People v. Valencia CA4/1

• Court: California Court of Appeal
• Decided: July 15, 2014
• Docket: D062774
• Status: Unpublished

Opinion

Filed 7/15/14 P. v. Valencia CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D062774

Plaintiff and Respondent,

v. (Super. Ct. No. SCD208824)

DAVID VALENCIA et al.,

Defendants and Appellants.

APPEALS from judgments of the Superior Court of San Diego County, John S.

Einhorn, Judge. Judgments affirmed as modified and remanded with directions.

Eric Larson, by appointment of the Court of Appeal, for Defendant and Appellant

David Valencia.

Mark D. Greenberg, by appointment of the Court of Appeal, for Defendant and

Appellant Jose Olivera Beritan.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Kristine A. Gutierrez and Lynne

G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent. In May 2012 a jury convicted David Valencia and Jose Leonel Olivera-Beritan

(Beritan), who are members of the Los Palillos criminal organization that broke ties with

the Arellano-Felix Organization in Mexico and relocated to San Diego, of numerous

crimes committed between January and June 2007. Specifically, the jury returned the

following verdicts on the nine counts alleged in the amended information:

Count 1 (charged against Beritan only): Guilty of attempted kidnapping of Arturo Martinez-Berrera (Pen. Code,1 §§ 207, subd. (a) & 664), with true findings on allegations that (1) a principal personally used a firearm causing great bodily injury (§ 12022.53, subds. (d) & (e)(1)), and (2) Beritan committed the crime for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)).

Count 2 (charged against Beritan only): Not guilty of robbery of Ivan Lozano-Valdez, Jr. (§ 211).

Count 3 (charged against Beritan only): Guilty of first degree murder of Lozano (§ 187, subd. (a)), with true findings on (1) an allegation Beritan committed the crime for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), and (2) special circumstance allegations that Beritan committed the murder during the course of a kidnapping (§ 190.2, subd. (a)(17)(B)), and he committed the murder while he was an active participant in a criminal street gang and he carried out the crime to benefit the gang (§ 190.2, subd. (a)(22)).

Count 4 (charged against both Valencia & Beritan): Guilty of kidnapping for ransom of Cesar Uribe (§ 209, subd. (a)), with true findings on allegations that (1) the victim suffered great bodily harm or was intentionally confined in a manner that exposed him to a substantial likelihood of death (§ 209, subd. (a)), and (2) defendants committed the crime for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)).

Count 5 (charged against both defendants): Guilty of first degree murder of Uribe (§ 187, subd. (a)), with true findings on (1) allegations that the defendants committed the crime for the benefit of

1 All further statutory references will be to the Penal Code. 2 a criminal street gang (§ 186.22, subd. (b)(1)), (2) a special circumstance allegation that Beritan (but not Valencia) committed the murder during the course of a kidnapping (§ 190.2, subd. (a)(17)(B)), and (3) special circumstance allegations that the defendants committed the murder while they were active participants in a criminal street gang and they carried out the crime to benefit the gang (§ 190.2, subd. (a)(22)).

Count 6 (charged against both defendants): Guilty of the lesser included offense of simple kidnapping of Marc Anthony Leon, Jr. (Leon) (§ 207, subd. (a)), with true findings on allegations that the defendants committed the crime for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)).

Count 7 (against both defendants): Guilty of first degree murder of Leon (§ 187, subd. (a)), with true findings on (1) allegations that the defendants committed the crime for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), (2) a special circumstance allegation that Beritan (but not Valencia) committed the murder during the course of a kidnapping (§ 190.2, subd. (a)(17)(B)), and (3) special circumstance allegations that the defendants committed the murder while they were active participants in a criminal street gang and they carried out the crime to benefit the gang (§ 190.2, subd. (a)(22)).

Count 8 (charged against Beritan only): Guilty of conspiracy to commit kidnapping for ransom of Eduardo Gonzalez-Tostado (Tostado) (§§ 182, subd. (a)(1) & 209, subd. (a)), with true findings on allegations that (1) a principal personally used a firearm (§ 12022.53, subds. (b) & (e)(1)), and (2) Beritan committed the crime for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)).

Count 9 (charged against Beritan only): Guilty of kidnapping Tostado for ransom (§ 209, subd. (a)), with true findings on allegations that (1) the victim suffered great bodily harm or was intentionally confined in a manner that exposed him to a substantial likelihood of death (§ 209, subd. (a)), (2) a principal personally used a firearm (§ 12022.53, subds. (b) & (e)(1)), and (3) Beritan committed the crime for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)).

The jury also found true special circumstance allegations that (1) as to murder

counts 3, 5 and 7, Beritan was convicted in this proceeding of more than one murder in

3 the first or second degree within the meaning of section 190.2, subdivision (a)(3); and (2)

as to murder counts 5 and 7, Valencia also was convicted in this proceeding of more than

one murder in the first or second degree within the meaning of section 190.2, subdivision

(a)(3).

In sum, the jury convicted Beritan of four substantive crimes: counts 1 (attempted

kidnapping of Martinez), 3 (first degree murder of Lozano), 8 (conspiracy to commit

kidnapping for ransom of Tostado), and 9 (kidnapping for ransom of Tostado); and also

convicted both Valencia and Beritan of four additional crimes: counts 4 (kidnapping for

ransom of Uribe), 5 (first degree murder of Uribe), 6 (simple kidnapping of Leon), and 7

(first degree murder of Leon).

The court sentenced Valencia to a total state prison term of two consecutive terms

of life without the possibility of parole plus a consecutive term of 15 years. The court

sentenced Beritan to a total state prison term of five consecutive terms of life without the

possibility of parole, plus a consecutive term of 25 years to life, plus a consecutive term

of 19 years.

Contentions

Valencia and Beritan separately appeal. Valencia appealed first, stating he would

join any arguments raised by Beritan that "may accrue to [his (Valencia's)] benefit."

Valencia contends (1) his convictions of kidnapping and murdering Uribe and Leon

(counts 4−7) must be reversed because his prosecution for those four crimes was barred

by the prohibition against multiple prosecutions set forth in section 654 as a result of his

prior negotiated plea of guilty to a charge of kidnapping Tostado for ransom, because

4 (Valencia claims) the Tostado kidnapping and the crimes against Uribe and Leon were

"part of the same course of conduct"; (2) his trial counsel provided ineffective assistance

by failing to raise this issue in the trial court;2 and (3) his abstract of judgment should be

modified to correct certain errors (discussed, post).

Beritan later appealed, contending (1) his convictions of counts 1 (attempted

kidnapping of Martinez), 3 (murder of Lozano), and 4 through 7 (kidnappings and

murders of Uribe and Leon) must be reversed because there was insufficient evidence,

apart from the accomplice testimony of Guillermo Moreno-Garcia (Moreno) and Carlos

Pena, to connect him to the commission of those crimes; and (2) his abstract of judgment

should be modified to correct certain errors (discussed, post).

The People acknowledge Valencia's and Beritan's judgments should be modified

and their abstracts of judgment should be corrected. For reasons we shall explain, we

affirm their convictions but modify the judgments and remand the matter with directions

to correct errors in the abstracts of judgment.

2 Valencia also raises this claim of ineffective assistance of counsel in his companion petition for writ of habeas corpus (case No. D063966), which we address separately.

5 FACTUAL BACKGROUND3

1. Background regarding the Los Palillos cartel

A cartel is an organization that controls criminal activity in a given geographic

area. Lieutenants work for associates, and cells work for lieutenants. Members of cells

are known as soldiers. They are very poorly paid and perform the undesirable tasks.

Making money is the primary goal of a cartel. A cartel obtains money by trafficking

drugs, accepting payments from those who are involved in criminal activity, and

kidnapping for ransom.

Around 1986 a cartel known as the Arellano-Felix Organization (the AFO, also

known as the Tijuana Cartel), headed by Benjamin Arellano-Felix and his brother,

Ramon,4 took over the lucrative drug-trafficking "Tijuana corridor" by which

drugs─cocaine, heroin, marijuana, and methamphetamine─are moved from Mexico into

the United States. The AFO had a business relationship with Colombian drug lords and

controlled the supply routes from Colombia to the United States through the Tijuana

corridor. Benjamin was the leader of the AFO and made all of the command decisions.

Ramon was his enforcer and right-hand man who would intimidate rival drug traffickers

and cultivate relationships with corrupt officials. By the early 1990's thousands of people

3 Valencia and Beritan do not challenge the sufficiency of the prosecution's gang evidence. Accordingly, we do not summarize that evidence here.

4 We sometimes refer to individuals involved in this case by their first names solely for the sake of clarity. 6 worked for the AFO in various roles. Benjamin was arrested in March 2002, and Ramon

died in February 2002 in a shootout in Mexico.

Benjamin and Ramon's brothers, Javier Arellano-Felix and Eduardo Arellano-

Felix, took over the leadership of the AFO cartel, and its violent activities increased both

as a result of rivalries as other drug traffickers tried to take over supply routes in the

Tijuana corridor and as a result of using other methods for obtaining money. The cartel

started committing other crimes, such as kidnapping for ransom and extortion. When

Javier was arrested in Mexico in August 2006, the leadership of the AFO was transferred

to the Arellano-Felix brothers' nephew, Fernando Sanchez-Arellano.

Victor Rojas-Lopez, whose nickname was "El Palillo" (which means "the

toothpick") was the leader of an AFO cell in Tijuana. The cell called itself Los Palillos.

Another AFO cell was run by Javier's brother-in-law, Jorge Briseno-Lopez

(nicknamed "Cholo").

In 2002 Cholo and one of Victor's subordinates in the Los Palillos cell got into an

argument in a bar club over a girl, which caused friction between the two AFO cells.

Victor intervened in the argument. As a consequence of the argument, the AFO ordered

the murder of Victor.

After Victor's murder in late 2002, his brother─Jorge Rojas-Lopez, who was a

member of Victor's Los Palillos cell─fled Tijuana, and he and the cell split from the AFO

and relocated to San Diego. The cell kept its name, Los Palillos.

