Super. Ct. No. SWF008909 APPEALS from judgments of the Superior Court of Riverside County, Albert J. Wojcik, Judge.
The opinion of the court was delivered by: O'rourke, J.
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Affirmed in part, reversed in part, modified and remanded with directions.
A jury convicted defendant Dino Allen Moreno and co-defendant Shaundeen Boniface with willful, deliberate and premeditated attempted murder (Pen. Code,*fn1 §§ 664, 187, subd. (a); count 1), assault with a semiautomatic firearm (§ 245, subd. (b); count 2), unlawful possession of weapons by a felon (§ 12021, subd. (a)(1); count 3), unlawful possession of an assault weapon (§ 12280, subd. (b); count 4), unlawful possession of ammunition by a felon (§ 12316, subd. (b)(1); count 5), and conspiracy to obstruct justice (§ 182, subd. (a)(5); count 6). It found true allegations that during the commission of the attempted murder and the assault of counts 1 and 2, Moreno and Boniface personally discharged and used a firearm within the meaning of sections 12022.53, subdivision (c) and 12022.5, subdivision (a). Moreno waived his right to jury trial and the trial court found true allegations that he was on bail when he committed the offenses (§ 12022.1) and that he had two prison priors, two serious felony priors, and two strike prior convictions (§§ 677, subds. (a), (c), (e)(2)(A), 667.5, subd. (b), 1170.12, subd. (c)(2)(A)).
The court sentenced Moreno to a total term of 109 years to life, consisting of an indeterminate term of 27 years to life plus 20 years for the gun use enhancement on count 1, 10 years for the serious felony prior convictions, two years for the on-bail enhancement, and consecutive sentences of 25 years to life each for counts 4 and 6. It imposed and stayed sentences for counts 2, 3 and 5 and stayed the section 667.5, subdivision (b) enhancements. It sentenced Boniface to a total term of 28 years and four months, consisting of an indeterminate term of seven years to life plus a consecutive 20 years for the firearm enhancement for count 1, and consecutive eight month terms for counts 4 and 6, resulting in a determinate term on those counts of 21 years and four months. Under section 654, the court stayed Boniface's sentences for counts 2, 3 and 5.
On appeal, Moreno contends: (1) there is insufficient evidence to show he intended to obstruct justice and thus his conviction for conspiracy violates the due process clause of the Fourteenth Amendment; (2) admission of his inadmissible statements to a deputy violated his Fifth Amendment privilege against self-incrimination and right to counsel; (3) the court erred in sentencing him on the attempted murder conviction; and (4) the court should have stayed the sentence imposed for the on-bail enhancement. Boniface contends: (1) her attempted murder conviction must be reversed for instructional error on the natural and probable consequences doctrine of conspirator liability; (2) the trial court should have stayed under section 654 her sentence for the count 6 conspiracy to obstruct justice; and (3) this court should correct a clerical error in her sentencing minute order and abstract of judgment. Moreno and Boniface each state they join the other's arguments. With the exception of Boniface's section 654 issue, the People concede the sentencing issues.
We agree the defendants' count 6 conspiracy convictions must be reversed for insufficient evidence. As to Moreno, we further hold the proper sentence on his premeditated attempted murder conviction was 25 years to life, and order correction of his sentencing order and abstract of judgment. As to his on-bail enhancement, the court must determine whether the sentence should be stayed pending disposition of the primary offense for which the enhancement was imposed. As to Boniface, we need not reach her section 654 argument having reversed her conspiracy conviction. We order correction of her sentencing order and the abstract of judgment to strike references to section 667.61. Otherwise, we affirm the judgments.
FACTUAL AND PROCEDURAL BACKGROUND
In August 2004, bail fugitive recovery agent Steve Watson received information that Moreno, a person he had been hired to find, was at a mobile home located on the Soboba Indian Reservation. He was also informed that Moreno might be armed. On August 25, 2004, Watson took his stepson Fernando Hernandez and two other assistants, Miguel Avila and Anthony Ellis, to the reservation. The men were armed with various lethal and nonlethal weapons. Watson brought a color booking photograph of Moreno.
Watson approached the door of the residence and knocked, shouting, "B.E.A.!"*fn2 At the same time, Hernandez looked in a front window and saw Moreno and his girlfriend, Boniface, sitting on the couch with a white bullet proof vest and a chrome revolver within Moreno's reach. Hernandez moved backwards and called out a warning to Watson, who was demanding the occupants open the door, and within seconds Hernandez heard rapid gunshots and saw Avila come under fire. Hernandez himself was receiving gunfire from "multiple areas" from two distinct directions and in different calibers. Seconds later, Hernandez saw Boniface exit the home with a shotgun and move towards Watson, where he lost sight of her. He yelled out to Watson that she was coming and then heard a shotgun blast.
According to Watson, Boniface came to the door and told him Moreno was not there. Watson stepped past the threshold and, while Boniface told him to leave her property, he saw Moreno, who denied he was the person in Watson's photograph. Moreno kicked at the door, which caused Watson to step outside back onto the porch. The door slammed shut, and within seconds bullets began coming through the house walls. Watson ran for cover behind a blue van on the property. He saw Hernandez run behind a wood pile and Avila taking fire as well. At some point Watson heard Hernandez warn him about Boniface, and saw her walk fast toward him with a weapon "at the ready," cursing. He fired a beanbag into her stomach with his shotgun.*fn3 Ellis handcuffed her and took her into custody. Watson was still hearing shots fired from the property coming from his rear. He called police, and at some point officers arrived at the scene. Only Boniface was taken into custody.
Responding officers recovered from the mobile home seven guns including loaded and unloaded rifles and handguns, as well as expended shell casings, bags and boxes of ammunition, bullets and a bulletproof vest. The walls, doors and other areas of the residence had bullet holes from shots fired from its interior. Outside, officers observed bullet holes in the fence surrounding the residence, bullet damage to a van parked in the residence's carport, live bullets, and more expended shell casings from a shotgun and other guns. Some of the firearms found inside the residence were functional assault weapons.
Several weeks later, Riverside County Deputy Sheriff Jason Sevieri responded to assist a domestic violence call at a motel where he contacted Moreno, who gave him a false name. The deputy suspected the information was not correct, and he took Moreno's picture and a thumbprint. After Moreno was released, the deputy returned to the station where he saw a wanted poster for Moreno indicating he was armed with a high-powered rifle and dangerous. He put out a broadcast, and police shortly thereafter detained Moreno and two other individuals. Deputy Sevieri testified he arrived at the scene and transported Moreno to the jail, explaining that during their interaction, Moreno told him during their "back and forth" talk that bail agents had come to his residence, resulting in an altercation involving his girlfriend or wife in which he had acted in self defense. He also asked Moreno where his rifle was located and Moreno essentially told him he had gotten rid of it a long time ago.
A. Sufficiency of Evidence of Conspiracy
Moreno contends there is insufficient evidence he conspired with Boniface to obstruct justice or the due administration of the law, which were the overt acts alleged and presented to the jury in support of the conspiracy charge. He maintains it is legally impossible to engage in such a conspiracy by refusing to submit to a "purely private 'arrest' " by a bail fugitive recovery person who is assertedly a "private actor . . . acting for a private purpose," namely, to enforce a private contractual arrangement with the bail bondsman. He argues a conviction for conspiracy to obstruct justice ...