NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

SMITH, J.

Codefendants Harold Davis, Jeremy Seamon, and Lisa Seamon were charged by information as follows: Harold1 was accused of possessing methamphetamine for sale (Health & Saf. Code, § 11378, count 1) and opening or maintaining a place for unlawfully selling, giving away, or using methamphetamine (Health & Saf. Code, § 11366, count 2); Harold, Jeremy, and Lisa were jointly accused of conspiring to sell methamphetamine (Health & Saf. Code, § 11379 & Pen. Code,2 § 182, count 3); Jeremy and Lisa were jointly accused of possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a), count 4); and Harold and Lisa were jointly accused of conspiring to prevent or dissuade a witness from attending or giving testimony at any trial, proceeding, or inquiry authorized by law (§§ 136.1 & 182, count 5) and attempting to prevent or dissuade a witness from attending or giving testimony at any trial, proceeding, or inquiry authorized by law (§§ 136.1 & 664, count 6). The jury found Harold and Jeremy guilty as charged and found Lisa guilty on counts 3 and 4 and not guilty on counts 5 and 6.

On appeal,3 Harold argues that (1) Lisa's acquittal on count 5 necessitated reversal of his own conviction on the same count; (2) the evidence did not support his convictions on counts 2 and 5; and (3) execution of punishment on count 2 should have been stayed pursuant to section 654. We disagree with each contention and affirm the judgment.

FACTS AND PROCEDURAL HISTORY

Prosecution case-in-chief

a. Initial search of 1933 West 4th Street

On November 4, 2009, Detective Brian Esteves and other law enforcement agents executed a search warrant on a residence located at 1933 West 4th Street in Madera. In the northeast bedroom, they came across Jeremy, Lisa, a bag of methamphetamine, traces of methamphetamine on top of a mirror, and other drug paraphernalia. Jeremy and Lisa admitted that this methamphetamine belonged to them and they had ingested the substance the night before. In the southeast bedroom, agents encountered Mario Pettit, Lisa's father. At the back of the house, 16 color-coded bags of methamphetamine were discovered inside a porch lamp. Bags marked with the color black weighed 0.5 grams. Bags marked with the color red weighed 0.8 grams. Bags marked with the color green weighed 1.9 grams.

In the east bedroom, agents found Harold and a whiteboard displaying pay/owe information—i.e., "different names with dollar amounts"—in black, red, and green ink. Harold's possessions included a black T-shirt bearing the slogan "Stop Snitching," safe keys, a wallet containing approximately $800 in cash, and a cell phone.4 Via text message, Lisa advised that "people were coming by the house looking for Harold," and other individuals solicited "half a pizza"; requested meetings in gas stations, grocery stores, and other public places; described "what vehicles they would be in when they showed up"; and commented on the difficulty of keeping in touch due to frequent phone number changes. In Harold's truck, agents retrieved a blue notebook displaying more pay/owe information.

Art Zamora, a neighbor, informed agents that Jeremy and Lisa lived at 1933 West 4th Street for "maybe a couple of years," whereas Harold arrived "a couple months" before November 2009. Once Harold moved in, Zamora observed a "[l]arge number of traffic coming in and out of the residence . . ., usually after 11 p.m., sometimes [until] 1:00, 2:00 a.m.," approximately three or four days per week. These visitors appeared only when Harold's truck was at the house.

b. Initial jail call and visits

Harold called Lisa5 from jail on November 4, 2009. He instructed her to contact and collect debts from various persons. In particular, Harold identified Wesley Snipes,6 who owed approximately $200 or $250. He then instructed Lisa to inform anybody "com[ing] by looking for [him]" that "`[h]e's in jail,'" "[there's] `[n]o stuff,'" and "everything's gone."

