P. v. Salas

Filed 4/18/07 P. v. Salas CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Ronald L. Taylor, Judge. (Retired judge of the Riverside Superior Court, assigned by the Chief Justice pursuant to art. VI, 6, of the Cal. Const.) Affirmed in part; reversed in part.

Maureen J. Shanahan, under appointment by the Court of Appeal, for Defendant and Appellant Mario Lopez Delcid.

Paul R. Ward, under appointment by the Court of Appeal, for Defendant and Appellant James Patrick Salas.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela Ratner Sobeck, Supervising Deputy Attorney General, David Delgado Rucci and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.

1. Introduction

A jury convicted defendants Mario Lopez Delcid and James Patrick Salas for their involvement in a drug deal with an undercover officer. The People charged defendants with selling methamphetamine (count 1) (Health & Saf. Code, 11379, subd. (a)) and conspiring to sell methamphetamine (count 2) (Pen. Code, 182, subd. (a)(1)). The jury convicted Salas of the crime charged in count 1 and the lesser-included offense of attempting to sell methamphetamine (Pen. Code, 11379, 664) in count 2. The jury convicted Delcid as charged. Salas admitted having served two prior prison terms (Pen. Code, 667.5, subd. (b)^[1]) and Delcid admitted having two prior felony drug convictions (Health & Saf. Code, 11370.2, subd. (c)). The trial court sentenced Salas to five years and Delcid to nine years.

On appeal, Salas raises the following claims: the evidence was insufficient to support his conviction for conspiracy; the trial court erred in giving instructions on conspiracy; and the attempt crime was necessarily included in the conspiracy charge or, alternatively, both crimes were committed with the same objective and therefore the sentence in count 1 should have been stayed under section 654. In addition to joining in Salass arguments, Delcid also argues that the trial court erred in instructing the jury on conspiracy by giving a modified version of CALJIC No. 2.10.

For the reasons stated below, we reject defendants claims of insufficient evidence and instructional error. We agree, however, with both Salas and the People, that the trial court should have stayed the sentence in count 1 under section 654. We affirm in part and reverse in part.

2. Factual and Procedural History

Around 5:45 p.m. on December 16, 2004, Officer Senon Saldana and several other officers conducted an undercover operation to buy drugs on the corner of Gould and Tyler in Riverside. Officer Saldana, who was wearing street clothes, rode a bicycle to the corner where a small group had gathered. The group included defendants Delcid and Salas. Officer Saldana approached Delcid and Salas and asked, Hey, who could hook me up with a 20, which was street slang for a quantity of methamphetamine. As Delcid and Salas were talking among themselves, Officer Saldana heard them ask each other, Well, who is going to hook him up? and Where can we get it from?

Salas, who appeared to be the muscle, began to ask Officer Saldana some questions. Muscle refers to the individual responsible for making sure that the buyer is not a police officer or a snitch. After the questions, Salas walked over to another individual identified as Mr. Casillas who was standing nearby. Salas and Casillas talked with each other while looking over at Officer Saldana.

At some point, Delcid asked Officer Saldana for the money. Although Officer Saldana was hesitant to turn over his money without the methamphetamine in hand, Salas assured him, [y]ou got to trust me, fool. Delcid, Salas, and Casillas again talked with each other. Officer Saldana heard Salas ask Casillas, How long are you going to take? and Where are you going to go? Delcid informed Officer Saldana that he and Casillas were going to try to purchase some methamphetamine for him.

After Delcid and Casillas left together in a vehicle, Salas again asked Officer Saldana some questions about where he lived and who he knew. As part of the operation, Officer Saldana had purchased drugs from another individual the day before the current transaction. Officer Saldana mentioned the prior purchase. His responses seemed to have satisfied Salas. Salas left the area as Officer Saldana waited for the others.

Delcid and Casillas returned after about 10 to 15 minutes. Delcid came up to Officer Saldana and said, Hey, the guy wasnt home and gave back his $20. The men stood around and talked for a while. After about five minutes, Delcid asked for Officer Saldanas money and left to make another attempt to locate some methamphetamine.

