P. v. Pacheco

Filed 5/30/07 P. v. Pacheco CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and Respondent,
v.
DAVID MICHAEL PACHECO,
ANTHONY VILLA, ADOLFO
VILLEGAS,
Defendants and Appellants.
2d Crim. No. B188797
(Super. Ct. No. GA059672-01, -02, -03)
(Los Angeles County)
David Michael Pacheco, Anthony Raymond Villa, and Adolfo Villegas, Jr.
appeal from the judgment entered following their conviction by a jury of the attempted
murder of Randall Shoemaker (count 1) and Darryl Yon (count 2) (Pen. Code, §§ 664,
187, subd. (a)); 1 kidnapping to commit robbery (count 3) (§ 209, subd. (b)(1)); second
degree robbery (count 4) (§§ 211, 212.5); carjacking (count 5) (§ 215, subd. (a)); and
discharging a firearm from a vehicle (count 6). (§ 12034, subd. (c).) The jury found
true allegations that the attempted murder of Yon was willful, deliberate, and
premeditated. The jury also found true allegations that all of the crimes had been
1 All statutory references are to the Penal Code unless otherwise stated.

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committed for the benefit of a criminal street gang. (§ 186.22, subd. (b).) In addition,
as to all of the crimes except the attempted murder of Yon by Pacheco, the jury found
true allegations that either the defendant or a principal had personally and intentionally
discharged a firearm, which had proximately caused great bodily injury. (§ 12022.53,
subd. (d) & (e)(1).). As to the attempted murder of Yon by Pacheco, the jury found
true an allegation that a principal had personally and intentionally discharged a
firearm. (§ 12022.53, subd. (c) & (e)(1).) The trial court imposed prison terms as
follows: Pacheco, 186 years to life; Villa, 142 years to life; and Villegas, 191 years to
life.
Villa and Villegas claim that the trial court erroneously admitted statements
made by Pacheco that implicated them. They argue that these statements were
inadmissible under the hearsay exception for declarations against interest (Evid. Code,
§ 1230). They also argue that the trial court abused its discretion in refusing to
exclude Pacheco's statements under Evidence Code section 352. In addition, all
appellants contend that the trial court made numerous sentencing errors.2 We reverse
the sentences and in all other respects affirm the judgment.
Factual and Procedural Background
On July 16, 2004, Randall Shoemaker asked a neighbor, Anthony, where he
could purchase marijuana. Another neighbor, Darryl Yon, approached them and said
he knew someone who would sell marijuana to Shoemaker. Yon used to a be member
of the Lomas criminal street gang. His gang moniker was "Droopy."
Shoemaker drove Yon to a house. They both got out of the car and approached
Villa, who introduced himself as "Crow." Villa was a Lomas gang member.
Shoemaker, Yon, and Villa entered Shoemaker's car, and Villa directed Shoemaker to
drive to a different, yellow house. A Jeep Cherokee followed them there.3 Three men
were inside the Jeep Cherokee. One of the occupants, Pacheco, was a Lomas gang
2 Pursuant to California Rules of Court, rule 8.200(a)(5), each appellant joins in
all arguments raised by his coappellants that may benefit him.
3 Shoemaker mistakenly identified the Jeep Cherokee as a Ford Expedition.

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member with the same moniker as Yon: "Droopy." Another occupant was a Lomas
gang member with the moniker of "Snoopy."
Upon arriving at the yellow house, Yon and Villa got out of Shoemaker's car
and started talking to the men in the Jeep Cherokee. Shoemaker remained in the
driver's seat of his car. The three men in the Jeep Cherokee exited the vehicle, and two
of them walked into the house. Later, some of the men who had been in the Jeep
Cherokee started walking toward Shoemaker. One of the men had a silver handgun.
Yon and Villa reentered Shoemaker's car and sat in the back seat. Villa was directly
behind Shoemaker.
Shoemaker saw Pacheco walking toward him while carrying a blue gun cover.
Pacheco pulled a rifle out from inside the cover. Shoemaker said to Yon, " 'I don't like
how this is looking. He has a gun. I feel like just getting out of here and running 'em
over . . . .' " Villa hit Shoemaker in the back of the head. Villa said, " 'Shut the fuck
up white boy. Don't worry about what he has' . . . ." Pacheco entered Shoemaker's car
through the front passenger door and seated himself next to Shoemaker. Pacheco
"shoved the rifle to [Shoemaker's] neck," and said, " 'Shut the fuck up white boy and
drive the car.' "
Shoemaker drove the car as directed. He was followed by three men in the Jeep
Cherokee, including Villegas. Villegas was a Lomas gang member with the moniker
of "Shaggy." Villegas had a silver handgun.
Shoemaker stopped his car in a dead-end street. The Jeep Cherokee pulled in
front of the car and also came to a stop. The men inside the Jeep Cherokee exited the
vehicle. Pacheco and Villa demanded Shoemaker's "money and everything [he] had."
Shoemaker replied that he did not have any money. Pacheco and Villa told
Shoemaker to " 'quit lying.' " Yon testified that Pacheco ordered Shoemaker to get out
of the car and to give the car to appellants. Shoemaker said: " 'No' and chaos broke
out."

