Filed 4/13/16
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B256361
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA071550)
v.
TRAVION WEDDINGTON et al.,
Defendants and Appellants.
APPEALS from judgments of the Superior Court of Los Angeles County, Harvey
Giss, Judge. Affirmed with directions.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and
Appellant Travion Weddington.
Roberta Simon, under appointment by the Court of Appeal, for Defendant and
Appellant Willie Nunnery.
Christine C. Shaver, under appointment by the Court of Appeal, for Defendant and
Appellant Taliah Bashir.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Paul M. Roadarmel, Jr.,
Supervising Deputy Attorney General, and Allison H. Chung, Deputy Attorney General,
for Plaintiff and Respondent.
_________________________________
Travion Weddington, Willie Nunnery, and Taliah Bashir appeal from the
judgments entered following a jury trial in which they were convicted of one count of
first degree burglary in violation of Penal Code section 459,1 one count of conspiracy to
commit residential burglary (§ 182, subd. (a)(1)), four counts of attempted first degree
burglary (§§ 664, 459), one felony count of evading a peace officer in willful disregard
for safety (Veh. Code, § 2800.2, subd. (a)), and one count of possession of burglar’s tools
(§ 466). Following a bifurcated bench trial, the trial court found true the gang
enhancement allegations as to all three defendants on all counts of conviction. (§ 186.22,
subd. (b)(1).) The court sentenced Weddington to an aggregate term of 18 years
8 months in state prison; Nunnery to a total term of 14 years 4 months in state prison;2
and Bashir to an aggregate term of 15 years in state prison.
Appellants contend:3 (1) the attempted burglary convictions must be reversed for
insufficient evidence because appellants’ conduct did not progress beyond planning and
preparation; (2) the true finding on the gang enhancement must be reversed for lack of
substantial evidence that the underlying offenses were gang-related; (3) the evidence is
insufficient to sustain the conviction on count 4 against Nunnery and Weddington for
evading a peace officer in willful disregard for safety because they were merely
passengers in the vehicle driven by Bashir; (4) the conviction on count 4 must also be
reversed based on the trial court’s failure to instruct the jury on the lesser included
offense of misdemeanor evading a peace officer; and (5) a remand for resentencing for
the conviction of possession of burglary tools is required based on the trial court’s
1 Undesignated statutory references are to the Penal Code.
2Nunnery pleaded guilty to count 5, misdemeanor battery (§ 243, subd. (c)(2))
and received a one-year consecutive sentence. However, the abstract of judgment omits
reference to the sentence on count 5, incorrectly reflecting an aggregate term of 13 years
4 months.
3Each of the appellants has joined and adopted by reference all arguments raised
by co-appellants that may accrue to his or her benefit. (People v. Stone (1981) 117
Cal.App.3d 15, 19, fn. 5; Cal. Rules of Court, rule 8.200(a)(5).)
2
misunderstanding of its sentencing discretion. We find no merit to appellants’
contentions, and affirm.
FACTUAL BACKGROUND
September 7, 20114
Elizabeth Barba and her husband Jose Fernandez lived on the 11000 block of
Gerald Avenue in Granada Hills. On September 7, 2011, about 10:30 a.m., Fernandez
was walking to his truck on the street when he noticed a red Chrysler Sebring parked
nearby. Two African-American males were seated in the vehicle, but the driver’s seat
was empty. The outside temperature was about 100 degrees that day, and Fernandez
thought it suspicious that someone would be sitting in a car in the heat. Fernandez went
back inside, and when he came out, the car was gone. About half an hour later,
Fernandez saw the Sebring coming down the street. As the car passed, Fernandez could
see the driver, who appeared to be an 18- to 25-year-old woman, as well as the same
passengers he had seen earlier.
Sometime after Fernandez had left, Barba noticed a red car parked across the
street. The car pulled away, but returned five or ten minutes later. Barba saw the driver,
whom she later identified as Bashir, get out of the car and approach Barba’s front door.
When Bashir reached the front door she pounded on it loudly for about 30 seconds.
Barba became frightened. She gathered her children and went to the master bedroom as
the pounding continued. When the pounding stopped, Barba saw Bashir return to the red
car, where two male passengers were waiting. The car then drove away.
About 11:00 a.m. that day, as Los Angeles Police Officer John Parker was on
patrol near Havenhurst Avenue in Granada Hills, he noticed a red Chrysler Sebring
driven by a woman with two male passengers who were slouching down in their seats.
Officer Parker followed the vehicle and next saw it stopped in the alley behind Barba’s
house. Weddington got out of the car, and as he walked toward the trunk of the Sebring,
4Because the jury acquitted appellants on count 13, we omit a recitation of the
evidence related to that count.
3
he looked in Officer Parker’s direction and immediately got back into the car. The
Sebring then accelerated quickly away. Officer Parker followed the Sebring as it sped
out of the alley—going 30 to 35 miles per hour in a 15-mile per hour zone—and turned
right without stopping at the end of the alley or signaling for the turn. Officer Parker
tried to get behind the Sebring to conduct a traffic stop, but the Sebring sped onto the 118
Freeway with Officer Parker still in pursuit. Officer Parker accelerated, followed the
Sebring onto the freeway, and turned on the patrol vehicle’s lights and siren. The
Sebring exited the freeway and came to a stop.
Officer Parker requested backup units and conducted a traffic stop. Weddington
and Nunnery were passengers in the car driven by Bashir, who was driving on a
suspended license. The Sebring was impounded and searched. The destination on the
GPS on Weddington’s cell phone was an address located in the southern part of Los
Angeles. In the search, police recovered a crowbar, a window punch, two flathead
screwdrivers, one with a bent tip, a Phillips-head screwdriver, a tire repair tool, a pair of
two-way radios, one black glove, two empty backpacks, and a pair of white gloves.
Another pair of black gloves was recovered from Nunnery’s pocket. Los Angeles Police
Officer Benjamin Sadeh described how these items could be used in a burglary and
opined that most of these items were common burglary tools.
September 26, 20115
Midmorning on September 26, 2011, a multi-unit team of the Los Angeles Police
Department conducted undercover surveillance of the red Chrysler Sebring starting in the
southern part of Los Angeles and continuing north along the 405 Freeway into the San
Fernando Valley. Officers in a helicopter tracked the Sebring using a powerful
magnifying camera, which enabled them to see people on the ground from an altitude of
6,500 to 8,000 feet. The officers in the helicopter were in contact with numerous officers
on the ground in unmarked vehicles who were using the information provided by the
5 The trial court dismissed count 12 pursuant to defense motions for judgment of
acquittal. (§ 1118.1.) Accordingly, evidence relating to that count is omitted.
4
airship to follow the Sebring and relay street names and house numbers back to the
helicopter.
The helicopter tracked the Sebring as it exited the freeway in Northridge and
slowly drove through side streets, occasionally stopping in front of homes. Eventually,
the Sebring stopped in front of a house on the 9000 block of Gothic Avenue. After about
five minutes, the female driver exited the vehicle, walked to the front door of the house,
and knocked on the door for one to two minutes. No one opened the door. The woman
returned to the Sebring and drove away.
The Sebring stopped in front of the home of Julianne McCloskey on the 9000
block of Gerald Avenue. Once again, the driver got out of the car, walked up to the front
door of the house, knocked, and stood there for about a minute and a half. No one came
to the door. The driver then peeked over the side gate of the house before returning to the
car. After a few minutes the Sebring pulled away.6
The Sebring then parked across the street from a home on the 16000 block of
Tupper Street. Again, the driver exited the vehicle and knocked on the front door of the
house for about a minute. No one came to the door. The driver looked over the gate on
the side of the house before returning to the Sebring. After about five minutes the
Sebring drove away.
Police next observed the Sebring stop in front of the home of Kin Fong on the
16000 block of Labrador Street. Fong was not home. The female driver got out of the
car and walked up the driveway to the front door of the house. After knocking on the
6 Although McCloskey had been home part of the day, she had not seen appellants
on her property or in the area of her house. However, sometime between March 31 and
April 15, 2011, Bashir had approached McCloskey at her house, claiming she was selling
some kind of cleaner. McCloskey became suspicious when she learned that Bashir had
only one bottle of the cleaner, and told Bashir she did not allow solicitors on her property
and was not interested. The encounter stuck in McCloskey’s memory because Bashir had
retorted, “Well, did your children eat today?” McCloskey offered to give Bashir food if
she needed to feed her children, but Bashir responded with an expletive and walked
away.