Delcid returned in his truck 15 minutes later. He waved Officer Saldana over to the truck and held out his hand. Delcid was holding a torn baggie with methamphetamine both inside the baggie and on the palm of his hand. Delcid transferred the methamphetamine to Officer Saldanas hand. Delcid also picked up the methamphetamine particles that had fallen on the seat of his truck and gave them to Officer Saldana. Delcid ingested the remaining methamphetamine in the palm of his hand. After placing as much of the spilled methamphetamine as possible back into the baggie, Officer Saldana wiped his hand on his pants. He thought Delcid may have given him the torn baggie to challenge him to ingest some of the methamphetamine. He also thought the methamphetamine might get into his bloodstream through any open pores in his hand. He then left on his bicycle complaining that he had received only kibbles (i.e., an amount less than what he had paid for) for his 20.

The amount of methamphetamine Delcid gave to Officer Saldana was a usable amount. Tests later confirmed that the substance was methamphetamine.

3. Sufficiency of the Evidence

Salas argues, and Delcid joins in his argument, that insufficient evidence supported the conspiracy charge. Salas specifically argues that the prosecutions evidence failed to establish the agreement and overt act elements for a conspiracy.

In addressing a challenge to the sufficiency of the evidence, courts must review the whole record in the light most favorable to the judgment and determine whether it contains substantial evidence such that any reasonable trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Substantial evidence is evidence that is reasonable, credible, and of solid value. (People v. Carter (2005) 36 Cal.4th 1114, 1156.)

A conspiracy is an agreement by two or more persons to commit any crime. ( 182; People v. Morante (1999) 20 Cal.4th 403, 416.) The essential elements are (1) an agreement; (2) the specific intent to conspire; (3) the specific intent to commit the target offense; and (4) an overt act in furtherance of the agreement. (See People v. Herrera (1999) 70 Cal.App.4th 1456, 1464.) The overt act may be committed by any one of the conspirators. (People v. Russo (2001) 25 Cal.4th 1124, 1135 (Russo).)

The existence of an agreement between the conspirators may be established by circumstantial evidence. The evidence is sufficient it if shows that the defendants tacitly came to a mutual understanding to commit the unlawful act. (People v. Gonzalez (2004) 116 Cal.App.4th 1405, 1417.) Such understanding can be shown by the defendants conduct in performing certain functions to achieve the objective of the conspiracy. (Ibid.)

The overt act must occur after the agreement but before the completed offense. (See People v. Zamora (1976) 18 Cal.3d 538, 549, fn. 8; People v. Brown (1991) 226 Cal.App.3d 1361, 1368.) The overt act also must be alleged expressly in the information. ( 182, subd. (b).) Where more than one act is alleged, only one must be proved. (Russo, supra, 25 Cal.4th at p. 1134.)

In this case, the People alleged that Delcid committed four separate overt acts: leaving Tyler and Gould in a vehicle; returning to the same location; bringing methamphetamine to Officer Saldana; and taking Officer Saldanas money. The jury found Salas guilty of conspiracy based on Delcids acts of leaving Tyler and Gould and taking Officer Saldanas money. According to the jurys verdicts for Salas, during the conspiracy, Delcid did not return to Tyler and Gould with the methamphetamine. The jury therefore found Salas guilty of only attempting to sell methamphetamine. The jury, however, found Delcid guilty of selling methamphetamine and conspiracy to sell methamphetamine based on all four overt acts.

Substantial evidence supports the jurys findings. Officer Saldanas testimony provided circumstantial evidence of an agreement. According to Officer Saldana, the police targeted the corner of Tyler and Gould because it was a location known for heavy drug activity. When Officer Saldana approached Salas and Delcid, he overheard them talking with each other about the sale. They were deciding which one of them would locate the drugs. The jury could have inferred from this initial conversation that Salas and Delcid had formed an agreement to sell Officer Saldana some methamphetamine.

Officer Saldanas testimony also provided evidence to support the jurys findings regarding the overt acts. Salas and Delcid conferred with each other and sometimes with Casillas before Delcid and Casillas left to purchase the methamphetamine. During the transaction, Salas functioned as the muscle, probing Officer Saldana with difficult questions to ensure that he was an actual buyer. When Delcid asked Officer Saldana for his money, Salas assured him, [y]ou got to trust me, fool. Salas continued his conversation with Officer Saldana as Delcid and Casillas left the area to purchase the drug. The prosecutions evidence of this first attempt to purchase methamphetamine was sufficient to support the jurys findings that Delcid took Officer Saldanas money and left the corner of Tyler and Gould. The evidence showed that Salas was an active participant in the conspiracy.

The evidence also showed that, after the first failed attempt, Delcid again asked Officer Saldana for his $20 and left the area to make another attempt. Delcid returned about 15 minutes later with the torn baggie of methamphetamine. The evidence amply supported that Delcid actively participated in the conspiracy and completed the sale.