Jeremy visited Harold on multiple occasions. During one visit, Harold noted that "any money [they] get from the car parts is for the attorney." Jeremy remarked that Lisa was "going to [Snipes's]" to "divide" the "car parts and stuff." Harold asked Jeremy to "show up on Monday at [the former's] court date," "pull [the public defender] off to the side," and "say, look, whatever they found, . . . [Harold's] off in space about it." Jeremy declared that he was "gonna do [his] best on that" and "not gonna let [Harold] do . . . the time that they're wanting [him] to do." Harold apologized for the "inconvenience" and assured that "better times [were] ahead" and "[e]verything's gonna be taken care of." In addition, the following exchange occurred:

During another visit, Harold disclosed that he recruited an 18-year-old male named Josh to "take . . . under [his] wing." Josh would "kick back in [Harold's] room until [Harold came] home" and function as "a follower" rather than "a leader." Next, Harold inquired about "the big nuts and bolts and stuff," "the toolbox with the little nuts and bolts," and the "sets of tires." The following dialogue ensued:

c. Subsequent search of 1933 West 4th Street

Esteves authored a subsequent search warrant and conducted another search at 1933 West 4th Street. He found a November 5, 2009, letter from Harold addressed to Jeremy and Lisa. In the letter, Harold mentioned that Josh was "`going to be working for [him]'" and "`going to do all the running7 for [him.]'"

Lisa, who was present during the search, admitted to Esteves that agents missed additional methamphetamine "outside the house" during their initial search. Half of the substance was flushed down the toilet by Pettit while the other half—i.e., "two or three [eight] balls"8 —were given to Snipes. Lisa acknowledged that she obtained the debts "she was supposed to collect" and "put [the money] on Harold's books. . . ."9

d. Investigation of Snipes

On December 23, 2009, Esteves—posing as an acquaintance of Harold's who had been released from jail—phoned Snipes. The two spoke about the aftermath of the November 4, 2009, search:

Thereafter, Esteves searched Snipes's residence and found 3.8 grams—i.e., about one-eighth of an ounce—of methamphetamine in a bag, a digital scale with methamphetamine residue, and a cell phone. In a text message, someone named Chuck Trollinger asked for $20 worth of methamphetamine. Esteves—pretending to be Snipes—replied back and arranged a meeting to complete the transaction. Trollinger appeared at the designated location with $20.

On December 3, 2010, the prosecutor identified Snipes as a potential witness.

e. Subsequent jail calls

In December 2010, Harold made jail calls to Lisa and his ex-wife, Kodie10 Davis. In a December 3, 2010, call, Lisa apprised him of Kodie's attendance at court that day. The following exchange occurred:

In a December 7, 2010, call, Harold and Lisa talked about Kodie's failure to contact someone named "Janet":

Harold and Lisa's conversation on December 8, 2010, indicated that Kodie still did not touch base with Janet:

Harold spoke to Kodie directly on December 9, 2010:

Harold and Lisa's final conversation on December 10, 2010, revealed that Lisa and Kodie had not yet visited Janet:

f. Testimony of Esteves

At trial, Esteves opined that the phrases "half a pizza," "car parts," "nuts and bolts," and "sets of tires" were code words for methamphetamine:

Esteves also determined that "Janet" referred to Snipes:

Based on the items seized and the recorded jail calls, Esteves concluded that Harold possessed the methamphetamine at the West 4th Street residence for the purpose of sale:

Defense case-in-chief

Ann Ruz, a criminal defense investigator, interviewed Jeremy at 1933 West 4th Street on December 1, 2009. He confessed that the methamphetamine belonged to him instead of Harold. At some point, Lisa and Pettit admonished Jeremy for speaking to Ruz.

Pamela Mitchell, Harold's aunt, testified that Harold performed automotive repairs for her small business.

DISCUSSION

I. As a matter of law, Lisa's acquittal on count 5 did not necessitate reversal of Harold's conviction on the same count

Harold claims that his conviction on count 5 must be overturned because Lisa, an alleged coconspirator, was acquitted on the same count. However, he concedes that this "rule of consistency" was rejected by our Supreme Court in People v. Palmer (2001) 24 Cal.4th 856. The Palmer court found that "[t]he general rationale behind the rule has been `that one may not conspire with himself.' [Citation.] It does take at least two to conspire. But to go `[f]rom this irrefutable proposition' to a rule requiring reversal of the inconsistent verdict is a `precipitous leap.' [Citation.] We find the federal decisions persuasive and, like the high court, conclude that we may accept inconsistent verdicts. We agree with the conclusion of the Eleventh Circuit Court of Appeals: `Consistent verdicts are unrequired in joint trials for conspiracy: where all but one of the charged conspirators are acquitted, the verdict against the one can stand.' [Citation.]" (Id. at pp. 864-865.)