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Pacheco, Villa, and the men from the Jeep Cherokee started hitting Shoemaker.
They pulled him out of the car and forced him down on his knees. Villa said, " 'Shoot
'em in the head. We need no witnesses.' " Shoemaker grabbed a silver handgun,
which discharged in front of his face. The bullet penetrated his hand. Shoemaker did
not see who was holding the silver handgun when it discharged, but it was the same
handgun he had earlier seen in the possession of Villegas. Shoemaker got up and
started running until he was shot in the neck. He "fell down flat on [his] face and . . .
couldn't move."
With the exception of Yon, the other persons got into the Jeep Cherokee. Yon
went over to Shoemaker to check on his condition. The Jeep Cherokee drove by Yon,
and the driver fired two shots at him. One of the bullets struck Yon in the shoulder
and shattered the bone in his upper arm.
A witness who lived nearby heard several shots fired. He saw a Jeep Cherokee
driving away. The Jeep Cherokee reversed course and returned to the scene. A person
got out of the Jeep Cherokee, entered Shoemaker's car, and drove it away.
Yon testified in court that he had not seen the person who had shot him.
However, at a photo lineup shortly after the incident, Yon identified Villegas as "the
driver of the Jeep Cherokee." Yon went on to state, "I believe he was the one that shot
me." Yon identified Pacheco as the person who had shot Shoemaker in the neck with
a rifle.
Shoemaker was rendered quadriplegic by the bullet wound to his neck.
Appellants took Shoemaker's car, money, cellular phone, and gold chain necklace.
The car was recovered in El Monte.
Discussion
I
Declaration Against Interest
Pacheco was arrested and placed in a jail cell with Gilbert Padilla, a fellow
gang member. On July 21, 2004, they had a conversation that was recorded. The tape

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and transcript of the conversation were received in evidence. Villa and Villegas claim
that the trial court erred in admitting portions of Pacheco's statements that implicated
them. They also contend that the trial court abused its discretion in refusing to exclude
the entire conversation under Evidence Code section 352.
Contents of the Conversation
During the recorded conversation, Pacheco stated as follows:
Droopy (Yon) and "some other vato" (Shoemaker), who was "a white boy,"
"came to the neighborhood." Pacheco and "Snoopy," who were in "a brand new Jeep
Cherokee," encountered "Crow" (Villa). Villa said: "[T]his fool's . . . got feria
[cash/money] on him . . . . He wants to buy some yesca [weed] [.] I say we just . . .
take his shit, right."
Villa told Pacheco to get into the front of Shoemaker's vehicle. Pacheco sat
next to Shoemaker, who was in the driver's seat, and pointed an M1 rifle at him. Villa
and Yon were seated behind them. Villa said to Shoemaker, " 'Where do you have the
money at fool?" Shoemaker replied, " 'I'm scared, man, what the fuck.' " Villa said, "
'Man, what the fuck you mean you're scared.' " " '[W]hat about when you said . . . that
you're gonna run . . . me and my homies over?' " Pacheco exclaimed, " 'What? . . .
You said you're gonna run me and my homies over?' " Shoemaker responded, " 'No.
No man . . . shit.' " Pachecho then "put the gun somewhere like . . . right here."
Pacheco told Shoemaker where to stop. Shoemaker pulled over and stopped as
directed. He then grabbed the barrel of Pacheco's rifle, and the rifle discharged.
Pacheco and Shoemaker were "wrestling with the . . . rifle," and Pacheco was "socking
him." Yon "got out [of] the car [and was] jumping around . . . ."
Snoopy came and "socked [Shoemaker] a couple times . . . ." Either Villa or
Snoopy fired two shots at Shoemaker. Shoemaker got out of the car and started to run
away. Pacheco said, " 'No, he's getting away.' " Pacheco shot at Shoemaker with his
rifle, and Shoemaker fell down. Pacheco said, "I hit that fool and that fool just fell,

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bam." When Pacheco fired the rifle, he did not think that he was going to hit
Shoemaker.
Pacheco and his accomplices got into the Jeep Cherokee. They noticed that
Yon was running away. A person whose moniker was either "Shaggy" (Villegas) or
"Shady" fired four times from the jeep at Yon.4
Pacheco and the others were about to drive away in the Jeep Cherokee when
they realized that they could not leave Shoemaker's car at the scene. Pacheco said,
"We can't leave that shit there." "I got my fingerprints in there. Crow has his
fingerprints there . . . ." Pacheco jumped out of the Jeep Cherokee, got into
Shoemaker's car, and drove it to El Monte. Pacheco and his accomplices poured gas
over Shoemaker's car with the intent of setting it on fire. The person referred to as
"Shaggy" or "Shady" gave some matches to Pacheco. Pacheco lit the matches and
threw them at the vehicle, but the matches went out before they hit the vehicle.
Everyone then left.
The Trial Court Did Not Err in Admitting the Conversation
As to Villa and Villegas, Pacheco's statements were admitted as declarations
against interest under Evidence Code section 1230 (hereafter section 1230), which
provides in relevant part: "Evidence of a statement by a declarant having sufficient
knowledge of the subject is not made inadmissible by the hearsay rule if the declarant
is unavailable as a witness and the statement, when made, . . . so far subjected him to
the risk of . . . criminal liability . . . that a reasonable man in his position would not
have made the statement unless he believed it to be true."
Our Supreme Court has "declared section 1230's exception to the hearsay rule
'inapplicable to evidence of any statement or portion of a statement not itself
specifically disserving to the interests of the declarant.' [Citations.]" (People v.
Duarte (2000) 24 Cal.4th 603, 612.) Thus, "only those portions of [Pacheco's]
4 The transcript of the conversation refers to this person as
"Shaggy/Shady/Shady" and "Shaggy/Shady"

