Opinion
2d Crim. No. B288880
02-05-2020
THE PEOPLE, Plaintiff and Respondent, v. CRAIG DWAYNE JONES, Defendant and Appellant.
Arielle Bases, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Paul M. Roadarmel, Jr., and David F. Glassman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17CR03356)
(Santa Barbara County)
Craig Dwayne Jones appeals from the judgment after a jury convicted him of two counts of second degree commercial burglary (Pen. Code, §§ 459, 460, subd. (b); counts 1 and 2), two counts of vandalism (§ 594, subd. (b)(1); counts 3 and 4), and one count of participation in a criminal street gang (§ 186.22, subd. (a); count 5), and found true allegations that he committed his crimes in association with that gang (id., subd. (b)(1)). The trial court found true allegations that Jones suffered a prior serious felony conviction (§ 667, subd. (a)) and two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and that he served a prior prison term (§ 667.5, subd. (b)). It sentenced him to 25 years to life in state prison plus 20 years four months.
All further statutory references are to the Penal Code.
Jones contends: (1) there is insufficient evidence that he committed burglary, (2) there is insufficient evidence that he committed his crimes in association with a criminal street gang, (3) the prosecutor committed misconduct, (4) we should remand the case to permit the trial court to exercise its discretion to strike the prior serious felony enhancements, and (5) his prior prison term enhancement should be stricken. We strike the prior prison term enhancement, remand to permit the court below to exercise its discretion to impose or strike the prior serious felony enhancements, and otherwise affirm.
FACTUAL AND PROCEDURAL HISTORY
The burglaries
In March 2017, law enforcement determined that a Saturn SUV registered at an address associated with the Long Beach Insane Crips street gang was connected to a string of commercial burglaries. A GPS tracking device was attached to the car. Around 2:00 a.m. on April 9, Detective Albert Garcia told Detective Greg Kaplan that the Saturn was moving north from Long Beach toward U.S. Highway 101. Kaplan followed, monitoring its location from his patrol car.
Detective Garcia also contacted Sergeant Michael Maher and told him that the Saturn was moving north. Maher drove to Santa Barbara, where the car had stopped, arriving around 3:00 a.m. He saw the Saturn and a sedan—later identified as a Jaguar—parked behind it. There were people standing on the sidewalk by the cars, near Los Agaves Restaurant. After an alarm sounded, the people ran to the cars and drove away in tandem.
Sergeant Maher went to Los Agaves and saw that a window had been broken. A door had been damaged. But no money had been taken.
Ten or 15 minutes later, Detective Anthony Valenzuela saw the Saturn and Jaguar parked outside Sakana Sushi Bar & Japanese Restaurant. Detective Garcia saw two people in dark clothing jog from the restaurant toward the cars. After they drove away, he saw that the restaurant door had been damaged. There was broken glass and a cash register on the sidewalk. $300 was missing from the restaurant.
Law enforcement stopped the Saturn and Jaguar a few minutes after the Sakana burglary. There were three people in the Saturn: Isaiah Thomas, Kevin Hawkins, and a juvenile. There were four people in the Jaguar: Justin Johnson, Willard Casey, Christian Sisson, and Jones. All seven were arrested.
Law enforcement recovered gloves, cell phones, and a yellow crowbar from the Saturn. In the Jaguar there was $300 in cash in the seat pocket directly in front of Jones. Law enforcement also recovered headlamps, gloves, bolt cutters, a yellow crowbar, and cell phones from the Jaguar.
One of the cell phones belonged to Jones. That phone made a call from the Long Beach area at 10:23 p.m. on April 8. A video on the phone showed Jones inside the Jaguar with Johnson and Sisson. Another phone belonged to Johnson. Someone used it to search Google Maps for Los Agaves at 12:28 a.m. on April 9.
