Filed 7/22/15 P. v. Valle CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

DAVID VALLE,

 Defendant and Appellant.

2d Crim. No. B257673

(Super. Ct. No. PA075131-01)

(Los Angeles County)

This appeal concerns the attempted murder of a drug courier, Cesar 

Avila, who was kidnapped by rival gang members and shot. David Valle appeals his 

conviction by jury for conspiracy to commit murder (count 1; Pen. Code, §§ 182, subd. 

(a)(1)/187, subd. (a))1, attempted premeditated murder (count 3; §§ 664/187, subd. (a)), 

conspiracy to commit kidnapping for robbery (count 4; §§ 182, subd. (a)(1)/209, subd. 

(b)(1)), kidnapping to commit robbery (count 5; § 209, subd. (b)(1)), conspiracy to 

commit robbery (count 6; §§ 182, subd. (b)(1)/211), second degree robbery of an ATM 

machine (count 7; § 211), dissuading a witness by force or threat (count 9; § 136.1, 

subd. (c)(1)), possession of a firearm by a felon (count 10; § 29800, subd. (a)(1)), 

carjacking (count 14; § 215, subd. (a)), and aggravated kidnapping for ransom (count 

 

1

All statutory references are to the Penal Code.
2

15; § 209, subd. (a)). Except for count 10 (felon in possession of a firearm), the jury 

found that each count was committed for the benefit of or in association with a 

criminal street gang. (§ 186.22, subd. (b)(1)(C).) On counts 1, 3, 9, 14 and 15, the 

jury found that appellant personally and intentionally discharged a firearm within the 

meaning of section 12022.53, subdivisions (b)-(d), and that a principal personally used 

and intentionally discharged a firearm (§ 12022.53, subds. (b), (c), (e)(1)) causing 

great bodily injury to the victim (§ 12022.53, subds. (d), (e)(1)). In a bifurcated 

proceeding, appellant admitted that he was out on bail during the commission of the 

crimes (§ 12022.1) and suffered a prior prison term (§ 667.5, subd. (b)). 

At sentencing, the trial court imposed consecutive state prison terms of 

life without possibility of parole (count 15 - aggravated kidnapping for ransom), 25 

years to life (count 1 - conspiracy to commit murder), two life terms (count 9 -

dissuading a witness; count 14 - carjacking), and 102 years to life on the firearm 

enhancements and out-on-bail enhancement with respect to counts 15, 1, 9 and 14.2 A 

 

2

 On count 15 (aggravated kidnapping for ransom) the trial court sentenced 

appellant to life without possibility of parole, plus 25 years to life on the firearm 

enhancement (§ 12022.53, subd. (d)), plus two years on the out-on-bail enhancement 

(§ 12022.1). A 20-year term (§ 12022.53, subd. (c)), 10-year term (§ 12022.53, subd. 

(b)), 25-year-to-life term (§ 12022.53, subds. (d)-(e)(1)), 20-year term (§ 12022.53, 

subds. (c) & (e)), and 10-year term (§ 12022.53, subds. (b) & (e)(1)) was imposed on 

the other firearm enhancements and stayed pursuant to section 12022.53, subdivision 

(f). 

On count 1 (conspiracy to commit murder), the trial court imposed a 

consecutive term of 25 years to life with a minimum parole eligibility period of 15 

years on the gang enhancement, plus a 25-year-to-life term on the firearm use 

enhancement (§ 12022.53, subd. (d)). A 20-year term (§ 12022.53, subd. (c)), 10-

year term (§ 12022.53, subd. (b)), 25-year-to-life term (§ 12022.53, subds. (d)-(e)(1)), 

20-year term (§ 12022.53, subds. (c) & (e)), and a 10-year term (§ 12022.53, subds. (b) 

& (e)) was imposed on the other firearm enhancements and stayed pursuant to section 

12022.53, subdivision (f). 

