People v. Wilson CA6

Filed 6/22/21 P. v. Wilson CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H046730
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C1648876)

v.

EXRILL DARILE WILSON,

Defendant and Appellant.

In a negotiated disposition, defendant Exrill Darile Wilson pleaded no contest to
several counts of burglary of a vehicle and was sentenced to two years in state prison. At
sentencing, the trial court also ordered, pursuant to Vehicle Code section 13350, that
Wilson’s convictions be reported to the California Department of Motor Vehicles (DMV)
for revocation of his driving privilege.
On appeal, Wilson argues the trial court erred in directing that his convictions be
reported to the DMV because there was no factual basis for that order. On our own
motion, we ordered the record augmented to include the transcripts from the preliminary
hearing. We also requested supplemental briefing from the parties, once those transcripts
were filed, to address the following question: “May the sentencing judge, who also
presided over the preliminary hearing in this case, rely on the testimony and other
evidence presented at the preliminary hearing to inform her sentencing choices, including
the decision to notify the California Department of Motor Vehicles of defendant’s
convictions pursuant to Vehicle Code section 13350?”
 In his supplemental brief, Wilson argued that revoking a driver’s license is a
punishment and, under Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi), a
punishment may only be imposed if the facts supporting it were proved beyond a
reasonable doubt. In his view, testimony from the preliminary hearing, at which the
magistrate need only find that probable cause exists to hold a defendant to answer, is
insufficient to support this aspect of his sentence.
We disagree and will affirm the judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Procedural Background
On May 24, 2018, the Santa Clara County District Attorney filed a third amended
information charging Wilson with participation in a criminal street gang (Pen. Code,
§ 186.22, subd. (a); count 1)1 and three counts of burglary of a vehicle (§§ 459, 460,
subd. (b); counts 2-4). The information further alleged that the burglaries were
committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(A)) and that
Wilson had a prison prior conviction (§ 667.5, subd. (b)).
Pursuant to a negotiated disposition, Wilson pleaded no contest to counts 2, 3, and
4 in exchange for an indicated sentence of 24 months plus dismissal of count 1 and the
gang enhancements. At the December 21, 2018 sentencing hearing, the trial court
imposed a sentence of 24 months in prison, deemed served with his 732 days of credits
(366 days of custody credits plus 366 days of conduct credits pursuant to section 4019).
The trial court also imposed various fines, fees, and assessments, none of which are at
issue in this appeal. Finally, the trial court, over defense objection, stated that it would
report Wilson’s convictions to the DMV for revocation of his driving privilege pursuant
to Vehicle Code section 13350.
Wilson timely appealed.

1
Unspecified statutory references are to the Penal Code.

2
 B. Factual Background2
1. Count 2
On April 30, 2015, Sherry L. parked her Volkswagen in the parking lot of a
restaurant on El Camino Real in Palo Alto. Sometime later, Sherry L. returned to her car
and noticed that one of the rear windows had been broken. Sherry L. did not believe
anything had been taken from her vehicle.
A witness, John S., was walking his dog near the restaurant that night and noticed
two men walking around with flashlights in the parking lot. John S. thought this was
suspicious, so he called 911 and provided the license plate number of a vehicle associated
with the two men. Palo Alto Police Officer Chris Correia responded to the scene and
spoke with John S. who described one of the two men he had seen in the parking lot as a
“heavyset male.”
2. Count 3
On April 30, 2015, Alexandra O. was sitting in her car in the parking lot of a
restaurant on El Camino Real in Palo Alto, waiting for her husband. She saw a silver
BMW SUV pull into the parking lot and circle around a couple of times. Two men got
out of the vehicle and started looking into cars in the parking lot. One of the men was a
“skinny black male . . . with a black hoodie” and the other was a “heavy black male
wearing a white T-shirt.” The thinner man had a flashlight and, after he said something
to the heavier man, the heavier man went back to the BMW. Alexandra O. saw the
skinny man run back to the BMW carrying a black bag. He climbed in and the BMW
drove away. Alexandra O. subsequently identified Wilson in a photo lineup as the
“heavier-set man” in the BMW that night.
Palo Alto Police Officer Brad Young responded to the restaurant parking lot and
spoke to Q.L. and W.F. who reported that their 2014 Dodge Grand Caravan had been

