Trammell
Filed 7/18/13 P. v. Trammell CA5
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FIFTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
ANTHONY AVILEZ TRAMMELL,
Defendant and
Appellant.
F062485
(Super.
Ct. No. MF50302)
APPEAL
from a judgment of the Superior Court
of
County. Ronald W.
Hansen, Judge.
Stephen
Greenberg, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Charles A. French and
Craig S. Meyers, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
On
November 24, 2008, at about 10:30 p.m., Randall Armendariz, an employee of
Performance Towing and Transport, was shot and killed when he apparently
confronted a person he suspected had stolen his employer’s white, 1989
Chevrolet service truck earlier that day.
Defendant Anthony Avilez Trammell was charged with the murder of
Armendariz. After a jury trial,
defendant was convicted of first degree
murder (Pen. Code,
name="_ftnref1" title="">[1] § 187, subd. (a); count 1) with the
special circumstance of committing the murder in furtherance of a
subd. (a)(22)), two counts of possession of a firearm by a felon (formerly
§ 12021, subd. (a), presently § 29800, subd. (b); counts 2 & 4),
receiving stolen property (§ 496, subd. (a); count 3), exhibiting a
firearm to a peace officer to resist arrest (§ 417.8; count 5), and being
an active participant in a criminal street gang (§ 186.22, subd. (a);
count 6). In addition, the jury found
true the special allegations that defendant was an active participant in a
criminal street gang (§ 186.22, subd. (b)(1)), and that he personally
discharged a firearm in the commission of the murder (§ 12022.53, subd.
(d)). Subsequently, defendant admitted
he had suffered a prior strike within the meaning of the three strikes law
(§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The trial court sentenced defendant to a term
of life without the possibility of parole on the murder charge in addition to a
consecutive 22-year determinate term.
On appeal
defendant contends the trial court erred in admitting a witness’s taped
statement to the police, claiming the statement was coerced. Additionally, he claims (1) the court erred
in calculating his sentence under the three strikes law, (2) his sentence for
being an active participant in a street gang should be stayed, (3) the court
miscalculated his conduct credits, and (4) the court erroneously imposed a
parole revocation fine. We agree
defendant’s sentence was miscalculated, that the gang participation count must
be stayed and that he is entitled to additional conduct credits and will modify
the judgment accordingly. We find
defendant’s remaining contentions without merit and affirm the judgment as
modified.
FACTS
On
November 15, 2008, Lee Winzer’s gray 1992 Chevrolet Lumina was
stolen. The car was missing the trunk
lock. On November 24, 2008, a
Performance Towing and Transport truck was stolen sometime after 6:00 or 7:00
p.m. The truck was a white 1989
Chevrolet service truck with metal toolboxes affixed to the passenger side of
the bed. The truck had magnetic signs on
the doors with the name of the business.
The truck was stocked with tools and equipment, had a very loud muffler
noise, and the ignition turned without a key.
Upon learning the truck was stolen, the owner of the business, Brian
Thompson, informed his employees of the theft.
He instructed his employees, including the victim, Randall Armendariz,
to notify law enforcement if they located the vehicle.
That same
night, defendant arrived at Alejandro Uriostegui’s home. Uriostegui lived in a small converted storage
shed behind his mother’s house in Merced.
A friend of Uriostegui’s, Christine Smythe, was present at the house
when defendant arrived. Uriostegui, who
was a longtime friend of defendant, noted he arrived in a white service pickup
truck that had toolboxes affixed to the bed.
The truck was loud. Defendant was
with another person, who was driving the truck, that Uriostegui did not
know. During the visit, defendant sold
Uriostegui some hand tools for $20 to $30.
Uriostegui denied exchanging methamphetamine for the tools. Uriostegui did not know if defendant had a
gun with him at the time. Uriostegui
identified the truck as the Performance Towing and Transport truck that had
been stolen. November 24, 2008, was
a Monday. During the time period in
question, defendant visited Uriostegui daily or every other day.
Smythe
testified that on November 24, 2008, she was visiting Uriostegui at his
home. She described Uriostegui as her
ex-boyfriend and a drug dealer who provided her with methamphetamine. Sometime between 9:00 and 10:00 p.m. that
night defendant, whom she knew as “Red,†arrived in a very loud vehicle. At some point, Smythe heard the vehicle drive
away. She never saw the vehicle, she
just heard it arrive and leave.
While at
Uriostegui’s house, defendant talked to Uriostegui about being in a high-speed
chase and “GTA’ing†over the weekend.
“GTA†meant grand theft auto.
Uriostegui gave defendant some methamphetamine, which he smoked. During the visit, defendant made a phone call
and asked when “they†would come get him.
Sometime later, the vehicle returned to the house, and defendant brought
in a toolbox with tools that he and Uriostegui inspected. Uriostegui gave defendant some
methamphetamine for the tools. Before
leaving, defendant retrieved a revolver from under a couch and put it in his
pocket. When defendant left, she heard
the loud vehicle drive away.
Robert
White was at his home in the vicinity of Carmel Road and Ruby Avenue in Merced
that same evening. At about 10:30 p.m.,
White was in his driveway when he noticed two vehicles down the street that
appeared to be drag racing. One was a
pickup truck and the other was an SUV, possibly a Jeep. The SUV appeared to cut off the pickup in a
cul-de-sac, and the two vehicles stopped.
He saw two people running around, one chasing the other, and yelling
angrily after the vehicles stopped. A
few minutes later a dark colored midsize sedan pulled up behind the other two
vehicles. Someone exited that car,
walked around in front of the car, and then walked back. He then extended his arm and fired a
shot. White did not see if anyone was
hit by the shot as he went back into his home.
He could not describe the shooter other than to say that it was a
slender young male with short hair.
Todd
Latronica lived on Ruby Avenue at the time.
Sometime around 10:30 p.m., Latronica heard a commotion outside of his
home. He looked outside and saw
headlights from two vehicles pointing directly at his house. Latronica then continued watching television
when his wife told him she thought there had been an accident outside. He looked out again and saw a car speed
away. The vehicle was a light colored
small import car, similar to a Toyota or Honda.
He went outside and found a man lying on the ground in front of the
vehicles with a bullet hole to his head.
The two vehicles, a white pickup and a tan Jeep Cherokee were still
outside of his home.