Los Palillos was connected to kidnappings and homicides committed in San Diego

between 2004 and 2007, including a triple murder in August 2004, the murder of a man

7 nicknamed "Camaron" in August 2005, and the kidnapping of Abelino Inzunza-Uriarte

on April 13, 2006.

The victims of the triple murder were drug traffickers working for the AFO. They

were lured to a home, where they were killed and their money and drugs were stolen.

The victims' bodies were left in a vehicle that was driven from the home and parked on a

residential street in Chula Vista. Warning signs to the AFO were written in the dust on

the vehicle.

In June 2007 the members of Los Palillos included Jorge Rojas-Lopez (nicknamed

"Palillo" or "Jorgillo"); Guillermo Moreno-Garcia ("Memo"); his half-brother, Carlos

Pena ("Morro"); Jesus Gonzalez Trujillo; Juan Francisco Estrada-Gonzalez; Jose Carlos

Rangel Hernandez, Jesus Lopez-Becerra; his brother, Gerardo Gabriel Lopez-Becerra;

Jorge Moreno; Juan Laureano-Arvizu ("Chaquetin"); Ernesto Ayon; Juan Frausto-Lopez;

Ponciano Lopez-Frausto; Pedro Corrales; Eduardo Monroy ("El Arquitecto"); Nancy

Michelle Mendoza-Moreno; defendant Jose Olivera-Beritan ("Chino" or "Asere"); and

defendant David Valencia. Many of the members also used aliases, including Beritan,

whose aliases were Onel Jimenez and William Smith. Beritan was born in Havana,

Cuba.

2. Properties connected to Los Palillos

a. The Garber Avenue safe house

In 2006 Emmanuel Nwagbo owned a two-story, five-bedroom residence located

on Garber Avenue in the Paradise Hills area of San Diego. Nwagbo testified that on

October 16 that year, a man named Ignacio Peredo and a woman named Norma Berumen

8 signed a one-year agreement to rent the property. Berumen was with two children and

another man she said was her husband.

In December 2006 Berumen told Nwagbo that Peredo was her brother. Suspicious

about who was living in the residence, Nwagbo went there and met Peredo. However,

Nwagbo was not allowed inside the house.

The rent was paid regularly until January 2007, when the payments stopped.

Nwagbo called Peredo, who sent by overnight mail a rent payment in the form of a

money order for April and May 2007. The package was from a UPS store and the return

address was in the name of Onel Jimenez (Beritan's alias).

b. The Point Dume Court safe house

On May 26, 2007, a real estate agent rented a residence located on Point Dume

Court in Chula Vista to a Mexican citizen named Luis Armando Gonzalez-Perez. The

agent knew Valencia, having rented a different home in Eastlake to him on an earlier

occasion.

c. The horse ranch

In 2007 Gilberto Corral owned a 15-acre horse ranch in Imperial Beach less than

10 miles from the border. Corral leased some stables to Fabian Gonzalez, and Gonzalez

subleased stables to others, including Valencia, Uribe, and Gonzalez's brother, Adrian.5

Ernesto Ayon slept at the property Gonzalez rented from Corral and helped clean and

feed the horses.

5 Gonzalez's brother, Adrian, is not the major league baseball player with the same name who once played with the San Diego Padres. 9 In May 2007 Gonzalez owned a Caterpillar Bobcat machine that he kept at the

horse ranch and used to clean stables, level the ground, and move heavy items. Gonzalez

allowed Ayon to drive the Bobcat to clean the stables.

3. Uncharged kidnapping of Jorge Garcia-Vasquez

Jorge Garcia-Vasquez (Vasquez or "Kilino") testified he is the brother-in-law of a

high-ranking member of the AFO. In early 2007 a woman named Nancy (Nancy

Michelle Mendoza-Moreno) approached him in a gym in Chula Vista. Vasquez began

exercising with her there and they became friends. Nancy drove a gray Chevrolet

Equinox with tinted windows.

On January 31, 2007, while Vasquez and Nancy were working out at the gym,

Nancy told Vasquez she wanted to buy some food supplements and needed his help

selecting them. Vasquez agreed. Nancy insisted that they leave Vasquez's car at the gym

and that she drive them in her car. After they left the gym, Nancy received a telephone

call. Vasquez heard Nancy tell the caller, "Oh, that's fine." Nancy then told Vasquez her

aunt had forgotten her house keys, and she needed to take the keys to her aunt's house

and leave them under the door mat.

Vasquez testified that Nancy drove them to the 805 freeway, took the 805 to the

54, exited at Reo Drive, looked in her rearview mirror with a serious and somewhat

worried expression on her face, and then stopped on a small side street where there were

no homes. A white van pulled up behind them and some men wearing military-style

clothing and looking like police officers got out of the van and approached Nancy's car.

10 The men, whom Vasquez described at trial as "Mexicans," knocked on the doors of

Nancy's car and yelled "police."

Doubting the men were police officers, Vasquez locked the car doors, but Nancy

pressed the release mechanism and unlocked them. Some of the men pulled Vasquez out

of Nancy's car, but he fought back. The men punched Vasquez and one of them used a

Taser to tase his left chest. The men lifted Vasquez into the van, tied his hands behind

his back, blindfolded him, and taped his legs together. They then drove him to a house.

Vasquez learned he had been kidnapped when one of the men said he wanted $2 million.

Vasquez was held in a closet on the second floor of the house for just over three

weeks. Two men were in charge of guarding him. Vasquez testified that one was

Mexican, and the other was a foreigner with a Cuban or Venezuelan accent, and he knew

them as ''Juanito'' and "El Cubano," respectively.

4. Attempted kidnapping of Martinez (count 1, charged against Beritan only)

Arturo Martinez-Barrera (Martinez) testified that he was serving a federal prison

sentence in Virginia following his arrest there in 2007 and his conviction of conspiracy to

possess and distribute marijuana. Martinez was an independent drug trafficker who did

not work for any large organization and sold only to Americans.

In late December 2006 Martinez came to San Diego for the holidays and planned

to return home in early January. While Martinez was in San Diego, Juan Laureano-

Arvizu ("Chaquetin") told him that he (Martinez) owed Jorge Palillo ("Jorgillo") some

money for a drug debt. Martinez denied he owed any such debt and told Arvizu to

11 contact Palillo because Martinez wanted to "face him" and clear everything up. Arvizu

called Palillo.

Later, around Christmas, Arvizu again told Martinez he owed money to Palillo.

At Martinez's request, Arvizu called Palillo and placed him on the speakerphone. Palillo

cursed, said "call me later," and hung up.

On January 3, 2007, Martinez was walking toward his Toyota Sequoia. Arvizu

followed him outside, started talking to him about his (Martinez's) plan to leave the next

day and suggested they go out for drinks. Martinez suggested that Arvizu get some

cocaine and ask Lourdes Hernandez to invite her sister or a friend so they could have a

party. Lourdes accompanied Arvizu, thinking they were going out for drinks. Arvizu

told Martinez to follow him in his own car. Martinez gave Arvizu $50 for the cocaine he

was going to buy.

Martinez got into his Sequoia alone. Arvizu and Lourdes got into Arvizu's

Ridgeline pickup truck. Martinez followed as Arvizu drove away.

Martinez followed Arvizu to the Briarwood apartment complex. Arvizu told

Lourdes he was going to pick up the cocaine there.

Martinez parked behind Arvizu's truck in the apartment complex parking lot and

waited for Arvizu to pick up the cocaine. As he was getting out of the car, Arvizu told

Lourdes, "If you see anything weird, leave." Arvizu got out of his pickup truck, leaving

Lourdes in the car.

Arvizu knocked on the door of one of the upstairs apartments. No one answered

the door. Arvizu waited by the door for about five minutes. Thinking something was

12 wrong, Martinez drove forward, made a U-turn, and pulled up next to the passenger's side

of Arvizu's truck, facing the way out of the apartment complex and intending to ask

Lourdes what was going on.

A white Town and Country minivan and a black station wagon then came down

the hill. The minivan parked next to Martinez and the station wagon parked in front of

him, blocking him from exiting the parking lot.

Two men exited the station wagon, and several out-of-shape Hispanic men got out

of the minivan. They were dressed in black and had police gear, including hats,

bulletproof vests, and badges hanging from their necks. The men surrounded Martinez's

car. They banged on the windows of Martinez's car with their handguns, pointed guns at

him, and yelled at him in English and Spanish to get out of the car. The men shouted

they were with the FBI.

Suspecting the men were not law enforcement officers and they were there to

kidnap him, Martinez put his car in reverse. The men started shooting at Martinez from

both sides of his car and some of the bullets struck him. Martinez then put his car in

drive and drove through an opening between the station wagon and the minivan, hitting

the minivan, and and then drove away.

Lourdes testified that after Martinez drove away from the Briarwood apartment

complex, Arvizu entered the passenger's side of his truck and Lourdes, who was driving,

started to drive away. Lourdes testified that before Martinez drove away, when Arvizu

was still outside the truck, Arvizu held up his hands and shrugged his shoulders as if to

suggest he had no idea what just occurred. As Lourdes drove by one of the buildings,

13 however, Arvizu told her to slow down, and then the men from the minivan who had

assaulted Martinez jumped into the back seat of the four-door truck

Lourdes also testified that she drove them to a house in Chula Vista following

Arvizu's directions. When shown a photograph of the Garber Avenue residence at trial,

Lourdes testified she recognized the house as the one to which she, Arvizu, and the two

men wearing police vests had driven following the incident at the Briarwood apartment

complex. Lourdes also testified that "Memo" (Los Palillos member Guillermo Moreno,

whose accomplice testimony is discussed, post) was there, along with his girlfriend and

another man Lourdes did not recognize.

5. Murder of Lozano (count 3, charged against Beritan only)

In 2007 Ivan Lozano-Valdez, Jr. ("Junior") was living in Tijuana. He was a drug

user who would get into trouble. Lozano travelled to Chula Vista frequently to visit a

couple whose last name was Briseno, because the husband, Jose, had been diagnosed

with terminal cancer.

