People v. Lopez

• Decision Date: 12 March 2020
• Docket Number: F076295
• Citation: 46 Cal.App.5th 505,260 Cal.Rptr.3d 128
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Pedro LOPEZ, Defendant and Appellant.

46 Cal.App.5th 505

260 Cal.Rptr.3d 128

The PEOPLE, Plaintiff and Respondent,

v.Pedro LOPEZ, Defendant and Appellant.

F076295

Court of Appeal, Fifth District, California.

Filed March 12, 2020

Benjamin Owens, El Cerrito, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman, Julie A. Hokans, and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.

PEÑA, J.

Pedro Lopez (defendant) was one of several Norteño gang members found guilty of conspiring to commit two home invasion robberies. Law enforcement agencies were already conducting a wiretapping operation when the conspiracy began to develop. As a result, the perpetrators were apprehended while driving to the targeted homes and were thwarted from committing the intended crimes. Defendant appeals from a judgment of conviction on counts of unlawful possession of a firearm and ammunition, attempted robbery, conspiracy to commit robbery, and a violation of the gang conspiracy statute, Penal Code section 182.5 (all further statutory references are to this code).

Defendant's claims allege insufficient evidence, instructional error, and sentencing error. He presents meritorious arguments with regard to a duplicative conspiracy charge and the section 182.5 conviction, although the latter count need only be modified to conform to the jury's findings. On the topic of sentencing, we hold a conspiracy conviction under section 182 may be subject to the alternate penalty provision of section 186.22, subdivision (b)(4)(B), which imposes a prison term of 15 years to life for certain gang-related crimes. We affirm in part, reverse in part, and remand the matter for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

The People's evidence showed, and defendant does not dispute, that the Norteños are a criminal street gang with members located throughout the Central Valley of California. Defendant was affiliated with a Norteño "subset" in Fresno County called Varrio East Side Reedley. Gang members from other subsets or "cliques" also participated in the underlying events, and there are no issues regarding the perpetrators' common ties to an overarching criminal enterprise.

In 2015, multiple law enforcement agencies conducted a joint investigation into the activities of Norteño gang members in Tulare County. Operation Red Sol involved the wiretapping of phones used by certain high-ranking members, including Emanuel Avalos, Rigoberto Benavidez, and Pedro Sanchez. Sanchez held the position of "regiment commander" and was considered "the boss of Tulare County." Avalos lived in Lindsay and held the subordinate position of "south county leader." Investigators believed Benavidez was in the process of "taking over Madera County," which suggested he and Sanchez were similarly situated within the gang's organizational hierarchy.

On August 24, 2015, law enforcement agents listened as Sanchez, Benavidez, and Avalos began recruiting people for a "job" in Visalia. Sanchez communicated with defendant both telephonically and via text messaging, and defendant agreed to meet up with the "workers" that evening. In a separate message exchanged between Sanchez and Benavidez, Sanchez remarked, "This is a good lick and great opportunity." The agents understood the word "lick" to be a slang term for robbery.

In addition to monitoring the electronic communications, agents conducted visual surveillance outside of Avalos's home in Lindsay and Benavidez's apartment in Visalia. At approximately 4:00 p.m., Sanchez and Avalos met at Avalos's residence with a gang member named Luis Corona and several unidentified Hispanic males. Corona subsequently departed in a white Nissan Altima.

Over the next few hours, the involved parties alluded to a plan for the robbers to impersonate agents of the Bureau of Alcohol, Tobacco, and Firearms (ATF). Conversations between Sanchez and Avalos specified that uniforms would be provided and everyone would be armed with guns. Benavidez worked on finding a suitable place for the men to convene before and after the robberies. Earlier in the day, he had asked the central county leader, Val Ornelas, for assistance in locating a safe house near Pinkham Street, "anywhere from Lovers Lane to Ben Maddox [Way] and from Noble [Avenue] to Tulare [Avenue]."

Shortly after 7:00 p.m., Benavidez drove to the 1100 block of Pinkham Street and met up with four people in a white Nissan Altima, which had just driven there from Avalos's residence. Avalos's brother, Cervando, was among the group of people in the white car. Both vehicles then drove to Benavidez's apartment complex on South Encina Street, and Benavidez called Sanchez to tell him the designated meeting place could not be used and everyone should meet at his apartment. Sanchez sent defendant a message informing him of the change, and defendant proceeded to contact Benavidez for directions. At approximately 7:35 p.m., defendant and a group of unidentified passengers arrived at Benavidez's apartment in a silver BMW.