The victim,
who was identified as Armendariz, was pronounced dead at the scene. He died from a gunshot wound to the forehead. The victim had been shot one time and there
was no exit wound.
That same
evening, Charles Rusticus was walking on Carol Avenue when a car sped past at a
high rate of speed. He noted the car was
traveling erratically; it almost hit him, and it ran a stop sign. The car was a gray Chevrolet Lumina and was
missing the trunk lock. Shortly after
the car sped by, Rusticus heard a number of sirens. He continued on his way and later came upon
the murder scene on Ruby Avenue.
At 11:07
p.m., Merced police officer Peter Villarreal was dispatched to a suspicious
vehicle in an alley. He arrived on scene
seven to eight minutes after the call and found a silver Chevrolet Lumina that
had been reported stolen. The hood of
the car was still warm and the officer noticed the ignition was pulled from the
steering column. In the course of his
investigation, he located some fingerprints from the exterior of the driver’s
side door of the car. The latent prints
matched defendant’s. Winzer identified
the vehicle as his. The car was located
in an alley in front of the home of defendant’s cousin and good friend, Roy
Maule. Maule is a Norteño gang member.
Thompson,
the owner of Performance Towing and Transport, arrived at the scene of the
murder on Ruby Avenue and identified the service truck as belonging to the
company. He was also able to identify
the victim’s Jeep at the scene as well as the victim. Upon inspecting the truck after its recovery,
Thompson noted the tools, equipment, and magnetic signs were missing from the
truck.
Uriostegui
testified that he heard of the murder on the following day. He learned of the incident from some people
who lived down the street from his home.
Defendant was present at the time and part of the discussion; however,
Uriostegui denied that defendant said anything to him about being involved in
the murder or shooting the victim.
Uriostegui also denied ever telling Merced police detective John Fister
that defendant had admitted any part in the murder.
On
November 26, 2008, Merced police officer Jobe Sandhagen, a member of the
gang suppression unit, attempted to locate defendant for questioning in
association with the murder. Officer
Sandhagen was informed that defendant was a gang member and possibly armed with
a handgun. The officer, along with
another officer, began surveillance on Uriostegui’s home and determined
defendant was present at the home.
Subsequently, a team of officers arrived to take defendant into custody.
Prior to
entering the residence, Officer Sandhagen put on a blue tactical vest with the
word “POLICE†on it. The officers
approached the garage area in the back of the house and noticed the door was
open but the doorway was covered by a curtain.
There was an approximately two foot gap between the curtain and the
ground, so the officer squatted down to peer inside the room. After seeing defendant inside the room, he
began to pull the curtain back. He then
saw defendant sitting or lying on a bed or couch holding a revolver pointed
directly at the officer’s face. Seeing
that the gun was at least partially loaded, Officer Sandhagen began firing at
defendant while stepping backwards.
Other officers began firing as well.
Defendant did not fire his weapon.
Officer Sandhagen did not recall if he announced his presence prior to
the shooting, but other officers recalled hearing the announcement prior to the
gunshots. Defendant suffered numerous
gunshot wounds and was transported to the hospital by ambulance.
Linda
Hernandez was visiting Uriostegui on the day of the police shooting. She was sitting next to defendant in the
garage when she heard officers yell “Merced Police Department, search warrant,
put your hands up.†Then the police started
shooting, hitting defendant. She did not
see a gun in defendant’s hand, however, she did see a gun on the bed where he
had been sitting.
A .38
special Colt revolver was found in the garage on the mattress where defendant
was sitting prior to the shooting. The
gun was loaded with two rounds.
According to firearms expert George Luczy, the gun recovered could have
fired the bullet that killed the victim.
Upon examination of the bullet removed from the victim, Luczy determined
the bullet was a .38-caliber. The
recovered bullet did not have enough detail to provide a conclusive match, but
it did show a pattern of six lands and grooves with a left-hand twist with
dimensions that matched a Colt firearm.
There are a number of Colt models that could have fired the bullet.
After the
shooting, Detective Fister assisted in a search of the converted bedroom where
Uriostegui was living. In that house he
found a .22-caliber revolver under a cushion on the couch. Tools and toolboxes were also discovered in
the garage area. Sometime later he
showed these tools to Gonzalo Curiel, an employee of Performance Towing and
Transport. The recovered truck had been
assigned to Curiel and he was able to identify the recovered tools and
toolboxes as items that had been taken from the truck.
Detective
Fister testified that he, along with Detective Chris Russell, interviewed
Uriostegui on November 26, 2008.
The interview was videotaped and was played for the jury.
initially denied defendant had said anything to him about a murder. However, Uriostegui ultimately admitted
defendant had told him about the murder the day after it occurred. He stated defendant told him someone had a
stolen “RTS†truck and defendant was in a stolen car and somehow they “bumped
heads†with the victim. Defendant said
he was there with two friends when the victim “tried to run up†on defendant’s
friend and “that’s what happened.†When
Detective Fister asked if defendant walked up and shot at that point,
Uriostegui nodded. Upon further
questioning, Uriostegui stated that defendant was behind the truck and they
stopped and the victim “started talking shit†to them and was “walking up on
his homeboy†and defendant was right behind the victim and shot him. Defendant then said they just got into the
car and left.
Uriostegui
stated he had not believed defendant’s story and thought he was just trying to
show off. Uriostegui did not believe
what defendant told him because defendant said the truck he arrived in on
Monday was the same truck involved in the murder, but he described it as an “RTSâ€
truck.
During his
trial testimony, Uriostegui denied that defendant ever told him anything about
a murder or that he ever admitted killing someone over a truck. Uriostegui also denied ever making those
statements to Detective Fister.
Uriostegui testified that he “hung around†Norteño gang members in
November of 2008. According to Smythe,
she knew Uriostegui to affiliate with the “NFL,†Norteño For Life, gang. During that time frame, Norteño gang members
would come to his house and use methamphetamine. Uriostegui admitted during the taped
interview that he was a Norteño For Life gang member “from the heart.â€
In an
interview with Detective Fister a few days after the police shooting, defendant
admitted he was a Norteño gang member.
The detective did not ask defendant about the murder nor did defendant
provide any information about the murder.
The detective only inquired as to the police shooting. When asked, defendant denied selling any
items to Uriostegui before the police shooting.