On count 3 (attempted murder with premeditation and deliberation and a gang 

enhancement), the trial court imposed a concurrent term of 15 years to life, The trial 

court also imposed a 20-year term (§ 12022.53, subd. (c)), a 10-year term (§ 12022.53, 
3

 

subd. (b)), a 25-year-to-life term (§ 12022.53, subds. (d) &(e)), a 20-year term (§ 

12022.53, subds. (c) & (e)), and a 10-year term (§ 12022.53, subds. (b) & (e) on the 

other firearm enhancements which were stayed pursuant to section 12022.53, 

subdivision (f). The entire sentence on count 3 was stayed pursuant to section 654. 

On count 4 (conspiracy to commit kidnapping for robbery with a gang 

enhancement), the trial court imposed a term of life with a minimum eligible parole 

date of 15 years. The sentence was stayed pursuant to section 654.

On count 5 (kidnapping for robbery with a gang enhancement), the trial court 

imposed a term of life with a minimum eligible parole date of 15 years. The sentence 

was stayed pursuant to section 654. 

On count 6 (conspiracy to commit robbery), the trial court imposed the high 

term of five years, plus 10 years on the gang enhancement, plus 10 years on the 

firearm enhancement (§12022.53, subd. (b)). The sentence was stayed pursuant to 

section 654. 

On count 7 (robbery), appellant was sentenced to the high term of five years, 

plus 10 years on the gang enhancement, plus 10 years for personal use of a firearm (§ 

12022.53, subd. (b)). The trial court also imposed a 10 year term on another firearm 

use enhancement (§ 12022.53, subds. (b) & (e)) which was stayed pursuant to section 

12022.53, subdivision (f). The entire sentence on count 7 was stayed pursuant to 

section 654. 

On count 9 (dissuading a witness by force, threat or violence with a gang 

enhancement), the trial court imposed a consecutive life term with a minimum eligible 

parole date of seven years, plus 25 years to life on the firearm use enhancement (§ 

12022.53, subd. (d)) The trial court also imposed a 20-year term (§ 12022.53, subd. 

(c)), a 10-year term (§ 12022.53, subd. (b)), a 25-year-to-life term (§ 12022.53, subds. 

(d)-(e)), a 20-year term (§ 12022.53, subds. (c) & (e)), and a 10-year term (§ 12022.53, 

subds. (b) & (e)) on the other firearm enhancements which were stayed pursuant to 

section 12022.53, subdivision (f). 

On Count 10 (possession of a firearm by a felon), the trial court imposed a three 

year high term, plus a four year high term on the gang enhancement (§ 186.22, subd. 

(b)(1)(A)) for an aggregate concurrent sentence of seven years. The record indicates 

that appellant was never charged with or convicted of a gang enhancement on this 

count. We accordingly strike the four year gang enhancement on count 10 and 

modify the sentence to reflect a concurrent three year sentence. 

On count 14 (carjacking with a gang enhancement), the trial court imposed a 

life term with a minimum parole eligibility period of 15 years on the gang 

enhancement, plus a 25-year-to-life term on the firearm use enhancement (§ 12022.53, 

subd. (d)). On the other firearm enhancements, the trial court imposed a 20-year term 

(§ 12022.53, subd. (c)), a 10-year term (§ 12022.53, subd. (b)), a 25-year-to-life term 

(§ 12022.53, subds. (d)-(e)(1), a 20-year term (§ 12022.53, subds. (c) & (e)), and a 10-

year term (§ 12022.53, subds. (b) & (e)) which were stayed pursuant to section 
4

concurrent seven year sentence was imposed on count 10 (possession of firearm by 

felon) and the trial court stayed the sentences on the remaining counts (counts 3, 4, 5, 

6, and 7) pursuant to section 654. Appellant was ordered to pay fines and fees, 

including victim restitution and $5,000 direct restitution (§ 1202.4, subd. (b)). 

Appellant contends that the evidence does not support his conviction for 

aggravated kidnapping for ransom (count 15), that the trial court misinstructed on 

aggravated kidnapping for ransom, that conspiracy to commit robbery (count 6) is a 

lesser included offense of conspiracy to commit kidnapping for purposes of robbery 

(count 4), that his sentence of life without possibility of parole for aggravated 

kidnapping is cruel or unusual punishment, and that the abstract of judgment 

erroneously states that a $5,000 parole revocation fine (§ 1202.45) was imposed. 