2
Because Wilson pleaded no contest prior to trial, we derive the facts from the
preliminary hearing transcript.

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burglarized that evening. Young observed that the rear passenger window of the vehicle
had been broken and Q.L. reported that a black backpack containing a computer, a cell
phone, an iPad Mini and “other important documents” had been taken from inside. W.F.
said that his black backpack which also contained a computer and documents had been
taken as well. Police recovered two bags containing Q.L.’s and W.F.’s identification near
the intersection of “Margarita and Orinda.”
3. Count 4
On May 7, 2015, at around 9:00 a.m., Elaine M. parked her Toyota Sienna in the
parking lot of a donut shop located in Mountain View. When she returned to her car, she
noticed that one of the windows had been broken and two backpacks as well as a laptop
computer had been stolen from inside. Mountain View Police Officer Andrew Wong
viewed the donut shop’s video surveillance footage of its parking lot and saw a black
Volkswagen SUV park next to Elaine M.’s vehicle. A “heavyset black male . . . wearing
a plain white T-shirt” got out of the driver’s seat of the Volkswagen and looked in Elaine
M.’s vehicle. A second black male, wearing a black knit cap and a light blue jacket, got
out of the front passenger seat and went to look into another car. The heavyset man
waved the second man over and then got back into the driver’s seat of the Volkswagen.
He left the driver’s side door open, which Wong believed was to “shade or block” anyone
else’s view of the space between his car and Elaine M.’s car. The second man came over,
broke the window on Elaine M.’s car, grabbed something out of it and ran back to the
passenger seat of the Volkswagen. The Volkswagen then drove out of the parking lot.
Wong subsequently identified the passenger as Andrew Peacock based on
surveillance video from a recent burglary in Menlo Park. In the video from the Menlo
Park burglary, Wong could see that Peacock was the passenger in a black Volkswagen
SUV and that a heavyset black male wearing a white T-shirt was the driver. Wong could
also make out the license plate of the vehicle.

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 Later that day, Wilson was arrested by the California Highway Patrol (CHP) while
driving a black Volkswagen SUV with the same license plate Wong had observed in the
Menlo Park burglary video. Wong viewed the CHP dashcam video of the encounter and
observed that Wilson was wearing a white T-shirt when he was arrested.
Wong later interviewed both Wilson and Peacock. Wilson admitted that he was
arrested by the CHP in a Volkswagen SUV but denied being involved in the burglary at
the donut shop. Peacock admitted he was the person shown in the Menlo Park burglary
surveillance video and also said he was with Wilson that morning. However, Peacock
said he could not remember if he and Wilson went to Mountain View that day.
II. DISCUSSION
Vehicle Code section 13350 provides that the DMV “immediately shall revoke
the privilege of a person to drive a motor vehicle upon receipt of a duly certified abstract
of the record of a court showing that the person has been convicted of . . . [¶] . . . [a]
felony in the commission of which a motor vehicle is used . . . .” (Veh. Code, § 13350,
subd. (a)(2).) Wilson contends that the trial court abused its discretion at the sentencing
hearing when it found that a vehicle was used in the commission of the burglaries. In his
supplemental letter brief, he argues that revoking his driver’s license is an increased
punishment which may only be imposed if the facts supporting it were proved beyond a
reasonable doubt, citing Apprendi supra, 530 U.S. at page 490.
Consequently, before examining whether the trial court abused its discretion in
reporting Wilson’s convictions to the DMV pursuant to Vehicle Code section 13350, we
must determine if the trial court’s finding under that statute is subject to Apprendi. We
conclude it is not.
A. Vehicle Code Section 13350 and Apprendi
“Other than the fact of a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.” (Apprendi, supra, 530 U.S. at p. 490.) “Although the high