On March 23, 2007, Lozano called Jose, said he was at the border, and asked Jose

to pick him up. The Brisenos picked up Lozano and drove him to their home. They

arrived there at around 1:30 p.m. The Brisenos planned to drive Lozano back to the

border after dinner. Before dinner was prepared, Lozano received a call from a friend on

his Nextel phone. Lozano turned off the speaker so that no one could hear the

conversation. When the conversation was over, Lozano told the Brisenos he was going to

meet his friend and would be back in about 15 minutes.

14 Someone picked up Lozano 10 minutes later. Lozano did not return as planned.

After waiting for an hour and a half, Jose called Lozano. Lozano sounded agitated and

said he was on the street. Lozano's friends and family never heard from him again. His

family did not receive any calls from kidnappers demanding ransom payments in return

for his release.

Gerardo Gaxiola testified that in late March 2007, he parked his Chrysler Concord

in a large parking area near a dumpster at the apartment complex on Santa Rita Drive in

Chula Vista where he lived. In the early morning hours of March 24, Gaxiola found his

car was gone.

Later that morning George Hoff saw the Concord parked in his neighborhood in

Clairemont. A neighbor called the police, but they did not respond. In early Apri1 2007,

another neighbor called the police and reported a strange odor emanating from the car.

San Diego Police Officer Jeff Willkomm responded to the call. Lozano's

decomposing body was found in the trunk of the car. Toothpicks were strewn on and

around the body. FBI Agent Dean Giboney, the prosecution's gang expert, opined that

the toothpicks were left as a calling card and indicated that Los Palillos committed the

crime.

Steven Campman, M.D., a forensic pathologist, performed an autopsy on Lozano's

body. Dr. Campman opined that a set of paired injuries on Lozano's back appeared to

have been caused by a Taser. He also testified Lozano had other paired and crescent-

shaped injuries that were caused by a Taser; and Lozano's wrists were discolored,

indicating they had been bound prior to Lozano's death. Dr. Campman determined that

15 the cause of Lozano's death was homicidal violence, including asphyxiation, and the

manner of death was homicide.

6. Kidnappings and murders of Uribe and Leon (counts 4 through 7)

a. Uribe (counts 4 & 5, charged against both Beritan and Valencia)

In May 2007 Cesar Uribe was a marijuana trafficker who lived with his wife,

Veronica Gamez, in Eastlake. Like Leon, Uribe disappeared on May 3, 2007.

Before his disappearance, Uribe had a drug-trafficking business relationship with

his close friend. Antonio Sanchez-Salas, who used an alias─Roberto Palafax─because he

was in the United States illegally. Uribe would obtain marijuana and Palafax would take

it to Cleveland and sell it to their clients, who were other drug dealers.

Uribe and Gamez met Valencia in late 1999. They all became close friends.

Valencia and his brother joined Uribe in the marijuana-trafficking business. However,

the business relationship ended in 2004, and Uribe started working with Palafax as his

partner.

Gamez testified that Valencia and Uribe remained friends for awhile, and they

both moved to Eastlake. However, their friendship ended in March 2007 due to a quarrel

over drug trafficking.

Valencia rented his home from Fabian Gonzalez's brother, Adrian. Valencia's

monthly rent was about $4,500, and he frequently was behind on his rent.

Adrian testified that in May 2007 Valencia was two months behind on his rent,

and he (Adrian) tried to collect the $9,000 owed from him. Valencia told Adrian that

16 Uribe owed him $70,000, and he (Valencia) would pay the rent when he received the

money from Uribe.

On May 3, 2007, shortly before 8:30 a.m., Adrian telephoned Uribe while Uribe

was about to leave the house with Leon. Adrian asked Uribe whether he owed Valencia

money. Uribe became very angry, cursed, denied that he owed money to Valencia, said

that Valencia was lying, and told Adrian he did not know what Adrian was talking about.

Valencia then called Uribe, also before Uribe and Leon left the house that

morning, and told Uribe they needed to talk. Uribe told Valencia he was on his way out

and would call back as soon as he was in the car. Uribe, accompanied by Leon, then left

the house for the last time.

Later that day, Palafax, who was in Cleveland, received a call from a man he did

not know and learned that Uribe had been abducted. Palafax testified that the man called

from Uribe's Nextel phone using the "push to talk" feature. The man told Palafax, in

Spanish, that they knew he was on the East Coast, they had his friend (Uribe) and nothing

was going to happen, but it was "not a game" and they would call him again in 30

minutes with instructions. The man called back and demanded half a million dollars.

When Palafax told the man "We ain't got that kind of money," the man told Palafax he

knew everything about Palafax and his family, and then threatened to kill Uribe if Palafax

called the police. When Palafax asked the man about Leon, he said they also had the

"stupid homey" with them.

Palafax called Uribe's wife, Gamez, to let her know what was going on. Palafax

flew to San Diego.

17 Palafax, Gamez, and Uribe's family began raising money to secure Uribe's release.

Eventually, they raised about $50,000.

On May 10, the man who had spoken to Palafax called him again to arrange the

ransom drop. The ransom money was delivered to two armed men at the Briarwood

apartment complex.

Later, one of the kidnappers called Palafax again and told him that $50,000 was a

"joke" and they would give him a week to come up with more money. Uribe's brother-in-

law agreed to do the second ransom drop. Following instructions, he delivered the

ransom money to a specified location in National City. No one ever heard from Uribe

again. On May 24, 2007, Uribe's family called the police.

b. Leon (counts 6 & 7, charged against both Beritan and Valencia)

In May 2007 Leon lived with his mother in Santee. Cesar Uribe was a friend of

Leon's On May 3, 2007, when Leon's mother returned from work at 5:00 p.m., Leon was

gone and he never returned home. No one called Leon's family with a ransom demand.

7. Kidnapping of Tostado (counts 8 & 9, charged against Beritan only)

In May 2007 Eduardo Gonzalez-Tostado, a wealthy Mexican-born businessman,

was living with his wife and daughter in Chula Vista. Tostado testified that his residence

was in a gated community that required entry of a code in order to gain access. When

Tostado and his family moved in around May 2005, he had some remodeling work done

to the home. Los Palillos member Eduardo Monroy ("El Arquitecto") did the work.

Tostado gave Monroy the gate access code to allow him to do the work.

18 Tostado testified that he and Valencia had been friends. However, Tostado had a

falling out with Valencia in 2003 or 2004, and they no longer communicated with one

another.

One evening in May 2007, when Tostado returned home from work, he found a

note in Spanish on his doorstep with a name and a phone number. The note said to call

"Roberto" regarding an urgent matter. Although Tostado did not know the man,

Tostado's cousin, Sergio Tostado, recognized him as Arvizu ("Chaquetin"), who was a

Los Palillos member.

Afraid he might be the potential victim of a kidnapping, Tostado told his wife to

contact the FBI if anything happened to him. Tostado called the number written on the

piece of paper, a man (Arvizu) answered the phone, and identified himself as Roberto.

Tostado asked Arvizu to describe the nature of the urgent matter. Arvizu said he needed

to talk to Tostado in person because "they" were trying to kidnap him (Tostado). Tostado

asked Arvizu who he meant by "they," and Arvizu responded that a dangerous "group of

people" were doing to do it. Arvizu told Tostado that if he gave Arvizu $50,000, Arvizu

would let him know who "they" were. Arvizu asked Tostado to meet him in a public

place and bring cash, and Tostado told Arvizu he would call him back.

Tostado called Arvizu later from his restaurant in Tijuana. Tostado told Arvizu he

knew his name was "Chaquetin" and offered him $5,000 if he would come to the

restaurant and provide him with the information. During the conversation, Arvizu told

him that Monroy had given the kidnappers the gate access code to Tostado's home.

19 Around the same time period, a mutual friend of Tostado and Valencia's told

Tostado that Valencia was trying to reach him (Tostado). Tostado used the friend's

phone to call Valencia, and they agreed to meet for coffee. While the two had coffee

together, Valencia told Tostado he needed to buy a pickup truck and a car and gave

Tostado a cashier's check for $40,000.

In early June 2007 Valencia and Tostado went to look at cars, and Tostado

purchased two vehicles at an auction the next day. Valencia made arrangements to meet

in a couple of days with Tostado at a Starbucks in Chula Vista to pay the balance he

owed on the vehicles and arrange for their delivery.

On June 8, 2007, when Tostado and Valencia met at the Starbucks, Valencia said

he was expecting a friend who wanted to sell Tostado a nice BMW. That person never

arrived. Instead, an attractive Mexican woman came to the table and talked to Valencia

in Spanish. Valencia introduced her as his friend, Nancy. Shortly thereafter, Nancy

spoke with Valencia again and left.

As Nancy drove away, she telephoned Valencia. Valencia then told Tostado that

Nancy liked him and wanted to go out with him for drinks. Tostado called Nancy and

made plans to pick her up at a coffee shop. When he got there, Nancy was waiting

outside. She told him she wanted to go to a certain bar in Tijuana, Nancy asked Tostado

to follow her in his car.

Tostado testified that he followed Nancy to a house (the Point Dume Court safe

house) at the end of a street in a cul-de-sac. Nancy went inside the house and told

Tostado when she returned that her aunt was not home, and they could have drinks in the

20 house. Tostado agreed. He told her he had to leave, but would return in a few minutes.

When he returned, Nancy let him in.

All of a sudden, three men wearing ski masks and police gear ran towards Tostado

from the hall. They were armed with rifles. Two of the men grabbed Tostado and the

third struck him in the face and stomach with a rifle. Tostado felt a lot of Taser strikes on

his back, and he fell to the floor. The men continued to kick and hit him, and he passed

out.

Tostado testified that when he regained consciousness, he was face down with his

legs and hands cuffed behind him and someone sitting on his back. Tostado, who was

blindfolded, heard Nancy say she was leaving. Another man told her to take Tostado's

car.