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statements that were 'specifically disserving' [citation] to his penal interests were
admissible under section 1230." (Ibid.)
"[E]ven when a hearsay statement runs generally against the declarant's penal
interest . . . , the statement may, in light of circumstances, lack sufficient indicia of
trustworthiness to qualify for admission [under section 1230]. [Citations.]" (People v.
Duarte, supra, 24 Cal.4th at p. 614.) "There is no litmus test for the determination of
whether a statement is trustworthy and falls within the declaration against interest
exception. The trial court must look to the totality of the circumstances in which the
statement was made, whether the declarant spoke from personal knowledge, the
possible motivation of the declarant, what was actually said by the declarant and
anything else relevant to the inquiry. [Citations.] [¶] Clearly the least reliable
circumstance is one in which the declarant has been arrested and attempts to improve
his situation with the police by deflecting criminal responsibility onto others. 'Once
partners in crime recognize that the "jig is up," they tend to lose any identity of
interest and immediately become antagonists, rather than accomplices.' [Citation.]
However, the most reliable circumstance is one in which the conversation occurs
between friends in a noncoercive setting that fosters uninhibited disclosures.
[Citations.]" (People v. Greenberger (1997) 58 Cal.App.4th 298, 334-335.
Villa and Villegas contend that the trial court "erred in admitting Pacheco's
statements implicating [them] because [the statements] were not specifically
disserving to Pacheco and were unreliable." A similar contention was rejected under
similar circumstances in People v. Cervantes (2004) 118 Cal.App.4th 162. In
Cervantes three gang members were convicted of first degree murder and attempted
murder. Statements by one of the defendants, Morales, to a neighbor were admitted
against his codefendants pursuant to section 1230. Morales told the neighbor that he
and his codefendants had participated in the crimes. Morales admitted shooting one
victim. Morales said that both he and a codefendant had shot the second victim.

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The Cervantes court concluded that, although Morales attributed blame to his
codefendants, his statements were still specifically disserving to his penal interests
and sufficiently trustworthy to qualify for admission under section 1230. The court
noted that Morales "accepted for himself an active role in the crimes and described
how he had directed the activities of [one of the codefendants]." (People v. Cervantes,
supra, 118 Cal.App.4th at p. 175.) The court also noted that Morales's statements
implicating his codefendants were incriminating as to Morales because he was acting
in concert with them. (Id., at p. 176.) Moreover, the statements were made to a friend
in a noncoercive atmosphere shortly after the shootings.
Like Morales, Pacheco also accepted for himself an active role in the crimes.
Furthermore, Pacheco's statements implicating his fellow gang members were
incriminating as to him because he was acting in concert with them. Pacheco was not
" 'trying to fasten guilt' on others,' . . . while 'keeping his own skirts as clean as
possible' [citation] under the circumstances." (People v. Duarte, supra, 24 Cal.4th at
p. 616.) Pacheco admitted pointing an M1 rifle at Shoemaker while Shoemaker was
driving. He also admitted shooting Shoemaker with the rifle because he was
concerned that Shoemaker was " 'getting away.' " Pacheco did not say that a
codefendant had directed him to shoot Shoemaker. Thus, Pacheco's statements
implicating Villegas and Villa were specifically disserving to his penal interests
within the meaning of section 1230.
Pacheco's statements were particularly trustworthy because he was conversing
with a fellow gang member in a noncoercive setting that fostered uninhibited
disclosures. Moreover, Pacheco had personal knowledge of the events that he was
recounting. The events were still fresh in his memory, since the conversation
occurred only five days after the commission of the crimes.
Nevertheless, Villegas argues that the statements implicating him were
unreliable because it was not clear from the tape whether Pacheco had said "Shaggy,"
Villegas's moniker, or "Shady." But this alleged ambiguity did not affect the

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trustworthiness of Pacheco's statements. "Courts applying section 1230 to determine
the basic trustworthiness of a proffered declaration are . . . to 'consider all the
surrounding circumstances to determine if a reasonable person in [the declarant's]
position would have made the statements if they weren't true.' [Citation.]" (People v.
Duarte, supra, 24 Cal.4th at p. 618.) Irrespective of whether Pacheco said "Shaggy"
or "Shady," a reasonable person in Pacheco's position would not have made the
statements if they had not been true.
Whether Pacheco said "Shaggy" or "Shady" was a question for the trier of fact.
Villegas was free to argue this issue to the jury, and he did argue it. The jury
impliedly found that Pacheco had said "Shaggy."5
Villegas also argues that Pacheco's statements implicating him were unreliable
because Pacheco did not expressly state that Villegas had shot Yon. The portion of the
transcript in which Pacheco described the shooting of Yon reads as follows: "That
fool Droopy [Yon] starts running away . . . . So we're driving and shit and he's like –
they're like, 'Oh there's that bitch ass fool Darryl [Yon],' and Shaggy/Shady/Shady
pulls up to the side of him like (noise) lah, lah, lah. He goes, like four times.
(Laughing)" Pacheco said that "Shaggy/Shady/Shady" had used a "3" against Yon.
Pacheco did not describe what he meant by a "3," but, since Yon was shot, the only
reasonable inference is that Pacheco was referring to the firing of a gun by Villegas at
Yon. In any event, this issue concerns not the trustworthiness of Pacheco's statements
but the interpretation of those statements, which is also a question of fact for the jury.
5 The trial judge listened to the conversation and concluded that it was clear
Pacheco had said "Shaggy." However, because Villegas insisted that there was an
ambiguity, the judge edited the transcript so that the jury would have the option of
finding that Villegas had said "Shady." The trial judge stated, "We are going to give
transcripts to the jury and I think where it has 'Shaggy' I would write in the top and I
will tell the jury to do this, 'Shady'. . . . [T]hey can determine if it's one or the other. I
felt when I listened to it I heard the G's for Shaggy. I was quite clear it's 'Shaggy' but I
will have [the jury] write ['Shady'] in there so they know they have to listen carefully."
"[T[he defense translation seemed to say Shady but I think it's clear it's Shaggy."