We strike the convictions for conspiracy to commit kidnapping for 

purposes of robbery (count 4) and conspiracy to commit robbery (count 6), and strike 

the $5,000 parole restitution fine. On count 10 (possession of a firearm by a felon), we 

strike the four-year gang enhancement (§ 186.22, subd. (b)(1)(A)) which was not 

charged or found to be true, and reduce the sentence to three years state prison. On 

count 14 (carjacking), we reduce the life sentence to 15 years because the punishment 

for carjacking is a five year midterm (§ 215, subd. (b)) plus 10 years on the gang 

enhancement (§ 186.22, (b)(1)(C)). The judgment, as modified, is affirmed. 

Facts

On November 1, 2012, a drug dealer named "Carlos" told Avila to call 

Cruz Aguilar (aka Crook), a Clanton gang member, and pick up a $6,000 drug 

payment. Aguilar agreed to meet Avila at a San Fernando Valley park. 

When Avila arrived at the park, Aguilar, who was driving a white van,

appellant, and a masked man named Palmdale abducted Avila at gunpoint. Appellant 

 

12022.53, subdivision (f). The sentence on count 14 was ordered to run consecutive to 

the sentence on count 15. 
5

(aka Miner), a member of the North Hollywood Boys gang, and Palmdale took Avila's 

Honda and made Avila get in the passenger seat. Appellant took Avila's cell phone 

and wallet, broke the phone, and found an ATM bank card in the wallet. Palmdale 

told Avila that if everything went well, everyone would go home. 

An hour later, Palmdale parked Avila's car and ordered him to get in the 

white Tahoe driven by Aguilar. A woman exited the Tahoe and drove off in Avila's 

Honda. Aguilar asked if drugs were in the Honda. Avila insisted there was nothing in

the vehicle. 

Avila was driven to a shopping center and ordered to get in a Mitsubishi 

Galant with appellant, Palmdale and Carmen Garcia (aka Monster), a North 

Hollywood Boys gang member. Garcia stopped at an ATM machine but was unable to 

withdraw money with Avila's bank card. The foursome stopped at a doughnut store 

where Palmdale withdrew money from an ATM using Avila's bank card. Palmdale 

gave some of the money to appellant. 

Avila was next taken to a Good Nite Inn and held captive. While there, 

Appellant struck Avila in the face with a handgun and yelled, "Why didn't you tell us 

your [Honda] has GPS?" Appellant threatened to kill Avila if they got caught. 

At 2:00 a.m., Aguilar had Avila call the drug dealer, Carlos, and tell him 

to bring drugs. Carlos said that he could not do that and asked Avila for a call back 

number. Carlos suspected something was wrong and asked: "Do they got you -- like 

is something going on? Did they do something to you? Because, you know, we got 

Lorenzo over here." Avila was nervous and said he would call back. 

Appellant thought the situation was "hot" and forced Avila into the 

Honda which was parked outside. Avila noticed that his car radio was missing and 

that the door panel had been dismantled by someone looking for money or drugs. 

Appellant gave directions and Garcia drove. After they exited the freeway, appellant 

took Garcia's chrome revolver and ordered Avila out of the car. While pointing the 
6

revolver at Avila, appellant ordered him to walk toward some houses. Avila heard the 

revolver click and misfire. Avila feared for his life and told appellant not to worry 

because he was not going to call the police. Appellant laughed, drew a semi-automatic 

handgun from his waist band, and shot Avila five times in the abdomen, right arm, 

knee, and buttocks. 

Officers responded to a 911 call and found Avila bleeding on a house 

porch. Avila stated that he was kidnapped, taken to a motel, and shot by North 

Hollywood Boys gang members. Avila identified appellant, Garcia, and Aguilar in 

photo line ups. 

Thereafter, officers staked out a gang house and arrested appellant as he 

ran from the house. During the chase, appellant dropped a loaded .357 Ruger revolver. 

Inside the house, officers found a baseball cap with the word "Crooks" embroidered on 

it. The DNA on the cap matched appellant's profile. 

On March 15, 2013 the police arrested Aguilar standing next to a truck 

in a Clanton gang area. Inside the truck, officers found Avila's bank card and a loaded 

.40 caliber Glock handgun with an extended ammo magazine. 