Tostado testified the three kidnappers referred to themselves as Boss 1, Boss 2,

and Boss 3. Boss 1 did most of the talking. Boss 1 told Tostado not to do anything

stupid, they wanted money, and then they would let him go. He asked Tostado for $2 or

$3 million dollars. Tostado said he did not have that much money, and Boss 1 responded

that he had investigated Tostado, looked at his home and his businesses, and knew he

could come up with the money. Boss 1 added that the "Architect" (Monroy) had given

them the gate access code to Tostado's home.

Boss 1 told Tostado they had kidnapped Kilino (Vasquez, the brother-in-law of a

high-ranking AFO member) and indicated they had killed Junior (Lozano). Boss 1 said

that if Tostado came up with $1 million, "they would let him go. Boss 1 added that he

was angry with the AFO because they killed his brother, El Palillo. He accused Tostado

21 of being friends with the AFO. Tostado told Boss I that he (Tostado) had nothing to do

with his brother.

Tostado indicated at trial that he learned the nicknames of three of the kidnappers.

Tio (Raul Rojas-Gamez) was the cook who told him not to "do anything stupid" or they

would kill him. Morro (Pena) and Asere (Beritan) were in charge of the house and were

responsible for guarding Tostado. Pena guarded Tostado during the day and Beritan

guarded him at night.

Tostado also testified that Beritan had a Cuban accent and was constantly using

his laptop computer. Beritan told Tostado he had been a truck driver in Cuba before he

moved to Miami, Florida. Beritan also told Tostado he had been driving a Chevy

Equinox and conducting surveillance outside Tostado's house at the time of Tostado's

kidnapping.

Tostado testified he expressed concern about his safety, noting he had seen

Nancy's face. Tostado promised Beritan that if they let him go, he would not identify her.

Beritan responded by telling Tostado they had taken Kilino (Vasquez), who had been

there for a month, had paid the ransom, and had been released. Beritan assured Tostado

he would have "no problem" because Vasquez was not killed even though he, too, had

seen Nancy.

FBI Special Agent Lauren Wood testified that, during her investigation, she was

able to identify Boss 1 as Jorge Rojas-Lopez (Rojas). A complex, multiagency operation

was set up to track and apprehend the kidnappers.

22 By June 15, $193,000 in ransom money had been raised. That day, one of the

kidnappers called Tostado's cousin, Sergio, and told him to await further instructions.

Also that same day, Sergio took the money to the FBI office, where some of the bills

were marked and photographed, and they were all placed in a briefcase containing a

tracking device. Wiretap warrants were obtained.

Tostado's wife notified Agent Wood that a ransom drop was planned for June 16.

In the afternoon on June 16, Agent Wood and two other agents met with Tostado's wife

and Sergio, and the agents gave Sergio the briefcase containing the marked money and

told him to follow the kidnapper's instructions. While Sergio was with the agents, one of

the kidnappers contacted him and gave him instructions about the ransom drop.

Law enforcement agents had placed a digital body recorder on Sergio so they

could listen to anything he heard or said, including anything said during calls from the

kidnappers, and thereby follow him during the ransom drop, but the audio did not work

and they lost his trail. Using the beacon signal in the briefcase of money, agents tracked

the briefcase to a Mitsubishi Lancer with Baja license plates. Through surveillance, the

police determined that the Lancer was being driven by a lone Hispanic male, who picked

up a second man. The men, later identified as Juan Estrada-Gonzalez (Estrada) (who was

the driver) and Rojas, drove to the Point Dume Court safe house and entered the

residence.

Rojas and Estrada were arrested as they drove the Lancer away from the Point

Dume Court residence. The briefcase with the ransom money was in the car. Tio (Raul

Rojas-Gamez) was arrested driving away in a separate vehicle.

23 After awhile, agents outside the house announced their presence. Pena ran

outside. Tostado testified that Beritan removed Tostado's blindfold and handcuffs, put

one of the handcuffs on himself, and placed the blindfold around his head to cover his

eyes. Tostado opened the front door and walked outside.

Beritan came out of the Point Dume Court safe house and pretended to be a

victim. Tostado informed the agents Beritan was one of the kidnappers, not a victim.

Beritan was arrested. Pena was found hiding in a canyon and was also arrested.

At trial, Tostado identified Beritan as Asere and Pena as Morro.

8. Investigation

During the investigation, Tostado was able to identify Boss 1 and Boss 2 by their

voices. Boss 1 was Rojas and Boss 2 was Estrada.

Utilities for the Point Dume Court residence were in the name of Oswaldo Barrera,

an alias for Gerardo Lopez-Becerra. A Chevrolet Equinox was in the garage, and Pena's

Ford Ranger was parked near the house. A receipt for caustic soda dated May 20 was in

the truck.

A search was conducted inside the Point Dume Court residence. Bags of caustic

soda were found under the kitchen sink. A couple of boxes of muriatic acid were found

in the home. Officers also found several weapons, including AK-47-style rifles, a

semiautomatic handgun, and a Taser. Also found were police vests and gear, including a

ballistic vest and hats with the words "police" and "FBI" on them.

A black computer-type carrying case or bag and a Sony laptop were found in the

house. The contents of the laptop bag included (1) several items indicating the bag

24 belonged to Beritan, including an immigration document in the name of "Jose Leonel

Beritan-Olivera" from Cuba, a photocopy of the front of a Social Security card in the

name of "Jose Leonel Beritan-Olivera," and a photocopy of a Florida driver's license in

the name of Jose L. Beritan; and (2) a small blue address book containing Tostado's

personal information and credit card numbers.

In October 2009, based on information provided by Pena, a law enforcement team

went to the horse ranch with a search warrant. They found the liquefied remains of Leon

and Uribe buried in the ground in barrels.

9. Accomplice testimony6

a. Moreno's accomplice testimony

In August 2008 Moreno entered into a cooperation agreement with the district

attorney's office under which he would provide information regarding several homicides,

kidnappings, and robberies committed by members of Los Palillos. Moreno agreed to

testify truthfully in several Los Palillos cases, including this one, in return for a prison

sentence of between 25 years and 33 years eight months, to be determined by the court.

Moreno testified he had worked in Tijuana for Victor Rojas-Lopez (El Palillo),

who (as already noted) was the leader of an AFO cell in Tijuana. After Victor was

6 As the following accomplice testimony is primarily relevant to Beritan's claim his convictions of counts 1 and 3 through 7 are not supported by sufficient corroborative evidence, our summary of the testimony is brief and primarily focused on the portions of the testimony that pertain to Beritan's role in the commission of the various crimes involved in this case. 25 murdered, Moreno started selling drugs for Victor's brother, Jorge Rojas-Lopez, who

wanted to "get revenge" by targeting AFO members for murdering his brother.

Moreno indicated that Los Palillos rented safe houses in the San Diego area to

facilitate the crimes they planned to commit against AFO members. Specifically, Los

Palillos rented the Garber Avenue and Point Dume Court residences as safe houses.

Moreno testified he was living alone in the Briarwood apartment complex when

Beritan moved to San Diego. Beritan moved into the Garber Avenue safe house, as did

Moreno's brother, Pena.

Moreno also testified he had seen a false Florida identification card that Beritan

used. The card had a photograph of Beritan, but the name on the card was Onel Jimenez.

Moreno spoke to Beritan and a few other members of Los Palillos about making

money by kidnapping AFO members for ransom. Moreno testified that Beritan had

participated in a kidnapping for ransom before he moved to San Diego, and Beritan

expressed interest in making money this way. Thereafter, Los Palillos started kidnapping

AFO members for ransom.

i. Kidnapping of Balitas

The first victim was a man named Balitas. Moreno testified that Balitas's father

worked for the AFO. Beritan, Moreno, Jorge Rojas-Lopez, and other Los Palillos

members participated in the kidnapping. During the kidnapping, Beritan drove a car and

served as a lookout. Following his abduction, Balitas was handcuffed, blindfolded, and

held captive at the Garber Avenue safe house. Beritan guarded Balitas at night, and

Moreno guarded him during the day. Ransom was paid and Balitas was released.

26 ii. Kidnapping of Vasquez

The second victim was Vasquez ("Kilino"), whose wife was related to a financial

adviser for the AFO. Some Los Palillos members arranged for Nancy Mendoza-Moreno

to flirt with Vasquez at a gym, get him to go out with her, and drive him to a certain

location. They would abduct him there by pretending to be law enforcement officials,

"arresting" him, and then taking him to the Garber Avenue safe house.

On the day of the kidnapping, Beritan remained at the Garber Avenue house.

Nancy lured Vasquez as planned and drove him to the location in a Chevrolet Equinox

that later was sold to Beritan. A group of Los Palillos members, disguised as police

officers, approached Nancy's vehicle in a van, directed her to pull over, forced Vasquez

into the van, and took him to the Garber Avenue safe house where they held him captive.

Beritan and Moreno guarded Vasquez at the Garber Avenue safe house while he

was held captive there. Moreno guarded him during the daytime, and Beritan guarded

him at night.

Moreno testified that he and other Los Palillos members sometimes openly

referred to Beritan as "Cuba" or "El Cubano" at the Garber Avenue safe house while

Vasquez was held captive there. Ransom was paid and Vasquez was released. When

Moreno arrived, Beritan, who was living there, was present with other members of Los

Palillos.

Moreno testified that he and the others were told they were waiting for a call from

Arvizu ("Chaquetin"), who had set up the victim─Martinez─by telling him he (Arvizu)

had a buyer for some cocaine. The plan was to kidnap Martinez, take whatever drugs he

27 had, and hold him captive at the Garber Avenue safe house. Specifically, Moreno and

three others would be in a stolen white Dodge Caravan, and Beritan would take a separate

car and act as a lookout. Arvizu would lure Martinez to the Briarwood apartment

complex, where the group would get out of the Caravan and "arrest" him. The group

donned their law enforcement uniforms and put police lights on the Caravan.