We are bound by the doctrine of stare decisis to follow this decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

II. Substantial evidence supported Harold's convictions on counts 2 and 5

A. Standard of review

"When an appellant challenges the sufficiency of the evidence, the reviewing court must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt." (People v. Aispuro (2007) 157 Cal.App.4th 1509, 1511 (Aispuro); see People v. Tripp (2007) 151 Cal.App.4th 951, 955 ["We must draw all reasonable inferences in support of the judgment."].) "For evidence to be `substantial' it must be of ponderable legal significance, reasonable in nature, credible and of solid value." (Aispuro, supra, at p. 1511.)

"Before the judgment of the trial court can be set aside for insufficiency of the evidence to support the verdict of the jury, it must clearly appear that upon no hypothesis whatever is there sufficient substantial evidence to support it." (People v. Redmond (1969) 71 Cal.2d 745, 755.) "`Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence.' [Citation.]" (People v. Lee (2011) 51 Cal.4th 620, 632.) "If the circumstances reasonably justify the jury's finding, the reviewing court may not reverse the judgment merely because it believes that the circumstances might also support a contrary finding." (Aispuro, supra, 157 Cal.App.4th at p. 1511.)

B. Analysis of count 2

"Every person who opens or maintains any place for the purpose of unlawfully selling, giving away, or using [methamphetamine] . . . shall be punished. . . ." (Health & Saf. Code, § 11366, citing, among other things, id., § 11055, subd. (d)(2); see, e.g., People v. Moseley (2008) 164 Cal.App.4th 1598; People v. Ferrando (2004) 115 Cal.App.4th 917.) "`The proscribed "purpose" is one that contemplates a continuity of such unlawful usage; a single or isolate instance of the forbidden conduct does not suffice.' [Citations.]" (People v. Franco (2009) 180 Cal.App.4th 713, 718.) Hence, "[t]he elements of the opening-or-maintaining offense are that the defendant (a) opened or maintained a place (b) with a purpose of continuously or repeatedly using it for selling, giving away, or using a controlled substance." (People v. Hawkins (2004) 124 Cal.App.4th 675, 680.)

We find that substantial evidence supported Harold's conviction on count 2. The record—viewed in the light most favorable to the verdict—shows that Harold moved into 1933 West 4th Street a couple of months before November 2009. Thereafter, Zamora, a neighbor, noticed numerous visitors coming to the house between 11:00 p.m. and 2:00 a.m. at least three times each week and only when Harold's truck was in the vicinity. This nocturnal influx did not exist prior to Harold's arrival. During the November 4, 2009, search, agents retrieved 16 color-coded bags of premeasured methamphetamine from the inside of a back porch lamp; a whiteboard displaying color-coded pay/owe information, a T-shirt bearing the slogan "Stop Snitching," safe keys, and a wallet containing a significant amount of cash from Harold's bedroom; and a blue notebook displaying more pay/owe information from Harold's truck. Text messages to Harold revealed that (1) "people were coming by the house looking for [him]," and (2) individuals specifically sought methamphetamine—e.g., "half a pizza"—from him. Following his arrest and while in jail, Harold (1) ordered Jeremy, his housemate, to claim ownership of the seized methamphetamine; (2) confirmed that the "car parts," "nuts and bolts," and "sets of tires"—all of which were code words for methamphetamine—that were not taken during the November 4, 2009, search were either mistakenly discarded or transferred to Snipes's residence; (3) instructed Lisa, another housemate, to collect outstanding debts from buyers and to inform those who "[came] by looking for [him]" that the methamphetamine was unavailable; and (4) procured someone to temporarily "kick back" in his room at 1933 West 4th Street and "do all the running for [him]" until he returned. In view of these circumstances, a reasonable trier of fact could have concluded that Harold, a drug dealer, moved into 1933 West 4th Street, continuously used the residence as a place to conduct methamphetamine sales until his arrest, and intended to maintain the operation via proxy while he remained in jail.