Jones's interview
Detective John Thompson interviewed Jones. Jones told the detective that he arrived in Santa Barbara around 7:00 p.m. on April 8. Around 11:00, he asked Sisson to pick him up. Sisson did so around 1:00 a.m. on April 9.
Jones told Detective Thompson that he knew Sisson, but did not know the other people in the Saturn and Jaguar. He fell asleep after Sisson picked him up, and woke up when police stopped the Jaguar. He did not know anything about the burglaries, and did not commit any crimes.
Surveillance videos
Prosecutors played surveillance video from each burglary at trial. The video from Los Agaves showed that four people entered the restaurant. Detective Thompson identified those people as Casey, Hawkins, Sisson, and the juvenile. All four wore hooded sweatshirts.
The Sakana video showed that six people entered that restaurant. All six wore hooded sweatshirts and facemasks. Detective Thompson identified Hawkins and Jones as two of the six. Jones wore a black vest in the video. He was not wearing a vest when he was detained, however, though Casey was. The vest Casey wore did not fit Jones. No other vest was found in the Saturn or Jaguar or at Sakana.
At the preliminary hearing, Detective Thompson could only identify Hawkins in the video.
The kite
At trial, the prosecutor sought admission of a "kite," a note Casey and Thomas asked a deputy to deliver to Hawkins. The kite read, in part:
On Baby CJ I aint called nobody on my kids. On Lil Yank cuh niggas speaking up on me[.] Im knocking shit out[.] & on Insane yall niggas sayin JJ telling on
Crip[.] [Y]ou & Doeboy trying make yall self look good at court[.] [Y]ou low key dry telling on me talking bout I picked you up after the robbery. If going on doeboy wanna take it 3 trial because cuh changed clothes on Yankee yall wierd . . . .The prosecutor argued the kite could be "tied into this particular group of individuals who were arrested." She requested that it be admitted as a basis for the gang expert's opinion.
The trial court said that the kite was "relevant on a number of different issues."
So I don't even know that it's hearsay. I don't think it's being offered for the truth of the matter but just to show association between the individuals that were all arrested at the same time. It's relevant to show the existence of a Crips gang, because there's multiple references to Crips, it's references to the incident on this occasion. And there's a fair inference that at least part of it was written by Jones.Jones initially objected that the kite was unduly prejudicial, but later, when the parties were discussing their objections to the exhibits, he did not renew his objection. The court admitted the evidence.
During closing argument, the prosecutor argued the kite "certainly seems to suggest that these individuals were changing clothes and changing their appearances in order to not be detected if there was any surveillance footage that could be identified."
Gang evidence
Detective Timothy Everts testified as an expert on the Long Beach Insane Crips. Everts said that Casey, Hawkins, and Thomas were Insane Crips gang members.
Detective Chris Zamora also testified as an expert on the Insane Crips. He said that there are cliques within the gang, the largest of which is Baby Insane. That clique is associated with the number 23 and the Cleveland Indians logo. Jones has various tattoos associated with the clique: the letter B, a bag of money, and the word "Insane." Casey and Hawkins have similar tattoos.
The Baby Insane clique has a history of committing commercial burglaries at restaurants along freeway corridors in southern and central California. The clique committed the burglaries in groups consisting of several gang members. The perpetrators wore facemasks and the same types of gloves found in the Saturn and Jaguar. They also used yellow crowbars.
In a phone call made from jail, Jones said he was a Crip and referenced the Baby Insane clique. The other person on the phone called him "Dough Boy." Jones did not admit to police that he was a gang member, nor is there documentation of his alleged membership.
Detective Zamora opined that Jones and his six accomplices were active participants in the Long Beach Insane Crips during the Los Agaves and Sakana burglaries. He based his opinion on their gang tattoos, the contents of the kite and other letters, and the jailhouse phone call in which Jones referenced the Crips. His involvement in burglaries committed with Insane Crips gang members also tended to show that Jones was a member of the gang.