Defendant claimed he had found the firearm he was holding on the day of
the police shooting. Regarding the
shooting, defendant told Detective Fister something to the effect that he
remembered thinking to himself that the police were there and he had a gun in
his hand.
DNA samples
taken from the steering wheel and driver’s door handle of the Performance
Towing and Transport truck did not match defendant. Samples taken from the passenger side of the
truck were never tested.
Merced
police detective Joseph Deliman testified as a gang expert. The Norteño street gang is prevalent in
Merced and associates with the color red and the number 14. The gang’s primary activities include thefts,
vehicle thefts, burglaries, robberies, homicides, shootings, drive-by
shootings, and drug crimes. Gang members
often carry weapons to facilitate their criminal activities and to intimidate
others. Loyalty is very important to
gang members, as is fear, respect, and intimidation. Norteño gang members demand respect from
others, including people in the community.
If a gang member feels he has been disrespected, he would react
violently. Gang members instill fear and
intimidation into the community as a way to carry on their criminal activities
and to prevent others from reporting their crimes to police or to testify in
court.
Detective
Deliman assisted with the search of the converted bedroom at Uriostegui’s
home. In the room he found several items
with gang graffiti that one would find at a Norteño gang house.
After
reviewing reports involving some of defendant’s contacts with the police where
he admitted gang membership, pictures of gang tattoos on his body, and
defendant’s prior convictions for gang-related offenses, Detective Deliman
opined that defendant was a Norteño gang member at the time of the
offenses. He noted that confronting a
police officer with a gun would bolster a gang member’s reputation and also the
reputation of his gang. Similarly, a gang
member’s possession of a firearm benefits the gang by instilling fear and intimidation
in others, thereby increasing the reputation of the gang. Likewise, stealing cars benefits the gang as
it allows gang members to commit crimes while concealing their identity. Dealing in stolen property also benefits the
gang by bringing in money for the gang.
Further, Detective Deliman testified a gang member can rise within the
gang hierarchy by committing a homicide.
Detective
Deliman opined that a homicide committed by a gang member (1) who sees one of
his “homeboysâ€
title="">[4] with a stolen vehicle, cornered by an unarmed
civilian, and (2) who then obtains a firearm and shoots the civilian and
escapes with his homeboy in yet another stolen vehicle would benefit the street
gang. The gang member would be required
to act in that situation to protect his fellow gang member or homeboy. In addition, killing the civilian would
benefit the gang by removing an eyewitness to the crime as well as instilling
fear and intimidation in the community thereby improving the gang’s reputation.
DISCUSSION
I. Uriostegui’s Statement Was
Properly Admitted
Defendant
contends the trial court erred in admitting Uriostegui’s videotaped statement,
claiming it was the product of unlawful police coercion and, therefore,
inadmissible. We disagree.
The Interview
After the
shooting at Uriostegui’s home, Uriostegui was taken into custody. That evening, he was interviewed by
Detectives Fister and Russell. The
interview began with the detectives informing Uriostegui defendant was out of
surgery and in stable condition. They
also informed Uriostegui the rest of his family had been interviewed and
released, they were still processing the house, and they had found some
methamphetamine, his identification, a gun, and some gang indicia in the small
house in the back. The detectives told
Uriostegui they just wanted the truth from him, and as long as he told the
truth “we’re probably not gonna have any problems, okay? Anything we found in the house can be worked
out because we’re here … after a bigger squirrel, okay? I’m not worried about charging you with the
gun. Uh, if need be then, you know, so
be it. Um, but I would rather just get
the truth from ya. Um, I’m not asking
you to snitch nobody off, okay?â€
Before
going any further into the interview, Detective Fister read Uriostegui his
Next, the detective questioned Uriostegui about what he saw before the
shooting with the police. Then the
interview progressed to questions involving when Uriostegui last saw defendant
before the police shooting. Uriostegui
explained he had seen defendant daily for the preceding three days. He also explained he had previously seen
defendant with a gun and described it for the detectives. They discussed what time Uriostegui saw
defendant on Monday night, who was there, and how defendant arrived. Uriostegui said defendant arrived in a white
landscaping or maintenance truck with toolboxes affixed to the side of the
truck. Defendant was with two other men.
Uriostegui
mentioned defendant sold him some tools that night and described them as well
as what kind of toolbox they were in. He
continued to answer questions about defendant, the next time he saw him after
Monday, and the circumstances of that visit.
The detectives confronted Uriostegui, asking if defendant told him what
happened on Monday night but Uriostegui denied knowing anything. Uriostegui then admitted he had heard of a
shooting occurring on Monday night, claiming he just heard about it from people
on the street.
Detective
Russell informed Uriostegui he thought he was being honest with them and began
confronting Uriostegui with the facts they knew at the time. Detective Fister noted Uriostegui was being
“pretty truthful†although he appeared to be answering the questions “very carefully.†He explained how they were investigating a
homicide and how the facts they had at the time suggested Uriostegui was
facilitating defendant in the homicide in some manner. Russell explained that assisting someone
after a homicide could result in him going “to prison for a very long time.†He explained defendant had been caught in
Uriostegui’s home just days after a murder, with a gun the detectives believed
would prove to be the murder weapon. In
addition, defendant had arrived in a stolen truck that the shooting victim had
been looking for, and Uriostegui had bought tools from that truck. The detectives explained Uriostegui had
things going for him in his life, while it appeared defendant was going to go
to prison for the rest of his life.
Detective
Russell noted “the problem here is this is a gang-related offense, mm-kay? Uh, you have a past history, you know? There’s indicia in your house. There’s a gun in your house. And you’re—I’m just talking about you now,
okay? And facilitating this
cry—this—this homicide, you might be looking at at least 10 years for the
gun.†He then clarified that was with
the gang enhancement and for a loaded gun.
He continued, “And now I think it’s time to come clean and be honest and
alleviate yourself. Because you can
either be a witness or a suspect. It’s
as simple as that.†Defendant, they
explained, had already made his choice.
The discussion digressed to whether defendant had told Uriostegui about
stealing cars the previous weekend, and Uriostegui acknowledged that he had.
