Lead Opinion
Opinion
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,
Appellants contend
FACTUAL BACKGROUND
September 7, 2011
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 10 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, he looked in Officer Parker’s
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, 2011
Midmorning on September 26, 2011, a multiunit 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 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 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 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.
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.
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 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
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)
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,
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)
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.” (CALCRIM No. 460.) The court further instructed that “[a] person who attempts to commit burglary is guilty of attempted burglary even if, after taking a direct step towards committing the crime, he or she abandoned further efforts to complete the crime.”
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,
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)
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
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,
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,
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 cone. & dis. opn. at pp. 492-497, 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,
The dissent distinguishes the recent case of People v. Zaun (2016)
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
An examination of the whole record in this case reveals abundant eviden-tiary 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)
“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)
Appellants observe that expert testimony that is unsupported by any evidence that the crime was gang related is insufficient to support a gang
There are two prongs to the gang enhancement under section 186.22, subdivision (b)(1). (People v. Albillar (2010)
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 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)
The record in this case amply supports the trial court’s finding that appellants committed the underlying offenses as gang members acting in
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.
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,
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.
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 (2000)
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
The high court continued: “ ‘[Although 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,
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)
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
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,
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)
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 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
However, “[speculation is insufficient to require the giving of an instruction on a lesser included offense.” (People v. Mendoza (2000)
“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)
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,
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
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 on the lesser offense were required. (Cone. & dis. opn. at p. 498, 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,
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.
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. (People v. Scott (1994)
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,
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
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)
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.
Undesignated statutory references are to the Penal Code.
Nunnery 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.
Each 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)
Because the jury acquitted appellants on count 13, we omit a recitation of the evidence related to that count.
The trial court dismissed count 12 pursuant to defense motions for judgment of acquittal. (§ 1118.1.) Accordingly, evidence relating to that count is omitted.
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.
When Fong returned home, she found her house had been ransacked and property worth more than $1,000 was missing.
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.
Appellants do not challenge the propriety of these instructions.
“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,
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).)
Concurrence Opinion
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
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. Taliah Bashir was driving, Willie Nunnery was in the front passenger seat, and Travion 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 of 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.
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 of 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.’ ” ’ [Citations.]” (Maj. opn., ante, at p. 478.) 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)
In Miller, supra,
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,
Here, 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
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. 481.) 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)
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 (2016)
The majority relies on the rule that “ ‘ “slight acts in furtherance of the design will constitute an attempt.” ’ [Citations.]” (Maj. opn., ante, at p. 478.) The “slight acts” rule, however, “still presupposes some direct act or movement in execution of the design, as distinguished from mere preparation.”
II. Duty to Instruct on Lesser Included Offense of Misdemeanor Evading
Under Vehicle Code section 2800.1,
The court instructed the jury as to the charge of violating section 2800.2 without also instructing the jury that it could find Weddington and Nunnery 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 pp. 488-489, quoting People v. Breverman (1998)
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
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
Because the evidence was sufficient to support a conclusion that misdemeanor evading, and not felony evading, was a foreseeable consequence of 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,
The petitions of all appellants for review by the Supreme Court were denied July 27, 2016, S234182.
The 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.
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)
Unless otherwise indicated, all subsequent statutory references are to the Vehicle Code.
A 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)
It is also possible that Weddington and Nunnery could be liable as direct aiders and abettors of Bashir’s reckless 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.