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In Cervantes the court observed that "there is some disagreement as to whether
the trial court's ruling [admitting Morales's statements under section 1230] should be
reviewed for an abuse of discretion or de novo." (People v. Cervantes, supra, 118
Cal.App.4th at p. 174.) The Cervantes court applied de novo review. (Ibid.) We
need not resolve this issue. Under either standard of review, the trial court did not err
in admitting Pacheco's statements implicating Villa and Villegas under section 1230.
Villa and Villegas also contend that the trial court abused its discretion in
refusing to exclude the entire conversation between Pacheco and Padilla under
Evidence Code section 352 because the conversation "was substantially more
prejudicial than probative." Villegos alleges that the conversation "was extremely
prejudicial because Pacheco was laughing and ridiculing Shoemaker and Yon . . . .
The bragging, mocking tone of the entire statement makes Pacheco and, by
association, [Villegas] and Villa, seem very heartless and cruel."
" '[A]n appellate court applies the abuse of discretion standard of review to any
ruling by a trial court on the admissibility of evidence, including one that turns on the
relative probativeness and prejudice of the evidence in question [citations]. Evidence
is substantially more prejudicial than probative (see Evid.Code, § 352) if, broadly
stated, it poses an intolerable "risk to the fairness of the proceedings or the reliability
of the outcome" [Citation.]' [Citation.]" (People v. Jablonski (2006) 37 Cal.4th 774,
805.) Pacheco's statements to his fellow gang member were highly probative. The
trial court did not abuse its discretion in impliedly concluding that the statements did
not pose " 'an intolerable "risk to the fairness of the proceedings or the reliability of
the outcome." ' " (Ibid.)
II
As to Villegas, the Trial Court Erred in Imposing Enhancements
Under Both Sections 186.22 and 12022.53, Subdivisions (d) and (e)(1)
As to Villegas, on each of counts 1 (attempted murder of Shoemaker), 3
(kidnapping to commit robbery), and 5 (carjacking), the trial court imposed an

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enhancement of 25 years to life for discharging a firearm and proximately causing
great bodily injury. (§ 12022.53, subds. (d) & (e)(1).) If such an enhancement is
imposed, the trial court is not permitted to impose an additional enhancement for
participation in a criminal street gang (§ 186.22) unless the defendant personally
discharged a firearm. (§ 12022.53, subd. (e)(2).) On counts 1, 3, and 5, the jury did
not find true allegations that Villegas had personally discharged a firearm. Thus, as to
Villegas, the trial court did not have the authority to impose an additional enhancement
for participation in a criminal street gang on counts 1, 3, and 5.
However, on each of counts 1 and 3, the trial court imposed an enhancement of
10 years for participation in a criminal street gang. (§ 186.22, subd. (b)(1)(C).) Count
5 (carjacking) was punishable by imprisonment for three, five or nine years. (§ 215,
subd. (b).) But because of Villegas's participation in a criminal street gang, the trial
court imposed an enhanced sentence of 15 years to life pursuant to section 186.22,
subdivision (b)(4)(B).
Respondent concedes that the gang enhancements as to Villegas on counts 1, 3,
and 5 were erroneous. We accept this concession.
III
As to Pacheco, the Trial Court Imposed a Gang
Enhancement Under the Wrong Subdivision
As to Pacheco, on each of counts 1 (attempted murder of Shoemaker) and 3
(kidnapping to commit robbery), the trial court imposed an enhancement of 25 years to
life for personally discharging a firearm and proximately causing great bodily injury
(§ 12022.53, subd. (d) & (e)(1).) In addition, it imposed a 10-year enhancement for
participation in a criminal street gang. (§§ 186.22, subd. (b)(1)(C).) Respondent
concedes that the gang enhancements as to Pacheco on counts 1 and 3 were erroneous
because "the jury did not find that he personally used a firearm." We reject this

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concession because the verdict forms show that, on counts 1 and 3, the jury found true
the allegations that Pacheco had personally discharged a firearm.
Although a gang enhancement was properly imposed as to Pacheco on count 3,
it was imposed under the wrong subdivision - section186.22, subdivision (b)(1)(C) -
which provides for a 10-year enhancement. Because the underlying felony –
kidnapping to commit robbery – is punishable by life imprisonment with the
possibility of parole (§ 209, subd. (b)(1)), the trial court should have imposed a gang
enhancement pursuant to section 186.22, subdivision (b)(5), which provides: "[A]ny
person who violates this subdivision in the commission of a felony punishable by
imprisonment in the state prison for life, shall not be paroled until a minimum of 15
calendar years have been served." In People v. Lopez (2005) 34 Cal.4th 1002, 1004,
our Supreme Court noted: "Penal Code section 186.22, subdivision (b) establishes
alternative methods for punishing felons whose crimes were committed for the benefit
of a criminal street gang. Section 186.22, subdivision (b)(1)(C) . . . imposes a 10-year
enhancement when such a defendant commits a violent felony. Section
186.22(b)(1)(C) does not apply, however, where the violent felony is 'punishable by
imprisonment in the state prison for life.' (Pen.Code, § 186.22, subd. (b)(5).) Instead,
section 186.22, subdivision (b)(5) . . . applies and imposes a minimum term of 15
years before the defendant may be considered for parole."
IV
Substantial Evidence Supports the Finding that, in the Commission
Of the Attempted Murder of Yon, Villegas Personally Discharged a Firearm
As to count 2 (attempted murder of Yon), the jury found true an allegation that
Villegas had personally discharged a firearm and had proximately caused great bodily
injury to Yon. Villegas contends that the evidence is insufficient to support the true
finding. "In determining the sufficiency of the evidence, 'the court must review the
whole record in the light most favorable to the judgment below to determine whether it
discloses substantial evidence - that is, evidence which is reasonable, credible, and of