The
detectives came back to the situation at hand, explaining this would be the
only opportunity Uriostegui would have to talk to them, and that “unfortunately
your—your path got crossed. And we found
stuff there. And we knew that
[defendant] was at your house. And we
knew he’s been at your house. Um, and
the fact of the matter is, I mean you got caught up.†Detective Fister explained, “But as long as
you tell the truth, ’cause I—I feel you’re holding back stuff uh, there’s no
reason you shouldn’t go home tonight. But
I don’t feel you’re being totally truthful.
I’ve been doing this 34 years.
Um, there’s some things you’re holding back that are important to us in
the investigation. And I—and we need
that. To be upfront with ya, we don’t
need it to prosecute [defendant].â€
Detective
Fister clarified:
“And I’m not saying the stuff, the files might not be
charged, you know, with the DA’s office or with paper or whatever but uh, if I
leave here—and correct me if I’m wrong ’cause we’re in this together uh, I
can’t justify, in my mind, with what’s happened if you’re not being truthful
that you just, you know, just shouldn’t be arrested for the dope and the gun
and everything else, okay? And I’m just
being forthright with you, bud. I’m not
uh, cutting any corners. And correct me
if I’m wrong. I mean I don’t—I’ll have
to clare [sic] it with the
sarge. But uh, I just don’t feel you’re
being totally upfront with what you know.â€
The
detectives explained Uriostegui did not need to worry that his statement would
incriminate him if he was not present at the scene of the murder and did not
commit the murder. Under that situation,
he “should be free gratis.†At that
point, Uriostegui stated defendant brags about “everything†but he did not say
anything about a murder, and before the police arrived that day, Uriostegui
told defendant he needed to be careful who he talked to as there was always
someone watching.
Detective
Fister responded:
“Well there’s something you’re not telling us though,
Alex. And I—and I just would like to
know what it is. I’ve been doing this
too long not to—not to realize when somebody’s, you know, you’re telling the
truth mostly. But you’re leaving stuff
out. And I just want to know about the
stuff you’re leaving out ’cause it must be important to you, okay? Otherwise you wouldn’t be so upset. And I’d
just like to know what that is. You want
me to turn the recorder off?â€
Uriostegui
replied, “I’m scared. I’m scared of
that.†The detectives explained he was
“between a rock and a hard spot†but he had to decide what was more important
to him, spending time “behind bars for quite some—quite some time for a guy who
didn’t think twice to come over to your house and involve you in this or, you
know, having a life with a—a family on this side of the the—the—the fence. And uh, and—and being free.†After being told that prison “ain’t the place
to be,†Uriostegui stated defendant might have mentioned something to him. Uriostegui told the detectives defendant had
said something to the effect of someone had stolen an “RTS†truck and defendant
was in a stolen car, and somehow defendant had “bumped heads†with the
victim. Uriostegui claimed he did not
believe defendant, that he was just bragging.
He continued saying defendant was with two friends and the victim had
“tried to run up on his friend. And
that’s what happened.†When Detective
Russell asked if defendant shot the victim, Uriostegui nodded. Additionally, when asked if defendant bragged
about it, Uriostegui replied “the way it sounded to me was like he was trying
to show off.â€
Detective
Fister then asked Uriostegui for details on what exactly defendant said
regarding how he walked up to the victim and whether the victim confronted
defendant with any weapons. Fister
reiterated they wanted to give the victim’s family some closure by telling them
what happened, and he stated Uriostegui’s name did not have to come up. Uriostegui questioned this and the detectives
explained his name would be in the report regardless of what happened. Uriostegui motioned toward the digital
recorder, and Detective Fister told him that if it would make Uriostegui feel
better he would turn it off, but they still had to document the conversation
“word by word.†After he was told the recorder
was off, Uriostegui asked, “So you guys gonna pay my … ticket out of Merced
too?†and Detective Russell replied, “If need be, we can help ya out,
absolutely.†At that point Uriostegui
provided additional details regarding defendant’s statement.
He stated
defendant was behind the truck and they stopped and the victim “started talking
shit†to them and was “walking up on his homeboy†and defendant was right
behind the victim and shot him.
Defendant then said they just got into the car and left. Uriostegui stated he did not believe defendant’s
story and thought he was just trying to show off. Uriostegui did not believe what defendant
told him because defendant had told Uriostegui the truck he arrived in on
Monday was the same truck that was involved in the murder, but he described it
as an “RTS†truck.
The Trial Court’s Ruling
After
reviewing the video, the trial court found the interview was not coercive. First, the court found there were no signs
Uriostegui appeared sleep deprived, and he had been provided food, water, and
other necessities. Uriostegui did not
appear to be too uncomfortable or tired to exercise his free will. Second, the trial court noted the detectives
did make statements to Uriostegui regarding circumstances that could lead one
to find he was an accessory after the fact to the homicide, however, such
comments merely pointed out the realities of the situation Uriostegui faced at
the time. Third, there was no promise
charges would not be filed, and the detectives continually encouraged
Uriostegui to tell the truth. As to any
promise of leniency, the only statement was that Uriostegui would not be
arrested that night, which the trial court was not sure could be considered a
promise of leniency. In addition, the
court found Uriostegui was not just parroting back what the detectives wanted
him to say. Ultimately the trial court
found there was nothing in the interview that overcame Uriostegui’s free will
in making the statement, thus the statement was voluntary.
Analysis
The law
regarding involuntary statements is well settled. “A criminal conviction may not be founded
upon an involuntary confession.†(
405, 436.) While the prosecution must
prove, by a preponderance of the evidence, that a defendant’s confession was
voluntary (ibid.), a different rule
applies when the inculpatory statement is provided by a third party
witness. When a defendant seeks to
exclude coerced testimony of a witness, it is the defendant’s burden to
establish the statement was involuntary.
(People v. Douglas (1990) 50
Cal.3d 468, 500, overruled on other grounds by People v. Marshall (1990) 50 Cal.3d 907, 933.) Indeed, a defendant may only challenge the
admission of a third party witness’s statement when such evidence would
constitute a violation of the defendant’s own right to due process of the law
and a fair trial. (People v. Jenkins
(2000) 22 Cal.4th 900, 966; People v.
Badgett (1995) 10 Cal.4th 330, 347.)
This is because “the primary purpose of excluding coerced testimony of
third parties is to assure the reliability of the trial proceedings.†(Badgett,
supra, at p. 347.)