Although substantial evidence supported the jurys findings, Salas argues that the evidence failed to show that the agreement and the overt acts preceded the completed crime because the target crime was complete during the initial conversation when Delcid offered to sell Officer Saldana methamphetamine in violation of Health and Safety Code section 11379, subdivision (a). Salas contends that the statute lists 14 different means for accomplishing the same crime. He specifically contends that conspiracy to sell and conspiracy to offer to sell methamphetamine are the same crime. Because the agreement was contemporaneous with the offer and the overt acts occurred after the offer, he argues that there was no conspiracy.

Although a single violation may involve more than one of the activities listed in Health and Safety Code section 11379, the prosecution may charge a defendant with any violation that is supported by the evidence. (See People v. Taylor (2001) 93 Cal.App.4th 318, 323.) Contrary to defendants argument, selling a controlled substance and offering to sell a controlled substance are two distinct crimes. (See Valenzuela v. Superior Court (1995) 33 Cal.App.4th 1445, 1451; see also People v. Emmal (1998) 68 Cal.App.4th 1313, 1317.)^[2] Because the prosecution charged Salas with conspiring to sell methamphetamine, the target or completed crime is the sale and not the offer.

In this case, the sale did not occur until Delcid made a second attempt to purchase methamphetamine, well after Salas had left the scene. As stated above, the evidence showed that the overt acts occurred after the agreement and before the completed crime. We conclude that substantial evidence supported the agreement and overt act elements for the conspiracy to sell methamphetamine.

4. Conspiracy Instructions

Both defendants challenge the adequacy of the conspiracy instructions, particularly, CALJIC Nos. 6.10 and 6.12. Salas claims that CALJIC No. 6.12 lowered the Peoples burden of proof. Delcid claims that the modified version of CALJIC No. 6.10 omitted the element of specific intent to commit the target offense. Each joins in the others arguments.

The trial court read CALJIC No. 6.10 which states in part: A conspiracy is an agreement entered into between two or more persons with the specific intent to agree to commit the crime of sales of a controlled substance, followed by an overt act committed in this state by one [or more] of the parties for the purpose of accomplishing the object of the agreement. Conspiracy is a crime.

In order to find a defendant guilty of conspiracy, in addition to proof of the unlawful agreement and specific intent, there must be proof of the commission of at least one of the acts alleged in the information to be overt act[s] and that the act found to have been committed was an overt act. It is not necessary to the guilt of any particular defendant that [he] personally committed an overt act[, if he] was one of the conspirators when the alleged overt act was committed.

The trial court also instructed the jury with CALJIC No. 6.12, as follows: The formation and existence of a conspiracy may be inferred from all circumstances tending to show the common intent and may be proved in the same way as any other fact may be proved, either by direct testimony of the fact or by circumstantial evidence, or by both direct and circumstantial evidence. It is not necessary to show a meeting of the alleged conspirators or the making of an express or formal agreement.

A. CALJIC No. 6.12

Salas argues that CALJIC No. 6.12, when read together with CALJIC No. 6.10, allowed the jury to infer a conspiracy from circumstances that suggested defendants shared a common intent without having committed an overt act. According to Salas, while CALJIC No. 6.10 sets forth all the requirements for a conspiracy based on an express agreement, CALJIC No. 6.12 appears to provide a truncated statement of the requirements for a conspiracy based on an agreement inferred from the circumstances. CALJIC No. 6.10 requires that the conspirators specifically intended to agree to commit a crime and that one of the conspirators committed an overt act in furtherance of the conspiracy. CALJIC No. 6.12 allows the jury to infer specific intent from the circumstances. CALJIC No. 6.12 makes no mention of an overt act.

Although the language in CALJIC No. 6.12 is somewhat ambiguous, Salas should have sought clarification or amplification at trial. CALJIC No. 6.12 addresses only the agreement element for a conspiracy. The instruction is not a restatement of all the elements. The ambiguity is caused by the phrase, formation and existence of a conspiracy. Because a conspiracy is comprised of two actus reus components, an agreement and the overt act, the existence of a conspiracy cannot be based on only circumstantial evidence of a common intent. Such evidence is sufficient to show the formation and existence of an agreement, which is the point of CALJIC No. 6.12.

