Filed 2/3/22 P. v. Navarez CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
A164260
v.
MARCOS NAVAREZ, (Tulare County
Super. Ct. No. VCF325028T)
Defendant and Appellant.
Defendant Marcos Navarez appeals a judgment convicting him of
various charges arising out of his participation in a conspiracy to murder a
rival gang member. Defendant contends correctly that (1) there is insufficient
evidence to convict him of participating in a criminal street gang conspiracy
(Pen. Code,1 § 182.5) and (2) his conviction for conspiring to receive a stolen
vehicle (§§ 182, 496d) must be reversed because the agreement regarding the
stolen vehicle was part of a single conspiracy to murder the rival gang
member. As a result, defendant’s convictions on counts 2 and 4 must be
reversed. We reject defendant’s additional argument that the jury was not
properly instructed on conspiracy to commit murder (§§ 182, subd. (a)(1), 187)
and affirm the judgment in all other respects. As a result of the partial
reversal of defendant’s convictions, the matter must be remanded for
1 All statutory references are to the Penal Code unless otherwise noted.
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resentencing. Defendant’s arguments asserted on appeal relating to his
sentence can be considered by the trial court at that time.
Background
This prosecution was the culmination of a multi-agency law
enforcement operation in 2015 which focused on the Norteño criminal street
gang in Tulare County. The investigation involved wiretaps of about 34
telephones and live surveillance of suspects. The initial complaint charged
approximately 80 individuals with 157 gang-related crimes. The defendants
were subsequently divided into six groups.
Defendant was charged by information with five counts:2 conspiracy to
commit murder (count 1; §§ 182, subd. (a)(1), 187); conspiracy to receive a
stolen vehicle (count 2; §§ 182, subd. (a)(1), 496d); unlawful driving and
taking a vehicle (count 3; Veh. Code, § 10851); participating in a criminal
street gang conspiracy (count 4; § 182.5); and street terrorism (count 5;
§ 186.22, subd. (a).) Count 1 included special allegations that the crime was
punishable by life imprisonment (§ 186.22, subd. (b)(5)), and that defendant
personally used a deadly weapon (§ 12022, subd. (b)(1)).3 Counts 2 and 3
included the special allegation that each crime was committed for the benefit
of and in association with a criminal street gang (§ 186.22, subd. (b)(1)(A)).
Counts 4 and 5 specially alleged that defendant personally used a deadly
weapon (§ 12022, subd. (b)(1)).
At trial, evidence was presented that defendant conspired with other
Norteño gang members to murder a rival Sureño gang member living at a
2Defendant was charged with two coconspirators, including co-
defendant Robert Duran with whom he went to trial.
3At trial, the pleading was amended to conform to proof with regard to
the weapon use allegation attached to count 1 to allege a principal used a
deadly or dangerous weapon (§ 12022, subd. (a)(l)).
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specific location in Porterville. A condensed summary of the extensive
evidence establishing defendant’s participation in the conspiracy is as
follows4:
The Norteño gang divided Tulare County into three sections: north,
south, and central. During the relevant time period, Emanuel Avalos was
acting as the gang leader overseeing the south Tulare county area. Duran
was responsible for gang communications and activity in Porterville, a town
in the south county area. Porterville was also divided into three subsections:
west side, east side, and central. Defendant served as the “squad leader” for
east side Porterville.
In August 2015, law enforcement intercepted a text message from
Avalos to Duran that instructed Duran to have the “east side” scout a
location to identify a specific target for a “hit.” After various communications
between Avalos and Duran, Avalos confirmed that “we got to get a body.”
Shortly before the day of the intended murder, defendant was asked to
fill in for Duran while he was at work. Avalos and defendant communicated
by text and phone several times discussing the target and the intended
shooting. Avalos also contacted Eddie Mena to obtain a stolen vehicle. Mena
said he had one, and Avalos told Mena he would have someone from east side
Porterville pick up the vehicle from a certain cemetery. Avalos then texted
defendant, saying that if he needed a stolen vehicle for the shooting, he had
4 Although at trial defendant contested some of the facts set forth post
and the inferences drawn by the prosecution, his appeal proceeds on the
assumption that these facts and inferences were established by the evidence,
as reflected by the verdict. Because defendant does not challenge the jury’s
finding that he was an active participant in a criminal street gang, we do not
detail the substantial evidence that supports that finding.
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one ready for him. Defendant responded that he did need one, and Avalos,
defendant and Mena coordinated the pick-up of the car from the cemetery.