A statement
is considered involuntary “if it is not the product of ‘“a rational intellect
and free will.â€â€™ [Citation.] The test for determining whether a confession
is voluntary is whether the defendant’s ‘will was overborne at the time he
confessed.’†(People v. Maury (2003) 30 Cal.4th 342, 404.) A statement may be coerced by either physical
intimidation or psychological pressure.
In cases of psychological coercion, the question is “‘“whether the
influences brought to bear upon the accused were ‘such as to overbear [the
accused’s] will to resist and bring about confessions not freely
self-determined.’ [Citation.]â€â€™â€ (Ibid.) “‘“The courts have prohibited only those
psychological ploys which, under all the circumstances, are so coercive that
they tend to produce a statement that is both involuntary and
unreliable.â€â€™â€ (People v. Williams, supra,
49 Cal.4th at p. 436; see also People v.
Ray (1996) 13 Cal.4th 313, 340; People
v. Thompson (1990) 50 Cal.3d 134, 166-167.)
“[M]ere
advice or exhortation by the police that it would be better for the accused to
tell the truth when unaccompanied by either a threat or a promise does not
render a subsequent confession involuntary.
[Citation.]†(
611, overruled on other grounds in People
v. Cahill (1993) 5 Cal.4th 478, 509-510, fn. 17.) The police “are not precluded from discussing
any ‘advantage’ or other consequence that will ‘naturally accrue’ in the event
the [witness] speaks truthfully about the crime.†(People
v. Ray, supra, 13 Cal.4th at p.
340.) However, the “line between a
threat (or a promise) and a statement of fact or intention can be a fine
one.†(People v. Thompson, supra,
50 Cal.3d at p. 169.) When evaluating a
claim of psychological coercion, “we must exercise great care not to become
confused: intellectual persuasion is not
the equivalent of coercion.†(
433.)
In
reviewing the trial court’s ruling regarding whether a statement was coerced,
we examine the entire record, deferring to the trial court’s credibility
determinations and findings of fact where supported by substantial
evidence. (People v. Boyer (2006) 38 Cal.4th 412, 444.) We may independently review the trial court’s
determination where, as here, the interview was recorded. (People
v. Vasila (1995) 38 Cal.App.4th 865, 873.)
Defendant
contends Uriostegui was subjected to coercion consisting of both threats of
prosecution and offers of leniency causing him to provide an involuntary
statement inculpating defendant.
Specifically, he claims Uriostegui was confronted with the prospect of a
prison term for facilitating defendant in the homicide and that this motivated
him to provide the statement. He further
contends the detectives implied that only a specific statement—that defendant
confessed to the shooting—would in fact alleviate him of the prospect of being
charged as an accessory. We disagree.
A thorough
review of both the videotaped interview and its transcript reveals Uriostegui
was simply confronted with the realities of his situation. The detectives informed Uriostegui of the
items found in his home as well as the surrounding circumstances. They pointed out the circumstances that could
be viewed as Uriostegui facilitating defendant.
Specifically, Uriostegui admitted defendant had been at his home daily
for the two days following the murder.
Uriostegui saw defendant with the gun on the day of the police shooting
and had seen him with a gun on prior occasions.
Defendant brought Uriostegui some tools from a white maintenance truck
on the day of the shooting, which Uriostegui purchased from him. The white truck defendant arrived in on
Monday turned out to be the same truck the victim was killed over, and the
tools Uriostegui bought were from that truck.
Not only were each of these facts true, they certainly could be
construed as facts supporting an accessory charge. (See People
v Daniels (1991) 52 Cal.3d 815, 862-863 [informing witnesses who had helped
defendant escape and hide from police that they could be prosecuted as
accessories and asking that they cooperate with investigation held proper].)
As to the
claim the officers threatened Uriostegui with prosecution, we find the tactics
employed here were proper. Courts have
repeatedly held “[t]here is nothing improper in confronting a suspect with the
predicament he or she is in, or with an offer to refrain from prosecuting the
suspect if the witness will cooperate with the police investigation.†(People
v. Daniels, supra, 52 Cal.3d at
p. 863.)
In
addition, we note the detectives did not use any deception in explaining the
situation, a fact defendant seems to acknowledge. The mere fact of explaining the situation to
Uriostegui cannot be deemed coercive.
Uriostegui was never told he must make a specific statement to avoid
liability for a possible accessory charge.
Rather, the detectives repeatedly told Uriostegui to tell the
truth. Indeed, throughout the interview,
they explained they believed he was being truthful; however, they also told him
they felt he was holding back information.
The discussions regarding the possible consequences he would face as an
accessory merely explained that the detectives needed all the information
before deciding whether he was an accessory to the murder. Thus, informing Uriostegui he was either a
witness or a suspect was not itself coercive.
Taken in context, the detectives simply informed Uriostegui of the
situation he was in and implored him to tell the whole truth. The detectives did not, as defendant claims,
provide Uriostegui with the only statement that would be acceptable to them.
We have
reviewed the tape recording of the interview, which is about an hour and a half
in length. It reveals the detectives
waited to get information from Uriostegui before confronting him with facts
they knew. The officers never told
Uriostegui what they wanted him to say or that he needed to inculpate
defendant. Instead, they repeatedly told
him (1) they did not need Uriostegui’s statement for the prosecution of the
case, (2) they just wanted the truth, (3) they felt he was holding something
back due to how he was answering the questions and his body language, and (4)
they did not want to put words in his mouth.
Uriostegui described the truck and tools prior to the detectives
bringing up the murder. Uriostegui also
admitted he knew why the police were at his home and that he had heard of a
shooting on Monday night prior to any discussions of the homicide. Further, Uriostegui admitted he had
previously seen defendant with the same gun recovered from him during the
police shooting. It was only after
Uriostegui divulged this information that the detectives began talking about
the homicide. The detectives never
provided Uriostegui with any facts regarding the shooting itself. Rather, when Uriostegui mentioned defendant
might have said something to him about the “situation,†Detective Russell asked
“what’d he say?†Uriostegui then
explained defendant had told him about an “RTS†truck and that he did not
actually believe what defendant had told him because he had come to the house
in a white truck that did not appear to be an “RTS†truck. He noted defendant stated he was in a stolen
car and that he had “bumped heads†with the victim who was trying to recover
the truck. Again, Uriostegui claimed he
did not believe the story and thought defendant was just bragging.