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solid value - such that a reasonable trier of fact could find the defendant guilty beyond
a reasonable doubt.' [Citation.]" (People v. Horning (2004) 34 Cal.4th 871, 901.)
Substantial evidence supports the true finding. Shoemaker testified that
Villegas possessed a handgun. Yon testified that the driver of the Jeep Cherokee had
shot him. Yon's testimony was consistent with his statements to a deputy sheriff who
had responded to the scene of the shooting. According to the deputy sheriff, Yon "said
that the driver opened fire on him with a semiautomatic handgun." Yon testified that
he had not seen the person who had shot him. But shortly after the incident, at a photo
lineup, Yon identified Villegas as the driver of the Jeep Cherokee. At the time of the
identification, Yon stated, "I believe he [Villegas] was the one that shot me."
According to the transcript of the conversation between Pacheco and Padilla, Pacheco
said that either "Shaggy" or "Shady" had fired four times at Yon from the Jeep
Cherokee. The jury could have reasonably concluded that Pacheco was referring to
Villegas, whose moniker was "Shaggy."
V
The Judgment Does Not Accurately Reflect the Sentence Required
To Be Imposed on Villegas for the Attempted Murder of Yon
Based on the jury's finding that Villegas had personally discharged a firearm
and had proximately caused great bodily injury to Yon, Villegas received a 25-year-to-
life enhancement on count 2 (attempted murder of Yon). (§ 12022.53, subd. (d).)
Since the jury also found true an allegation that the attempted murder was willful,
deliberate, and premeditated, the offense was punishable by imprisonment for life with
the possibility of parole. (§ 664) Because Villegas had personally discharged a
firearm and had participated in a criminal street gang, the trial court imposed an
enhanced sentence for the attempted murder of 15 years to life pursuant to section
12022.53, subdivision (e)(2), and section 186.22, subdivision (b)(5). In People v.
Montes (2003) 31 Cal.4th 350, 361, fn. 14, our Supreme Court noted: "[S]ection
186.22(b)(5) still has vitality where the defendant is convicted of attempted murder

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with premeditation. In this situation, section 186.22(b)(5) raises the seven-year
minimum eligible parole date (see § 3046, subd. (a)) to a 15-year minimum eligible
parole date. [Citation.]"
Thus, the total sentence properly imposed on count 2 as to Villegas was 40
years to life. (See People v. Villegas (2001) 92 Cal.App.4th 1217, 1228-1229.) The
trial court, however, did not expressly state that Villegas would be ineligible for parole
for 15 calendar years, and the abstract of judgment does not reflect this fact. The
judgment must be modified to show the 15-year minimum period of parole eligibility.
(See People v. Jefferson (1999) 21 Cal.4th 86, 101-102, fn. 3.) On the abstract of
judgment, an appropriate place for this information would be in section 11, where
"[o]ther orders" are to be specified.
VI
Section 654 Prohibited the Trial Court From Punishing
Appellants for Kidnapping to Commit Robbery and Carjacking
Appellants contend that section 654 prohibited the trial court from punishing
appellants for kidnapping to commit robbery (count 3) and carjacking (count 5). The
jury verdict forms name Shoemaker as the sole victim on both counts. " 'Carjacking' is
the felonious taking of a motor vehicle in the possession of another, from his or her
person or immediate presence, . . . against his or her will and with the intent to either
permanently or temporarily deprive the person in possession of the motor vehicle of
his or her possession, accomplished by means of force or fear." (§ 215.)
Section 654 subdivision (a) provides in relevant part: "An act or omission that
is punishable in different ways by different provisions of law shall be punished under
the provision that provides for the longest term of imprisonment, but in no case shall
the act or omission be punished under more than once provision." The section
prohibits "multiple punishments for a single act or indivisible course of conduct.
[Citation.]" (People v. Miller (1977) 18 Cal.3d 873, 885, disapproved on another
ground in People v. Oates (2004) 32 Cal.4th 1048, 1067-1068, fn. 8.) A defendant's

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intent and objective generally determine whether a course of conduct is divisible. " 'If
all of the offenses were incident to one objective, the defendant may be punished for
any one of such offenses but not for more than one.' [Citation.]" (People v. Latimer
(1993) 5 Cal.4th 1203, 1208.) "On the other hand, if the evidence discloses that a
defendant entertained multiple criminal objectives which were independent of and not
merely incidental to each other, the trial court may impose punishment for independent
violations committed in pursuit of each objective even though the violations shared
common acts or were parts of an otherwise indivisible course of conduct. [Citations.]"
(People v. Liu (1996) 46 Cal.App.4th 1119, 1134.)
" 'Whether the defendant held "multiple criminal objectives is primarily a
question of fact for the trial court, whose finding will be upheld on appeal if there is
any substantial evidence to support it." [Citations.]' [Citation.] We must 'view the
evidence in a light most favorable to the respondent and presume in support of the
order the existence of every fact the trier could reasonably deduce from the evidence.
[Citation.]' [Citation.]" (People v. McGuire (1993) 14 Cal.App.4th 687, 698.)
The trial court did not set forth its rationale for determining that the kidnapping
to commit robbery and the carjacking were separately punishable. The court merely
stated that it found the carjacking to be "a separate crime." The court impliedly found
that appellants had entertained multiple objectives in committing the offenses.
(People v. Gaio (2000) 81 Cal.App.4th 919, 935.)
Respondent contends: "Appellants' crimes occurred one after the other, to be
sure, and overlapped somewhat, but each was supported by a separate intent, that led
to separate harms. Substantial evidence supported the trial court's implicit conclusion
that this was not a kidnapping for the purpose of carjacking. It was kidnapping that
turned into a carjacking."
We conclude that substantial evidence does not support the trial court's implied
finding that appellants entertained multiple objectives. Yon testified that, when
Shoemaker stopped his car in the dead-end street, Pacheco ordered Shoemaker to get

