People v. Kopp

• Decision Date: 31 July 2019
• Docket Number: D072464
• Citation: 250 Cal.Rptr.3d 852,38 Cal.App.5th 47
• Parties: The PEOPLE, Plaintiff and Respondent, v. Christi J. KOPP et al., Defendants and Appellants.
• Court: California Court of Appeals Court of Appeals

38 Cal.App.5th 47

250 Cal.Rptr.3d 852

The PEOPLE, Plaintiff and Respondent,

v.Christi J. KOPP et al., Defendants and Appellants.

D072464

Court of Appeal, Fourth District, Division 1, California.

Filed July 31, 2019

Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant Christi J. Kopp.

Rebecca P. Jones, under appointment by the Court of Appeal, for Defendant and Appellant Jason Samuel Hernandez.

Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Melissa Mandel and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Respondent.

HUFFMAN, J.

The jury convicted Jason Samuel Hernandez and Christi J. Kopp (Hernandez and Kopp together Appellants) of conspiracy to commit murder ( Pen. Code,¹ §§ 182, subd. (a)(1)

, 187 ; count 3), conspiracy to dissuade a witness ( §§ 136.1, 182, subd. (a)(1) ; count 4), and furnishing a controlled substance ( Health & Saf. Code, § 11379, subd. (a) ; count 5). The jury also convicted Hernandez of assault with a deadly weapon (§ 245, subd. (a)(1); count 1) and assault by means likely to produce great bodily injury (§ 245, subd. (a)(4); count 2). As to counts 1 and 2, the jury found true Hernandez personally inflicted great bodily injury within the meaning of section 12022.7, subdivision (a). In addition, the jury found true allegations that Hernandez committed counts 1 through 3 and Kopp committed count 3 for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b).

In a bifurcated proceeding, Hernandez admitted, and the trial court found true, he was previously convicted of a violent and serious felony within the meaning of sections 667.5, subdivisions (a)(1), 668, and 1192.7, subdivision (c) and a prison prior within the meaning of section 667.5, subdivision (b).

The court ultimately sentenced Hernandez to prison for 81 years to life.² The court sentenced Kopp to prison for four years plus 25 years to life.

Hernandez appeals, contending: (1) as a matter of law, he cannot be convicted under both section 245, subdivision (a)(1) and subdivision (a)(4); (2) the trial court committed prejudicial error in responding to the jury's question about the definition of a deadly weapon; (3) there was insufficient evidence to prove the gang enhancement as to count 3; (4) there was insufficient evidence to convict Hernandez of conspiracy to commit murder; and (5) the trial court prejudicially erred when it ordered Hernandez to be restrained at trial.

Kopp appeals, alleging the trial court prejudicially erred by failing to sua sponte instruct the jury to determine whether there were one or two conspiracies. Hernandez joins this argument.

Finally, Appellants claim various sentencing errors as well as errors in their respective abstracts of judgment. Specifically, Kopp argues that the court should have stayed her sentence under count 5.

We agree with Appellants that the trial court erred in failing to sua sponte instruct the jury to determine whether there existed one or two conspiracies. As such, we reverse Appellants' convictions under count 4 and vacate their respective sentences. We reject Hernandez's other substantive arguments in his opening brief as well as Kopp's argument that section 654 mandated the trial court to stay her sentence under count 5.

While this case was pending, Hernandez filed a motion for leave to file a supplemental brief. We granted the motion, and Hernandez makes two arguments in his supplemental brief. First, he asserts that Senate Bill No. 1393 amended sections 667, subdivision (a) and 1385 to allow the trial court discretion to strike an enhancement under section 667, subdivision (a). Hernandez maintains, and the People agree, this matter must be remanded to allow the superior court to resentence Hernandez consistent with this change in the law. Because we are vacating Hernandez's sentence as a result of reversing his conviction under count 4, the trial court may exercise its discretion under Senate Bill No. 1393 during resentencing.

Second, Hernandez argues, under People v. Dueñas (2019) 30 Cal.App.5th 1157, 242 Cal.Rptr.3d 268 ( Dueñas ) that we must remand this matter back to the superior court to allow the court to determine his ability to pay any assessments and fines before imposing them. Kopp has joined this issue. In their supplemental brief, the People agree with Appellants that this matter should be remanded to the superior court for an ability to pay hearing as to certain assessments. However, the People contend that the punitive fines levied against Appellants are not subject to the ability to pay hearing set forth in Dueñas but, instead, should be analyzed under the excessive fines clause of the Eighth Amendment. We agree with the People's suggested approach. Thus, on remand, we will order the court to hold an ability to pay hearing for both Appellants consistent with the dictates of this opinion. Additionally, the court can consider Appellants' argument that the punitive fines violate the excessive fines clause, if that issue is raised.

