. He points out that the
trial court mistakenly directed the Department of Corrections to determine his
conduct credits. The Attorney General concedes.
Section
2900.5, subdivision (d), requires the trial court to determine the amount of
defendant's presentence custody credits and enter that amount in the abstract
of judgment. In imposing sentence, the trial court shall calculate the number
of days a defendant has been in custody prior to sentencing, add applicable
good behavior credits earned pursuant to law, and reflect the total in the
abstract of judgment. (People v. Buckhalter (2001) 26 Cal.4th
20, 30.) The trial court erred by directing the Department of Corrections to
determine Mora's conduct credits.
We affirm
the judgments concerning Mora, Ponce and Villarruel. We vacate, however,
Mora's and Villarruel's sentences and remand the matters for resentencing. (Cunningham
v. California (2007) - - - S.Ct. - - -, 2007 WL 135687.) On
remand, the trial court shall also calculate Mora's presentence conduct
credits. The trial court shall forward the amended abstracts of judgment to
the Department of Corrections.
NOT TO
BE PUBLISHED.
GILBERT,
P.J.
We concur:
YEGAN, J.
COFFEE,
J.
George
Genesta, Judge
Superior
Court County of Los Angeles
______________________________
Robert L.S.
Angres, under appointment by the Court of Appeal, for Defendant and Appellant,
Uvaldo Mora..
John L.
Staley, under appointment by the Court of Appeal, for Defendant and Appellant,
Francisco Villarruel.
Christine
C. Shaver, under appointment by the Court of Appeal, for Defendant and
Appellant, Victor Ponce.
Bill
Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General,
Pamela C Hamanaka, Senior Assistant Attorney General, Linda C. Johnson,
Supervising Deputy Attorney General, Carl N. Henry, Deputy Attorney General,
for Plaintiff and Respondent.
Publication Courtesy of California
attorney referral.
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