On September 3, 2015, officers observed defendant and other gang
members retrieve the stolen car from the cemetery. Defendant, who was
driving a white vehicle, followed the stolen vehicle to a house in Porterville.
Defendant, still driving the white vehicle, briefly scouted the location of the
intended shooting. Upon his return, the stolen vehicle headed towards the
intended shooting location but was stopped by police before it reached the
target’s home. Two of the vehicle’s three occupants were arrested.
The jury convicted defendant on all counts and found true all the
special allegations. The court sentenced defendant to a determinate term of
seven years in state prison followed by an indeterminate term of 25 years to
life.
Discussion
1. Conspiracy to Receive a Stolen Vehicle
Defendant contends his conviction for conspiracy to receive a stolen
vehicle must be reversed because the agreement to use the stolen vehicle was
part of the plan to commit murder and did not constitute a separate
conspiracy. The Attorney General disagrees, arguing that “[t]he agreements
are properly viewed as separate conspiracies because they involved different
conspirators, different objectives, and different victims.”
“[T]he essence of the crime of conspiracy is the agreement, and thus it
is the number of the agreements (not the number of the victims or number of
statutes violated) that determine the number of the conspiracies.” (People v.
Meneses (2008) 165 Cal.App.4th 1648, 1669; see also People v. Kopp (2019) 38
Cal.App.5th 47, 84 [“[W]hen multiple crimes are committed, there may be one
overall agreement to commit all of them, or multiple separate agreements.”];
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People v. Lopez (1994) 21 Cal.App.4th 1551, 1557 [“ ‘One agreement gives rise
to only a single offense, despite any multiplicity of objects.’ ”].) “ ‘ “Where two
or more persons agree to commit a number of criminal acts, the test of
whether a single conspiracy has been formed is whether the acts ‘were tied
together as stages in the formation of a larger all-inclusive combination, all
directed to achieving a single unlawful end or result.’ ” [Citation.] “Relevant
factors to consider in determining this issue include whether the crimes
involved the same motives, were to occur in the same time and place and by
the same means,” and targeted a single or multiple victims.’ [Citation.] ‘ “The
test is whether there was one overall agreement among the various parties to
perform various functions in order to carry out the objectives of the
conspiracy. If so, there is but a single conspiracy.” [Citation.]’ [Citation.]
‘ “Performance of separate crimes or separate acts in furtherance of a
conspiracy is not inconsistent with a ‘single overall agreement.’ [Citation.]
The general test also comprehends the existence of subgroups or
subagreements.” ’ ” (People v. Kopp, supra, 38 Cal.App.5th at p. 84.)
The evidence at trial established only one conspiracy. The evidence
established that the sole reason for obtaining a stolen car was to commit the
murder in a vehicle that could not be linked to the perpetrators. The gang
members did not agree to steal a car, but to use for the killing a car that had
been stolen. In closing argument, the prosecutor repeatedly stated that this
was a case about a conspiracy between gang members to commit a murder.
The prosecutor never differentiated the conspiracy to receive a stolen vehicle
from the conspiracy to commit murder.5 The prosecutor explained that for
5 The prosecutor’s only reference to the second conspiracy charge came
at the very end of his rebuttal when he stated, “I want to make one comment
about the vehicle: We don’t know, didn’t steal the vehicle. That’s not what
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“gang operations like this you need a stolen vehicle. A stolen vehicle is what
will cloak the gang members. If you go to kill someone, you don't want it
traced back to a legitimate car.” He later argued that getting the stolen car
was “one of the precursors for getting this operation in motion” and that it
had been specifically arranged for the commission of this crime. He
explained, “This is the key vehicle, because the other vehicles, the Chevy
Tahoe, the red vehicle, they weren’t the stolen vehicles that had been
specifically purchased -- not purchased, had not been arranged to have them
come forward. Instead, they are legit vehicles, as far as we can tell. Once the
Dodge Durango gets moving, that’s the stolen vehicle. That’s the vehicle the
gang members can use for their hit.” In rebuttal, when discussing the
requirement for an overt act in furtherance of the conspiracy, the prosecutor
again argued, “Once you have the overt acts, you have conspiracy to commit
murder with the intent to kill. That’s when it’s there. [¶] By the time you get
to September 3rd, when the Dodge Durango was already out, the overt acts
have already occurred. They have gotten the stolen car from Porterville.”
