P. v. Salas
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. Court agree, however, with both Salas and the People, that the trial court should have stayed the sentence in count 1 under section 654. Court affirm in part and reverse in part.
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