When Arvizu called, most of the group drove in the Caravan to the Briarwood

apartment complex, and Beritan parked up a nearby hill. With its police lights turned on,

the Caravan stopped in front of Martinez's SUV. Moreno and the others in the Caravan

got out and ran towards the SUV, and Moreno tried to "arrest" Martinez by pounding on

the passenger window with a gun. Moreno's gun fired, and one of his cohorts fired his

weapon. One of the Los Palillos members tried to block Martinez's car by putting the

Caravan in reverse. Beritan drove down the hill and also tried to block Martinez in.

Martinez drove forward, hitting both the Caravan and Beritan's car, and drove away.

After Martinez escaped, the would-be kidnappers returned to the Garber Avenue safe

house.

iv. Lozano murder

Regarding the Lozano murder, Moreno testified that after he learned Lozano

worked for the AFO, he (Moreno), Beritan, and other Los Palillos members met at the

Garber Avenue safe house and discussed a plan to kidnap or rob Lozano. Beritan was

still living there.

Arvizu asked Moreno to run an errand. When Moreno returned to the Garber

Avenue house, Lozano was in the dining room with his hands cuffed behind his back.

28 Later, after Lozano's mouth and legs were taped, Beritan and other Los Palillos members

kicked him as Jesus Gonzalez-Trujillo strangled him to death with a belt.

After Lozano was dead, Beritan and Arvizu left to steal a car for the disposal of

the body. They returned half an hour later with a gold Chrysler sedan. Beritan and

Arvizu told Moreno they stole the car from the Pinnacle apartments on Santa Rita Drive

in Chula Vista where they had found it parked next to a dumpster.

Moreno testified the entire group dragged Lozano's body to the Chrysler and

placed it in the trunk. Beritan handed Jorge Rojas-Lopez a container of toothpicks.

Rojas opened it and poured toothpicks on the body. Arvizu got in the Chrysler while the

others got in a another vehicle. They abandoned the Chrysler in a residential

neighborhood in the Clairemont area.

v. Kidnappings and murders of Uribe and Leon (Uribe/Leon crimes)

Regarding the kidnapping and murder of Uribe and Leon, Moreno testified that

Valencia lured the victims to the Garber Avenue safe house on the pretext that Valencia

would bring someone there who would sell some marijuana. After they arrived at the

house, Uribe and Leon were abducted, handcuffed and blindfolded, and held captive

upstairs. Beritan, who was still living at the Garber Avenue safe house, helped to guard

them during their captivity there.

Beritan was present when Uribe and Leon were murdered. Jesus Gonzalez-

Trujillo first murdered Leon by strangling him as he was being kicked. Some of the Los

Palillos members in the house dragged Leon's naked body over to a 55-gallon metal

barrel containing muriatic acid and put the body head first into it. Later, Uribe was

29 strangled to death as he was being kicked. His body was put head first into a second

barrel containing muriatic acid.

Moreno testified that Beritan was present when the barrels were loaded on Pena's

Ford Ranger truck. The barrels were driven to the horse ranch where they were

"dumped."

Moreno later had a falling out with Los Palillos and separated from the group.

vi. Tostado kidnapping

Moreno testified that he was not involved in Tostado's kidnapping, and he never

went to the Point Dume Court safe house.

b. Accomplice testimony of Carlos Pena

In late 2010 Pena, Moreno's brother, entered into a cooperation agreement with the

district attorney's office whereby he agreed to give truthful testimony in return for use

immunity and a sentence ranging from 26 years eight months to 39 years eight months.

Pena testified that he joined Los Palillos in 2006. Los Palillos rented safe houses,

and he would hang out in them with the other members of Los Palillos. Los Palillos

rented the Garber Avenue safe house in October 2006, and Pena lived there with Beritan

from that time until Los Palillos abandoned that safe house.

Pena's accomplice testimony was generally consistent with Moreno's regarding the

kidnapping of Balitas, the kidnapping of Vasquez, the attempted kidnapping of Martinez,

the murder of Lozano, and the kidnapping and murders of Uribe and Leon.

30 i. Kidnapping of Balitas

Regarding the kidnapping of Balitas, as pertinent here, Pena testified that he and

Beritan helped to guard Balitas while he was held captive at the Garber Avenue safe

house. During that time, both he (Pena) and Beritan lived at the Garber Avenue safe

ii. Kidnapping of Vasquez

Regarding the kidnapping of Vasquez, Pena testified he learned before the

abduction that a woman named Nancy (Nancy Michelle Mendoza-Moreno) went to a

certain gym to establish a relationship with Vasquez. Pena's role in the kidnapping was

to pick up Nancy after Vasquez was abducted from the Equinox she was driving, and

then drive her to the border. That Equinox was later sold to Beritan and confiscated

during the FBI raid at the Point Dume Court safe house on June 16, 2007. Pena testified

that he and Beritan guarded Vasquez while he was held captive at the Garber Avenue

safe house.

iii. Attempted kidnapping of Martinez

Regarding the attempted kidnapping of Martinez, Pena testified that he, Beritan,

and other Los Palillos members met at the Garber Avenue safe house to plan the

Regarding the Lozano murder at the Garber Avenue safe house, Moreno testified

that Beritan was present in the house when Lozano was still alive. Pena heard someone

telling Lozano they knew he was with the AFO, and he had run into Los Palillos. While

31 Lozano was alive, Pena went outside to act as a lookout. When he came back inside,

Lozano was face down on the floor, dead.

v. Uribe/Leon crimes

Pena provided some missing details regarding the Uribe/Leon murders and

explained his own role in the crimes. As pertinent here Pena testified that while the

victims were held captive at the Garber Avenue safe house, he, Beritan, Moreno, and

another Los Palillos member took turns guarding them. Beritan usually guarded them at

night. During that time, both Pena and Beritan lived at the Garber Avenue safe house.

Pena also testified that he and Beritan bought masks to protect against fumes that

would be coming from the barrels, and they also purchased fans, large plastic trash bags

to cover the openings of the lidless barrels , and charcoal for the barbeque. Beritan and

Valencia were present when Uribe was strangled. Pena drove the barrels containing

Leon's and Uribe 's remains to the horse ranch in the bed of his truck. Pena backed his

truck up to a hole in the ground that was five to seven feet deep, and a Bobcat machine

was used to take the barrels out of the truck. The last time Pena saw the barrels they were

on the Bobcat.

Pena also testified that later, a week after he drove the barrels to the ranch, he and

Beritan cleaned up the Garber Avenue safe house and washed the downstairs floor with a

disinfectant.

32 vi. Tostado kidnapping

Pena testified he learned in June 2007 that Los Palillos had a new safe house─the

Point Dume Court safe house. That month he moved into the new safe house. He also

learned about Los Palillos's plans to kidnap Tostado.

On June 8, 2007, the day Tostado was kidnapped, Pena drove up and down the

street acting as a lookout. While he was driving around as a lookout, Pena kept in phone

contact with Beritan.

Pena testified that while Tostado was held captive at the Point Dume Court safe

house, he (Pena), Beritan, and another member of Los Palillos guarded Tostado.

On June 16, the FBI raided the Point Dume Court safe house and arrested Pena.

Pena testified that Beritan took the "bands" off Tostado and put them on himself.

Beritan's Equinox was parked in the garage at the time of the raid.

DISCUSSION

I. SECTION 654 PROHIBITION OF MULTIPLE PROSECUTIONS (COUNTS 4−7)

Valencia claims his convictions of kidnapping and murdering Uribe and Leon

(counts 4−7, hereafter the Uribe/Leon crimes) must be reversed because prosecuting him

in this case for those four crimes violated the prohibition of multiple prosecutions under

section 654 and Kellett v. Superior Court (1966) 63 Cal.2d 822 (Kellett) because (1) he

pleaded guilty to a charge of kidnapping Tostado for ransom before he was indicted in

this case, and (2) the Tostado kidnapping and the Uribe/Leon crimes were "part of the

same course of conduct." Valencia also contends his trial counsel provided ineffective

33 assistance by failing to assert in the trial court that section 654 barred his prosecution for

the Uribe/Leon crimes charged in counts 4 through 7. We reject these contentions.

A. Background

On June 15, 2009, before he was indicted in this case in August 2009, Valencia

pleaded guilty in People v. Valencia (Super. Ct. San Diego County, 2009, No.

SCD207302) to aiding and abetting the kidnapping for ransom of Tostado on June 8,

2007, and admitted he committed that offense in furtherance of the Los Palillos street

gang. Valencia was sentenced to 15 years in state prison for his conviction of that

offense.

B. Applicable Legal Principles

Section 654, subdivision (a) provides in part that when an "act or omission . . . is

punishable in different ways by different provisions of law," an "acquittal or conviction

and sentence under any one bars a prosecution for the same act or omission under any

other." This provision "bars multiple prosecutions for the same act or omission where the

defendant has already been tried and acquitted, or convicted and sentenced." (People v.

Davis (2005) 36 Cal.4th 510, 557 (Davis).)

The leading case on the section 654 bar against multiple prosecutions is Kellett,

supra, 63 Cal.2d 822. (Davis, supra, 36 Cal.4th at p. 557.) In Kellett, the defendant was

initially charged with the misdemeanor offense of exhibiting a firearm in a threatening

manner (§ 417), and he was charged one month later with the felony offense of being a

felon in possession of a firearm (former § 12021). (Kellett, at p. 824.) Both charges

arose out of the defendant's standing on a public sidewalk while holding a pistol. (Ibid.)

34 Two months after he was charged with the felony, he pleaded guilty to the misdemeanor

charge and was sentenced for that offense. (Ibid.) The defendant then moved for

dismissal of the felony charge, arguing it was barred by section 654, and the trial court

denied his motion. (Kellett, at p. 824.) The California Supreme Court held that

prosecution of the felony charge was barred under section 654, stating: "When, as here,

the prosecution is or should be aware of more than one offense in which the same act or

course of conduct plays a significant part, all such offenses must be prosecuted in a

single proceeding unless joinder is prohibited or severance permitted for good cause.

Failure to unite all such offenses will result in a bar to subsequent prosecution of any

offense omitted if the initial proceedings culminate in either acquittal or conviction and

sentence." (Kellett, at p. 827, italics added.) The Kellett court explained that such a bar

is needed to avoid "needless harassment" of defendants and "waste of public funds."