Contrary to the Attorney General’s argument, the two agreements
involved at least two of the same core gang members. Avalos and defendant
agreed to commit a murder and Avalos and defendant arranged for a stolen
car to be used in the murder. The fact that other co-conspirators were
involved in the different phases of the plan does not mean that there were
two separate conspiracies. The agreement between Avalos and defendant
regarding the stolen car is properly viewed as a “subagreement.” (See People
v. Kopp, supra, 38 Cal.App.5th at p. 84.)
he’s charged with. He’s charged with . . . conspiracy to receive stolen
property, the vehicle, and charged with unlawful driving of a stolen vehicle.”
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The objectives of the agreement to commit the murder and the
subagreement to use a stolen vehicle were overlapping. The stolen car was
intended to facilitate the murder by lessening the chances that the
perpetrators would be identified. As the prosecutor argued, it was an
essential “precursor” to setting the murder in motion.
The Attorney General’s reliance on People v. McLead (1990) 225
Cal.App.3d 906 for the proposition that “committing a crime and getting
away with it are distinct criminal objectives” is misplaced. In that case, the
court held that the defendant was properly convicted of two conspiracies
where he and his co-conspirators robbed a rival drug dealer and two of his
associates, and then drove them to a rural area and shot them. (Id. at
pp. 911-912, 920.) The court explained that the agreement to kill the two
associates was formed after the agreement to rob and kill the rival drug
dealer was set in motion. While the objective of the first agreement was the
“elimination of a competitor to achieve financial gain,” the second agreement
had the distinct objective of eliminating the associates as witnesses. (Id. at
p. 920.) In the present case, in contrast, the agreement to use the stolen
vehicle was but a step in the plan to commit the murder.
Finally, the Attorney General’s argument that the two conspiracies had
different victims is not persuasive. The Attorney General suggests that
“[s]eparate victims suffered separate harm” from defendant’s agreements.
Although no evidence was presented at the trial regarding when or for what
reason the car was stolen, at sentencing, the prosecutor indicated that the car
was stolen the day before Avalos, Mena and defendant arranged for its use in
the murder. The transcript of Avalos’s conversation with Mena also
establishes that Avalos asked if Mena had a car available for him to use, not
that he asked Mena to steal a car for his use. Mena indicated that he had a
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car available. Accordingly, the Attorney General’s suggestion that the victim
of the stolen vehicle conspiracy was the owner of the car is not supported by
the evidence. If the car had previously been stolen, its owner was not a victim
of its use in connection with the planned murder.
As defendant notes, “Because the conspiracy to commit murder carries
the greater punishment, the conviction in count 2 for conspiracy to commit
receiving a stolen vehicle must be reversed.” (See § 182, subd. (a).)
2. Conspiracy to Commit Murder
Defendant contends that the jury instructions failed to adequately
explain the mental state necessary to find him guilty of conspiring to commit
murder. We disagree.
In People v. Cortez (1998) 18 Cal.4th 1223, 1237, the Supreme Court
held that “all conspiracy to commit murder is necessarily conspiracy to
commit premeditated and deliberated first degree murder.” The court
explained that because the mental state required for conviction of conspiracy
to commit murder necessarily establishes premeditation and deliberation of
the target offense of murder, the jury need not be expressly instructed on
premeditation and deliberation. (Id. at pp. 1232, 1238-1239.) Instructions on
the basic elements of murder, however, are “necessary to guide the jury in its
determination of whether defendant harbored the requisite dual specific
intent for conviction of conspiracy to commit murder.” (Id. at p. 1239.) In that
regard, the court found sufficient instructions that murder is “ ‘the unlawful
killing of a human being . . . with malice aforethought,’ ” where malice is
defined as the “intent to kill.” (Ibid.)
Here, the jury was instructed, pursuant to CALCRIM No. 563 that to
convict defendant of conspiracy to commit murder it must find that: “1. The
defendant intended to agree and did agree with co-conspirators to
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intentionally and unlawfully kill, that is, to commit murder; [¶] 2. At the time
of the agreement, the defendant and the other alleged members of the
conspiracy intended that one or more of them would intentionally and
unlawfully kill; [¶] 3. One of the defendants, both of the defendants, or Pedro
Sanchez, Emmanual Avalos, Daniel Samano, or Ricard Villagomez committed
at least one of the following overt acts alleged to accomplish the killing: [¶] (1)
Conspirators identify target residence, (2) Conspirators arrange for stolen
vehicle to use, (3) Conspirators drive by target residence (4) Conspirators
gather at [address], (5) Conspirators scouted target residence (6)
Conspirators arm themselves with firearm(s); [¶] AND 4. At least one of
these overt acts was committed in California.” The jury was further
instructed, “To decide whether the defendant . . . intended to commit murder,
please refer to Instruction 500 which defines that crime.” CALCRIM No. 500,
as given to the jury, read, “Homicide is the killing of one human being by
another. Murder is a type of homicide.”