The prosecutor presented Detective Zamora with a hypothetical scenario based on the facts of this case:
Several gang members and/or active participants of the Insane Crips leave the City of Long Beach in the middle of the night. Some of the individuals have tattoos indicating gang affiliation with [the] Insane Crip[s], such as . . . Insane, Insane Crip gang hand signs, the letter B for babies, the number 23, and the Cleveland Indian[s] logo.The prosecutor then asked the detective whether the crimes described in the scenario "were committed for the benefit of, or at the direction of, or in association with [a] criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by gang members." Zamora replied that the crimes would "absolutely" be committed in association with a criminal street gang, "as you have the gang members together, so the association is right there. And . . . they're assisting each other in these criminal acts of these burglaries, they're assisting each other working together as an organized gang."
These individuals travel together in two vehicles outside of their own gang territory into a city located off a primary freeway. They're in possession of a yellow crowbar, bolt cutters, or, a bolt cutter, gloves, headlamps, hoodies, and bandanas.
Members of the group force their way into two restaurants [that] are closed for business, which resulted in damage to the businesses. [From] [o]ne business they're able to steal money from the cash register.
Lookouts
Detective Zamora testified that a "lookout" is a person who assists criminal activity by "keep[ing] an eye out for police, or, actually, anybody." A defense expert elaborated that a lookout may use their cell phone to alert accomplices to the presence of police. Neither witness testified that Jones acted as a lookout during the Los Agaves or Sakana burglaries, however. Nor was there evidence that his cell phone made or received any calls around the time of the burglaries, or that it sent or received any text messages.
During closing argument, the prosecutor returned to the subject of lookouts:
[Y]ou heard during the course of this trial a number of times I asked about what is a lookout. Someone who is in the car who may be assisting, aiding, advising, a lookout for law enforcement.She also argued that jurors "know from the Sakana Sushi [video that] six out of the seven individuals went into that restaurant. That means the remaining individual was sitting in that car as a lookout."
And, in fact, you have some testimony in this case regarding cell phones which certainly seems to indicate there was communication going on back and forth.
Sentencing
At sentencing, the trial court granted Jones's Romero motion and struck one of the prior strike convictions tied to his conviction on count 2. It then sentenced him to an aggregate term of 25 years to life in state prison plus 20 years four months: On count 1, the court sentenced Jones as a third strike offender to an indeterminate term of 25 years to life in state prison, plus four years on the attached gang enhancement, plus five years for his prior serious felony conviction. On count 2, the court sentenced Jones as a second strike offender to a determinate term of eight months on the conviction itself, doubled to 16 months due to the prior strike, plus four years on the gang enhancement, plus five years for the prior serious felony conviction, plus one year for the prior prison term. The court stayed the sentences on Jones's remaining convictions pursuant to section 654.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
The court apparently struck the one-year prior prison term sentence enhancement. (See People v. Langston (2004) 33 Cal.4th 1237, 1241 [imposition of prior prison term enhancement mandatory unless stricken].)
DISCUSSION
The burglaries
Jones contends there is insufficient evidence that he aided and abetted the burglaries at Los Agaves and Sakana. We disagree.
Because we conclude that sufficient evidence supports Jones's burglary convictions on an aiding and abetting theory, we need not decide whether he was a direct perpetrator of either offense. (People v. Montoya (1994) 7 Cal.4th 1027, 1038-1039 (Montoya) ["the same criminal liability attaches whether a defendant directly perpetrates the offense or aids and abets the perpetrator"].)
A person aids and abets a crime if they promote or encourage the commission of the crime with knowledge of the perpetrator's unlawful purpose and the intent to facilitate the commission of the crime. (People v. Nguyen (2015) 61 Cal.4th 1015, 1054 (Nguyen).) Thus, to be guilty of burglary as an aider or abettor, a defendant must know of the perpetrator's unlawful purpose in entering a structure with the intent to commit a theft or felony inside, intend that the perpetrator do so, and promote or encourage the crime in some way. (Ibid.; see People v. Hill (1967) 67 Cal.2d 105, 119 [defining intent required for burglary].) The aider and abettor can form the intent to promote or encourage the burglary any time before the perpetrator leaves the structure. (Montoya, supra, 7 Cal.4th at p. 1046.) Factors to consider when determining whether a defendant did so include "'presence at the scene of the crime, companionship, and conduct before and after the offense.' [Citation.]" (Nguyen, at p. 1054.)