(Ibid.; see also Davis, 36 Cal.4th at p. 557 ["This preclusion is primarily 'a procedural

safeguard against harassment.'"].)

Thus, under the Kellett rule, the section 654 prohibition of multiple prosecutions

"applies only where 'the prosecution is or should be aware of more than one offense in

which the same act or course of conduct plays a significant part.'" (People v. Valli (2010)

187 Cal.App.4th 786, 796 (Valli), quoting Kellett, supra, 63 Cal.2d at p. 827.)

However, the section 654 prohibition of multiple prosecutions does not apply

under the Kellett rule when "[t]he crimes were committed at different locations, at

different times, against different victims, and with different objectives." (People v. Ward

(1973) 30 Cal.App.3d 130, 136; see also People v. Cuevas (1996) 51 Cal.App.4th 620,

35 624 ["Kellett does not require, nor do the cases construing it, that offenses committed at

different times and at different places must be prosecuted in a single proceeding."])

In deciding whether the same act or course of conduct plays a significant part in

more than one offense, thereby triggering application of the section 654 prohibition of

multiple prosecutions under the Kellett rule, "[w]hat matters is . . . the totality of the facts,

examined in light of the legislative goals of sections 654 and 954[7] as explained in

Kellett." (People v. Flint (1975) 51 Cal.App.3d 333, 336 (Flint)). "More specifically, if

the evidence needed to prove one offense necessarily supplies proof of the other, . . . the

two offenses must be prosecuted together, in the interests of preventing needless

harassment and waste of public funds." (People v. Hurtado (1977) 67 Cal.App.3d 633,

636 (Hurtado).)

However, in determining whether the section 654 prohibition of multiple

prosecutions applies under the Kellett rule, "[t]he evidentiary test of Flint and Hurtado

requires more than a trivial overlap of the evidence. Simply using facts from the first

prosecution in the subsequent prosecution does not trigger application of Kellett." (Valli,

supra, 187 Cal.App.4th at p. 799.) Thus, successive prosecutions are not barred when

"[d]ifferent evidentiary pictures are required . . . [or] [d]ifferent witnesses would testify to

the events." (Ibid.)

7 Section 954 provides in part: "An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated." 36 1. Standard of review

"On appeal, we review factual determinations under the deferential substantial

evidence test, viewing the evidence in the light most favorable to the People. [Citation.]

We review de novo the legal question of whether section 654 applies." (Valli, supra, 187

Cal.App.4th at p. 794.)

C. Analysis

Valencia has failed to meet his burden of showing section 654 barred his

prosecution under the Kellett rule for the Uribe/Leon crimes charged in counts 4 through

7 following his conviction and sentencing for aiding and abetting the Tostado kidnapping

based on his guilty plea. As already discussed, the section 654 prohibition of multiple

prosecutions does not apply when "[t]he crimes were committed at different locations, at

different times, against different victims, and with different objectives." (People v. Ward,

supra, 30 Cal.App.3d at p. 136, italics added.)

Here, the record shows the Uribe/Leon crimes and the Tostado kidnapping were

committed at different locations, at different times, against different victims, and with

different objectives. The Uribe/Leon crimes and the Tostado kidnapping obviously

involved different victims. Uribe and Leon were kidnapped in early May 2007, they

were held captive at the Garber Avenue residence where they were murdered, and their

remains were buried in barrels at the horse ranch. The principal motive underlying the

crimes appeared to be retribution for nonpayment of a $70,000 debt allegedly owed to

Valencia. Tostado, however, was kidnapped in early June of that year, weeks after Uribe

and Leon were murdered, and held captive at the Point Dume Court safe house until he

37 was rescued. Tostado was targeted because he was perceived to be an influential member

of the AFO.

Thus, viewing the evidence in the light most favorable to the prosecution, as we

must (Valli, supra, 187 Cal.App.4th at p. 794), we conclude Valencia has failed to

demonstrate "the same act or course of conduct plays a significant part" (Kellett, supra,

63 Cal.2d at p. 827) in both the Tostado kidnapping and the Uribe/Leon crimes, and thus

he has not established his prosecution for the Uribe/Leon crimes was barred under section

654 and the Kellett rule.

We further conclude that because Valencia's prosecution for the Uribe/Leon

crimes was not barred under the section 654 prohibition of multiples prosecutions, his

counsel did not provide ineffective assistance by failing to assert in the trial court that

section 654 barred his prosecution for those crimes.

II. SUFFICIENCY OF THE EVIDENCE (CORROBORATION OF MORENO'S AND PENA'S ACCOMPLICE TESTIMONY)

Beritan contends his convictions of counts 1 (attempted kidnapping of Martinez),

3 (murder of Lozano), and 4 through 7 (kidnappings and murders of Uribe and Leon)

must be reversed because there was insufficient evidence, apart from the accomplice

testimony of Moreno and Pena, to connect him to the commission of any of those

crimes.8 We reject this contention.

8 In his appellant's opening brief, which he filed before Beritan filed his, Valencia attempts to join in Beritan's arguments by summarily stating he "joins in any arguments raised by [Beritan] which may accrue to Valencia's benefit." Joinder is broadly permitted (Cal. Rules of Court, rule 8.200(a)(5)), "but each appellant has the burden of 38 A. Applicable Legal Principles

When assessing a challenge to the sufficiency of the evidence, we apply the

substantial evidence standard of review, under which we view the evidence "in the light

most favorable to the judgment below to determine whether it discloses substantial

evidence—that is, evidence that is reasonable, credible, and of solid value—such that a

reasonable trier of fact could find the defendant guilty beyond a reasonable doubt."

(People v. Johnson (1980) 26 Cal.3d 557, 578; Jackson v. Virginia (1979) 443 U.S. 307,

319.) "The same standard of review applies to cases in which the prosecution relies

mainly on circumstantial evidence." (People v. Maury (2003) 30 Cal.4th 342, 396.)

Generally, the uncorroborated testimony of a single witness is sufficient to sustain

a conviction or true finding on an enhancement allegation "unless the testimony is

physically impossible or inherently improbable." (People v. Scott (1978) 21 Cal.3d 284,

296.) We do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate

the credibility of witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v.

Jones (1990) 51 Cal.3d 294, 314.) "Resolution of conflicts and inconsistencies in the

demonstrating error and prejudice." (People v. Nero (2010) 181 Cal.App.4th 504, 510, fn. 11; Paterno v. State of California (1999) 74 Cal.App.4th 68, 106 ["Because of the need to consider the particulars of the given case, rather than the type of error, the appellant bears the duty of spelling out in his brief exactly how the error caused a miscarriage of justice."].) Here, Valencia did not supply any argument on the issue of accomplice testimony corroboration as it applies to his unique circumstances. To the extent Valencia's cursory joinder is an attempt to challenge the sufficiency of the evidence corroborating the accomplice testimony of Moreno and Pena as that testimony pertains to him, his reliance solely on Beritan's arguments and reasoning is insufficient to satisfy his burden on appeal. (See Nero, at p. 510, fn. 11.) Accordingly, we consider this issue only as to Beritan. 39 testimony is the exclusive province of the trier of fact." (People v. Young (2005) 34

Cal.4th 1149, 1181.)

1. Corroboration of accomplice testimony

However, section 1111 prohibits a conviction based "upon the testimony of an

accomplice unless it be corroborated by such other evidence as shall tend to connect the

defendant with the commission of the offense." (§ 1111, italics added; see People v.

McDermott (2002) 28 Cal.4th 946, 985-986 ["A conviction can be based on an

accomplice's testimony only if other evidence tending to connect the defendant with the

commission of the offense corroborates that testimony."].)

"The corroboration required of accomplice testimony . . . need only connect the

defendant to the crime sufficiently that we may conclude the jury reasonably could have

been satisfied that the accomplice was telling the truth." (People v. Letner and Tobin

(2010) 50 Cal.4th 99, 185-186.) "[T]he corroborating evidence may be circumstantial, of

little weight by itself, and related merely to one part of the accomplice's testimony." (Id.

at p. 186, italics added; see also People v. Abilez (2007) 41 Cal.4th 472, 505 [such

corroborative evidence may be slight or entirely circumstantial and entitled to little

consideration when standing alone, and need not by itself establish every element of the

crime]; People v. Trujillo (1948) 32 Cal.2d 105, 111 ["If [the accomplice's] testimony

could be completely proven by other evidence, there would be no occasion to offer him

as a witness."].)

The trier of fact's finding on the issue of corroboration may not be disturbed on

appeal unless the corroborative evidence should not have been admitted or does not

40 reasonably tend to connect the defendant with the commission of the crime. (People v.

Szeto (1981) 29 Cal.3d 20, 25).

B. Analysis

As noted, Beritan seeks reversal of six of his eight convictions in this case─counts

1 (attempted kidnapping of Martinez), 3 (murder of Lozano), and 4 through 7

(kidnappings and murders of Uribe and Leon)─based on his claim there is insufficient

independent evidence to corroborate the accomplice testimony of Moreno and Pena as it

pertains to him.9 As discussed in the factual background, ante, the prosecution's case

was based in part on the accomplice testimony of both Moreno and Pena.

Beritan first asserts "there was no witness, apart from Moreno and Pena, who

identified [him] at all" or who testified he "ha[d] any specific role in the commission of

the crimes" committed against Martinez, Lozano, Uribe and Leon. As Beritan appears to

acknowledge, corroborative evidence need not consist of direct eyewitness testimony; it

may be entirely circumstantial. (People v. Letner and Tobin, supra, 50 Cal.4th at p. 186.)

Specifically, Beritan asserts, and we agree, that to be sufficient for purposes of section

1111 the corroborative evidence need only provide a "thin circumstantial nexus" that

tends to connect him with the commission of the crimes with which he was charged.