5
door for a minute or two and receiving no response, she walked to the side gate and
looked into the backyard. As she had done after knocking on the doors of the previous
homes, the woman went back to the Sebring and sat in the driver’s seat. This time,
however, the Sebring did not pull away. After about five minutes, a thin male emerged
from the backseat of the Sebring and went through the gate to the backyard. A heavier
male then got out of the front passenger seat of the Sebring and joined the thinner man in
the backyard. The men opened a window through which they entered the house. After
about 10 to 15 minutes, both men exited through the front door carrying small bags and
pillowcases which appeared to be weighted down.7
A marked police car followed the Sebring when it left the Fong residence. As
police attempted to conduct a traffic stop, the Sebring began to pull over to the right and
slow down, but suddenly accelerated and sped away. During the ensuing police chase,
the Sebring ran several red lights in heavy traffic, and money, coins, jewelry, clothing,
and video game cartridges were thrown from all four of the Sebring’s windows. Some of
the coins hit the windshield of the closest police car.
The Sebring eventually crashed, and the three occupants of the vehicle ran in
different directions. Police took up the chase on foot, and Bashir, Weddington, and
Nunnery were apprehended and taken into custody. As Nunnery was being apprehended,
he spun around and elbowed the arresting officer in the face, breaking his nose.8
Gang Evidence
In a bifurcated bench trial, the prosecution presented evidence in support of the
gang enhancement allegations that Weddington, Nunnery, and Bashir were all members
7When Fong returned home, she found her house had been ransacked and
property worth more than $1,000 was missing.
8 Based on this conduct, Nunnery was charged individually in count 5 with battery
with injury on a peace officer, with a special allegation of personal infliction of great
bodily injury on a peace officer. (§ 243, subd. (c)(2).) Following the jury’s deadlock on
count 5, the court declared a mistrial as to that count, and Nunnery pleaded guilty to
misdemeanor battery.
6
of the Clover subset of the “Seven Trey Gangster Hustler Crip” criminal street gang
(STGH), an offshoot of the original Crips gang. They all had numerous STGH tattoos.
The prosecution gang expert testified that gang tattoos were earned by “putting in work”
for the gang, that is, committing crimes for the gang’s benefit. An individual with STGH
tattoos who is not a member of STGH but is present in the gang’s territory risks serious
injury or even being killed.
The prosecution also presented evidence about a traffic stop on August 11, 2011,
in which Weddington and Nunnery were passengers in a car driven by Fawzy Shabib.
Police conducting the stop found two loaded handguns in the vehicle. A DNA profile
obtained from the handgun closest to Weddington matched his DNA profile. That
handgun was loaded with six live rounds and its safety was off. During the stop, the
officer noted Weddington’s and Nunnery’s numerous gang-related tattoos. Subsequently,
the officer saw a YouTube video featuring Shabib claiming membership in the Clover
subset of the STGH gang, throwing gang signs, and using gang vernacular to disparage
other gangs. The prosecution’s gang expert opined that the circumstances of the traffic
stop were consistent with Weddington’s and Nunnery’s active membership in STGH.
According to the prosecution gang expert, the burglary and attempted burglaries
represented a signature crime of STGH, known as “floccin’,” in which Crip gang
members leave their territory in the southern part of Los Angeles to commit daytime
burglaries of residences in the San Fernando Valley suburbs. The term “floccin’” is
derived from so-called “knock-knock burglaries,” in which one of the perpetrators knocks
on the door of a target residence to determine if anyone is home. The gang expert
described a YouTube video he had seen by a STGH gang member known as “Cowboy”
which depicted floccin’ as a residential daytime burglary in which jewelry and other
small items are taken and the perpetrators flee in a getaway car. The expert explained
that if a woman participates in the crime, she is usually the driver of the getaway vehicle.
7
DISCUSSION
I. Substantial Evidence Supports the Attempted Burglary Convictions
Appellants contend there was no evidence that appellants’ conduct had progressed
beyond planning and preparation, and therefore their convictions for attempted burglary
in counts 2, 9, 10, and 11 must be reversed for insufficient evidence. We disagree.
A criminal attempt occurs when there is a specific intent to commit the crime and
a direct but ineffectual act done toward its commission. (People v. Hajek and Vo (2014)
58 Cal.4th 1144, 1192; People v. Bonner (2000) 80 Cal.App.4th 759, 764.) “The overt
act element of attempt requires conduct that goes beyond ‘mere preparation’ and ‘show[s]
that [defendant] is putting his or her plan into action.’ ” (People v. Watkins (2012) 55
Cal.4th 999, 1021; People v. Toledo (2001) 26 Cal.4th 221, 230.) “The act that goes
‘beyond mere preparation’ need not constitute an element of the target crime [citation],
and it ‘ “need not be the ultimate step toward the consummation of the design.” ’
[Citation.] Instead, ‘ “it is sufficient if [the conduct] is the first or some subsequent act
directed towards that end after the preparations are made.” ’ [Citation.] In other words,
. . . the act must represent ‘ “some appreciable fragment of the crime.” ’ ” (People v.
Watkins, supra, 55 Cal.4th at p. 1021; People v. Hajek and Vo, supra, 58 Cal.4th at
p. 1192; People v. Superior Court (Decker) (2007) 41 Cal.4th 1, 8 (Decker).)
Our Supreme Court has “recognized that ‘[w]henever the design of a person to
commit crime is clearly shown, slight acts in furtherance of the design will constitute an
attempt.’ ” (Decker, supra, 41 Cal.4th at p. 8; People v. Davis (2009) 46 Cal.4th 539,
606.) In the face of such manifest intent, “an act done toward the commission of the
crime may be sufficient for an attempt even though that same act would be insufficient if
the intent is not as clearly shown.” (People v. Bonner, supra, 80 Cal.App.4th at p. 764.)
Indeed, “the plainer the intent to commit the offense, the more likely that steps in the
early stages of the commission of the crime will satisfy the overt act requirement.”
(People v. Dillon (1983) 34 Cal.3d 441, 455; People v. Anderson (1934) 1 Cal.2d 687,
690.)
8
Appellants characterize their acts of driving through neighborhoods and knocking
on doors merely as preparation to commit burglary, which falls short of the overt act
necessary to establish an attempt. We disagree.
In reviewing appellants’ challenge to the sufficiency of the evidence, we examine
the whole record in the light most favorable to the judgment, drawing all reasonable
inferences in favor of the verdict, and presuming “in support of the judgment the
existence of every fact the trier could reasonably deduce from the evidence.” (People v.
Kraft (2000) 23 Cal.4th 978, 1053; People v. Maciel (2013) 57 Cal.4th 482, 515.) “ ‘The
standard of review is the same in cases in which the People rely mainly on circumstantial
evidence. [Citation.] “Although it is the duty of the jury to acquit a defendant if it finds
that circumstantial evidence is susceptible of two interpretations, one of which suggests
guilt and the other innocence [citations], it is the jury, not the appellate court which must
be convinced of the defendant’s guilt beyond a reasonable doubt.” ’ ” (People v. Snow
(2003) 30 Cal.4th 43, 66.) “ ‘ “If the circumstances reasonably justify the trier of fact’s
findings, the opinion of the reviewing court that the circumstances might also reasonably
be reconciled with a contrary finding does not warrant a reversal of the judgment.” ’ ”
(People v. Kraft, supra, 23 Cal.4th at pp. 1053–1054; People v. Zamudio (2008) 43
Cal.4th 327, 358.) It is not the role of the appellate court to reweigh the evidence or
reevaluate witnesses’ credibility. (People v. Whisenhunt (2008) 44 Cal.4th 174, 200.)
“An appellate court must accept logical inferences that the jury might have drawn from
the circumstantial evidence.” (People v. Maury (2003) 30 Cal.4th 342, 396.) Indeed,
reversal for lack of substantial evidence is warranted only if “ ‘upon no hypothesis
whatever is there sufficient substantial evidence to support [the conviction].’ ” (People v.
Bolin (1998) 18 Cal.4th 297, 331; accord, People v. Zamudio, supra, 43 Cal.4th at p. 357;
People v. Pre (2004) 117 Cal.App.4th 413, 421.)
