People v. Kopp
250 Cal. Rptr. 3d 852
| Cal. Ct. App. 5th | 2019Background
- Jason Hernandez and Christi J. Kopp were convicted of multiple counts including conspiracy to commit murder (count 3), conspiracy to dissuade a witness (count 4), and furnishing a controlled substance (count 5); Hernandez also convicted of two assaults (counts 1 & 2) with gang and great-bodily-injury findings. Sentences: Hernandez—81 years to life; Kopp—4 years plus 25-to-life.
- Facts: Hernandez (a high-level Mexican Mafia member) and Kopp (a "secretary") coordinated via an informant (E.P.) to bribe or silence two witnesses (A.C. and U.P.); evidence includes texts, recorded jail visits, undercover purchase of meth offered as payment to a purported hit man, and Kopp identifying U.P. in photos.
- Jury found gang enhancements true as to several counts; Kopp procured and provided meth to an undercover officer posed as a hit man; prosecution relied on gang expert testimony about Mexican Mafia structure and motives.
- Procedural: Hernandez raised various issues on appeal (assault convictions multiplicity, jury instruction response on "deadly weapon," gang enhancement sufficiency, conspiracy sufficiency, courtroom restraints); Kopp raised failure to instruct on single vs multiple conspiracies and §654 stay for count 5; both raised sentencing/assessment challenges and supplemental arguments invoking Senate Bill No. 1393 and People v. Dueñas.
- Disposition summary: Court reversed both appellants’ convictions on count 4 (conspiracy to dissuade a witness) because the trial court failed to sua sponte instruct the jury to determine whether there was one or multiple conspiracies; sentences vacated and case remanded for resentencing, ability-to-pay hearings on certain assessments, and amendment of abstracts. In all other respects the convictions were affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Hernandez could be convicted under §245(a)(1) (deadly weapon) and §245(a)(4) (force likely to produce great bodily injury) for the same conduct | People: separate acts (knife wounds vs punches/kicks) supported separate convictions | Hernandez: multiplicity; one assault cannot sustain both convictions | Held: Affirmed both convictions — distinct acts supported separate counts under §954 and elements test |
| Whether trial court erred in answering jury question on "deadly weapon" by referring jurors to CALCRIM No. 875 | Hernandez: referral was inadequate and allowed jury to treat fists/feet as deadly weapons, prejudicing him | People: CALCRIM No. 875 correctly defines "deadly weapon"; defense counsel agreed below | Held: No reversible error; defendant forfeited by counsel's agreement and CALCRIM 875 correctly excluded bare hands/feet as "object"; no prejudice shown |
| Sufficiency of evidence for gang enhancement (§186.22(b)) as to conspiracy to commit murder (count 3) | Hernandez: insufficient evidence that conspiracy was for benefit/direction/association with Mexican Mafia or that he had specific intent to benefit gang | People: expert testimony and communications showed benefit, direction, and association; Kopp acted as secretary; intent inferred from concerted action with gang associates | Held: Substantial evidence supported both prongs (benefit/association/direction and specific intent) — enhancement upheld |
| Whether trial court had duty to instruct jury (sua sponte) to determine single vs multiple conspiracies, and whether failure was harmless | Appellants: evidence supported alternative findings (single conspiracy vs separate conspiracies); court must instruct and failing to do so prejudiced them | People: no duty (older line of cases); evidence supported separate conspiracies or single-one not shown | Held: Court had duty where evidence supports alternative findings; here prosecutor argued a single overarching conspiracy and same overt acts supported both counts, so failure to instruct was prejudicial — convictions on count 4 reversed and sentences vacated; remand for resentencing |
Key Cases Cited
- People v. Albillar, 51 Cal.4th 47 (Cal. 2010) (jury may infer specific intent to benefit a gang when defendant acts with known gang members)
- People v. Aguilar, 16 Cal.4th 1023 (Cal. 1997) ("deadly weapon" requires an object extrinsic to the human body; bare hands/feet not deadly per statute)
- People v. Jasso, 142 Cal.App.4th 1213 (Cal. Ct. App. 2006) (instructional error reversal where single-vs-multiple conspiracy determination was required)
- People v. Meneses, 165 Cal.App.4th 1648 (Cal. Ct. App. 2008) (analysis of single vs multiple conspiracies; when defendant forms separate confederations, multiple conspiracies may be proper)
- People v. White, 2 Cal.5th 349 (Cal. 2017) (same act can support multiple charges unless one offense is necessarily included in another)
- United States v. Bajakajian, 524 U.S. 321 (U.S. 1998) (Eighth Amendment excessive-fines proportionality framework)