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out of the car and to give the car to appellants. 6 Shoemaker said, "'No' and chaos
broke out." Yon's testimony was not inconsistent with Shoemaker's. Shoemaker
testified that Pacheco and Villa had demanded his "money and everything [he] had."
"[E]verything [he] had" would include Shoemaker's car.
Respondent does not dispute Yon's testimony that Pacheco demanded
Shoemaker's car. In its statement of facts, respondent alleges: "Shoemaker was
directed to a dead end street, where he was told to stop. . . . Appellants Villa and
Pacheco demanded Shoemaker's money, car, and everything he had."
The only reasonable inference to be drawn from Pacheco's demand for
Shoemaker's car is that the objective of the kidnapping was not only to steal
Shoemaker's money, but to take his car as well. Because the kidnapping to commit
robbery and the carjacking shared a common objective, punishment for both offenses
is prohibited under section 654. (See People v. Beamon (1973) 8 Cal.3d 625, 639-640
[section 654 prohibited punishment for both kidnapping to commit robbery and the
commission of the robbery].)
In open court at the time of sentencing, respondent argued that section 654
should not bar punishment for both offenses because the carjacking "may have been an
afterthought when [appellants] were fleeing" and "didn't want to have their fingerprints
discovered in the vehicle . . . ." Respondent's argument was based on Pacheco's
statement to Padilla that appellants were about to drive away in the Jeep Cherokee
when they realized that they could not leave Shoemaker's car at the scene because it
contained incriminating evidence. Pacheco said: "We can't leave that shit there." "I
got my fingerprints in there. Crow has his fingerprints there . . . ."
If the carjacking were a separate and distinct act that had occurred as a result of
an afterthought when appellants were fleeing, the jury would not have found true the
6 Yon's exact words were as follows: "We started going towards the middle of it
[the dead-end street] and then that's when [Pacheco] told 'em to stop . . . and
[Shoemaker] stopped and that's when [Pacheco] told 'em get out the car and give 'em
the car." Twice during cross-examination, Yon reiterated this version of events.

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allegation that, in the commission of the carjacking, Pacheco had personally and
intentionally discharged a firearm causing great bodily injury to Shoemaker. In such
circumstances, the firing of Pacheco's rifle at Shoemaker would have preceded the
inception of the carjacking.
Based on People v. Duran (2001) 88 Cal.App.4th 1371, it appears that a
carjacking was committed when appellants forced Shoemaker at gunpoint to drive to
the dead-end street. In Duran the defendant entered the victim's car and forced him at
gunpoint to drive for 20 minutes. Defendant "told [the victim] at gunpoint when to
speed up and slow down, when to get on the freeway and when to get off, as well as
where and when to turn." (Id., at p. 1377.) The defendant then exited the car, and the
victim drove away. The court concluded that "a felonious taking can occur under the
carjacking statute when the victim remains with the car." (Id., at p. 1375.) It therefore
held that the defendant's actions constituted carjacking: "A taking occurred when [the
defendant] imposed his dominion and control over the car by ordering [the victim] to
drive; [the victim's] response in driving the car where [the defendant] directed him
provided the asportation element of the completed crime." (Id., at p. 1377.)
Respondent argues that the trial court nevertheless could have punished
appellants for both the kidnapping to commit robbery and the carjacking because "the
carjacking involved multiple victims, Shoemaker and Yon." "[T]here is a 'multiple
victim' exception to section 654. Under this exception, 'even though a defendant
entertains but a single principal objective during an indivisible course of conduct, he
may be convicted and punished for each crime of violence committed against a
different victim.' [Citations.]" (People v. Garcia (1995) 32 Cal.App.4th 1756, 1781.)
This exception is inapplicable here because the jury verdict forms name Shoemaker as
the sole victim of the carjacking.
As to all appellants, the maximum sentence that may be imposed on count 5 is
less than the maximum that may be imposed on count 3. Therefore, execution of the
sentences on count 5 must be stayed. (§ 654; People v. Kramer (2002) 29 Cal.4th 720,