Instructing on the elements required to prove an attempted burglary, the trial court
explained that “[a] direct step is one that goes beyond planning or preparation and shows
that a person is putting his or her plan into action.” The court further instructed that “[a]
person who attempts to commit burglary is guilty of attempted burglary even if, after
9
taking a direct step towards committing the crime, he or she abandoned further efforts to
complete the crime.”9 (CALCRIM No. 460; 1 Witkin, Cal. Criminal Law (4th ed. 2012)
Elements, § 71, p. 363; see also People v. Staples (1970) 6 Cal.App.3d 61, 69; People v.
Carter (1925) 73 Cal.App. 495, 500.)
Here, the evidence amply supported the jury’s finding that appellants had
completed their planning and preparation to commit burglaries when they traveled from
the southern part of Los Angeles to the San Fernando Valley with tools in the car to aid in
the commission of those burglaries. Appellants’ unusual conduct, which included driving
slowly through the targeted neighborhoods, parking in front of certain residences for
several minutes, knocking on the front doors of those houses for one to two minutes, and
peering over gates into backyards, was not the behavior of an innocent visitor to a
neighborhood. The jury could thus reasonably conclude that appellants’ acts constituted
direct movements toward the commission of burglary after the preparations had been
made, representing implementation of the plan and the commencement of the
consummation of the crime. (People v. Watkins, supra, 55 Cal.4th at p. 1021; Decker,
supra, 41 Cal.4th at p. 8; People v. Toledo, supra, 26 Cal.4th at p. 230.)
Further, even though appellants apparently decided not to complete the burglaries
of some of the homes they targeted, the evidence supported the jury’s conclusion that
appellants had already taken steps to implement their plan. At this point, a voluntary
withdrawal—even one occasioned by a change of heart (of which there is no evidence
here)—would constitute no defense to the charge of attempted burglary. (People v.
Robinson (1960) 180 Cal.App.2d 745, 750–751; see also People v. Stewart (1893)
97 Cal. 238, 240 [“The fact that [defendant] abandoned his wicked purpose upon the
approach of other parties has not the slightest tendency to purge him of the legal
consequences of his criminal conduct. If an assault with the intent here alleged is made,
9 Appellants do not challenge the propriety of these instructions.
10
it is no less a crime, though the aggressor should abandon his intentions before the
consummation of the act, by reason of the pains of a stricken conscience alone”].)
There was also abundant evidence in this case from which the jury could infer
appellants’ intent to commit a string of residential burglaries. Appellants were
apprehended on September 7 with burglary tools in their car. And they followed the
identical pattern for the residence they actually burglarized as they had for all the other
targeted homes: In midmorning during the week when most people are at work,
appellants drove a significant distance from their homes to a San Fernando Valley
suburb, slowly cruising through residential neighborhoods. They parked on the street in
front of a house, and while the two men waited in the car, Bashir got out and stood at the
front door for an unusually long time, knocking for one to two minutes. When no one
came to the door, she looked over the gates of two of the homes. After Bashir returned to
the Sebring, appellants remained parked on the street for several more minutes before
either moving on to the next target or burglarizing the home. (See People v. Prince
(2007) 40 Cal.4th 1179, 1257 (Prince).)
In Prince, the defendant challenged the sufficiency of the evidence in support of
his attempted burglary conviction as appellants do here, on the ground that the evidence
“consisted of nothing more than an innocent knock at the door, accompanied by an
inquiry after a friend.” (Prince, supra, 40 Cal.4th at p. 1257.) Citing the defendant’s
completed burglary a month after the attempt and his pattern of conduct in committing
the attempted burglary and other crimes, the Supreme Court found “ample evidence that
[the] approach to the [victim’s] residence also constituted an attempted burglary in which
defendant’s activities went beyond mere preparation.” (Ibid.)
Here, as in Prince, the completed burglary together with appellants’ strikingly
similar methods of operation for every one of the targeted residences clearly
demonstrated their intent to burglarize homes in the area. (Prince, supra, 40 Cal.4th
1179; see also People v. Davis, supra, 46 Cal.4th at pp. 606–607; People v. Ansaldo
(1998) 60 Cal.App.4th 1190, 1197.) And unlike Prince, no innocent purpose was even
suggested, nor is any apparent from appellants’ conduct. As set forth above, in the face
11
of such overwhelming evidence of intent to commit the target crime, only “ ‘slight acts in
furtherance of the design will constitute an attempt.’ ” (Decker, supra, 41 Cal.4th at p. 8;
People v. Davis, supra, 46 Cal.4th at p. 606.) Moreover, where, as here, intent is so
clearly demonstrated, “ ‘ “the courts should not destroy the practical and common-sense
administration of the law with subtleties as to what constitutes preparation and what
constitutes an act done toward the commission of a crime.” ’ ” (People v. Davis, supra,
46 Cal.4th at p. 606.)
In challenging the sufficiency of the evidence to support appellants’ convictions
for attempted burglary, appellants and the dissent focus narrowly on Bashir’s conduct of
approaching and knocking on the front door of each of the targeted homes to argue that
appellants’ conduct amounted to no more than preparation to commit burglary. (See
conc. & dis. opn. at pp. 1–6, post.) But our substantial evidence review requires that we
consider the totality of the evidence presented, including the reasonable inferences to be
drawn from that evidence, and conduct our review in the light most favorable to the
judgment. (People v. Maciel, supra, 57 Cal.4th at p. 515; People v. Johnson (1980)
26 Cal.3d 557, 576.) Such review does not permit an appellate court to second-guess the
jury in its evidentiary assessments. (People v. Zamudio, supra, 43 Cal.4th at p. 357–
358.)
The dissent contends that appellants’ “scouting or casing did not constitute an
unequivocal commitment to breaking in to the houses: They might break into the house,
but they might keep looking. In fact, defendants did not break into any of these houses
and instead kept looking until they found what they considered a suitable target.” (Conc.
& dis. opn. at pp. 3–4, post.) By focusing on appellants’ “equivocation,” however, the
dissent reweighs the evidence to determine that the circumstances might reasonably be
reconciled with a finding that appellants’ conduct had not yet crossed the line from mere
preparation to implementation of their plan. But the jury evaluated the same evidence
and reached a different determination, reasonably concluding that appellants’ conduct—
driving slowly through neighborhoods far from where they lived and equipped with tools
for committing burglaries, parking in front of certain residences for several minutes,
12
knocking on the front doors of those houses for an unusual length of time, and peering
into backyards—constituted direct movements toward the commission of burglary after
the preparations had been made. Whether such conduct demonstrated “equivocation”
was for the jury to decide, and the reviewing court’s opinion that the facts may be
susceptible to more than one reasonable interpretation cannot form the basis for reversal
of the judgment. (People v. Kraft, supra, 23 Cal.4th at pp. 1053–1054; People v.
Zamudio, supra, 43 Cal.4th at p. 358.)
The dissent distinguishes the recent case of People v. Zaun (March 25, 2016,
C078962) ___ Cal.App.4th ___ [2016 Cal.App. Lexis 225] (Zaun) on the ground that in
this case, “unlike in Zaun, there is no evidence that the defendants’ intent to burgle was
frustrated by the presence of unwanted occupants.” (Conc. & dis. opn. at p. 5, post.) In
Zaun, the defendant challenged the sufficiency of the evidence in support of his
convictions for attempted burglary on the ground that the evidence established only that
he and his associates were casing houses, but not that they had formed the requisite intent
to commit burglary. (Zaun, at p. ___ [2016 Cal.App. Lexis 225, at *3].) There, as in
Prince and this case, the defendant and his associates took turns knocking on the doors of
houses, making some pretense for the visit if someone answered the door, and
burglarizing three homes where no one answered the door. The court noted that the
circumstantial evidence of the defendant’s intent was susceptible of two interpretations
by the jury, one innocent, the other guilty. Citing the familiar principles of substantial
evidence review set forth above, the court concluded that the defendant’s attempted
burglary convictions were based on logical inferences the jury had drawn from the
evidence, which the court must accept on appeal. (Id. at p. ___ [2016 Cal.App. Lexis
225, at *3–*4]; People v. Maury, supra, 30 Cal.4th at p. 396.)