Beritan contends, however, that "[t]here is nothing even circumstantially

suggestive from any of the witnesses" to show he had a role in the commission of any of

9 Beritan does not challenge on this ground his other two convictions in this case: conspiracy to kidnap Tostado for ransom (count 8) and kidnapping Tostado for ransom (count 9). 41 those crimes. Conceding there is "ample, independent evidence of [his] participation in

the Tostado kidnapping," Beritan contends that "one cannot take the independent Tostado

evidence as connecting [him]" to the crimes committed against Martinez, Lozano, Uribe

and Leon. Acknowledging that Uribe and Leon were murdered at the Garber Avenue

residence after they were held captive there, Beritan further contends there is no

independent evidence to show he was living at the Garber Avenue residence during the

commission of those crimes and, even if he was living there, "corroboration based only

on presence at the scene and opportunity to commit a crime does not satisfy the

requirements of section 1111."

These contentions are unavailing. As already discussed, corroborative evidence

may be circumstantial, of little weight by itself, and related merely to one part of an

accomplice's testimony. (People v. Letner and Tobin, supra, 50 Cal.4th at p. 186.)

Here, in his accomplice testimony, Moreno indicated that Los Palillos rented "safe

houses" in the San Diego area to facilitate the kidnappings and other crimes they planned

to commit. He testified that the Garber Avenue residence was one of those safe houses.

Moreno further testified that he spoke to Beritan and a few other members of Los Palillos

about making money by kidnapping AFO members for ransom and that Beritan moved

into the Garber Avenue safe house, as did Moreno's brother, Carlos Pena. In his own

accomplice testimony, Pena similarly testified that Los Palillos rented the Garber Avenue

safe house in October 2006, and Pena lived there with Asere (Beritan) from that time

until Los Palillos abandoned that safe house.

42 Independent circumstantial evidence, which Beritan disregards, corroborates

Moreno's and Pena's testimony that he was living at the Garber Avenue safe house during

the commission of the crimes. Nwagbo, the owner of the Garber Avenue residence,

testified that in mid-October 2006 a man he knew as Ignacio Peredo signed a one-year

agreement to rent the property. When the rent payments stopped, Nwagbo called Peredo,

who sent a money order by overnight mail. Agent Giboney testified that Nwagbo

showed him the UPS next-day airshipping envelope that was used to send the money

order, and the return address was in the name of a person named Onel Jimenez. A

paralegal working for the district attorney's office testified she subpoenaed the UPS

records, and the receipt for the envelope shipped to Nwagbo showed it was sent by Onel

Jimenez. Agent Giboney testified that Beritan was a member of Los Palillos, and both

Agent Giboney and Agent Kameron Korte testified that Onel Jimenez was an alias that

Beritan used.

The foregoing circumstantial evidence, which corroborates Moreno's and Pena's

accomplice testimony, tends to connect Beritan to the commission of the crimes by

establishing that he used his alias, Onel Jimenez, to rent the Garber Avenue safe house,

and that he resided there during the commission of the crimes.

Independent circumstantial evidence also corroborates Moreno's and Pena's

testimony that Beritan guarded Uribe, Leon, and other victims at Los Palillos's safe

houses. Moreno testified that he and Beritan guarded Vasquez ("Kilino") at the Garber

Avenue safe house while he was held captive there, that he (Moreno) and other members

of Los Palillos openly communicated to one another during that time and referred to

43 Beritan by his nicknames "Asere," "Chino," "Cubano," and "Cuba," and that Beritan was

the only one there who was Cuban. Moreno also testified that he and Beritan guarded

another victim, Balitas, while he was held captive at the Garber Avenue safe house;

Beritan was still living there when Uribe and Leon were later kidnapped and held captive

there, and Beritan helped to guard them before they were strangled. Pena similarly

testified that Beritan helped to guard Balitas, Vasquez, Uribe, and Leon while they were

held captive at the Garber Avenue safe house.

Independent circumstantial evidence corroborates the foregoing accomplice

testimony that Beritan guarded Uribe and Leon. As noted, Moreno testified that when he

and Beritan guarded Vasquez at the Garber Avenue safe house, he (Moreno) and other

members of Los Palillos openly referred to Beritan by his various nicknames, including

"Asere" and "Cubano." Vasquez corroborated this testimony by testifying that one of the

men who guarded him one was a foreigner with a Cuban or Venezuelan accent, and

Vasquez knew him as "El Cubano." Tostado also gave corroborative testimony. He

testified that he learned the nicknames of three of the kidnappers who held him captive at

the Point Dume Court safe house, and one of them was nicknamed "Asere" (Beritan).

Agent Giboney independently testified that Beritan's nicknames were "Chino" and

"Asere." At trial, Tostado identified Beritan as "Asere."

In this regard, the Attorney General correctly argues that "evidence establishing

that a defendant committed crimes similar to the one at issue can corroborate an

accomplice's testimony." (People v. Hannie (1962) 202 Cal.App.2d 462, 466 ["[T]he

accomplice in this case was corroborated by evidence establishing a prior burglary

44 committed under circumstances similar to the burglary here in question."].) Here, the

independent testimony of Vasquez and Tostado establishing that Beritan had assisted

Los Palillos in holding them and Balitas captive corroborates Moreno's and Pena's

accomplice testimony that he also assisted in holding Uribe and Leon captive before they

were murdered. (Ibid.)

Pena testified that Beritan helped to guard Tostado at the Point Dume Court safe

house. Beritan does not dispute that Tostado corroborated this testimony by testifying

that he learned the nicknames of three of the kidnappers.

For the foregoing reasons, we conclude that sufficient evidence independent of

Moreno's and Pena's accomplice testimony tends to connect Beritan to the Uribe/Leon

crimes (counts 4 through 7) such that we may conclude the jury reasonably could have

been satisfied that their accomplice testimony about Beritan's participation in those

crimes was truthful.

We also conclude sufficient independent evidence tends to connect Beritan to the

attempted kidnapping of Martinez (count 1) and the murder of Lozano (count 3) such that

we may conclude the jury reasonably could have been satisfied that Moreno's accomplice

testimony about Beritan's participation in those crimes was truthful. Regarding the

attempted kidnapping of Martinez, Moreno and Pena testified that they, Beritan, and

other Los Palillos members met at the Garber Avenue safe house to plan the kidnapping

for ransom of Martinez. Moreno testified that the Garber Avenue safe house was still

leased by Los Palillos at that time, Beritan was living there, and Martinez was going to be

held captive there following his abduction. Moreno also testified that the plan was to

45 have Arvizu lure Martinez, who was an independent drug-trafficker, to the Briarwood

apartment complex on the pretext that a buyer of drugs would be there for a drug sale

transaction, and some of the members of Los Palillos dressed as police officers would

then "arrest" Martinez and take him to the Garber Avenue safe house. Moreno further

testified Beritan would be nearby in a car acting as a lookout.

Moreno's testimony that Martinez was going to be held captive at the Garber

Avenue safe house after being lured to, and "arrested" at, the Briarwood apartment

complex following his abduction is corroborated by the independent testimony of

Lourdes Hernandez, who testified that Arvizu drove her to the Briarwood apartment

complex in his Ridgeline truck after telling her they were going to pick up cocaine and

that Martinez followed them there in his Sequoia. This testimony corroborates Moreno's

accomplice testimony that, as part of the kidnapping plan devised at the Garber Avenue

safe house, Arvizu would lure Martinez to the Briarwood apartment complex.

Lourdes also testified that, after Martinez escaped from the attempted "arrest" and

drove away, she and Arvizu picked up the men wearing police vests who had assaulted

Martinez and drove them to a home in the Chula Vista area. At trial, Lourdes identified

the Garber Avenue safe house as the home to which they drove after the incident.

In addition, as already discussed, substantial evidence apart from Moreno's and

Pena's accomplice testimony shows that Beritan had rented the Garber Avenue safe house

on behalf of Los Palillos, he lived there, and he guarded other victims there.

Although the foregoing independent evidence only provides what Beritan refers to

as a "thin circumstantial nexus," it tends to connect Beritan to the commission of the

46 attempted kidnapping of Martinez such that we may conclude the jury reasonably could

have been satisfied that Moreno's accomplice testimony about Beritan's participation in

that crime was truthful. (People v. Letner and Tobin, supra, 50 Cal.4th at p. 186 ["[T]he

corroborating evidence may be circumstantial, of little weight by itself, and related

merely to one part of the accomplice's testimony."].)

Last, the same independent evidence showing that Beritan rented the Garber

Avenue safe house on behalf of Los Palillos, lived there, and guarded other victims there,

also tends to connect him to the murder of Lozano, who Moreno testified was strangled to

death at the Garber Avenue safe house while Beritan and other Los Palillos members

were kicking him.

For all of the foregoing reasons, we affirm Beritan's convictions of counts 1, 3,

and 4 through 7.

III. VALENCIA'S CLAIM OF SENTENCING ERROR AND DEFENDANTS' REQUESTS FOR CORRECTION OF ERRORS IN THEIR ABSTRACTS OF JUDGMENT

A. Error in Both Abstracts of Judgment Regarding Count 6

Asserting that their abstracts of judgment incorrectly reflect that their count 6

convictions were for kidnapping for ransom with bodily harm, rather than for simple

kidnapping, Valencia and Beritan request that the errors be corrected. The Attorney

General concedes the errors and does not oppose defendants' requests. We agree the

abstracts of judgment must be corrected.

With respect to count 6, the jury found Valencia and Beritan guilty of the lesser

included offense of simple kidnapping of Leon in violation of section 207, subdivision

47 (a). Their abstracts of judgment correctly reflect that they were convicted of a violation

of that section. However, Valencia's abstract of judgment incorrectly identifies his count

6 offense as "kidnap ransom, bodily harm," and Beritan's abstract of judgment similarly

identifies his count 6 offense as "kidnap, ransom bodily harm."

Beritan correctly points out that kidnapping for ransom with bodily harm is a

violation of section 209, subdivision (a), not of section 207, subdivision (a). Thus, we

conclude defendants' abstracts of judgments should be corrected to reflect that their count

6 convictions (§ 207, subd. (a)) were for the lesser included offense of simple

kidnapping, not for kidnapping for ransom with bodily harm.