Nevertheless, the instruction correctly states the rule that a conspiracy does not require an express agreement. (People v. Profit (1986) 183 Cal.App.3d 849, 882.) From the very nature of the stealth generally involved in the crime of conspiracy, it is not necessary to prove that the parties came together and reached a formal agreement [citation]. (People v. Massey (1957) 151 Cal.App.2d 623, 652.) Rather than stating this rule in the negative, CALJIC No. 6.12 states it in the affirmative: a conspiracy may be inferred from circumstances tending to show a common intent.

CALJIC No. 6.12 would be incorrect if it provided the only instruction on conspiracy or if it provided that a conspiracy consists only of circumstantial evidence of a common intent. In other words, if a crime generally requires direct proof of A and B, it is not incorrect for the court to instruct the jury that the existence of a crime also may be shown by indirect proof of A. Such instruction does not cover the fact that the crime also requires proof of B. It is incorrect, however, to provide only one instruction stating that the crime requires indirect proof of A or to provide an instruction that the crime requires only indirect proof of A. The courts instructions, when read together, set forth all the required elements for a conspiracy and CALJIC No. 6.12 amplified the agreement element. The instruction, even if poorly drafted, was a correct statement of law.

It was therefore incumbent upon Salas to request clarification or further amplification. Defendants failure to do so has waived the issue on appeal. (See People v. Hardy (1992) 2 Cal.4th 86, 153.)

Furthermore, no reasonable juror would have interpreted the instructions as permitting a conviction for conspiracy without evidence of an overt act. We find implausible Salass argument that the jury would have interpreted CALJIC Nos. 6.10 and 6.12 as providing alternative definitions of conspiracy depending on whether there was direct or circumstantial evidence of an agreement. According to Salass argument, a juror may have thought that, where there was no direct evidence of an express agreement, it could convict defendants for the crime based on circumstantial evidence of an agreement and no evidence of the other elements. Any juror who might have received the instruction as suggested would not have been a reasonable one. We are satisfied that the instructions, when considered as a whole, were adequate to advise the jury of the elements of a conspiracy and that CALJIC No. 6.12 addressed only one of those elements. (See People v. Foster (1995) 34 Cal.App.4th 766, 775.)

B. CALJIC No. 6.10

Delcid argues and Salas joins in his argument that the trial court erred in giving the jury a modified version of CALJIC No. 6.10. Defendants are correct, but the error was harmless beyond a reasonable doubt.

As quoted above, the court defined conspiracy as . . . an agreement entered into between two or more persons with the specific intent to agree to commit the crime of sales of a controlled substance, followed by an overt act committed in this state by one [or more] of the parties for the purpose of accomplishing the object of the agreement.

The standard instruction defines conspiracy as an agreement entered into between two or more persons with the specific intent to agree to commit the crime of _____[[or]_____] and with the further specific intent to commit that crime [[or]_____], followed by an overt act committed in this state by one [or more] of the parties for the purpose of accomplishing the object of the agreement. (CALJIC No. 6.10, (Apr. 2006 ed.) pp. 218-219 [italics added].) The trial court omitted the italicized language.

Our high court has admonished against such omissions: As this court has explained, the crime of conspiracy requires dual specific intents: a specific intent to agree to commit the target offense, and a specific intent to commit that offense. [Citations.] We have cautioned trial courts not to modify CALJIC No. 6.10 to eliminate either of these specific intents. [Citation.] (People v. Jurado (2006) 38 Cal.4th 72, 123.)

Despite the clear error, the omission was harmless beyond a reasonable doubt. The jury found defendant Salas guilty of attempting to sell methamphetamine. As noted by the People, all attempt crimes require the specific intent to commit the target offense. (People v. Williams (1988) 44 Cal.3d 883, 908; People v. Anzalone (2006) 141 Cal.App.4th 380, 387.) The jury, therefore, necessarily found that Salas had the requisite specific intent when it found him guilty of attempting to sell methamphetamine. (See People v. Consuegra (1994) 26 Cal.App.4th 1726, 1732-1733.)

Under the circumstances in this case, it would have been unreasonable for the jury not to have made the same finding for Delcid. There is no evidence in the record that would have led a reasonable juror to conclude that Delcid agreed to sell methamphetamine with the specific intent to agree to do so, but without a specific intent to actually sell the drug. (See People v. Jurado, supra, 38 Cal.4th at p. 123.) This is particularly true for two reasons. First, Delcid entered an agreement and acted together with Salas who intended to sell methamphetamine. Delcids agreement with Salas indicates that the two men shared a common purpose and intent. And, as noted by the People, nothing in the record suggests that Delcid was merely a feigned accomplice or that he entered the agreement with no intent to carry out the shared purpose.