Los Angeles Police Officer Matt Ethridge, a gang expert, testified that 

appellant and Garcia were members of the North Hollywood Boys gang, an organized 

street gang. Officer Ethridge stated that the gang's primary activities included 

vandalism, robbery, narcotics sales, weapons violations, assaults, and sometimes 

murder. The gang sold narcotics to make money and paid taxes to the Mexican Mafia. 

Office Ethridge stated that Aguilar was a member of the Clanton gang, 

an organized street gang whose primary activities included vandalism, street robberies, 

narcotics sales, assault related crimes, and murders. The Clanton gang was an ally of 

the North Hollywood Boys gang and affiliated with the Mexican Mafia. Officer 

Ethridge opined that the kidnapping, carjacking, attempted murder, conspiracy, and 
7

shooting were committed for the benefit of both gangs and enhanced the gangs' 

reputation for violence. 

Substantial Evidence: Kidnapping for Ransom 

Appellant argues that the conviction for kidnapping for ransom (count 

15) is not supported by substantial evidence because no ransom demand was made. 

Section 209, subdivision (a) "describes four different types of aggravated kidnapping: 

(1) for ransom; (2) for reward; (3) to commit extortion; and (4) to exact from another 

money or a valuable thing" from a third party. (People v. Ibrahim (1993) 19 

Cal.App.4th 1692, 1696.) 

Here the jury was instructed on the first and fourth types of aggravated 

kidnapping, i.e., kidnapping for ransom and kidnapping to extract money or a valuable 

thing from another person. (CALCRIM 1202.) The evidence shows that appellant and 

his confederates kidnapped Avila, took his wallet, phone and car, and withdrew money 

from his bank account. They also threatened to send someone to Avila's house to find 

if he had drugs there. Pursuant to the kidnap statute, the ransom demand may be made 

on the primary kidnap victim as was the case here. (People v. Kozlowski (2002) 96 

Cal.App.4th 853, 870-871].) 

Appellant was also tried on the theory that Avila was kidnapped to exact 

narcotics from Carlos. Appellant and his co-conspirators held Avila captive and had 

him call Carlos. The demand for narcotics supported the theory that Avila was 

kidnapped to exact a valuable thing (narcotics) from another person. This type of 

kidnapping is a two-victim crime and involves a primary kidnap victim (Avila) and a 

secondary victim (Carlos) who is subject to a ransom or extortion demand. (See 

People v. Eid (2010) 187 Cal.pp.4th 859, 868.) 

Appellant claims that the phone call to Carlos was to "buy" drugs and 

that no ransom demand was made because Avila was told not to say something stupid. 

Appellant is asking us to reweigh the evidence. That we cannot do. (People v. Bolin 
8

(1998) 18 Cal.4th 297, 331-333.) Carlos was told to bring drugs, suspected that 

something was wrong, and asked Avila "Did they do something to you?" 

The jury reasonably inferred that the phone call was to exact narcotics in 

exchange for Avila's safety. Carlos refused to produce drugs and told Avila to let 

them know that he had Lorenzo. The evidence further shows that appellant and his coconspirators dismantled the Honda interior based on the belief that drugs or money 

(presumably Carlos's drugs or money) was hidden in the door panels. On review, we 

"presume the existence of every fact the trier [of fact] could reasonably deduce from 

the evidence in support of the judgment. . . . The test is whether substantial evidence 

supports the decision, not whether the evidence proves guilt beyond a reasonable 

doubt. [Citations.]" (People v. Mincey (1992) 2 Cal.4th 408, 432.) 