Here, as in Zaun, substantial evidence supported the jury’s conclusion that
appellants intended to commit burglary. In this case, the jury also reasonably determined
that appellants’ acts of cruising through a residential neighborhood, knocking on doors
and looking over fences constituted the implementation of their plan to burglarize homes
in the area after the preparations had been made. As set forth above, such acts “ ‘need
13
not be the ultimate step toward the consummation of the design,’ ” but may even be the
first act that goes “ ‘beyond mere preparation’ ” and represents “ ‘ “some appreciable
fragment of the crime.” ’ ” (People v. Watkins, supra, 55 Cal.4th at p. 1021; People v.
Hajek and Vo, supra, 58 Cal.4th at p. 1192; People v. Toledo, supra, 26 Cal.4th at p. 230
[“Under the provisions of section 21a, a defendant properly may be found guilty of [an
attempt crime] whenever, acting with the specific intent to commit the offense . . . , the
defendant performs an act that goes beyond mere preparation and indicates that he or she
is putting a plan into action”].)
An examination of the whole record in this case reveals abundant evidentiary
support for the jury’s determination that appellants had progressed beyond planning and
preparation, and their conduct constituted the execution of the planned burglaries. Based
on the totality of the evidence, we therefore reject appellants’ challenge to the sufficiency
of the evidence supporting their convictions for attempted burglary.
II. Substantial Evidence Supports the Trial Court’s True Findings on the
Gang Allegations
Appellants contend that the trial court’s true findings on the gang enhancements
must be reversed because the only evidence supporting them was the conclusory opinion
of the prosecution’s gang expert. We disagree.
The standard of appellate review for determining the sufficiency of the evidence
supporting an enhancement is the same as that applied to a conviction. (People v. Wilson
(2008) 44 Cal.4th 758, 806; People v. Mejia (2012) 211 Cal.App.4th 586, 614.) And like
a conviction lacking substantial evidentiary support, a true finding on a gang
enhancement that is not supported by substantial evidence violates a defendant’s federal
and state constitutional rights and must be reversed. (People v. Ochoa (2009) 179
Cal.App.4th 650, 656–657.)
“In order to prove the elements of the criminal street gang enhancement, the
prosecution may, as in this case, present expert testimony on criminal street gangs.”
(People v. Hernandez (2004) 33 Cal.4th 1040, 1047–1048.) “ ‘Expert opinion that
14
particular criminal conduct benefited a gang’ is not only permissible but can be sufficient
to support [a] gang enhancement.” (People v. Vang (2011) 52 Cal.4th 1038, 1048.)
Appellants observe that expert testimony that is unsupported by any evidence that
the crime was gang-related is insufficient to support a gang enhancement. (People v.
Ochoa, supra, 179 Cal.App.4th at p. 657.) Relying on the court’s reversal of the gang
enhancement for insufficient evidence in People v. Ramon (2009) 175 Cal.App.4th 843,
849, 851, 853, appellants contend that reversal is required here, where the “actual, direct
evidence shows only offenses committed by gang members, not that the offense[s] were
committed with the specific intent to benefit the gang or that the offenses had any gang-
related purpose whatsoever.” But appellants’ argument ignores the evidence upon which
the trial court was entitled to rely that supported its findings on the gang enhancement.
There are two “prongs” to the gang enhancement under section 186.22,
subdivision (b)(1). (People v. Albillar (2010) 51 Cal.4th 47, 59 (Albillar).) The first
prong requires that the prosecution prove the underlying felony was “gang-related.” (Id.
at p. 60; People v. Gardeley (1996) 14 Cal.4th 605, 622.) The second prong “requires
that a defendant commit the gang-related felony ‘with the specific intent to promote,
further, or assist in any criminal conduct by gang members.’ ”10 (Albillar, at p. 64;
§ 186.22, subd. (b)(1).)
Section 186.22, subdivision (b)(1) provides three alternatives for establishing the
first prong—that the underlying offense was “gang-related.” The offense may be
10 “In addition, the prosecution must prove that the gang (1) is an ongoing
association of three or more persons with a common name or common identifying sign or
symbol; (2) has as one of its primary activities the commission of one or more of the
criminal acts enumerated in the statute; and (3) includes members who either individually
or collectively have engaged in a ‘pattern of criminal gang activity’ by committing,
attempting to commit, or soliciting two or more of the enumerated offenses (the so-called
‘predicate offenses’) during the statutorily defined period. (§ 186.22, subds. (e) and (f).)”
(People v. Gardeley, supra, 14 Cal.4th at p. 617.) Appellants’ challenge here goes only
to the sufficiency of the evidence in support of the “gang-related” and specific intent
elements.
15
committed: (1) for the benefit of a gang; (2) at the direction of a gang; or (3) in
association with a gang. (See Albillar, supra, 51 Cal.4th at pp. 59–60.) Because the first
prong is worded in the disjunctive, a gang enhancement may be imposed without
evidence of any benefit to the gang so long as the crime was committed in association
with or at the direction of another gang member. (People v. Leon (2008) 161
Cal.App.4th 149, 162; People v. Morales (2003) 112 Cal.App.4th 1176, 1198.) The first
prong therefore may be established with substantial evidence that two or more gang
members committed the crime together, unless there is evidence that they were “on a
frolic and detour unrelated to the gang.” (People v. Morales, supra, 112 Cal.App.4th at
p. 1198; see also Albillar, supra, 51 Cal.4th at pp. 61–62.)
The record in this case amply supports the trial court’s finding that appellants
committed the underlying offenses as gang members acting in association, thus satisfying
the “gang-related” prong of the statute. (See Albillar, supra, 51 Cal.4th at p. 62
[“defendants came together as gang members to attack [the victim] and, thus, . . . they
committed these crimes in association with the gang”]; People v. Morales, supra,
112 Cal.App.4th at p. 1198 [“the jury could reasonably infer the requisite association
from the very fact that defendant committed the charged crimes in association with
fellow gang members”].)
The prosecution presented substantial evidence that all three appellants were
active members of STGH. They all had STGH tattoos. And the circumstances of the
August 18, 2011 traffic stop involving Nunnery and Weddington were consistent with
active STGH gang membership. The burglary and attempted burglaries represented a
signature crime of STGH, known as “floccin’,” in which Crip gang members leave their
territory in the southern part of Los Angeles to commit daytime burglaries of residences
in the San Fernando Valley suburbs. Indeed, the burglary in this case followed the exact
pattern of the typical “floccin’” burglary depicted in the YouTube video, wherein the
perpetrators commit a daytime break-in to steal jewelry and other small items and flee in
a getaway car. There was no evidence to suggest the “floccin’” here constituted a “frolic
and detour” distinct and independent of the criminal activities of the gang.
16
The fact that these three gang members came together to commit these crimes also
satisfies the second prong of section 186.22, subdivision (b)(1), that the “defendant
commit the gang-related felony ‘with the specific intent to promote, further, or assist in
any criminal conduct by gang members.’ ” (Albillar, supra, 51 Cal.4th at p. 64.) “There
is no statutory requirement that this ‘criminal conduct by gang members’ be distinct from
the charged offense, or that the evidence establish specific crimes the defendant intended
to assist his fellow gang members in committing.” (Albillar, supra, at p. 66; People v.
Vazquez (2009) 178 Cal.App.4th 347, 354.) Indeed, as our Supreme Court has held, “if
substantial evidence establishes that the defendant intended to and did commit the
charged felony with known members of a gang, the jury may fairly infer that the
defendant had the specific intent to promote, further, or assist criminal conduct by those
gang members.” (Albillar, supra, 51 Cal.4th at p. 68.)
Contrary to appellants’ assertion, the expert’s testimony in this case was not
merely the expert’s unsubstantiated opinion about how the gang determination should be
made. Rather, the expert’s opinion was supported by evidence concerning the manner in
which these crimes were carried out and appellants’ active gang membership.
Appellants’ substantial evidence challenge to the trial court’s gang enhancement
determination is without merit.
III. Appellants’ Convictions for Evading a Peace Officer in Willful
Disregard for Safety Find Substantial Evidentiary Support in the
Record
Neither Weddington nor Nunnery was alleged to have been driving the Sebring at
any time on September 26, 2011. Appellants therefore contend the evidence is
insufficient to support Weddington’s and Nunnery’s convictions on count 4 for evading a
peace officer in a willful or wanton disregard for safety. We disagree.
