Morocco

Defendant James Perry Morocco appeals after a jury found him guilty of two counts of solicitation of murder. (Pen. Code, § 6531) and one count of sale of a substitute in lieu of a controlled substance (Health & Saf. Code, § 11355). The principal issue is whether Morocco’s request to have an acquaintance kill two specifically named individuals constitutes one or two counts of solicitation of murder. By analogy to the crime of conspiracy and consistent with prior California precedent, we conclude Morocco may only be properly convicted of one count of solicitation and accordingly, we order stricken his conviction on the second count. As to Morocco’s remaining contentions we conclude the prosecutor’s ambiguous comment on his failure to testify did not prejudice Morocco and that the trial court acted within its discretion in sentencing him to the aggravated term on the first solicitation count and in imposing a consecutive sentence on the controlled substance count. As so modified we affirm the judgment.

Factual and Procedural Background

Morocco and his wife of 23 years, Peggy, were divorced in 1983. Shortly thereafter, Peggy married Thomas Steele. Three of Morocco’s four…