Second, Delcids intent to commit the target offense was evident by the fact that he later succeeded in carrying out the drug sale. The jury found that Delcid committed each of the alleged overt acts in furtherance of the conspiracy. He took Officer Saldanas money, left Tyler and Gould, and returned to the same location with a baggie of methamphetamine. While it is possible that Delcid formed the intent to sell methamphetamine after the conspiracy, such possibility does not translate into reasonable doubt where the evidence showed that Delcid earlier entered into an agreement to sell methamphetamine and made a serious attempt to complete the sale.

We conclude that the omitted element did not result in any prejudice for either defendant.

5. Lesser-Included Offense

Salas claims that he should not have been convicted of both attempting to sell methamphetamine and conspiracy to sell methamphetamine because the attempt crime is a lesser-included offense of the conspiracy. Delcid joins in the argument and adds that the crime of selling methamphetamine also is a lesser-included offense of the conspiracy charge.

Generally, a person may be convicted of, but not punished for, multiple crimes arising from a single act or course of conduct. (People v. Reed (2006) 38 Cal.4th 1224, 1226.) An exception to this general rule applies where the multiple convictions are based on necessarily included offenses. (Id. at p. 1227.) To determine whether an uncharged offense is necessarily included in a charged offense, courts have applied two possible tests: the elements tests which considers whether all the statutory elements of the lesser offense is included in the greater offense; and the accusatory pleading test which consider whether the facts alleged in the accusatory pleading include all the elements of the lesser offense. (Id. at pp. 1227-1228.)

Defendants acknowledge that not all the statutory elements of the lesser offense are included in the greater offense. Instead, relying on the accusatory pleading test, they argue that the facts alleged in the conspiracy charge include all the elements of the crime to sell or attempt to sell methamphetamine.

As noted by the People, there is a split of authority as to whether the accusatory pleading test applies to determine if the objects or target crimes of the conspiracy are lesser-included offenses. (Compare People v. Cook (2001) 91 Cal.App.4th 910, 920 (Cook) with People v. Fenenbock (1996) 46 Cal.App.4th 1688, 1707-1709 (Fenenbock).) The Fenenbock court held that the descriptions of the overt acts, which may not be unlawful and may not reveal the conspirators criminal objective, were inadequate to provide notice of lesser-included offenses. (Fenenbock, supra, at p. 1709.) The Cook court, on the contrary, held that the descriptions of the overt acts may be adequate to provide notice of the elements of the lesser-included offenses. (Cook, supra, at p. 921.)

The specific situation in Fenenbock and Cook is not exactly the one presented here. In Fenenbock, the jury convicted the defendants of murder or conspiracy to commit murder, but not both. (Fenenbock, supra, 46 Cal.App.4th at p. 1692.) In Cook, the jury found the defendant not guilty of conspiracy to commit murder, but guilty of the uncharged offense of conspiracy to commit an assault with a deadly weapon. (Cook, supra, 91 Cal.App.4th at pp. 914-915.) In this case, defendants were convicted of committing the conspiracy and the object of the conspiracy. While the question in Cook was whether the overt acts for the conspiracy to commit murder provided the defendant with adequate notice that he might be convicted of a conspiracy to commit a deadly assault, the question in this case is whether defendants can be convicted of both conspiracy and the object of the conspiracy.

Where both offenses are charged in the information, the answer clearly would be yes. The California Supreme Court has held that the accusatory pleading test does not apply when a defendant is charged and convicted of the conspiracy and the target offense of the conspiracy. (People v. Reed, supra, 38 Cal.4th at p. 1229.) Because the purpose behind the use of the accusatory pleading test is to ensure that a defendant receives notice, the same purpose has no relevance when the defendant is charged with both offenses. (Ibid.) [I]t makes no sense to look to the pleading, rather than just the legal elements, in deciding whether conviction of two charged offenses is proper. Concerns about notice are irrelevant when both offenses are separately charged. . . . [Citation.] (Id. at pp. 1229-1230, citing People v. Montoya (2004) 33 Cal.4th 1031, 1039 (conc. opn. of Chin, J.).) This resolves the issue for Delcid. Delcid was charged with and convicted of both conspiracy and the crime of selling methamphetamine.