Uriostegui
also stated defendant was with two of his friends, and the victim “tried to run
up on his friend.†He went on to say
defendant “moved behind him†and Detective Fister asked Uriostegui to
clarify—did he say he moved behind the victim or his friend? None of this information was provided to
Uriostegui previously and the detectives asked several questions about what
defendant said to clarify the statement.
They asked whether defendant stated (1) if the victim was armed and (2)
how defendant left the scene.
The
circumstances in the present case are unlike the ones in People v. Lee (2002) 95 Cal.App.4th 772. There the court held a third party witness’s
statement was coerced because the police threatened to charge the witness with
the crime at issue if he did not name the defendant as the shooter. (Id.
at pp. 785-786.) The officer gave the
witness a polygraph test and told him the computer was highly accurate. After asking the witness if he had shot the
victim and if he knew who the shooter was, the officer confronted the witness,
claiming the test showed a 97 percent probability that he had killed the
victim. (Id. at p. 783.) He then went
on to threaten to charge the witness with first degree murder unless he named
the defendant as the killer. (
It was the officer who told the witness the defendant was involved and
it was the officer who provided the witness with the defendant’s motive. (Id.
at p. 785.)
As the
court explained, the officer’s statements “went beyond mere deceit as to the
evidence pointing to [the witness] as the killer. He also went beyond merely exhorting [the
witness] to tell the truth. He even went
beyond threatening [the witness] with prosecution for first degree murder
unless he named the real killer.
[¶] [The officer] in essence told [the witness]: We will prosecute you for first degree murder
unless you name [the defendant] as the killer.â€
(People v. Lee,
polygraph test showed it was the witness who was the shooter, which indicated
the defendant was the real target of the interview. (Lee,
at p. 786.) The court concluded the
interrogation of the witness was “not designed to produce the truth as [the
witness] knew it but to produce evidence to support a version of events the
police had already decided upon.†(
Unlike the
situation in Lee, Uriostegui was
never threatened with prosecution of the murder himself. In fact, the detectives specifically asked
Uriostegui if he was present at the scene or had pulled the trigger, and when
he said he had done neither, the detectives explained he had nothing to worry
about in terms of a murder charge. While
the detectives stated they already knew defendant had the gun that shot the
victim, they never implied they had any scientific
evidence to support their statements.
Rather, they said the gun would
come back as the murder weapon.
Likewise, the detectives never filled in the gaps for Uriostegui;
instead, they asked him at each step what the information was, noting they were
not present when the defendant made his statements.
Additionally,
the detectives never provided Uriostegui with a specific statement they wanted
Uriostegui to make. While it was clear
defendant was a suspect, the detectives never gave Uriostegui any facts of the
crime itself. Rather, after Uriostegui
acknowledged defendant may have said something to him about the crime, he went
on to provide details the detectives had not provided to him. Specifically, he stated (1) defendant was in
a stolen car, (2) the victim was arguing with defendant’s “homeboy,†(3) the
victim tried to run up on defendant’s friend, and (4) defendant and the other
perpetrator left the scene in a car. Not
only were these facts not provided to Uriostegui, they were facts only someone
present at the scene would know. Indeed,
these facts were corroborated by the witnesses to the murder. Considering how the interview progressed, the
detectives’ approach did not amount to a “psychological ploy[] which, under all
the circumstances, [was] so coercive that [it] tend[ed] to produce a statement
that is both involuntary and unreliable.â€
(People v. Ray, supra,
13 Cal.4th at p. 340.)
To
determine if a statement is voluntary we must look at the totality of the
circumstances, including the details of the interrogation and the
characteristics of the witness. (
981, overruled on other grounds by Price
v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) Here the totality of the circumstances
supports a finding Uriostegui’s statement was voluntary. First we note there was nothing heavy-handed
about the interview. The detectives
provided Uriostegui with his Miranda
rights prior to the interview. They
never raised their voices or put any undue pressure on Uriostegui. They did not use any deceptive practices.
Second,
Uriostegui did not appear particularly fragile or unduly susceptible to
coercion. Although Uriostegui had been
detained for approximately nine hours, it does not appear he was particularly
tired or uncomfortable in the tape recording.
In fact, the detectives noted during the interview that they had
provided him with a meal and water.
Before beginning the interview, the detectives informed Uriostegui of
defendant’s condition. Further, they
explained Uriostegui’s family members had already been interviewed and released
and had places to stay for the evening while the police were still processing
the house.
Third,
Uriostegui was no stranger to the criminal justice system, noting himself he
had previously been “locked up†before.
Further, he admitted he was an entrenched gang member. He did not appear to have a fragile mental
state during the interview.
Finally,
there was no evidence in this case Uriostegui felt coerced or that his
statement was involuntary. Uriostegui
never made any statements to the effect he felt pressured to make a statement,
nor did he testify his statement was anything but voluntary. At trial he simply denied ever telling the
detectives defendant admitted the shooting, and he claimed he did not recall
what statements he made during the interview.
He claimed defendant never confessed the shooting to him. Considering the totality of the
circumstances, we do not find his statement was involuntary or coerced.
Defendant
argues that in addition to threats, Uriostegui was also given promises of
leniency in exchange for his statement.
Initially, we note the detectives never promised charges would not be
filed in the case if Uriostegui made a statement. With regard to the statements about the gun
and narcotics found in Uriostegui’s home, the detectives only stated that as
“long as you’re telling the truth, we’re probably
not gonna have any problems.†(Italics
added.) While the detective stated
something could be “worked out,†he did not suggest there would be no
prosecution whatsoever. Indeed, he later
stated he was “not saying … the files might not be charged … with the DA’s
office.â€
Defendant
contends Uriostegui was given a specific promise of being released from custody
that evening, and such a promise constituted an improper offer of leniency
thereby requiring a finding his statement was coerced. Assuming Uriostegui was promised he would be
released from custody, or was given any promise of leniency for that matter, we
note there is a clear distinction between offers of leniency to a defendant as
opposed to a witness. With regard to the
confession of a defendant, the Supreme Court has stated, “‘It is well settled
that a confession is involuntary and therefore inadmissible if it was elicited
by any promise of benefit or leniency whether express or implied.’ [Citation.]â€
(People v. Tully (2012) 54
Cal.4th 952, 993.) However, “case law
fails to support defendant’s premise that a third party witness’s statements
are rendered inadmissible against a defendant if induced by improper offers of
leniency. [Citations.]†(People
v. Ervin (2000) 22 Cal.4th 48, 83.)