To establish a violation of Vehicle Code section 2800.2, subdivision (a), the
prosecution was required to prove that while driving a vehicle in a willful or wanton
disregard for the safety of persons or property, the appellants fled or attempted to elude a
police officer pursuing in a vehicle. (Veh. Code, § 2800.2, subd. (a); People v. Sewell
17
(2000) 80 Cal.App.4th 690, 695, disapproved on another ground in People v. Howard
(2005) 34 Cal.4th 1129, 1139, fn. 5; CALCRIM No. 2181.) “ ‘ “Wantonness includes the
elements of consciousness of one’s conduct, intent to do or omit the act in question,
realization of the probable injury to another, and reckless disregard of consequences.”
[Citation.] . . . The word “willful” in this connection means “intentional” [citations]. The
intention here referred to relates to the disregard of safety, etc., not merely to the act done
in disregard thereof.’ ” (People v. Schumacher (1961) 194 Cal.App.2d 335, 340.)
Vehicle Code section 2800.2, subdivision (b) further provides that “a willful or wanton
disregard for the safety of persons or property includes, but is not limited to, driving
while fleeing or attempting to elude a pursuing peace officer during which time either
three or more violations that are assigned a traffic violation point count under [Vehicle
Code] Section 12810 occur, or damage to property occurs.”
The prosecution in this case presented alternative theories to establish the charge
of evasion against Weddington and Nunnery: The evasion was a natural and probable
consequence of a burglary aided and abetted by Weddington and Nunnery, or a natural
and probable consequence of a burglary that appellants conspired to commit.
At the heart of the natural and probable consequences doctrine lies reasonable
foreseeability. Our Supreme Court has explained: “ ‘A person who knowingly aids and
abets criminal conduct is guilty of not only the intended crime [target offense] but also of
any other crime the perpetrator actually commits [nontarget offense] that is a natural and
probable consequence of the intended crime. The latter question is not whether the aider
and abettor actually foresaw the additional crime, but whether, judged objectively, it was
reasonably foreseeable. [Citation.]’ [Citation.] Liability under the natural and probable
consequences doctrine ‘is measured by whether a reasonable person in the defendant’s
position would have or should have known that the charged offense was a reasonably
foreseeable consequence of the act aided and abetted.’ ” (People v. Medina (2009) 46
Cal.4th 913, 920 (Medina); People v. Mendoza (1998) 18 Cal.4th 1114, 1133; People v.
Prettyman (1996) 14 Cal.4th 248, 260–262.)
18
The high court continued: “ ‘[A]lthough variations in phrasing are found in
decisions addressing the doctrine—“probable and natural,” “natural and reasonable,” and
“reasonably foreseeable”—the ultimate factual question is one of foreseeability.’
[Citation.] Thus, ‘ “[a] natural and probable consequence is a foreseeable
consequence.” ’ ” (Medina, supra, 46 Cal.4th at p. 920; People v. Coffman and Marlow
(2004) 34 Cal.4th 1, 107.) “A reasonably foreseeable consequence is to be evaluated
under all the factual circumstances of the individual case [citation] and is a factual issue
to be resolved by the jury.” (Medina, supra, 46 Cal.4th at p. 920.)
The natural and probable consequences doctrine applies with equal force to cases
involving the vicarious liability of conspirators for a crime committed in furtherance of
the conspiracy. (People v. Prieto (2003) 30 Cal.4th 226, 249–250.) “One who conspires
with others to commit a felony is guilty as a principal. (§ 31.) ‘ “Each member of the
conspiracy is liable for the acts of any of the others in carrying out the common purpose,
i.e., all acts within the reasonable and probable consequences of the common unlawful
design.” ’ ” (In re Hardy (2007) 41 Cal.4th 977, 1025–1026.) “ ‘[E]ach conspirator is
bound by the acts of a confederate in furthering the common design of the conspiracy by
escaping or resisting arrest, even though such acts may have been “dictated by the
exigencies of the moment.” ’ ” (People v. Garewal (1985) 173 Cal.App.3d 285, 296,
quoting People v. Smith (1966) 63 Cal.2d 779, 794.)
Appellants acknowledge that a rational jury could find it reasonably foreseeable
that the driver of a vehicle fleeing after the commission of a felony might attempt to
evade police. They nevertheless maintain it was not foreseeable that, while evading the
police, Bashir would drive the car in willful or wanton disregard for the safety of persons
or property. In support of their claim, appellants assert that Bashir’s reckless driving was
not foreseeable “based on the planning, the accomplished burglary, or the previous
encounter with the police on September 7, 2011.” To the contrary, there was abundant
evidence that Nunnery and Weddington expected Bashir to drive the getaway vehicle in
whatever manner was necessary to elude the police and avoid apprehension, regardless of
any danger to persons or property. Given appellants’ flight from police after the
19
attempted burglary on September 7, it was certainly predictable that Bashir would again
attempt to evade police after the burglary on September 26. During the police chase that
followed the burglary of the Fong residence, all of the occupants of the vehicle threw
stolen property and other items out of the car, some of which hit one of the pursuing
police cars. Moreover, despite the lack of evidence that Nunnery and Weddington were
directing or controlling the manner in which Bashir was driving, the evidence established
that both men took advantage of the crash that resulted from Bashir’s reckless driving by
exiting the vehicle and fleeing on foot.
Appellants’ argument also ignores the principle that “ ‘to be reasonably
foreseeable “[t]he consequence need not have been a strong probability; a possible
consequence which might reasonably have been contemplated is enough.” ’ ” (Medina,
supra, 46 Cal.4th at p. 920.) Given the substantial evidence that execution of the
common design included the use of a getaway car to avoid apprehension, Weddington
and Nunnery certainly could have foreseen Bashir’s reckless driving in evading the
police. Their convictions on count 4 are supported by substantial evidence.
IV. The Trial Court Had No Sua Sponte Duty to Instruct the Jury on the
Lesser Included Offense of Misdemeanor Evading
Appellants assert that although Bashir may have driven the Sebring with willful or
wanton disregard for safety, there was sufficient evidence that the offenses as committed
by Weddington and Nunnery were less than that charged to warrant instruction on the
lesser included offense of misdemeanor evasion. (Veh. Code, § 2800.1; People v.
Springfield (1993) 13 Cal.App.4th 1674, 1680–1681.) According to appellants, the trial
court erred in failing to instruct, sua sponte, on the lesser included offense of
misdemeanor evading. We disagree.
Appellants did not request an instruction on misdemeanor evading. Nevertheless,
“ ‘ “[i]t is settled that in criminal cases, even in the absence of a request, the trial court
must instruct on the general principles of law relevant to the issues raised by the
evidence. [Citations.] The general principles of law governing the case are those
principles closely and openly connected with the facts before the court, and which are
20
necessary for the jury’s understanding of the case.” [Citation.] That obligation has been
held to include giving instructions on lesser included offenses when the evidence raises a
question as to whether all of the elements of the charged offense were present [citation],
but not when there is no evidence that the offense was less than that charged.’ ” (People
v. Breverman (1998) 19 Cal.4th 142, 154.)
However, “[s]peculation is insufficient to require the giving of an instruction on a
lesser included offense.” (People v. Mendoza (2000) 24 Cal.4th 130, 174.) Indeed, “the
existence of ‘any evidence, no matter how weak’ will not justify instructions on a lesser
included offense, but such instructions are required whenever evidence that the defendant
is guilty only of the lesser offense is ‘substantial enough to merit consideration’ by the
jury. [Citations.] ‘Substantial evidence’ in this context is ‘ “evidence from which a jury
composed of reasonable [persons] could . . . conclude[]” ’ that the lesser offense, but not
the greater, was committed.” (People v. Breverman, supra, 19 Cal.4th at p. 162.) “[A]
lesser included instruction need not be given when there is no evidence that the offense is
less than that charged.” (People v. Mendoza, supra, 24 Cal.4th at p. 174.)
“It is well settled that ‘the trial court need not, even if requested, instruct the jury
on the existence and definition of a lesser and included offense if the evidence was such
that the defendant, if guilty at all, was guilty of the greater offense.’ (People v. Kelly
(1990) 51 Cal.3d 931, 959.)” (People v. Trimble (1993) 16 Cal.App.4th 1255, 1260.)