5
court has not specifically defined the word ‘penalty’ as used in Apprendi . . . , Apprendi
itself involved a court-made factual finding that directly increased the length of the prison
sentence for the crime to which the defendant had pled guilty.” (People v. Mosley (2015)
60 Cal.4th 1044, 1056 (Mosley).)
In Mosley, the California Supreme Court held that residency restrictions imposed
on registered sex offenders pursuant to Jessica’s Law are not subject to Apprendi
because, among other reasons, the “restrictions are not intended as punishment or
retribution for the offense or offenses that led to their imposition.” (Mosley, supra, 60
Cal.4th at p. 1062.) “Rather, their purpose is to serve a legitimate regulatory goal—
reducing the opportunity for persons convicted of sexually related crimes, who are at
large in the community but still deemed dangerous, to reoffend in the future. The
restrictions may lead to significant disabilities in individual cases, but in the abstract, they
do not so resemble traditional forms of punishment, and are not so clearly punitive in
effect, as to override their regulatory aim.” (Ibid.)
We conclude that like the sex offender residency restrictions in Mosley, the license
revocation requirement of Vehicle Code section 13350 is not “intended as punishment or
retribution for the offense or offenses that led to [its] imposition.” (Mosley, supra, 60
Cal.4th at p. 1062.) Revoking the driver’s license of someone who has used a motor
vehicle to commit a felony “serve[s] a legitimate regulatory goal—reducing the
opportunity for persons convicted of [qualifying] crimes, who are at large in the
community . . . , to reoffend in the future.” (Ibid.) We have no doubt that revocation of a
driver’s license “may lead to significant disabilities in individual cases, but in the
abstract, [it] do[es] not so resemble traditional forms of punishment, and [is] not so
clearly punitive in effect, as to override [its] regulatory aim.” (Ibid.)
Further, while we have found no case directly addressing whether Apprendi is
applicable to Vehicle Code section 13350, the California Supreme Court has explained
that in most contexts, “the suspension or revocation of a driver’s license generally has

6
been viewed as a sanction that is ‘civil’ rather than penal.” (Larsen v. Dep’t of Motor
Vehicles (1995) 12 Cal.4th 278, 286, fn. 6.) Driving is “a privilege, not a right, and
license revocation [is] a civil, not a criminal, sanction.” (People v. Linares (2003) 105
Cal.App.4th 1196, 1199.)
For these reasons, we conclude that Apprendi is not applicable to the revocation
provisions of Vehicle Code section 13350. The sentencing judge, who also presided over
the preliminary hearing, was entitled to rely on her knowledge of the evidence presented
at that hearing3 to conclude that Wilson’s conviction should be reported to the DMV
under the statute.
B. License Revocation Pursuant to Vehicle Code Section 13350
We now turn to whether there is sufficient evidence in the record to support the
trial court’s finding that Wilson used a motor vehicle in the commission of the auto
burglaries that formed the basis of his no contest pleas. We conclude the finding is
supported by sufficient evidence.
Vehicle Code section 13350 is appropriately invoked when the court finds “a
nexus between the offense and the vehicle, not merely that a vehicle was incidental to the
crime.” (People v. Poindexter (1989) 210 Cal.App.3d 803, 808.) In Poindexter, the
defendant pleaded no contest to grand theft from a person who was stopped on the side of
the road, fixing his vehicle. (Id. at pp. 805-806.) A car driven by a codefendant, with the
defendant as a passenger, stopped behind the victim’s car. The codefendant asked the
victim where he got the “ ‘bra’ ” on the front of his car. (Id. at p. 806.) The defendant
and the codefendant took the bra from the victim’s car and put it on the codefendant’s
car. They also demanded money from the victim. (Ibid.) On appeal, the court reversed

3
The preliminary hearing transcript is a part of the record of conviction because of
“the procedural protections afforded the defendant . . . includ[ing] the right to confront
and cross-examine witnesses and the requirement those witnesses testify under oath,
coupled with the accuracy afforded by the court reporter’s verbatim reporting of the
proceedings.” (People v. Reed (1996) 13 Cal.4th 217, 223.)