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725.) The court must also stay execution of the 25-year-to-life enhancements imposed
on count 5 pursuant to section 12022.53, subdivisions (d) and (e)(1). (People v.
Bracamonte (2003) 106 Cal.App.4th 704, 709 ["Where the base term of a sentence is
stayed under section 654, the attendant enhancements must also be stayed."]; accord,
People v. Smith (1985) 163 Cal.App.3d 908, 914.)
VII
Section 654 Prohibited the Trial Court From Punishing Appellants for the
Attempted Murder of Yon and Discharging a Firearm at Yon from a Vehicle
The trial court imposed consecutive sentences for the attempted murder of Yon
with premeditation (count 2) and for discharging a firearm at Yon from a vehicle
(count 6). Both convictions were based on the shots fired by Villegas at Yon from the
Jeep Cherokee. The verdict forms for count 6 state: "We the jury . . . find the
Defendant . . . guilty of shooting from a motor vehicle, at Darryl Yon, in violation of
Penal Code Section 12034(c) . . . ." There is no substantial evidence that, in
committing these offenses, appellants entertained multiple objectives. Because counts
2 and 6 involve only one victim – Yon – the multiple victims exception to section 654
does not apply.
Since the maximum sentence that may be imposed on count 6 is less than the
maximum that may be imposed on count 2, execution of the sentences on count 6 must
be stayed. (§ 654; People v. Kramer, supra, 29 Cal.4th at p. 725.) The court must also
stay execution of the 25-year to life enhancements imposed on count 6 pursuant to
section 12022.53, subdivisions (d) and (e)(1). (People v. Bracamonte, supra, 106
Cal.App.4th at p. 709; accord, People v. Smith, supra, 163 Cal.App.3d at p. 914.)
VIII
Section 654 Prohibits the Imposition of Consecutive
25-Year-to-Life Enhancements on Counts 1 and 3
Pursuant to section 12022.53, subdivisions (d) and (e)(1), as to all three
appellants the trial court imposed consecutive 25-year-to-life enhancements on count 1

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(attempted murder of Shoemaker) and count 3 (kidnapping to commit robbery). On
each of these counts, the jury found true an allegation that, during the commission of
the offense, Pacheco had personally and intentionally discharged a firearm
proximately causing great bodily injury to Shoemaker. Villegas contends that,
pursuant to section 654, the trial court should have stayed the enhancement on count 3
because it was based on the same act against the same victim as the enhancement on
count 1. Respondent, on the other hand, argues that section 654 does not apply in this
situation. The issue of whether section 654 applies to sentence enhancements
generally, and in particular to sentence enhancements under section 12022.53,
subdivision (d), is currently before the California Supreme Court in People v.
Palacious, review granted May 11, 2005, S132144.
In resolving this issue, we look for guidance to People v. Oates, supra, 32
Cal.4th 1048. In Oates the defendant fired two shots at a group of five people, but hit
and injured only one. The defendant was convicted of five counts of attempted
premeditated murder - one for each person in the group. As to each count, the jury
found true an alleged enhancement under section 12022.53, subdivision (d). The
Supreme Court held that section 654 did not prohibit the imposition of multiple
enhancements under section 12022.53, subdivision (d), even though there was only a
single act and qualifying injury, since each enhancement was based on a separate
conviction involving a crime of violence against a separate victim. The court
reasoned: "We have long held that 'the . . . limitations of section 654 do not apply to
crimes of violence against multiple victims.' [Citation.] As we have explained: 'The
purpose of the protection against multiple punishment is to insure that the defendant's
punishment will be commensurate with his criminal liability. A defendant who
commits an act of violence with the intent to harm more than one person or by a
means likely to cause harm to several persons is more culpable than a defendant who
harms only one person. For example, a defendant who chooses a means of murder
that places a planeload of passengers in danger, or results in injury to many persons, is

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properly subject to greater punishment than a defendant who chooses a means that
harms only a single person. This distinction between an act of violence against the
person that violates more than one statute and such an act that harms more than one
person is well settled. Section 654 is not "applicable where . . . one act has two results
each of which is an act of violence against the person of a separate individual."
[Citations.]' [Citation.]" (Id., at p. 1063.)
Here the multiple victims exception is inapplicable. The section 12022.53,
subdivision (d), enhancements in counts 1 and 3 were based on a single act committed
with a single objective against a single victim. The jury verdicts on these counts refer
only to Shoemaker. They do not even mention Yon. To permit the imposition of two
consecutive 25-year-to-life enhancements in these circumstances would render
appellants as culpable as a defendant who commited an act of violence with the intent
to harm two victims. Yet, in Oates our Supreme Court made it clear that they are not
equally culpable. (People v. Oates, supra, 32 Cal.4th at p. 1063.)
" 'The purpose of the protection against multiple punishment is to insure that the
defendant's punishment will be commensurate with his criminal liability.' " (People v.
Oates, supra, 32 Cal.4th at p. 1063.) The imposition of two consecutive 25-year-to-
life enhancements would not be commensurate with appellants' criminal liability for
the act of discharging a firearm at a single victim. Appellants should be punished
once for this act, not twice. (See People v. Reeves (2001) 91 Cal.App.4th 14, 56-57
[section 654 prohibits the imposition of multiple enhancements for the single act of
inflicting great bodily injury upon a single victim].)
Thus, we conclude that section 654 prohibits the imposition of consecutive 25-
year-to-life enhancements on counts 1 and 3. The 25-year-to-life enhancements
imposed on count 3 must be stayed.

