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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 not certified for publication or ordered published, except as specified by rule 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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

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 reDennis (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.

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[1]All statutory references are to the Penal Code.