In People
v. Badgett, supra, 10
Cal.4th 330, the defendants claimed a police officer had communicated to a
potential witness that she would be released from custody if she
cooperated. The defendants argued the
witness’s statements to police “were involuntary because they were the product
of a promise of leniency.†(Id.
at p. 354.) The Supreme Court disagreed
explaining: “All immunized witnesses are
offered some quid pro quo, usually an offer of leniency. We have never held, nor has any authority
been offered in support of the proposition, that an offer of leniency in return
for cooperation with the police renders a third party statement involuntary or
eventual trial testimony coerced.
[T]estimony given under an immunity agreement does not violate the
defendant’s right to a fair trial, if the grant of immunity is made on
condition the witness testifies fully and fairly.†(Id. at pp. 354–355.) “If an offer of immunity is not considered
coercive, then an offer of release from custody in return for cooperation
likewise should not render a witness’s statement coerced.†(Id. at p. 355.)
In
17-year-old girlfriend of one of the defendants, who testified he had admitted
killing the victim to her. (
her mother was advised by the authorities the witness would be released from
custody if she cooperated with the police.
(Id. at p. 354.) The mother conveyed this promise to her
daughter, who then provided a statement to the police implicating the
defendants. Subsequently, the witness
was given formal immunity and testified pursuant to an immunity agreement. (Id.
at p. 340.) The court addressed and
rejected the defendants’ argument that the witness’s statement was involuntary
because it was induced by a promise of leniency, specifically the promise she
would be released from custody. (
Indeed the
rules regarding how a statement from a third party witness can be used are
often different from the rules regarding the use of a defendant’s own
statement. For example, while the fruit
of a defendant’s own coerced statement cannot be used against him, the same is
not true of a third party witness’s statement that is found to be coerced. (People
v. Williams, supra, 49 Cal.4th at
p. 455 [“the doctrines governing the exclusion of the ‘fruit’ or product of a
not apply when the claim is that a third-party
witness’s statement was coercedâ€]; see People
v. Jenkins, supra, 22 Cal.4th at
p. 966.)
Likewise,
the burden of proof regarding the voluntariness of a third party witness’s
statement is different from that of a defendant’s statement. It is the defendant’s burden to establish a
statement of a third party witness is coerced if the defendant seeks to exclude
the evidence from trial. (
However, when it is the defendant’s own statement that is challenged as
coerced, it is the People’s burden to prove it was voluntary by a preponderance
of the evidence. (People v. Benson (1990) 52 Cal.3d 754, 779) “[T]he heightened protections courts have
traditionally afforded defendants in the self-incrimination context are
designed to assure that an accused’s coerced confessions will not be used against
him, and to protect against evidence of guilt emanating from his own
involuntary statements.†(
Furthermore,
“defendants generally lack standing to complain that a
police interrogation violated a third party witness’s Fifth Amendment privilege
against self-incrimination or Sixth Amendment right to counsel, nor may a
defendant complain that law enforcement officers violated a third party
witness’s Fourth Amendment rights. (People
v. Badgett[, supra,] 10 Cal.4th
330, 343.) A defendant may assert a
violation of his or her own right to due process of the law and a fair trial
based upon third party witness coercion, however, if the defendant can
establish that trial evidence was coerced, or rendered unreliable by
prior coercion, and that the admission of this evidence would deprive the
defendant of a fair trial. (People v.
Jenkins[, supra,] 22 Cal.4th 900, 966, 969;
Cal.4th at pp. 347, 348.)†(People v.
Williams, supra, 49 Cal.4th at
pp. 452–453.)
Thus, we
find any promise of leniency in this case was not improper. Further supporting our conclusion that the
Uriostegui statement was not coerced is the recording itself. We have watched and listened to the recording
and note the tone used could hardly be considered threatening, forceful or
coercive. Consequently, under the
totality of the circumstances, we are persuaded the statement was voluntarily
given, and the use of the statement did not violate defendant’s right to due process.
II. Sentencing
Claims
Defendant
argues, and plaintiff concedes, (1) the trial court erred in doubling the terms
for the enhancements pursuant to the three strikes law, (2) the sentence on
count 6, active participant in a street gang, should have been stayed, and (3)
defendant is entitled to additional custody credits. We agree and accept plaintiff’s concession as
to each of these claims. Defendant
further contends the trial court erred by imposing a parole revocation fine
(§ 1202.45), as he was sentenced to a term of life without the possibility
of parole. Plaintiff conceded this
issue, however, we reject the concession.
We find the fine was properly imposed because defendant was also
sentenced to a separate determinate term.
A. The Enhancements Were
Improperly Doubled
In
calculating defendant’s sentence, the trial court imposed the term for each
underlying count, added the enhancement, and then doubled the entire term
pursuant to the three strikes law (§§ 667, subds. (b)-(i), 1170.12, subds.
(a)-(d)). Specifically, the trial court
chose count 5, the exhibiting a deadly weapon charge, as the principal term and
imposed a three-year term with an additional three years for the gang
enhancement (§ 186.22, subd. (b)).
The court then added the terms for the charge and enhancements together
and doubled the entire term. The court
employed the same procedure for each of the remaining subordinate charges.
Pursuant to
the three strikes law, when a defendant suffers a felony conviction and it has
been proven the defendant has also suffered a prior strike conviction, the
punishment for a determinate term is doubled.
(§§ 667, subd. (e)(1), 1170.12, subd. (c)(1).) This provision applies only to the base term
and not the enhancements. (
93-94; People v. Dominguez (1995) 38
Cal.App.4th 410, 424.) Thus, defendant’s
sentence on the determinate terms must be recalculated.
As we have
explained, defendant was sentenced to the base term of three years on count 5
as the principal term. That term should
be doubled, and then the three-year enhancement should be added, resulting in a
term of nine years. On count 4, the
court imposed and stayed an eight-month term for the underlying charge of felon
in possession of a firearm, and additionally imposed a one-year term for the
enhancement. Using the above
calculation, count 4 would result in a term of two years four months, which was
stayed. On count 6, the active
participant in a street gang charge, the court imposed a consecutive
eight-month term, which was doubled pursuant to the three strike law. This was correct, however, as we explain
later, this count must also be stayed.