Substantial evidence supports the finding that Avila was kidnapped for 

purposes of making a ransom demand and to exact something of value, i.e., drugs or 

money from Carlos. All forms of aggravated kidnapping share the single primary 

element of deprivation of a person's liberty in order to extract a financial gain. (People 

v. Ordonez (1991) 226 Cal.App.3d 1207, 1227, fn. 12. ) After Carlos refused to 

comply with the ransom demand, appellant drove Avila to a residential area and shot 

him. Where the evidence shows a discrete crime "but leaves room for disagreement as 

to exactly how that crime was committed or what the defendant's precise role was, the 

jury need not unanimously agree on the basis, or as the cases often put it, the 'theory' 

whereby the defendant is guilty. [Citation.]" (People v. Russo (2001) 25 Cal.4th 1124, 

1132.) Due process was served by the requirement that the jury render a unanimous 

verdict on aggravated kidnapping, regardless of whether it unanimously agreed on the 

alternate theories underlying the verdict. (People v. McPeters (1992) 2 Cal.4th 1148, 

1185; People v. Brisco (2001) 92 Cal.App.4th 568, 591-592.) 
9

Instructional Error - Kidnapping for Ransom

Appellant argues that the jury was misinstructed on kidnapping to exact 

money or something of value from another person. Section 209, subdivision (a) is 

phrased in the disjunctive and encompasses kidnapping for ransom, reward, to commit 

extortion, or to exact from another person money or a valuable thing. (People v. 

Ibrahim, supra, 19 Cal.App.4th at p. 1696.) 

The jury was instructed that the prosecution had to prove that: "(1) The 

defendant kidnapped another person; [¶] (2) The defendant held or detained the other 

person; [¶] (3) The defendant did so for ransom or to get money or something 

valuable; [¶] AND [¶] (4) the other person did not consent to being kidnapped." 

Appellant complains that CALCRIM 1202 omits the phrase "from another person" 

where the kidnapper tries to exact money or a valuable thing from a secondary victim. 

Appellant, however, did not object. If appellant believed the instruction required 

elaboration or clarification, he was required to object or request a clarifying 

instruction. (People v. Whalen (2013) 56 Cal.4th 1, 81-82.) "[A] defendant is not 

entitled to remain mute at trial and scream foul on appeal for the court's failure to 

expand, modify, and refine standardized jury instructions." (People v. Daya (1994) 29 

Cal.App.4th 697, 714.0 

Appellant argues, for the first time on appeal, that the third element of 

the instruction should have paraphrased section 209, subdivision (a) to say that the 

prosecution must prove that the defendant kidnapped another person "for ransom or to 

get from another person money or something valuable." Based on appellant's 

construction of the law, the trial court had a sua sponte duty to modify CALCRIM 

1202 to read that the prosecution had to prove that appellant kidnapped "another 

person" (the primary victim), and held or detained "the other person" (i.e., the primary 

victim), and did so "for ransom or to get from another person money or something 

valuable." A reasonable juror would ask, "Who is 'the other person' and who is 
10

'another person'?" Appellant cites no authority that CALJIC 1202 is a misstatement of 

the law or that due process requires that CALJIC 1202 be modified to render it 

misleading, ambiguous, confusing, or unintelligible. 

"When considering a claim of instructional error, we view the challenged 

instruction in the context of the instructions as a whole and the trial record to 

determine whether there is a reasonable likelihood the jury applied the instruction in 

an impermissible manner. [Citation.]" (People v. Houston (2012) 54 Cal.4th 1186, 

1229.) The prosecution, in final argument, told the jury that appellant "held or 

detained Cesar Avila and did so for ransom or to get money or something valuable. 

[¶] So here, remember, they have Mr. Avila call Carlos. . . . [¶] . . . . . . [¶] They are 

trying to get additional narcotics brought over. [¶] That is something of value." 

Based on the instructions, counsel's argument, and the evidence 

presented, the jury reasonably understood that in order to convict for aggravated 

kidnapping, the prosecution had to prove that Avila was kidnapped for ransom or to 

exact something of value from Carlos. Assuming, arguendo, that the CALCRIM 1202 

misstated an element of the offense by not identifying Carlos as the secondary victim, 

the error was harmless beyond a reasonable doubt. (Neder v. United States (1999) 

527 U.S. 1, 15 [144 L.Ed. 2d 35, 51]; People v. Flood (1998) 18 Cal.4th 470, 502-

503.) It is uncontroverted that Avila was ordered to call Carlos to obtain narcotics 

after appellant and his confederates took Avila's cell phone, wallet, bank account 

money, and dismantled the Honda door panels. The demand for more drugs was 

directed to Carlos. Avila understood the call to be a ransom demand as did Carlos 

who warned appellant and his confederates that he had Lorenzo. It is not reasonably 

probable that appellant would have received a more favorable verdict had a modified 