At 7:47 p.m., Cervando Avalos began making a series of calls to his brother and Sanchez to complain about defendant's crew being unprepared. There were no ATF uniforms and some people did not have ammunition for their firearms. They were also in need of a second vehicle. Cervando said defendant's BMW had "dealer plates" and other distinctive features that made it "too easy to spot." When apprised of the situation, Sanchez authorized a 24-hour postponement. While Cervando was talking to Sanchez, defendant's group left to obtain bullets and returned a few minutes later.

During a subsequent phone call between the Avalos brothers, Emanuel asked to speak with whoever was "in charge there." Defendant came on the line and provided a status report, claiming they were "stocked up" with weapons and had two bulletproof vests. Emanuel asked, "Is there anything on there that says ATF?" Defendant said no and described the attire as "SWAT gear."

Agents conducting aerial surveillance observed defendant's BMW leave the apartment complex again and drive to the vicinity of Pinkham Street and Noble Avenue. The car drove slowly through a neighborhood before returning to Benavidez's apartment at approximately 8:29 p.m. About 30 minutes later, Benavidez sent the following text message to Sanchez: " ‘The homie went by the layout. I think we can handle it. The little homie just needs a few more [people].’ " Sanchez replied that he had a crew " ‘ready to go’ " and would " ‘be on it tomorrow.’ "

On August 25, 2015, defendant sent a text message to Sanchez: " ‘On track, brother, so you know[,] [I am] here in your area doing a bit more homework on the two job sites.’ " Sanchez replied, " ‘Okay. [We'll] give it another try tonight. I'll be with you shortly with some ideas.’ " Later that afternoon, Sanchez exchanged the following text messages with a person named Ricardo Reyes:

Sanchez: " ‘Need two to three people for two pads [houses]. They'll be part of a team tonight in [Visalia]. We've been doing homework for two days and tonight's a go. Are you [in]?’ "

Reyes: " ‘[Yes.] I got the squad already, too. What is it, though, and is it worth it?’ "

Sanchez: " ‘It's two pads ... square people. They got safes and guns and gold. Just bring bangers [guns].’ "

Reyes: " ‘Got 'em. What part of Visa[lia]?’ "

Sanchez: " ‘By Walmart off Ben Maddox.’ "

Reyes: " ‘How much people in each pad?’ "

Sanchez: " ‘[They're neighboring houses.] [One] has two people. One has one. Old lady and a husband and wife .... It's easy. Got to be quick.’ "

Reyes: " ‘Oh, we'll be fast. Who is gonna show us where it's at and [it's] a for sure one right?’ "

Sanchez: " ‘Yes, we have a safe spot close by where we will meet up.’ "

Due to problems acquiring one or more stolen vehicles, which apparently were preferred over cars that could be traced back to them, the participants decided to use the white Nissan Altima and Emanuel Avalos's white Ford Explorer. Emanuel planned to wait in his vehicle during the robberies and then use it to transport the loot. He and gang member Juan Hinojosa discussed tying up the victims to prevent them from seeing the cars. When Avalos expressed concern about waiting outside without a gun, Hinojosa reminded him, "It's an old guy and an old lady."

At approximately 7:12 p.m., Sanchez sent a text message to Reyes confirming that the " ‘thing’ " in Visalia was " ‘[i]n process.’ " At 7:24 p.m., defendant texted Sanchez to say he was " ‘[h]eading that way.’ " At approximately 7:53 p.m., after his BMW had pulled up to Benavidez's apartment complex, defendant sent another message: " ‘We here.’ " During the same general time frame, Avalos informed Sanchez that his group was almost in Visalia and were " ‘ready to move once at the house.’ "

At 8:03 p.m., the BMW moved to an adjacent street. The Nissan Altima and Ford Explorer arrived a few minutes later. At approximately 8:20 p.m., the BMW's occupants got into the other vehicles, which then began driving toward Noble Avenue.

At 8:28 p.m., Emanuel Avalos sent a message to Sanchez: " ‘We in motion. I'll update you soon.’ " About a minute later, police attempted to stop the Altima. The lights and siren of a marked patrol car were activated as the Altima was driving east on Noble Avenue, past the Ben Maddox Way intersection and heading toward the Walmart referenced in Sanchez's text messages. The Altima accelerated and a high-speed chase ensued, which continued until the car sustained damage driving over a median. The five occupants fled on foot but were apprehended; police arrested Luis Corona, Sergio Heredia, Juan Hinojosa, Roberto Saldana, Jr., and defendant.

A search of the Altima yielded a 22-caliber AR-style rifle and a pair of black latex gloves. A mask and second pair of gloves were found outside the vehicle, and four additional firearms were seized in...