Whether Jones aided and abetted the burglaries is a question of fact. (Nguyen, supra, 61 Cal.4th at p. 1054.) Our review is thus limited to determining whether substantial evidence—"evidence that is reasonable, credible, and of solid value"—supports the jury's verdicts. (People v. Zamudio (2008) 43 Cal.4th 327, 357.) We view the evidence "in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence." (Ibid.) "'Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the . . . jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.'" (Ibid.) Reversal "'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support"' the jury's verdict. [Citation.]" (Ibid.)
Substantial evidence supports that Jones aided and abetted the burglaries here. Jones was outside in the Jaguar during the Los Agaves burglary, and inside Sakana during the burglary there. He was with a group that included documented members of the Baby Insane clique of the Long Beach Insane Crips, traveling from Long Beach to Los Agaves to Sakana in a caravan with a car that had been used in previous burglaries. Jones was seated next to $300 in cash when law enforcement detained him, the exact amount of money taken from Sakana. The same types of gloves and yellow crowbars found in the Saturn and Jaguar had been used in previous burglaries associated with the Baby Insane clique. Considered together, Jones's presence at the scene of the burglaries, his companionship to the direct perpetrators, his proximity to the stolen funds, and his conduct before and after the burglaries provides substantial evidence to support the jury's determination that he aided and abetted the Los Agaves and Sakana burglaries. (Nguyen, supra, 61 Cal.4th at p. 1054; see, e.g., In re Lynette G. (1976) 54 Cal.App.3d 1087, 1095 [presence at scene followed by flight with direct perpetrators]; People v. Silva (1956) 143 Cal.App.2d 162, 169 [driver waiting in car]; People v. Wilson (1928) 93 Cal.App. 632, 636-637 [unexplained presence at scene].)
Jones's reliance on People v. Moore (1953) 120 Cal.App.2d 303 is misplaced. There, as here, the defendant "was not a mere bystander or onlooker." (Id. at p. 306.) "His presence could have given encouragement to his companions," or he could have "acted as a deterrent." (Ibid.) He "was [also] in the position of a lookout[,] and though he gave no warning none was required." (Ibid.) Additionally, the Moore defendant, like Jones, "was in the company of the other [perpetrators] before the crime was committed, remained with them during the [commission of the crimes], fled with them from the [crime scenes], and when arrested in company with [them] had the . . . stolen bills in his possession." (Ibid.) Such evidence was "sufficient" to deem the Moore defendant a participant in the crime there. The same is true here. (Ibid.)
Given our conclusion, Jones's contention that his other convictions must be reversed since they stem from his burglary convictions is moot.
Gang enhancement
"[A]ny person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which [they have] been convicted, be punished . . . ." (§ 186.22, subd. (b)(1).) This sentence enhancement requires the prosecution to prove that: (1) the underlying felonies were gang related (People v. Albillar (2010) 51 Cal.4th 47, 60 (Albillar)), and (2) the defendant had "the specific intent to promote, further, or assist in any criminal conduct by gang members" (id. at p. 65, italics omitted). Jones contends there was insufficient evidence of the first of these requirements. We disagree.
There are three ways a prosecutor may show that a crime was gang related. (People v. Weddington (2016) 246 Cal.App.4th 468, 484 (Weddington).) "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." (Ibid., italics omitted.) "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." (Ibid.) "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.' [Citations.]" (Ibid.)