CALJIC 1202 instruction been given. (People v. Breverman (1998) 19 Cal.4th 142, 

165.) 
11

Single Conspiracy - Multiple Objects

Counsel was asked to submit letter briefs on whether appellant can be 

convicted of only one conspiracy even though he was found guilty of conspiracy to 

commit murder (count 1), conspiracy to commit kidnapping for robbery (count 4), and 

conspiracy to commit robbery (count 6). It is well settled a single agreement to 

commit multiple crimes constitutes but one conspiracy. (United States v. Broce (1989) 

488 U.S. 563, 570-571 [102 L.Ed.2d 927, 936-937]; People v. Johnson (2013) 57 

Cal.4th 250, 266.) "'One agreement gives rise to only a single offense, despite any 

multiplicity of objects.'" (People v. Lopez (1994) 21 Cal.App.4th 1551, 1557.) 

The same principle applies here. Although appellant conspired to 

murder, rob, and kidnap the victim for purposes of robbery, only one count of 

conspiracy can be sustained, i.e., count 1 for conspiracy to commit murder. (Id., at pp. 

1558-1559.) "If the felony is conspiracy to commit two or more felonies which have 

different punishments and the commission of those felonies constitute but one offense 

of conspiracy, the penalty shall be that prescribed for the felony which has the greater 

punishment." (§ 182, subd. (a).) The trial court sentenced appellant to 25 years to life 

on count 1 for conspiracy to commit murder and stayed the sentences on sentences on 

count 4 (conspiracy to commit kidnapping for robbery) and count 6 (conspiracy to 

commit murder). The convictions of counts 4 and 6 are stricken. 

Cruel or Unusual Punishment

Appellant argues that his sentence of life without possibility of parole 

(LWOP) for aggravated kidnapping is cruel or unusual punishment in violation of our 

state constitution. (Cal. Const., art. I, § 17.) Appellant forfeited the alleged error by 

not objecting and is precluded from raising it for the first time on appeal. (See People 

v. Norman (2003) 109 Cal.App.4th 221, 229-230; People v. Kelley (1997) 52 

Cal.App.4th 568, 583.)
12

On the merits, appellant makes no showing that the LWOP sentence is 

so disproportionate to the crime that it shocks the conscience and offends fundamental 

notions of human dignity. (In re Lynch (1972) 8 Cal.3d 410, 424.) To determine 

whether the sentence is disproportionate, the court examines: (1) the nature of the 

offense and the offender, (2) a comparison with the punishment imposed for more 

serious crimes in the same jurisdiction; and (3) a comparison with the punishment 

imposed for the same offense in different jurisdictions. (Id., at pp. 425-427.) 

Appellant argues that he was 19 years old, that he had a limited role in 

the kidnapping, and that he does not have a violent criminal record. Citing Graham v. 

Florida (2010) 560 U.S. 48 [176 L.Ed.2d 825], Miller v. Alabama (2012) 567 U.S. __ 

[183 L.Ed.2d 407], and People v. Caballero (2012) 55 Cal.4th 262, appellant asserts 

that the sentencing court must consider the defendant's mental and emotional 

development, the potential for rehabilitation, and the defendant's inability to appreciate 

the risks and consequences of committing an LWOP offense. None of these cases 

apply to offenders who, like appellant, are over the age of 18 and exhibit all the 

hallmarks of an adult. (See e.g., People v. Abundio (2013) 221 Cal.App.4th 1211, 

1217-1221 [rejecting cruel and unusual punishment claim by 18-year-old who stabbed 

victim during robbery]; People v. Argeta (2012) 210 Cal.App.4th 1478, 1482 

[rejecting argument that defendant's age (18+ years) rendered sentence cruel and/or 

unusual].) Appellant was a member of a violent street gang, had a prison prior, was on 

probation or parole, and out on bail when he committed the aggravated kidnap. The 

kidnapping involved planning and sophistication, primary and secondary target 

victims, and the use of firearms. Appellant kidnapped Avila at gunpoint, threatened to 

kill him, struck him with the handgun, told Garcia where to drive, and shot Avila five 