C. Analysis of count 5

"A conviction of conspiracy requires proof that the defendant and another person had the specific intent to agree or conspire to commit an offense, as well as the specific intent to commit the elements of that offense, together with proof of the commission of an overt act `by one or more of the parties to such agreement' in furtherance of the conspiracy." (People v. Morante (1999) 20 Cal.4th 403, 416, quoting § 184.) "Criminal conspiracy is an offense distinct from the actual commission of a criminal offense that is the object of the conspiracy." (Morante, supra, at p. 416.) "`As an inchoate crime, conspiracy fixes the point of legal intervention at [the time of] agreement to commit a crime,' and `thus reaches further back into preparatory conduct than attempt. . . .' [Citation.]" (People v. Swain (1996) 12 Cal.4th 593, 600.) "The crime of conspiracy punishes the agreement itself and `does not require the commission of the substantive offense that is the object of the conspiracy.'" (People v. Johnson (2013) 57 Cal.4th 250, 258, quoting Swain, supra, at p. 599.)

"It is settled that a conspiracy may be established by direct evidence or circumstantial evidence, or a combination of both." (People v. Calhoun (1958) 50 Cal.2d 137, 144 (Calhoun).) "It is likewise well recognized that the very crux of the conspiracy, the evil or corrupt agreement [citations], may be shown also by circumstantial evidence." (People v. Lipinski (1976) 65 Cal.App.3d 566, 575.) "It need not be shown that the parties entered into a definite agreement, but it is sufficient if they positively or tacitly come to a mutual understanding to accomplish the act and unlawful design." (Calhoun, supra, at p. 144.) "The circumstances from which a conspirational agreement may be inferred include `the conduct of defendants in mutually carrying out a common illegal purpose, the nature of the act done, the relationship of the parties [and] the interests of the alleged conspirators. . . .' [Citation.]" (People v. Superior Court (Quinteros) (1993) 13 Cal.App.4th 12, 20-21.)

"[A]n agreement to commit a crime, by itself, does not complete the crime of conspiracy. The commission of an overt act in furtherance of the agreement is also required." (People v. Johnson, supra, 57 Cal.4th at p. 259.) "`[A]n overt act is an outward act done in pursuance of the crime and in manifestation of an intent or design, looking toward the accomplishment of the crime.' [Citations.]" (People v. Zamora (1976) 18 Cal.3d 538, 549, fn. 8.) "The purpose of the overt act is simply to show that the agreement has proceeded beyond the meeting of the minds stage to some direct or physical act, however innocent in itself, tending toward the furtherance of the objective of the conspiracy." (People v. Saugstad (1962) 203 Cal.App.2d 536, 549-550.) "It is sufficient if the overt act represents any step in furtherance of the conspiracy. It may be an otherwise lawful act and it may be merely a part of the preliminary arrangement for the commission of the ultimate offense." (Id. at p. 549.) "[T]he jury need not agree on a specific overt act as long as it unanimously finds beyond a reasonable doubt that some conspirator committed an overt act in furtherance of the conspiracy." (People v. Russo (2001) 25 Cal.4th 1124, 1128.)

Harold asserts that (1) "there was insufficient evidence presented at trial to prove that [he] formed an agreement with Lisa to dissuade the testimony of Snipes," and (2) "there was . . . no substantial evidence of any overt act. . . ." We disagree. First, the record—viewed in the light most favorable to the verdict—establishes that Harold and Lisa formed an agreement. On December 3, 2010, the same day the prosecutor identified Snipes as a potential witness, Harold and Lisa conversed on the phone. Harold communicated that Kodie, who attended court that day, needed to "`talk to bonehead right away'" and "`tell bonehead . . . everything that's coming. . . .'" Lisa affirmed that she would "`get a hold of [Kodie]'" and relay Harold's message. Already, a reasonable trier of fact could have inferred from these circumstances that "bonehead" referred to Snipes. Subsequent discussions in code between Harold and either Lisa or Kodie and Esteves's trial testimony confirmed that Snipes was indeed the subject and clarified exactly what needed to be articulated to him. In a December 9, 2010, call to Kodie, Harold specified that Kodie would pick up Lisa—i.e., "`L'"—and "`go over to the[] apartments to speak with [a] lady'" who "`just resurfaced'" from a "`program down'" "`in Bakersfield.'" At trial, Esteves pointed out that Snipes had been attending an inpatient program near Bakersfield at the time he was served with a subpoena. In a December 10, 2010, call to Lisa, Harold further detailed that `"[Kodie] was gonna take [Lisa] to go talk to . . . Janet over in the apartments,'" where "[Lisa] could . . . call [Janet] in the car,'" and "[Lisa,] [Kodie,] and Janet can get on the same level.'" Moreover, in the previous December 7 and 8, 2010 calls, Lisa indicated that she knew what Harold actually meant by the expression "`Janet in the apartments'" and would "`take into [her] own hands'" the job of convincing Janet to either "`shut tha fuck up'" or "`cause . . . all eyes [to] look . . . [¶] . . . [¶] . . . [a]nywhere but at [Harold]'" from the "`throne.'" Esteves deduced from the entirety of Harold's recorded calls that "Janet" referred to Snipes. A reasonable trier of fact could have concluded that Harold and Lisa—as early as December 3, 2010—"positively or tacitly c[a]me to a mutual understanding" (Calhoun, supra, 50 Cal.2d at p. 144) to prevent or dissuade Snipes from attending or giving testimony at trial.