Here, Detective Everts testified that Casey, Hawkins, and Thomas were members of the Baby Insane clique of the Long Beach Insane Crips at the time of the burglaries. Detective Zamora testified that Jones and his other alleged accomplices were also active participants in the gang during the burglaries. And it is reasonable to infer from the Google Maps search on Johnson's phone that these individuals were not on a frolic or detour unrelated to the gang when the burglaries occurred. There is thus sufficient evidence that the burglaries were committed "in association with" the Baby Insane clique of the Long Beach Insane Crips. (Weddington, supra, 246 Cal.App.4th at p. 484; see also Albillar, supra, 51 Cal.4th at pp. 60-62.) Detective Zamora's expert opinion reinforces that conclusion. (People v. Vang (2011) 52 Cal.4th 1038, 1048-1049 [expert opinion sufficient to support first prong of gang enhancement].)
This case is unlike People v. Ramon (2009) 175 Cal.App.4th 843, on which Jones relies. In Ramon, the gang expert opined that the defendant committed his crimes for the benefit of a criminal street gang because: (1) both he and his codefendant were members of the gang, and (2) police stopped the two in gang territory. (Id. at p. 849.) Our colleagues in the Fifth Appellate District vacated the defendant's gang enhancement because "[t]here were no facts from which the expert could discern whether [the defendant and codefendant] were acting on their own behalf the night they were arrested or were acting on behalf of the [gang]." (Id. at p. 851.)
Ramon is inapposite. That case considered whether the defendant committed his crimes for the benefit of a criminal street gang, not whether he committed his crimes in association with a gang, as was the case here. "It is axiomatic that cases are not authority for propositions not considered." (People v. Ault (2004) 33 Cal.4th 1250, 1268, fn. 10.)
And even if Ramon were apposite, here there was ample evidence that Jones and his accomplices were acting on behalf of the Baby Insane clique. Detective Zamora testified that the clique had committed several recent commercial burglaries at other restaurants near freeways. The gang members who committed those burglaries had tattoos similar to Casey, Hawkins, and Jones. They wore facemasks and the same type of gloves that the perpetrators here wore. They also used yellow crowbars, just like the perpetrators here. From such a consistent pattern, the jury could rationally infer that Jones and his accomplices were acting on behalf of the Baby Insane clique.
Prosecutorial misconduct
Jones contends the prosecutor committed misconduct because she: (1) used the kite in a manner that exceeded the limited purpose for which it was admitted, and (2) referenced facts not in evidence when she discussed lookouts during her closing argument. But Jones did not object at trial, nor did he request curative admonitions. He has forfeited his contentions. (People v. Centeno (2014) 60 Cal.4th 659, 674.)
Jones claims his counsel provided ineffective assistance by failing to object. But to succeed on this claim, Jones must show that counsel performed deficiently and that the deficient performance resulted in prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687.) And "[t]he decision of when to object is inherently tactical," such that a "failure to object will seldom establish incompetence." (People v. Scott (1997) 15 Cal.4th 1188, 1223.)
Here, counsel may have decided that objections would have highlighted the damaging evidence in the kite or given the prosecutor the opportunity to reinforce her argument that Jones aided and abetted the burglaries by acting as a lookout. Such tactical decisions would not constitute deficient performance. (See, e.g., People v. Fosselman (1983) 33 Cal.3d 572, 582.) On the record filed in this appeal, Jones's ineffective assistance of counsel claim must fail.
Jones has raised a similar ineffective assistance of counsel claim in a petition for writ of habeas corpus that includes a declaration of counsel. We deny Jones's petition by separate order filed concurrently with this opinion. (2d Case No. B296480.)
Prior serious felony enhancements
When the trial court sentenced Jones, section 667, subdivision (a), required it to add a five-year enhancement to the sentence on each of his burglary convictions because of his prior serious felony conviction. (See People v. Sasser (2015) 61 Cal.4th 1, 17 [enhancement imposed once on determinate portion of sentence]; People v. Williams (2004) 34 Cal.4th 397, 404 (Williams) [enhancement imposed on each indeterminate sentence].) Effective January 1, 2019, the court has discretion to strike the enhancements for sentencing purposes. (People v. Zamora (2019) 35 Cal.App.5th 200, 208 (Zamora); see § 1385, subd. (b)(1).)