Here, there was no evidence that appellants Weddington and Nunnery committed
misdemeanor evading but not felony evading. Thus, the evidence did not warrant an
instruction on the lesser included offense.
The only distinction between the crimes of felony and misdemeanor evading is
that in committing the felony, the pursued vehicle is driven “ ‘in a willful or wanton
disregard for the safety of persons or property.’ ” (People v. Springfield, supra, 13
Cal.App.4th at p. 1680; Veh. Code, § 2800.2.) The crime of misdemeanor evading is
21
accomplished without willful or wanton disregard for safety. (Veh. Code, § 2800.1.)11
Thus, if the evidence shows that the defendant “fle[d] or attempt[ed] to elude a pursuing
peace officer in violation of [Vehicle Code] Section 2800.1 and the pursued vehicle [was]
driven in a willful or wanton disregard for the safety of persons or property,” the
defendant is guilty of felony, not misdemeanor evading. (Veh. Code, § 2800.2.)
The fact that Weddington and Nunnery were passengers in the car is irrelevant to
the question of whether the vehicle was driven “ ‘in a willful or wanton disregard for the
safety of persons or property.’ ” (People v. Springfield, supra, 13 Cal.App.4th at p. 1680;
Veh. Code, § 2800.2.) Only one person could drive the getaway car at a time, and that
person was Bashir. However, despite the lack of evidence that Nunnery or Weddington
directly controlled the vehicle, the evidence supported an inference that both men
contributed to and took full advantage of Bashir’s reckless driving in heavy traffic by
throwing money, coins, jewelry, clothing, and video game cartridges from the getaway
car’s windows, and then exiting the vehicle and fleeing on foot after the crash. Indeed,
appellants’ complete disregard for the safety of persons or property is exemplified by
Nunnery’s battery on the police officer as he was being apprehended following the crash.
Weddington’s and Nunnery’s own conduct during the evasion and after the getaway car
crashed demonstrated that if they were guilty of any crime of evading at all, it was the
felony and not the misdemeanor: As full participants in the efforts to elude the police and
avoid apprehension, they indisputably committed the crime “in a willful or wanton
disregard for the safety of persons or property.” (Veh. Code, § 2800.2.)
The dissent asserts that because substantial evidence supported a finding “that it
was reasonably foreseeable that Bashir would flee from and attempt to evade police
officers, but not with wanton and willful disregard for persons and property,” instructions
11 Vehicle Code section 2800.1 provides in relevant part: “Any person who, while
operating a motor vehicle and with the intent to evade, willfully flees or otherwise
attempts to elude a pursuing peace officer’s motor vehicle, is guilty of a misdemeanor.”
(Id., subd. (a).)
22
on the lesser offense were required. (Conc. & dis. opn. at p. 8, post.) In support of this
conclusion, the dissent speculates that the greater risk to the occupants of the getaway
car, increased punishment if they were caught, and the low probability of actually getting
away reduced the foreseeability that Bashir would drive recklessly in order to avoid
apprehension after the burglary. (Ibid.) Thus, according to the dissent, “reckless driving
from the scene of the crime was not inevitable.” (Ibid.) However, no evidence supports
the dissent’s supposition, and, as set forth above, an instruction on a lesser included
offense is not required on the basis of mere speculation. (People v. Mendoza, supra, 24
Cal.4th at p. 174.) Furthermore, no instruction on a lesser included offense is justified
simply on the basis of “ ‘any evidence, no matter how weak.’ ” (People v. Breverman,
supra, 19 Cal.4th at p. 162.) Finally, it bears repeating that no instructional duty arises if
the evidence establishes that the defendant, if guilty at all, was guilty of the greater
offense. (People v. Kelly, supra, 51 Cal.3d at p. 959; People v. Trimble, supra, 16
Cal.App.4th at p. 1260.)
Here, the evidence did not warrant an instruction on the lesser offense because
there was simply no evidence that appellants Weddington and Nunnery committed
misdemeanor evading but not felony evading. In the absence of substantial evidence the
offense was anything less than that charged, the trial court had no sua sponte duty to
instruct the jury on the lesser included offense of misdemeanor evading.
V. Appellants Have Forfeited Any Claim on Appeal Regarding the Trial
Court’s Exercise of Its Sentencing Discretion as to Count 8
Pursuant to section 186.22, subdivision (d), the trial court imposed and stayed a
felony sentence on count 8, possession of burglary tools. Appellants contend that the trial
court appears to have been unaware that it had discretion to impose a misdemeanor rather
than a felony sentence on that count. Appellants thus maintain that remand is required to
enable the trial court to exercise its discretion regarding their sentences on the count 8
conviction. However, because appellants failed to request that the trial court treat the
conviction for possession of burglary tools as a misdemeanor and did not object to the
trial court’s discretionary sentencing choice, we conclude appellants’ claim is forfeited.
23
(People v. Scott (1994) 9 Cal.4th 331, 356.) In any event, the record does not support
appellants’ contention that the trial court was unaware of the scope of its sentencing
discretion. Remand is therefore unwarranted in this case.
In both of its sentencing memoranda, the prosecution stated that section 186.22,
subdivision (d) “transforms the misdemeanor PC section 466 into a felony with a 1, 2, or
3 year range.” Neither Weddington nor Bashir filed a sentencing memorandum.
Nunnery filed two sentencing memoranda, but did not address the trial court’s discretion
under section 186.22, subdivision (d) to sentence count 8 as a misdemeanor or a felony.
At their sentencing hearings, none of the appellants requested that the trial court sentence
count 8 as a misdemeanor rather than as a felony.
“In order to encourage prompt detection and correction of error, and to reduce the
number of unnecessary appellate claims, reviewing courts have required parties to raise
certain issues at the time of sentencing. In such cases, lack of a timely and meaningful
objection forfeits or waives the claim.” (People v. Scott, supra, 9 Cal.4th at p. 351;
People v. Gonzalez (2003) 31 Cal.4th 745, 748 [“a party in a criminal case may not
challenge the trial court’s discretionary sentencing choices on appeal if that party did not
object at trial”]; see also People v. Welch (1993) 5 Cal.4th 228, 234–235.) In this case,
appellants had ample opportunity to contest the prosecutor’s statement in the sentencing
memoranda that count 8 should be sentenced as a felony pursuant to section 186.22,
subdivision (d), but failed to do so. At the sentencing hearing, when the prosecutor
advocated for felony sentencing on count 8, and the court indicated its intent to impose
the high term, appellants remained silent. Their claim on appeal is therefore forfeited.
In any event, the record does not support appellants’ contention that the trial court
was unaware of its discretion to impose a misdemeanor as opposed to a felony sentence
for count 8. Appellants point to the trial court’s apparent confusion over the imposition
of the sentence on count 8 during Nunnery’s sentencing hearing as evidence that the court
was unaware of its discretion and thus failed to exercise it. While the colloquy during
Nunnery’s hearing leaves some ambiguity about the court’s understanding of its
sentencing choices under section 186.22, subdivision (d), the court’s statements during
24
Bashir’s sentencing hearing reveal the court was fully aware of its sentencing discretion
and purposefully exercised it: “Then that takes us back to count eight, the 466, which is a
misdemeanor burglary tools; and it was called to my attention that 186.22 (b) [sic]
converts that into a felony, and it could either be one year misdemeanor . . . with no less
than 180 in the county jail or one, two or three; and I’m imposing the high term of three
years because of the gang allegation under the (d) section and under 654 I am imposing it
and staying it . . . .” (Italics added.)
On appeal, we presume that the trial court followed established law and thus
properly exercised its discretion in sentencing a criminal defendant. (See, e.g., People v.
Coddington (2000) 23 Cal.4th 529, 644 [reviewing court presumes trial court knew and
applied correct statutory and case law], overruled on another ground in Price v. Superior
Court (2001) 25 Cal.4th 1046, 1069, fn. 13; People v. Esparza (2015) 242 Cal.App.4th
726, 742.) Thus, we may not assume the court was unaware of its discretion simply
because it failed to explicitly refer to its alternative sentencing choices. (People v. Bolian
(2014) 231 Cal.App.4th 1415, 1421; People v. Fuhrman (1997) 16 Cal.4th 930, 933,
944–947.)