Second, the record—viewed in the light most favorable to the verdict—demonstrates overt acts. As noted in a December 3, 2010 call, Lisa agreed to "`get a hold of [Kodie]'" and tell her to contact Snipes. In a December 7, 2010 call, Harold chastised Lisa for sending Kodie to "`the wrong place'" and questioned "`what kind of message [Lisa] gave [Kodie.]'" Lisa stated that Kodie notified her that day about the failed attempt to contact Snipes but refused to accept blame for the mishap. A reasonable trier of fact could have surmised that Lisa—in furtherance of the conspiracy—relayed Harold's "talk to bonehead" message to Kodie between December 3 and December 7, 2010, though Kodie did not successfully carry out the plan on her part. (See People v. Von Villas (1992) 11 Cal.App.4th 175, 201-202, 242, fn. 12, 245 [promise to call potential coconspirator and call itself "look toward the accomplishment of and manifest an intent to commit the crime"].) Furthermore, in light of Kodie's failure, Harold and Lisa considered an arrangement to have Lisa (1) accompany Kodie to Snipes's residence and (2) persuade Snipes to either "`shut tha fuck up'" or, if he "`[got] up on the throne,'" place criminal culpability on someone other than Harold. "If the conspirators partake, among themselves, in arrangements, discussions, and preparation in regard to and for the criminal act, then they have ventured beyond a mere criminal intention. . . ." (Id. at p. 245.)11

III. Section 654 did not require the trial court to stay execution of punishment on count 2

A. Standard of review

"The question whether section 654 is factually applicable to a given series of offenses is for the trial court, and the law gives the trial court broad latitude in making this determination. Its findings on this question must be upheld on appeal if there is any substantial evidence to support them." (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312; see People v. Blake (1998) 68 Cal.App.4th 509, 512 ["A trial court's implied finding that a defendant harbored a separate intent and objective for each offense will be upheld on appeal if it is supported by substantial evidence."].)

B. Analysis

"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 potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (§ 654, subd. (a).) Moreover, "because [section 654] is intended to ensure that defendant is punished `commensurate with his culpability' [citation], its protection has been extended to cases in which there are several offenses committed during `a course of conduct deemed to be indivisible in time.' [Citation.]" (People v. Harrison (1989) 48 Cal.3d 321, 335.)

"It is defendant's intent and objective, not the temporal proximity of his offenses, which determine whether the transaction is indivisible." (People v. Harrison, supra, 48 Cal.3d at p. 335.) "[I]f all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once." (Ibid.) "If, on the other hand, defendant harbored `multiple criminal objectives,' which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, `even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.' [Citation.]" (Ibid.)

The trial court imposed an aggregate 15-year sentence incorporating a four-year term on count 3, an eight-month term on count 1, an eight-month term on count 2, and an eight-month term on count 5. Harold asserts that he cannot be punished for both possessing methamphetamine for sale (count 1) and opening or maintaining a place for selling methamphetamine (count 2) because these offenses "were committed with the same criminal intent and objective —to sell methamphetamine." In an earlier case, however, we identified and explained the separate objectives underlying these crimes:

Harold does not dispute that substantial evidence supported his conviction on count 1. As already discussed, substantial evidence showed that Harold maintained 1933 West 4th Street as a site to sell methamphetamine on an ongoing basis.

We therefore conclude that section 654 did not require the trial court to stay execution of punishment on count 2.

DISPOSITION

The judgment is affirmed.

Kane, Acting P.J. and Poochigian, J., concurs.