The amendments to sections 667 and 1385 apply retroactively to this case because it is not yet final. (Zamora, supra, 35 Cal.App.5th at p. 208; see In re Estrada (1965) 63 Cal.2d 740, 744.) On remand, the trial court must determine whether to strike or impose the five-year serious felony enhancement to the sentence on each of Jones's burglary convictions. (Zamora, at pp. 208-209.)
Prior prison term enhancement
When the trial court sentenced Jones, section 667.5, subdivision (b), required it to add one year to the indeterminate portion of his sentence and one year to the determinate portion of his sentence because of his prior prison term, unless the court elected to strike the enhancements. (People v. Minifie (2018) 22 Cal.App.5th 1256, 1265.) Effective January 1, 2020, the Legislature amended section 667.5, subdivision (b), to limit the applicability of the enhancement to prison terms served for sexually violent offenses. (People v. Jennings (2019) 42 Cal.App.5th 664, 681.) The amendments to section 667.5, subdivision (b), apply retroactively to cases that are not yet final on appeal. (Jennings, at pp. 681-682.)
Here, the court apparently struck the enhancement as it applied to the indeterminate portion of Jones's sentence, but imposed it on the determinate portion. But because Jones's prior prison term was not for a sexually violent offense, it must be stricken from that portion of his sentence as well.
Jones served his prison term for possession of a controlled substance while in prison. (§ 4573.6.) --------
Additional sentencing error
Although not briefed by the parties, we note an additional error to assist the trial court at resentencing. Jones was convicted of burglary as a third strike offense, a crime punishable by an indeterminate term of imprisonment, and burglary as a second strike offense, a crime punishable by a determinate term. As this court has noted, "[i]ndeterminate term crimes and determinate term crimes are subject to two different sentencing schemes. . . . Sentencing under these two sentencing schemes must be performed separately and independently of each other. [Citation.] Only after each is determined are they added together to form the aggregate term of imprisonment." (People v. Neely (2009) 176 Cal.App.4th 787, 797 (Neely), italics added.)
The trial court erred when it calculated the determinate term on count 2 because it did not calculate that portion separately and independently from the indeterminate term on count 1. (Neely, supra, 176 Cal.App.4th at p. 797.) Rather, it imposed one-third the middle term (as if the indeterminate sentence on count 1 were the principal term), then doubled it on account of Jones's prior strike, and then added the applicable enhancements. This error must be corrected at resentencing.
DISPOSITION
The one-year prior prison term sentence enhancement is stricken, the two five-year prior serious felony enhancements are conditionally vacated, and the case is remanded to the trial court with directions to hold a new sentencing hearing. At that hearing, the court shall exercise its discretion to: (1) strike or impose the prior serious felony enhancement to each portion (determinate and indeterminate) of Jones's sentence; (2) impose the upper, middle, or lower term on the conviction on count 2; and (3) impose the upper, middle, or lower term on the gang enhancement to the sentence on count 2. The court shall then: (4) recalculate the indeterminate term on count 1, if necessary; (5) recalculate the determinate term on count 2; and (6) add the indeterminate and determinate terms together to form the aggregate term. Upon resentencing, the clerk of the court shall prepare modified abstracts of judgment, and forward certified copies to the Department of Corrections and Rehabilitation.
In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED.
TANGEMAN, J. We concur:
GILBERT, P. J.
PERREN, J.
Brian Hill, Judge
Superior Court County of Santa Barbara
Arielle Bases, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Paul M. Roadarmel, Jr., and David F. Glassman, Deputy Attorneys General, for Plaintiff and Respondent.