DISPOSITION
The judgments are affirmed. The trial court is directed to correct Nunnery’s
abstract of judgment to reflect imposition of a one-year consecutive sentence on count 5,
for an aggregate term of 14 years 4 months in state prison, and forward a corrected copy
to the Department of Corrections and Rehabilitation.
CERTIFIED FOR PUBLICATION.
LUI, J.
I concur:
JOHNSON, J.
25
ROTHSCHILD, P. J., concurring and dissenting:
I concur in parts II, III, and V of the majority’s discussion, I concur in part and
respectfully dissent in part to part I, and I respectfully dissent from part IV.
I. Attempted Burglary
A jury convicted defendants of burglary of a house on Labrador Street and
attempted burglary of houses on Gothic Avenue, Gerald Avenue, and Tupper Street.
The majority affirms all of the convictions. I, however, believe that the evidence is
insufficient to support the jury’s verdicts that defendants are guilty of the three attempted
burglaries. I would therefore reverse the convictions for attempted burglary on counts 9
(Gothic Avenue), 10 (Gerald Avenue), and 11 (Tupper Street).
The defendants drove from the southern part of Los Angeles to the San Fernando
Valley. After reaching the Northridge area, they drove slowly in and out of residential
streets for about an hour and a half, stopping for a minute or two outside several houses.
Bashir was driving, Nunnery was in the front passenger seat, and Weddington was in a
rear seat. When they stopped outside a residence on Gothic Avenue, they waited in the
car for about five minutes. Bashir then walked to the front door and knocked while
Weddington and Nunnery waited in the car. When no one answered, Bashir returned to
the car. Defendants then drove to a house on Gerald Avenue. Bashir knocked on the
door and, when no one answered, peeked over a side gate. She returned to the car where
defendants waited for a couple minutes. They then drove to a house on Citronia Street,
where Bashir knocked on the door and returned to the car when no one answered.1 They
remained there for a couple minutes, then drove to a house on Tupper Street, where
Bashir again knocked on the door, peeked over a gate, and returned to the car. After
waiting for about five minutes, defendants drove to a residence on Labrador Street.
1The information included a count alleging that defendants attempted to burgle
a house on Citronia Street, based on knocking on the front door of the house. The court
dismissed the count pursuant to Penal Code section 1118.1 for reasons not apparent in the
record.
Bashir knocked on the door to the Labrador Street house, looked over the fence,
returned to the car, and waited with the others for about five minutes. Bashir remained
in the car while Weddington exited the car and entered the backyard of the house. Within
a couple minutes, Nunnery joined Weddington in the backyard. They then entered the
house through a back window. About 10 minutes later, the two left the house via the
front door carrying property taken from the house.
The majority correctly states the general principles concerning the law of attempt,
which distinguishes preparation to commit a crime from acts that go beyond mere
preparation and constitute “ ‘ “ ‘some appreciable fragment of the crime.’ ” ’ [Citation.]”
(Maj. opn. ante, at p. 8.) As our Supreme Court has explained, the required act “ ‘must
reach far enough towards the accomplishment of the desired result to amount to the
commencement of the consummation.’ ” (People v. Miller (1935) 2 Cal.2d 527, 530
(Miller).) The “consummation” of a burglary occurs when the perpetrator enters a
building with the intent to commit larceny or any felony. (Pen. Code, § 459; Magness v.
Superior Court (2012) 54 Cal.4th 270, 273.) “Commencement” in this context is the
point at which the perpetrator’s actions are no longer equivocal and it appears that the
crime “will be consummated unless interrupted by circumstances independent of the will
of the attempter.” (People v. Buffum (1953) 40 Cal.2d 709, 718; see also People v. Dillon
(1983) 34 Cal.3d 441, 455 [“when the acts are such that any rational person would
believe a crime is about to be consummated absent an intervening force, the attempt is
underway”]; People v. Murray (1859) 14 Cal. 159, 160 [the attempt “must be manifest
by acts which would end in the consummation of the particular offense, but for the
intervention of circumstances independent of the will of the party”].)
In Miller, supra, 2 Cal.2d 527, the Supreme Court emphasized that the line
between preparation and attempt is crossed only when the perpetrator’s conduct “cease[s]
to be equivocal.” (Id. at p. 531.) In that case, the defendant threatened in the presence
of others to kill Albert Jeans because Jeans had allegedly “been annoying his wife” and
“the authorities would not take charge of the matter.” (Id. at p. 529.) That afternoon,
Jeans was working at a ranch owned by the town constable. Defendant went to the ranch
2
and, holding a rifle, walked toward both the constable and Jeans. The constable was
250 or 300 yards away and Jeans was about 30 yards behind the constable. After walking
about 100 yards toward them, the defendant loaded his rifle, but never lifted it to take
aim. Jeans ran off at a right angle to the defendant’s line of approach. The defendant
continued walking toward the constable, who took the defendant’s gun without
resistance. (Ibid.)
The Miller court explained that one does not commit a “direct act, however slight,
toward consummation of the intended crime” so long as the person’s conduct remains
equivocal: “It is that quality of being equivocal that must be lacking before the act
becomes one which may be said to be a commencement of the commission of the
crime, or an overt act, or before any fragment of the crime itself has been committed.”
(Miller, supra, 2 Cal.2d at p. 531.) Applying this rule, the court reversed the defendant’s
conviction for attempted murder, explaining that “up to the moment the gun was taken
from the defendant no one could say with certainty whether the defendant had come into
the field to carry out his threat to kill Jeans or merely to demand his arrest by the
constable.” (Id. at p. 532.)
Here, the defendants’ actions with respect to the houses were at least as equivocal
as the defendant’s actions in Miller. Before deciding upon any house to burgle,
defendants drove slowly through residential streets, stopping for a minute or two in front
of several houses, looking for the right one; when they identified a potential target, Bashir
got out of the car to scout the house by knocking on the door and looking into the side
yard; when she returned, the defendants remained in the car outside each house for
several minutes apparently considering whether to break into that house or to continue
their search. They rejected each house, not because something interfered with the
execution of a burglary, but because, after considering each of the houses, they
themselves decided to look for another target. Thus, defendants’ scouting or casing
did not constitute an unequivocal commitment to breaking in to the houses: They might
break into the house, but they might keep looking. In fact, defendants did not break into
any of these houses and instead kept looking until they found what they considered a
3
suitable target. After Bashir cased that house, she sat in the driver’s seat as the getaway
driver. Weddington and Nunnery exited the car, approached the house, and broke in
through a window. Thus, their particular modus operandi shows that, at the earliest,
the defendants unequivocally selected their target when the two men exited the car and
walked onto the property of the house they actually burgled.
I agree with the majority that our review requires that we consider the totality of
the evidence presented, including the reasonable inferences drawn from the evidence,
in the light most favorable to the judgment. I also agree with the principle cited by the
majority that we “ ‘ “ ‘should not destroy the practical and common-sense administration
of the law with subtleties as to what constitutes preparation and what constitutes an act
done toward the commission of a crime.’ ” ’ [Citation.]” (Maj. opn. ante, at p. 12.)
Here, common sense and the totality of the evidence point to one reasonable
interpretation: Although defendants intended to break into one or more residences
in the San Fernando Valley, they never decided to break into the Gothic Avenue,
Gerald Avenue, and Tupper Street houses, and, therefore, never moved beyond mere
preparation as to those homes.
Further, the cases upon which the majority rely are distinguishable. In
People v. Prince (2007) 40 Cal.4th 1179, the defendant, who had previously entered
several women’s homes to attack his victims, had been stalking Patricia Van. Van’s
neighbor saw defendant looking into backyards in the area. The defendant knocked
on Van’s door and, when Van answered, asked for a person who did not live there.
(Id. at pp. 1202, 1257.) At that point, the observant neighbor approached defendant
from behind and “challenged him brusquely.” (Id. at p. 1202.) The defendant then left.
The Supreme Court held that these facts were sufficient to constitute attempted burglary
because the defendant’s acts “went beyond mere preparation but were frustrated by the
vigilance of the victim’s neighbor.” (Id. at p. 1257, italics added.) Here, by contrast,
no neighbor or other intervening force frustrated or interrupted the defendants’ plans;
they simply moved on to scout other houses.