Salas was convicted of conspiracy and the lesser-included offense of attempting to sell methamphetamine. Nevertheless, the issue for Salas is not one involving notice, but one questioning the propriety of his multiple convictions. As to this issue, the accusatory pleading test is equally irrelevant. (See People v. Reed, supra, 38 Cal.4th at pp. 1229-1230; People v. Herrera (2006) 136 Cal.App.4th 1191, 1198-1200.) Because Salas was charged with selling methamphetamine, he had notice that he might be convicted of attempting to do the same.

The pertinent question is whether the crime of conspiracy and the crime of attempting to sell methamphetamine are so similar that Salas cannot be convicted of both. (See People v. Hoyt (1942) 20 Cal.2d 306, 317.) The law is again clear that a defendant may be convicted of both committing the conspiracy and committing the object of the conspiracy. It has long been settled that a conspiracy is a distinct offense from the actual commission of the offense forming the object of the conspiracy and that guilty parties may be legally convicted of both offenses. (People v. Campbell (1955) 132 Cal.App.2d 262, 268; see also People v. Garcia (1960) 187 Cal.App.2d 93, 103; People v. Clemons (1960) 182 Cal.App.2d 808, 817; People v. Keene (1954) 128 Cal.App.2d 520, 529.) The crime of conspiracy focuses on the unlawful agreement and not the overt act, which may even be lawful, or the ultimate object of the conspiracy, the attainment of which is not necessary. (See Fenenbock, supra, 46 Cal.App.4th at p. 1708; People v. Friedman (2003) 111 Cal.App.4th 824; see also Braverman v. U S. (1942) 317 U.S. 49, 53 (discussing federal law).) Conspiracy is a distinct offense from the actual commission of the offense or offenses forming the object of the conspiracy; and the fact that the conspirators succeeded in perpetrating the acts which of themselves constitute the offense or offenses which they conspired to commit, in nowise relieves them from liability for conspiracy under section 182 of the Penal Code. The guilty parties may be legally convicted of both offenses. (People v. Keene, supra, 128 Cal.App.2d at p. 529.)

The jury found Salas and Delcid guilty of both the conspiracy and the crime of selling or attempting to sell methamphetamine. We conclude that they were properly convicted of both crimes.

6. Multiple Punishment

Salas alternatively claims that his sentence for attempting to sell methamphetamine should have been stayed under section 654. The People concede that the trial court should have stayed sentence for count 1.

Section 654 prohibits multiple punishment for a single act or a single course of conduct. Under this rule, . . . a defendant may not be sentenced for conspiracy to commit several crimes and for each of those crimes where the conspiracy had no objective apart from those crimes. If, however, a conspiracy had an objective apart from an offense for which the defendant is punished, he may properly be sentenced for the conspiracy as well as for that offense. [Citations.] Thus, punishment for both conspiracy and the underlying substantive offense has been held impermissible when the conspiracy contemplated only the act performed in the substantive offense [citations]. (People v. Ramirez (1987) 189 Cal.App.3d 603, 615.)

In this case, Salas committed both crimes with the same objective, namely, to sell methamphetamine. Salas and Delcid entered an agreement to sell methamphetamine and made an initial attempt to carry out the sale. This initial attempt was the act contemplated by the conspiracy. Because this was the sole objective of the conspiracy, the trial court should have stayed sentence in count 1 under section 654. (See People v. Watterson (1991) 234 Cal.App.3d 942, 947, fn. 14.)

As noted by the People, Delcids second attempt to purchase methamphetamine for Officer Saldana was independent of the conspiracy. After Salas had left, Delcid again asked for Officer Saldanas money and went out on his own to locate some methamphetamine. Delcids conviction and sentence for selling methamphetamine was based on this second successful attempt, rather than the initial attempt contemplated by the conspiracy. Section 654, therefore, did not bar multiple punishment for Delcids crimes.

7. Disposition

We reverse the judgment as to Salass sentence and direct the trial court to amend the abstract of judgment by staying sentence for Salass crime of attempting to sell methamphetamine (count 1). In all other respects, we affirm the judgment.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

s/Ramirez

P.J.

We concur:

s/Hollenhorst

J.

s/Richli

J.

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^[1] Unless otherwise noted, all further statutory references will be to the Penal Code.

^[2] During oral argument, counsel for Salas disagreed with the analysis in Valenzuela. We maintain, however, that the basic statement of law in Valenzuela, namely, that a statute may describe two or more separate crimes, is correct. (See People v. Allen (1967) 254 Cal.App.2d 597, 602-603, 604, [upholding multiple convictions under the same statute].)