7
the defendant’s license revocation pursuant to Vehicle Code section 13350 concluding
that, based on the record, “[t]he crime was not carried out by means of the car, nor was
the car used as an instrumentality in the crime.” (Poindexter, supra, at p. 808.)
Other courts have found a sufficient connection between a defendant’s vehicle and
his or her crime. In People v. Paulsen (1989) 217 Cal.App.3d 1420 (Paulsen), the
defendant and a codefendant acquired musical and television equipment by fraudulent
means and used a car and a U-Haul truck to carry that equipment away. The Court of
Appeal, citing the preliminary hearing transcript,4 distinguished Poindexter on its facts
and affirmed the revocation of the defendant’s license under Vehicle Code section 13350.
(Paulsen, supra, at p. 1423.) The Paulsen court stated that “there was a strong nexus
between the crimes perpetrated by defendant and the two motor vehicles in this case.
Both the Isuzu car and the U-Haul truck were instrumental in carrying out the crimes
charged. Their use was necessary in order to haul away the merchandise acquired in the
fraudulent purchases. Defendant and her codefendant would not have been able to move
the heavy musical and television equipment away from the stores where they obtained the
merchandise without the use of such vehicles.” (Ibid.)
In People v. Gimenez (1995) 36 Cal.App.4th 1233, a sheriff’s deputy saw the
defendant getting out of a Camaro in a car lot. By the time the deputy made a U-turn, the
defendant was gone. The deputy checked the Camaro and saw that its radio had been
removed and placed on the front seat. The defendant was found in a nearby parking lot
along with tools which could be used to remove the radio. (Id. at p. 1235.) In a recorded
interview, the defendant admitted he had seen the radio “earlier in the day,” “ ‘wanted it
for himself and went back to get it that night.’ ” (Id. at p. 1237.) Noting the defendant’s
daytime formulation of a plan to drive to the car lot that night and steal the radio, the
Gimenez court distinguished Poindexter on its facts, noting that Poindexter formed the

4
Like Wilson, the defendant in Paulsen was convicted after entering into a plea
agreement. (Paulsen, supra, 217 Cal.App.3d at p. 1421.)

8
intent to steal after happening upon the victim stopped along the side of the road.
The court reasoned that by planning the theft in advance, driving to the location of the
coveted radio, and retreating to the car when the theft was interrupted, Gimenez “used his
vehicle for the purpose of committing the crime, and . . . the vehicle was instrumental . . .
in the commission of the crime.” (Gimenez, at p. 1237.) As a result, “there was a
sufficiently strong nexus between the vehicle use and the crime to justify the application
of Vehicle Code section 13350.” (Ibid.)
This case is much more similar to Paulsen and Gimenez than it is to Poindexter. It
is reasonable to infer from the evidence presented at the preliminary hearing that Wilson
and his codefendants formed their intent to steal items from vehicles prior to driving to
various parking lots along El Camino Real at night. Their approach was systematic and
organized. Upon arrival at a given parking lot, they used flashlights to peer into the
windows of parked vehicles, apparently looking for backpacks, laptops, and bags used to
carry personal belongings and electronics of value. Having spotted such items, Wilson
and his codefendants quickly smashed the windows of those specific vehicles and
removed the personal possessions of the victims. Returning to their vehicle with the
articles, Wilson and his codefendants drove to a different parking lot and repeated the
process. The vehicle thus facilitated multiple thefts in a given night, also allowing
Wilson and his given companion to quickly leave the scene of the thefts with less risk of
apprehension by law enforcement.
And while Wilson may have been a passenger for some of the burglaries, the
evidence also showed that Wilson was the driver of the Volkswagen involved in the
May 7, 2015 burglary. Mountain View Police Officer Wong testified that after Wilson
looked in a particular vehicle, he waved over his companion, got back into the driver’s
seat, and used the driver’s door of the Volkswagen to obscure any bystander’s view of the
space between the Volkswagen and the car that was then burglarized. In short, Wilson
used the car itself to facilitate the auto burglary. These facts demonstrate a sufficiently

9
strong nexus between the use of the car and the offenses. The trial court did not abuse its
discretion in reporting Wilson’s vehicle burglary convictions to the DMV under Vehicle
Code section 13350.
III. DISPOSITION
The judgment is affirmed.

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 _______________________________
Greenwood, P.J.

WE CONCUR:

______________________________________
Elia, J.

______________________________________
Bamattre-Manoukian, J.

People v. Wilson
No. H046730