In summary, we reverse Appellants' respective convictions under count 4 and vacate their sentences. The matter will be remanded for resentencing consistent with this opinion. After resentencing Appellants, the trial court is to amend the abstracts of judgment accordingly. In all other respects, the judgments are affirmed.

FACTUAL BACKGROUND

Prosecution

On December 22, 2013, U.P., an affiliate with the Mexican Mafia and a local gang in Fallbrook called the Varrio Fallbrook Locos, met A.C. in a motel in Fallbrook to enlist her to help sell methamphetamine. In the motel hallway, U.P. met Hernandez, a leader of the Varrio Fallbrook Locos gang and the Mexican Mafia. Hernandez's gang moniker is "Capone." He only had been recently released from prison. Hernandez introduced U.P. to Kopp, who Hernandez described as a secretary.³ U.P. and Hernandez discussed the possibility of selling methamphetamine with U.P. being Hernandez's right-hand man.

The two men returned to U.P.'s and A.C.'s room. Hernandez told A.C. that she owed money to the Mexican Mafia, and he had a "green light" to collect her debt, which was code for approval to kill or assault A.C. A.C. denied owing any debt. Hernandez followed A.C. out of the room to the hallway, called out to another female gang affiliate named K.D., and told her to get A.C.

In the hallway, K.D. and Hernandez cut A.C. at different times and with different knives. A.C. bled profusely from the head and had several cuts to her head and face. Hernandez punched her in the head multiple times and kicked her in the face. After being attacked, the next thing A.C. remembered was getting up and knocking on U.P.'s door.

U.P. called 911 and reported that Capone from Fallbrook had a "hit" on A.C. because she supposedly owed money. He claimed Hernandez had stabbed A.C. Both U.P. and A.C. thought A.C. was dying. K.D. and Hernandez left the scene. A.C. went to the hospital, and CT scans

revealed multiple facial and nasal fractures.

Later that night, officers conducted a traffic stop of Kopp near the motel, and she admitted staying in a room in the motel that night and claimed "hearing" an altercation in the hallway between a bald, white male and a white female. U.P. later identified Hernandez and K.D. as the two assailants, and A.C. identified Hernandez.

K.D. was affiliated with Varrio Fallbrook Locos. Officers searched K.D.'s residence, found gang-related indicia, and arrested her for assaulting A.C.⁴

On December 30, 2013, Appellants met with E.P., who was the member of a different gang and previously a secretary for the Mexican Mafia. Appellants did not know that E.P. was an informant and wore a wire.⁵ Hernandez described the assault to E.P., saying he told his "homegirl" to "blast" A.C. and he "kicked her in the face, boom" and he had blood on his shoe.

After the meeting, Hernandez was arrested for assaulting A.C. Kopp was present and her phone was seized by law enforcement but she remotely erased it. She called E.P. with another phone to notify him that Hernandez had been arrested and that her contact list was potentially compromised. Kopp, from that point forward, served as an intermediary between Hernandez and E.P. Appellants talked on the phone and met in person several times over the following weeks.

Initially, Appellants told E.P. to "talk to" both A.C. and U.P. Hernandez asked Kopp to reach out to U.P. and figure out how they could "resolve this." Kopp had difficulty contacting U.P. Hernandez had Kopp contact other local gang members to find U.P.

In gang nomenclature, "talk" could mean several things, so E.P. asked Kopp what it was that she and Hernandez wanted done with A.C. and U.P. Kopp indicated she would get direction from Hernandez. For several weeks, E.P. followed up to get clarification from Kopp about what Hernandez wanted him to do to A.C. and U.P. but received no response. E.P. floated the options of having them assaulted, talked to, killed, or left alone. E.P. told Kopp he could hire a hit man if they wanted either witness killed. Kopp said she would confer with Hernandez.

On February 9, 2014, during a jail visit, Hernandez told Kopp in coded language that U.P. should be killed but A.C. should only be dissuaded from testifying. Specifically, Hernandez said, "it's official. The dude? (UI) And the other one? Talk. Very simple."

The next day, Kopp texted E.P. the information: (1) A.C.'s debts would be forgiven if she agreed not to testify, and (2) U.P. should be killed:

"It's Christi. Okay. I saw Caps yesterday and this is what needs to be done. As for [A.C.], she needs to be talked to and told the tios^{[6 ]} have her name, now she needs to just remain silent, walk away from this case. The tios know all her debts and will wash them clean, but she has to shut up and Capone hopefully comes home. [¶] As for [U.P.], tios said done dada. He is off the case in cases,^{[7 ]} to permanently reside—resign

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