Defendant contends his conviction for conspiracy to commit murder
must be reversed and a new trial ordered because the trial court failed to
inform the jury that they had to find defendant “personally and specifically
harbored the intent to kill.” The Attorney General argues, and we agree, that
CALCRIM No. 536, as given in this case, comports with the Supreme Court’s
direction in Cortez. The jury was required to find that defendant agreed to
intentionally kill another human being. CALCRIM No. 500, while perhaps
unnecessary, was not as defendant argues “confusing and erroneous as a
matter of law.” It did not obfuscate what CALCRIM No. 536 clearly required
the jury to find in order to convict. Accordingly, defendant’s conviction on
count 1 must be affirmed.
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3. Conspiracy to Participate in a Gang
Defendant contends his conviction for conspiracy to participate in a
street gang must be reversed because there is insufficient evidence that the
underlying felony, in this case murder, was completed or attempted. As the
Attorney General acknowledges, unlike a traditional conspiracy under section
182, which requires only an overt act in furtherance, section 182.5 which
governs gang conspiracies requires that the target offense actually be
completed or attempted. (People v. Johnson (2013) 57 Cal.4th 250, 263; People
v. Lopez (2020) 46 Cal.App.5th 505, 522.) In this case, the target felony was
murder. Murder did not occur, and the jury was not instructed on attempted
murder. Accordingly, as the Attorney General acknowledges, defendant’s
conviction on count 4 must be reversed.
4. Sentencing Issues
On count 2 (conspiracy to receive a stolen vehicle) the trial court
imposed a term of seven years. On count 3 (unlawful taking and/or driving a
stolen vehicle), the court imposed a seven year term, concurrent to count 2
and stayed pursuant to section 654. On appeal, defendant argues the
sentence imposed on count 2 should also have been stayed pursuant to
section 654 “because the receipt and use of the stolen vehicle was part of the
overt acts supporting the conviction for conspiracy to commit murder.”
Defendant’s argument is mooted by our reversal of his conviction on count 2.
The reversal does, however, impact his sentence under count 3. With respect
to count 3, the stay of his seven-year prison term pursuant to section 654 was
based on the sentence imposed on count 2, so that with the vacation of that
count the stay under count 3 must be reconsidered. Accordingly, we will
remand for resentencing on count 3 to allow the trial court to determine in
the first instance whether the stay of execution of the prison term imposed on
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count 3 should be lifted. (See People v. Rojas (2015) 237 Cal.App.4th 1298,
1309 [Remand for resentencing ordered where partial reversal of the
judgment invalidated the stay that was ordered pursuant to section 654.].)
The reversal of defendant’s conviction on count 2 also impacts his
presentence custody credits. At sentencing, the trial court awarded defendant
1,386 days of presentence credit against the determinate sentences imposed
on counts 2, 3, and 5. As discussed above, the term imposed on count 3 was
stayed. The term imposed on count 5 was also stayed. The court awarded
“zero” credits against the indeterminate terms imposed on counts 1 and 4. On
appeal, defendant argues that “if the conviction in count 2 is reversed and
only the indeterminate term imposed in count 1 remains, those 1,386 days
credit must be awarded toward that term.” This matter must also be
addressed on remand.
Finally, defendant contends the matter must be remanded so that he
can (1) make an evidentiary record in anticipation of his future youthful
offender parole hearing and (2) establish his inability to pay the fees and
fines imposed by the trial court. The Attorney General argues that defendant
is not entitled to a remand for these purposes, but may request such hearings
if the case is remanded for resentencing on other issues. Because the case
must be remanded for resentencing, defendant may raise these issues when
the matter returns to the trial court.
Disposition
Defendant’s convictions on counts 2 and 4 are reversed and the matter
is remanded for resentencing as specified herein. In all other respects the
judgment is affirmed.
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POLLAK, P. J.
WE CONCUR:
BROWN, J.
DESAUTELS, J.*
*
Judge of the Superior Court of California, County of Alameda,
assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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