On counts 2 and 3, the court imposed identical terms: an eight-month term for the substantive
charges as well as an additional one-year term for the enhancement. Using the correct calculation, this results
in a two-year four-month sentence on each charge. Thus, the total determinate term in this
case, taking into account the fact count 6 must be stayed, is 13 years 8
months. The trial court’s sentence on
the remaining counts from the additional violation of probation cases was
properly imposed. Therefore, the total
determinate term on all cases is 15 years 8 months.
B. The Sentence on Count 6 Must
Be Stayed
Defendant
was convicted of murder, possession of a firearm by a felon, receiving stolen
property, and brandishing a firearm to resist arrest. He was found to be an active participant in a
street gang, and multiple enhancement allegations were found true. Defendant contends, properly, that his
sentence for being an active participant in a street gang must be stayed as it
is based upon the same act as the other offenses for which he was punished. Plaintiff concedes the issue and we accept
the concession.
Section 654
provides in pertinent part: “An act or
omission 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 or omission be punished
under more than one provision.â€
(§ 654, subd. (a).) “The
purpose of section 654 is to prevent multiple punishment for a single act or
omission, even though that act or omission violates more than one statute and
thus constitutes more than one crime.
Although the distinct crimes may be charged in separate counts and may
result in multiple verdicts of guilt, the trial court may impose sentence for
only one offense—the one carrying the highest punishment. [Citation.]â€
(People v. Liu (1996) 46 Cal.App.4th 1119, 1135.)
Recently,
in People v. Mesa (2012) 54 Cal.4th 191, 199, the California Supreme
Court held that section 654 did not permit separate punishment for a section
186.22, subdivision (a) crime of active participation in a criminal street gang
when the only evidence of such participation was the current charged offenses,
even if there were multiple objectives.
(Mesa, at pp. 199–200.)
This is because the crime of being an active participant in a criminal
street gang requires not only that the defendant be a member of the gang, but
that he also promote, further, or assist in felonious conduct. (Id.
at pp. 196-197.) Thus, where the
underlying felony is also the act “‘that transformed mere gang membership—which,
by itself, is not a crime—into the crime of gang participation,’†section 654
bars multiple punishment for that single act.
(People v. Mesa,
In this
case, defendant was charged in count 6 with violating section 186.22,
subdivision (a). The only evidence of
his active participation, however, was the evidence associated with the other
charged offenses. Indeed, the jury was
instructed that an element of that charge required a finding that defendant
“assisted, furthered, or promoted felonious criminal conduct by members of the
gang.†The court further instructed the
jury that felonious criminal conduct meant “committing or attempting to commit
the following crime: murder, prohibited
possession of a firearm, receiving stolen property, or brandishing a firearm to
resist arrest.†There was no other
evidence admitted at trial demonstrating defendant promoted or assisted any
other felonious criminal conduct other than the crimes for which he was
convicted. Therefore, pursuant to Mesa, the court should have stayed the
term it imposed on count 6. (
C. Defendant’s Credits Must Be
Modified
At the
sentencing hearing, the trial court, relying on the probation officer’s report
indicating defendant was arrested on December 8, 2008, awarded defendant
885 days of actual custody credit.
However, as defendant contends and plaintiff concedes, defendant was
actually arrested on November 26, 2008.
Calculating from defendant’s actual arrest date of November 26,
2008, to the sentencing date of May 10, 2011, it is apparent defendant is
entitled to 896 days of credit. We will
order the abstract of judgment amended accordingly.
D. The Parole Revocation Fine
Was Properly Imposed
Defendant’s
final contention is the trial court erred in imposing and suspending a parole
revocation fine of $10,000 pursuant to former section 1202.45. Plaintiff has conceded the issue, however,
this court rejects the concession in light of People v. Brasure (2008) 42 Cal.4th 1037.
The court
imposed both a $10,000 restitution fine under former section 1202.4 and a
$10,000 parole revocation fine under former section 1202.45, which the court
stayed pending any violation of parole.
Former section 1202.45 provided:
“In every case where a person is convicted of a crime
and whose sentence includes a period
of parole, the court shall at the time of imposing the restitution fine
pursuant to subdivision (b) of Section 1202.4, assess an additional parole
revocation restitution fine in the same amount as that imposed pursuant to
subdivisi
| Description | On November 24, 2008, at about 10:30 p.m., Randall Armendariz, an employee of Performance Towing and Transport, was shot and killed when he apparently confronted a person he suspected had stolen his employer’s white, 1989 Chevrolet service truck earlier that day. Defendant Anthony Avilez Trammell was charged with the murder of Armendariz. After a jury trial, defendant was convicted of first degree murder (Pen. Code,[1] § 187, subd. (a); count 1) with the special circumstance of committing the murder in furtherance of a criminal street gang (§ 190.2, subd. (a)(22)), two counts of possession of a firearm by a felon (formerly § 12021, subd. (a), presently § 29800, subd. (b); counts 2 & 4), receiving stolen property (§ 496, subd. (a); count 3), exhibiting a firearm to a peace officer to resist arrest (§ 417.8; count 5), and being an active participant in a criminal street gang (§ 186.22, subd. (a); count 6). In addition, the jury found true the special allegations that defendant was an active participant in a criminal street gang (§ 186.22, subd. (b)(1)), and that he personally discharged a firearm in the commission of the murder (§ 12022.53, subd. (d)). Subsequently, defendant admitted he had suffered a prior strike within the meaning of the three strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The trial court sentenced defendant to a term of life without the possibility of parole on the murder charge in addition to a consecutive 22-year determinate term.[2] On appeal defendant contends the trial court erred in admitting a witness’s taped statement to the police, claiming the statement was coerced. Additionally, he claims (1) the court erred in calculating his sentence under the three strikes law, (2) his sentence for being an active participant in a street gang should be stayed, (3) the court miscalculated his conduct credits, and (4) the court erroneously imposed a parole revocation fine. We agree defendant’s sentence was miscalculated, that the gang participation count must be stayed and that he is entitled to additional conduct credits and will modify the judgment accordingly. We find defendant’s remaining contentions without merit and affirm the judgment as modified. |
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