times as he pled for his life. The violent nature of the kidnapping and cruel manner in 

which appellant carried it out supports the LWOP sentence. 
13

The argument that the penalty for aggravated kidnapping is grossly 

disproportionate to the penalty imposed in other states and to penalties imposed for 

more serious offenses in California has been uniformly rejected by our courts. (People 

v. Chacon (1995) 37 Cal.App.4th 52, 64; People v. Thompson (1994) 24 Cal.App.4th 

299, 307; People v. Castillo (1991) 233 Cal.App.3d 36, 66.) "Because it is the 

Legislature which determines [the] appropriate penalty for criminal offenses, 

[appellant] must overcome a 'considerable burden' in convincing us that his sentence 

was disproportionate to his level of culpability. [Citation.]" (People v. Weddle (1991) 

1 Cal.App.4th 1190, 1196-1197.) On its face and as applied, the sentence of life 

without possibility of parole is not cruel or unusual punishment under the California or 

federal Constitution. (Cal. Cons., art I, § 17; U.S. Const., 8th Amend.; People v. 

Chacon, supra, 37 Cal.App.4th at p. 64.)

Parole Restitution Fine

The abstract of judgment reflects that a $5,000 parole restitution fine was 

imposed. (§ 1202.45.) Appellant argues, and the Attorney General agrees, that the 

fine must be stricken because it was not imposed at the oral pronouncement of 

judgment. (See People v. Jones (2012) 54 Cal.4th 1, 89 [sentencing minute 

order/abstract of judgment must conform to oral pronouncement of judgment].) Such 

a fine is not permitted. Parole restitution fines may not be imposed where the 

defendant is sentenced to life without possibility of parole. (People v. Oganesyan 

(1999) 70 Cal.App.4th 1178, 1185-1186.)

Conclusion

 None of the purported errors, either singularly or cumulatively, 

prejudiced appellant's due process right to a fair trial. (People v. Jenkins (2002) 22 

Cal.4th 900, 1056.) There are, however, sentencing and clerical errors. On count 10 

(felon in possession of a firearm), the trial court imposed a four-year gang 

enhancement (§ 186.22, subd. (b)(1)(A)) which was not charged or found to be true. 
14

We accordingly reduce the sentence on count 10, from seven years to four years. On 

count 14 (carjacking), we reduce the life sentence to 15 years because the carjacking 

conviction requires a five year midterm (§ 215, subd. (b)) plus 10 years on the gang 

enhancement (§ 186.22, (b)(1)(C)). On count 4 (conspiracy to commit kidnapping for 

robbery) and count 6 (conspiracy to commit robbery), the trial court stayed the 

sentences but the convictions should have been stricken. A single agreement to 

commit several crimes constitutes one conspiracy. (People v. Johnson, supra, 57 

Cal.4th at p. 266.). 

The clerk of the superior court is directed to amend the sentencing 

minute order and abstract of judgment to: (1) strike the convictions on count 4 

(conspiracy to commit kidnapping for robbery) and count 6 (conspiracy to commit 

murder); (2) strike the $5,000 parole restitution fine; (3) strike the four-year gang 

enhancement (§ 186.22, subd. (b)(1)(A)) on count 10 to reflect a concurrent sentence 

of three years state prison; (4) correct the sentencing minute order and abstract of 

judgment (paragraph 6.b., page 1) with respect to count 14 (carjacking) to reflect a 

midterm sentence of five years (§ 215, subd. (a)) plus 10 years on the gang 

enhancement (§ 186.22, (b)(1)(C)); and (5) forward copies of the amended sentencing 

minute order and abstract of judgment to the Department of Corrections and 

Rehabilitation. As modified, the judgment is affirmed.

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P. J.

PERREN, J.
15

Hayden Zacky, Judge

Superior Court County of Los Angeles

______________________________

James Koester, under appointment by the Court of Appeal, for 

Defendant and Appellant. 

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

Attorney General, Lance E. Winters, Senior Assistant Attorney General, Paul M. 

Roadarmel, Jr. , Supervising Deputy Attorney General, Nima Razfar, Deputy Attorney 

General, for Plaintiff and Respondent.