4
In People v. Superior Court (2007) 41 Cal.4th 1 (Decker), the defendant entered
into a contract with a man who agreed to kill the defendant’s sister. The defendant gave
the man a down payment of $5,000, and “had effectively done all that he needed to do
to ensure that” the sister would be killed. (Id. at p. 14.) The hired killer, however, was
an undercover detective. “But for” that fact, the court explained, “it [was] likely that
[the defendant’s] conduct would have resulted in the murder” of his sister. (Id. at p. 13.)
Here, by contrast with Prince and Decker, the evidence does not show that the
defendants had done all they needed to do to ensure a burglary would be executed. Nor
was it the absence of an outside force that prevented a burglary of the houses. Rather,
it was the defendants’ own decision to keep looking for a target that prevented the
burglaries.
In People v. Zaun (March 25, 2016, C078962) ___ Cal.App.4th ___ [2016
Cal.App. Lexis 225] (Zaun), four associates employed “[t]heir normal approach” to
committing burglaries: One of them would knock on the door of a residence and, if no
one answered, they would “force the door open and steal what they could.” (Id. at *1].)
When they tried this approach on two particular houses, a resident answered the door.
The person who knocked asked if a certain person lived there or engaged in some
conversation, then left. A jury convicted the defendant of attempted burglary of both
homes and the Court of Appeal affirmed. According to the Third District Court of
Appeal, the jury could reasonably conclude that the “defendant and his associates had
the specific intent to commit burglary in each case, and the appearance of the [residents]
at their respective doors served to interrupt the intended crimes.” (Id. at *5-*6].) Here,
unlike in Zaun, there is no evidence that the defendants’ intent to burgle was frustrated
by the presence of unwanted occupants. Nor is there evidence that they would have
consummated the crimes but for the presence of occupants in the houses. Rather,
5
knocking and looking around was only part of their preparation, as demonstrated by their
decision not to burgle the houses and to keep looking for another target.2
The majority relies on the rule that “ ‘ “slight acts in furtherance of the design will
constitute an attempt.” ’ [Citations.]” (Maj. opn. ante, at p. 12.) The “slight acts” rule,
however, “still presupposes some direct act or movement in execution of the design, as
distinguished from mere preparation.” (Miller, supra, 2 Cal.2d at p. 531.) That is, the
“slight” act must occur after equivocation has ceased and consummation of the crime
has commenced. (Ibid.) Because the defendants had engaged only in scouting or casing
activities preparatory to a burglary, no act, slight or otherwise, had occurred beyond
mere preparation until after they selected the Labrador residence for their crime. I would
therefore reverse the convictions for attempted burglary on counts 9, 10 and 11.
II. Duty to Instruct on Lesser Included Offense of Misdemeanor Evading
Under Vehicle Code section 2800.1,3 “[a]ny person who, while operating a motor
vehicle and with the intent to evade, willfully flees or otherwise attempts to elude a
pursuing peace officer’s motor vehicle, is guilty of a misdemeanor.” If the driver of the
car also drives “in a willful or wanton disregard for the safety of persons or property,” the
driver has violated section 2800.2, which can be punished as a felony.4 (See People v.
Springfield (1993) 13 Cal.App.4th 1674, 1679-1680 [the “only distinction between the
2 The evidence regarding the September 7, 2011, incident at Elizabeth Barba’s
residence is a closer case. There, after Bashir knocked on the door and returned to
the car, defendants drove to an alleyway behind the house. Weddington then got out
of the car and appeared to be approaching the back of the house when he saw a police
officer, and then changed directions and returned to the car. This situation fits more
closely to the facts in People v. Vizcarra (1980) 110 Cal.App.3d 858, and Zaun, supra,
___ Cal.App.4th ___ [2016 Cal.App. Lexis 225]. Therefore, I would affirm the
attempted burglary conviction on count 2.
3Unless otherwise indicated, all subsequent statutory references are to the
Vehicle Code.
4A violation of section 2800.2 is a so-called wobbler because it can be punished
as a misdemeanor or a felony. (People v. Statum (2002) 28 Cal.4th 682, 685.)
6
two crimes is that in committing the greater offense the defendant drives the pursued
vehicle ‘in a willful or wanton disregard for the safety of persons or property.’ ”].)
The court instructed the jury as to the charge of violating section 2800.2 without
also instructing the jury that it could find defendant guilty of the lesser offense of
violating section 2800.1. I believe this was prejudicial error.
As the majority states, a trial court has a duty to instruct the jury sua sponte
“ ‘ “on lesser included offenses when the evidence raises a question as to whether all
of the elements of the charged offense were present [citation], but not when there is no
evidence that the offense was less than that charged.” ’ ” (Maj. opn. ante, at p. 21,
quoting People v. Breverman (1998) 19 Cal.4th 142, 154 (Breverman).) The lesser
offense instruction must be given when substantial evidence could support a finding that
the defendant is guilty of the lesser offense. (Id. at p. 162.)
It is undisputed that Bashir, the driver of the getaway car, drove the car with
willful and wanton disregard for the safety of persons or property. Weddington and
Nunnery, however, did not drive the car at all—they were passengers. As the majority
states, they can nevertheless be liable for violating section 2800.2 if Bashir’s reckless
driving was a natural and probable consequence of either their aiding and abetting of
the burglary or their conspiracy to commit the burglary.5 (See People v. Croy (1985)
41 Cal.3d 1, 12, fn. 5; People v. Prettyman (1996) 14 Cal.4th 248, 261.) As the
majority concludes, “ ‘ “the ultimate factual question [under the natural and probable
consequences doctrine] is one of foreseeability.” . . .’ [Citations.]” (Maj. opn. ante,
at p. 19.) Foreseeability in this context is based on an objective standard; that is,
“ ‘ “ ‘whether a reasonable person in the defendant’s position would have or should
5 It is also possible that Weddington and Nunnery could be liable as direct
aiders and abettors of Bashir’s criminal driving regardless of the natural and probable
consequences doctrine. If, for example, they actively encouraged or directed Bashir to
drive with willful and wanton disregard for the safety of persons or property, they would
be liable for the greater crime even if it was not a natural and probable consequence of
the burglary. There is, however, no evidence of such encouragement or direction.
7
have known that the charged offense was a reasonably foreseeable consequence of the
act aided and abetted.’ ” ’ ” (People v. Smith (2014) 60 Cal.4th 603, 611.)
I agree with the majority that it was reasonably foreseeable to one in
Weddington’s and Nunnery’s positions that Bashir, as the driver of the getaway car,
would flee from and attempt to evade police officers following their burglary. I also
agree that there was sufficient evidence from which the jurors could conclude that it was
reasonably foreseeable that Bashir would do so with willful and wanton disregard for
persons and property. I thus concur in the majority’s substantial evidence analysis and
the result in part III of the majority opinion.
In determining whether to instruct on the lesser offense of misdemeanor evading,
however, the issue is not whether substantial evidence supports the verdict on the greater
offense, but whether substantial evidence also supports the lesser offense: That is, that
it was reasonably foreseeable that Bashir would flee from and attempt to evade police
officers, but not with wanton and willful disregard for persons and property. I believe
substantial evidence for that conclusion is found in the record. The greater crime
involves greater risk to the occupants of the getaway car (as well as to persons in their
path), increased punishment, and little chance of success. Thus, reckless driving from
the scene of the crime was not inevitable. Indeed, the facts are susceptible of either crime
and the jury should have been permitted to determine which, if any, crime the passengers
committed.
The majority points out that Weddington and Nunnery “took full advantage of
Bashir’s reckless driving” as they threw items out of the car’s windows and ultimately
fled on foot after the car crashed. (Maj. opn. ante, at p. 22.) The majority also states
that Nunnery’s disregard for safety of person or property is evidenced by his battery on
the apprehending officer. (Ibid.) These facts, however, shed no light on the question
of whether, from an objective point of view, persons in the defendants’ positions as
participants in a burglary would reasonably foresee Bashir’s reckless driving.
8
Because the evidence was sufficient to support a conclusion that misdemeanor
evading, and not felony evading, was a foreseeable consequence of the defendants’
burglary, the court erred in failing to instruct the jury with the lesser offense. Further,
because it is a close question whether a natural and probable consequence of the
burglary was the greater or lesser crime, the error was prejudicial. (See Breverman,
supra, 19 Cal.4th at p. 149.) I would therefore reverse Weddington’s and Nunnery’s
convictions for felony evading.
ROTHSCHILD, P. J.
9