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IX
The Trial Court Committed Blakely
Error in Imposing Upper Term Sentences
Pacheco and Villegas contend that, pursuant to Blakely v. Washington (2004)
542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403], the trial court violated their
constitutional rights when it imposed the upper term on count 1 (attempted murder of
Shoemaker) and count 6 (discharging a firearm from a vehicle).7 In addition, all
appellants contend that the trial court violated their constitutional rights when it
imposed consecutive terms. Appellants argue that they were entitled to have a jury
determine beyond a reasonable doubt the existence of each of the aggravating factors
justifying imposition of upper and consecutive terms.
In Cunningham v. California ___ U.S. ___, [126 S.Ct. 856, 166 L.Ed.2d 856]
(hereafter Cunningham) the high court held that California's Determinate Sentencing
Law violates a defendant's Sixth Amendment right to a jury trial insofar as it permits a
court to impose an upper term sentence based on facts found by the court, instead of
facts found by the jury and proved beyond a reasonable doubt. Cunningham overruled
a contrary holding in People v. Black (2005) 35 Cal.4th 1238. In Black the California
Supreme Court held that, when a trial court exercises discretion to select the upper
term sentence based on facts found by the court, the defendant's right to a jury trial is
not violated.
Respondent contends that Pacheco and Villegas waived their right to claim
Blakely error because they failed to raise the issue in the trial court. But since Black
was controlling authority when Pacheco and Villegas were sentenced, it would have
been futile for them to have raised the issue at that time. In these circumstances, a
waiver did not occur. (People v. Chavez (1980) 26 Cal.3d 334, 350, fn. 5.)
Pursuant to Cunningham, we must reverse the trial court's imposition of the
upper term on counts 1 and 6 as to Pacheco and Villegas. However, Cunningham
7 On counts 1 and 6, the trial court imposed the middle term as to Villa.

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does not affect the validity of the trial court's imposition of consecutive sentences.
Cunningham dealt exclusively with the imposition of an upper term sentence. In
People v. Black, supra, 35 Cal.4th at pp.1262-1263, the California Supreme Court
held that a jury trial is not required on the aggravating circumstances that justify
imposition of a consecutive sentence. That holding still stands, and is binding on this
court under the principles of stare decisis. (Auto Equity Sales, Inc. v. Superior Court
(1962) 57 Cal.2d 450, 455.)
X
Appellants Are Entitled to Presentence Conduct Credits
The trial court denied appellants presentence conduct credits. Appellants
contend that, as a matter of law, they are entitled to such credits. Respondent argues
that the contention is waived because appellants failed to raise the issue in the trial
court. Respondent's argument is without merit. (See People v. Taylor (2004) 119
Cal.App.4th 628, 647 ["A sentence that fails to award legally mandated custody credit
is unauthorized and may be corrected whenever discovered."]; People v. Aguirre
(1997) 56 Cal.App.4th 1135, 1139 [issue of calculation of presentence conduct credits
is not waived by failure to object].)
Respondent maintains that, pursuant to In re Cervera (2001) 24 Cal.4th 1073,
appellants are not entitled to presentence conduct credits. In Cervera our Supreme
Court held that California's "Three Strikes" law does not authorize or allow a
defendant with three strikes to be awarded prison conduct credits for use against his
mandatory indeterminate term of life imprisonment. (Id., at p. 1076.) Cervera is
distinguishable because we are here concerned with presentence, not prison, conduct
credits and because the "Three Strikes" law is inapplicable.
In People v. Philpot (2004) 122 Cal.App.4th 893, 908, the court held that
"presentence conduct credits are available to a defendant sentenced to an
indeterminate life term under the three strikes law." Based on Philpot, we conclude
that the trial court erroneously denied appellants presentence conduct credits pursuant

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to sections 2933.1 and 4019. The Board of Parole Hearings may use the conduct
credits to determine appellants' release date, but only after they have served the
minimum term of their indeterminate sentences. (Id., at pp. 908-909; People v.
Carpenter (1979) 99 Cal.App.3d 527, 535.)
Disposition
The judgment is reversed only as to the sentence and in all other respects is
affirmed. The matter is remanded to the trial court for resentencing in accordance with
the views expressed in this opinion. In resentencing appellants, the trial court shall:
(1) as to Villegas, strike the gang enhancements (§§ 186.22, subds. (b)(1)(C) &
(b)(4)(B)) on counts 1 (attempted murder of Shoemaker), 3 (kidnapping to commit
robbery), and 5 (carjacking); (2) as to Pacheco, strike the 10-year gang enhancement
(§ 186.22, subd. (b)(1)(C)) imposed on count 3 and instead impose a minimum parole
eligibility date of 15 calendar years (§ 186.22, subd. (b)(5)); (3) as to Villegas, impose
a minimum parole eligibility date of 15 calendar years on count 2 (attempted murder
of Yon) (§ 186.22, subd. (b)(5)); (4) as to all appellants, stay execution of the
sentences imposed on count 5 (carjacking), including the 25-year-to-life enhancements
imposed pursuant to section 12022.53, subdivisions (d) and (e)(1); (5) as to all
appellants, stay execution of the sentences imposed on count 6 (discharging a firearm
from a vehicle), including the 25-year-to-life enhancements imposed pursuant to
section 12022.53, subdivisions (d) and (e)(1); (6) as to all appellants, stay execution of
the 25-year-to-life enhancements, imposed pursuant to section 12022.53, subdivisions
(d) and (e)(1), on count 3; (7) as to Pacheco and Villegas, select the appropriate term
of imprisonment for the offenses in counts 1 and 6 pursuant to the principles of
Cunningham; and (8) as to all appellants, grant presentence conduct credits pursuant to
sections 2933.1 and 4019. The court is directed to prepare amended abstracts of

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judgment and to forward certified copies to the Department of Corrections.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P.J.
PERREN, J.

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Janice C. Croft, Judge
Superior Court County of Los Angeles
______________________________
Athena Shudde, under appointment by the Court of Appeal, for David
Michael Pacheco, Defendant and Appellant.
Victoria H. Stafford, under appointment by the Court of Appeal, for Anthony R.
Villa, Defendant and Appellant.
Randi Covin, under appointment by the Court of Appeal, for Adolfo Villegas,
Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R.
Anderson, Chief Assistant Attorney General, Pamela C Hamanaka, Senior Assistant
Attorney General, Lawrence M. Daniels, Supervising Deputy Attorney General, Scott .
Taryle, Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.

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