B. Valencia's Claims of Sentencing Error (§ 190.2, subd. (a)(3)) and Resulting Error in His Abstract of Judgment

Valencia also claims the court erroneously imposed two multiple-murder life-

without-possibility-of-parole (LWOP) prison terms based on the jury's true finding on the

"multiple murder" special circumstances charged as to counts 5 (murder of Uribe) and 7

(murder of Leon). He argues that "[t]he appropriate remedy is to strike one of the special

circumstance sentences of life without the possibility of parole, and impose a term of 25

years to life in its place." He also argues his abstract of judgment "should be amended to

delete reference to imposition of an LWOP sentence for both Counts [5] and [7] based on

the [section 190.2, subdivision (a)(3)] multiple murder special circumstance." The

Attorney General summarily concedes, and we agree, that Valencia is correct.

48 1. Background

As to counts 5 and 7, the prosecution charged Valencia with a multiple-murder

special circumstance, alleging "he has in this proceeding been convicted of more than one

offense of murder in the first or second degree, within the meaning of [section 190.2,

subdivision (a)(3)]." The jury found Valencia guilty of counts 5 and 7, and found to be

true the multiple-murder special-circumstance allegation.

For Valencia's count 5 conviction, the court sentenced him to life without the

possibility of parole, stating: "For Count 5, the murder of Mr. Uribe with the findings of

active gang participation, multiple murders, and the gang allegation, probation is denied.

You're committed to the Department of Corrections and Rehabilitation[] for life without

the possibility of parole." (Italics added.)

For Valencia's count 7 conviction, the court sentenced him to another and

consecutive term of life without the possibility of parole, stating: "In light of Count 7,

which is the murder of Mr. Leon with the finding of the active gang participation, the

multiple murders, and the gang allegation. In that case, then, you're committed to the

Department of Corrections and Rehabilitation for life without the possibility of parole to

be served consecutive[ly] or in addition to the life without the possibility of parole

imposed in Count 5." (Italics added.)

2. Analysis

In People v. Danks (2004) 32 Cal.4th 269, 315, the California Supreme Court

explained that "section 190.2, subdivision (a)(3) provides as a special circumstance that

'[t]he defendant, in this proceeding, has been convicted of more than one offense of

49 murder in the first or second degree.' Section 190.2, subdivision (a)(3) does not permit a

separate multiple-murder special circumstance to be attached to each murder conviction

sustained in the capital case because such duplicative use of multiple-murder special

circumstances 'artificially inflates the seriousness of the defendant's conduct.'" (Italics

added.)

In People v. Diaz (1992) 3 Cal.4th 495, 565, the Supreme Court also explained

that "[w]hen a defendant kills more than one person, the prosecution should allege only

one multiple-murder special circumstance; to charge more than one such special

circumstance would improperly inflate the seriousness of the defendant's conduct." In

Diaz, after the defendant waived his right to a jury trial, the trial court convicted him of

12 counts of first degree murder and found to be true 12 multiple-murder special-

circumstance allegations (§ 190.2, subd. (a)(3)). (Diaz, at p. 517.) The Diaz court agreed

with the defendant's argument that 11 of the 12 multiple-murder special circumstances

should be stricken as duplicative. (Id. at p. 565.)

Here, as Danks and Diaz make clear, the court was authorized to impose only one

LWOP prison term as a result of the jury's true finding on the multiple-murder special-

circumstance allegation. (People v. Danks, supra, 32 Cal.4th at p. 315; People v. Diaz,

supra, 3 Cal.4th at p. 565.) As the court erroneously imposed two LWOP prison terms as

a result of that true finding, we agree with the parties that "[t]he appropriate remedy is to

strike one of the special circumstance sentences of life without the possibility of parole,

and impose a term of 25 years to life in its place."

50 Accordingly, the count 7 sentence of life without the possibility of parole imposed

on Valencia based on the jury's true finding on the multiple-murder special-circumstance

allegation (§ 190.2, subd. (a)(3)) is ordered set aside, and in its place the modified

sentence of 25 years to life is ordered imposed. Valencia's abstract of judgments should

be corrected to reflect this modification of his count 7 sentence.

C. Gang Enhancements

Last, Valencia contends his abstract of judgment incorrectly indicates he received

a gang-enhancement sentence of life without the possibility of parole for each of the

jury's true findings on the gang enhancement allegations (§ 186.22, subd. (b)(1)) attached

to counts 5 (murder of Uribe) and 7 (murder of Leon). Citing People v. Lopez (2005) 34

Cal.4th 1002 (Lopez), Valencia asserts that because he received a sentence of life without

the possibility of parole for each of his count 5 and count 7 gang-related murder

convictions, "the sentence provided by law for [each] gang enhancement is generally a

minimum parole eligibility term of 15 years." Thus, he argues, the count 5 and count 7

LWOP gang enhancements reflected in his abstract of judgment are unauthorized.

Beritan similarly argues that because he received sentences of life without the

possibility of parole for each of his three gang-related murder convictions (counts 3, 5 &

7) and each of his two gang-related kidnapping-for-ransom-with-bodily-injury

convictions (counts 4 & 9), the LWOP gang enhancements for those five counts (3, 4, 5,

7 & 9) reflected in his abstract of judgment are unauthorized.

The Attorney General concurs in Valencia's and Beritan's arguments, and, citing

section 186.22, subdivision (b)(5) (hereafter section 186.22(b)(5)), concedes that "[t]he

51 appropriate sentence for the gang enhancements on all of these counts is life with a

minimum parole eligibility [sic] after 15 years."

We accept the Attorney General's concession that defendants' abstracts of

judgment should be corrected to reflect the imposition of a gang-enhancement consisting

of a 15-year minimum parole eligibility term under 186.22(b)(5), rather than an LWOP

term, for each gang enhancement. In Lopez, supra, 34 Cal.4th at page 1004, the

California Supreme Court explained that "section 186.22, subdivision (b) establishes

alternative methods for punishing felons whose crimes were committed for the benefit of

a criminal street gang." Section 186.22(b)(5), which is applicable here, provides in part

that "any person who violates this subdivision in the commission of a felony punishable

by imprisonment in the state prison for life shall not be paroled until a minimum of 15

calendar years have been served." (Italics added.) Thus, under section 186.22(b)(5),

gang-related felony convictions punishable by imprisonment in the state prison for life

carry a 15-year minimum parole eligibility term. (§ 186.22(b)(5); Lopez, supra, 34

Cal.4th at p. 1004.)

1. Valencia

Here, the court sentenced Valencia to consecutive LWOP prison terms for his

count 5 and count 7 murder convictions. The jury found Valencia committed each of

those murders for the benefit of a criminal street gang within the meaning of section

186.22, subd. (b)(1). Thus, under section 186.22(b)(5), each of Valencia's gang-related

murder convictions carries a gang enhancement consisting of a 15-year minimum parole

eligibility term. (Lopez, supra, 34 Cal.4th at p. 1004.)

52 However, Valencia's abstract of judgment currently reflects that each of his count

5 and count 7 gang enhancements consists of an unauthorized LWOP term. Thus,

Valencia's abstract of judgment should be corrected by deleting the count 5 and count 7

gang-enhancement LWOP terms and replacing those unauthorized terms with 15-year

minimum parole eligibility terms under section 186.22(b)(5). (Lopez, supra, 34 Cal.4th

at p. 1004.) We note that these corrections, although required by the provisions of

section 186.22(b)(5), appear to be of academic importance only because the section

186.22(b)(5) gang enhancements "enhance" the LWOP sentences imposed for Valencia's

count 5 and count 7 murder convictions. By definition, an LWOP sentence means the

defendant is not eligible for parole and thus imposition of a 15-year minimum parole

eligibility term as a gang "enhancement" under section 186.22(b)(5) is of no

consequence.

2. Beritan

The court also sentenced Beritan to consecutive LWOP prison terms for his

convictions of counts 3, 4, 5, 7, and 9. The jury found Beritan committed each of those

felonies for the benefit of a criminal street gang within the meaning of section 186.22,

subd. (b)(1). Thus, under section 186.22(b)(5), each of Beritan's gang-related convictions

carries a gang enhancement consisting of a 15-year minimum parole eligibility term.

(Lopez, supra, 34 Cal.4th at p. 1004.)

However, Beritan's abstract of judgment currently reflects that each of his gang

enhancements consists of an unauthorized LWOP term. Thus, Beritan's abstract of

judgment should be corrected by deleting the gang-enhancement LWOP terms (in counts

53 3, 4, 5, 7 & 9) and replacing those unauthorized terms with 15-year minimum parole

eligibility terms under section 186.22(b)(5). (Lopez, supra, 34 Cal.4th at p. 1004.)

DISPOSITION

Valencia's and Beritan's convictions are affirmed. Valencia's sentence of life

without the possibility of parole for his count 7 conviction is ordered set aside, and in its

place the modified sentence of 25 years to life is ordered imposed. As modified,

Valencia's judgment is affirmed. Beritan's judgment is affirmed. The trial court is

directed to (1) amend Valencia's abstract of judgment to reflect the modification of his

count 7 sentence; (2) correct Valencia's and Beritan's abstracts of judgment to reflect that

their count 6 convictions (§ 207, subd. (a)) were for the lesser included offense of simple

kidnapping, not for kidnapping for ransom with bodily harm; (3) correct Valencia's

abstract of judgment by deleting the count 5 and count 7 gang-enhancement LWOP terms

and replacing those terms with 15-year minimum parole eligibility terms under section

186.22(b)(5); and (4) correct Beritan's abstract of judgment by deleting the gang-

enhancement LWOP terms as to counts 3, 4, 5, 7, and 9 and replacing those terms with

15-year minimum parole eligibility terms under section 186.22(b)(5). The

54 superior court is also directed to forward certified copies of the corrected abstracts of

judgment to the Department of Corrections and Rehabilitation.

NARES, Acting P. J.

WE CONCUR:

McDONALD, J.

O'ROURKE, J.